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DIGEST 

OF  THE  CASES  REPORTED  IN 

ANNOTATED  CASES 

(American  and  English) 

1916C  TO  1918B 


WITH  TABLE  OP  CASES  EEPOETED 

AND 

INDEX  OF  THE  ANNOTATIONS 


BANCROFT-WHITNEY  COMPANY  EDWARD  THOMPSON  COMPANY 

SAN  FRANCISCO  NORTHPORT,  L.  I.,  N.  Y. 

1918  1918 


>  f 


Copyright,  1918 

BY 

BANCROFT-WHITNEY  COMPANY 

AND 

EDWARD   THOMPSON  COMPANY 


San  Francisco 

The  Filmer  Brothers  Electrotype  Company 

Typographers  and  Stereotypers 


TABLE 

OF 

CASES  REPORTED 

IN 

ANN.  CAS. 

1916C-1918B 


Aarons    T.    State — 105    Miss. 

402     1916E 

Ackeret     v.     Minneapolis     — 

129   Minn.   190    1916E 

Acme    Brewing    Co.,    Howard 

v.— 143   Ga.   1 1917A 

Acme  \Vhite  Lead,  etc.  Works, 

Adams  v.— 182  Mich.  157.  . .  1916D 
Adair,  Faisan  v.— 144  Ga.  797  1918A 
Adam  v.  Ward— [1917]   A.  C. 

309   1917D 

Adams  v.  Acme  White  Lead, 

etc.  Works— 182  Mich.  157.  .  1916D 
Adams,    Embry    v. — 191    Ala. 

291 19170 

Adams,  McKinney  v. — 68  Fla. 

208    1917B 

Adams  v.  Tanner— 244  U.  S. 

590 1917D 

Adams,   Watson   v. — 187    Ala. 

490   1916E 

Adams  Express  Co.  v.  Allen- 
dale Farm— 116  Va.  1 1916D 

Addis  V.  Applegate,  171  Iowa, 

150 1917E 

Adleman   v.    Ocean   Accident, 

etc.  Corp.— 130  Md.  572 1918B 

Admiralty    Commissioners     v. 

S.  S.  Amerika— [1917]  A.  C. 

38    1917B 

Aetna  Life  Ins.   Co.,  Johnson 

v.— 158  Wis.  56 1916E 

Aetna    Life    Ins.    Co.,    Little 

Cahaba    Coal    Co.    v.  — 192 

Ala.  42 1917D 

Aetna    Life    Ins.    Co.,    Moore 

v.— 75  Ore.  47 1917B 

Aetna  Life  Ins.  Co.  v.  Tavlor 

—128  Ark.  155 1918B 

Agar    V.    Streeter — 183    Mich. 

600    1916E 


PAGE  PAOH 

Age-Herald  Publishing  Co.  V. 
263  Waterman— 188  Ala.  272...   1916E     900 

Aitchison,  Sherod  v. — 71  Ore. 

897  446    19160  1151 

Aitken,  Brown  v.— 88  Vt.  148.  1916D  1152 
91       A.   J.   Lyon   &    Co.,   Southern 
Pacific  B.  Co.  v.— 107  Miss. 

689  777    1917D     171 

243       A.  J.  White  &  Co.,  Dennis  v. — 

[1917]  A.  C.  479 1917B     325 

249       Akers,    Compton   v. — 96    Kan. 

229    1918B     983 

689       Akron      v.     McElligott  — 166 

Iowa,  297   1916E     692 

1024       Alabama  City,  etc.  E.  Co.  v. 

Gadsen— 185  Ala.  263 19160     573 

326       Alabama  Fuel,  etc.  Co.,  State 

v.— 188  Ala.  487 1916E     752 

973       Alabama   Power  Co.   v.  Key- 
stone Lime  Co.— 191  Ala.  58  19170     878 
565       Alashua    County,    Gainesville 

v.— 69  Fla.  581 1917D     843 

894       Albany  Guardian  Society,  Al- 
bany Hospital  v.— 214  N.  Y. 

332  435 1916D  1195 

Albany    Hospital    v.    Albany 
730  Guardian         Society  —  214 

N.  Y.  435  1916D  1195 

Albert  Pick  &  Co.  v.  Jordan — 

877  169  Cal.  1   19160  1237 

Alderson  v.  Kahle — 73  W.  Va. 

603  690 1916E     561 

Alerton,  Deeble  v.  —  58  Colo. 

166    19160     863 

863       Alexander's  Estate,  In  re — 246 

Pa.  St.  58   19160       33 

1005       Alexander,     Barton     v.  —  27 

Idaho  236  1917D     729 

1122       Alexander   City   Cotton   Mills 
Co.,  Thompson  v. — 190  Ala. 

518  184  1917A     721 

(iii) 


CkSES  REPORTED. 


Alexandria    v.   Police   Jury — 

139  La.  635 1918A     362 

Alger    Logging    Co.,    Susznik 

v.— 76  Ore.  189   1917C     700 

Allen  V.  Almy— 87  Conn.  517.  1917B  112 
Allen,  Ball  v.— 216  Mass.  469  1917A  1248 
Allen,  London  County  Council 

v.— [1914]  3  K.  B.  642 19160     932 

Allen  V.  Wedgwood— [1915]  1 

Ch.  113 1917B     924 

Allendale  Farm,  Adams  Ex- 
press Co.  v.— 116  Va.  1 1916D     894 

Allis-Chalmers  Co.  v.  Atlan- 
tic—164  Iowa,  8 1916D     910 

Allred'8   Will,  In  re— 170   N. 

Car.  153 1916D     788 

Almy,  Allen  v.— 87  Conn.  517  1917B  112 
Altman,  Fields  r.  — 193   Ala. 

160 1918B     189 

American      Bauxite      Co.     y. 

Dunn— 120  Ark.  1 19170     625 

American    Board    of    Copi'rs, 

First  Baptist  Church  v. — 66 

Fla.  441 1916D    404 

American  Express  Co.  v.  Beer 

—107  Miss.  528 1916D     127 

American  Express  Co.,  Com- 
monwealth v.— 167  Ky.  685.  1916E  875 
American  Express  Co.  r.  Fox 

—135  Tenn.  489 1918B  1148 

American  Express  Co.,  James 

Clark  Distilling  Co.  ▼. — 242 

U.  S.  311    1917B     845 

American  Express  Co.  v.  Terry 

—126  Md.  254 19170     650 

American-Hawaiian  Engineer- 
ing etc.  Co.  V.  Butler — 165 

Cal.  497 19160       44 

American  Ice  Co.  v.  Fitzhugh 

— 128Md.  382 1917D      33 

American  Ins.  Co.,  Dinneen  t. 

—98  Neb.  97  1917B  1246 

American    Lumber,    etc.    Co., 

W.  G.  Ward  Lumber  Co.  v. 

—247  Pa.  St.  267 1918A    451 

American     Motor     Car     Sales 

Co.,  Meixell  v.— 181  Ind.  153  1916D  375 
American    National    Bank    v. 

Dannellan— 170  Cal.  9 19170     744 

American    National    Ins.    Co., 

Scarborough  v. — 171  N.  Car. 

353    1917D  1181 

American    Silk    Spinning   Co., 

Weber  y.— 38  R.  I.  309 1917E     153 

American  Southern  Nat.  Bank 

y.  Smith— 170  Ky.  512 1918B     959 

American    Surety    Co.,    Frost 

v.— 217  Mass.  294 1917A     583 

American  Surety  Co.  y.  Pang- 
burn— 182  Ind.  116 1916E  1126 

American  Surety  Co.,  State  for 

Use  of  Mills  V. — 26  Idaho, 

652   1916E     209 

Amoss,  National  Bank  y. — 144 

Ga.  425 1918A       74 

Anderson,  Chicago,  etc.  R.  Co. 

y.— 182  Ind.  140 1917A     182 


PAGE 

Anderson,  Eakin's  Adminis- 
trator v.— 169  Ky.  1 1917D  1003 

Anderson,   y.    Great    Northern 

R.  Co.— 25  Idaho    433 19160     191 

Anderson      v.      International 

School  District— 32  N.  Dak. 

413    1918A     506 

Anderson  y.  Knotts — 181  Ind. 

434 1916D     868 

Anderson,  Nashville,  etc.  Ry. 

v.— 134  Tenn.  666 1917D     902 

Anderson   v.   Royal   League — 

130  Minn.  416 19170     691 

Anderson  v.  Shockley,  266  Mo. 

543    1918B     500 

Anderson,     Tucker     y.  —  172 

Iowa    277  1918A     769 

Andrejwski  v.  Wolverine  Coal 

Co.— 182  Mich.  298 1916D     724 

Andrews  v.  South  Haven — 187 

Mich.  294   1918B     100 

Andrews  y.  Tuttle — 45  Utah 

98 1918A     475 

Anheier  v,  De  Long — 164  Ky. 

694   1917A  1239 

Ann  Arbor  R.  Co.,  Wells  y. — 

184  Mich.  1 1917A  1093 

Anthony  y.  Kiefner — 96  Kan. 

194   1916E     264 

Appam,  The— 243  U.  S.  124. . .  1917D  442 
Applegate,       Addis       y. — 171 

Iowa    150 1917E     332 

Application     of     State,     etc.. 

In  re — 40  Okla.  145 1916E     399 

Archer    y.    McClure — 166    N. 

Car.  140 19160     180 

Archuleta    y.    Freeland  —  61 

Colo.  485 1918A       23 

Arkansas  Cotton  Oil  Co.,  State 

ex   rel.   Atty.    Gen.   v. — 116 

Ark.  74  1917A  1178 

Arkansas  State  Fair  Assoc,  y. 

Hodges— 120  Ark.  131 19170     829 

Armbrust,   St.   Louis,   etc.,   R. 

Co.  v.— 121  Ark.  351 1917D     537 

Armour  &  Co.  y.  North  Dakota 

—240  U.  S.  510 1916D     548 

Armstrong  v.   Philadelphia  — 

249  Pa.  St.  39 1917B  10S2 

Armstrong,  State  ex  rel.  Mc- 

Nerney  v.— 97  Neb.  343 1917A     554 

Armstrong    v.     Walton  — 105 

Miss.  337 1916E     137 

Arnold    y.    Hussey — 111    Me. 

224 19160     715 

Arnold  y.  Krigbaum — 169  Cal. 

148    1916D     370 

Arnold,  Philadelphia  Life  Ins. 

Co.  v.— 97  S.  Car.  418 19160     706 

Arthur,    Dcs    Moines    Savings 

Bank  v.— 163  Iowa    205 19160     498 

Arver   v.   "United   States — 245 

U.  S.  366    1918B     856 

Asbury,    State   y. — 172    Iowa 

606 1918A     856 

Ashland,  Coleman  v. — 117  Va. 

692   1917D  1114 


CASES  EEPORTED. 


PAGE 

Atcherley,  Kapiolani  Estate  v. 

—238  U.  S.  119 1916E     142 

Atchison,  etc.  R.  Co.,  Denver 

v.— 96  Kan.  154 1917A  1007 

Atchison,  etc.  R.  Co.,  v.  Solor- 

zano— 21  N.  Mex.  503 1917E     950 

Aten,  Nozisky  v. — 35  S.  Dak. 

451 1916C     589 

Atkinson,    Mastellar     v.  —  94 

Kan.  279 1917B     502 

Atkinson,  State  ex  rel.  Mis- 
souri, Pacific  R.  Co.  V. — 269 

Mo.  634 1917E     987 

Atlanta,  Carey  v. — 143  Ga. 

192 -. 1916E  1151 

Atlanta,  Catsinger  v. — 142  Ga. 

555 19160  280 

Atlantic,     Allis-Chalmers     Co. 

v.— 164  Iowa   8 1916D     910 

Atlantic,  etc.  Co.,  Rogers  v. — 

213  N.  Y.  246 19160     877 

Atlantic    Coast    Line    R.    Co., 

Bradley  v.— 99  S.  Car.  78..  1916E  1219 
Atlantic  Coast  Line  R.  Co.   v. 

DaweS— 100  S.  Car.  258 1917A  1272 

Atlantic    Coast    Line    R.    Co., 

Greer   Drug   Co.   v.— 104  S. 

Car.  207 19170     908 

Atlantic    Coast    Line    R.    Co., 

Home  v.— 170  N.  Car.  645..  1918A  1171 
Atlantic  Transport  Co.,  Finley 

v.— 220  N.  Y.  249 1917D     726 

Attorney      General      ex      rel. 

James     r.     National     Cash 

Register  Co.— 182  Mich.  99.  1916D  638 
Attorney      General      ex      rel. 

Treasurer     v.     Clark  —  222 

Mass.  291  1917B     119 

Auburn  v.  Paul— 113  Me.  207.  1917E  136 
Au  Sable    Electric    Co.,   Lane 

v.— 181  Mich.  16 19160  1108 

Austin  V.  Calloway — 73  W.  Va. 

231 1916E     112 

Auto  Storage  Co.,  Blackwood 

Tire,  etc.  Co.  v.— 133  Tenn. 

515    19170  1168 

Axton  Fisher  Tobacco  Co.  v. 

Evening  Post  Co.— 169  Ky. 

64   1918B     560 

Ayles,  State  v.— 74  Ore.  153 . .   1916E     738 

Babb  v.  State— 18  Ariz.  505..  1918B  925 
Baber  v.  Caples— 71  Ore.  212.  .  1916C  1025 
Bacon  v.  Reichelt— 272  111.  90.  1918B  1 
Baer,    Insurance    Co.    v.  —  94 

Kan.  777   1917B     491 

Bagdon    v.    Philadelphia,    etc. 

Coal,    etc.    Co.— 217    N.    Y. 

432   1918A     389 

■  Bailey,  In  re— 50  Mont.  365 . .  1917B  1198 
■Bailey,    Wiffen    v.— [1915]    1 

K.  B.  600   1916E     489 

Bainbridge,     O'Neal     v.  —  94 

Kan.  518 1917B     293 

Baldauf  v.  Nathan  Russell — 88 

N.  J.  Law  303 1917D  1191 


PAGB 

Baldwin   v.   Chesaning  —  188 

Mich.  17 1918B     512 

Baldwin's  Bank  v.  Smith— 215 

N.  Y.  76 1917A     500 

Ball  V.  Allen— 216  Mass.  469.  1917A  1248 
Ballard,  S.  Lowman  &  Co.  v. — 

168  N.  Car.  16 1917B     899 

Baltimore,  Brack  v. — 125  Md. 

378    1916E     880 

Baltimore   v.   J.   L.   Robinson 

Construction    Co. — 123    Md. 

660 19160     425 

Baltimore  Engine  Co.,  Hodges 

v.— 126  Md.  307 19170     766 

Bank  of  Corning  v.  Nimnich 

—122  Ark.  316 1917D     566 

Bank  of  Dalles,  Lamro  Town- 
site  Co.  v.— 35  S.  Dak.  164.  19170  346 
Bank  of  Holly  Grove  v.  Sud-    ^ 

bury— 121  Ark.  59 1917D     373 

Bank     of     New     Brunswick, 

Mackintosh  v. — 42  N.  Bruns. 

152 1916D     566 

Banks,  Phoenix  Ins.  Co.  v. — 

114  Ark.  18 1916D     649 

Barber,  Camp  ▼.— 87  Vt.  235. .  1917A  451 
Barber  v.   Morgan,   89    Conn. 

583    1916E     102 

Barber  v.  Watch  Hill  Fire  Dis- 
trict—36  R.  L  236 1916D     191 

Barden,    Groves    v.  — 169    N. 

Car.   8 1917D     316 

Barfield    v.    South    Highlands 

Infirmary— 191  Ala.  553 19160  1097 

Barker  v.  State  Fish  Commis- 
sion—88  Wash.  73 1917D     810 

Barnes  v.  Essex  County  Park 

Commission — 86  N.  J.  Law 

141    1916E     968 

Barnes  v.  Kirkville — 266  Mo. 

270    19170  1121 

Barnes     v.     Maxwell     Motor 

Sales  Corp.— 172  Ky.  409...  1917E  578 
Barnes,    Smith    v. — 51    Mont. 

202   1917D     330 

Barnes,  State  v.— 29  N.  Dak. 

164    19170     762 

Barnes,   Withers  y. — 95   Kan. 

798    1917B       55 

Barney,    Way    v. — 127    Minn. 

346    19160     565 

Barnum  v.  Chamberlain  Land, 

etc.  Co.— 34  S.  Dak.  137 1917A    848 

Barrett,    Irvine    v. — 119    Va. 

587  19170   62 

Barrett  r.  State — 220  N.  Y. 

423  1917D  807 

Bartholomew   v.   Springdale — 

91  Wash.  408 1918B     432 

Bartlett    v.    New    Boston — 77 

N.  H.  476  1917B     777 

Barton      v.      Alexander — 27 

Idaho     286 1917D     729 

Barton  v.  School  District — 77 

Ore.  30 1917A     252 

Barton   v.  Thaw— 246  Pa.  St. 

348   1916D     570 


CASES  EEPORTED. 


PAGE 

Bash,   Borchert   v.  —  97    Neb. 

593   1917A     116 

Bates,       Colored       Industrial 

School  v.— 90  Ohio  St.  288.  19160  1198 
Bates   V.   German   Commercial 

Accident  Co.— 87  Vt.  128...  1916C  447 
Baumann  v.  Stelngester  —  213 

N.  y.  328 19160  1071 

Baxter,  State  v. — 89  Ohio  St. 

269    19160       60 

Baxter  Laundry  Co.,   Whitte- 

more  v.— 181  Mich.  564 19160     818 

Beal,  Horlock  v.— [1916]  A.  C. 

486   1916D     670 

Board,   Bright   v. — 132   Minn. 

375   19iaA    399 

Beaston     v.     Portland     Trust, 

etc.  Bank— 89  Wash.  627...  1917B  488 
Beaver    River    Power    Co.    v. 

Blomquist— 26  Idaho  222..  1916E  282 
Beck,  Wick  v.— 171  Iowa  115  1917A  691 
Becker,   Careaga  v. — 169   Cal. 

301   1916D     171 

Becker    ▼.    Hopper — 22    Wyo. 

237   1916D  1041 

Becker    r.    Hopper — 23    Wyo. 

209   1918B       35 

Becker,    Martin    t. — 169    Cal. 

301   1916D     171 

Becker,  People  v.— 215  N.  Y. 

126   1917A     600 

Bee  Publishing  Co.,  Howell  v. 

—100  Neb.  39   1917D     655 

Beer,  American  Express  Co.  v. 

—107  Miss.  528 1916D     127 

Belcher  v.  Commonwealth  — 

165  Ky.  649 1917B     238 

Bell,     Calhoun    v.  — 136    La. 

149   1916D  1165 

Bell  V.  Davis— 43  Okla.  221..  19170  1075 
Bell,  Herries  v.— 220  Mass.  243  1917A  423 
Bell,    Morrow    t. — 170    Iowa 

17   1917D       98 

Bell    V.    EoBsignoi  — 143    Ga. 

150    19170     576 

Bellows    Falls    Power    Co.    v. 

Commonwealth,  221  Mass.  51  19160     834 

Bemerton,  Harris  v. — 85  Wash. 

64    19160     160 

Bender,   Myers   v. — 46   Mont. 

497    1916B     245 

Benedict,     Holstein     t.  —  22 

Hawaii,    441    1918B     941 

Bennett  v.  Kalamazoo  Circuit 

Judge— 183    M5ch.    200 1916E     223 

Bennett     v.     Laws — 59     Colo. 

290     1917A     240 

Benson   v.   Nicholas — 246    Pa. 

St.  229 19ieD  1109 

Berg  v.  British,  etc.  Naviga- 
tion Co..  243  U.  S.  124 1917D     442 

Berg  V,   Harrison — 243   U.   S. 

124   1917D    442 

Bergeron,    In    re — 220    Mass. 

472     1917A     549 

Bemer  v.  Whittelsev  Mercan- 
tile Co.— 93  Kan.  '769 1916D     350 


PAGE 

Bernot  v.  Morrison — 81  Wash. 

538   1916D     290 

Berry   v.    United    Commercial 

Travelers — 172  Iowa  429..  1918A  706 
Berrvman   v.   Childs — 98  Neb. 

450    1918B  1029 

Bertoli,   First   National   Bank 

v.— 87  Vt.  297 1917B     590 

Best  Park,  etc.  Co.  v.  Rol- 
lins—192   Ala.   534 1917D     929 

Bethany   Mutual   Tel.    Assoc, 

State        Public        Utilities 

Com.  ex  rel.  Marcon  Co.  Tel. 

Co.  v.— 270  111.  183 1917B     495 

Bickel,  O'Doherty  v.— 166  Ky. 

708    1917A     419 

Bickford,  State  v.— 28  N. 

Dak.  36 1916D  140 

Big  Bend  Land  Co.,  Murtha  v. 

27  N.  Dak.  384 1917A     706 

Bigelow,     State     v. — 88     Vt. 

464   1917A     702 

Big  Sandy,  etc.  R.  Co.,  Music 

v.— 163  Ky.  628 1916E     689 

Bird  V.  State— 142  Ga.  596...  1916C  205 
Bird  v.  State— 131  Tenn.  518  1917A  634 
Birmingham,     Borok     v. — 191 

Ala.    75 19160  1061 

Bishop  y.  Fischer — 94  Kan. 

105  1917B  450 

Bishop      V.      State — 72    Tex. 

Crim.   1 1916E     379 

Black,        Schwartz        v. — 131 

Tenn.    360     19160  1195 

Black,  Southern  Ice  Co.  v. — 

136  Tenn.  391 1917E     695 

Black   V.    Suydam — 81    Wash. 

279   1916D  1113 

Blaekden,  Rollins  v. — 112  Me. 

459     1917A     875 

Blackwell  v.  Harrelson — 99  S. 

Car.    264 19160  1263 

Blackwell,    Seaboard  Air-Line 

Ry.  v.— 143  Ga.  237 1917A     967 

Blackwell  Lumber  Co.  v.  Em- 
pire   Mill     Co. — 28     Idaho 

556   1918A     189 

Blackwood    Tire,    etc.    Co.    v. 

Auto       Storage        Co. — 133 

Tenn.   515 19170  1168 

Blair,    Colorado,    etc.    R.    Co. 

v.— 214  N.  Y.  497 1916D  1177 

Blair    v.    Seitner    Dry    Goods 

Co.— 184  Mich.   304 19160     882 

Blake,     Western     Union     Tel. 

Co.  v.— 113  Ark.  545 19160     521 

Blake,    Wilson     v.— 169     Cal. 

449    1916D     205 

Blake,  etc.  Co.,  Eemillard  v. — 

169    Cal.   277 1916D     451 

Blakeman       v.       Wichita — 93 

Kan.    444 1916D     188 

Blalock  V.  Georgia  R.  etc. 

Co.— 228  Fed.  296 1917A  679 

Blanchard,   Palmer   v. — 113 

Me.  380 1917A  809 

Blanchard.     Rummell    v. — 216 

N.  Y.  348 1917D     109 


CASES  REPORTED. 


vii 


PA6B 

Blanton      v.      Wheeler,      etc. 

Co.— 91    Conn.   226 1918B     747 

Blaylock,  St.  Louis,  etc.  R.  Co. 

v.— 117  Ark.  504 1917A     563 

Bleaklev    v.    Candler — 169   N. 

Car.    16 1917A     425 

Bleakly,      Hawkins      v. — 243 

U.   S.   210 1917D     637 

Blease,  Tucker  v.— 97  S.  Car. 

303    19160     796 

Blomquist,       Beaver       River 

Power  Co.  v.— 26  Idaho  222  1916E  282 
Blomquist,  Idaho  Power,   etc. 

Co.  v.— 26  Idaho    222 1916E     282 

Blum  Bros.  v.  Girard  National 

Bank— 248  Pa.  St.  148 1916D     609 

Board  of  Assessors,  Rex  v. — 

41  N.  Bruns.  564 1917B     721 

Board  of  Childrens   Guardians 

V.  Juvenile  Court — 43  App. 

Cas.  (D.  C.)  599 1916E  1019 

Board       of        Commissioners, 

Moose  v.— 172  N.  Car.  419. .  1917E  1183 
Board  of  County  Commission- 
ers, Perkins  v.— 271  111.  449  1917A  27 
Board  of  Education,  Neptune 

Fire    Engine,    etc.    Co.    v. — 

166  Ky.  1 19170     789 

Board    of    Education,    Streich 

v.— 34  S.  Dak.   169 1917A     760 

Board  of  License  Commission- 
ers. Rice  v.— 36  R.  L  50 19160  1189 

Board    of    Managers,    Mason 

v.— 181   Mich.   347 19160     848 

Board  of  Medical  Examiners 

V.  Freenor — 47  Utah  430..  1917E  1156 
Board    of    State    Canvassers, 

State   ex  rel.   Husting  v. — 

159  Wis.  216  1916D     159 

Board  of  Supervisors,  Com- 
mercial  Nat.   Bank   v. — 168 

Iowa   501 19160     227 

Board  of  Trustees  v.  Waugh — 

105    Miss.   623 1916E     522 

Board  of  Trustees  of  Philadel- 
phia   Museums    v.    Trustees 

of    University     of    Pennsyl 

vania— 251   Pa.  St.   125 1917D     449 

Boger  V.  Cedar  Cove  Lumber 

Co.— 165   N.   Car.   557 1917D     116 

Boland,  Hill  v.— 125  Md.  113 

1917A       46 

Bolland  v.  United  States— 238 

Fed.   529    1918B     520 

Bolton    T.    Bolton — 86    N.    J. 

Law,    622    1916E     938 

Bombolis.  Minneapolis,  etc.  R. 

Co.  v.— 241  U.  S.  211 1916E     505 

Bondi  V.  Mackay— 87  Vt.  271 

19160     130 

Bopp  V.  CTark — 165  Iowa    697 

1916E     417 

Borchert  v.  Bash— 97  Neb.  593 

1917A     IIG 

Borok     v.     Birmingham  — 191 

Ala.    75    1916C  1061 

Boscarino  v.  Carfagno  &  Drag- 

onette— 220  N.  Y.  323 1918A     530 


PAGE 

Boston,  Welch  t. — 221   Mass. 

155    1917D     946 

Boston  Elevated   R.   Co.,   Ro- 

mana  v.— 218  Mass.  76 1917A     893 

Boston  Wharf  Co.,  Brown  v. — 

220  Mass.  397 1917A    445 

Boston  Wharf  Co.,  Hecht  t. — 

220  Mass.  397 1917A     445 

Boston    Wharf    Co.,    Williams 

v.— 220  Mass.  397 1917A     445 

Bounds  V.  SovereigH   Camp — 

101  S.  Car.  325 19170     589 

Boutwell  v.  Champlain.  Realty 

Co.— 89  Vt.   80 1918A     726 

Bowden,    Webb    t.— 124   Ark. 

244    1918A       60 

Bowen  v.  Daugherty — 168  N. 

Car.  242 1917B  1161 

Bowen,      Littlefield      v.  —  90 

.      Wash.    286    1918B     177 

Bowen,    Mason    v. — 122    Ark. 

407    1917D     713 

Bowen    &    Co.,    State    r. — 86 

Wash.  23  1917B     625 

Bower    v.    Moorman — 27    Ida. 

162    19170       99 

Bower,     White     v. — '56     Colo. 

575    1917A     835 

Bowie      V.      Trowbridge — 175 

Iowa    118   1917D  1067 

Bowman,  In  re— [1915]  2  Ch. 

447    1917B  1017 

Bowman,  Secular  Society  v. — 

[1915]    2  Ch.  447 1917B  1017 

Bowman  r.  Secular  Society — 

[1917]   A.  C.  406 1917D     761 

Bovce,  Yancey  v. — 28  N.  Dak. 

187    1916E     258 

Boyd    V.    Boyd— 116    Va.    326 

1916D  1173 

Boyd,   Commonwealth   v. — 246 

Pa.  St.  529 1916D     201 

Boylan  v.  New  Orleans  R.  etc. 

Co.— 139   La.   185 1918A     287 

Boyle   T.   Dinsdale — 45    Utah 

112    1917E  363 

Braasch    v.   Worthington — 191 

Ala.  210 19170     903 

Brace,    etc.   MiH   Co.   v.    Bur- 
bank— 87   Wash.  356 1917E     739 

Brack   v.   Baltimore — 125   Md. 

378    1916E     880 

Brackett  v.   Commonwealth — 

223   Mass.  119 1918B     863 

Bradfield    v.    State— 73    Tex. 

Grim.  353 19170     696 

Bradley  v.  Atlantic  Coast  Line 

R.  Co.— 99  S.  Car.  78 1916E  1219 

Bradley,   Glover   v.— 233   Fed. 

721    1917A     921 

Bradstrcet    Co.,    Pacific   Pack- 
ing Co.  v.— 25  Idaho    696..   1916D     761 
Brady,  Fergus  v.— 277  111.  272.   1918B     220 
Bradj'  v.   New  York,  etc.,   R. 

Co.— 218  N.  Y.   140 1918B     588 

Bradv,    People    ex    rel.    First 

Nat.  Bank  v.— 271  111.  100..  19170  1093 


CASES  BEPORTED. 


PAQE 

Braeuel  v.  Reuther — 270  Mo. 

603  1918B  533 

Brainard,  Rehling  v. — 38  Nev. 

16    1917C     656 

Brand,  The— 224  Fed.  391 1917B     996 

Brandon,  Perry  v. — 32  Ont.  L. 

Rep.  94   1917E     948 

Brantley,  State  ex  rel.  Howie 

v.— 113  Mis9.  786 1917E     723 

Brazee  ▼.  Michigan — 241  U.  S. 

340    19170     522 

Breitung,  Kleist  v.— 232  Fed. 

555    1917E  1014 

Bremer,    Hunter    v. — 256    Pa. 

St.   257    1918A     152 

Brewer      v.      Browning  — 115 

Miss.   358    1918B  1015 

Briant,   Josephs   v. — 115   Ark. 

538    1916E     741 

Bridgeport,      Walsh      r.  —  88 

Conn.  528    1917B     318 

Bridgewater  Milling  Corp.   v. 

Fredericksburg  Power  Co. — 

116  Va.  333 1916D  1027 

Bright    V.    Beard — 132    Minn. 

375    1918A     399 

Brinckwirth's  Estate  v.   Troll 

— 2G6  Mo.  473 1918B  1056 

Brindley    v.    State — 193    Ala. 

43    1916E     177 

Brinker,  Hubbard  v.— 169  Cal. 

301    1916D     171 

British,  etc.  Marine  Ins.  Co.  v. 

Sanday— [1916]  A.  C.  650.  1916D  876 
British,    etc.    Navigation   Co., 

Berg  v.— 243  U.  S.  124 1917D     442 

British  Columbia  Elec.  R.  Co., 

Columbia    Bithulitic    v. — 55 

Can.  Sup.  Ct.  1 1917E     756 

British  Columbia  Elec.  R.  Co. 

V.  Loach— [1916]  A.  C.  719.  1916D  497 
Britt,  Henry  v.— 265  111.  131..  19170  977 
Bromberg,     Cvitanovich     v. — 

169  Iowa    736 1917B     309 

Bronson       v.       Sy  verson  —  88 

Wash.   264    1917D     833 

Brooken,  State  v.— 19  N.  Me±. 

404    1916D     136 

Brooklyn    Heights    R.    Co.    v. 

Steer*— 213  N.  Y.  76 19160     791 

Brotherhood  of  American  Yeo- 
man, Wising  V. — 132  Minn. 

303    1918A     621 

Broussard,       Exp. — 74       Tex. 

Crim.  333    1917E     919 

Brown  v.  Aitken— 88  Vt.  148 

1916D  1152 

Brown  ▼.  Boston  Wharf  Co. — 

220  Mass.  397 1917A     445 

Brown  v.  Caylor— 144  Ga.  302 

1916D     745 

Brown    v.    Eckes— 160    N.    Y. 

Supp.  489    1917B     981 

Brown    v.    Elm    City   Luipber 

Co.— 167  N.  Car.  9 1916E     631 

Brown  v.  Erie  R.  Co. — 87  N.  J. 

Law  487    19170     496 


PAGE 

Brown  ▼.  Farmers',  etc.  Na- 
tional'Bank— 76   Ore.   113..   1917B  1041 

Brown,     Gillies     v. — 53     Can. 

Sup.  Ct.  557  1917D     354 

Brown    v.    Golightly  —  106    S. 

Car.  519    1918A  1185 

Brown    v.    Harding — 170    N. 

Car.  253   19170     548 

Brown   v.   Johnson — 43   Utah 

1    19160     321 

Brown  t.  Melloon — 170  Iowa 

49    19170   1070 

Brown    v.     Mitchell — 168     N. 

Car.   312    1917B     933 

Brown,  Perkins  v. — 132  Tenn. 

294 1917A     124 

Brown     y.     Smallwood  — 130 

Minn.  492   19170     474 

Brown  v.  State — 105  Miss.  367 

1916S     307 

Brown  v.  State — 87  Wash.  44.   1917D     604 

Brown,   Strong   v. — 26   Idaho 

1    1916E     482 

Brown,    Thomas    v. — 116    Va. 

233    1917A     128 

Browne,   Phillips    v.— 270    111. 

450    1917B     637 

Browning,      Brewer      v. — 115 

Miss.   358    1918B  1013 

Browning,       Fisher       v. — 107 

Miss.    729    19170     466 

Bruegger,  Northern  Trust  Co. 

v.— 35  N.  Dak.   150 1917E     447 

Bruguiere   t.   Bruguiere  — 172 

Cal.  199  1917E     122 

Brunette,  State  v. — 28  N.  Dak. 

539    19ieE     340 

Brunson  v.  State — 70  Fla.  387 

1918A  312 

Brunswick-Balke-Collender  Co., 

Devine   v.— 270  111.   504 1917B     887 

Brushaber  t.  Union  Pacific  R. 

Co.— 240  U.  S.  1 1917B     713 

Bryans,    Dorsey    v. — 143    Ga. 

186    1917A     172 

Bryant  v.  Continental  Cas- 
ualty Co.— 107  Tex.  582 1918A     517 

Bryant  v.  Freeman — 134  Tenn. 

169    1917E     111 

Buchanan      v.      Warley  —  245 

U.  S.  60 1918A  1201 

Buchanan  t.  Warley — 165  Ky. 

559    1917B     149 

Buck,    Ferine    Machinery    Co. 

v.— 90  Wash.   344 19170     341 

Buckbee  v.  P.  Hohenadel,  Jr., 

Co.— 224  Fed.  14 1918B       88 

Buffalo    General   Electric   Co., 

Carpenter  v.— 213  N.  Y.  101 

19160     754 

Buffom,  People  t.— 214  N.  Y. 

53    1916D     962 

Buhl,    Kuhn    v.— 251    Pa.    St. 

348    1917D     415 

Buick  Motor  Co.,  MacPherson 

V. — 217  N.  Y.  382 19160     440 


CASES  EEPORTED. 


IX 


PA6B 

Builders'    Lime,    etc.    Co.    ▼. 

Weimer— 170  Iowa   444 19170  1174 

Building  Commission  v.  Kunia 

—181   Mich.   604 19160     959 

Bunger    t.    Grimm  — 142    Ga. 

448    19160     173 

Bunn,  City  Sash,  etc.  Co.  v. — 

90  Wash.  669 1918B       31 

Bunting  v.  Oregon— 243  U.  S. 

426    1918A  1043 

Bunting,  State  v. — 71  Ore.  259 

1916C  1003 

Burbank,  Brace,  etc.  Mill  Co. 

v.— 87  Wash.  356.. 1917E     739 

Burckhard,     Peerless     Pacific 

Co.  T.— 90  Wash.  221 1918B     247 

Burgess,    Williams   v. — 74   W. 

Va.  623    19170  1185 

Burke  v.  Northern  Pacific  E. 

Co.— 86  Wash.  37 1917B     919 

Burke  v.  Prudential  Ins.  Co. — 

221  Mass.  253 1917E     641 

Burkenrod    Goldsmith    Co.    v. 

Illinois  Central  R.  Co.— 138 

La.  81    19170     935 

Burlington  Traction  Co.,  West- 
ern  Union    Tel.    Co.    v.— 90 

Vt.  506    1918B     841 

Bumette,  Trout  v.— 99  S.  Car. 

276    1916E     911 

Bumight,  Egan  v.— 34  S.  Dak. 

473    1917A     539 

Burns,    Great    Southern    Fire 

Ins.  Co.  v.— 118  Ark.  22...   1917B     497 
Burns  v.  New  York- 213  N.  Y. 

516    19160  1093 

Bums,    Seidler    ▼. — 8^    Conn. 

249    19160     266 

Burroughs  v.  Commonwealth — 

224  Mass.  28    1917A       38 

Bursow    V.    Doerr  —  96    Neb. 

219    19160     248 

Busby,    Ruble    v. — 27    Idaho 

486    1917D     665 

Butchers'     Slaughtering,     etc. 

Co.    T.    Commonwealth — 223 

Mass.  119   1918B     863 

Butler,        American-Hawaiian 

Engineering,    etc.    Co.    v. — 

165  Cal.  497 19160       44 

Butler,     Carter     v.— 264     Mo. 

306  1917A  483 

Butler,  Webb  v.— 192  Ala. 

287  1916D  815 

Bvers  v.  Sun  Savings  Bank — 

'41  Okla.  728    1916D     222 

Byram   v.   Illinois   Central   R. 

Co.— 179  Iowa,  631 1918A  1067 

Byrne,  Phelps  v.— 36  6.  Dak. 

369    1918B     996 

Cadillac    Motor    Car    Co.    v. 

Johnson— 221  Fed.  801 1917E     581 

Cahill  V.  New  Orleans  B.,  etc. 

Co.— 139  La.  185 1918A     287 

Cain  V.  Garner— 169  Ky.  633. .  1918B  824 
Cain  V.  Parfitt — i8  Utah  81...1918B  28 
Caldwell    Greene  v. — 170  Ky. 

571    1918B     604 


PAGE 

Caldwell,  Ten    Broek    r. — 95 

Neb.    464    1916D     613 

Caledonian    R.    Co.,    Greenock 

Corporation  v. — [1917]  A.  C 

556     1918A  1103 

Calhoun     v.     Bell— 136     La. 

149   1916D  1165 

Calhoun        County        District 

Court,  Dalton  v. — 164  Iowa 

187   1916D     695 

California  Ins.  Co.,  Theriault 

Ins.  Co.  v.— 27  Idaho  476..  1917D  818 
Calligan,    Viss    v. — 91    Wash. 

673   1918A     819 

Callison    v.    Peeples — 102    S. 

Car.    256 1917E     469 

Calloway,    Austin    v. — 73    W. 

Va.  231 1916E     112 

Camden   National   Bank,   Mc- 

Andrews,    etc.     Co.    v. — 87 

N.  J.  Law  231 19170     146 

Cameron  v.  Pacific  Lime  etc. 

Co.— 73   Ore.   510 1916E     769 

Caminetti  v.  United  States — 

242  U.  S.  470 1917B  1168 

Camp  V.  Barber— 87  Vt.  235,.  1917A  451 
Campbell,    Western    Tie,    etc. 

Co.  v.— 113  Ark.  570 19160     943 

Campbell,    Wightman   v. — 217 

N.  Y.  479 1917E     673 

Canadian  General  Elec.  Co.  v. 

Canadian     Rubber     Co. — 52 

Can.  Sup.  Ct.  349 1916D     488 

Canadian  Pacific  Ry.  v.  Jack- 
son—52  Can.  Sup.  Ct.  281..  19160  912 
Canadian  Rubber  Co.,  Cana- 
dian General  Elec.  Co.  v. — 

52  Can.  Sup.  Ct.  349 1916D     488 

Canal-Louisiana      Bank      etc. 

Co.,  Commercial  Nat.  Bank 

v.— 239  U.  S.  520 1917E       25 

Candler,  Bleakley  v. — 169  N. 

Car.   16 1917A    425 

Canning    v.    Canning — 87    Vt. 

492    19160     344 

Cannon,  Liggett,  etc.  Tobacco 

Co.   v.— 132  Tenn.  419 1917A     179 

Capital  Securities  Co.  v.  Gil- 
mer—190  Ala.  340 1917A    888 

Capital  Traction  Co.,  Carmodv 

V. — 43  App.  Cas.  (D.  C.)  245 

1916D     706 

Caples,  B'aber  v.— 71  Ore.  212 

19160  1025 

Carcaga  v.  Becker — 169  Cal. 

301  1916D  171 

Carey     t.    Atlanta — 143     Ga. 

192    1916E  1151 

Carfagno   &   Dragonette,   Bos- 

carino  v.— 220  N.  Y.  323.  . .  1918A  530 
Carlisle  v.  Norris— 215  N.  Y. 

400    1917A     429 

Carlisle     v.     Ottley— 143     Ga. 

797   1917A     573 

Carlton  v.  Seaboard  Air-Line 

By.- 143  Ga,  516 1917A     497 


CASES  EEPOBTED. 


PAGE 

Carmody  v.  Capital  Traction 

Co.— 43    App.    Gas.    (D.   C.) 

245    1916D     706 

Carnahan     v.     Hamilton — 265 

111.    508 19160       21 

Carnego  v.  Crescent  Coal  Co. 

—164  Iowa    552 1916D     794 

Carolina  Tel,  etc.  Co.,  Weeks 

v.— 168  N.  Car.  468 19170       75 

Carpenter  v.  Buffalo   General 

Electric  Co.— 213  N.  Y.  101.  19160  754 
Carpenter,  Hermitage  Na- 
tional Bank   v. — 131    Tenn. 

136   1916D     730 

Carroll  v.  Knickerbocker  Ice 

Co.— 218  N.  Y.  435 1918B     540 

Carroll  v.  Parry — 43  App.  Cas. 

(D.  C.)   363 1916E     971 

Carroll  v.  What  Cheer  Stables 

Co.— 38  R.  I.  421 1918B     346 

Carstens  and  E'arles  v.  Seattle 

—84  Wash.  88 1917A  1070 

Carter  v.  Butler— 264  Mo.  306 

1917A     483 

Carter,  Florida  East  Coast  R. 

Co.  v.— 67  Fla.  335 1916E  1299 

Carter,  Louisville,  etc.  R.  Co. 

v.— 195  Ala.  382 1917E     292 

Carter,  Thurston  v.— 112  Me, 

361    1917A     389 

Cartwright-Caps  Co.  v.  Fischel 

—113  Miss.   359 1917E     985 

Cary    Brick      Co.,     Qascoigne 

v.— 217   Mass.  302 19170     336 

Casebolt,    Hall    v,— 171    Ky. 

477 19170  1012 

Casement,    Rex   v.— [1917]    1 

K,  B.  98 1917D     468 

Cassidy,  People  v.— 213  N.  Y. 

388    19160  1009 

Castle  V.  Mason— 91  Ohio  St. 

296     1917A     164 

Catholic,     State    v.— 75    Ore. 

367   1917B     913 

Catholic  Foreign  Mission  Soc. 

V.  Oussani— 215  N.  Y.  1 1917A     479 

Causey,  Illinois  Central  R.  Co, 

V,— 106  Miss.  36 1917A  1281 

Causey  v.  Seaboard  Air  Line 

R.  Co.— 166  N.  Car.  5 19160     707 

Cavender,  Mollohan  v. — 75  W. 

Va.  36  1918A     499 

Cay  lor,    Brown    v. — 144     6a, 

302     1916D     745 

Cayser,  Thomsen  v. — 243  U.  S. 

66   1917D     322 

Cayuga   Investment   Co.,   Ma- 

honev      Land      Co.      v. — 88 

Wash.  529   19160  1234 

Cazeaux,  Queensborough  Land 

Co.  v.— 136  La.  724 1916D  1248 

C.  B.  Barker  Construction  Co., 

Niehaus  v. — 135  Tenn.  382.  1918B  23 
Cedar      Cove      Lumber      Co., 

Boger  v.— 165  X.  Car.  557.  .  1917D  116 
Cedar  Rapids,  Palmer  v. — 165 

Iowa,  595 1916E     558 


PAGE 

Cella,  New  York,  etc.  E.  Co. 

v.— 88   Conn.  515 1917D     590 

Central  Georgia  Power  Co.  v. 

Cornwell— 141  Ga.  843 1916D  1020 

Central  of  Georgia  R.  Co.  v. 
Southern  Ferro  Concrete 
Co.— 193   Ala.   108 1916E     376 

Cessna,    State    v, — 170    Iowa, 

726   1917D     289 

Chace     v.     City     Council— 36 

R.  L  331 19160  1257 

Chagrin  Falls,  In  re — 91  Ohio 

St.   308    1916E  1004 

Chalvet   v .  Huston — 43    App. 

Cas.  (D.  C.)   77 19160  1180 

Chamberlitin    Land,    etc.    Co., 

Barnum  v.— 34  S.  Dak.  137.   1917A     848 

Chambers,   Louisville,   etc.   R. 

Co,  v.— 165  Ky,  703 1917B     471 

Chambers     v.     Preston  — 137 

Tenn.  324 1918B     428 

Champlain  Realty  Co.,  Bout- 
well  v.— 89  Vt.  80 1918A     726 

Champlin,     Douthwright    v. — 

91  Conn.  524 1917E     512 

Chandler,  Maiden,  etc.  Gas- 
light Co.  v.— 220  Mass.  1. . .   1917A     145 

Chappell,   Pittsburgh,    etc.    R. 

Co.  v.— 183  Ind.  141 1918A     627 

Charing  Cross  Electricity  Sup- 
ply Co.  V.  Hydraulic  Sup- 
ply Co.- [1914]  3  K,  B. 
772    19160  1045 

Charles       Schweinler       Press, 

People  v.— 214  N.  Y.  395..,   1916D  1059 

Charleston,  etc.  R.  Co.  t. 
Varnville  Furniture  Co. — 
237  U.  S.  597 1916D     333 

Charlotte  Electric  R.  Co.,  Nor- 
man v.— 167  N.  Car.  533...   1916E     508 

Chavez,  State  v. — 19  N.  Mex. 

325    1917B     127 

Cherry,  Face  v.— 117  Va.  41. .  1917E    418 

Chesaning,     Baldwin     v. — 188 

Mich.  17   1918B     512 

Chesapeake,  etc.  R.  Co.  v. 
Harmon's  Adm'r — 173  Ky. 
1    1918B       41 

Chesapeake,  etc.  Tel.  Co.  v. 
Goldsborough— 125  Md.  666  1917A         1 

Chester,  Smith  v.— 272  HI. 
428   1917A     925 

Chew  V.   Sheldon— 214  N.  Y. 

344    1916D  1268 

Chicago,    Chicago,    etc.   B.  Co. 

v.— 264  111.  24 .,. .   1917A  1146 

Chicago,      Parker- Washington 

Co.  v.— 267  111.  136 19160     337 

Chicago,    Thomas    Cusack    Co. 

v.— 267  111.  344 19160     488 

Chicago,    Thomas    Cusack    Co. 

v.— 242  U.  S.  526 19170     594 

Chicago,  etc.  R.  Co.  v.  Ander- 
son—182  Ind.   140 1917A     182 

Chicago,  etc.  R.  Co.  v.  Chicago 
—264  111.  24^ 1917A  1146 

Chicago,  etc.  R.  Co.  v.  Earl — 

121    Ark.   514    1917D     552 


CASES  EEPORTED. 


FAOE 

Chicago,  etc.  E.  Co.  v.  Gunn — 

112  Ark.  401 1916E     648 

Chicago,  etc.  R.  Co.,  Jacobson 

v.— 132  Minn.  181 1918A     355 

Chicago,  etc.  R.  Co.,  Korab  v. 

165   Iowa  1 1916E     637 

Chicago,  etc.  R.  Co.,  Row- 
lands T.— 149  Wis.  51 1916E     714 

Chicago,    etc.    R.    Co.,    State 

Public  Utilities  Com.  ex  rel. 

Mitchell  v.— 275  111.  555...  19170  50 
Chicago,   etc.    R.   Co.,   Vande- 

water  v.— 170  Iowa  687...  19170  1132 
Chicago,   City   R.  Co.,  "Wende 

v.— 271  111.  437 1918A     222 

Chicago  Dry  Kiln  Co.  v.  In- 
dustrial    Board  —  276     HI. 

556    1918B     645 

Chicago     Great     Western     B. 

Co.,  Omaha  Wool,  etc.  Co.  v. 

—97   Neb.   50 1917A     358 

Chicago  R.  Co.,  People  ex  rel. 

Dwight  v.— 270  111.  87 1917B     821 

Childs,  Berryman  v. — 98  Neb. 

450    1918B  1029 

Chilton     V.     Commonwealth — 

170  Ky.  491 1918B     851 

Chreste  v.  Louisville  B.  Co. — 

167  Ky.  75 19170     867 

Christenson    v.    Madson — 127 

Minn.  225   1916C     584 

Christenson,    Madson    v. — 128 

Minn.  17   1916D  1101 

Christian,    Gato    v.— 112    Me. 

427 1917A     592 

Cbristopherson  v.  Minneap- 
olis,    etc.     R.     Co.— 28     N. 

Dak.  128 1916E     683 

Church,       Northcut       v.— 135 

Tenn.  541    1918B     545 

Churchill,    Gabriel   v.— [1914] 

3  K.  B.  1272 19160  1087 

Cincinnati,     Louden     v.  —  90 

Ohio  St.   144 19160  1171 

Cincinnati  v.  Public  Utilities 

Commission — 91     Ohio     St. 

331    1916E  1081 

Cincinnati,  etc.  R.  Co.  v.  Cun- 

diff— 166  Ky.  594 19160     513 

Cincinnati,  etc.  R.  Co.,  Curd's 

Administratrix  v. — 163   Ky. 

104    1916E     614 

Cincinnati,  etc.  R.  Co.  v.  Mc- 

Cullom— 183  Ind.  556 1917E  1165 

Cincinnati,  etc.  R.  Co.,  Sharp 

v.— 133  Tenn.  1 19170  1212 

Cincinnati,       etc.       R.       Co., 

Thompson  v. — 165  Ky.  256.  1917A  1266 
Circleville      Light,      etc.  Co., 

Holden  v.— 216  Fed.  490...  1916D  443 
Cisco,  Soper  v. — 85  N.  J.  Eq. 

165    1918B     452 

Cissna  Loan  Co.  v.  Gawley — 

87   Wash.   438 1917D     722 

Citizens'      Bank     Building    v. 

L.    &    E.    Wertheimer — 126 

Ark.  38 1917E     520 


PAGE 

Citizens'        National        Bank 

Jamesson  v.— 130  Md.  75 . .  1918A  1097 
Citizens'    Savings    Bank,    etc. 

Co.  V.  Northfield  Trust  Co. 

—89  Vt.  65 1918A     891 

Citizens'    Trust,    etc.    Co     r. 

Glove,   etc.   Fire  Ins.   Co. — 

229  Fed.  326 1917C     416 

Citv  Bank,  etc.  Co.,  Springer 

v.— 59  Colo.  376 1917A     520 

City    Council,    Chace    v. — 36 

R.   I.    331 r. 19160  1257 

City    oi    New    York    (Court 

House),  Matter  of— 216  N. 

Y.  489   1917D     157 

City  Sash,  etc.  Co.  v.  Bunn — 

90  Wash.  669 1918B       31 

C.  Klinck  Packing  Co.,  People 

v.— 214  N.  Y.  121 1916D  1051 

Clark,    Attorney    General    ex 

rel.  Treasurer  v. — 222  Mass. 

291   1J9 

Clark,  Bopp  v!-^165  Iowa  697  1916E     417 

Clark  v.  E.  I.  Du  Pont  De  Ne- 
mours Powder  Co. — 94  Kan. 
268    1917B     340 

Clark  V.  Nickell— 73  W.  Va. 

69    1917A  1286 

Clark,    People    ex    rel.    Dyer 

v.— 268  111.  156 .^ 1916D     785 

Clark's  Appeal— 114  Me.  105.   1917A    837 

Clarke   v.   Yukon   Investment 

Co.— 83  Wash.  485 1916E     625 

Clayton  v.  Prince — 129  Minn. 

118   1916E     407 

Clendenin,  Ford  v.— 215  N.  Y. 

10   1917A     658 

Clerk,       Hutchings       v, —  225 

Mass.  483   19170     979 

Cleveland  v.  Cottrill — 92  Ohio 

St.   493    1917D  1134 

Cleveland  v.    Esper — 92   Ohio 

St.   493    1917D  1134 

Cleveland  v.  Lange — 92  Ohio 

St.    493 1917D  1134 

Cleveland  v.  Luttner — 92  Ohio 

St.    493 1917I>  1134 

Cleveland    v.    Yoos — 92    Ohio 

St.    493 1917D  1134 

Cleveland,  etc.  R.  Co.  v.  Mar- 
shall—182  Ind.  280 1917A     756 

Clifford,  State   ex  rel.  Meyer 

v.— 81    Wash.    324 1916D     329 

Cobb  V.  Western  Union  Tele- 
graph Co.— 90  Vt.  342 1918B  1156 

Coca-Cola  Bottling   Co.,   Crig- 

ger  v.— 132  Tenn.  545 1917B     572 

Coca  Cola  Co.,  United  States 

v.— 241  U.  S.  265 19170     487 

Coe     V.     Wormell — 88     Wash. 

119    19170     679 

Coffev  V.  McGahey — 181  Mich. 

225    19160     923 

Coffey     V.     Miller,     160     Ky. 

415    19160       30 

Cofran,    Haney    v. — 94    Kan. 

332   1917B     660 


xii 


CASES  REPORTED. 


PAGE 

Cohen,     Nieberg    v.— 88     Vt. 

281    19160     476 

Cohen   v.   Philadelphia   Rapid 

Transit    Co.— 250     Pa.     St. 

15 1917D     350 

Cohen  v.  Tuff — i  Boyce  (Del.) 

188    19170     596 

Cohn,     Hinck     v.— 86     N.    J. 

Law  615 1916D     200 

Coker,   Home  Ins.   Co.   v. — 43 

Okla.    331 19170     950 

Cole    V.    Sloss-Sheffield    Steel, 

etc.  Co.— 186  Ala.  192 1916E      99 

Cole  V.  State— 73  W.  Va.  410.   1916D  1256 
Coleman  v.  Ashland — 117  Va. 

692   1917D  1114 

Coleman  v.  Fisher— 68  Fla.  56  1917A  1229 
Colfax  Consolidated  Coal  Co., 

Hunter  v.— 175  Iowa,  245..    1917E     803 
Colgate,  Jacobus  v. — 217  N.  Y. 

235 1917E     369 

Colley    V.     Summers    Parrott 

Hardware  Co.— 119  Va.  439  1917D     375 
Collins'  Eiecutor,  Varble  v. — 

168  Ky.  247 1916D     448 

Collins'  Executors  v.  Standard 

Accident  Ins.  Co.— 170  Ky. 

27   1917D       59 

Colorado,  etc.  B.  Co,  v.  Blair — 

214  N.  Y.  497 1916D  1177 

Colored    Industrial    School    t. 

Bates— 90  Ohio  St.  288.....   19160  1198 
Columbia    Bithulitie    v.    Brit- 
ish Columbia  Electric  R.  Co. 

—55  Can.  Sup.  Ct.  1 1917E     756 

Columbia  County  Lumber  Co., 

Marks  v.— 77  Ore.  22 1917A     306 

Columbia-Knickerbocker  Trust 

Co.    V.    Miller— 215    N.    Y. 

191   1917A     348 

Comey  v.  United  Surety  Co. — 

217  N.  Y.  268 1917E     424 

Commanding  Officer,  Bex  v. — 

[1917]  1  K.  B.  176 19170     809 

Commanding  Officer,  Rex  v. — 

[1917]  2  K.  B.  129 1917E     480 

Commercial     Nat.     Bank     v. 

Board    of    Supervisors,    168 

Iowa    501 19160     227 

Commercial     Nat.     Bank     v. 

Canal-Louisiana    Bank,    etc. 

Co.— 239  U.  S.  520 1917E       25 

Commercial  National  Bank  r. 

Eccles— 43  Utah  91 19160     368 

Commercial   Trust   Co.,   Knoll 

v.— 249  Pa.  St.  197 19160     988 

Commonwealth     v.     American 

Express  Co.— 167  Ky.  685..   1916E     875 
Commonwealth,    Belcher    v. — 

165  Ky.  649 1917B     238 

Commonwealth,  Bellows  Falls 

Power  Co.  v.— 222  Mass.  51.   19160     834 
Commonwealth    v.    Boyd — 246 

Pa.  St.  529 1916D     201 

Commonwealth,  Brackett  v. — 

223  Mass.  119 1918B     863 

Commonwealth,    Burroughs    v. 

—224  Mass.  28 1917A       38 


PAGE 

Commonwealth,  Butchers' 
Slaughtering,  etc.  Co.  v. — 
223  Mass.  119 1918B     863 

Commonwealth,    Chilton    v. — 

170  Ky.  491 1918B     851 

Commonwealth  v.  Consoli- 
dated Dressed  Beef  Co.,  245 
Pa.  St.  605 1917A     966 

Commonwealth,   I>elk   t. — 166 

Ky.  39 19170     884 

Commonwealth  v.  First  Chris- 
tian Church— 169  Ky.  410..   1918B     525 

Commonwealth  v.  Karvonen — 

219  Mass.  30 1916D     846 

Commonwealth,  Marconi  Wire- 
less Tel.  Co.  v.— 218  Mass. 

558    19160     214 

Commonwealth  v.  Baudenbush 

—249  Pa.  St.  86 19170     517 

Commonwealth  v.  Silverman — 

220  Mass.  552 1917A     948 

Commonwealth     v.     Starks — 

169  Ky.   410 1918B     525 

Commonwealth  v.  Worth — 116 

Va.  604 1916D  1263 

Commonwealth,    Wooden    v. — 

117  Va.  930 1917D  1032 

Compton   V.   Akers  —  96   Kan. 

229    1918B     983 

Comstock's    Administrator    v. 

Jacobs— 89  Vt.  133 1918A     465 

Cona  V.  Henry  Hudson  Co. — 

86  N.  J.  Law  154 1916E     999 

Connell     T.     Kaukauna  — 164 

Wis.  471   1918A     247 

Connellsville,    etc.    B.    Co.    v. 

Markleton     Hotel     Co.— 247 

Pa.  St.  565 1916E  1213 

Conner,  Sawyer  r. — 114  Miss. 

363    1918B     388 

Connors,  Cook  v. — 215  N.  Y. 

175  1917A  248 

Conrad  v.  Ellison-Harvey  Co. 

—120  Va.  458 1918B  1171 

Conrad    v.    Boberts — 95    Kan. 

180    1917E     891 

Consolidated  Dressed  Beef  Co., 

Commonwealth    y. — 245   Pa. 

St.  605  1917A     966 

Consolidated      Lighting      Co., 

George  v.— 87  Vt.  411 19160     416 

Continental  Casualty  Co.,  Bry- 
ant v.— 107  Tex.  582 1918A     517 

Continental    Distributing    Co. 

V.  Hays— 86  Wash.  300 1917B     708 

Continental     Tyre,     etc.     Co., 

Daimler  Co.  v.— [1916]  2  A. 

C.   307    19170     170 

Conzet  V.  Hibben— 272  111.  508 

1918A  1197 

Cook    V.    Conners — 215    N.   Y. 

175    1917A     248 

Cook   V.   Highland   Hospital — 

168  N.  Car.  250 19170     158 

Cook  V.  Story— 89  Wash.  109. .   19170     985 
Coolfiy,     Reams     v. — 171     Cal. 

150    1917A  1260 


CASES  EEPOBTED. 


xiir 


PAGE 

Cooney-Bckstein  Co.,  King  v. 

—66  Fla.  246 19160     163 

Cooper    V,    Demby — 122    Ark. 

266    1917D     580 

Cooper    V.    Hillsboro    Garden  • 

Tracts— 78  Ore.  74 1917E     840 

Cooper,   State  v.— 74  W.   Va. 

472    1917D     453 

Coote     &     Ball,     Lloyd     v. — 

[1915]   1  K.  B.  242 1916E     434 

Coplin    V.    Woodmen    of    the 

World— 105   Miss.   115    1916D  1295 

Corcoran,  State  v. — 82  Wash. 

44    1916E     531 

Cornwell,       Central       Georgia 

Power  Co.  v.— 141  Ga.  843.   1916D  1020 
Correll  v.  Williams,  etc.  Co. — 

173   Iowa    571 1918A     117 

Corry    v.    Sylvia    Y    Cia— 192 

Ala.   550    1917E  1052 

Cortland    v.    Larson — 273    111. 

602    1916E     775 

Cost  V.  Shinault— 113  Ark.  19 

19160     483 

Cottingham  v.  Maryland  Mo- 
tor   Car    Ins.    Co.— 168    N. 

Car.  259 1917B  1237 

Cottondale  State  Bank  v.  Os- 

kamp  Nolting   Co. — 64  Fla. 

36    1916D     564 

Cottrill,  Cleveland  v.— 92  Ohio 

St.    493    1917D  1134 

Coultrap,    Hall  v.— 242   U.   S. 

539    19170     643 

County    Board    of    Education, 

Medlin  v.— 167  N.  Car.  239.   1916E     300 
County   Commissioners,   Pettit 

v.— 123  Md.  128 19160       35 

Covington,    German    National 

Bank  v.— 164   Ky.   292 1917B     189 

Cowing,     McCracken     v. — 271 

111.  270 1917D     144 

Cox,  McGhee  v.— 116  Va.  718 

1916E     842 

Cox  V.  Trollope— [1916]   2  K. 

B.    682 1918B     637 

Cox,     Wallace     v. — 100     Neb. 

601    1917D     699 

Coyle  T.  United  States  Fidel- 
ity, etc.   Co.— 217  Mass.  268.   19170     450 
Craft,   State   v.— 168   N.    Car. 

208    1917B  1013 

Craftsbury,    Waitsfield    v.— 87 

Vt.   406    1916C     337 

Craghead    v.    McCullough — 58 

Colo.  485   19160  1075 

Craig  v.  Cramer— 248  Pa.  St. 

308    1916E     914 

Craig    T.    Wagner — 88    Conn. 

100    1917A     160 

Craig,    Wilson    v.— 86    Wash. 

465    1917B     871 

Cramer's    Election    Case — 248 

Pa.  St.  208   1916E     914 

Cramer,  Craig  v.— 248  Pa.  St. 

308   1916E,     914 

Crandall  v.  Trowbridge  —  170 

Iowa    155    19160     608 


PAGB 
Crane   v.  Johnson — 242  U.  S. 

339    1917B     796 

Cranford  r.  O'Shea — 83  Wash. 

508    19160  1081 

Crawford  v.  McElhinney — 171 

Iowa    606   1917E     221 

Crawford,  State  ex  rel.  Lan- 

ger  v.— 36  N.  Dak.  385 1917E     955 

Creal,  Kentucky  Highlands  R. 

Co.  v.— 166  Ky.  469 19170  1205 

Creamer    v.    Harris — 90    Ohio 

St.  160   19160  1137 

Creditors'   Claim,    etc.    Co.    v. 

Northwest  Loan,  etc.  Co. — 

81  Wash.  247 1916D     551 

Cregan,  Appeal  of — 215  N.  Y. 

466    1917A     527 

Creighton,      Hoopes      v. — 100 

Neb.  510   1917E     847 

Crescent  Coal  Co.,  Carnego  v. 

—164  Iowa    552 1916D     794 

Crigger  v.  Coca-Cola  Bottling 

Co.— 132  Tenn.  545 1917B     572 

Crismond's  Adm'x.  v.  Jones — 

117  Va.  34   19170     155 

Crosby,    Lamar    t. — 162    Ky. 

320    1916E  1033 

Cross     V.     Fisher — 132    Tenn. 

31    1916E  1092 

Crouch     V.     Southern    Surety 

Co.— 131  Tenn.  260 19160  1220 

Crowell    V.    Maryland    Motor 

Car  Ins.  Co.— 169  N.  Car.  35.1917P  50 
Crowl    V.    Pennsylvania — 242. 

U.  S.  153 1917B     643 

Crownfield    v.    Phillipg  — 125 

Md.  1  1916E     991 

Crystal   Biver  Lumber  Co.   v. 

Knight    Turpentine   Co. — 69 

Fla.  288  1917D     574 

C.  S.  Wilson  &  Co.,  Tennants 

(Lancashire)    t. — [1917]    A. 

C.   495    1918A         1 

Cue  v.  Port  of  London  Au- 
thority—[1914]  3  K.  B.  892 

19160     887 

Culpeper      Construction      Co., 

Tanner  v.— 117  Va,  154 1917E     794 

Cummings,   Standard    Fashion 

Co.   v.— 187  Mich.  196 1916E     413 

Cundiff,  Cincinnati,  etc.  B.  Co. 

v.— 166  Ky.   594 19160     513 

Cunningham  v.  Cunningham— 

187  Mich.   68 1918B     478 

Cunningham     v.     Mayor — 222 

Mass.  574   19170  1100 

Cunningham,      O'Banion     ▼. — 

168  Ky.  322 1917A  1017 

Curd's  Administratrix  v.  Cin- 
cinnati,    etc.,    B.     Co. — 163 

Ky.  104   1916B     614 

Curran,  Territory  r. — 23  Ha- 
waii 421    1918A    234 

Currier,    Dibble    v. — 142    Ga. 

855  !   19160    1 

Curtis,  People  v.— 217  N.  Y. 

304  1917E  586 

Cutsinger  v.  Atlanta — 142  Ga. 

555    19160     280 


CASES  REPOETED. 


PAGE 

Cutting,   Estate    of— 172    Cal. 

191    1917D  1171 

CvitanoTich     v.     Bromberg — 

169  Iowa  736 1917B     309 

Daboll  V.  Moon— 88  Conn.  387 

1917B     164 

Dacono  Town  Site  Co.,  Fusha 

v.— 60   Colo.  315 1917C     108 

Dague,  St.  Louis,  etc.  R.  Co. 

v.— 118  Ark.  277 1917B     577 

Dahl,   Rosenberg  v. — 162  Ky. 

92    1916E  1110 

Dahlgren,     Nordlnnd     v. — 130 

Miun.  462   1917B     941 

Dailey  v.  Springfield — 144  Ga. 

395    1917D     943 

Daimler     Co.     v.     Continental 

Tyre,  etc.  Co.— [1916]   2  A. 

C.  307 19170     170 

Dale  V.  Marvin— 76  Ore.   528 

1917C     557 

Dale  T.  Saunders— 218  N.  Y. 

59    1918B     703 

Dalton  V.  Calhoun  County  Dis- 
trict Court— 164  Iowa  187.  1916D  695 
Daniels  v,  Wagner— 237  U.  S. 

547  1917A   40 

Dannenberg,  Hayden  t. — 42 

Okla.  776  1916D  1191 

Dart,  Matter  of— 172  Cal.  47 

1917D  1127 

Daugherty,  Bowen  v. — 168  N. 

Car.  242 1917B  1161 

Davidson    Bros.    Co.    v.    Des 

Moines      City     B.      Co.— 170 

Iowa  467 19170  1226 

Davis,  BeU  v.— 43  Okla.  221— 

19170  1075 

Davis  ▼.  Hale— 114  Ark.  426 — 

1916D     701 

Davis  V.  Hall— 72  Ore.  220 ... .  1916D  922 
Davis  V.  Mial — 86  N.  J.  Law 

167    1916E  1028 

Davis,  Peagler  v. — 143  Ga.  11 

1917A     232 

Davis    V.    Southern    E.    Co. — 

170  N.  Car.  582 1918A     861 

Davis,  Williams  v. — 52  Mont. 

192    1917E     126 

Davis    Laundry    etc.     Co.    v. 

Whitmore— 92    Ohio    St.    44 

19170     988 

Dawes,  Atlantic  Coast  Line  E. 

Co.  v.— 100  S.  Car.  258 1917A  1272 

Dawson  v.  National  Life  Ins. 

Co.— 176  Iowa    362 1918B     230 

Dayton  v.  Trustees  of  Speers 

Hospital— 165  Ky.  56 1917B     275 

Dayton  Coal,  etc.  Co.,  Morgan 

v.— 134  Tenn.  228 1917E       42 

Deacon,  Frolich  v. — 181  Mich. 

255    19160     722 

Dechter  v.  National  Council — 

130  Minn.  329 19170     142 

Deeble    v.    Alerton — 58    Colo. 

166    19160     863 

Delaney  v.  Plunkett — 144  Ga. 

547    1917E     685 


PAGE 

Delano,    Devine    ▼. — 272    HI. 

166    1918A     689 

De  La  Rama  v.  De  La  Rama — 

241  U.  S.   154 19170     411 

Delaware,  etc.  R.  Co.,  Shanks 

v.— 214  N.  Y.  413 1916E     467 

Delaware    Ins.    Co.,    Dinneen 

v.— 98  Neb.  97 1917B  1246 

Delaware    River    Transp.    Co., 

Miller  v.— 85  N.  J.  Law  700 

.^ 19160     165 

Delk    V.    Commonwealth — 166 

Ky.  39    19170     884 

Dellaripa's    Appeal — 88    Conn. 

565    1917B     862 

De  Long,  Anheier  v. — 164  Ky. 

694    1917A  1239 

Demby,    Cooper   v. — 122    Ark. 

266    1917D     580 

Denmark,  Sharpe  v. — 148   Ga. 

156    1917B     617 

Dennis  v.  A.  J.  White  &  Co. — 

[1917]  A.  C.  479 1917E     325 

Dennis,  Schwartz  v. — 138  La. 

848    1917D       94 

Dennis  t.  Waterford  Packing 

Co. — 113  Me.  159 1917D     788 

Denver    v.    Atchison,    etc.    E. 

Co.— 96  Kan.  154 1917A  1007 

Denver   v.    Hobbs   Estate — 58 

Colo.  220   Idiec     823 

Denver,  Lord  v. — 58  Colo.  1 — 

19160     893 

Denver,  McPhail  v. — 59  Colo. 

248    1916E  1143 

Denver,  Thompson  v. — 61  Colo. 

470    1918B     915 

Denver,   etc.   E.   Co.,   Lovejoy 

v.— 59  Colo.  222 1916E  1075 

Denver,  etc.  R.  Co.  v.  Mills — 

59  Colo.  198   1916E     985 

Depue  V.  District  of  Colum- 
bia— 45   App.    Cas.    (D.    C.) 

54    1917E     414 

Deputy    V.    Kimmell — 73     W. 

Va.  5&5   1916E     656 

Des   Moines,   Hubbell   v. — 166 

Iowa    581    1916E     592 

Des  Moines  City  R.  Co.,  Da- 
vidson    Bros.     Co.     V. — 170 

Iowa  467   19170  1226 

Des  Moines  Mutual  Hail,  etc. 

Ins.    Assoc,    Schultz    v. — 35 

S.  Dak.   627 1917D       78 

Des  Moines  Savings   Bank  v. 

Arthur — 163  Iowa  205 19160     498 

Detroit    v.    Highland    Park — 

186  Mich.   166 1917E     297 

Detroit,       Pastorino       v. — 182 

Mich.  5    1916D     76S 

Detroit,  etc.  Ferrv  Co.  v. — 187 

Mich.  177    ' 1918B     170 

Devine     v.     Brunswick-Balke- 

Collender  Co.— 270  111.  504. .  1917B  887 
Devine     v.     Delano — 272     HI. 

166    1918A     689 

Devine,  People  v. — 185  Mich. 

50    19170  1140 


CASES  EEPOBTED. 


PAGB 
Devinney,  State  v. — 174  Iowa 

748  1917D  239 

Dewey's     Estate,     In     re — 45 

Utah,  98   1918A    475 

Dexter  Horton  National  Bank 

V,  Seattle  Homeseekers  Co. 

—82  Wash.  480 1917A     685 

Dibbert    v.    Metropolitan    In- 
vestment Co.— 158  Wis.  69. .  1916E     924 
Dibble     v.     Currier — 142     Ga. 

855    19160         1 

Dibble  v.   Eeliance   Life  Ins. 

Co.— 170  Cal.  199 1917E       34 

Dick    V.    Northern    Pacific    E. 

.  Co.— 86  Wash.  211 1917A     638 

Diekason  v.  English— 272  111. 

368    1918A  1165 

Dickerson,     Hoskins     v. — 239 

Fed.  275 1917C     776 

Dickey  v.  Southwestern  Surety 

Ins.  Co.— 119  Ark.  12 1917B     634 

Dickie,  Horton  v.— 217  N.  Y. 

363    1918A     611 

Dickinson  v.  Edmondson — 120 

Ark.  80 19170     913 

DickiEson,  Mankin  v. — 76  W. 

Va.  128    1917D     120 

Dickinson,     SpradKn     v. — 120 

Ark.   80    19170     913 

Dickman,  North  Sterling  Irri- 
gation District  v. — 59  Colo. 

169    1916D     973 

Didier,  Gibbs  v.— 125  Md. 

486  1916E  833 

Diehl   V.   Totten— 32    N.   Dak. 

131    1918A     884 

Diggs    V.    United    States— 242 

U.  S.  470 1917B  1168 

Dilkes,  Miller  v.— 251  Pa.  St. 

44    1917D  555 

Dillard,  Security  Life  Ins.  Co. 

v.— 117  Va.  401 1917D  1187 

Dillon  V.  Myers— 58  Colo.  492 

19160  1032 

Dinneen  ▼.  American  Ins.  Co. 

—98  Neb.  97 1917B  1246 

Dinneen  v.  Delaware  Ins.  Co. 

—98  Neb.  97 1917B  1246 

Dinsdale,   Boyle   v. — 45   Utah, 

112    1917E     363 

Dishmaker  v.  Heck — 159  Wis. 

572  1917A  400 

District    Court,    Owen    v. — 43 

Okla.   442    19170  1147 

District    Court,    State    ex   rel. 

Duluth  v.— 134  Minn.  28 1918B     635 

District    Court,    State    ex    rel. 

Marshall  v.— 50  Mont.  289..   19170     164 
District    Court,   State    ex    rel. 

Metcalf  v.— 52  Mont.  46 1918A     985 

District    Court,   State    ex    rel. 

Northfield  v.— 131  Minn.  352  1917D     866 
District  Court,  Union  Savings 

etc.  Co.  v.— 44  Utah,  397...   i917A     821 
District     Court,     Worthington 

v.— 37   Nev.   212 1916E  1097 

District    of    Columbia,    Depue 

v.— 45  App.  Gas.  (D.  C.)  54.  1917E     414 


PAGE 

District    School    Board,    Eich- 

ards  v.— 78  Ore.  621 1917D     266 

Dittmer  v.  Prentiss — 92  Ohio 

St.  101 1918A  1161 

Divide  Canal,  etc.   Co.  v.  Ten- 

ney— 57   Colo.  14 1917D     346 

Dixon,   Parker  v. — 132   Minn, 

367    1918A     540 

Dixon,    People    v. — 188    Mich. 

307    1918B     385 

Doane     t.     Grew — 220     Mass. 

171    1917A     338 

Doerr,     Bursow    v. — 96     Neb. 

219    19160     248 

Dolan,  Stacy  v.— 88  Vt.  369..  1917A  650 
Dolbear     v.     Wilkinson  — 172 

Cal.  366 1917E  1001 

Dolese,    Leach    v. — 186    Mich. 

695    1917A  1182 

Dollar  Steamship    Co.,    Schar- 

renberg  v.— 229  Fed.  970...  19170  258 
Dolliver  v.  Granite  State  Fire 

Ins.  Co.— Ill  Me.  275 19160     765 

Dominion   Fire  Insurance   Co. 

V.  Nakata — 62  Can.  Sup.  Ct. 

294    19160  1063 

Dominion  Trust  Co.  v.  Na- 
tional Surety  Co.— 221  Fed. 

618 19170     447 

Donaugh  v.  Garland — 269  111. 

565    1916E  1238 

Donnellan,  American  National 

Bank  v.— 170  Cal.  9 19170     744 

Donnelly,     Stevenson    v. — 221 

Mass.  161    1917E     932 

•Donohue,  Herlihy  v. — 52  Mont. 

601    19170       29 

Donovan  v.  Excelsior  Life  Ins. 

Co.— 53  Can.  Sup.  Ct.  539..  1917D  283 
Dorflinger,  Wilson  v. — 218  N. 

Y.  84   1917D       38 

Dorsey  v.  Bryans — 143  Ga.  186 

1917A     172 

Dotsan,   Egan  v.— 36  S.  Dak. 

459 1917A     296 

Dougherty,  State  v.— 88  N.  J. 

Law  209    1917D     950 

Douglas   County,  Minneapolis, 

etc.  E.  Co.  v.— 159  Wis.  408.  1916E  1199 
Douthwright  v.   Champlin — 91 

Conn.  524    1917E     512 

Douville  V.  Pacific  Coast  Cas- 
ualty Co.— 25  Idaho  396...  1917A  112 
Dowling,    Steele   v.— [1914]    2 

I.  E.  432   1917B     480 

Doyle,  In  re— 235  Fed.  362...  1917A  274 
Doyle  V.  New  Jersey  Fidelity, 

etc.,  Ins.  Co.— 168  Ky.  789.  .  1917D  851 
Dreimen  v.  Williams — 59  Colo. 

301    1917A     664 

Duffield  V.  Duffield— 268  111.  29 

1916D     859 

Dulin  V.  Ohio  Eiver  E.  Co.— 73 

W.  Va.  166 1916D  1183 

Duluth,  State  ex  rel.  Zien  v, — 

134  Minn.  355 1918A     683 

Duluth  Transfer  E.  Co.,  Nor- 
ton v.— 129  Minn.  126.'. 1916E     760 


XTi 


CASES  REPORTED. 


PAGE 

Dnncan,  State  ex  inf.  Barker 

v.— 265  Mo.  26 1916D         1 

Dunlap,   Graves  v. — 87  Wash. 

648    1917B     944 

Dunlap  V.  Great  Northern  R. 

Co.— 34  S.  Dak.  320 1916D     805 

Dunlap,  State  ex  rel,  Peterson 

v.— 28  Idaho,  784 1918A     546 

Dunn,   American   Bauxite    Co. 

v.— 120  Ark.  1 19170  625 

Duquesne  Light  Co.  v.  Pitts- 
burgh—251  Pa.  St.  557 1917E  534 

Durand  v.  Dyson— 271  111.  382 

1917D   84 

Dusman,  Jones  v. — 246  Pa.  St. 

513  1916D  472 

Dutton  V.  State— 123  Md.  373 

19160   89 

Duvall  V.  National  Ins.  Co. — 

28  Idaho    356 1917E  1112 

Dwyer  v.   Libert  —  30   Idaho 

576    1918B     973 

Dyson,  Durand  v.— 271  Hi.  382 

1917D       84 

Eakin's  Administrator  v.  An- 
derson—169    Ky.    1 1917D  1003 

Earl,  Chicago,  etc.  B.  Co.  v. — 

121  Ark.  514 1917D     552 

Earwieker  v.  London  Graving 

Dock   Co.— [1916]    1   K.   B. 

970    1918B     665 

Eastern  Electric   Co.,   Guyton 

v.— 91   Ohio  St.   106 1916D     944 

Eastern    Pennsylvania    Power 

Co.  V.  Lehigh  Coal,  etc.  Co. 

—246  Pa.  St.  72 1916D  1000 

Eastern  Steamship  Corp.,  Han- 
ley  v.— 221  Mass.  135 1917D  1034 

Eby,       Harshberger       ▼. — 28 

Idaho,  753  19170     753 

Eccles,    Commercial    National 

Bank  v.— 43  Utah,  91 19160     368 

Echols    V.    Speake — 185    Ala. 

149    19160     332 

Eckes,   Brown    v, — 160   N.   Y. 

Supp.  489    1917B     981 

Edgar,  In  re  Petition  of — 185 

Mich.  24   19170  1203 

Edgar    t.    Parsell— 184    Mich. 

522    1917A  1160 

Edinburgh,   Evans   v. — [1916] 

2  A.  C.  45 1916E     455 

Edmiston  v.  The  Homestead- 
ers—93  Kan.  485 1916D     588 

Edmondson,  Dickinson  v. — 120 

Ark.  80    19170    913 

Edmonton,     Jamieson     v. — 54 

Can.  Sup.   Ct.   443 1918B     379 

Edwards  v.  Edwards — 267  111. 

Ill    1917A       64 

Edwards,  Myakka  Co.  v. — 68 

Fla.    372    1917B     201 

Edwards,    Peace    v. — 170    N. 

Car.  64 1918A     773 

Egan  v.  Burnight — ^34  S.  Dak. 

473    1917A     539 

Egan   V.    Dotson — 36  S.   Dak. 

459    1917A     296 


PAGE 

Egidi  V.  Egidi-^37  R.  I.  481 . .  1918A  648 
Ehrhart  v.  Industrial  Accident 

Commission — 172  Cal.  621..  1917E  465 
E.    I.    Du    Pont    De    Nemours 

Powder    Co.,    Clark    v.— 94 

Kan.  268   1917B     340 

Eisenbach    v.    Eisenbach — 176 

Micli.  354   1917A  1196 

E.  Jossman  State  Bank,  State 

Banking       Com'r       v. — 185 

Mich.  24   19170  1203 

Elk  Horn  Bank,  etc.  Co.,  Stu- 
art v.— 123  Ark.  285 1918A     268 

Eller,     Lawrence    v. — 169    N. 

Car.   211    1917D     546 

EUerd,   Ex  p.— 71   Tex.  Crim. 

285    1916D     361 

Elliott,  People  v.— 272  111.  592 

1918B     391 

Elliott,  Sibley,  etc.  B.  Co.  v. — 

136  La.   793 1916D  1228 

Ellis,  Record  v.— 97  Kan.  754.  19170  822 
Ellison-Harvey     Co.,     Conrad 

v.— 120   Va.   458 1918B  1171 

Elm  City  Lumber  Co.,  Brown 

v.— 167  N.  Car.  9 1916E     631 

Elsom,  Hihn-Hammond  Lum- 
ber Co.  v.— 171  Cal.  570. .. .  19170  798 
Eltinge    v.    Santos — 171    Cal. 

278    1917A  1143 

Elyria    Savings,    etc.    Co.    v. 

Walker  Bin  Co.— 92  Ohio  St. 

406    1917D  1055 

Embry    v.    Adams — 191    Ala. 

291    19170  1024 

Emerson,      Sweetser      v. — 236 

Fed.  161    1917B     244 

Empire    Mill    Co.,    Blackwell 

Lumber    Co.    v. — 28    Idaho 

556    1918A     189 

English,  Dickason  v. — 272  111. 

368    1918A  1165 

Eppley,  Marion  Shoe  Co.  v. — 

181  Ind.  219 1916D     220 

Equitable  Life  Assurance  Soc, 

Schas  v.— 170  N.  Car.  420..  1918A  679 
Erie  R.  Co.,  Brown  v. — 87  N. 

J.  Law  487 19170     496 

Erie  B.  Co.,  Hamilton  v.— 219 

N.  Y.  343 1918A     928 

Erie  R.   Co.   v.   Steinberg— 94 

Ohio   St.   189 1917E     661 

Erie   R.   Co.   v.   Winfield— 244 

U.    S.   170 1918B     662 

Esper,   Cleveland  v. — 92   Ohio 

St.    493    1917D  1134 

Essex  County  Park  Commis- 
sion,   Barnes    v. — 86    N.    J, 

Law   141    1916E     968 

E.  Starr  Jones,  The— 224  Fed. 

391    1917B     996 

Estate  of  Beckwith  v.  Spooner 

—183  Mich.  323 1916E     886 

Estate    of    Cutting— 172    Cal. 

191    1917D  1171 

Estate     of     Manchester — 174 

Cal.  417  1918B     227 

Estate  of  Oldfield— 175  Iowa 

118    1917D  1067 


CASES  EEPORTED. 


PAGE 

Etzel,  Frey  v.— 160  Wis.  311.  1917D  153 
Eugene,    PuUen     v. — 77     Ore. 

320    1917D     933 

Eugene  Dietzen  Co.  v.  Indus- 
trial Board— 279  Dl.  11 1918B     764 

Eureka  Pipe  Line  Co.  v.  Riggs 

—75  W.  Va.   353 1918A     995 

Evans  v.  Edinburgh— [1916]  2 

A.   C.  45 1916E     455 

Evening      Post      Co.,      Axton 

Fisher  Tobacco  Co.  v. — 169 

Ky.  64   1918B     560 

Everett,    Sims    v. — 113    Ark. 

198    1916C     629 

Ewart  T.  Minneapolis,  etc.  K. 

Co.- 128    Minn.    77 1916D  1047 

Ewbank    v.    Lyman  — 170    N. 

Car.  505 1917A     272 

Excelsior  Life  Ins.  Co.,  Dono- 
van v.— 53  Can.  Sup.  Ct.  539 

1917D     283 

Excelsior  Products  Mfg.  Co.  v. 

Kansas  City  Southern  R.  Co. 

—263  Mo.  142 1917B  1047 

Face  V.  Cherry- 117  Va.  41..  1917E  418 
Fader,     Oleson     v. — 160     Wis. 

473    1917D     314 

Faisan  v.  Adair— 144  Ga.  797.  1918A  243 
Faison   v.    Middleton — 171    N. 

Car.    170    1917E       72 

Faivre,  Wideman  v. — 100  Kan. 

102    1918B  1168 

Falkovitch,  People  v.— 280  111. 

321    1918B  1077 

Farley,  Matter  of— 213  N.  Y. 

15    1916C     494 

Farmers',     etc.     Nat.     Bank, 

Brown  v.— 76  Ore.  113 1917B  1041 

Farmers',     etc.      Nat.     Bank, 

Holden  v.— 77  N.  H.  535...  1917E  23 
Farmers'     Loan,     etc.     Co.     v. 

Planck— 98  Neb.  225 1918B     598 

Farmers'     National    Bank    v. 

McCoy — i2   Okla.  420 1916D  1243 

Farmers'   State   Bank,   McKil- 

lip  v.— 29  N.  Dak.  541 1917C     993 

Farnam,  State  v.— 82  Ore.  211 

1918A     318 

Farr,  Neelley  v. — 61  Colo.  485 

1918A       23 

Farson,    Flexner    v. — 268    HI." 

435    1916D     810 

Faust,  Pond  v.— 90  Wash.  117.  1918A  736 
Favssoux,   Houser   v. — 168   N. 

Car.    1    1917B     835 

Fearon  v.  Fodera  — 169  Cal. 

370  1916D  312 

Fechheimer,  Philadelphia  Cas- 
ualty Co.  v.— 220  Fed.  401.  1917D  64 
Fensky  v.  Maryland   Casualtv 

Co.— 264  Mo.  154 '.   1917D     963 

Fergus  v.  Brady— 277  111.  272.  1918B  220 
Ferguson  v.  Majestic  Amuse- 
ment Co.— 171  N.  Car.  663. .  1917C  389 
Ferguson     v.    Martineau — 115 

Ark.  317   1916E     421 

Ferris  v.  Sterling— 214  N.   Y. 

249    1916D  1161 


PAGE 

Fidelity,  etc.  Co.,  Shoop  v. — 

124  Md-  130 1916D     954 

Fidelity,  etc.   Co.,  Stone  v. — 

133  Tenn.  672 1917A      86 

Fidelity  Mortgage  Bond  Co.  v. 

Morris— 191  Ala.  318 1917C     952 

Fidelity     Safe     Deposit     Co., 

Foster  v.— 264  Mo.  89 1917D     798 

Fields    T.    Altman — 193    Ala. 

160    1918B     189 

Fifield's      Administratrix      v. 

Rochester— 89  Vt.  329 1918A  1016 

Finch  V.  Michael — 167  N.  Car. 

322    1916E     382 

Findlay  Cemetery  Assoc,  Sut- 
ton v.— 270  111.  11 1917B     559 

Finley   v.    Atlantic   Transport 

Co.— 220  N.  Y.  249 1917D     726 

Finley,    Hart-Parr   Co.   t.— 31 

N.  Dak.  130 1917E     706 

Finnish    Temperance    Soe.    v. 

Riavaaja       Pub.       Co. — 219 

Mass.  28   1916D  1087 

Fire  Association  v.  Wells — 84 

N.  J.  Eq.  484 1917A  1296 

Firemen's  Ins.  Co.  v.  Larey — 

125  Ark.  93 1917B  1225 

First  Bank  of  Texola  r.  Ter- 
rell—44  Okla.  719 1917A     681 

First  Baptist  Church  v.  Ameri- 
can   Board    of    Com'ra — 66 

Fla.   441    1916D    404 

First  Christian  Church,  Com- 
monwealth v.— 169  Ky.  410.  1918B  525 
First   National   Bank  v.  Ber- 

toli— 87  Vt.  297 1917B     590 

First  National  Bank,  Freeman 

v.— 44  Okla.  146 1918A     259 

First     National    Bank    t.     G. 

Geske  &  Co.— 85  Wash.  477.  1917B  564 
First   National    Bank   v.   Nye 

County— 38  Nev.  123 19170  1195 

First  National  Bank  v.  Robin- 
son—93  Kan.  464 1916D     286 

First  National  Bank  v.  Stover 

—21   N.  Mex.  453 1918B     145 

First   National   Bank,   Wilson 

v.— 164  Iowa,  402 1916D     481 

First  State  Bank  v.  Kelly— 30 

N.  Dak.  84 1917D  1044 

Fischel,    Cartwright-Caps    Co. 

v.— 113    Miss.    359 1917E     985 

Fischer,    Bishop    v. — 94    Kan. 

105    1917B     450 

Fischheimer  v.  Keysersmith — 

258   111.   392 1917A  1195 

Fish   V.  Vanderlip— 218  N.  Y. 

29    1916E     150 

Fisher  v.  Browning — 107  Miss. 

72<> 1917C     466 

Fisher,    Coleman    v. — 68    Fla. 

56    1917A  1229 

Fisher,  Cross  v.— 132  Tenn.  31  1916E  1092 
Fisher  v.  McKeemie — 43  Okla. 

577    19170  1039 

Fitzhugh,  American  Ice  Co.  v. 

—128   Md.    382 1917D  .    33 

Fitzrov,      Massaletti      v.— 228 

Mass.  487   1918B  1083 


CASES  REPORTED. 


PAGE 
Planagan    v.    Nicholson    Pub. 

Co.— 137  La.  588 1917B     402 

Flanagan,  State  v.— 76  W.  Va. 

783  1917D  305 

Flavin,  State  v.— 35  S.  Dak. 

530    1918A    713 

Fleming,  Viita  v. — 132  Minn. 

128    1917E     678 

Fletcher,      McEwen      v. — 164 

Iowa    517   1916D     631 

Fletcher,  National  Surety  Co. 

v.— 186  Ala.  605 1916D     872 

Flexner    v.    Parson  —  268    111. 

435    1916D     810 

Florida  East  Coast  R.  Co.  v. 

Carter— 67  Fla.  335 1916E  1299 

Florida    East    Coast    R.    Co., 

Johnson  v.— 66  Fla.  415 19160  1210 

Flower,     Richardson     v. — 248 

Pa.  St.  35  1916E  1088 

Flynn    v.   New   York,   etc.  R. 

Co.— 218  N.  Y.   140 1918B     588 

F.  Mayer  Boot,  etc.  Co.,  Stetz 

v.— 163  Wis.  151 1918B     675 

Focke,  Wall  v.— 21  Hawaii  399  1916C  677 
Fodera,    Fearon    v.— 169    Cal. 

370 1916D  312 

Foley,  Matter  of — 172  Cal. 

744  1918A  180 

Fontana   v.    Hynes- 169    Cal. 

240    1916D     233 

Foote,  Missouri,  etc.  R.  Co.  t. 

—46  Okla.  578 1917D     173 

Ford  V.  Clendenin— 215  N.  Y. 

10   1917A     658 

Ford,  Jinkiaway  v. — 93   Kan. 

797    1916D     321 

Ford,  Sutton  v.— 144  Ga.  587.  1918A  106 
Forster,  Postal  Telegraph  Co. 

v.— 73  Ore.  122 1916E     979 

Fort  Edward,  Murphy  v.— 213 

N.  Y.  397 19160  1040 

Fosha,  Underwood  v. — 96  Kan. 

549    1917A     265 

Foster  v.  Fidelity  Safe  De- 
posit Co.— 264  Mo.  89 1917D     798 

Fourth  National  Bank  v.  Mc- 

Arthur— 168  N.  Car.  48 1917B  1054 

Fowler    v.    Koehler — 43    App. 

Cas.  (D.  C.)  349 1916E  1161 

Fox,  American  Express  Co.  v. 

—135  Tenn.  489 1918B  1148 

Fox,  Sweetser  v.— 43  Utah   40 

1916C     620 

Foxton,  State  v. — 166  Iowa 

181  1916E  727 

Frank,  State  ex  rel.  Moose  v. 

—114  Ark.  47 1916D     983 

Franke,  Schmitt  v. — 160  Wis. 

347    1917D     230 

Franklin  v.  The  Duncan — 133 

Tenn.  472    19170  1080 

Franklin,  Watson  v. — 187  Ala. 

490    1916E     565 

Franklin,  Western  Union  Tel. 

Co.   v.— 114   Ark.   469 1916D     466 

Franklin  Farmers'  Co-opera- 
tive Tel.  Co.,  Mount  Vfrnon 

Tel.  Co.  v.— 113  Me.  46 1917B     649 


PAGE 

Fraternal     Bankers'     Reserye 

Soc,  Schworm  v. — 168  Iowa 

579    1917B     373 

Fraternal      Bankers'     Reserve 

Soc,    Werner    v. — 172    Iowa 

504    1918A  1005 

Fredericksburg      Power      Co., 

Bridgewater    Milling    Corp. 

v.— 116   Va.   333 1916D  1027 

Freed,    Weber    v.— 239    U.    S. 

325    19160     317 

Freeland,      Archuleta      v. — 61 

Colo.  485  1918A       23 

Freeman,  Bryant  v. — 134  Tenn. 

169    1917E     111 

Freeman  v.  First  Nat.  Bank — 

44  Okla.   146    1918A     259 

Freeman  v.  Nuttig  Sash,  etc. 

Co.— 150   Tex.   560 1916E     446 

Freeman    v.    Poole — 37    R.    I. 

489    1918A     841 

Freenor,  Board  of  Medical  Ex- 
aminers V. — 47  Utah  430..  1917E  1156 
Fremd  v.  Hogg — 68  Fla.  331..  1917B  155 
Freudenberg,       Porter       v. — 

[1915]    1   K.   B.   857 19170     215 

Freudenberger  Oil  Co.  v.  Sim- 
mons—75  W.  Va.  337 1918A     873 

Frey  v.  Etzel— 160  Wis.  311..  1917D  153 
Frey  v.  Rhode  Island  Co. — 37 

R.  I.  96  1918A     920 

Freyberger,  Ex  p.— [1917]  2 

K.  B.  129 1917E  480 

Frick,    Lam    Fung    Yen    v. — 

233   Fed.  393 19170     232 

Froeming  v.  Stockton  Electric 

R.  Co.— 171  Cal.  401 1918B     408 

Frohlich  v.  Deacon — 181  Mich. 

255    19160     722 

Frost  V.  American  Surety  Co. 

—217  Mass.  294 1917A     583 

Fuller,  McLellan  v. — 220  Mass. 

494    1917B         1 

Fulton,  Hammond  v. — 220  N. 

Y.   337    19170  1137 

Fusha   V.    Dacano   Town   Site 

Co.— 60  Colo.  315 19170     108 

Fusselman  v.  Yellowstone  Val- 
ley Land,  etc.  Co. — 53  Mont. 

254    1918B     420 

Gabriel  v.  Churchill— [1914]  3 

K.  B.  1272 19160  1087 

Gadow  V.  Hunholtz — 160  Wis. 

293    1917D       91 

Gadsen,  Alabama  City,  etc.  B. 

Co.    v.— 185    Ala.    263 19160     573 

Gaffey  v.   St.   Paul   Fire,   etc. 

Ins.  Co.— 221  X.  Y.  113 1918B  1041 

Gaines    v.     Gaines — 116    Ark. 

508    1917A  1254 

Gainesville  v.  Alachua  County 

—69   Fla.    581 1917D     843 

Gallagher,  Mooy  v.— 36  R.  I. 

405    1916D     395 

Gallagher     v.     Murphy  —  221 

Mass.  363    1917E     594 

Galveston    Citv    Co.,    Yeaman 

v.— 106   Tex'.   389 1917E     191 


CASES  REPOETED. 


XIX 


PAGE 

Gard   v.  Mason— 169    N.   Car. 

507    1917D     281 

Gardner,  State  v. — 174  Iowa 

748  1917D  239 

Garland,  Donaugh  v.— 269  111. 

565    1916E  1238 

Garner,  Cain  v, — 169  K7.  633 

1918B     824 

Garrison      v.      Newark      Call 

Printing,  etc.  Co.— 87  N.  J. 

Law  217    1917C       33 

Gartner,    Harvey   v. — 136   La. 

411    1916D     900 

Gartner    v.    Pittsburgh    Stock 

Exchange— 247  Pa.  St.  482.   1916E     878 
Gascoigne  v.  Cary  Brick  Co. — 

217   Mass.    302    1917C     336 

Gato    V.    Christian  — 112    Me. 

427    1917A     592 

Gatta,    Philadelphia,     etc.     R. 

Co.   V. — 4  Boyce    (Del.)    38 

1916E  1227 

Gauld,  Wood  v. — 53  Can.  Sup. 

Ct.  51  1917C     939 

Gawley,  Cissna  Loan  Co.  v. — 

87  Wash.  438    1917D     722 

Geer    Drug    Co.    v.    Atlantic 

Coast    Line   R.    Co.— 104   S. 

Car.    207 1917C     908 

Geiger,  Ingram-Dekle  Lumber 

Co.  v.— 71  Fla.  390 1918A     971 

Geiger-Jones  Co.,  Hall  v. — 242 

U.  S.  539   1917C     643 

General   Accident,  etc.   Assur. 

Corp.,  State   ex  rel.  Ander- 
son v.— 134  Minn.  21 1918B     615 

George  v.  Consolidated  Light- 
ing  Co.— 87   Vt.   411 1916C     416 

Georgia    Fire    Ins.   Co.,   Jack- 
son v.— 189  Ala.  495 1917A     807 

Georgia  Life  Ins.  Co.,  Seay  v. 

—132  Tenn.  673 1916E  1157 

Georgia  R.  etc.  Co.,  Blaloek  v. 

—228  Fed.  296 1917A     679 

German     American     Bank     v. 

Wright— 85  Wash.  460   1917D     381 

German   Commercial   Accident 

Co.,   Bates  v.— 87   Vt.   128..   19160     447 
German  Evangelical  etc.  Cong. 

V.  Mayor,  etc.— 123  Md.  142.   19160     231 
Germania  Fire  Ins.  Co.  v.  Tur- 

ley— 167   Ky.   57 19170     931 

German  National  Bank  v.  Cov- 
ington—164  Ky.  292 1917B     189 

Gessell  Pressed  Brick  Co.,  Jor- 

gensen  v. — i5  Utah  31 19170     309 

Gever,  Gechelman  v. — 248  Pa. 

St.  430 1917A     236 

G.  Geske  &  Co.,  First  National 

Bank  v.— 85   Wash.  477 1917B     564 

G.    H.    Bass    &    Co.,    Wilton 

Woolen  Co.  v.— 112  Me.  483 

1916D  1023 

Gherna  v.  State— 16  Ariz.  344 

1916D       94 

Gibb  V.  Rex— 52  Can.  Sup.  Ct. 

402    ; 1916D     709 

Gibbs  V.  Didier— 125  Md.  486  1916E     833 


PAGE 

Gibbs,  People  v. — 186  Mich. 

127  1917B  830 

Gibson,  People  v.— 218  N.  Y. 

70   1918B     509 

Gibson,  Westchester  Trust  Co. 

v.— 217  N.  Y.  454 1917E     853 

Gilchrist   v.   Hatch — 183    Ind. 

371    1917E  1030 

Gillen,  Hoyt  v.— 181  Mich.  509  19160     812 

Gillespie  v.  Wheatland  In- 
dustrial Co.— 22  Wyo.  331..   1917A     287 

Gillies  V.  Brown — 53  Can,  Sup. 

Ct.  557    1917D     354 

Gilman,  Westcott  v. — 170  Cal. 

562    1916E     437 

Gilmer,  Capital  Securities  Co. 

v.— 190  Ala.   340 1917A     888 

Gilstrap,  Matter  of — 171  Cal. 

108   1917A  1086 

Girard  National  Bank,  Blum 
Bros,  v.— 248  Pa.  St.  148...  1916D     609 

Gish,  State  V. — 168  Iowa   70..  1917B     135 

Gish  Banking  Co.  v.  Leach- 
man's  Adm'r— 163  Ky.  720.   1916D     525 

Gist    V.    Johnson-Carey    Co. — 

158  Wis.  188 1916E     460 

Gittings,  Judd  &  Detweiler  v. 

—43  App.  Cas.  (D.  C.)  304..1917B     518 

Giudice,   State   v. — 170   Iowa, 

731    19170  1160 

Givens  v.  Pierson'a  Adminis- 
tratrix—167    Ky.    574 19170     956 

Glasgow,  etc.,  R.  Co.,  Green- 
ock Corporation  v. — [1917] 
A.  C.  556 1918A  1103 

Glasgow  Coal  Co.  v.  Welsh — 

[1916]  2  A.  C.  1 '.   1916E     161 

Glenn,  Hoke  v. — 167  N.  Car. 
594    1916E     250 

Globe,  etc.  Fire  Ins.  Co.,  Citi- 
zens' Trust  etc.  Co.  v. — 229 
Fed.  326   19170     416 

Glorieux       v.       Lighthipe — 88 

N.  J.  Law  199 1917E     484 

Glover   v.   Bradley — 233    Fed. 

721   1917A     921 

Glynn,  Nolan  v. — 163  Iowa 
146    19160    559 

Goehring,  Eott  v. — 33  N.  Dak. 

413    1918A     643 

Gogo,   Toledo   Scale    Co.   v. — 

186  Mich.  442 1917E     601 

Goldsborough,  Chesapeake,  etc. 

Tel.  Co.  v.— 125  Md.  666...    1917A         1 

Golightly,    Brown    v. — 106  S. 

Car.    519 1918A  1185 

Goodin,      Laymaster     v. — 260 

Mo.  613 19160     452 

Goodrich  Transit  Co.,  Marin- 
ette v.— 153  Wis.  92 1917B     935 

Goodwin,    McConnell    v. — 189 

Ala.   390 1917A     839 

Gordon  v.  Gordon's  Adminis- 
trator—168  Ky.   409 1917D     886 

Gordon,  Marshall  v.— 243  U.  S. 

521    1918B     371 

Gordon  v.  McLeam — 123  Ark. 
496   1918A     482 


CASES  REPORTED. 


PAGE 

Gordon,   Miller    v.— 93    Kan. 

382 1916D     502 

Gordon  v.  Spellman — 145  Ga. 

682 1918A  852 

Gordon  v.  State— 125  Ark.  Ill  1918A  419 

Gdrdon,  State  v.— 32  N.  Dak. 

31   .; 1918A     442 

Gordon,  State  ex  rel.  Gass  v. 
—266  Mo.  394 1918B     191 

Gordon's   Administrator,   Gor- 
don v.— 168  Ky.  409 1917D     886 

Gorman     v.     Madden — 27  S. 

Dak.    319 1916D     842 

Gorsuch,  Virginia  R.,  etc.  Co. 

v.— 120  Va.  655 1918B     838 

Gottstein  v.  Ldster — 88  Wash. 

462   1917D  1008 

Gould,  State  v.— 261  Mo.  694.   1916E     855 

Gowans,   Stoker   v. — 45    Utah 

566    1916E  1025 

Graham,    Hatfield    v.— 73    W. 

Va.  759    19170         1 

Graham,  People  ex  rel.  Agnew 

v.— 267  111.  426 19160     391 

Graham  v.  State— 143  Ga.  440  1917A     595 

Grahl   v.   United    States— 245 
U.  S.  366 1918B     856 

Grand   Fraternity,  Laue   v. — 
132  Tenn.  235 1917A     376 

Grand  Rapids,   Hawkins  v. — 

192  Mich.  276 1917E     700 

Grand  Trunk  R.  Co.,  Lyons  v. 
—185  Mich.  417 1917D     162 

Grand  Trunk  R.  Co.,  Osborne 

v.— 87  Vt.  104 19160       74 

Graning,  Tn  #e— 229  Fed.  370.   1917B  1094 

Granite    State   Fire    Ins.    Co., 

DolUver  v.— Ill  Me.  275...   19160     765 

Grant,  In  re — 44  Utah  386 1917A  1019 

Grant  v.  Harris— 116  Va.  642.  1916D  1081 

Grant  v.  Swank— 74  W.  Va.  93  19170     286 

Granzow,       Hubert       v. — 131 

Minn.  361 1917D     563 

Graubard   v.   United   States — 

245  U.  S.  366 1918B     856 

Graves   v.   Dunlap — 87   Wash. 
648   1917B     944 

Gray   v.    Mossman — 88    Conn. 

247    19170       27 

Gray   v.    Salt   Lake   City — 44 

Utah    204 1916D  1135 

Great  Central  R.  Co.  v.  Hew- 
lett—[1916]     2  A.  C.  511..   1917A     997 

Great  Northern  R.  Co.,  Ander- 
son v.— 25  Idaho,  433 19160     191 

Great  Northern   R.   Co.,   Dun- 
lap  v.— 34  S.  Dak.  320 1916D     805 

Great     Northern     R.     Co.     v. 

Leavenworth— 81   Wash.  511  1916D     239 

Great    Northtrn    R.    Co.,    Mc- 
Gregor v.— 31  N.  Dak.  471.   1917E     141 

Great  Northern  R.  Co.,  State 

v.— 130  Minn.  57 1917B  1201 

Great   Southern  Fire  Ins,  Co. 

V.  Burns— 118  Ark.  22 1917B     497 

Great  Western  R.  Co.  v.  Helps 
—[1918]   A.  C.  141 1918B  1120 


PAGK 

Green  v.  Green— 125  Md.  141  1917A  175 
Greene   v.   Caldwell — 170   Ky. 

571    1918B     604 

Greene   v.   Louisville,   etc.  R. 

Co.— 244  U.  S.  499 1917E       88 

Greene  v.  Louisville  Ry.  Co. — 

244  U.  S.  499 1917E       88 

Greene,  Louisville,  etc.  R.  Co, 

v.— 244  U,  S.  522 1917B       97 

Greene,  Sieg  v.— 225  Fed.  955  19170  'l006 
Greene   County   v.  Lydy — 263 

Mo,  77 19170     274 

Greenhood,     Richardson     v. — 

225  Mass.  608 1918A     515 

Greenlands,  London  Associa- 
tion v.— [1916]  2  A.  C,  15. .  1916E  535 
Greenleai  v.  Minneapolis,  etc. 

R.  Co.— 30  N.  Dak.  112 1917D     908 

Greenock  Corporation  v.  Cale- 
donian R.  Co.— [1917]  A.  C. 

556    1918A  1103 

Greenock  Corporation  v.  Glas- 
gow,    etc.     R.     Co.— [1917] 

A,  C.  556 1918A  1103 

Greenwood  Cotton  Mill  t.  Tol- 

bert— 105  S.  Car.  273 19170     338 

Gregg     v.     King     County — 80 

Wash.    196 19160     135 

Gregg  V,  Little  Rock  Chamber 

of  Commerce— 120  Ark,  426  19170  784 
Grenzow,     Schmidt     v.  — 162 

Wis.  301 1917B     163 

Grew,    Doane    v. — 220    Mass. 

171 1917A     338 

Grice    t.    Oregon- Washington 

R.,  etc.  Co.— 78  Ore.  17 1917E     645 

Griffin,  McCarver  v. — 194  Ala, 

634   1917A  1172 

Griffin    v.     Russell— 144     Ga. 

275    1917D     994 

Griffin  v.  State— 142  Ga.  636. .  19160  80 
Griffin,    State    v.— 98    S.    Car. 

105 1916D     392 

Griffin  v.  Union  Savings,  etc. 

Co.— 86  Wash,  605 1917B     267 

Grimm,     Bunger     v. — 142  Ga. 

448    19160     173 

Grinnell      v,       Wilkinson — 39 

R.  L  447 1918B     618 

Griswold  v.  Wichita — 99  Kan. 

502   1917D       31 

Grosman  v.  Union  Trust  Co. — 

228  Fed.  610 1917B     613 

Grout,  In  re— 88  Vt.  318 1917A     210 

Groves  v,  Barden — 169  N,  Car. 

8    1917D     316 

Guaranteed  Investment  Co.  v. 

Van  Metre— 158  Wis.  262..  1916E  554 
Gulf  Refining  Co,  v.  Hayne — 

138  La.  555 1917D     130 

Gunn,   Chicago,   etc,  R.   Co.  v. 

—112  Ark.  401 1916E     648 

Gumey  v.   Tenney — 226  Mass. 

277    ' 1918A     739 

Guyton  v.  Eastern  TSectric  Co. 

—91   Ohio  St.   106 1916D     944 


CASES  KEPOBTED. 


PAGE 

Haas,  Herman  &  Ben  Marks  v. 

—166    Iowa     340 1917D     543 

Haben,    Witte    v. — 131    Minn. 

71    1917D     534 

Hadacheck   v.   Sebastian — 239 

U.  S.  394 1917B     927 

Hadley      v.      Tallahassee — 67 

Fla.    436 1916C     719 

Haflfer,  State  v.— 94  Wash.  136  1917E  229 
Hagen,  Moody  v. — 36  N,  Dak. 

471    1918A     933 

Hagerty,  Stewart  v. — 251  Pa. 

St.    603 1917D     483 

Hahn,  In  re— 85  N.  J.  Eq.  510  1918B  830 
Haile  ▼.  New  Orleans  R.  etc. 

Co.— 135  La.   229 1916C  1233 

Haire,    Smith    v. — 133    Tenn. 

343    1916D     529 

Hale,  Davis  v.— 114  Ark.  426.  1916D  701 
Hall  V.  Casebolt— 171  Ky.  477  1917C  1012 
Hall    V.    Coultrap— 242    U.    S. 

539    1917C     643 

Hall,  Davis  v.— 72  Ore.  220 ..  .  1916D  922 
Hall  V.  Geiger-Jones  Co. — 242 

U.  S.  539 1917C     643 

Hall  V.   Manufacturers'   Coal, 

etc.  Co.— 260  Mo.  351 1917C     375 

Hall,  Quinn  v.— 37  R.  I.  56..  1917C  373 
Hall  V.  Rose— 242  U.  S.  539..  1917C  643 
Halliday,  Rex  v.— [1917]  A.  C. 

260   1917D     389 

Halsell    V.    Merchajits'    Union 

Ins.  Co.— 105  Miss.  268 1916E     229 

Ham  V.  Ham— 168  N.  Car.  486  1917C  301 
Hamilton,    Carnahan    v. — 265 

111.   508    1916C       21 

Hamilton    v.    Erie    R.    Co. — 

219  N.  Y.  343 1918A     928 

Hamilton  v.  North   American 

Accident   Ins.    Co. — 99  Neb. 

579    1917C     409 

Hamilton,    Selig   v.— 234  XJ.  S. 

652   1917A     104 

Hamilton,    Stonegap    Colliery 

Co.  v.— 119  Va.  271 1917E       60 

Hamilton  Motor  Co.,  Thomp- 
son v.— 170  Cal.  737 1917A     677 

Hammett    v.    State-^2   Okla. 

384   1916D  1148 

Hammond      v.      Pulton — 220 

N.  Y.  337  1917C  1137 

Handlin,     ISfcCoy     v.— 35     S. 

Dak.    487    1917A  1046 

Haney  v.  Cofran— 94  Kan.  332  1917B  660 
Haney    v.    Parkison — 72    Ore. 

249    1916D  1035 

Hanford  v.  Seattle — 92  Wash. 

257    1917B     195 

Hanley  v.  Eastern  Steamship 

Corp.— 221   Mass.  125 1917D  1034 

Hanna,     Youmans      v. — 35  N. 

Dak.    479 1917E     263 

Hannah    v.    Knuth — 161    Wis. 

467    19170     681 

Hanscom  v.  Maiden,  etc.  Gas- 
light Co.— 220  Mass.  1 1917A     145 

Hanson,  Studebaker  Corpora- 
tion v.— 24  Wyo.  222 1917E     557 


PAGE 
Harding,    Brown    v. — 170    N. 

Car.    253 19170     548 

Hardman,    Longyear    v. — 219 

Mass.  405 1916D  1200 

Hardy  v.   Woods — 33   S.   Dak. 

416    19160     398 

Hare,  Mackenzie  v. — 239  U.  S. 

299 1916E     645 

Hargis,     Taulbee    v. — 173  Ky. 

433   1918A     762 

Harmon's  Adm'r  v.  Chesa- 
peake,  etc.   R.   Co.   V. — 173 

Ky.    1 1918B       41 

Harper,      Henderson     v. — 127 

Md.    429 19170       93 

Harper,  State  ex  rel.  Dawson 

v.— 94  Kan.  478 1917B     464 

Harrelson,     Blackwell    v. — 99 

S.  Car.  264 1916E  1263 

Harris      v.      Bremerton  —  85 

Wash.  64 19160     160 

Harris,    Creamer   v. — 90    Ohio 

St.  160 19160  1137 

Harris,  Gra.nt  v.— 116  Va.  642  1916D  1081 
Harris,  Kline  v. — 30  N.  Dak. 

421    1917D  1176 

Harris   v.   Louisville — 165  Ky. 

559    1917B     149 

Harris  .v.  St.  Helena— 72  Ore. 

377   1916D  1073 

Harris,     Sherman     v. — 36     S. 

Dak.  50   19170     675 

Harris  v.  State — ^23  Wyo.  487.  1917A  1201 
Harrison,  Berg  v. — 243  U.  S. 

124   1917D     442 

Harshbarger      v.      Eby  —  28 

Idaho  753   19170     753 

Hartford  Fire  Ins.  Co.,  River- 
side Development   Co.   v. — 

105  Miss.   184 1916D  1274 

Hartman   v.    Tennessee    State 

Fair  Assoc- 134  Tenn.  149  1917D  931 
Hart-Parr    Co.    v.    Finley — 31 

N.  Dak.  130 1917E     706 

Hartsfield,    Towsley    v.  — 113 

Ark.  253    19160     643 

Harvey    v.    Gartner — 136    La. 

411   1916D     900 

Harvey,  Lufkin  v. — 131  Minn. 

238    1917D     583 

Harvey    v.     Richardson  —  91 

Wash.   245    1918A     881 

Hatch,   Gilchrist  v. — 183  Ind. 

371     1917E  1030 

Hatfield    v.    Graham— 73    W, 

Va.  759   19170         1 

Havens,  Sherman  v. — 94  Kan. 

654     1917B     394 

Havis    V.    Philpot — 115    Ark. 

250     1916E     167 

Hawkins     v.     Bleakly  —  243 

U.  S.  210   1917D     637 

Hawkins    v.    Grand    Rapids — 

192  Mich.  276   1917E     700 

Hawkins    v.    Mellis,    Pirie    & 

Co.— 127  Minn.  393    19160     640 

Hawley  v.  Maiden— 232  U.  S. 

1    19160     842 


CASES  EEPOETED. 


PAGE 

Harden     v.     Dannenberg — 42 

Okla.  776 1916D  1191 

Hayes,  In  re— 72  Fla.  558 1918B     936 

Hayne,  Gulf  Refining  Co.  v. — 

138  La.  555    1917D     130 

Hays,  Continental  Distribut- 
ing Co.  v.— 86  Wash.  300..  1917B  708 
Hays    V.    United    States— 242 

U.  S.  470    1917B  1168 

Hays    V.    Walnut    Creek    Oil 

Co.— 75   W.  Va.  263 1918A     802 

Bayward  v.  Westleigh  Col- 
liery Co.— [1915]  A.  C.  540.  1917D  877 
Hazelton,     Hollinshead     v. — 

[1916]  A.  C.  428   1916D     615 

Hechelman      v.       Geyer — 248 

Pa.  St.  430   1917A     236 

Hecht  V.  Boston  Wharf  Co. — 

220  Mass.  397  1917A     445 

Heck,       Dishmaker       v. — 159 

Wis.  572   1917A     400 

Hedgecock    v.    Tate — 168    N. 

Car.  660    1916D     449 

Hefner,    Marx    v. — 46     Okla.    > 

453    1917B     656 

Heim    v.    MeCall— 239    U.    S. 

175     1917B     287 

Heinsheimer,    Matter   of — 214 

N.  Y.  361   1916E     384 

Heiseman      v.      Lowenstein — 

113  Ark.  404   1916C     601 

Heiskell  v.  Knox  County— 132 

Tenn.   180    1916E  1281 

Heiskell  v.  Morris — 135  Tenn. 

238    1918B  1134 

Held,    Hunt    v.— 90    Ohio    St. 

280    19160  1051 

Helps,  Great  Western  E.  Co. 

v.— [1918]  A.  C.  141 1918B  1120 

Hench  v.  Pennsylvania  R.  Co. 

—246  Pa.  St.  1 1916D     230 

Henderson      v.      Harper — 127 

Md.  429   19170       93 

Henderson,   Maynard   v. — 117 

Ark.  24    1917A  1157 

Henderson  v.  Spartanburg  R. 

etc.  Co.— 98  S.  Car.  206  ...  1916D  585 
Henry  v.  Britt— 265  HI.  131  . .  19170  977 
Henry,     Nolen     v. — 190     Ala. 

540    1917B     792 

Henry     v,     Spitler — 67     Fla. 

146    1916E  1267 

Henry  Hudson  Co.,  Cona  v. — 

86  N.  J.  Law  154 1916E     999 

Herbert    v.     Samuel    Fox    & 

Co.— [1916]  A.  C.  405 1916D     578 

Herbert   Morris  v.  Saxelby — 

[1916]  A.  C.  688 1916D     537 

Herlihy      v.      Donahue  —  52 

Mont.  601   19170       29 

Herman     &     Ben     Marks     v. 

Haas— 166  Iowa  340   1917D     543 

Hermitage   National    Bank   v. 

Carpenter— 131     Tenn.     136 

1916D     730 

Herries     v.    Bell — 220     Mass. 

243    1917A     423 


PAOB 

Herzog  v.  Trust  Co.— 67  Fla. 

54   1917A     201 

Hewlett,     Great     Central     E. 

Co.  v.— [1916]  2  A.  C.  511.  1917A  997 
Hewson  v.  Shelley— [1914]    2 

Ch.  13   1917B  1119 

Hibben,    ConsSet    v.— 272    111. 

508    1918A  1197 

Hieeke    v.    Hiecke — 163    Wis. 

171     1918B     497 

Higdon,   Willard  v. — 123  Md. 

447    19160     339 

Higgins,       Holman       v. — 134 

Tenn.  387   1917E     515 

Highland    Hospital,    Cook    v. 

—168  N.  Car.  250 .-  19170     158 

Highland    Park,    Detroit    v. — 

186  Mich.  166   1917E     297 

Highley,    Lancashire,    etc.    E. 

Co.  v.— [1917]  A.  C.  352..  1917D  200 
Hightower  v.  Union  Savings, 

etc.  Co.— 88  Wash.  179 1918A    489 

Hihn-Hammond    Lumber    Co. 

V.  Elsom— 171  Cal.  570 19170     798 

Hill  V.  Boland— 125  Md.  113.  1917A  46 
Hill  V.  Norton— 74  W.  Va.  428  1917D  489 
Hill   V.   Purdy — 46   App.   Cas. 

(D.  C.)   495    1918B     847 

Hill  V.  Eae— 52  Mont.  378...  1917E  210 
Hillis  V.  Kessinger — 88  Wash. 

15     1917D     757 

Hillsboro       Garden       Tracts, 

Cooper  v.— 78  Ore.   74 1917E     840 

Hilmen    v.    Nygaard — 31    N. 

Dak.   4iy    1917A     282 

Hilton,  In  re— 48  Utah  172..  1918A  271 
Hinck  V.  Cohn— 86  N.  J.  Law 

615     1916D     200 

Hinton     Foundry,     etc.      Co., 

Hobbs  v.— 74  W.  Va.  443 .  .  1917D  410 
Hiscock      V,      Phinney  —  81 

Wash.   117    1916E  1044 

Hitchcock,     Murphy    v.  —  22 

Hawaii  665  1917B     976 

Hitchman    Coal,    etc.    Co.    v. 

Mitchell— 245  U.  S.  229.  ...1918B  461 
Hite    V.    Reynolds  — 163    Ky. 

502   1917B     619 

Hobbs     V.     Hinton     Foundry, 

etc.  Co.— 74  W.  Va.  443 1917D    410 

Hobbs  V.  Monarch  Eefrigerat- 

ing  Co.— 277  111.  326 1918A     743 

Hobbs  Estate,  Denver  v. — 58 

Colo.  220   19160     823 

Hockett     V.     Hockett— 34     S. 

Dak.  586   1917A     938 

Hocking  Valley  E.  Co.  v.  Pub- 
lic Utilities  Commission — 92 

Ohio  St.  9 1917B  1154 

Hodges,  Arkansas  State  Fair 

Assoc,  v.— 120  Ark.  131  ...  19170  829 
Hodges    v.    Baltimore    Engine 

Co.— 126  Md.  307 19170     766 

Hodgson     V.     Knoblauch — 268 

111.   315    1917E     653 

Hodson,  Merrill  v. — 88   Conn. 

314    1916D     917 


Hogan  V.  Nashville  Inter- 
urban    R.     Co. — 131     Tenn. 

244    

Hogg,  Fremd  v.— 68  Fla.  331. 
Hogue,    Hood    v.— 131    Tenn. 

421    

Hoke  V.   Glenn— 167  N.  Car. 

594   

Holden    v.    Circleville    Light, 

etc.  Co. — 216  Fed.  490 

Holden  v.   Farmers,  etc.   Nat. 

Bank— 77  N.  H.  535 

Holgate,   Pindel   v.— 221  Fed. 

342    

Hollinger  v.  Missouri,  etc.  R. 

Co.— 94  Kan.  316 

HoUinshead      v.      Hazelton — 

[1916]  A.  C.  428 

HoUoman  t.  Southern  R.  Co. — 

172  N.  Car.  372 

Holman  r.  Higgins — 134  Tenn. 

3S7   

Holmberg  v.  Jacobs — 77  Ore. 

246    

Holstein        v.       Benedict — 22 

Hawaii,  441    

Holt    County    v.    Tomlinson — 

98  Neb.  777 

Home,   Lambert   v.— [1914]    3 

K.  B.  86 

Home    Ins.    Co.    v.    Coker — 43 

Okla.  331 

Home  Ins.   Co.,  McGraw  v. — 

93  Kan.  482 

Home  Ins.  Co.,  Pittsburgh,  etc. 

R.  Co.  v.— 183  Ind.  355 

Home  Land,  etc.  Co.  v.  Routh 

—123   Ark.   360 

Homesteaders,    Edmiston   v. — 

93  Kan.  485 

Honaker,  New  River,  etc.  R. 

Co.  v.— 119  Va.  641 

Hood  V.  Hogue— 131  Tenn.  421 

Hood    V.   Moffett— 109     Miss. 

757    

Hoopes       V.       Creighton — 100 

Neb.  510 

Hopkins      v,     Richmond— 117 

Va.   692 

Hopper,    Becker    v. — 22    Wyo. 

237    

Hopper,   Becker   v. — 23    Wyo. 

209    

Horlock  T.  Beal— [1916]  A.  C. 

486    

Home  V.  Atlantic  Coast  Line 

R.  Co.— 170  N.  Car.  645 

Horner,    Wade     v. — 115     Ark. 

250    

Horton,  Matter  of— 217  N.  Y. 

363    

Horton  v.  Dickie — 217  N.  Y. 

363    

Horton   v.   Southern   R.   Co. — 

170  N.  Car.  383 

Hoskins      v.      Dickerson — 239 

Fed.  275    


CASES  REPORTED.  xxiii 

FAGB  PAGE 

Hotchkiss,  Wilson  r. — 171  Cal. 

617    1917B     570 

19160  1162       Houghton        Circuit       Judge, 
1917B     155  Nichols  v.— 185  Mich.  654..   1917D     100 

Houlihan     t.     Morrissey — 270 

1916D     383  111.  66 1917A     364 

Houser    v.    Fayssoux — 168    N. 

1916E     250  Car.   1    1917B     835 

Howard  v.  Acme  Brewing  Co. 

1916D     443  —143  Ga.  1 1917A      91 

Howard  v.  McPhail— 37  R.  I. 

1917B      23  21    1917A     186 

Howard  v.  Nashville,  etc.  R. 

19160     983  Co.— 133  Tenn.  19 1917A     844 

Howard     t.     Tacoma     School 

1916D     802  District— 88   Wash.    167 1917D     792 

Howell,  Matter  of— 215  N.  Y. 

1916D     615  466    1917A     527 

Howell  V.  Bee  Publishing  Co. 

1917E  1069  —100  Neb.  39 1917D    655 

Howell  V.  Wysor — 74  W.  Va. 

1917E     515  589    19160     519 

Howse  V.   State   ex  rel.  Tim- 

1917D     496  othy  v.— 134  Tenn.  67 19170  1123 

Hoyt  V.  Gillen— 181  Mich.  509.  19160     812 
1918B     941      H.  S.  Halvorson  Co.,  Stenson 

v.— 28  N.  Dak.  151 1916D  1289 

1917A    853      Hubbard  v.  Brinker- 169  Oal. 

301  1916D     171 

19160    872       Hubbell    v.    Des    Moines— 166 

Iowa  581 1916E     592 

19170     950       Huber,   North    Avenue    Bldg. 

etc.  Assoc,  v.— 270  HI.  75..  1917B     587 
1916D     227       Hubert        v.        Granzow — 131 

Minn.  361   .1917D     563 

1918A    828      Hughes,  McKee  v. — 133  Tenn. 

455* 1918A     459 

19170  1142       Hughes,  Oxweld  Acetylene  Co. 

v.— 126    Md.    437 1917C     837 

1916D    588      Hulbert  v.  Hulbert— 216  N.  Y. 

430    1917D     180 

19170     132      Hummelshime     v.     State — 125 

Mo.    563    1917E  1072 

1916D     383       Hunholtz,  Gadow  v. — 160  Wis. 

293   1917D       91 

1917E     410       Hunt   v.    Held— 90    Ohio     St. 

280    19160  1051 

1917E     847       Hunt  v.  Lewis— 87  Vt.  528...   19160     170 

Hunt   v.   Meeker  County   Ab- 
1917D  1114  stract,   etc.    Co. — 128   Minn. 

207    1916D     925 

.1916D  1041      Hunt  v.  State— 114  Ark.  239. .  1916D     533 
Hunter  v.  Bremer — 256  Pa.  St. 

1918B       35  257    1918A     152 

Hunter  v.  Colfax  Consolidated 
1916D     670  Coal   Co.— 175  Iowa     245...   1917E     803 

Hunter,    Taggart    v. — 78    Ore. 

1918A  1171  139     1918A     128 

Huntington      v.      Huntington 
1916E     167  Wharf,  etc.  Co.— 75  W.  Va. 

183    1918A     913 

1918A     611      Huntington    Wharf,  etc.    Co., 
Huntington   v. — 75    W.   Va. 

1918A     611  183    1918A     913 

Huntworth       v.       Tanner — 87 

1918A     824  Wash.  670  1917D     676 

Hurst    V.   Picture    Theatres — 
19170     776  [1915]   1  K.  B.  1 191 GD     457 


XXIT 


CASES  REPORTED. 


PAGE 

Husband  v.  Linehan — 168  Ky. 

304    1917D     954 

Hussey,    Arnold    v. — 111    Me. 

224   19160     715 

Huston,   ChalTet   v. — 43   App. 

Cas.  (D.  C.)  77 1916C  1180 

Hatchings  v.  Clerk — 225  Mass. 

483    19170     979 

Hutchinson  Ice  Cream  Co.  v. 

Iowa— 242  U.  S.  153 1917B     643 

Huttig  Sash,  etc.  Co.,  Free- 
man v.— 150  Tex.  560 1916E     446 

Button  V.  States  Accident  Ins. 

Co.— 267  111.  267 19160     577 

Button  V.  Wattera — 132  Tenn. 

527    19160     433 

Hyattsville,  Lyon  v. — 125  Md. 

306    1916E     765 

Hydraulic  Supply  Co.,  Charing 

Cross  Electricity  Supply  Co. 

v.— [1914]  3  K.  B.  722 19160  1045 

Hyland     v.     Oregon     Hassam 

Paving  Co.— 74  Ore.  1 1916B     941 

Hynes,  Fontana    v.— 169    Cal. 

240  1916D     233 

Idaho  Power,  etc.  Co.  v.  Blom- 

quist— 26   Idaho   222 1916E     282 

Idaho    R.    etc.    Co.,    Jennings 

v.— 26  Idaho  703 1916E     359 

Ideal  Lighting  Co.,  Mahlstedt 

v.— 271    111.    154 1917D     209 

Ideal    Tea    Co.   v.   Salem— 77 

Ore.    182    1917D     684 

Ilgenfritz,   State  t.— 263   Mo. 

615   19170     366 

Illinois     Central     B.     Co.,    In 

re— 138   La.    81 19170     935 

Illinois  Central  R.  Co.,  Burk- 
enroad  Goldsmith  Co.  v. — 
138  La.  81 19170     935 

Illinois  Central  R.  Co.,  Byram 

v.— 179  Iowa    631 1918A  1067 

Hlinois     Central     R.     Co.     v. 

Causey— 106  Miss.  36 1917A  1281 

Illinois  Central  R.  Co.  v.  Rog- 
ers—162   Ky.   535 1916E  1201 

Imler  v.  Northern  Pacific   R. 

Co.— 89  Wash.  527 1917A     933 

Independent  Pub.  Co.,  In  re — 

240  Fed.  849 19170  1084 

Independent      Pub.      Co.      v. 

United  States— 240  Fed.  849  19170  1084 

Industrial  Accident  Commis- 
sion, Ehrhart  v.— 172  Cal. 
621    1917E     465 

Industrial  Accident  Commis- 
sion, Kimbol  V. — 173  Cal. 
351    1917E     312 

Industrial  Board,  Chicago  Dry 

Kiln  Co.  v.— 276  111.  556 1918B     645 

Industrial       Board,       Eugene 

Dietzen  Co.  v.— 279  111.  11 . .   1918B     764 

Industrial  Board,  Uphofif  v. — 

271    111.   312 1917D         1 

Industrial  Board,  Victor  Chem- 
ical Works  v.— 274  111.  11..   1918B     627 


PAGE 

Industrial  Commission,  Mutual 

Film     Corp.    v.— 236     U.    S. 

230    19160     296 

Industrial  Commission,  North- 
western    Fuel     Co.    V. — 161 

Wis.   450 1918A     533 

Industrial      Commission,     Pel- 

lett  v.— 162  Wis.  596 1917D     884 

Industrial    Commission,    State 

ex  rel.  Munding  v. — 92  Ohio 

St.    434   1917D  1162 

Industrial     Ins.     Commission, 

Stertz  v.— 91  Wash.  588 1918B     3o4 

Ingalls,  Meehan  v. — 91  Wash. 

86   1918B       71 

Ingram's  Adm'x  v.  Rutland  R. 

Co.— 89  Vt.  278 1918A  1191 

Ingram-Day     Lumber     Co.    v. 

Rodgers— 105  Miss.  244 1916E     174 

Ingram-Dekle    Lumber    Co.    v. 

Geiger- 71  Fla.  390 1918A     971 

Inland  Lines,  Sharrow  v. — 214 

N.  Y.  101 1916D  1236 

Inlow,  State  v.— 44  Utah  485.  1917A  741 
Inscho  V.  Mid-Continent  De- 
velopment Co. — 94  Kan.  370  1917B  546 
Insurance     Co.     v.     Baer — 94 

Kan.  777 1917B     491 

Insurance  Co.,  Rosenthal  v. — 

158  Wis.  550 1916E     395 

International    School   District, 

Anderson     v. — 32    N.    Dak. 

413    1918A     506 

Interstate      Business       Men's 

Ace.  Assoc,  Lundberg  v. — 

162  Wis.  474 1916D     667 

Iowa,    Hutchinson   Ice    Cream 

Co.  v.— 242  U.  S.  153 1917B     643 

Iowa  Telephone  Co.,  State  ex 

rel     Shaver     t. — 175     Iowa 

607    1917E     5,39 

Irish's  Will.  In  re— 89  Vt.  56.  .  1917C  1154 
Irvine  v.  Barrett— 119  Va.  587  19170       62 

Jackson,  Canadian  Pacific  Ry. 

v.— 52  Can.  Sup.  Ct.  281 19160     912 

Jackson  v.   Georgia  Fire   Ins. 

Co.— 189  Ala.  495 1917A     807 

Jackson.    Louisville,    etc.      R. 

Co.  v.— 123  Ark.  1 1918A     604 

Jackson  v.  Maxwell — 113  Me. 

366    19170     966 

Jackson  v.  State — 213  N.  Y. 

34  1916E  779 

Jackson  Countv,  Leathern  v. — 

122  Ark.   114 1917D     438 

Jacobs,  Comstock's  Adminis- 
trator v.— 89  Vt.  133 1918A     46.5 

.Jacobs,  Holmberg  v. — 77  Ore. 

246    1917D     496 

Jacobs,        Twentieth        Street 

Bank  v.— 74  W.  Va.  525 1917D     695 

Jacob's      Pharmacv      Co.      v. 

Luckie— 143  Ga.'457 1917A  1105 

Jacobson   v.    Chicago,   etc.   R. 

Co.— 132  Minn.  181 1918A     355 

Jacobus  V.  Colgate — 217  N.  Y. 

235    1917E     369 


CASES  REPORTED. 


PAGE 

James  v.  State— 193  Ala.  55. .  1918B  119 
James   Clark  Distilling  Co.  x. 

American  Express  Co. —  242 

U.  S.  311 1917B     845 

James  Clark  Distilling  Co.  v. 

Western  Maryland  R.  Co. — 

242  U.  S.  311 1917B     845 

Jamesson  v.  Citizens  National 

Bank— 130  Md.  75 1918A  1097 

Jamieson     v.     Edmonton — 54 

Can.  Sup.  Ct.  443 1918B     379 

Janecke,  Willett  v. — 85  Wash. 

654    1917B     351 

J.  D.  Thompson  Carnation  Co., 

Thompson  v.— 279  111.  54...  1917E  591 
Jefferson  Township.  New- 
comer v.— 181  Ind.  1 1916D     181 

Jennings    v.     Idaho    R.,    etc. 

Co.— 26  Idaho    703 1916E     359 

Jensen  v.  Lawrence — 94  Wash. 

148 1917E     133 

Jensen,  Southern  Pacific  Co.  v. 

—244  U.  S.  205 1917E     900 

Jensen,   WoU  v.— 36  N.  Dak. 

250    1918B     982 

Jernigan.  W.  T.  Smith  Lumber 

Co.  v.— 185  Ala.   125 1916C     654 

Jin  Fuey  Moy,  United  States 

v.— 244  U.  S.  394 1917D     8.34 

Jinkiaway   v.    Ford — 93    Kan. 

797    1916D     321 

J.    L.    Robinson    Construction 

Co.,   Baltimore   v.— 123   Md. 

660 1916C     425 

John  L.  Roper  Lumber  Co.  v. 

Richmond     Cedar     Works — 

168  N.  Car.  344 1917B     992 

Johnson  v.  Aetna  Life  Ins.  Co. 

—158  Wis.   56 1916E     603 

Johnson,  Brown  v.— 43  Utah  1  1916C  321 
Johnson,    Cadillac    Motor    Car 

Co.  v.— 221  Fed.  801 1917E     581 

Johnson,    Crane  v. — 242  U.  S. 

339 1917B     796 

Johnson  v.  Florida  East  Coast 

R.  Co.— 66  Fla.  415 1916C  1210 

Johnson  v.  Libby — 111  Me. 

204  1916C  681 

Johnson  v.  Little— 176  Ky.  505  1918A  70 
Johnson,      McNaughton      v. — 

242  U.   S.   344 1917B     801 

Johnson,  Moreau  Lumber  Co. 

v.— 29   N.  Dak.   113 1917C     290 

Johnson,  Rohan  v. — 33  N.  Dak. 

179    1918A     794 

Johnson.  Smith  v. — 219  Mass. 

142 1916D  1234 

Johnson    v.    Whilden — 166    X. 

Car.  104  1916C     783 

Johnson,        Williams       v. — 50 

Mont.    7 1916D     595 

Johnson-Carey    Co.,    Gist    v. — 

158   Wis.   188 1916E     460 

John  Stewart  &  Son  v.  Long- 
hurst— [1917]  A.  C.  249 1917D     196 

Joliet,  MeCracken   v. — 271  Dl. 

270 1917D     144 


PAGE 

Jonah,  Marvel  v. — 83  N".  J.  Eq. 

295  1916C  185 

Jonas  V.  South  Covington,  etc. 

St.  R.  Co.— 162  Ky.  171 1916B  965 

.Tones,  Crismond's   Adm'x  v. — 

117   Va.   34 1917C     155 

Jones  V.  Dusman — 246  Pa.  St. 

513    1916D     472 

Jones  V.  Jones — [1916]  2  A.  C. 

481    1917A  1032 

Jones  V.  Western  Union  Tele- 
graph Co.— 101  S.  Car.  181..  19170  543 
Joplin  Mercantile  Co.  v.  United 

States— 213  Fed.  926 19160     470 

Jordan,  Albert  Pick  &  Co.  v. — 

169  Cal.  1 19160  1237 

Jordan,    Kansas    City    v. — 99 

Kan.    814 1918B     273 

Jordan,    Mayor,    etc.    v. — 142 

Ga.   409 19160     240 

Jordan,    Russell    v. — 58    Colo. 

445 19160     760 

Jorgensen    v.    Gessell    Pressed 

Brick  Co.— 45  Utah    31 19170     309 

Joseph,  Marney  v.— 94  Kan.  18  1917B  225 
Josephs   V.   Briant — 115     Ark. 

538    1916E     741 

Jost,  State  ex  rel.  Reynolds  v. 

—265  Mo.  51 1917D  1102 

Jowett    V.    Wallace — 112    Me. 

389 1917A     754 

J.  Samuels  &  Brother,  Ward  v. 

—37  R.  I.  438 1918A     783 

Judd  &  Detweiler  v.  Gittings 

— 43  App.  Cas.  (D.  C.)  304.  .  1917B  518 
Just   T.   Littlefield— 87    Wash. 

299   1917D     705 

Juvenile  Court,  Board  of  Chil- 
dren's      Guardians       v. — 43 

App.  Cas.  (D.  C.)  599 1916E  1019 

J.  W.  Putts  Co.,  Weilbacher  v. 

—123  Md.  249 19160     115 

Kachelmacher     v.     Laird — 92 

Ohio   St.   324 1917E  1117 

Kahle,  Alderson  v.  —73  W.  Va. 

690 1916E     561 

Kain,  McCabe  v.— 250  Pa.  St. 

444 1917D     378 

Kalamazoo  Circuit  Judge,  Ben- 
nett v.— 183  Mich.  200 1916E     223 

Kalana,  In  re- 22  Hawaii  96.  1916D  1094 
Kalich  V.  Knapp— 73  Ore.  558.  1916E  1051 
Kanawha-Gaulev  Coal,  etc.  Co. 

V.  Sharp— 73  W.  Va.  427...  1916E  786 
Kane,  People  v.— 213  N.  Y.  260  19160  685 
Kansas  ex  rel.  Brewster,  Wear 

v.— 245  U.  S.  154 1918B     586 

Kansas     City     v.     Jordan — 99 

Kan.  814 1918B     273 

Kansas    City,    State    ex    rel. 

Meek  v.— 93  Kan.  420 1916E         1 

Kansas  City  Southern   R.  Co., 

Excelsior  Products  Mfg.  Co., 

V.  263  Mo.   142 1917B  1047 

Kapiolani  Estate  v.  Atcherley 

—238  U.  S.  119 1916E     142 


CASES  KEPOETED. 


FAQS 

Karvonen,    Commonwealtli    ▼. 

—219  Mass.  30 1916D     846 

Kaufman  v.  Murray — 182  Ind. 

372 1917A     832 

Kaufman   v.   United   States — 

212  Fed,  613.. 19160     466 

Kaukauna,     Connell     v. — 164 

Wis.   471 1918A     247 

Kccler,  State  v.— 54  Mont.  205  1917E  619 
Keith,  State  ex  rel.  Thatcher 

v.— 37  Nev.   452 1917A  1276 

Keller,  Klein  v. — 42  Okl.  592.  1916D  1070 
Kelley,  Milbourne  v. — 93  Kan. 

753 1916D     389 

Kellogg,  Matter  of— 214  N.  Y. 

460 1916D  1298 

Kelly,  Douglas  &  Co.  v.  Sayle 

—19  Brit.  Col.  93 1916E     444 

Kelly,  First  State  Bank  v.— 

30  N.  Dak.  84 1917D  1044 

Kelly  V.  Santa  Barbara  Con- 
sol.  E.  Co.— 171  Cal.  415. .. .  1917C  67 
Kelly  V.  Weaver— 77  Ore.  267.  1917D  611 
Kennedy,  Louisville  E.  Co.  v. 

—162  Ky.  560 ldl6E     996 

Kennedy    v.    McMurray — 169 

Cal.    287 1916D     515 

Kennedy  v.   State — 117    Ark. 

113    1917A  1029 

Kenner  v.  State— 121  Ark.  95  1917D  657 
Kenney  v.  Seaboard  Air  Line 

E.  Co.— 167  N.  Car.  14 1916E    450 

Kenosha  Home  Telephone  Co., 

State  v.— 158  Wis.  371 1916E     365 

Kentucky  Highlands  E.  Co.  v. 

Creal— 166   Ky.   469 19170  1205 

Kessinger,  Hillis  v. — 88  Wash. 

15 1917D     757 

Kessler,  Matter  of — 26  Idaho 

764 1917A    228 

Ketelsen  V.  Stilz— 184  Ind.  702  1918A  965 
Keystone  Lime  Co.,  Alabama 

Power  Co.  v.— 191  Ala.  58..  19170  878 
Kidd,   Williams  v.— 170    Cal. 

631 1916E     703 

Kidwell,    Eyall    v.— [1914]    3 

K.  B.  135 19160     815 

Kiefer    Oil,    etc.    Co.    v.    Mc- 

Dougal— 229  Fed.  933 1916D     343 

Kiefner,  Anthony  v. — 96  Kan. 

194 191KE     264 

Kilmer,  State  v.— 31  N.  Dak. 

442    1917E     116 

Kimbol  v.  Industrial  Accident 

Commission— 173  Cal.  351..  1917E  312 
Kimmell,    Deputy    v. — 73    W, 

Va.  595 1916E     656 

Kimmins  v,  Montrose — 59  Colo. 

578 1917A     407 

King  V.  Cooney — Eckstein  Co. 

—66  Fla.  246 1916C     163 

King,  Lemmon  v. — 95  Kan,  524  1917E  401 
King  V.  Viscoloid  Company — 

219   Mass.   420 1916D  1170 

King    County,    Gregg    v. — 80 

Wash.  196 19160     135 

Kingfisher    Commercial    Club, 

Marth  v.— 44  Okla.  514 1917E     235 


PAGE 

Kinney,    Pittsburgh,    etc.    R. 

Co.  v.— 95  Ohio  St.  64 1918B     286 

Kirksville,  Barnes  v. — 266  Mo. 

270   19170  1121 

Klassner,  State  v. — 19  N.  Mex. 

474 1917D     824 

Klein  v.  Keller— 42  Okla.  592  1916D  1070 
Klein  v.  Maravelas — 219  N.  Y. 

383 1917B     273 

Kleist   V.  Breitung— 232    Fed. 

555   1917E  1014 

Klekamp  v.  Klekamp — 275  HI. 

98 1918A     663 

Kline  v.   Harris— 30   N.  Dak. 

421    1917D  1176 

Klinker,      Trenholm      ▼.—108 

Miss.  263 1917E     289 

Klotz  V.  Pan-American  Match 

Co.— 221  Mass.  38 1917D     895 

Knaff    V.    Knoxville    Banking 

etc.  Co.— 133  Tenn.  655 19170  1181 

Knapp,  Kalich  v.— 73  Ore.  558  1916E  1051 
Kneeland,  Scandinavian  Amer- 
ican  National   Bank  v. — 24 

Manitoba  L.  E.  168 1917B  1177 

Knickerbocker  Ice  Co.,  Carroll 

v.— 218  N.  Y.  435 1918B     540 

Knight,  State  ex  rel.  Attorney 

General  v.— 169  N.  Car.  333  1917D  517 
Knight  Turpentine  Co.,  Crys- 
tal Eiver  Lumber   Co.   v. — 

69  Fla.  288 1917D     574 

Knights  of  Maccabees,  Thomas 

v.— 85  Wash.  665 1917B     804 

Knoblauch,    Hodgson    v. — 268 

111.   315 1917E     653 

Knoll  v.  Commercial  Trust  Co. 

—249  Pa.  St.  197 19160     988 

Knotts,  Anderson  v. — 181  Ind. 

434 1916D     868 

Knowles    v.    State — 113   Ark. 

257 19160     568 

Knox    County,    Heiskell    v. — 

132  Tenn.   180 1916E  1281 

Knox  Terpezone  Co.,  Travis  v. 

—215  N.  Y.  259 1917A     387 

Knoxville    Banking    etc.    Co., 

Knaff  v.— 133  Tenn.  655 19170  1181 

Knuth,  Hannah  v.  — 161  Wis. 

467 19170     681 

Koehler,   Fowler   v. — 43    App. 

Cas.  (D.  C.)  349 1916E  1161 

Koeller  v.  Wisconsin  E.  etc.  Co. 

—130  Minn.  265 19170       71 

Koeln,  St.  Louis  Lodge  etc.  v. 

—262  Mo.  444 1916E     784 

Koonovsky    v.    Quellette — 226 

Mass.   474 1918B  1146 

Korab  v.  Chicago,  etc.  E.  Co. 

—165  Iowa,   1 1916E     637 

Kramer  v.  United  Statee — 245 

U.  S.  366 1918B     856 

Krebs  v.  Philadelphia  Life  Ins. 

Co.— 249  Pa.  St.  330 1917D  1184 

Kreglinger    v.    S.    Samuel    & 

Eosenfeld— [1915]    1   K.   B. 

857    19170     215 


CASES  EEPOBTED. 


PAGE 

Krickati  v.  Williams — 36  E.  I. 

85     19160  1145 

Krigbaum,  Arnold  v, — 169  Cal. 

143 1916D     370 

Kriss  V.  Union  Pacific  R.  Co. — 

100  Neb.  801 1918A  1122 

Kuhn  V.  Buhl— 251  Pa.  St.  348  1917D  415 
Kuhn    V.    Milwaukee    Electric 

R.  etc.  Co.— 158  Wis.  525...  1916E  678 
Kulesh,  Snyder  v. — 163   Iowa 

748 19160     481 

Kunin,    Building    Commission 

v.— 181   Mich.  604 19160     959 

Kupersmith,  Fischheimer  v. — 

258  111.  392 1917A  1195 

Kutz,  Terminal  Taxieab  Co.  v. 

—241  U.  S.  252 1916D     765 

Kutzner  v.   Meyers — 182  Ind. 

669    1917A     872 

Labere  v.  Root— 87  Wash.  146  19170  1037 
La  Coste,  Scanlan  v. — 59  Colo. 

449 1917A     254 

Ladies'     Benevolent     Society, 

Spokane  v.— 83  Wash.  382.  191OT  367 
Ijaird,     Kachelmacher     v. — 92 

Ohio  St.  324 1917E  1117 

Laird,  Northern  Central  E.  Co. 

v._l24  Md.  141 1916D  1030 

Lake  Tahoe  R.  etc.  Co.  v.  Rob- 
erts—16S  Cal.  551 1916E  1196 

Lalor  V.  New  York— 208  N.  Y. 

431   1916E     572 

Lamar  v.  Crcsby- 162  Ky.  320  1916E  1033 
Lamar,  Lamar  Township  v. — 

261   Mo.   171 .' 1916D     740 

Lamar   Township   v.   Lamar — 

261  Mo.  171 1916D     740 

Lambert    v.    Home— [1914]   3 

K.  B.  86 19160     872 

Lam  Fung  Yen  v.  Frick— 233 

Fed.    393 19170     232 

Lamoure   County,   Malin   v. — 

27  N.  Dak.  140 19160     207 

Lamro   Townsite   Co.   v.   Bank 

of  Dallas— 35  S.  Dak.  164...  19170  346 
Lancashire  etc.  R.  Co.  v.  High- 
ley— [1917]  A.  C.  352 1917D     200 

L.  &  E.  Wertheimer,  Citizens 

Bank  Building  v. — 126  Ark. 

38 1917E     520 

Land,  Teat  v.— 135  La.  782...  19160  1208 
Lane  v.  Au  Sable  Electric  Co. 

—181  Mich.  16 19160  1108 

Lauge,  Cleveland  v. — 92  Ohio 

St.   493 1917D  1134 

Lange,    Maynard    v. — 71    Ore. 

560   1916E     547 

Langford     v.    National    Life, 

etc.  Ins.  Co.— 116  Ark.  527.  1917A  1081 
Langley,  Mitchell  v. — 143  Ga. 

827    1917A     469 

La    Point,    State    v. — 87    Vt. 

115 19160     318 

La  Porta  v.  Leonard — 88  N.  J, 

Law  663   1917E     167 

Larej',  Firemen's  Ins.  Co.  v. — 

125  Ark.  93 1917B  1225 


PAGE 

Larkin  v.  Superior  Court — 171 

Cal.  719  1917D     670 

Larson,    Cortland   v. — 273   111. 

602 1916E     775 

Lasecki,    State     v. — 90    Ohio 

St.   10    19160  1182 

Laue    V.   Grand    Fraternity — 

132  Tenn.  235 1917A    376 

Laughlin      v.      Portland — 111 

Me.  486   19160     734 

Lawrence     t.    EUer — 169    N. 

Car.   211    1917D     546 

Lawrence,       Jensen       v. — 94 

Wash.   148    1917E     133 

Lawrence,  State  v. — 108  Miss. 

291    1917E     322 

Laws,    Bennett    v. — 59     Colo. 

290    1917A     240 

Law     Union,     etc.     Ins.     Co., 

Mangrum    &    Otter    v. — 172 

Cal.  497   1917B     907 

Laymaster  v.  Goodin — 260  Mo. 

CIS    19160    452 

Leach    v.    Dolese — 186     Mich. 

695    1917A  1182 

Leachman's        Adm'r,        Gish 

Banking     Co.    v.— 163     Ky. 

720    1916D     525 

Leathern    v.    Jackson    County 

—122  Ark.  114 1917D     438 

Leavea  v.  Southern  E.  Co. — 

266  Mo.  151 1918B       97 

Leavenworth,  Great  Northern 

R.  Co.  v.— 81  Wash.  511 1916D     239 

Le  Clerc  v.  Philpott— 169  Iowa 

555    1917B     839 

Ledy  v.  National  Council — 129 

Minn.    137 1&16E     486 

Lee     V.   Oates — 171     N.    Car. 

717    1917A     514 

Lee  V.  State— 16  Ariz.  291...   1917B     131 

Lee  v.  State— 69  Fla.  255 1917D     236 

Lefort,  Succession  of — 139  La. 

51    1917E     769 

Lehigh  Coal,  etc.  Co.,  Eastern 

Pennsylvania   Power  Co.  v. 

—246  Pa.  St.  72 1916D  1000 

Lehman,  State  v. — 131  Minn. 

427    1917D     615 

Leitz  V.  New  Orleans — 136  La. 

483    1916D  1188 

Lemmon  v.  King— 95  Kan.  524  1917E  401 
Leno  V.  Stewart— 89  Vt.  286.  1917A  509 
Lens,  Riggle  v.— 71  Ore.  125..  19160  1083 
Leonard.  La  Porta  v. — 88  N. 

J.    Law    663 1917E     167 

Leroy,   Streudle   v.— 122  Ark. 

189    1917D     618 

Leslie     V.     Sheill— [1914]      3 

K.   B.   607 19160     992 

Lester,  Matter  of  Estate  of — 

169  Iowa  15 1917B     255 

Leuch,  State  ex  rel.  Ilslev  v. 

—156   Wis.   631 '.  ...   1917B     778 

Levi  V.  State— 182  Ind.  188..  1917A  654 
Levy,  May  v. — 88  N.  J.  Law 

351    19170     619 

Lewis,  Hunt  v.— 87  Vt.  528..  19160     170 


CASES  REPORTED. 


PAGE 

Lewis  V.  Lewis— 220  Mass.  364  1917A  395 
Lewis    V.    Reed's    Executor — 

168  Ky.  559 1917D  1155 

Lewis,  State  v.— 173  Iowa  643  1918A  403 
L.   Fish    Furniture    Co.,   Lich- 

tenstein  v.— 272  111.  191 ..  .  1918A  1087 
Libby,    Johnson    v. — 111    Me. 

204    1916C     681 

Libert,    Dwyer    v.— 30    Idaho 

576    1918B     973 

Lichtcnstein  v,  L.  Fish  Fur- 
niture Co.— 272  111.  191....  1918A  1087 
Liggett,   etc.    Tobacco    Co.    v. 

Cannon— 132   Tenn.  419 1917A     179 

Lighthipe,      Glorieux      v. — 88 

N.  J.  Law    199 1917E     484 

Lihme,  People   ex  rel.  Matth- 

iessen  v.— 269  111.  351 1916E     959 

Lillienkamp  v.   Rippetoe — 133 

Tenn.   57    1917C     901 

Lindell    v.   Peters— 129    Minn. 

288    1916B  1130 

Lindsey  v.  State— 66  Fla.  341.  1916C  1167 
Lindstedt,    Love    v. — 76    Ore. 

66    1917A     898 

Linehan,       Husband     y. — 168 

Ky.  304  1917D  954 

Linn,  State  ex  rel.  Burns  v. — 

49  Okla.  526 1918B  139 

Lipkin,  State  v.— 169  N.  Car. 

265    1917D     137 

Lister,  Gottstein  v. — 88  Wash. 

462    1917D  1008 

Litchfield,  Riley  v. — 168  Iowa 

187  1917B  172 

Little,  Johnson  v. — 176  Ky. 

505  1918A   70 

Little     Cahaba     Coal    Co.    v. 

Aetna    Life     Ins.    Co.— 192 

Ala.   42    1917D     863 

Littlefield        v.        Bowen— 90 

Wash.  286 1918B     177 

Littlefield,  Just  v.— 87   Wash. 

299    1917D     705 

Little  Horse  Creek  Cattle  Co., 

Olds  v.— 22  Wyo.  336 1917C     120 

Little  Rock  Chamber  of  Com- 
merce,  Gregg   V. — 120   Ark. 

426    19170     784 

Llandudno  Coaching,  etc.  Co., 

Williams  v.— [1915]  2  K.  B. 

101    1918B     682 

Lloyd     V.     Cootes     &     Ball— 

[1915]   1  K.  B.  242 1916E     434 

Lloyd,    Vidmer    v. — 193     Ala. 

386    1917A     576 

Loach,  British  Columbia  Elec. 

R.     Co.     v.— [1916]     A.     C. 

719    1916D     497 

Loewenherz  v.  Merchants,  etc. 

Bank— 144   Ga.   5.56 1917E     877 

Logan,  Ex  p.— 185  Ala.  525.  ..  1916C  405 
Logue,  Wood  v.— 167  Iowa  436  1917B  116 
London,   etc.   R.   Co.,   Withers 

v.— [1916]    2  K.  B.   772 1918B     341 

London  Association  v.  Green- 
lands— [1916]  2  A.  C.  15...   1916E     535 


PAGE 

London     County     Council     v. 

Allen— [1914]  3  K.  B.  642..   1916C     932 

London  Graving  Dock  Co., 
Earwicker  v.— [1916]  1 
K.  B.  970   1918B     665 

Long,  State  ex  rel.  Lanng  v. 

—136  La.   1 1917B     240 

Longhurst,  John  Stewart  & 
Son  v.— [1917]  A.  C.  249...   1917D     196 

Longino,   State   v. — 109   Miss. 

125    1916E     371 

Longmire    v.    State — 75    Tex. 

Crim.  616    1917A     726 

Longyear     v.     Hardman — 219 

Mass.  405   1916D  1200 

Lord  v.  Denver— 58  Colo.  1 .  . .    1916C     893 

Lord,  Shaw  v.— 41  Okla.  347. .   1916C  1147 

Lorick   v.  Seaboard  Air   Line 

Ry.— 102  S.  Car.  276 1917D     920 

Louden  v.  Cincinnati — 90  Ohio 

St.  144   19160  1171 

Louisiana      State     Board      v. 

Tanzmann— 140    La.    756...   1917E     217 

Louisiana,  etc.  R.  Co.,  State 
ex  rel.  Mayor,  etc.  v. — 135 
La.  14 19160  1170 

Louisville,  Harris  v. — 165  Ky. 

559    1917B     149 

Louisville,  etc.  R.  Co.  v.  Car- 
ter—195  Ala.  382 1917E     292 

Louisville,     etc.     R.     Co.     v. 

Chambers— 165  Ky.  703 1917B     471 

Louisville,     etc.     R.     Co.     v. 

Greene— 244  U.  S.  522 1917E       97 

Louisville,  etc.  R.  Co.,  Greene 

v.— 244  U.  S.  499 1917E       88 

Louisville,  etc.  R.  Co.  v.  Jack- 
son—123  Ark.  1 1918A     604 

LouLsville,     etc.     R.     Co.     v. 

O'Brien— 163  Ky.  538 1916B  1084 

Louisville,     etc.     R.     Co.     v. 

O'Brien— 168  Ky.  403 1917D     922 

Louisville,  etc.  R.  Co.  v.  West- 
ern Union  Tel.  Co. — 195 
Ala.  124 1917B     696 

Louisville  etc.  R.  Co.  v.  West- 
ern Union  Tel.  Co. — 184 
Ind.    531 19170     628 

Louisville,  etc.  R.  Co.,  West- 
ern Union  Tel.  Co.  v. — 270 
111.  399   1917B     670 

Louisville,  etc.  R.  Co.,  West- 
ern Union  Tel.  Co.  v. — 183 
Ind.  258  1917B     705 

Louisville   R.   Co.,   Chrestle   v. 

—167  Ky.  75 19170     867 

Louisville  R.   Co.  v.  Kennedy 

—162  Ky.  560 1916E     996 

Louisville   Rv.   Co.,  Greene  v. 

—244   U.   S.   499 1917E       88 

Love    V.    Lindstedt — 76    Ore. 

66    1917A     898 

Lovcjoy    V.    Denver,    etc.    R. 

Co.— 59  Colo.  222 1916E  1075 

Lowenstein,  Heiseman  v. — 113 

Ark.   404    19160     601 

Luckie,  .Taoobs'  Pharmacy  Co. 

v.— 143   Ga.   457 1917A  1105 


CASES  EEPORTED. 


PAGE 
Lufkin  V.  Harvey — 131  Minn. 

238    1917D    '583 

Lukrawka     v.    Spring     Vallev 

Water  Co.— 169  Cal.  318.. \  1916D  277 
Lund,  Thorp  v.— 227  Mass.  474  1918B  1204 
Lundberg  v.  Interstate  Busi- 
ness Men's  Ace.  Assoc. — 162 

Wis.  474    1916D     667 

Lundy,  In  re— 82  Wash.  148..  1916E  1007 
Luthy  V.  Ream— 270  111.  170..  1917B  368 
Luttner,       Cleveland       v. — 92 

Ohio   St.   493 1917D  1134 

Lydy,  Greene  County  v. — 263 

Mo.  77    1917C     274 

Lyman,   Ewbank     v. — 170     N. 

Car.   505    1917A     272 

Lyman  v.  Thorn— 24  Wyo.  326  1918A  368 
Lyon  V.  Hyattsfield— 125  Md. 

306    1916E     765 

Lyons  v.  Grand  Trunk  E.  Co. 

—185  Mich.  417   1917D     162 

MaCauley     v.     Schurman — 22 

Hawaii    140    1916E  1206 

MaeDonough,  Ex  p. — 170  Cal. 

230    1916E     327 

MacDowell,     Matter     of — 217 

N.  Y.  454 1917E     853 

Mackay,  Bondi  v.— 87  Vt.  271  1916C  130 
Mackenzie  v.  Hare— 239  U.  S. 

299    1916E     645 

Mackintosh   v.   Bank   of   New 

Brunswick — 42      N.     Bruns. 

152    1916D     566 

Macomber,      Sotham     v. — 180 

Mich.   120    1916C     694 

Madden,    Gorman     v. — 27     S. 

Dak.  319   1916D     842 

Madson    v.    Christenson — 128 

Minn.  17    1916D  1101 

Madson,    Christenson     v. — 127 

Minn.   225    1916C     584 

Mahlstedt    v.    Ideal     Lighting 

Co.— 271    HI.    154 1917D     209 

Mahoney  Land  Co.  v.  Cayuga 

Investment    Co. — 88    Wash. 

529     1916C  1234 

Majestic  Amusement  Co.,  Fer- 
guson v.— 171  N.  Car.  663..  1917C  389 
Malakia   v.   Rhode   Island   Co. 

—36  R.  I.   149 1916C  1216 

Maiden,  Hawley  v.— 232  U.  S. 

1     1916C     842 

Maiden,    etc.    Gaslight    Co.    v. 

Chandler— 220  Mass.   1 1917A     145 

Maiden,     etc.      Gaslight     Co., 

Hanscora  v.— 220  Mass.  1..  1917A  145 
Malin    v.    Lamoure    County — 

27  N.  Dak.  140 1916C     207 

Malone  v.  Quiney— 66  Fla.  52  1916D  208 
Malone    v.    Topfer — 125     Md.  . 

157    1916E  1272 

Malsby  Co.,  Roess  v.— 69  Fla. 

15    1917C  1022 

Manchester,     Estate     of — 174 

Cal.  417  '. 1918B     227 

Manchester  Township  Super- 
visors    V.     Wayne     County 


PAGE 

Commissioners — 257  Pa.   St. 

442    1918B     278 

Mandan  Mercantile  Agency  v. 

Sexton- 29  N.  Dak.  602 1917A       67 

Manders  v.   Wilson — 235  Fed. 

878    1918A  1052 

Mangrum    &    Otter    v .    Law 

Union,     etc.    Ins.    Co. — 172 

Cal.  497   1917B     907 

Mankin   v.   Dickinson — 76    W. 

Va.  128    1917D     120 

Manning  v.  St.  Paul  Gaslight 

Co.— 129  Minn.   55 1916E     276 

Manufacturers'  Coal,  etc.  Co., 

Hall   v.— 260  Mo.   351 1916C     375 

Manufacturers'      Water      Co., 

Wadsworth   v.— 256  Pa.  St. 

106    1917E  1099 

Maravelas,   Klein    v. — 219    N. 

Y.  383    1917B     273 

Marconi   Wireless    Tel.  Co.  v. 

Commonwealth — 218     Mass. 

558    19160     214 

Marconi     Wireless     Tel.    Co., 

Schmidt   v.— 86    N.   J.   Law 

183    1918B     131 

Mariette,  Richelson  v. — 34  S. 

Dak.  573   1917A     883 

Marin  Water,  etc.  Go.  v.  Bail- 
road  Commission — 171    Cal. 

706     19170     114 

Marinette  v.  Goodrich  Transit 

Co.— 153   Wis.   92 1917B     935 

Marion  Shoe  Co.  v.  Eppley — 

181  Tnd.  219 1916D     220 

Markleton  Hotel  Co.,  Connels- 

ville.  etc.  R.  Co.  v.— 247  Pa. 

St.  565   1916E  1213 

Marks,  In  re— 138  La.  848 1917D       94 

Marks     v.    Columbia     County 

Lumber  Co.— 77  Ore.  22 1917A     30(1 

Marks     v.    Munson — 99     Colo. 

440    1917A     766 

Marks,    Stollenwerck     v. — 188 

Ala.  587   19170     981 

Marney  v.  Joseph— 94  Kan.  18  1917B  225 
Marsh,   Peuser   v.— 218   N.   Y. 

505   1918B     913 

Marshak      v.      Marshak — 115 

Ark.  51    1916E     206 

Marshall,     Cleveland,    etc.    R. 

Co.  v.— 182  Ind.  280 1917A     756 

Marshall  v.  Gordon,  243  U.  S. 

521    1918B     371 

Marth  v.  Kingfisher  Com- 
mercial Club — 44  Okla.  514.  1917E  235 
Martin     v.    Becker — 169     Cal. 

301    1916D     171 

Martineau,    Ferguson     v. — 115 

Ark.   317    1916E     421 

Marvel  v.  Jonah— 83  N.  J.  Eq. 

295    1916C     185 

Marvin,  Dale  v.— 76  Ore.  528.  19170  557 
Marx  V.  Hefner— 46  Okla.  453  1917B  656 
Marvland  Casualty  Co.,  Fen- 
sky  v.— 264  Mo.  154 1917D     963 

Marvland      Casualtv      Co.     v. 

Price— 231  Fed.  397 1917B       50 


CASES  REPOETED. 


PAGE 

Maryland  Motor  Car  Ins.  Co., 

Cottingham  v. — 163  N.  Car. 

259    1917B  1237 

Maryland  Motor  Car  Ins.  Co., 

Crowell  v.— 169  N.  Car.  35. .  1917D  50 
Mason  v.  Board  of  Managers 

—181  Mich.  347 19160     848 

Mason     v.     Bowen — 122    Ark. 

407    1917D     713 

Mason,  Castle  v.— 91  Ohio  St. 

296    1917A     164 

Mason,  Gard  v.— 169  N.  Car. 

507    1917D     281 

Mason  v.  State— 74  Tex.  Crim. 

256    1917D  1094 

Mason  v.  Western  Union  Tel. 

Co.— 169   N.  Car.   229 1917D     159 

Massaletti      v.      Fitzroy— 228 

Mass.  487   1918B  1088 

Masses  Publishing  Co.  t.  Pat- 
ten—246  Fed.  24 1918B     999 

Mastellar       v.     Atkinson — 94 

Kan.  279   1917B     502 

Mastin  v.  May— 127  Minn.  93.  1916C  493 
Matter  of  Dart— 172  Cal.  47..  1917D  1127 
Matter  of  City  of  New  York 

(Court   House)— 216    N.    Y. 

489    1917D     157 

Mattiessen,     People     ex     rel. 

Cams  T.— 269  Dl.  499 1916E  1035 

Mattson,     Person    v. — 33     N. 

Dak.  49   1918A     747 

Maupin,  Sales  v. — 35  S.  Dak. 

176    19170  1222 

Maxwell,  Jackson  v. — 113  Me. 

366   19170     966 

Maxwell    Motor   Co.,   Weaver 

v.— 186  Mieh.  588 1917E     238 

Maxwell    Motor    Sales   Corp., 

Barnes  v.— 172  Ky.  409 1917E     578 

May  V.  Levy — 88  N.  J.   Law 

351   19170     619 

May,  Mastin  v.— 127  Minn.  93  19160  493 
Maydwell     v.    Maydwell — 135 

Tenn.   1    1918B  1043 

Mayfield  v.  Wernickle  Chem- 
ical  Co.— 65  Fla.   113 1917A  1193 

Maynard    v.    Henderson — 117 

Ark.   24 1917A  1157 

Maynard    r.    Lange — 71    Ore. 

560    1916E     547 

Mavor,    Cunningham    v. — 222 

Mass.  574    19170  1100 

Mayor,  etc.  German  Evangel- 
ical, etc.  Cong,  v.— 123  Md. 

142    19160     231 

Mayor,  etc.  r.  Jordan — 142  Ga. 

409    19160     240 

Mayor,   etc.   Saulman   v. — 131 

Tenn.   427    19160  1254 

McAlindcn  v.  St.  Maries  Hos- 
pital Assoc. — 28  Idaho  657.  1918A  380 
McAndrews,  etc.  Co.  v.  Cam- 
den  National   Bank — 87   N. 

J.  Law  231 19170     146 

McAninch,  State  v. — 172  Iowa 

9G    1918A     559 


PAGE 

McArthur,     Fourth     National 

Bank  v.— 168  N.  Car.  48 1917B  1054 

MeCabe  v.  Kain — 250  Pa.  St. 

444    1917D     378 

McCall,    Helm    v.- 239    U.    S. 

175    1917B     287 

McCall,    People    ex    rel.    New 

York,   etc.   Gas  Co.  v.— 219 

N.  Y.  84 1916E  1042 

McCall  V.  State— 18  Ariz.  408.  1918A  168 
McCarthy     Improvement     Co., 

Ottumwa  V. — 175  Iowa  233.  1917E  1077 
McCarthy's    Administrator    r. 

Northfield— 89  Vt.  99 1918A     943 

McCarver  v.  Griffin — 194  Ala. 

634    19170  1172 

McCloskey,     Weigel     v. — 113 

Ark.   1    19160     503 

McClure,  Archer  v.— 166  N. 

Car.  140  19160  180 

McColgan  v.  Walter  Magee — 

172    Cal.   182 1917D  1050 

McConnell     v.     Goodwin — 189 

Ala.  390    1917A     839 

McCoy,      Farmers'      National 

Bank   v. — 42   Okla.   420 1916D  1243 

McCoy  V.  Handlin— 35  S.  Dak. 

487    1917A  1046 

McCoy  V.  McCoy — 74  W.  Va, 

64    19160     367 

McCracken    t.    Cowing  —  271 

III.   270    1917D     144 

McCiacken  v.  Joliet— 271  111. 

270 1917D     144 

McCracken  v.  Missouri  Valley 

Bridge    etc.     Co. — 96    Kan. 

353    1918B     689 

McCuUom,   Cincinnati,  etc.  E. 

Co.  v.— 183  Ind.  556 1917E  1165 

MeCullough,    Craghead    v. — 58 

Colo.  485   19160  1075 

McCurry  v.  Purgason — 170  N. 

Car.  463 1918A     907 

McDaniel,     Ex     p.— 76     Tex, 

Crim.   184    1917B     335 

McDermott       v.       Scully— 91 

Conn.  45    1917E     407 

McDevitt,     Tenement     House 

Department    v.— 215    N.    Y. 

160    1917A     455 

McDonald   v.   McLendon — 173 

N.  Car.  172    1918A  IOCS 

McDonald,      Thysell      v.— 134 

Minn.  400    19170  1015 

McDougal,  Kiefer  Oil,  etc.  Co. 

v.— 229  Fed.  933 1916D     343 

McDuffee,    Smith   v.— 72    Ore. 

276    1916D     947 

McElhinney,  Crawford  v. — 171 

Iowa  606  1917E     221 

McElligott,      Akron      v. — 166 

Iowa  297  1916E     692 

McEwen      v.      Fletcher  — 164 

Iowa    517    1916D     631 

McGahey,  Coffey  v. — 181  Mich. 

225    19160     923 

MoGarrv  v.  Superior  Portland 

Cement  Co.— 95  Wash.  412.   1918A     572 


CASES  REPORTED. 


PA6X 

McGhee  ▼.  Cox— 116  Va.  718.  1916E  842 
McGilHs,       Telford       v.— 130 

Minn.  397   1916E     157 

McGinnis  v.  Studebaker  Cor- 
poration—75  Ore.  519 1917B  1190 

McGraw    v.    Home    Insurance 

Co.— 93  Kan.  482 1916D     227 

McGregor   v.   Great   Northern 

R.  Co.— 31  N.  Dak.  471 1917E     141 

Mcintosh  V.   Wales — 21   Wyo. 

397    19160     273 

McKay,    State    v. — 137    Tenn. 

280    1917E     158 

McKay,  Yonkus  v. — 186  Mich. 

203    1917E     458 

McKee  v.  Hughes — 133  Tenn. 

455    1918A     459 

McKeemie,  Fisher  v. — 43  Okla. 

577    1917C  1039 

McKillip    V.     Farmers'     State 

Bank— 29  N.  Dak.  541 19170     993 

McKinney  t.  Adams — 68  Fla. 

208    1917B     326 

McLaughlin       v.       Sovereign 

CamiH«-97  Neb.  71 1917A       79 

McLaughlin  v.  United  Rail- 
roads—169    Cal.    494 1916D     337 

McLearn,  Grordon  v. — 123  Ark. 

496    1918A     482 

McLellan  ▼.  Fuller— 220  Mass. 

494    1917B         1 

McLemore  v.  Raine's  Estate — 

131  Tenn.  637   1916D     307 

McLendon,  McDonald  v. — 173 

N.  Car.   172 1918A  1063 

McLeod,     Thompson     v. — 112 

Miss.  383    1918A     674 

McMurray,    Kennedy    v. — 169 

Cal.  287   1916D     515 

McNaughton  t.  Johnson — 242 

U.  S.  344 1917B     801 

McPhail   V.   Denver — 59   Colo. 

248    1916E  1143 

McPhail,  Howard  v.— 37  R,  I. 

21    1917A     186 

McPherson  v.  Buick  Motor  Co. 

—217  N.  Y.  382 19160     440 

Meaher  r.   Mitchell,   112   Me. 

416    1917A     688 

Medlin    v.    County    Board    of 

Education— 167  N.  Car.  239.  1916E  300 
Meehan  v.  Ingalls — 91   "Wash. 

86 1918B       71 

Meeker,  Norman  v. — 91  Wash. 

534    1917D     462 

Meeker  County  Abstract,  etc. 

Co.,  Hunt  v.— 128  Minn.  207 

1916D     925 

Megantz,  Wolf  v. — 184  Mich. 

452    1916D  1146 

Meixell    v.     American    Motor 

Car  Sales  Co.— 181  Ind.  153.  1916D  375 
Mollis,   Pirie   &  Co..   Hawkins 

v.— 127  Minn.   393 19160     640 

Melloon,  Brown  v. — 170  Iowa 

49    19170  1070 

Memphis  v.  State  ex  rel.  Ryals 

—133   Tenn.  83    1917C  1056 


Piias 
Memphis  St.  R.  Co.  ▼.  Rapid 

Transit  Co.— 133  Tenn.  99..  19170  1045 
Merchant's    Administrator    v. 

Shry— 116  Va.  437 1916D  1203 

Merchants',  etc.  Bank,  Loew- 

enherz  v.— 144  Ga.  556 1917E     877 

Merchants',  etc.  Bank  v.  New 

First     National     Bank — 116 

Ark.  1   1917A     944 

Merchants'     Exchange,     State 

ex  rel.  Barker  v. — 269  Mo. 

346    1917E     871 

Merchants'     Union     Ins.     Co., 

Halsell  v.— 105  Miss.  268..  1916E  229 
Merrill    v.   Hodson — 88    Conn. 

314    1916D     917 

Merten's     Patents,     In     re — 

[1915]   1,  K.  B.  857 19170     215 

Merton    v.    Puffer — 157    Wis. 

576    1916D     840 

Metropolitan   Investment   Co., 

Dibbert  v.— 158  Wis.  69...  1916E  924 
Metropolitan  Life  Ins.  Co.  v. 

Nelson— 170    Ky.    674 1918B  1182 

Mettler  v.  Snow — 90  Conn.  690 

19170     578 

Mewhinney,  State  v. — 43  Utah 

135    19160     537 

Meyer  v.  Schulte— 214  N.  Y. 

361    1916E     384 

Meyers,  Kutzner  v. — 182  Ind. 

669  1917A  872 

Mial,  Davis  v. — 96  N.  J.  Law 

167    1916E  1028 

Miami  Copper  Co.  v.  State — 

17  Ariz.  179 1916E     494 

Michael,  Finch  v. — 167  N.  Car. 

322    1916E     382 

Michigan,  Brazee  v. — 241  U.  S. 

340  19170  522 

Michigan     Cent.     R.     Co.     v. 

Michigan       R.       Com. — 183 

Mich.  6 1916E     695 

Michigan    R.    Com.,    Michigan 

Cent.  R.  Co.  v.— 183  Mich. 

6    1916E     695 

Mid-Continent       Development 

Co.,  Inscho  V. — 94  Kan.  370 

1917B     546 

Middlesboro       Electric       Co., 

Smith's  Administratrix  v. — 

164  Ky.  46 1917A  1164 

Mid'lleton,  Faison  v. — 171   N. 

Car.  170 1917E       72 

Middleton  t.  Stone — 163   Ky. 

571    1917E       84 

Middleton    v.    Whitridge— 213 

N.  Y.  499 19160     856 

Milbourne  t.  Kelley — ^93  Kan. 

753    1916D     389 

Miller,  Coffey  v.— 160  Ky.  415 

19160       30 

Miller,  Columbia-Knicker- 

bocker Trust  Co.  v. — 215  N. 

Y.   191   1917A     348 

Miller      v.      Delaware      River 

Transp.  Co. — 85  N.  J.  Law 

700    19160     165 


CASES  REPORTED. 


PAGE 

Miller  V.  Dilkes— 251  Pa.  St. 

44    1917D     555 

Miller  v.  Gordon— 93  Kan.  382 

1916D     502 

Miller  v.  MUl6r— 91  Kan.  1..  1917A  918 
Miller,  Strahl  r.— 97  Neb.  820 

1917A     141 

Miller    Sawmill    Co.,    Schwa- 

bacher    Hardware    Co.    v. — 

90   Wash.    193 1918A     940 

Miller,  Steele,  etc.  Co.  v.— 92 

Ohio   St.    115 19170     926 

Mills,  Denver,  etc.  R.  Co.  v. — 

59    Colo.    198 1916E     985 

Milwaukee  Board  of  Fire  Un- 
derwriters,    Sutter    V. — 161 

Wis.  615    1917E     682 

Milwaukee     Electric    R.     etc. 

Co.,  Kuhn  v.— 158  Wis.  525.  1916E  678 
Milwaukee      Mechanics'     Ins. 

Co.  V.  Ramsey— 76  Ore.  570.  1917B  1132 
Minneapolis,   Ackeret   v. — 129 

Minn.  190   1916E     897 

Minneapolis,  etc.  R.  Co.,  In  re 

—30  N.  Dak.  221 1917B  1205 

Minneapolis,    etc.    R.    Co.    v. 

Bombolis— 241  U.  S.  211...  1916E  505 
Minneapolis,  etc.  R.  Co.,  Chris- 

topherson    v. — 28    N.    Dak. 

128    1916B     683 

Minneapolis,    etc.    R.    Co.    v. 

Douglas  County— 159  Wis. 

408    1916E  1199 

Minneapolis,      etc.      R.      Co., 

Ewart  v.— 128  Minn.  77 1916D  1047 

Minneapolis,      etc.      R.      Co., 

Greenleaf    v.— 30    N.    Dak. 

112    1917D     908 

Minneapolis,    etc.    R.    Co.    v. 

Winters— 242  U.  S.  353 1918B       54 

Minnesota,  etc.  R.   Co.,  Price 

v.- 130   Minn.   229 19160     267 

Mississippi  Railroad  Commis- 
sion V.  Mobile,  etc.  R.  Co. — 

115   Miss.    101 1918B     828 

Missouri  Athletic  Club,  State 

ex  inf.  Harvey  v. — 261  Mo. 

576    1916D     931 

Missouri,  etc.  R.  Co.  v.  Foote 

—46  Okla.   578 1917D     173 

Missouri,   etc.   R.   Co.,   Hollin- 

ger  v.— 94  Kan.  316 1916D     802 

Missouri,    etc.    R.    Co.,    State 

v.— 262    Mo.    507 1916E     949 

Missouri  Pacific  R.  Co.,  State 

v.— 96  Kan.  609 1917A     612 

Missouri    Valley    Bridge,    etc. 

Co.,  McCracken  v. — 96  Kan. 

353    1918B     689 

Mitchell,    Brown    v.— 168    N. 

Car.   312    1917B     933 

Mitchell,  Hitchman  Coal,  etc. 

Co.  v.— 245  U.  S.  229 1918B     461 

Mitchell  v.  Langley — 143  Ga. 

827    ■ 1917A     469 

Mitchell,  Meaher  v. — 112  Me. 

416    1917A     688 

Mitchell,  St.  Louis  Southwest- 
ern R.  Co.  v.— 115  Ark.  339.   1916E     317 


TAGE 

Mitchell,    Spangler    v. — 35    S. 

Dak.  335   1918A     373 

Mobile,  etc.  R.  Co.,  Mississippi 

Railroad     Commission     v. — 

115  Miss.  101 1918B     828 

Moffett,    Hood    v. — 109    Miss. 

757    1917E     410 

Mollohan  v.  Cavender — 75  W. 

Va.  36   1918A     499 

Monarch     Refrigerating     Co., 

Hobbs  v.— 277  111.  326 1918A     743 

Montgomery,  Postal  Tele- 
graph-Cable      Co.       V. — 193 

Ala.    234 1918B     554 

Montpelier,  etc.  R.  Co.,  Sayers 

v.— 90  Vt.  201 1918B  1050 

Montreuil,     Ontario      Asphalt 

Block  Co.   V. — 52   Can.   Sup. 

Ct.  541  1917B     852 

Montrose,      Kimmons      v. — 59 

Colo.    578    1917A     407 

Moody  V.  Hagen — 36  N.   Dak 

471    1918A     933 

Moody    V.     Stubbs — 94    Kan. 

250    19170     362 

Mooers,      Pattangall      v. — 113 

Me.    412    1917D     689 

Moon,     Daboll     v. — 88     Conn. 

387    1917B     164 

Moore,  In  re— 112  Me.  119...  1917A  645 
Moore  v.  Aetna  Life  Ins.  Co. 

—75  Ore.  47   1917B   1005 

Moore  v.  Paving  Improvement 

District— 122  Ark.  326 1917D     599 

Moore  v.  Rowlett— 269  111.  88 

1916E     718 

Moore    v.    Saxton — 90    Conn. 

164    19170     534 

Moorman,  Bower  v. — 27  Idaho 

162    19170       99 

Moose  V.  Board  of  Commis- 
sioners—172  N.  Car.  419...  1917E  1183 
Mooy   V.   Gallagher— 36   R.   I. 

405    1916D     395 

Moreau,    Morin    v. — 112    Me. 

471    1918A     497 

Moreau  Lumber  Co.  v.  John- 
son—29  N.  Dak.  113 19170     290 

Morehouse     v.      Shepard — 183 

Mich.  472    1916E     305 

Morel's  Administrator,  Schau- 

berger  v.— 168  Ky.  368 19170     265 

Morgan,  Barber   v. — 89   Conn. 

583    19i6E     102 

Morgan   v.   Dayton   Coal,   etc. 

Co.— 134   Tenn.   228 1917E       42 

Morgan,     State     v. — 44    Utah 

224    1916D  1279 

Morin     v,     Moreau — 112     Me. 

471    1918A     497 

Morris,       Fidelity       Mortgage 

Bond  Co.  v.— 191  Ala.  318.,  19170  952 
Morris,  Heiskell  v. — 135  Tenn, 

238    1918B  1134 

Morris  v.  Windsor  Trust  Co. — 

213  N.  Y.  27 19160     972 

Morris,    Young    v. — 47    Okla. 

743    191SB     450 


CASES  REPOETED. 


PAGX 
Morrison,  Bemot  v. — 81  Wash. 

538    1916D     290 

Morrissey,     Houlihan    v. — 270 

111.   66    1917A     364 

Morrow  v.  Bell— 170  Iowa  17.   1917D       98 
Moseley,  -Taylor   v. — 170    Ky. 

592    1918B  1125 

Mossman,   Gray   v. — 88    Gonn. 

247    1917C       27 

Motion  Picture  Patents  Co.  v. 

Universal   Film   Mfg.    Co. — 

243   U.  S.  502 1918A     959 

Mountain  States  Tel.  etc.  Co., 

Wolverton  v.— 58  Colo.  58..   1916C     776 
Mountain  Timber  Co.  v.  Wash- 
ington—243  U.  S.  219 1917D     642 

Mount     Vernon     Tel.     Co.     v. 

Franklin  Farmers'  Co-opera- 
tive Tel.  Co.— 113  Me.  46..   1917B     649 
Mullin  Seaboard  Air  Line  By. 

v.— 70    Fla.    450 1918A     576 

Munden,     Owens     v. — 168     N. 

Car.    266    1917B  1117 

Munger,   Matter  of  Estate  of 

—168  Iowa  372 1917B     213 

Munson,    Marks    v. — 59    Colo. 

440    1917A     766 

Mttrphy  v.  Fort  Edward— 213 

N.  Y.  397    19160  1040 

Murphy,      Gallagher      v. — 221 

Mass'.  363    1917E     594 

Murphy  v.  Hitchcock — 22  Ha- 
waii  665    1917B     976 

Murphy  v.  Skinner's  Estate — 

160  Wis.  554 1917A     817 

Murphy,  Stewart  v. — 95  Kan. 

421    1917C     612 

Murray,       Kaufman       v. — 182 

Ind.   372    1917A     832 

Murray  v.  State  ex  rel.  Nestor 

—91   Ohio   St.  220 1916D     864 

Murray     v.     Waite — 113     Me. 

485     1918A  1128 

Murtha    v.    Big    Bend    Land 

.Co.— 27    N.   Dak.    384 1917A     706 

Music   v.    Big   Sandv,   etc.    R. 

Co.— 163  Ky.  62S." 1916E     689 

Mutual    Benefit   Life   Ins.   Co. 

v.   Swett— 222  Fed.   200 1917B     298 

Mutual  Film  Corp.  v.  Indus- 
trial Commission — 236  U.  S. 

230    1916C     296 

Mvakka    Co.    v.    Edwards— 68 

Fla.    372    J917B     201 

Mvers    v.    Bender — 46    Mont. 

497    1916E     245 

Myers,  Dillon  v. — 58  C6lo.  492 

1916C  1032 

Myers  v.  Sal  try— 163  Ky.  481 

1916E  1134 

Nakata,  Dominion  Fire  Insur- 
ance Co.  v. — 52  Can.  Sup. 
Ct.  294  1916C  1063 

Nash,    St.    Louis    v.— 266   Mo. 

523    1918B     ]34 

Nashville.  White  v.— 134  Tenn. 

688   1917D     960 


PAGE 

Nashville,  etc.  R.  Co.,  Howard 

v.— 133   Tenn.   19 1917A     844 

Nashville,   etc.  Ry.  v.  Ander- 
son—134  Tenn.  666 1917D     902 

Nashville    Interurban    R.    Co., 

Hogan  v.— 131  Tenn.  244...   1916C  1162 
Nathan  Russell,  Baldauf  v. — 

88  N.  J.  Law  303 1917D  1191 

National  Bank  v.  Amoss — 144 

Ga.  425    1918A       74 

National    Cash    Register    Co., 

Attorney     General     ex     rel. 

James  v.— 182  Mich.  99 1916D     638 

National   Council,    Dechter    v. 

—130    Minn.    329 19170     142 

National    Council',    Ledy    v. — 

129  Minn.  137 1916E     486 

•National  Ins.  Co.,  Duvall  v. — 

28  Idaho  356 1917E  1112 

National   Life   Ins.   Co.,   Daw- 
son v.— 176  Iowa  362 1918B     230 

National    Life,    etc.    Ins.    Co., 

Lanford  v.— 116  Ark.  527..   1917A  1081 
National  Live  Stock  Ins.  Co., 

Simmons  v.— 187  Mich.  551.   1917D       42 
National  Surety  Co.,  Dominion 

Trust  Co.  v.— 221  Fed.  618.   19170     447 
National  Surety  Co.  v.  Fletcher 

'  —186   Ala.   605 1916D     872 

Neas       V.       Whitener-London 

Realty  Co.— 119  Ark.   301..   1917B     780 
Needham,    St.    Louis,    etc.    R. 

Co.   v.— 122   Ark.   584 1917D     486 

Neelley  V.  Farr— 61  Colo.  485.   1918A       23 
Nelson,  Metropolitan  Life  Ins. 

Co.   v.— 170   Ky.   674 1918B  1182 

Neptune  Fire  Engine,  etc.  Co. 

V.  Board  of  Education — 166 

Ky.  1   19170     789 

Ness,    United    States    v.— 230 

Fed.  950 19170       41 

Nevada   Canal   Co.,   Rogers   v. 

—60  Colo.  59   19170     C69 

Nevada  County  Bank  v,  Sulli- 
van—122  Ark.  235 1917D     736 

Neven  v.  Neven— 38  Nev.  541.   1918B  1083 

New  V.  Smith— 94  Kan.  6 1917B     362 

New,    Wilson    v.— 243    U.    S. 

332    1918A  1024 

New  Amsterdam  Casualty  Co., 

Rathman  v.— 186  Mich.  115.    19170     459 
Newark,  Newark  Natural  Gas, 

etc.  Co.  v.— 242  U.  S.  405..   1917B  1025 
Newark     Call     Printing,     etc. 

Co.,    Garrison    v. — 87    N.   J. 

Law  217 19170       33 

Newark  Natural  Gas,  etc.  Co. 

V.   Newark— 242   U.  S.  405.   1917B  1025 
New    Boston,    Bartlett    v. — 77 

N.  H.  476   1917B     777 

Newby  v.  Times-Mirror  Co. — 

173  Cal.  387 1917E     186 

Newcomer  v.  Jefferson  Town- 
ship—181  Ind.  1 1916E     181 

New   Dells   Lumber   Co.,   Ven- 

nen  v.— 161  Wis.  370 1918B     293 

Newell     V.     Reid— 189     Mich. 

174    1918B     224 


CASES  BEPOBTED. 


PAGE 

New     First     National     Bank, 

Mercliants',   etc.   Bank   v. — 

116  Ark.  1 1917A     944 

New    Haven    Gas    Light    Co., 

Wetkopsky  v.— 88  Conn.  1 . .   1916D     968 
New  Jersey  Fidelity,  etc.  Ins. 

Co.,  Doyle  v.— 168  Ky.  789.   1917D     851 
New    Orleans,    Leitz    v. — 136 

La.  483    1916D  1188 

New  Orleans  v.  Toca — 141  La. 

551    1918B  1032 

New  Orleans  B.,  etc.  Co.,  Boy- 
Ian  v.— 139  La.  185 1918A     287 

New  Orleans  E.,  etc.  Co.  Ca- 

hill  v.— 139  La.  185 1918A     287 

New  Orleans  E.  etc.  Co.,  Haile 

v.— 135  La.  229 1916C  1233 

Newport  v.  "Wagner — 168  Ky. 

641    1917A     962 

New  Eiver,  etc.  E.  Co.  v.  Hon- 

aker— 119  Va.   641 19170     132 

New    South    Farm,    etc.    Co., 

United  States  v.— 241  U.  S. 

64    1917C     455 

New    Street,    Matter    of — 215 

N.  Y.  109 1917A     119 

New  York,  Matter  of  City  of 

215  N.  Y.  109 1917A     119 

New  York,  Burns  v.— 213  N, 

Y.  516    19160  1093 

New   York,  Lalor  v.— 208   N. 

Y.  431    1916E     572 

New    York,    Shepard    v.— 216 

N.  Y.  251 19170  1062 

New  York,  etc.  E.  Co.,  Brady 

v.— 218  N.  Y.  140 1918B     588 

New  York,  etc.  E.  Co.  v.  Cella 

—88  Conn.  515 1917D     590 

New  York,  etc.  E.  Co.,  Flynn 

v.— 218  N.  Y.  140 1918B     588 

New  York  Central,  etc.  E.  Co., 

W.  J.  Armstrong  Co.  v. — 129 

Minn.  104   1916E     335 

New   York   Central   E.   Co.   v. 

White— 243  U.  S.  188 1917D     629 

New   York  Central   B.   Co.   v. 

Winfield— 244  U.  S.  147 19171)  1139 

New  York  Life  Ins.  Co.,  Van 

Woert  Y.— 30  N.  Dak.  27...   1918A     203 
Nichols,    Benson    v. — 246    Pa. 

St.  229  1916D  1109 

Nicholas   v.   Porter — 181   Ind. 

332 1916D     326 

Nicholas  v.  Title,  etc.  Co. — 79 

Ore  226    1917A  1149 

Nichols    V.    Houghton   Circuit 

.Judge — 185  Mich.  654 1917D     100 

Nicholson,    Spadra-Clarksville 

Coal  Co.  v.— 93  Kan.  638...   1916D     652 
Nicholson  Pub.  Co.,  Flanagan 

v.— 137    La.    588 1917B     402 

NickcU,  Clark  v.— 73   W,  Va. 

69    1917A  1286 

Nicoll     V.     Sweet — 163     Iowa 

683     1916C     661 

Niebalski  v.   Pennsylvania  E. 

Co.— 249    Pa.    St.    530 19170     632 

Nieberg     v.      Cohen — 88      Vt. 

281  1916C  476 


PAOB 
Niehaus  v.  C.  B.  Barker  Con- 
struction Co.  —  135  Tenn. 

382  1918B   23 

Nier,  Points  v.— «1  Wash.  20.  1918A  1046 
Nimnich,  Bank  of  Corning  v. 

—122  Ark.  316 1917D  566 

Nipper,  State  v.— 166  N.  Car. 

272    19160     126 

Noble  Mutual  Tel.  Co.,  State 

Public    Utilities    Com.    v. — 

268   lU.   411 1916D     897 

Nolan     V.     Glynn — 163     Iowa 

146    1916C     559 

Nolen  V.  Henrj — 190  Ala.  540  1917B     792 
Nordlund     v.     Dahlgren — 130 

Minn.     462 1917B     941 

Norman  v.  Charlotte  Electric 

B.  Co.— 167  N.  Car.  533 1916E     508 

Norman  v.  Meeker — 91  Wash. 

534    1917D     462 

Norris,  Carlisle  v.— 215  N.  Y. 

400    1917A     429 

North,    Suburban    Homes    Co. 

v.— 50   Mont.    108 19170       81 

North      American       Accident 

Ins.    Co.,    Hamilton    v. — 09 

Neb.   579 19170     409 

North      Avenue      Bldg.,      etc. 

Assoc.    V.    Huber- a70    HI. 

75    1917B     587 

Northcut       v.        Church— 135 

Tenn.    541 1918B     545 

North  Dakota,  Armour  &  Co. 

v.— 240  U.  S.  510 1916D     548 

Northern      Brewery      Co.      v. 

Princess  Hotel— 78  Ore.  453  19170     621 
Northern    Central    B.    Co.    v. 

Laird— 124  Md.  141 1916D  1030 

Northern  Coal,  etc.   Co.,  Tay- 
lor v.— 161   Wis.  223 19160     167 

Northern      Pacific      E.      Co., 

Burke  v.— 86  Wash.  37 1917B     919 

Northern  Pacific  E.  Co.,  Dick 

v.— 86  Wash.  211 1917A     638 

Northern  Pacific  B.  Co.,  Imler 

v.— 89  Wash.  527 1917A     933 

Northern    Pacific    E.    Co.     v. 

Pierce     County,     77     Wash. 

315    1916E  1194 

Northern    Pacific    E.    Co.    v. 

Bichland     County  —  28     N. 

Dak.   172 1916E     574 

Northern    Pacific    E.     Co.     v. 

State— 84  Wash.  510 1916E  1166 

Northern  Trust  Co.  v.  Brueg- 

ger— 35  N.  Dak.  150 1917E     447 

Northfield,      McCarthy's      Ad- 
ministrator v. — 89  Vt.  99 .  .   1918A     943 
Northfield  Trust  Co.,  Citizens' 

Savings  Bank,  etc.  Co,  v. — 

89   Vt.   65 1918A     891 

Northland       Steamship       Co., 

Shaughnessy    v. — 94    Wash. 

325    1918B     655 

North  Sterling  Irrigation  Dis- 
trict   V.    Dickman — 59    Colo. 

160    1915D     973 


CASES  EEPOETED. 


PAGE 

Northwestern  Fnel  Co.  v.  In- 
dustrial Commission  —  161 
Wis.    450 1918A     533 

Northwestern    Marble   Works, 

Eodseth  v.— 129  Minn.  472.   1917A     257 

Northwest     Loan,     etc.     Co., 
Creditors    Claim,    etc.    Co. 
v.— 81  Wash.  247 1916D     551 

Northwest  Steel  Co.  v.  School 

District— 76   Ore.   321 1917B  1086 

Norton    v.     Duluth     Transfer 

E.  Co.— 129  Minn.  126 1916E     760 

Norton,    Hill    v.— 74    W.    Va. 

428    1917D     489 

Norton  t.  Union  Traction  Co. 

—183  Ind.   666 1918A     156 

Noves,  etc.  Mfg.  Co.,  Will- 
iams v.— 112  Me.  408 1916D  1224 

Noziska  v.  Aten — 35  S.  Dak. 

451    19160     589 

Nugent,  Beliance  Auto  Eepair 

Co.  v.— 159  Wis.  488 1917B     307 

Nye    County,    First    National 

Bank  v.— 38  Nev.  123 19170  1195 

Nvgaard,  Hilmen  v. — 31  N. 
Dak.    419 1917A     282 

Nygaard,  State  ex  rel.  Wick- 
ham  v.— 159  Wis.  396 1917A  1065 

Oak  Creek  United  States  Glue 

Co.  v.— 161  Wis.  211 1918A     421 

Oakland      v.      Pacific      Coast 

Lumber,   etc.    Co. — 172-  Cal. 

332    1917B     259 

Oates,  Lee  v.— 171  N.  Car.  717  1917A  514 
O'Banion     v.     Cunningham  — 

168   Ky.    322 1917A  1017 

O'Brien,  Louisville,  etc.  E.  Co. 

v.— 163   Ky.   538 1916E  1084 

O'Brien,     Louisville,     etc.     E. 

Co.  v.— 168  Ky.  403 1917D     922 

Ocean     Accident,     etc.     Corp., 

Adleman  v.— 130  Md.  572..  1918B  730 
Oceanic  Steam  Navigation  Co. 

V.  United   States— 232  Fed, 

591     19170     248 

O'Doherty  v.  Bickel— 166  Ky. 

708    1917A     419 

Ohio  Eiver  E.  Co.,  Dulin  v. — 

73   W.  Va.   166 1916D  1183 

O.  K.  Bus,  etc.  Co.,  Eogers  v. 

— 46   Okla.   289 1917B     581 

Oklahoma  City  v.  Tucker — 11 

Okla.   Crim.   266 1917D     984 

Oldfield,  Estate  of— 175  Iowa 

118    1917D  1067 

Olds    V.    Little    Horse    Creek 

Cattle  Co.— 22  Wyo.  336...  19170  120 
Oleson  V.  Fader— 160  Wis.  473  1917D  314 
Olsou,    Thornhill     v.  — 31    N. 

Dak.    81 1917E     427 

Olympia  Oil,  etc.  Co.,  Produce 

Bankers      Co.      v.  —  [1916]. 

A.  C.   314 1916D     351 

Omaha     Wool,     etc.     Co.     v. 

Chicago     Great     Western 

E.  Co.— 97  Neb.  50 1917A     358 


PAGE 
O'Neal    V.    Bainbridge    —    94 

Kan.    518 1917B     293 

Ontario  Asphalt  Block  Co.  v. 

Montreuil — 52  Can.  Sup.  Ct. 

541    1917B     852 

Order     of     St.     Benedict     v. 

Steiuhauser— 234  U.  S.  640.  1917A  463 
O'Eear    v.    Sartain — 193    Ala. 

275    1918B     593 

Oregon,  Bunting  v. — 243  U.  S. 

426    1918A  1043 

Oregon    Hassam    Paving    Co., 

Hyland  v.— 74  Ore.  1— 1916E     941 

Oregon-Washington     E.,     etc. 

Co.,  Grice  v.— 78  Ore.  17...  1917B  643 
Oregon- Washington     E.,     etc. 

Co.,  Spain  v.— 78  Ore.  355 . .  1917E  1104 
Orr  v.  Sutton— 127  Minn.  37..  19160  527 
Osborne    v.    Grand    Trunk   E. 

Co.— 87    Vt.    104 19160       74 

Osborne,    State  'v. — 171    Iowa 

678    1917E     497 

O'Shea,     Cranford    v.    —    83 

Wash.    508 19160  1081 

Oskamp  Nolting  Co.,  Cotton- 
dale  State  Bank  v.— 64  Fla. 

36    1916D     564 

Osteen   v.   Southern   R.   Co. — 

101  S.  Car.  532 19170     505 

Ottenheimer,   Eugenstein  y. — 

78   Ore.   371 1917E     953 

Ottinger,    Samuels    v.   —   169 

Cal.    209 igi6E     830 

Ottley,    Carlisle    v.— 143    Ga. 

797     1917A    573 

Ottumwa  V.  McCarthy  Im- 
provement    Co. — 175     Iowa 

233    1917E  1077 

Oussani,       Catholic       Foreign 

Mission  Soc.  v.— 2^^  N.  Y. 

1 1917A     479 

Owen    V.    District     Court — 43 

Okla.    442 19170  1147 

Owens  V.  Munden  —  168  N. 

Car.    266 1917B  1117 

Owens  V.  State — 68  Fla.  154.  1917B  252 
Oxweld      Acetylene      Co.      v. 

Hughes— 126  Md.  437 19170     837 

Pacific     Coast     Casualty     Co., 

Douville  v.— 25  Idaho  396.  1917A  112 
Pacific     Coast     Lumber,     etc. 

Co.,    Oakland    v.— 172    Cal. 

332    1917B     259 

Pacific  Gas,  etc.  Co.,  People  v. 

—168    Cal.   496 1917A     328 

Pacific  Lime,  etc.  Co.,  Cameron 

V.   73   Ore.   510 1916E     769 

Pacific  Packing  Co.  v.  Brad- 
street  Co.— 25  Idaho  696...  1916D  761 
Pacific     Power,     etc.     Co.     v. 

White — 96  Wash.   18 1918B     125 

Pailet,  State  v.— 139  La.  697.  1918A  102 
Palmer  v.  Blanchard — 113  Me. 

380    1917A     809 

Palmer  v.  Cedar  Eapids — 165 

Iowa    595 1916E     558 


CASES  EEPOBTED. 


PAQK 

Pan-American       Match       Co., 

Klotz  v.— 2ai   Mass.  38 1917D     895 

Pangbum     American     Surety 

Co.  v.— 182  Ind.  116 1916E  1126 

Parfitt,  Cain  v.— 48  Utah  81.  .  1918B  28 
Pansi,  People  v.— 217  N.  Y.  24  1916C  111 
Parker    v.    Dixon — 132    Minn. 

367    1918A     540 

Parker-Washington       Co.       v. 

Chicago— 267   111.    136 19160     337 

Parkison,   Haney    v. — 72   Ore. 

249    1916D  1035 

Parry,     Carroll     ▼. — 43     App. 

-     Cas.    (D.   C.)    363 1916E     971 

Parsell's    Estate,    In    re — 184 

Mich.   522 1917A  1160 

Parsell,    Edgar   v. — 184   Mich. 

522    1917A  1160 

Parsons     v.     Trowbridge — 226 

Fed.    15 1917       750 

Partridge  v.   United   States — 

39  App.  Cas.  (D.  C.)  571...   1917D     622 
Pastorino    v.    Detroit   —    182 

Mich.   5 1916D     768 

Pattangall   v.   Mooers  —  113 

Me.    412 1917D     689 

Patten,  Masses  Publishing  Co. 

v.— 246    Fed.    24 1918B     999 

Patterson's    Estate  —  247    Pa. 

St.    529 1917B  1243 

Patterson   v.   State — 191   Ala. 

16    1916C     968 

Paul,  Auburn  v.— 113  Me.  207  1917E  136 
Paul  Jones  &  Co.  v.  Wilkins 

—135  Tcnn.  146 1918B     977 

Paving  Improvement  District, 

Moore  v.— 122  Ark.  326 1917D     599 

Pay,  State  v. — 45  Utah  411..  1917E  173 
P.     Cassidy's     Sons,     Ziegler 

v.— 220  N.  Y.  98 1917E     248 

Peace     v.     Edwards — 170     N. 

Car.    64 1918A     778 

Peagler    v.    Davis   —   43    Ga. 

11    1917A     232 

Peck,      State      v.— 88      Conn. 

447    1917B     227 

Peeples,    Callison    v. — 102    S. 

Car.    256 1917E     469 

Peerless  Pacific  Co.  v.  Burck- 

hard— 90   Wash.    221 ..  • 1918B     247 

Pellett   V.   Industrial   Commis- 
sion—162   Wis.   596 1917D     884 

Pennsylvania,    Crowl    v. — 242 

U.  S.   153 1917B     643 

Pennsylvania  R.  Co.,  Hench  v. 

—246  Pa.  St.  1 1916B     230 

Pennsylvania     R.     Co.,     Nie- 

balski  v.— 249  Pa.  St.  530..   1917C     632 
Pennsylvania    R.    Co.,    Soriero 

v.— 86  N.  J.  Law  642 1916E  1071 

Pennsylvania  R.  Co.  v.  Titus 

—216  N.  Y.   17 1917C     862 

Pennsylvania  R.  Co.,  Titus  v. 

—87  N.  J.  Law  157 1917B  1251 

Pennsylvania  R,  Co,  v.  Towers 

126  Md.  59 1917B  1144 

People  V.  Becker — 215   N.  Y. 

126    1917A     600 


PAGE 

People  V.  Buflfom— 214  N.   Y. 

53    1916D     962 

People  V.  Cassidy— 213  N.  Y. 

388' 1916C  1009 

People   V.   Charles   Sehweinler 

Press — 214  N.  Y.  395 1916D  1059 

People  V.   C.   Klinck   Packing 

Co.— 214  N.  Y.  121 1916D  1051 

People    V.    Curtis— 217    N.    Y. 

304    1917E     586 

People  V.  Devine — 185  Mich. 

50  1917C  1140 

People   V.   Detroit,  etc.   Ferry 

Co.— 187   Mich.   177 1918B     170 

People    V.    Dixon — 188    Mich. 

307    1918B     385 

People  V.  Elliott— 272  111.  592  1918B  391 
People  V.  Falkovitch— 280  111. 

321    1918B  1077 

People    V.   Gibbs  —  186   Mich. 

127    1917B     830 

People  V.  Gibson— 218  N.  Y, 

70  1918B  509 

People    V.    Kane— 213    N.    Y. 

260 19160     6S5 

People  V.  Pacific  Gas,  etc.  Co. 

—168   Cal.    496 1917A     328 

People  V.  Parisi— 217  N.  Y.  24  19160  111 
People   V,    Risley— 214    N.    Y. 

75    1916D     775 

People  V.  Roach— 215  N.  Y. 

592   1917A  410 

People,  Ryan  v. — 60  Colo.  425  19170  605 
People    V.    Steeplechase    Park 

Co.— 218   N.  Y.  459 1918B  1099 

People  V.  Tomlins- 213  N.  Y. 

240     19160     916 

People  V.  Watson— 216  N.  Y. 

505    1917D     272 

People     V.     Weiner — 271     111. 

74     19170  1065 

People    V.    Zayas — 217    N.    Y. 

78    1917E     309 

People    ex    rel.    Agnew    v. 

Graham— 267   111.   426 1916C     391 

People    ex    rel.   Carus   v.    Ma- 

tthiessen— 269   111.   499 1916E  1035 

People     ex     rel.     Dwight     v. 

Chicago  R.  Co.— 270  111.  87.  1917B  821 
People   ex   rel.   Dyer  v.   Clark 

.—268   111.   156 1916D     785 

People  ex  rel.  First  Nat.  Bank 

V.  Brady— 271  HI.  100 19170  1093 

People    ex    rel.    Lawton    v. — 

Snell— 216  N.  Y.  527 1917D     222 

People   ex  rel.  Matthiessen  v. 

Lihme— 269  111.  Sfjl 1916E     959 

People  ex  rel.  New  York,  etc. 

Gas     Co.     V.     McCall  — 219 

N.  Y.  84 1916B  1042 

People     ex    rel.    Stuckart     v. 

Snow— 279  111.  289 ^,  1917E     992 

Peoples,       Wiebener       v. — 44 

Okla.    32 1916E     748 

People's  Ice  Co.,  State  v. — 127 

Minn.   252 19160     618 

People's  Trust  Co.  v.  Smith — 

215  N.  Y.  488 1917A     560 


CASES  REPORTED. 


PAGE 
Perdue    v.    Starkey's    Heirs — 

117  Va.   806 19160     409 

Perine  Machinery  Co.  v.  Buck 

—90  \\  ash.  344 19170     341 

Perkins   v.    Board   of    County 

Commissioners— 271  111.  449  1917A  27 
Perkins   v.  Brown — 132   Tenn. 

294    1917A     124 

Perry  v.  Brandon — 32  Ont.  L. 

Rep.    94 1917E     948 

Person     v,     Mattson — 33      N. 

Dak.  49 1918A     747 

Peters,  Lindell  v. — 129  Minn. 

288    1916B  1130 

Peterson,  In  re — 235  Fed.  878  1918A  1052 
Pettit  V.  County  Commission- 
ers—123   Md.  128 19160       35 

Pettit,    Vasquez    v. — 74    Ore. 

496    1917A     439 

Peuser   v.   Marsh— 218    N.   Y. 

505    1918B     913 

Phelps   V.    Bvrne — 36    S.   Dak. 

369    .' 1918B     996 

Philadelphia,    Armstrong    v. — 

249  Pa.  St.  39 1917B  1082 

Philadelphia,    etc.    Coal,    etc. 

Co.,   Bagdon   v.— 217   N.  Y. 

432    1918A     389 

Philadelphia,    etc.    R.    Co.    v. 

Gatta— 4  Boyce  (Del.)  38..  1916E  1227 
Philadelphia    Casualty    Co.    v. 

Fechheimer— 220  Fed.  401..  1917D  64 
Philadelphia     Life     Insurance 

Co.    V.    Arnold — 97    S.    Car. 

418    19160     706 

Philadelphia     Life     Ins.     Co., 

Krebs  v.— 249  Pa.  St.  330..  1917D  1184 
Philadelphia      Rapid      Transit 

Co.,   Cohen   v.— 250  Pa.   St. 

15    1917D     350 

Philips,  State  ex  rel.  Clarkson 

v.— 70  Fla.  340 1918A     138 

Phillips    V.    Browne — 270    111. 

450    1917B     637 

Phillips,     Crownfield     v. — 125 

Md.    1 1916B     991 

Phillips  v..  Phillips— 186   Ala. 

545    1916D     994 

Philpot,    Havis    v. — 115    Ark. 

250    1916E     167 

Philpott,  Estate  of— 169  Iowa 

555    1917B     839 

Philpott,     Le     Clerc     v. — 169 

Iowa    555 1917B     839 

Phinney,        Hiscock        v. — 81 

Wash.    117 1916B  1044 

Phoenix   Ins.    Co.    v.   Banks — 

114  Ark.  18 1916D     649 

P.  Hohenadel,  Jr.  Co.,  Buck- 
bee  v.— 224  Fed.  14 1918B       88 

Pickrell.  etc.  Co.  v.  Wilson 
Wholesale  Co.— 169  N.  Car. 
381     1917C     344 

Picture    Theatres,    Hurst    v. — 

[1915]   1  K.  B.  1 1916D     457 

Pierce  County,  Northern  Pa- 
cific R.  Co.  v.— 77  Wash. 
315    1916B  1194 


PAGE 
Pieraon's  Administratrix,  Giy- 

ens   v.— 167  Ky.  574 19170     956 

Pillsbury,  Western  Metal  Sup- 
ply Co.  v.— 172  Cal.  407 1917E     390 

Pindel   v.    Holgate — 221    Fed. 

342     19160     983 

Pinkston,  West  v. — 44  Utah 

123  1916D  1065 

Pitt,  State  v.— 166  N.  Car. 

268  19160  422 

Pittsburgh,     Duquesne     Light 

Co.  v.— 251  Pa.  St.  557 1917E     534 

Pittsburgh,     etc.     R.     Co.     v. 

Chappell— 183   Ind.   141 1918A     627 

Pittsburgh,     etc.     R.     Co.     v. 

Home  Ins.  Co.— 183  Ind.  355  1918A     828 
Pittsburgh,  etc.  R.  C.  v.  Kin- 
ney—95   Ohio  St.  64 1918B     286 

Pittsburgh     Stock     Exchange, 

Gartner  v.— 247  Pa.  St.  482  1916E     878 
Planck,  Farmers  Loan,  etc.  Co. 

v.— 98   Neb.   225 1918B     598 

Planters     Fire     Ins.      Co.     v. 

Steele— 119  Ark.  597 1917B     667 

Plunkett,  Delaney  v. — 144  Ga. 

547    1917E     685 

Points  V.  Nier— 91  Wash.  20.   1918A  1046 
Police   Jury,    Alexandria    v. — 

139  La.  635   1918A     362 

Pollica    V.    Twin    State    Gas, 

etc.   Co.— 88  Vt.   205 19170  1240 

Pond  V.  Faust— 90  Wash.  117.   1918A     736 
Poole,    Freeman    v. — 37    R.    I. 

489    1918A     841 

Poole  V.  Poole— 96  Kan.  84..   1918B     929 
Porter      v.      Freudenberg  — 

[1915}  1  K.  B.  857 19170     215 

Porter,   Nicholas   v.— 181  Ind. 

332    1916D     326 

Porter   v.    Union    Trust   Co. — 

182   Ind.    637 1917D     427 

Portland,      Laughlin      v. — 111 

Me.   486 19160     734 

Portland         Savings         Bank, 

Walker  v.— 113  Me.  353 1917E         1 

Portland     Trust,     etc.     Bank, 

Beaston  v.— 89  Wash.  627..   1917B     488 
Port     of     London     Authority, 

Cue  v.— [1914]  3  K.  B.  892.   19160     887 
Postal      Telegraph-Cable      Co. 

V.     Montgomery — 193     Ala. 

234    1918B     554 

Postal     Telegraph-Cable     Co., 

Vandalia  v.— 274  lU.  173...   1917B     523 
Postal   Telegraph   Co.   v.   For- 

ster— 73   Ore.  122 1916E     979 ' 

Poteet,   Raleigh   County  Bank 

v.— 74    W.    Va.   511 1917D     359 

Powell    V.    Powell — 160    Wis. 

504    1917D     113 

Powell     &     Powell     v.     Wake 

Water  Co.— 171  N.  Car.  290  1917A  1302 
Powelson    v.    Tennessee    East- 
ern Electric  Co. — 220  Mass. 

380    1917A     102 

Powers,  In  re— 229  Fed.  370.  .    1917B  1094 
Pratt,   State   ex  rel.   Attorney 

General  v.— 192   Ala.   118..   1917D     990 


CASES  EEPOBTED. 


FAGS 

Premier  Oil,  etc.  Co.,  Eobson 

v.— [1915]  2  Ch.  124 19170     227 

PrcDtiss,  Dittmer  v. — 92  Ohio 

St.    101 1918A  1161 

Presto-Lite  Co.  v.  Skeel— 182 

Ind.    593 1917A     474 

Preston,      Chambers      v. — 137 

Tenn.    324 1918B     428 

Price,  Maryland  Casualty  Co. 

v.— 231   Fed.   397 1917B       50 

Price    V.    Minnesota,    etc.    E. 

Co.— 130  Minn.  229 19160     267 

Price,  Rudolph  Hardware  Co. 

v.— 164  Iowa  353 1916D     850 

Prince,  Clayton  v. — 129  Minn. 

118 1916E     407 

Princess       Hotel,       Northern 

Brewing  Co.  v.— 78  Ore.  453  19170     621 
Produce       Brokers       Co.       v. 

Olympia     Oil,     etc.      Co. — ' 

[1916].  A.  C.  314 1916D     351 

Provencher,      State      v. — 135 

Minn.    214 1917E     598 

Prudential  Ins.  Co.,  Burke  ▼. 

—221  Mass.  253 1917B     641 

Public    Opinion    Pub.    Co.    t. 

Eansom— 34  S.  Dak.  381. .. .  1917A  1010 
Public     Service     Commission, 

Kose  v.— 75  W.  Va.  1 1918A     700 

Public     Service     Commission, 

State     ex     rel.    Watts    En- 
gineering   Co.    V. — 269    Mo. 

525    1917B     786 

Public     Service     Commission, 

Woodbum  v.— 82  Ore.  114..  1917E     996 
Public  Service  R.  Co.,  Solomon 

v._S7  N.  J.  Law  284 19170     356 

Public    Utilities    Commission, 

Cincinnati  v. — 91    Ohio    St. 

331    1916E  1081 

Public    Utilities     Commission, 

Hocking  Valley  E.  Co.  t. — 

92  Ohio  St.  9 1917B  1154 

Puckett,    Southern    E.    Co.    v. 

—244  U.  S.  571 1918B       69 

Puffer,    Merton    v. — 157    Wis. 

576    1916D     840 

Pullen  V.  Eugene— 77  Ore.  320  1917D  933 
Pullman  Co.,  Williams  t. — 129 

Minn.  97   1916E     374 

Purdy,  Hill   v.— 46   App.   Cas. 

(D.  C.)  495 1918B     847 

Purdy  v.   Sault  Ste.   Marie — 

188  Mich.  573 1917D     881 

Purdy  V.  Western  Union  Tel. 

.     Co.— 97  S.  Car.  22 19160     726 

Purgason,  McCurry  t. — 170  N. 

Car.  463    1918A     907 

Quebec  E.  etc.  Co.,  Vandry  v. 

—53  Can.  Sup.  Ct.  72 19170  843 

Queen  v.  Queen— 116  Ark.  370  1917A  1101 
Queen     City     Fire     Ins.     Co., 

Salene   v.— 59   Ore.   297 1916D  1276 

Queensborough    Land     Co.   v. 

Cazeaux— 136  La.  724 1916D  1248 

Quell otte.   Koonovsky   v. — 226 

Mass.  474   1918B  1146 


PAGE 

Quincy,  Malone  ▼. — 66  Fla.  52  1916D     208 
Quinn  t.  Hall— 37  R.  I.  56 19170     373 

Radford,  Selling  v.— 243  U.  S. 

46    1917D     569 

Eae,  Hill  v.— 52  Mont.  378...  1917E     210 
Eaich,    Truax    v.— 239    U.    S. 

33    1917B     283 

Eailroad    Commission,    Marin 

Water,  etc.  Co.  v.— 171  Cal. 

706    19170     114 

Eaine's  Estate,   McLemore   v. 

—131  Tenn.  637   1916D     307 

Ealeigh       Countv      Bank      v. 

Poteet— 74  W.'Va.  511 1917D     359 

Ramsey,    Milwaukee    Mechan- 
ics' Ins.  Co.  v.— 76  Ore.  570.   1917B  1132 
EandaU,  State  v.— 170  N.  Car. 

757    1918A     438 

Eansom,  Public  Opinion  Pub. 

Co.  v.— 34  S.  Dak.  381 1917A  1010 

Eansom,     Van     Ness     v. — 215 

N.  Y.  557   1917A     580 

Rapid  Transit    Co.,    Memphis 

St.     R.    Co.    v.— 133     Tenn. 

99    19170  1045 

Rast  V.  Van  Deman,  etc.  Co. 

—240  U.   S.   342 1917B     455 

Ratcliffe   V.  Walker— 117  Va. 

569    1917E  1022 

Rathman  v.  New  Amsterdam 

Casualty      Co. — 186      Mich. 

115    19170     459 

Raudenbush,       Commonwealth 

v.— 249  Pa.  St.  86 19170     517 

Ravenscroft  v.  StuU — 280  HI. 

406    1918B  1130 

Eawlings'    Will,     In     re — 170 

N.  Car.  58 1918A     948 

Ray    V.    Registrars,   etc. — 221 

Mass.   223 1918A  1158 

Ream,  Luthy  v.— 270  HI.  170.   1917B     368 
Reams     v.     Coolev — 171     Cal. 

150    ' 1917A  1260 

Reck    V.    Whittlesberger — 181 

Mich.  463 19160     771 

Record  v.  Ellis— 97  Kan.  754. .   19170     822 
Redington,    Thompson    v. — ^92 

Ohio  St.  101 1918A  1161 

Rcdwine.  Redwine's  Executor 

v.— 160  Ky.  282 1917A       58 

Redwine's    Executor    v.    Bed- 
wine— 160  Kv.  282 1917A       58 

Reed,  State  v.— 53  Mont.  292.   1917E     783 
Reed's   Executor,   Lewis    v. — 

168  Ky.  559 1917D  1155 

Reeves  v.  State — 106  Miss.  885  1917A  1245 
Registrars,   etc.,  Ray    v. — 221 

Mass.  223    1918A  1158 

Rehling  v.  Brainard — 38  Nev. 

16    19170     656 

Reichelt,  Bacon  r. — ^272  HI.  90  1918B         1 
Reichman,      State       ex      rel. 

Thompson     v. — 135      Tenn.  ' 

653,  685   1918B     889 

Reid.    Newell    v.- 189     Mich. 

174    1918B     224 


CASES  REPORTED. 


ZXXIX 


FAOK 

Eeirden  v,  Stephenson — 87  Vt. 

430    1916C     109 

Reliance  Auto  Repair    Co.  v. 

Nugent— 159  Wis.   488 1917B     307 

Reliance  Life  Ins.  Co.,  Dibble 

v.— 170   Cal.   199 1917E       34 

Remillard  v.  Blake,  etc.  Co. — 

169  Cal.  277 1916D     451 

Eemsnider   v.   Union   Savings, 

etc.  Co.— 8^  Wash.  87 1917D      40 

Renichler    v.    State    ex    rel. 

Hogan— 90  Ohio  St.  363....  1916C  1014 
Reuther,  Braeuel  v. — 270  Mo. 

603    1918B     533 

Rex  V,  Board  of  Assessors — 41 

N.  Bruns.  564 1917B     721 

Rex     V.    Casement — [1917]     1 

K.  B.  98 1917D     468 

Rex  V.  Commanding  Officer — 

[1917]  1  K.  B.  176 19170     809 

Rex  V.  Commanding  Officer — 

[1917]   2  K,  B.  129 1917E     480 

Rex,    Gibb    v.— 52    Can.    Sup. 

Ct.  402 1916D     709 

Rex  V.  Halliday  [1917]  A.  C. 

260    1917D     389 

Kex  V.  Robinson  [1915]  2  K 

B.  342  1917B  1229 

Ecx,  Toronto  R.  Co.  v.— [1917] 

A.  C.  630 1918A  991 

Rex,  Veronneau    v. — 54    Can. 

Sup.   Ct.   7 1917E     612 

Reynolds,    Hite    v. — 163     Ky. 

502    1917B     619 

Rezac  v.  Zima— 96  Kan.  752..  1918B  1035 
Rhode  Island  Co.,  Frey  v. — 37 

R.  I.  96 1918A     920 

Rhode  Island  Co.,  Malakia  v. 

—36  R.  I.  149 1916C  1216 

Rhodes,  Shelby  v. — 105   Miss. 

255    1916D  1306 

Eiavaaja    Pub.    Co.,    Finnish 

Temperance      Soc.      v. — 219 

Mass.   28 1916D  1087 

Rice  V.  Board  of  License  Com- 
missioners—36  R.  I.  50 191 60  1189 

Richards    v.    District     School 

Board— 78  Ore.  621 1917D     266 

Richards,  Rowe  v. — 35  S.  Dak. 

201    1918A     294 

Richardson  v.  Flower — 248  Pa. 

St.  35   1916E  1088 

Richardson  v.  Greenhood — 225 

Mass.  608    1918A     515 

Richardson,      Harvey      v. — 91 

Wash.  245    1918A     881 

Richardson  v.  Sioux  City— 172 

Iowa  260 1918A     618 

Richardson,     Williams     v. — 66 

Fla.  234 1916D     245 

Richolson  v.  Mariette — 34    S. 

Dak.  573    1917A     883 

Richland      County,      Northern 

Pacific     R.     Co.    v.— 28    N. 

Dak.  172    1916E     574 

Richmond,     Hopkins     v. — 117 

Va.  692    1917D  1114 


PAQB 

Richmond  Cedar  Works,  John 

L.    Roper   Lumber   Co.   v. — 

168  N.  Car.  344 1917B     992 

Ricks,  State  v. — 108  Miss.  7..  1917E  244 
Ridenour,  Stewart  v. — 97  Neb. 

451    1917A     242 

Riggins  V.  State — 125  Md.  165  1916E  1117 
Higgle  V.  Lens — 71  Ore.  125.  ..  19160  1083 
Riggs,  Eureka  Pipe  Line  Co. 

v.— 75  W.  Va.  353 1918A    995 

Riley  v.  Litchfield — 168  Iowa 

187    1917B     172 

Rippetoe,  Lillienkamp  v. — 133 

Tenn.  57 19170     901 

Risdale    v.  S.   S.  Kilmarnock 

—[1915]  1  K.  B.  503 1917C     757 

Risley,   People  t.— 214   N.  Y. 

75    1916D     775 

Riverside  Development  Co.  v. 

Hartford  Fire  Ins.  Co.— 105 

Miss.  184 1916D  1274 

Roach,  People  v. — 215  N.  Y. 

592    , 1917A     410 

Roberts,  Conrad  v. — 95  Kan. 

180  1917E  891 

Roberts,  Lake    Tahoe  B.  etc. 

Co.  v.— 168  Cal.  551 1916E  1196 

Roberts  v.  State— 100  Neb.  199  1917E  1040 
Robinson,  Ex  p.— 113  Miss.  786  1917E  723 
Robinson,  First  National  Bank 

v.— 93  Kan.  464 1916B  286 

Robinson,    Rex    v.— [1915]    2 

K.  B.  342   1917B  1229 

Robinson,     St.     Paul     v. — 129 

Minn.  383   1916E     845 

Robinson  v.  State— 69  Fla.  521  1917D  506 
Rob  son  V.   Premier    Oil,    etc 

Co.— [1915]  2  Ch.  124 19170     22T 

Rochester,  Fifield's  Adminis- 
tratrix v.— 89  Vt.  329 1918A  1016 

Rock      Hill      Fertilizer     Co., 

Woods  v.— 102  S.  Car.  442. .  1917D  1149 
Rodgers,  Ingram-Day    Lumber 

Co.  v.— 105  Miss.  244 1916E     174 

Rodseth  v.  Northwestern  Mar- 
ble Works— 129  Minn.  472.  1917A  257 
Roess  v.  Malsby  Co. — 69  Fla. 

15    1917C  1022 

Rogers  v.  Atlantic,  etc.  Co. — 

213  N.  Y.  246 19160     877 

Rogers,  Illinois  Central  B.  Co. 

v.- 162  Ky.  535 1916E  1201 

Rogers  v.  Nevada  Canal  Co. — 

60  Colo.  59 19170     669 

Rogers  v.  O.  K.  Bus,  etc.  Co. 

—46  Okla.  289 1917B     581 

Rohan  v.  Johnson — 33  N.  Dak. 

379    1918A     794 

Rollins.  Best  Park,  etc.  Co.  v. 

—192   Ala.   534 1917D     929 

Rollins  V.  Blaekden — 112  Me. 

459    1917A     875 

Romana  v.  Boston  Elevated  R. 

Co.— 218   Mass.   76 1917A     89:? 

Root,  Labere  v.— 87  Wash.  146  19170  1037 
Rose,  Hall  v.— 242  U.  S.  539 . .  19170  643 
Rose  V.  Public  Service  Com- 
mission—75  W.  Va.  1 1918A     700 


xl 


CASES  REPORTED. 


PAGE 

Rosenberg    v.    Dahl — 162    Kv. 

92  1916E  1110 

Rosenthal   v.  Insurance   Co. — 

158  Wis.  550 1916E     395 

Ross,  Simmons  v.— 270  111,  372  1916B  125(j 
Rossignol,  Bell  v.— 143  Ga.  150  1917C  576 
Rott  V.  Goehring— 33  N.  Dak. 

413    1918A     643 

Routh,  Home  Land,  etc.  Co.  v. 

—123  Ark.  360 1917C  1142 

Rowe  V.  Richards — 35  S.  Dak. 

201    1918A     294 

Rowlands  v.  Chicago,  etc.   R. 

Co.— 149   Wis.   51 191OT     714 

Rowlett,  Moore  v.— 269  111.  88  1916E  718 
Royal  V.  Southerland— 168  N. 

Car.  405 1917B     623 

Royal  Ins.  Co.,  Second  Society 

v.— 221  Mass.  518 1917E     491 

Royal  Ins.  Co.  v.  Walker  Lum- 
ber Co.— 24  Wyo.  59 1917E  1174 

Royal  League,  Anderson  v. — 

130  Minn.  416 1917C     691 

Royal     Mineral     Association, 

State  v.— 132  Minn.  232 1918A     145 

Ruble  V.  Busby— 27  Idaho  4S6  1917D  665 
Rudolph  Hardware  Co.  v.  Price 

—164  Iowa  353 1916D     850 

Rugenstein  v.  Ottenheimer — 78 

Ore.  371 1917E     953 

Rummell     v.    Blanchard — 216 

N.  Y.  348 1917D     109 

Rundle,  In  re — 32  Ont.  L.  Rep. 

312    1917A     139 

Russell,  Griffin  v.— 144  Ga.  275  1917D  994 
Russel  V.  Jordan— 58  Colo.  445  19160  760 
Ruston,  Union  Ice,  etc.  Co.  v. 

—135  La.  898 19160  1274 

Rutland      R.      Co.,     Ingram's 

Adm'x  v.— 89  Vt.  278 1918A  1191 

Ryall     V.   Kidwell— [1914]     3 

K.   B.   135 19160     815 

Ryan,  Estate  of — 157  Wis.  576  1916D  840 
Ryan  v.  People — 60  Colo.  425.   19170     605 

Sackett,  Tennis  Coal  Co.  v. — 

172  Ky.  729 1917E     629 

St.  Helens,  Harris  v. — 72  Ore. 

377    1916D  1073 

St.  Louis    V.   Nash— 266    Mo. 

523   1918B     134 

St.  Louis  V.  St.  Louis,  etc.  R. 

Co.— 266  Mo.  694 1918B     881 

St.  Louis,  etc.  R.  Co.  v.  Arm- 

brust— 121  Ark.  351 1917D  537 

St.   Louis,   etc.   R.   Co.   v.   Blay- 

lock— 117   Ark.   504 1917A     563 

St.  Louis,  etc.  R.  Co.  v.  Dague 

—118  Ark.  277 1917B     577 

St.  Louis,  etc.  R.  Co.  v.  Necd- 

ham— 122  Ark.  584 1917D     486 

St.    Louis,     etc.     R.    Co.,    St. 

Louis  V. — 266  Mo.  694 1918B     881 

St.  Louis,  etc.  R.  Co.  v.  State — 

120  Ark.  182 19170     873 

St.  Louis,  etc.  R.  Co.,  Weirling 

v.— 115  Ark.  505 1916E     2o3 

St.  Louis  Lodge,  etc.  v.  Koeln 

—262  Mo.  444 1916E     784 


PAGE 

St.  Louis  Southwestern  R.  Co. 

V.  Mitchell— 115  Ark.  339..  1916E  317 
St.    Maries    Hospital     Assoc, 

McAlinden  v.— 28  Idaho  657  1918A  380 
St.     Paul     V.     Robinson— 129 

Minn.  383    1916E     845 

St.    Paul     Fire,    etc.   Ins.    Co., 

Gaffey  v.— 221  N.  Y.  113...  1918B  104l 
St.  Paul  Gaslight  Co.,  Manning 

v.— 129   Minn.   55 1916E     276 

Salem,    Ideal   Tea    Co.   v. — 77 

Ore.  182 1917D     684 

Salene  v.  Queen  Citv  Fire  Ins. 

Co.— 59  Ore.  297.* 1916D  1276 

Sales  V.  Maupin — 35   S.   Dak. 

176   19170  1222 

Salisbury  Ice,  etc.   Co.,  State 

v.— 166  N.  Car.  366 19160     456 

Salisbury  Ice,  etc.  Co.,  State  v. 

—166  N.  Car.  403 19160     728 

Salt   Lake   City,   Gray   v. — 44 

Utah    204 1916D  1135 

Salt  Lake  City  v.  Young — 45 

Utah  349 1917D  1085 

Saltry,  Myers  v.— 163  Ky.  481  1916E  1134 
Samuel  Fox  &  Co.,  Herbert  v. 

—[1916]    A.   C.  405 1916D     578 

Samuels  v.  Ottinger — 169  Cal. 

209    1916E     830 

Samuels  v.  United  States— 232 

Fed.   536 1917A     711 

Sanchez  v.  Sanchez — 61  Colo. 

485  1918A   23 

Sanday,    British,   etc.    Marine 

Ins.  Co.  v.— [1916]  A.  C.  650  1916D  S76 
Sanders,     State     v. — 136     La. 

1059   1916E     105 

Santa  Barbara  Consol.  R.  Co., 

Kelly  v.— 171  Cal.  415" 19170       67 

Santos.  Eltinge    v.— 171    Cal. 

278    1917A  1143 

Sartain,    O'Rear    v.— 193    Ala. 

275    1918B     593 

Saulman   v.   Mayor,    etc. — 131 

Tenn.    427 19160  1254 

Saulsberry  v.  Saulsberry — 162 

Ky.  486   1916E  1223 

Sault  Ste.  Marie,  Purdy  v. — 

188  Mich.  573 1917D     881 

Saunders,  Dale  v.— 218  N.  Y. 

59    1918D     703 

Savings   Investment,    etc.    Co. 

V.  United  Realtv,  etc.  Co. — 

84  X.  J.  Eq.  472 1916D  1134 

Sawver   v.    Conner — 114  Miss. 

363    1918B     388 

Sawyer,  State  v.— 113  Me.  458  1917D  650 
Saxelbv,  Herbert  Morris   v. — 

[1916]   A.   C.   688 1916D     537 

Saxton,   Moore    v. — 90    Conn. 

164    19170     534 

Sayers    v.    Montpelier,    etc.  R. 

Co.— 90  Vt.  201 1918B  1050 

Savle,    Kelly,    Douglas    &   Co. 

v.— 19  Brit.  Col.  93 1916E     444 

Scandinavian  American  Na- 
tional  Bank   v.   Knceland — 

24  Manitoba  L.  R.  168 1917B  1177 


CASES  REPORTED. 


xli 


PAGE 

Seanlan  v.  La  Coste — 59  Colo. 

449    1917A     254 

Scarborough  v.  American  Na- 
tional Ins.  Co. — 171  N.  Car. 
353    1917D  1181 

Schantz,  Valentino  v. — 216  N. 

Y.   1 19170     780 

Seharrenberg  v.  Dollar  Steam- 
ship Co.— 229  Fed.  970 1917C     258 

Schas  V.  Equitable  Life  Assur- 
ance Soc— 170  N.  Car.  420. .   1918A     679 

Schauberger  v.  Morel's  Admin- 
istrator—168   Ky.   368 19170     265 

Schcuerman    v.    Scheuerman — 

52  Can.  Sup.  Ct.  625 1917B     219 

Schmidt       v.       Grenzow — 162 

Wis.   301    1917B     163 

Schmidt   v.   Marconi  Wireless 

Tel.  Co.— 86  N.  J.  Law  183  1918B     131 

Schmidt  v.  State— 159  Wis.  15  1916E     107 

Schmitt   V.   Franke— 160   Wis. 

347    1917D     230 

Schnepfe   v.  Schnepfe — 124 

Md.  330 1916D  988 

School  District,  Barton  v. — 77 
Ore.  30 1917A     252 

School      District,      Northwest 

Steel  Co.  v.— 76  Ore.  321...   1917B  1086 

School  Town  of  Windfall  City 

V.  Somerville— 181  Ind.  463  1916D     661 

Schulte,  Meyer  v.— 214  N.  Y. 

361    1916E     384 

Schultz  V.  Des  Moines  Mutual 
Hail,  etc.,  Ins.  Assoc. — 35 
S.  Dak.  627 1917D       78 

Schultze,  Tax  Lien  Co.  v.— 213 

N.   Y.   9 19160     636 

Schuman,  State  v.— 89  Wash.  9  1918A     633 

Schurmann,    Macauley   v. — 22 

Hawaii    140    1916E  1206 

Schwabacher  Hardware  Co.  v. 
Miller  Sawmill  Co.— 90 
Wash.  193   1918A     940 

Schwartz  v.  Black — 131  Tenn. 

360    19160  1195 

Schwartz   v.   Dennis — 138   La. 

848    1917D       94 

Schworm  v.  Fraternal  Bank- 
ers' Reserve  Soc. — 168  Iowa 
579   1917B     373 

Scofield  V.  Wilcox— 33  N.  Dak. 

239    1918A     836 

Scott,  Yazoo,  etc.  R.  Co.  v. — 

108  Miss.  871 1917E     880 

Scovcll  V.  Shadyside  Co.— 137 

La.  918 1917B     178 

Scullv,       McDermott       v. — 91 

Conn.  45   1917E     407 

Seaboard    Air    Line     R.    Co., 

Causey  v.— 166  N.  Car.  5 .  . .   1916C     707 

Seaboard     Air    Line    R.     Co., 

Kenney  v.— 167  N.  Car.  14.  .   1916E     450 

Seaboard      Air-Line      Ry.      V. 

Black  well— 143   Ga.  237 1917A     967 

Seaboard  Air-Line  Ry.,  Carl- 
ton v.— 143  Ga.  516 1917A     497 

Seaboard  Air  Line  Ry.,  Loriek 

Y.— 102  S.  Car.  276 1917D     920 


PAQE 

Seaboard  Air  Line  Ry.  v.  Mul- 

lin— 70  Fla.  450 1918A  576 

Seaman,  Matter  of — 218  N.  Y. 

77  1918B  1138 

Seattle,  Carstens  and  Earles — 

v.— 84  Wash.  88 1917A  1070 

Seattle,  Hanford  v. — 92  Wash. 

257   1917B     195 

Seattle,  Wagner  v. — 84  Wash.» 

275    1916E     720 

Seattle  Homeseekers  Co.,  Dex- 
ter   Horton   National    Bank 

v.— 82  Wash.  480 1917A     685 

Seay  v.  Georgia  Life  Ins.  Co. 

—132  Tenn.  673 1916E  1157 

Sebastian,  Hadacheck  v. — 239 

U-  S.  394 1917B     927 

Second  Society  v.  Royal  Ins. 

Co.— 221  Mass.  518 1917E     491 

Secular  Society  v.  Bowman — 

[1915]   2   Ch.  447 1917B  1017 

Secular    Society,    Bowman    v. 

—[1917]  A.  C.  406 1917D     761 

Security  Life  Ins.  Co.  v.  Dil- 

lard— 117  Va.  401 1917D  1187 

Seibold  v.  Wahl— 164  Wis.  82.  19170  400 
Seidler  v.  Burns — 86  Conn.  249  19160  266 
Seitner  Dry   Goods  Co.,  Blair 

v.— 184  Mich.  304 19160     882 

Selective   Draft  Law   Cases — 

245  U.  S.  366 1918B     856 

Selengut,    State,  t. — 38    R.    I. 

302    1917D     303 

Selig  V.  Hamilton— 234  U.  S. 

652    1917A     104 

Selling  V.  Radford— 243  U.  S. 

46    1917D     569 

Selwyn,    Smith    v.— [1914]    3 

K.   B.   98 19160     844 

Senatobia    Blank    Book,    etc. 

Co.,  State  ex  rel.  Collins  v. 

—115  Miss.  254 1918B     953 

Serio  v.  Trainor- 139  La.  51.  1917E  769 
Servas,    Estate    of — 169    Cal. 

240 1916D     233 

Settlemyer,      Woodle      v. — 71 

Ore.  25 19160  1222 

Sexton,     Mandan     Mercantile 

Agency      v, — 29      N.      Dak. 

602 1917A       67 

Shadyside    Co.,    Scovell    v. — 

137  La.  918 1917B     178 

Shaft,   State  v.— 166  N.  Car. 

407 19160     627 

Shanks   v.   Delaware,    etc.    R. 

Co.— 214  N.  Y.  413 1916E     467 

Sharp    V.    Cincinnati,    etc.    R. 

Co.— 133   Tenn.  1 19170  1212 

Sharp,  'Kanawha-Gauley   Coal, 

etc.  Co.  v.— 73  W,  Va.  427.   1916E     786 
Sharpe   v.   Denmark — 143   Ga. 

156 1917B     617 

Sharrow     v.     Inland     Lines — 

214  N.  Y.  101 1916D  1236 

Shaughnessy      v.      Northland 

Steamship     Co. — 94     Wash. 

325 1918B     655 

Shaw  V.  Lord— 41  Okla.  347. ..   19160  1147 


zUi 


CASES  EEPOBTED. 


PAGE 

Sheill,  LesUe  v.— [1914]  3  K. 

B.  607 1916C     992 

Shelby   v.  Ehodes — 105   Miss. 

255 1916D  1306 

Sheldon,  Chew  v.— 214  N.  Y. 

344 1916D  1268 

Sheldon,      ^allholz      v.— 216 

N.  y.  205 19170  1017 

Shelly,  HewBon  v.— [1914]    2 

Ch.  13 1917B  1119 

Shepard,    Morehouse    v. — 183 

Mich.  472 1916B    305 

Shepard    v.    New    York— 216 

N.  Y.  251 19170  1062 

Sherlock     v.     Thompson — 167 

Iowa   1 1917A  1216 

Sherman     v,     Harris — 36     S. 

Dak.  60 19170     675 

Sherman  v.  Havens — 94  Kan. 

654 1917B     394 

Sherod   v.  Aitehison — 71   Ore. 

446 19160  1151 

Sherwood,       Switzer      v, — 80 

Wash.    19 1917A     216 

Shinault,    Cost    v.— 113    Ark. 

19 19160     483 

Shockley,     Anderson     v. — 266 

Mo.    543 1918B     500 

Shoop  V.  Fidelity,  etc.  Co. — 

124  Md.  130 1916D     954 

Shrader,    Wilson    v.— 73     W. 

Va.    105 1916I>     886 

Shry,  Merchant's  Adminis- 
trator v.— 116  Va.  437 1916D  1203 

Sibley,  etc.  E.  Co.  v.  Elliott — 

136  La.  793 1916D  1228 

Sieg  V.  Greene — ^225  Fed.  955 

19170  1006 

Siegel,  In  re— 263  Mo.  375...  19170  684 
Silver   King  Coalition    Mines 

Co.  V.  Silver  King  Con«ol. 

Min.  Co.— 204  Fed.  166 1918B     571 

Silver  King  Consol.  Min.  Co., 

Silver  ]^ng  Coalition  Mines 

Co.  v.— 204  Fed.  166 1918B     571 

Silverman,    Commonwealth   v. 

—220  Mass.  552 1917A     948 

Simmons,    Freudentoerger    Oil 

Co.  v.— 75  W.  Va.  337 1918A    873 

Simmons     v.     National    Live 

Stock    Ins.    Co.— 187    Mich. 

551 1917D       42 

Simmons     v.     Eoss — 270     111. 

372 1916E  1256 

Simonini,      Vaughan's      Seed 

Store  v.— 275  HI.  477 1918B     713 

Sims    y.    Everett — -113    Ark. 

198 19160     629 

Sinaloa  Land,  etc.  Co.,  Tan- 
ner V. — 43  Utah  14 19160     100 

Sinclair,   Thom  v. — [1917]   A. 

C.  127 1917D     188 

Sioux   City,    Eichardson    v. — 

172  Iowa  260 1918A  618 

Sivelyv.  State— 107  Miss.  118.  1917B  1075 
Skarda    v.     State — 118     Ark. 

176 1916E  586 

Skeel,      Prest-o-lite      v. — 182 

Ind.   593 : 1917A  474 


PlOB 
Skinner's   Elstate,   Murphy   v. 

—160  Wis.  554 1917A     817 

Sloss-Sheffield  Steel,  etc.  Co., 

Cole  v.— 186  Ala.  192 1916E       99 

S.  Lowman  &  Co.  v,  Ballard — 

168  N.  Car.  16 1917B     899 

Smallwood.      Brown      v. — 130 

Minn.  492 19170     474 

Smith,      American      Southern 

Nat.  Bank  v.— 170  Ky.  512.  1918B  959 
Smith,  Baldwin's  Bank  v. — 215 

N.   Y.   76 1917A     500 

Smith    V.    Barnes — 51    Mont. 

202 1917D     330 

Smith    T.     Chester— 272     HI. 

428 1917A     925 

Smith    V.    Haire — 133    Tenn. 

343 1916D     529 

Smith  V.  Johnson — 219  Mass. 

142 1916D  1234 

Smith    V.    McDuflfee — 72    Ore. 

276 1916D     947 

Smith,  New  v.— 94  Kan.  6 . . .  1917B  362 
Smith,  People's  Trust  Co.  v. — 

215  N.  Y.  488 1917A     560 

Smith    V.    Selwyn— [1914]     3 

K.  B.  98 19160     844 

Smith    V.    Smith — ^97    S.    Car. 

242 19160     763 

Smith,  State  v.— 101  8.  Car. 

293 19170     149 

Smith,     Travelers     Protective 

Assoc,  v.— 183  Ind.  59 1917E  1088 

Smith's       Administratrix      v. 

Middlesboro   Electric   Co. — 

164  Ky.  46 1917A  1164 

S.  M.  Smith  Insurance  Agency 

Williams  .v.— 75  W.  Va.  494.  1917A  813 
Snell,  People  ex  rel.  Lawton 

v.— 216  N.  Y.  527 1917D     222 

Snow,    Mettler    v. — 90    Conn. 

690 19170     578 

Snow,   People    ex   rel.   Stuck- 

art  v. — 279  HI.  289 1917E     992 

Snyder    v.    Kulesh — 163    Iowa 

748 19160     481 

Soekland  v.  Storch — 123  Ark. 

253 1918A  668 

Solomon  v.  Public  Service  E. 

Co.— 87  N.  J.  Law  284 19170     356 

Solomon,   State   v. — 158    Wis. 

146 1916B     309 

Solomon       v.       Stewart — 184 

Mich.  506 1917A     942 

Solorzano,    Atchison,    etc.    E. 

Co.  v.— 21  N.  Mex.  503 1917E     950 

Solvay     Process     Co.,     Wiley 

v.— 215  N.  Y.  584 1917A     314 

Somerville,    School    Town    of 

Windfall  City  v.— 181  Ind. 

463 1916B     661 

Soper  V.  Cisco — 85  N.  J.  Eq. 

165 1918B     452 

Soriero    v.    Pennsylvania    E. 

Co.— 86  N,  J.  Law  642 1916E  1071 

Sotham      v.      Macomber — 180 

Mich.  120 19160     694 


CASES  EEPOBTED. 


xliii 


PAOB 
South   Covington,   etc.   St.   R, 

Co.,  Jonas  v.— 162  Ky.  171 

1916B     965 

Southerland,  Royal  v. — 168  N. 

Car.  405 1917B     623 

Southern  Ferro  Concrete  Co., 

Central   of  Georgia  B.   Co. 

v.— 193  Ala.  108 1916E     376 

Southern   Ice   Co.   v.  Black — 

136  Tenn.  391 1917E     695 

Southern  Pac.  Co.  v.  Jensen — 

244  U.  S.  205 1917E     900 

Southern  Pacific  B.  Co.  v.  A. 

J.   Lyon   &   Co.— 107  Miss. 

777 1917D     171 

Southern   E.  Co.,  Davis  v. — 

170  N.  Car.  582 1918A     861 

Southern  B.  Co.,  HoUoman  v. 

—172  N.  Car.  372 1917E  1069 

Southern  B.  Co.,  Horton  v. — 

170  N.  Car.  383 1918A     824 

Southern  E.  Co.,  Leavea  v. — 

266  Mo.  151 1918B       97 

Southern  B.  Co.,  Osteen  v. — 

101  S.  Car.  532 19170     505 

Southern  B.  Co.  v.  Puekett — 

244  U.  S.  571 1918B       69 

Southern  B.  Co.  v.  Vessell — 

192  Ala.  440 1917D     892 

Southern   Surety  Co.,   Crouch, 

v.— 131   Tenn.  260 1916C  1220 

South    Haven,    Andrews   t. — 

187  Mich.  294 1918B     100 

South     Highland*    Infirmary, 

Barfield  v.— 191  Ala.  553...  1916C  1097 
Southwestern  Surety  Ins.  Co., 

Dickey  v.— 119  Ark.  12 1917B     634 

Sovereign  Camp,  Bounds  v. — 

101  S.  Car.  325 19170     589 

Sovereign   Camp,  McLaughlin 

v.— 97  Neb.  71 1917A       79 

Spodra-Clarksville  Coal  Co.  v. 

Nicholson— 93  Kan.  638...  1916D  652 
Spain    V.    Oregon-Washington 

B.,  etc.  Co.— 78  Ore.  355 .. .  1917E  1104 
Spallholz  V.  Sheldon— 216  N. 

Y.  205 19170  1017 

Spangler    v.    Mitchell — 35    S. 

Dak.    335 1918A     373 

Spartanburg,  etc.  E.  Co.,  Hen- 
derson v.— 98  S.  Car.  206.,  1916D  585 
Spartanburg,  B.  etc.  Co.,  Tay- 
lor v.— 98  S.  Car.  206 1916D     585 

Speake,    Echols    v. — 185    Ala. 

149 19160     332 

Spellman,  Gordon  v. — ^145  Ga. 

682 1918A     852 

Spitler,     Henry     v. — 67     Fla. 

146 1916E  1267 

Spokane  v.  Ladies'  Benevolent 

Society— 83  Wash.  382 1916E     367 

Spooner,  Estate   of  Beckwith 

v.— 183  Mich.  323 1916B     886 

Spradlin     v.     Dickinson — 120 

Ark.  80 19170     913 

Springdale,  Bartholomew  v. — 

91   Wash.   408 1918B     432 

Springer    v.    Citv   Bank,    etc. 

Co.— 59  Colo.  376 1917A     520 


PAGE 

Springfield,  Dailey  t. — 144  Ga. 

395 1917D     943 

Spring     Valley     Water     Co., 

Lukrawka  v.— 169  Cal.  318.  1916D  277 
Sprowls     v.     Sprowls — 34     S. 

Dak.   140 1917A     830 

S.  Samuel  &  Bosenfeld,  Kreg- 

linger   v.— [1915]    1    K.   B. 

857 19170     215 

S.  S.  KilmaVnock,  Eisdale  v. — 

[1915]   1  K.  B.  503 19170     757 

Stacy  V.  Dolan— 88  Vt.  369. .  1917A  650 
Standard    Accident    Ins.    Co., 

Collins'    ExecutorB    v. — 170 

Ky.  27 1917D       59 

Standard  Fashion  Co.  v.  Cum- 

mings— 187  Mich.   196 1916E     413 

Stanton,   State  v. — 172   Iowa 

477 1918A     813 

Stapleton,    Tyler    Commercial 

College  v.— 33  Okla.  305...  1916E  837 
Starkey,  State  v.— 112  Me.  8 

1917A     196 

Starkey's  Heirs,  Perdue  v. — 

117  Va.  806 19160     409 

Starks,     Commonwealth     v. — 

169  Ky.  410 1918B     525 

State,    Aarons    v. — 105    Miss. 

402 1916E     263 

State   v.   Alabama  Fuel,   etc. 

Co.— 188  Ala.  487 1916E     752 

State    ▼.    Asbury — 172    Iowa 

606  1918A     856 

State  v.  Ayles,  74  Ore.  153.. .  1916B  738 
State,  Babb  v.— 18  Ariz.  505.  1918B  925 
State  V.  Barnes — 29  N.  Dak. 

164 19170     762 

State,  Barrett  v.— 220  N.  Y. 

423 1917D  807 

State  V.  Baxter — 89  Ohio  St. 

269 19160       60 

State     V.     Bickford — 28     N.. 

Dak.  36 1916D     140 

State  V.  Bigelow— 88  Vt.  464.  1917A  702 
State,  Bird  v.— 142  Ga.  596..  19160  205 
State,  Bird  v.— 131  Tenn.  518.  1917A  634 
State,     Bishop     v. — 72     Tex. 

Crim.   1 1916E     379 

State    T.    Bowen    &    Co. — 86 

Wash.    23 1917B     625 

State,    Bradfield    v. — 73    Tex. 

Crim.  353    19170     696 

State,   Brindley   v.— 193   Ala. 

43 1916E     117 

State  V.  Brooken — 19  N.  Mex. 

404 1916D  136 

State,    Brown    v. — 105    Miss. 

367 1916B     307 

State,  Brown  v.— 87  Wash.  44  1917D  604 
State  V.  Brunette — 28  N.  Dak. 

539 1916E     340 

State,    Branson    v. — 70     Fla. 

387 1918A     312 

State  V.  Bunting— 71  Ore.  259.  19160  1003 
State  V.  Catholic— 75  Ore.  367 

1917B     913 

State    V.     Cessna — 170    Iowa 

728 1917D     289 


xliv 


CASES  REPORTED. 


PAGE 

State  V.  Chavez — 19  N.  Mex. 

325 1917B     127 

State,     Cole    v— 73     W.     Va. 

410 1916D  1256 

SUte   V.  Cooper— 74    W.    Va. 

472 1917D     453 

State  V,  Corcoran — 82   Waeh. 

44 1916E     531 

State   V.    Craft— 168   N.    Car. 

208 ,1917B  1013 

State  V.  Devinney — 174  Iowa 

748 1917D     239 

State  V.  Dougherty— 88  N.  J. 

Law  209 1917D     950 

State,     Dutton     v.— 123     Md. 

373  19160   89 

State  V.  Farnam — 82  Ore. 

211 1918A  318 

State  V.  Flanagan — 76  W.  Va. 

783 1917D  305 

State  V.  Flavin — 35  S.  Dak. 

530 1918A  713 

State    V.    Foxton — 166    Iowa 

181 1916B     727 

State  V. .  Gardner — 174  Iowa 

748 1917D  239 

State,     Gherna    v. — ^16    Ariz. 

344 1916D   94 

State  V.  Gish— 168  Iowa  70..  1917B  135 
State  V.  Giudice — 170  Iowa 

731 1917C  1160 

State,  Gordon  v. — 125  Ark. 

HI 1918A     419 

State  V.  Gordon— 32-  N.  Dak. 

31 1918A     442 

State  v.  Gould— 261  Mo.  694.  1916E  853 
State,     Graham    v.— 143     Ga. 

440 1917A     595 

State    v.    Great    Northern    R. 

Co.— 130  Minn.  57 1917B  1201 

State,  Griffin  v.— 142  Ga.  636.  1916C  80 
State    V.    Griffin— 98    S.    Car. 

105 1916D  ,  392 

State    V.    Haflfer — 94     Wash. 

136 1917E     229 

State,  Hamraett  v. — 42  Okla. 

384 1916D  1148 

State,     Harris     v.— 23     Wyo. 

487 1917A  1201 

State,    Hummelshime    v. — 125 

Mo.  563 1917B  1072 

State,  Hunt  v.— 114  Ark.  239.  1916D  533 
State   v.   Ilgenfritz — 263   Mo. 

615 1917C     366 

State  v.  Inlow— 44  Utah  485.  1917A  741 
State,  Jackson  v. — 213   N.  Y. 

34 1916C     779 

State,  James  v.— 193  Ala.  55.  1918B  119 
State     V.     Keeler — 54     Mont. 

205 1917E     619 

State,  Kennedy  v. — 117  Ark. 

113 1917A  1029 

State,    Kenner    v. — 121    Ark. 

95 1917D     657 

State  V.  Kenosha  Home  Tele- 
phone Co.— 158  Wis.  371...  1916E  365 
State  V.  Kilmer— 31   N.   Dak. 

442 1917E     116 


PAGE 

State  V.  Klasoner — 19  N.  Mex. 

474 1917D     824 

State.   Knowles   v. — 113   Ark. 

257 1916C     568 

State  V.  Lapoint— 87  Vt,  115.  1916C  318 
State  v.  Lasecki — 90  Ohio  St. 

10 1916C  1182 

State  v.  Lawrence — 108  Miss. 

291 1917E     322 

State,  Lee  v.— 16  Ariz.  291 .. .   1917B     131 

State,  Lee  v.— 69  Fla.  255 1917D     236 

State  v.   Lehman — 131   Minn. 

427 1917D     615 

State,  Levi  v.— 182  Ind.  188. .  1917A  654 
State  V.  Lewis,  173  Iowa  643.  1918A  403 
State,  Lindsey  v. — 66  Fla.  341 

19160  1167 

State  V.  Lipkin — 169  N,  Car. 

265 1917D  137 

State    V.   Longino — 109    Miss. 

125 1916E     371 

State,   Longmire    v. — 75    Tex. 

Crim.  616 1917A     726 

State,     Mason      v. — 74     Tex. 

Crim.  256 1917D  1094 

State  V.  McAninch — 172  Iowa 

96 1918A     559 

State,     McCall     v. — 18     Ariz. 

408 1918A     168 

State    v.    McKay — 137    Tenn. 

280 1917E     158 

State  v.  Mewhinney — 43  Utah 

135 19160     537 

State,  Miami  Copper  Co.  v. — 

17    Ariz.   179 1916E     494 

State  V.  Missouri,  etc.  R.  Co. 

—262   Mo.   507 1916E     949 

State   v.    Missouri    Pacific   R. 

Co.— 96  Kan.  609 1917A     612 

State    V.     Morgan — 44     Utah 

224 1916D  1279 

State  V.  Nipper — 166  N.  Car. 

272 19160     126 

State,  Northern  Pacific  R.  Co. 

v.— 84  Wash.  510 1916E  1166 

State    V.    Osborne — 171    Iowa 

678 1917E     497 

State,  Owens  v.— 68  Fla.  1.54.  1917B  252 
State  V.  Pailet — 139  La.  697.  .  1918A  102 
State,  Patterson  v. — 191  Ala. 

16 19160     968 

State  V.  Pay — 15  Utah  411...  1917E  173 
State  V.  Peck— 88  Conn.  447. .  1917B  227 
State    V.    People's    Ice    Co. — 

127  Minn.  252 19160     618 

State  V.  Pitt— 166  N.  Car.  268 

19160     422 

State       V.       Provencher — 135 

Minn.   214 1917E     598 

State  V.  Randall- 170  N.  Car. 

757 1918A     438 

State  V.  Reed— 53  Mont.  292.  1917E  783 
State.    Reeves    v.— 106    Miss. 

S8.T 1917A  1245 

State  V.  Ricks — 108  Miss.  7..  1917E  244 
State,  Riggins  v. — 125  Md. 

165 1916E  1117 

State.  Ro'berts  v.— 100  Neb. 

199 1917E  1040 


CASES  REPORTED. 


xlv 


State,  Robinson  v. — 69  Fla. 
521 

State  V.  Royal  Mineral  Asso- 
ciation—132   Minn.  232 

State,  St.  Louis,  etc.  R.  Co. 
v.— 120   Ark.   182 

State  V.  Salisbury  Ice,  etc. 
Co.— 166  N.  Car.  366 

State  V.  Salisbury  Ice,  etc. 
Co.— 166  N.  Car.  403 

State  V.  Sanders — 136  La. 
1059 

State  V.  Sawyer— 113  Me.  458 

State,  Schmidt  v. — 159  Wis. 
15 

State  V.   Schuman — 89  Wash. 


9. 


State    V.    Selengut— 38    R.    I. 

302 

State   V.    Shaft— 166   N.   Car. 

407 

State,    Sively    v.— 107    Miss. 

118 

State,    Skarda    v. — 118    Ark. 

176 

State   V.    Smith— 101   S.    Car. 

293 . 

State    V,    Solomon — 158    Wis. 

146 

State  V.  Stanton — 172  Iowa 

477 

State  V.  Starkey- 112  Me.  8. 
State,  Stokes  v.- 121  Ark.  95. 
State  V.  Sutton — 87  N.  J.  Law 

192 

State   V.    Tetrault— 78   N.   H. 

14 

State,  Tingue  v.— 90  Ohio  St. 

368 

State  V.  Towers— 37  Nev.  94. 
State,      Van      Winkle      v, — 4 

Boyce  (Del.)  578 

State  V.   Von   Klein — 71   Ore. 

159 

State     V.     Ward  — 170     Iowa 

185    

State     V.     Ward- 127     Minn. 

510    

State    V,    Wetzel— 75    W.    Va. 

7   

State,     Woods     v.— 123     Ark. 

Ill    

State  ex  inf.  Barker  v.  Dun- 
can—265   Mo.    26 

State  ex  inf.  Harvey  v.  Mis- 
souri    Athletic     Club  —  261 

Mo.  576   

State  ex  r«l.  Anderson  v.  Gen- 
eral   Accident,    etc.    Assur. 

Corp.- 134  Minn.  21 

State    ex    rel.    Atty.    Gen.    v. 

Arkansas   Cotton   Oil   Co. — 

116  Ark.  74   

State    ex    rel.    Attv.    Gen.    v. 

Knight— 169  N.  Car.  333... 
State    ex    rel.    Attv.    Gen.    v. 

Pratt— 192  Ala.  118 


PAGE  PAGE 

State  ex  rel.  Barker  v.  Mer- 
1917D     506  chants'   Exchange — 269   Mo. 

346 1917E     871 

1918A     145       State  ex  rel.  Botsford  Lumber 

Co.  V.  Taylor— 34  S.  Dak.  13  1916E  1285 
1917C     873       State  ex  rel.  Burdick  v,  Tyrell 

—158  Wis.  425   1916E     270 

1916C     456       State  ex  rel.  Burns  v.  Linn — 

49  Okla.  526    1918B     139 

1916C     728       State  ex  rel.   Caldwell,  Stout 

v.— 36  Okla.  744 1916E     858 

1916E     105       State     ex     rel.     Clarkson     v. 

Philips— 70  Fla.  340 1918A     138 

1917D     650       State  ex  rel.  Collins  v.  Sena- 
tobia  Blank  Book,  etc.  Co. 

1916E     107  —115  Miss.  254    1918B     953 

State  ex  rel.  Dawson  v.  Har- 

1918A     633  per— 94  Kan.  478   1917B     464 

State    ex    rel.     De    Burg    v. 
1917D     303  Water    Supply    Co.— 19    N. 

Mex.  36 1916E  1290 

1916C     627       State   ex   rel.   Duluth   v.   Dis- 
trict Court— 134  Minn.  28 . .   1918B     635 
1917B  1075       State  ex  rel.  Fiahback  v.  Uni- 
versal Service  Agency  —  87 

1916E     586  Wash.  413    1916C  1017 

State  ex  rel.  Gass  v.  Gordon — 

19170     149  266  Mo.  394 1918B     191 

State  ex  rel.  Hogan,  Renschler 

1916r     309  v.— 90  Ohio  St.  363 1916C  1014 

State  ex  rel.  Howie  v.  Brant- 

1918A     813  ley— 113    Miss.    786 1917E     723 

1917A     196       State  ex  rel.  Huflf,  White  v.— 

1917D     657  183   Ind.   649 1917B     527 

State     ex     rel.     Hunsting    v. 
19170       91  Board   of   State   Canvassers 

—159  Wis.  216   1916D     159 

1918B     425       State  ex  rel.  Ilsley  v.  Leuch— 

156  Wis.  631    1917B     778 

19160  1156       State    ex    rel.    La    Londe    v. 

1916D     269  White— 130  Minn.   336 19170     510 

State  ex  rel.  Langer  v.  Craw- 

1916D     104  ford— 36  N.  Dak.  385 1917E     955 

State  ex  rel.  Lanng  v.  Long — 

19160  1054  136  La.  1 1917B     240 

State  ex  rel.  Linde  v.  Taylor 

1917B     978  —33  N.  Dak.  76   1918A     583 

State  ex  rel.  Marshall  v.  Dis- 
19160     674  trict  Court- 50  Mont.  289..   19170     164 

State    ex   rel.    Mayor,    etc.    v. 
1918A  1074  Louisiana,   etc.  R.   Co.— 135 

La.  14 19160  1170 

1918A     348       State    ex    rel.    McNerney    v. 

Armstrong— 97  Neb;  343...   1917A     554 
1916D         1       State  ex  rel.  Meek  v.  Kansas 

City— 93  Kan.  420   1916E       1 

State   ex   rel.  Metcalf  v.  Dis- 
1916D     931  trict  Court— 52  Mont.  46  .  .   1918A     985 

State  ex  rel.  Meyer  v.  Clifford 

—81  Wash.  324 1916D     329 

1918B     615       State  ex  rel.  Missouri  Pacific 
R.     Co.     v.     Atkinson— 269 

Mo.   634    1917E     987 

1917A  1178       State  ex  rel.  Moose  v.  Frank 

—114  Ark.  47   1916D     983 

1917D     517       State   ex  rel.   Munding  v.  In- 
dustrial      Commission  —  92 
1917D     990  Ohio  St.  434   1917D  1162 


sM 


CASES  REPORTED. 


PAQK 

State  ex  rel.  Nestor,  Murray 

v.— 91  Ohio  St.  220 1916B     864 

State  ex  rel.  Northfield  v.  Dis- 
trict Court— 131  Minn.  352.   1917D     866 

State  ex  rel.  Peterson  v.  Dun- 
lap— 28  Idaho  784   1918A     546 

State  ex  rel.  Reynolds  v.  Jost 
—265  Mo.  51    1917D  1102 

State  ex  rel.  Ryals,  Memphis 

v.— 133  Tenn.  83 19170  1056 

State  ex  rel.  Shaver  v.  Iowa 
Telephone  Co.  — 175  Iowa 
607 1917B     539 

State     ex     rel.    Thatcher     v. 

Keith— 37  Nev.  452    ,.  1917A  1276 

State  ex  rel.  Thompson  t. 
Reichman  — 135  Tenn.  653, 
685    1918B     889 

State     ex     rel.     Timothy     v. 

Howse— 134  Tenn.  67 19170  1125 

State  ex  rel.  Watts  Engineer- 
ing Co.  V.  PubUc  Service 
Commission- 269   Mo.   525..   1917E     786 

State  ex  rel.  Wickham  v. 
Nygaard- 159  Wis.  396  ....  1917A  1065 

State  ex  rel.  Zien  v.  Duluth — 

134  Minn,  355 1918A     683 

State,  for  use  of  Mills  v. 
American  Surety  Co.  —  26 
Idaho  652  1916B     209 

State  Banking  Com'r  v.  E. 
Jossman  State  Bank — 185 
Mich.  24   19170  1203 

State     Board     v.     TerriU — 48 

Utah  647   1918B  1117 

State  Fish  Commission,  Bar- 
ker v.— 88  Wash.  73 1917D     810 

State  Public  Utilities  Com.  v. 
Noble  Mutual  Tel.  Co.— 268 
HI.  411    1916D     897 

State  Public  Utilities  Com. 
ex  rel.  Macon  Co.  Tel.  Co. 
v.  Bethany  Mutual  Tel. 
Assoc- 270  111.  183 1917B     495 

State  Public  Utilities  Com. 
ex  rel.  Mitchell  v.  Chicago, 
etc.  B.  Co.— 275  111.  555...   19170       50 

State  Accident  Ins.  Co.,  Hut- 
ton  v.— 267  111.  267 19160     577 

Steamship  Amerika,  Admir- 
alty Commissioners  v. — 
[1917]  A.  C.  38 1917B     877 

Steamship    Appam,    The — 243 

U.  S.  124   1917D     442 

Steele   v.    Dowling— [1914]    2 

I.  R.  432 1917B     480 

Steele,     Planters'     Fire     Ins. 

Co.   v.— 119   Ark.   597 1917B     667 

Steele,  etc.   Co.  v.  Miller— 92 

Ohio  St.  115 19170     926 

Steeplechase  Park  Co.,  People 

v.— 218  N.  Y.  459.  . ; 1918B  1099 

Steers,    Brooklyn    Heights    R. 

Co.  v.— 213  N.  Y.  76 1916C     791 

Steinberg,  Erie  R.  Co.  v. — 94 

Ohio  St.  189 1917E     661 


PAGE 

Steingester,  Baumana  v. — 213 

N.  Y.  328   19160  1071 

Steinhauser,      Order     of     St. 

Benedict     v.  —  234     U.     8. 

640    1917A     463 

Stenson    v.    H.    S.    Halverson 

Co.— 28  N,  Dak.  151   1916D  1289 

Stephan,  Matter  of — 170  Cal, 

48   1916E     617 

Stephens,  Stucky  v, — 115  Ark, 

572  1917A  133 

Stephenson,  Reirden  v. — 87 

Vt,  430  19160  109 

Sterling,  Ferris  v, — 214  N.  Y. 

249   1916D  1161 

Stertz  v.  Industrial  Ins.  Com- 
mission—91  Wash.  588 1918B     354 

Stetz  V,  F.  Mayer  Boot,  etc. 

Co.— 163  Wis.  151 1918B     675 

Stevens  v,  Stevens — 181  Mich. 

438    1916E  1259 

Stevenson     v.     Donnelly — 221 

Mass.  161   1917E     932 

Stewart  v.  Hagerty — 251  Pa. 

St.   603    1917D    483 

Stewart,  Leno  v. — 89  Vt.  286 

1917A     509 

Stewart  v.  Murphy — 95   Kan. 

421    19170     612 

Stewart  v.  Ridenour — 97  Neb. 

451  1917A  242 

Stewart,      Solomon      v,  — 184 

Mich,  506  1917A     942 

Stewart    v.    Talbot — 58    Colo. 

563    19160  1116 

Stillwell,  Vandalia  R,  Co,  v, — 

181  Ind,  267 1916D     258 

Stilz,    Ketelsen    v. — 184    Ind. 

702    1918A     965 

Stockton      Electric      R,      Co,, 

Froeming   v. — 171    Cal.    401 

1918B     408 

Stoker    v.    Gowans — 45    Utah 

556    1916E  1025 

Stokes  T.  State — 121  Ark,  95 

1917D     657 

Stollenwerck   v.   Marks  — 188 

Ala.  587   19170     981 

Stone   V.   Fidelity,   etc.   Co. — 

133  Tenn.  672 1917A       86 

Stone,  Middleton  v, — 163  Ky, 

571     1917E       84 

Stonegap  Colliery  Co.  v.  Ham- 
ilton—119  Va.  271   1917E       60 

Stonerook     v.      Wisner — 171 

Iowa  109 1917E     252 

Storch,  Soekland  v. — 123  Ark. 

253     1918A     668 

Story,     Cook    v.  — 89     Wash, 

109    19170     985 

Stout  V,  State  ex  rel,  Caldwell 

—36  Okla,  744 1916E     858 

Stover,    First    National   Bank 

v.— 21  N.  Max.  453 1918B     145 

Strahl     V.     Miller— 97     Neb. 

S20    1917A     141 

Stratton    v.    Wilson — 170    Kv. 

61    19183     917 


CASES  EEPORTED. 


xlvii 


PAGE 

Straus      T.      Victor      Talking 

Machine  Co.— 243  U.  S.  490  1918A  955 
Streeter,  Agar   v. — 183   Mich. 

600    1916E     518 

Streich  v.  Board  of  Education 

—34  S.  I>ak.  169   1917A     760 

Streit  V.  Wilkerson— 186  Ala. 

88   1917E     378 

Streudle   v.   Leroy — 122    Ark. 

189     1917D     618 

Stroehmann's  Vienna  Bakery, 

Voeckler  v.— 75  W.  Va.  384 

1917A     350 

Strong  V.  Brown— 26  Idaho  1.  1916E  482 
Stuart  V.  Elk  Horn  Bank,  etc. 

Co.— 123  Ark.  285    1918A     268 

Stull,  Eavenscroft  r.— 280  111. 

406    1918B  1130 

Stubbs,    Moody    v. — 94    Kan. 

250    19170     362 

Stuckey   v.  Stephans  — 115 

Ark.  572  1917A  133 

Studebaker      Corporation      v. 

Hanson— 24  Wyo.  222 1917E     557 

Studebaker    Corporation,    Me- 

Ginnis  v.— 75  Ore.  519 1917B  1190 

Suburban  Homes  Co.  v.  North 

—50  Mont.  108 19170       81 

Succession  of  Lefort — 139  La. 

51    1917B     769 

Sudbury,      Bank      of      Holly 

Grove  v.— 121  Ark.  59 1917D     373 

Sullivan,       Nevada       County 

Bank  v.— 122  Ark.  235 1917D     736 

Summers     Parrott     Hardware 

Co.,     Colley     v.  — 119     Va. 

439    1917D     375 

Sun   Pub.   Co.,   Wilson   v.— 85 

Wash.   503    1917B     442 

Sun   Savings   Bank,   Byers   ▼. 

41  Okla.  728 1916D     222 

Superior    Court,    Larkin    v. — 

171  Cal.  719 1917D     670 

Superior  Court,  United  Rail- 
roads v.— 170  Cal.  755 1916E     199 

Superior  Portland  Cement  Co., 

McGarry  v.— 95  Wash.  412.  19iaA  572 
Susznik  v.  Alger  Logging  Co. 

—76  Ore.  189  19170     700 

Sutter  V.  Milwaukee  Board  of 

Fire        Underwriters — 161 

Wis.  615    1917E     682 

Sutton,    In    re — 50    Mont.    88 

1917A  1223 

Sutton    V.    Findlay    Cemetery 

Assoc— 270  HI.  11   1917B     559 

Sutton  V.  Ford— 144  Ga.  587.  1918A  106 
Sutton,  Orr  v. — 127  Minn.  37.  1916C  527 
Sutton,  State  v. — 87  N.  J.  Law 

192    19170       91 

Suvdam,   Black  v. — 81   Wash. 

279   1916D  1113 

Swaab,     Vitagraph     Co.     v. — 

248  Pa.  St.  478 1916C     311 

Swank,  Grant  v.— 74  W.  Va. 

93    1917C     286 

Sweet,    Nicoll    v. — ^163    Iowa 

683    1916C     661 


PAGE 

Sweetser     v.     Emerson  —  236 

Fed.  161   1917B     244 

Sweetser  v.  Fox— 43  Utah  40  19160  620 
Swett,    Mutual    Benefit    Life 

Ins.  Co.  v.— 222  Fed.  200  ...  1917B  298 
Switzer      v.       Sherwood  —  80 

Wash.  19   1917A     216 

Sylvia  Y  Cia,  Corry  v.  — 192 

Ala.  550   1917E  1052 

Syverson,      Bronson      v.  —  88 

Wash.  264 1917D     833 

Tacoma  School  District,  How- 
ard v.— 88  Wash.  167 1917D     792 

Taggart    t.    Hunter— 78    Ore. 

139   1918A     128 

Talbot,   Stewart   v. — 58   Colo, 

563    19160  1116 

Tallahassee,    Hadley    ▼.  —  67 

Fla.  436 19160     719 

Taminosian,    In    re — 97    Neb. 

514   1917A     435 

Tanner,  Adams  v.— 244  U.  S. 

590   ^ 1917D     973 

Tanner  v.  Culpeper  Construc- 
tion Co.— 117  Va.  154 1917E     794 

Tanner,     Huntworth     t.  —  87 

Wash.  670  1917D     676 

Tanner  v.  Sinaloa  Land,  etc. 

Co. — 43  Utah  14 /. 19160     100 

Tanzmann,     Louisiana     State 

Board  v.— 140  La.  756 1917E     217 

Tate,       Hedgecock      v.  — 168 

N.  Car.  660   1916D     449 

Tatham'8  Estate — 250  Pa.  St. 

269   1917A     855 

Taulbee    v.    Hargis — 173    Ky. 

433    1918A     762 

Tax  Lien  Co.  v.  Schultze — 213 

N.  Y.  9   19160     636 

Taylor,  Aetna  Life  Ins.  Co.  v. 

—128  Ark.  155   1918B  1122 

Taylor   v.    Moseley — 170    Ky. 

592    1918B  1125 

Taylor  v.  Northern  Coal,  etc. 

Co.— 161  Wis.  223 19160     167 

Taylor  v.  Spartanburg  &.,  etc. 

Co.— 98  S.  Car.  206 1916D     585 

Taylor,  State  ex  rel.  Botsford 

Lumber  Co.  v.— 34  S.  Dak. 

13    1916E  1285 

Taylor,  State  ex  rel,  Linde  v. 

—33  N.  Dak.  76 1918A     583 

Teat  v.  Land— 135  La.  782...  1916C  1208 
T.  E.  Hill  Co.  V.  United  States 

Fidelity,    etc.    Co.— 265    111. 

534    1917E       78 

Telford       v.       McGillis  — 130 

Minn.  397  1916E     157 

Ten     Broek     v.     Caldwell — 95 

Neb.    464    1916D     613 

Tenement   House   Department 

V.  McDevitt— 215  N.  Y.  160  1917A  455 
Tennants    (Lancashire)    v.   C. 

S.     Wilson     &     Co.— [1917] 

A.   C.  495 1918A         1 

Tennessee     Eastern     Electric 

Co..  Powolson  V. — 220  Mass. 

380   1917A     102 


xlviii 


CASES  REPORTED. 


PAGE 

Tennessee   State  Fair   Assoc, 

Hartman  v.— 134  Tenn.  149  1917D  931 
Tenney,  Divide  Canal,  etc.  Co. 

v.— 57  Colo.  14 1917D     346 

Tenney,  Gurney  v. — 226  Mass. 

277     1918A     739 

Tennis  Coal  Co.  v.  Sackett — 

172  Ky.  729   1917E     629 

Terminal      Taxicab      Co.      v. 

Kutz— 241  U.  S.  252   1916D     765 

Terrell,  First  Bank  of  Texola 

v._44  Okla.  719 1917A     681 

Terrill,    State     Board    v. — 48 

Utah   647    1918B  1117 

Terrill    V.    Virginia    Brewing 

Co.— 130  Minn.  46 19170     453 

Territory       v.       Curran  —  23 

Hawaii  421    1918A     234 

Terry,  American  Express  Co. 

v.— 126  Md.  254   1917C     650 

Terry,    Webster   v.— [1914]    1 

K.  B.  51   1917A     226 

Tetrault,  State  v.— 78  N.  H. 

14    1918B     425 

Tevifl  -V.    Tevifr— 259    Mo.    19 

1917A  y  865 

Thaw,  Barton  v.— 246  Pa.  St, 

348   1916D     570 

The  Brand— 224  Fed.  391 1917B     996 

The  Duncan,  Franklin  v. — 133 

Tenn.  472 19170  1080 

The  E.  Starr  Jones— 224  Fed. 

391   1917B     996 

Theriault    v.    California    Ins. 

Co.— 27  Idaho  476   1917D     818 

Thesmar,  Union  Buffalo  Mills 

Co.  v.— 98  S.  Car.  1 1916D     476 

The    Steamship    Appam  —  243 

U.  S.  124  1917D     442 

Thom     V.     Sinclair  —  [1917] 

A.  C.  127 1917D     188 

Thomas    v.    Brown — 116    Va. 

233   1917A     128 

Thomas  v.  Knights  of  Macca- 
bees—85  Wash.  665   1917B     804 

Thomas  Cusack  Co.  v.  Chicago 

—267  111.  344 19160     488 

Thomas  Cusack  Co.  v.  Chicago 

—242  U.  S.  526 19170     594 

Thompson,    In    re — 164    Iowa 

20  1916D  1210 

Thompson  v.   Alexander  City 

Cotton  Mills  Co.— 190  Ala. 

184   1917A     721 

Thompson   v.   Cincinnati,   etc. 

R.  Co.— 165  Ky.  256   1917A  1266 

Thompson  v.  Denver — 61  Colo. 

470    1918B     915 

Thompson  v.  Hamilton  Motor 

Co.— 170  Cal.  737  1917A     677 

Thompson   v.  J.  D.  Thompson 

Carnation  Co.— 279  111.  54..  1917E  591 
Thompson     v.     McLeod  — 112 

Miss.  383    1918A     674 

Thompson     v.     Redington — 92 

Ohio  St.  101 1918A  1161 

Thompson.     Sherlock     v. — 167 

Iowa  1  1917A  1216 


PAGE 

Thomsen  v.  Cayser — 243  U.  S. 

66    1917D     322 

Thorn,     Lyman    v. — 24    Wyo. 

326   1918A     368 

Thomhill     v.     Olson— 31     N. 

Dak.  81   1917E     427 

Thorp     V.     Lund — 227     Mass. 

474   1918B  1204 

Thurston  v.  Carter  — 112  Me. 

361   1917A     389 

Thysell     v.     McDonald  — 134 

Minn.  400 19170  1015 

Timberlake,    Wessell    v.  —  95 

Ohio  St.  21 1918B     402 

Times-Mirror    Co.,    Newby    v. 

—173  Cal.  387 1917E     186 

Tingue  v.  State — 90  Ohio  St. 

368  19160  1156 

Tipton  V.  Tipton— 169  Iowa 

182  19160  360 

Tvitle,   etc.  Co.,   Nicholas   v. — 

79  Ore.  226    1917A  1149 

Titus  V.  Pennsylvania  R.  Co. 

—87  N.  J.  Law  157 1917B  1251 

Titus,  Pennsylvania  R.  Co. — 

216  N.  Y.  17 19170     862 

Toca,    New    Orleans    v. — 141 

La.  551    1918B  1032 

Tolbert,      Greenwood      Cotton 

Mill  v.— 105  S.  Car.  273 19170     333 

Toledo    Scale    Co.    v.    Gogo — 

186  Mich.  442   1917E     601 

Tomlins,  People  v. — 213  N.  Y. 

240    19160     916 

Tomlinson,   Holt   County   v. — 

98  Neb.  777   1917A     853 

Tooley,  Matter  of  Estate  of — 

170  Cal.  164 1917B     516 

Topfer,    Malone    v.— 125    Md. 

157    1916E  1272 

Torbert,    Van    Boskerek    v. — 

184  Fed.  419   1916E     171 

Toronto  R.  Co.  v.  Rex— [1917] 

A.  C.  630 1918A  991 

Totten,  Diehl  v.— 32  N.  Dak. 

131  1918A  884 

Towers,    Pennsylvania   R.    Co. 

v.— 126  Md.  59   1917B  1144 

Towers,  State  v.— 37  Nev.  94.  1916D  269 
Townsley    v.     Hartsfield— 113 

Ark.  253    19160     643 

Trainor,     Serio     v. — 139     La. 

51    1917E     769 

Travelers'    Protective     Assoc. 

V.  Smith— 183   Ind.   59 1917B  1088 

Travis    v.    Knox    Terpenzone 

Co.— 215  N.  Y.  259    1917A     387 

Travis    v.    Unkart — 89    N.    J. 

Law  571    19170  1031 

Trenholm      v.     Klinker  — 108 

Miss.  263   1917E     289 

Trimble  v.  Wright— 81  Wash. 

279    1916D  1113 

Troll,      Frinckwirth's      Estate 

v.— 226  Mo.  473 1918B  1056 

Trollope,     Cox     v.— [1916]     2 

K.  B.  682   1918B     637 


CASES  REPORTED. 


xlix 


PAGE 

Trout  V.  Burnette — 99  S.  Car. 

276    1916E     911 

Trowbridge,     Bowie     v. — 175 

Iowa   118    1917D  1067 

Trowbridge,    Crandall   v. — 170 

Iowa  155   19160     608 

Trowbridge,    Parsons    v. — 226 

Fed.   15    19170     750 

Truax    v.     Raich— 239    U.    S. 

33    1917B     283 

Trust  Co.,  Herzog  v. — 67  Fla. 

54   1917A     201 

Trustees    of    Speers    Hospital, 

Dayton  v.— 165  Ky.  56 1917B     275 

Trustees     of     University     of 

Pennsylvania,       Board       of 

Trustees      of      Philadelphia 

Museums     v. — 251    Pa.     St. 

125    1917B     449 

Tucker  ▼.  Anderson — 172  Iowa 

277    1918A     769 

Tucker  v.  Blease — 97  S.  Car. 

303    19160     796 

Tucker,    Oklahoma    City    v. — 

11  Okla.  Crim.  266 1917D     984 

Tuff,      Cohen     v.  —  4     Boyce 

(Del.)    188    19170     596 

Turley,     Germania    Fire    Ins. 

Co.  v.— 167  Ky.  57 19170     931 

Turner,  In  re— 94  Kan.  115..  1916E  1022 
Tuttle,  Andrews  v. — 45  Utah 

98   1918A     475 

Twentieth      Street     Bank     r. 

Jacobs— 74  W.  Va.  525 1917D     695 

Twin  State  Gas,  etc.  Co.,  Pol- 

lica  v.— 88  Vt.  205 19170  1240 

Tyler    Commercial    College    v. 

Stapleton— 33  Okla.  305...  1916E  837 
Tyrrell,  State  ex  rel.  Burdick 

v.— 158  Wis.  425 1916E     270 

Underwood  v.  Fosha — 96  Kan. 

549    1917A     265 

Union     Buffalo     Mills    Co.    v. 

Thesmar— 98  S.  Car.  1 1916D     476 

Union  Ice,  etc.  Co,  v.  Ruaton 

—135  La.  898 19160  1274 

Union    Pacific    R.    Co.,    Brush- 

aber  v.— 240  U.  S.  1 1917B     713 

Union    Pacific    R.    Co.,    Kriss 

v.— 100  Neb.   801 1918A  1122 

Union  Savings,  etc.  Co.  v.  Dis- 
trict Court — 44  Utah  397..  1917A  821 
Union  Savings,  etc.  Co.,  Griffin 

v.— 86  Wash.  605 1917B     267 

Union  Savings,  etc.,  Co.,  High- 
tower  v.— 88'  Wash.  179 1918A     489 

Union  Savings,  etc.  Co.,  Rem- 

snider  v.— 89  Wash.  87 1917D       40 

Union  Traction  Co.,  Norton  v. 

—183    Ind.   666 1918A     156 

Union  Trust  Co.,  Grosman  v. — 

228   Fed.   610 1917B     613 

Union   Trust   Co.,  Porter   v. — 

182   Ind.   637 1917D     427 

United  Commercial  Travelers, 

Berry  v.— 172  Iowa  429 1918A     706 

United  Railroad?,  McLaughlin 

v.— 169  Cal.  494 1916D     337 


PAQK 

United  Railroads  v.   Superior 

Court— 170  Cal.  755 1916E     199 

United  Realty,  etc.  Co.,  Sav- 
ings Investment,  etc.  Co.  v. 

—84  N.  J.  Eq.  472 1916D  1134 

United  States,  Ex    p.— 242  U. 

S.   27    1917B     355 

United   States,  Arver  v. — 245 

U.   S.   366 1918B     856 

United    States,    Bolland    v. — 

238  Fed.  529    1918B     520 

United  States,  Caminetti  v. — 

242   U.  S.  470    1917B  1168 

United    States    v.    Coca    Cola 

Co.— 241  U.  S.  265 19170     487 

United   States,   Diggs   v.— 242 

U.  S.  470    1917B  1168 

United   States,   Grahl   v.— 245 

U.  S.  366 1918B     856 

United  States,  Graubard  v. — 

245   U.   S.   366 1918B     856 

United    States,    Hays    v.— 242 

U.  S.  470  1917B  1168 

United     States,     Independent 

Pub.  Co.  v.— 240  Fed.  849..  19170  1084 
United    States    v.    Jin    Fuey 

Moy— 244  U.  S.  394 1917D     854 

United  States,  Joplin  Mercan- 
tile Co.  v.— 213  Fed.  926...  19160  470 
United   States,   Kaufman  v. — 

212   Fed.   613 19160     466 

United    States,    Kramer    v. — 

245  U.  S.  366 1918B     856 

United    States    v.    Ness— 230 

Fed.   950    19170       41 

United   States  v.   New  South 

Farm,    etc.    Co.— 241    U.    S. 

64    19170     455 

United  States,  Oceanic  Steam 

Navigation  Co.  v.— 232  Fed. 

591     19170     248 

United  States,  Partridge  v. — 

39  App.  Cas.  (D.  C)  571...  1917D  622 
United    States,    Samuels    v. — 

232  Fed.  536 1917A    7U 

United  States,  Wangerin  v. — 

245  U.  S.  366 1918B     856 

United     States,     Weeks     v. — 

216   Fed.   292 19170     524 

United    States    Fidelity,    etc. 

Co.,     Coyle     v. — 217     Mass. 

268     19170     450 

United    States    Fidelity,    etc. 

Co.,  T.  E.  Hill  Co.  v.— 265 

III.   534    1917E       78 

United    States    Glue    Co.    v. 

Oak  Creek— 161  Wis.  211..  19i8A  421 
United  Surety   Co.,   Comey   v. 

—217  N.  Y.  268 1917E     424 

Universal  Film  Mfg.  Co.,  Mo- 
tion Picture  Patents  Co.  v, 

—243   U.   S.  502 1918A     959 

Universal      Service      Agency, 

State  ex  rel.  Fishback  v. — 

87   Wash.   413    19160  1017 

Unkart,    Travis   v. — 89    N.    J. 

Law  571    19170  1031 


CASES  EEPORTED. 


TJphoff  V.  Industrial  Board — 

271   111.   312 1917D 

Utah,  etc.  Lumber  Co.,  Volker 
Lumber     Co.     v. — 45     Utah 


PAGB 


603 


Valdez,    Young    v. — 61    Colo. 

485    

Valentino  v.  Schantz — 216  N. 

Y.   1    .-. 

Van  Boskerck  v.  Torbert — 184 
Fed.   419    

Vandalia  v.  Postal  Telegraph- 
Cable  Co.— 274  III.  173 

Vandalia  E.  Co.  v.  Stillwell— 
181   Ind.   267 

Van  Deman,  etc.  Co.,  Bast  v. 
—240  U.  S.  342...... 

Vanderlip,  Fish  v.— 218  N.  Y. 
29    

Vandewater  v.  Chicago,  etc. 
R.  Co.— 170  Iowa  687 

Vandry  v.  Quebec  B.  etc.  Co. 
—53  Can.  Sup.  Ct.  72 

Van  Guelpen's  Estate,  In  re — 
87    ^"ash.    146 

Van  Metre,  Guarenteed  In- 
vestment Co.  V. — 158  Wis. 
262    - 

Van  Ness  v.  Bansom — 215  N. 
Y.  557   

Van  Winkle  v.  State — 4  Boyce 
(Del.)    578    

Van  Woert  v.  New  York  Life 
Ins.  Co.— 30  N.  Dak.  27 

Varble  v.  Collins'  Executor — 
168  Ky.  247 

Varnville  Furniture  Co., 
Charleston,  etc.  E.  Co.  v. — 
237  U.  S.  597 

Va«quez  v.  Pettit  — 74  Ore. 
496    

Vaughan's  Seed  Store  v.  Simo- 
nini— 275    111.    477 

Vennen  v.  New  Dells  Lumber 
Co.— 161   Wis.   370 

Veronneau  ▼.  Bex — 54  Can. 
Sup.    Ct.   7 

Vessell,  Southern  E.  Co.  v. — 
192   Ala.   440 

Victor  Chemical  Works  v.  In- 
dustrial Board— 274  HI.  11. 

Victoria  Lumber  Co.  v.  Wells 
—139  La.   500 

Victor  Talking  Machine  Co., 
Straus  v.— 243  U.  S.  490... 

Vidmer  v.  Lloyd— 193  Ala.  386 

Viita   V.   Fleming — 132   Minn. 

128    

Virginia  Brewing  Co.,  Terrill 

v.— 130   Minn.   46 

Virginia  R.,   etc.   Co.   v.   Gor- 

sueh— 120  Va.  655 

Vrscoloid  Campany,  King  v. — 

219  Mass.  420    

Viss    V.     Calligan — 91     Wash. 

€73    


1917D  1158 

1918A  23 
1917C  780 
1916E  171 
1917E  523 
1916D  25g 
1917B  455 
1916E  150 
19170  1132 
19170  843 
19170  1037 

1916E  554 

1917A  580 

1916D  104 

1918A  203 

1916D  448 

1916D  333 

1917A  439 

1918B  713 

1918B  293 

1917E  612 

1917D  892 

1918B  627 

1917E  1083 

1918A  955 

1917A  576 

1917E  678 

19170  453 

1918B  838 

1916D  1170 

1918A  819 


Vitagraph  Co.  v.  Swaab — 248 
Pa.  St.  478 

Voeckler  v.  Stroehmann's  Vi- 
enna Bakery — 75  W.  Va. 
384    

Volker  Lumber  Co.  v.  Utah, 
etc.  Lumber  Co. — 45  Utah 
603    

Von  Klein,  State  v.— 71  Ore. 
159    

Wade    V.     Homer — 115    Ark. 

250    

Wadsworth  v.  Manufacturer's 

Water  Co.— 256  Pa.  St.  106. 
Wagner,    Craig    v. — 88    Conn. 

100    

Wagner,  Daniels  v.— 237  U.  S. 

547    

Wagner,  Newport  v. — 168  Ky. 

641    

Wagner  t.  Seattle— 84  Wash. 

275 

Wahl,  Seibold  v.— 164  Wis*.  82 

Waite,  Murray  v. — 113  Me. 
485    

Waitsfield  v.  Craftsbury— 87 
Vt.  406 

Wake  Water  Co..  Powell  & 
Powell  v.— 171  N.  Car.  290. 

Wales,  Mcintosh  v. — 21  Wyo. 
397    

Walker  v.  Portland  Savings 
Bank— 113  Me.  353 

Walker,  Ratcliffe  v.— 117  Va. 
569    

Walker  Bin  Co.,  Elyria  Sav- 
ings, etc.  Co.  V. — 92  Ohio 
St.  406 

Walker  Lumber  Co.,  Royal  Ins. 
Co.  V. — 24  Wyo.  59 

Wall  V.  Focke — 21  Hawaii  399 

Wallace  v.  Cox— 100  Neb.  601. 
Wallace,   Jowett   v.— 112    Me. 

389    

Walnut    Creek   Oil    Co.",   Hays 

v.— 75  W.  Va.  263 

Walsh  V.  Bridgeport — 88  Conn. 

528    

Walter  Magee,  McColgan  v. — 

172  Cal.  182   

Walton,      Armstrong     v. — 105 

Miss.    337    

Wangerin  v.   United  States — 

245   U.  S.   366 

Ward,  Adam  v.— [1917]  A.  C. 

309    

Ward  v.  J.  Samuels  &  Brother 

—37   R.   L   438 

Ward,  State  v.— 170  Iowa  185 

Ward,     State     v.— 127     Minn. 

510    

Warley,  Buchanan  v. — 165  Ky. 

559    

Warley,  Buchanan  v. — 245  U. 

S.  60 •• 


PAG» 
19160  311 

1917A  350 

1917D  1158 
19160  1054 

1916E  167 
1917E  1099 
1917A  160 
1917  A  40 
1917A  962 
1916E  720 
19170  400 
1918A  1128 
19160  387 
1917A  1302 
19160  273 
1917E  1 
1917E  1022 

1917D  1055 

1917£  1174 

19160  677 
1917D  699 

1917A  754 

1918A  802 

1917B  318 

1917D  1050 

1916E  137 

1918B  856 

1917D  249 

1918A  783 

1917B  978 

19160  674 

1917B  149 

1918A  1201 


CASES  EEPORTED. 


PAGE 

Warren  Mortgage  Co.  v.  Win- 
ters—94  Kan.  615 19160     956 

Washington,  Mountain  Timber 

Co.  v.— 243  U.  S.  219 1917D     642 

Watch  Hill  Fire  District,  Bar- 
ber v.— 36   R.  I.  236 1916D     191 

Waterf ord  Packing  ,  Co.,  Den- 
nis v.— 113  Me.   159 1917D     788 

Waterman,  Age-Herald  Pub- 
lishing Co.  v.— 188  Ala.  272.  1916E     900 

Water  Supply  Co.,  State  ex 
rel.  De  Burg  v. — 19  N.  Mex. 
36    1916E  1290 

Watson    V.    Adams — 187    Ala. 

490    1916E     565 

Watson  V.  Franklin — 187  Ala. 

490    1916E     565 

Watson,  People  v.— 216  N.  Y. 

565    1917D     272 

Wattera,  Hutton  v. — 132  Tenn. 

527    19160     433 

Waugh,  Board  of  Trustees  v. — 

105  Miss.  623 1916E     522 

Way    V.    Barney — 127    Minn. 

346    19160     565 

Wayne  County  Commissioners, 
Manchester  Township  Su- 
pervisors V. — 257  Pa.  St. 
442    1918B     278 

Wear  v.  Kansas  ex  rel.  Brew- 
ster—245  U.  S.  154 1918B     586 

Weaver,  Kelly  v.— 77  Ore.  267 

1917D     611 

Weaver  v.  Maxwell  Motor  Co. 
—186  Mich.  588 1917E     238 

Webb    V.    Bowden— 124    Ark. 

244    1918A       60 

Webb  V.  Butler— 192  Ala.  287 

1916D     815 

Weber,    Ex   p.— [1916]    A.    C. 

421    1916D     304 

Weber  v.  American  Silk  Spin- 
ning Co.— 38  R.  I.  309 1917E     153 

Weber  v.  Freed— 239  U.  S.  325 

19160     317 

Weber  v.  Weber— 113  Ark.  471 

19160     743 

Webster  v.  Terry— [1914]  1  K. 

B.  51    1917A     226 

Webster,     Western,    etc.    Ins. 

Co.  v.— 172  Ky.  444 19170     271 

Wedgwood,    In    re — [1915]     1 

Ch.  113 1917B     924 

Wedgwood,    Allen    v. — [1915] 

]    Ch.   113 1917B     924 

Weeks  v.  Carolina  Tel.  etc.  Co. 
—168  N.  Car.  468 19170       75 

Weeks  v.  United  States— 216 

Fed.   292    19170     524 

Weigel     v.     McCloskey  — 113 

Ark.   1    19160     503 

Weilbacher  v.  J.  W.  Putts  Co. 

—123  Md.  249 19160     115 

Weimer,    Builders'    Lime    etc. 

Co.  v.— 170  Iowa  444 19170  1174 

Weiner,  People  v.— 271  111.  74 

19170  1065 

Weirling  v.  St.  Louis,  etc.  R. 

Co.— 115  Ark.  505 1916E     253 


PAGE 

Welch    ▼.    Boston — ^221    Mass. 

155    ^ 1917D     946 

.Wells  v.  Ann  Arbor  B.  Co.— 

184  Mich.  1 1917A  1093 

Wells,  Fire  Association  v. — 84 

N.  J.  Eq.  484 1917A  1296 

Wells,  Victoria  Lumber  Co.  v. 

—139  La.  500 1917E  1083 

Welsh,  Glasgow  Coal  Co.  v. — 

[1916]  2  A.  C.  1 1916E     161 

Wende  v.  Chicago  City  R.  Co. 

—271  111.   437 191SA     222 

Werner  v.  Fraternal  Bankers' 
Reserve  Soe. — 172  Iowa  504 
1918A  1005 

Wernicke  Chemical  Co.,  May- 
field  v.— 65  Fla.  113 1917A  1196 

Werth,  Commonwealth  v. — 116 

Va.  604   1916D  1263 

Wessell     V.     Timberlake  —  95 

Ohio  St.   21 1918B     402 

West    V.    Pinkston — 44    Utah 

123    1916D  1065 

Westchester  Trust  Co.  v.  Gib- 
son—217  N.  Y.  454 1917E     853 

Westcott  V.  Gilman— 170  Cal. 

562    1916B    437 

Western,  etc.  Fire  In».  Co., 
Zimmerman  v. — 121  Ark. 
408    1917D     513 

Western  etc.  Ins.  Co.  v.  Web- 
ster—172   Ky.   444 19170     271 

Western  Maryland  R.  Co., 
James  Clark  Distilling  Co. 
v.— 242  U.  S.  311 1917B     845 

Western  Metal  Supply  Co.  v. 

Pillsbury— 172   Cal.  407 1917E     390 

Western  Tie,  etc.  Co.  v.  Camp- 
bell—113  Ark.  570 19160    943 

Western  Union  Tel.  Co.  v. 
Blake— 113  Ark.  545 19160     62a 

Western  Union  TeL  Co.  v. 
Burlington  Traction  Co. — 90 
Vt.   506 1918B     841 

Western  Union  Telegraph  Co., 

Cobb  v.— 90  Vt.  342 1918B  1156 

Western    Union    Tel.    Co.    v. 

Franklin— 114  Ark.  469 1916D    466 

Western  Union  Telegraph  Co., 

Jones  v.— 101  S.  Car.  181..   1917C     543 

Western  Union  Tel.  Co.  v. 
Louisville,  etc.  R.  Co.— 270 
111.  399 1917B     670 

Western  Union  Tel.  Co.  v. 
Louisville,  etc.  R.  Co. — 183 
Ind.  258 1917B     705 

Western  Union  Tel.  Co.,  Louis- 
ville, etc.  R.  Co.  V. — 195 
Ala.    124    1917B     696 

Western  Union  Tel.  Co.,  Louis- 
ville, etc.  R.  Co.  v.— 184  Ind. 
531    19170     628 

Western  Union  Tel.  Co.,  Mason 

v.— 169  N.  Car.  229 1917D     159 

Western  Union  Tel.  Co.,  Purdy 

v.— 97  S.  Car.  22 1916C     726 

Westloigh  Colliery  Co.,  Hay- 
ward  v.— [1915]  A.  C.  540.   1917D     877 


m 


CASES  REPORTED. 


PAOI 

Wetkopsky  v.  New  Haven  Gas 

Light  Co.— 88  Conn,  1 1916D     968 

Wetzel,  State  v.— 75  W.  Va.  7.   1918A  1074 
W.    G.    Ward   Lumber    Co.    v. 

American  Lumber,  etc.  Co. — 

247  Pa.  St.  267 1918A     451 

Wiiat  Cheer  Stables  Co.,  Car- 
roll v.— 38  R.  I.  421 1918B     346 

Wheatland  Industrial  Co.,  Gil- 
lespie v.— 22  Wyo.  331 1917A     287 

Wheeler,  etc.  Co.,  Blanton  v. — 

91   Conn.  226 1918B     747 

Whilden,   Johnson   v. — 166   N. 

Car.    104    1916C     783 

White  V.  Bower— 56  Colo.  575.   1917A     835 
White  V,  Nashville — 134  Tenn. 

688    1917D     960 

White,  New  York  Central  R. 

Co.  v.— 243  U.  S.  188 1917D     629 

White,  Pacific  Power,  etc.  Co. 

v.— 96  Wash.  18 1918B     125 

White  V.  State  ex  rel.  Huff— 

183  Ind.  649 1917B     527 

White,  State  ex  rel.  La  Londe 

v.— 130  Minn.  336 19170     510 

White  V.  Winche8tei^-124  Md. 

518    1916D  1156 

Whitener-London    Realty    Co., 

Neas  v.— 119  Ark.  301 1917B     780 

Whitmore,  Davis  Laundry,  etc. 

Co.  v.— 92  Ohio  44 1917C     988 

Whitridge,   Middleton   v.— 213 

N.  Y.   499 1916C     856 

Whittelsey      Mercantile      Co., 

Berner  v.— 93  Kan.  769 1916D     350 

Whittemore    v.    Baxter    Laun- 
dry Co.— 181  Mich.  564 1916C     818 

Whittlesberger,    Reck   v.— 181 

Mich.  463   1916C     771 

Wichita,     Blakeman      v.  — 93 

Kan.    444 1916D     188 

Wichita,  Griswold  v. — 99  Kan. 

502    1917D       31 

Wick  V.  Beck— 171  Iowa  115. .   1917A     691 
Wideman  v.  Faivre — 100  Kan. 

102    1918B  1168 

Wiebener  v.  Peoples — 44  Okla. 

32    1916E     748 

Wiffen     V.    Bailey— [1915]     1 

K.  B.  600 1916E     489 

Wightman    v.     Campbell — 217 

N.  Y.  479 1917E     673 

Wilcox,     Scofield     v.— 33      N. 

Dak.  239   1918A     836 

Wiley  V.  Solvay  Process  Co. — 

215  N.  Y.  584 1917A     314 

Wilkerson,  Streit  v. — 186  Ala. 

88    1917E     378 

Wilkins,  Paul  Jones  &  Co.  v. — 

135  Tenn.  146   1918B     977 

Wilkinson,      Dolbear      v. — 172 

Cal.  366 1917E  1001 

Wilkinson,   Grinnell  v. — 39  R. 

L  447   1918B     61S 

Willard    v.    Higdon— 123    Md. 

447     1916C     339 

Willett  V.  Janecke — 85  Wash. 

654    1917B     351 


PAOI 

Williams'    Estate,    In    re — 52 

Mont.  192 1917E     126 

Williams  v.  Boston  Wharf  Co. 

—220  Mass.  397 1917A     445 

Williams    v.    Burgess — 74    W. 

Va.    623 1917C  1185 

Williams   v.   Davis — 52   Mont. 

192    1917E     126 

Williams,  Drennen  v. — 59  Colo. 

301    1917A     664 

Williams  v.  Johnson — 50  Mont. 

7    1916D     595 

Williams    v.    Kidd— 170    Cal. 

631    1916B     703 

Williams,  Krickau  v. — 36  R.  I. 

85    1916C  1145 

Williams  v.  Llandudno  Coach- 
ing,      etc.       Co.— [1915]     2 

K.  B.   101 1918B     682 

Williams   v.  Noyes,  etc.  Mfg. 

Co.— 112  Me.  408 1916D  1224 

Williams     v.     Pullman     Co. — 

129  Minn.  97 1916E     374 

Williams     v.     Richardson — 66 

FI&.  234 1916D     245 

Williams  v.  S.  M.  Smith  In- 
surance Agency — 75  W.  Va. 

494    1917A     813 

Williams  v.  WiUiams — 112  Me. 

21    1916D     928 

Williams,   etc.   Co.,   Correll   v. 

—173  Iowa    571 1918A     117 

Wilson  V.  Blake— 169  Cal.  449  1916D  205 
Wilson     V.     Craig— 86     Wash. 

465    1917B     871 

Wilson    V.    Dorflinger — 218  N. 

Y.   84 1917D       38 

Wilson  V.  First  National  Bank 

—164  Iowa  402 1916D     481 

Wilson  V.  Hotehkiss — 171    Cal. 

617    1917B     570 

Wilson,  Manders  v. — 235  Fed. 

878    1918A  1052 

Wilson  V.  New— 243  U.  S.  332  1918A  1024 
Wilson  V.  Shrader— 73  W.  Va. 

105 1916D     886 

Wilson,   Stratton  v. — 170   Ky. 

61    1918B     917 

Wilson    V.    Sun    Pub.    Co.— 85 

Wash.  503   1917B     442 

Wilson    Wholesale    Co.,    Pick- 

rell,  etc.  Co.  v.— 169  N.  Car. 

381    1917C     344 

Wilton   Woolen    Co.   v.   G.   H. 

Bass  &  Co.— 112  Me.  483...  1916D  1023 
Wimbrough    v.     Wimbrough — 

12.3  Md.  619 1916E     920 

Winchester,  White  v. — 124  Md. 

518    1916D  1156 

Windsor  Trust  Co.,  Morris  v. 

—213  N.  Y.  27 1916C     972 

Winfield.   Erie  R.   Co,   v.— 244 

U.  S.  i70 1918B     662 

Winfield,    New    York    Central 

R.  Co.  v.— 244  U.  S.  147 1917D  1139 

Winnipeg,    Winnipeg    Electric 

R.    Co.    V. — 35    West    Law 

Rep.    9 1916E     181 


CASES  BEPORTED. 


liii 


PAGE 

Winnipeg   Electric    R,    Co.    v. 

Winnipeg — 35      West      Law 

Rep.    9 1916E     181 

Winslow      V.      Winslow — 133 

Tenn.   663 1917A     245 

Winters,   Minneapolis,   etc.    R. 

Co.  v.— 242  U.  S.  353 1918B       64 

Winters,  Warren  Mortgage  Co. 

v.— 94   Kan.   615 1916C     956 

Wisconsin  R.  etc.  Co.,  Koeller 

v.— 130  Minn.  265 1917C       71 

Wising     V.      Brotherhood      of 

American  Yoeman  —  132 

Minn.  303 1918A     621 

Wisner,      Stonerook      v. — 171 

Iowa    109 1917E     252 

Withers    v.    Barnes — 95    Kan. 

798 1917B       55 

Withers  v.  London,  etc.  R.  Co. 

—[1916]  2  K.  B.  772 1918B     341 

Witte    V.    Haben— 131    Minn. 

71 1917D     534 

W.  J.  Armstrong  Co.  v.  New 

York  Central,  etc.  R.  Co. — 

129    Minn.    104 1916E     335 

Woburn,  Woods  v. — 220  Mass. 

416 1917A     492 

Wolf   V.   Megantz — 184  Mich. 

452 1916D  1146 

Well    V.   Jensen — 36    N.   Dak. 

250 1918B     982 

Wolverine    Coal    Co.,    Andre- 

jwski  v.— 182  Mich.  298...  1916D  724 
Wolverton  v.  Mountain  States 

Tel.  etc.  Co.— 58  Colo.  58, . .  1916C  776 
Wood  V.  Gauld— 53  Can.  Sup. 

Ct.    51 19170     939 

Wood     V.     Logue — 167     Iowa 

436 1917B     116 

Wood  V.  Wood— 78  Ore.  181 .  .  1918A  226 
Woodburn    v.    Public    Service 

Commission — 82  Ore.  114..  1917E  996 
W^ooden    v.    Commonwealth — 

117  Va.  930 1917D  1032 

Woodle      V.      Settlemyer — 71 

Ore.    25 19160  1222 

Woodmen  of  the  World,  Cop- 

lin  v.— 105  Miss.  115 1916D  1295 

Woods,  Hardy  v.— 33  S.  Dak. 

416 1916C     398 

Woods  V.  Rock  Hill  Fertilizer 

Co.— 102   S.   Car.   442 1917D  1149 

W^oods  V.  State— 123  Ark.  111.  1918A  348 
Woods  V.  Woburn — 220  Mass. 

416 1917A     492 


PAGE 
Wormell,    Coe    ▼. — 88    Wash. 

119 19170     679 

Worthington,   Braash   v. — 191 

Ala.    210 19170     903 

Worthington  v.  District  Court 

—37  Nev.  212 1916E  1097 

Wright,      German      American 

Bank  v.— 85  Wash.  460 1917D     381 

Wright,  Trimble  v.— 81  Wash. 

279 1916D  1113 

W.   T.    Smith   Lumber   Co.   v, 

Jernigan — 185   Ala.   125 19160     654 

Wulzen,  In  re— 235  Fed.  362 .  .  1917A  274 
Wyandotte   Coal,    etc.    Co.    v. 

Wyandotte  Paving,  etc.  Co. 

—97    Kan.    203 19170     580 

Wyandotte    Paving,    etc.    Co., 

Wyandotte  Coal,  etc.  Co.  v. 

—97  Kan.  203 19170     580 

Wysor,  Howell  v.— 74  W.  Va. 

589 19160     519 

Yancey  v.  Boyce — 28  N.  Dak. 

187 1916E  258 

Yazoo,  etc.  B.  Co.  v.  Scott — 

108  Miss,  871 1917E  880 

Yeaman  v.  Galveston  City  Co. 

—106  Tex.  389 1917E  191 

Yellowstone  Valley  Land,  etc. 

Co.,  Fusselman  v. — 53  Mont. 

254 1918B     420 

Yonkus  V.  McKay — 186  Mich. 

203 1917E     458 

Yoos,    Cleveland    v. — 92    Ohio 

St.  493 1917D  1134 

Youmans    v.     Hanna — 35     N, 

Dak.   479 1917B     263 

Young    v.    Morris— 47     Okla. 

743 1918B     450 

Young,    Salt    Lake    City   v. — 

45  Utah   349 1917D  1085 

Young     V.    Valdez — 61    Colo. 

485 1918A       23 

Yukon  Investment  Co.,  Clarke 

v.— 83  Wash.  485 1916E     625 

Zamora,  The— [1916]   2  A.  C. 

77 1916B     233 

Zayas,   People   v.— 217   N.   Y. 

78 1917E     309 

Ziegler  v.  P.  Cassidy's  Sons — 

220  N.  Y.  98 1917B     248 

Zima.  Rezac  v.— 96  Kan.  752.  1918B  1035 
Zimmerman    v.    Western,    etc. 

Fire  Ins.  Co.— 121  Ark.  408.  1917D  513 
Zuccaro,  Ex  p.— 106  Tex,  197.  1917B     121 


DIGEST 

OF 

THE  CASES  REPORTED 

IN 

ANN.  CAS. 

1916C-1918B 


ABANDONTVEENT. 

Of  easement,  see  Easements,  4:-8. 
Abandonment    of    spouse    as    prerequisite 

for  alienation  suit,  see  Husband  and 

Wife,  50. 
Of    established    grade,    see    Streets    and 

Highways,  8. 

ABATEMENT. 

Death  of  officer,  see  Mandamus,  25. 
Pleas  in  abatement,  see  Pleading,  34-37. 
Of  will  contest,  see  Wills,  121,  140. 

ABATEMENT  AND  REVIVAL. 

Stay  of  civil  action  pending  prosecution, 
see  Actions  and  Proceedings,  14. 

Other  action  pending,  see  Actions  and 
Proceedings,  14,  15. 

Abatement  by  death,  see  Actions  and 
Proceedings,  16-18. 

Of  judgments,  see  Judgments,  27-29. 

ABATEMENT  OF  NUISANCES. 

See  Nuisances. 

ABBEEVIATIONS. 

"Etc.,"    meaning,    see    Mechanics'    Liens, 

24. 
Effect  of  "Jr."  after  name,  see  Names,  1. 

ABDUCTION. 

1.  An  indictment,  drawn  under  section 
1  of  Act  La.  No.  134  of  1890,  p.  175,  which 
statute  provides  for  the  punishment  of 
any  person  who  entices,  abducts,  induces, 
decoys,  hires,   engages,   employs,  or  takes 


(1) 


any  woman  of  previous  chaste  character 
from  her  father's  house,  or  from  any 
other  place  where  she  may  be,  for  the 
purpose  of  prostitution,  or  for  any  unlaw- 
ful sexual  intercourse,  at  a  house  of  ill 
fame,  or  at  any  other  place  of  like  char- 
acter, or  elsewhere,  and  which  charges  a 
person  with  having  taken  such  woman 
from  her  father's  house  "unto  the  public 
highway  for  the  purpose  of  having  un- 
lawful sexual  intercourse  with  her,  and 
did  unlawfully  have  sexual  intercourse 
with  her,"  is  sufficient.  State  v.  Sanders 
(La.)  1916E-105. 

2.  The  words  "any  unlawful  sexual  in- 
tercourse" means  unlawful  sexual  inter- 
course "to  any  extent;  in  any  degree;  at 
all";  and  they  cover  a  single  act  of  sexual 
intercourse.  State  v.  Sanders  (La.) 
1916E-102.  (Annotated.) 

ABORTION. 

1.  Nature  and  Elements,  1. 

2.  Parties  to  Offense,  2. 

3.  Evidence,  2. 

As  element  of  damage,  see  Breach  of 
Promise   of  Marriage,  .15. 

Conviction  of  attempted  abortion  on  in- 
dictment for  first  degree  murder,  see 
Homicide,  8,  13. 

Three  years  and  one  thousand  dollars  for 
administering  drugs,  sustained,  see 
Sentence  and  Punishment,  17. 

1.     NATURE  AND  ELEIVIENTS. 

1.  Administering  Harmless  Drug.  Under 
N.  C.  Revisal  1905,  §  3619,  specifying  the 
punishment  for  procuring  a  pregnant  wo- 
man to  take  a  drug  with  intent  to  procure 


DIGEST. 

1916C— 1918B. 


a  miscarriage,  where  a  drug  is  furnished 
for  the  purpose  of  producing  a  miscarriage, 
it  is  immaterial  that  it  is  not  noxious  or 
capable  of  producing  the  intended  effect. 
State  V.  Shaft  (N.  Car.)  1916C-627. 

2.  As  Including  Assault.  Procuring  an 
unlawful  abortion  upon  any  woman  al- 
ways involves  an  assault  in  law,  even 
when  it  is  done  with  her  consent  and  con- 
nivance, because  no  one  caii  consent  to  an 
unlawful  act.  State  v.  Farnam  (Ore.) 
1918A-318. 

2.     PARTIES  TO  OFFENSE. 

3.  Victim  as  Accomplice.  A  pregnant 
woman,  procured  by  defendant  to  take  a 
drug  with  intent  to  procure  a  miscarriage, 
is  not  an  accomplice  in  a  legal  sense. 
State     V.     Shaft     (N.     Car.)     1916C-627. 

(Annotated.) 
Note. 
Woman    upon    whom    abortion    is    com- 
mitted as  accomplice.     1916C-629. 

8.     EVIDENCE. 

4.  Evidence  as  to  Intercourse.  Where, 
on  a  trial  for  procuring  a  pregnant 
woman  to  take  a  drug  with  intent  to  pro- 
cure a  miscarriage,  the  pregnancy  of  the 
woman  is  undisputed,  evidence  as  to 
sexual  intercourse  on  her  part  is  immate- 
rial and  its  admission  is  harmless.  State 
V.  Shaft  (N.  Car.)   1916C-627. 

5.  Expert  Evidence.  On  a  trial  for  pro- 
curing a  pregnant  woman  to  take  a  drug 
with  intent  to  procure  a  miscarriage, 
where  there  is  evidence  that  a  capsule, 
some  of  which  was  administered,  con- 
tained aloes,  experts  are  properly  per- 
mitted to  testify  as  to  the  effect  of  such 
drug  on  pregnancy,  when  administered  in 
largo  doses.  State  v.  Shaft  (N.  Car.) 
1916C-627. 

ABSENCE. 

Tolling  statute,  see  Limitation  of  Actions, 
33-36. 

ABSOLUTE  PRIVILEGE. 

Non-existent    in    IT.    S.,    see    Libel    and 
Slander,  38,  52. 

ABSTRACT  ON  APPEAL. 
See  Appeal  and  Error,  53. 

ABUTTING  OWNERS, 
See  Adjoining  Landowners. 

ACCELERATION. 
See  Remainders  and  Reversions,  18. 

ACCEPTANCE. 
See   Banks   and  Banking,    13-22;    Public 

Contracts,  5;  Sales,  2,  5,  6. 
As  essential  to  dedication,  see  Dedication, 

6-16. 


Of  deeds,  see  Deeds,  17. 
As-  essential  to  pardon,  see  Pardons,  1. 
E'arnings  of  prostitute,  see  Prostitution,  16. 
Of  legacy  or  devise,  see  Wills,  243-248. 

ACCEPTING     DEPOSITS     WHEN     IN- 
SOLVENT. 
See  Banks  and  Banking,  13-22. 

ACCESSION. 

1.  Fittings  Added  to  Automobile, 
Where  the  purchaser  of  an  automobile, 
title  to  which  was  retained  by  the  seller, 
fitted  the  machine  with  tire  casings,  and 
the  seller  on  nonpayment  retook  the  ma- 
chine, title  to  the  tire  casings  passes  to 
the  seller,  the  seller  of  the  casings  not 
having  retained  title,  for  such  is  the  rule 
of  "accession,"  which  denotes  the  right  of 
the. owner  of  corporeal  property,  real  or 
personal,  to  any  increase  thereof  from  any 
cause,  either  actual  or  artificial.  Black- 
wood Tire,  etc.  Co.  v.  Auto  Storage  Co. 
(Tenn.)   1917C-1168.  (Annotated.) 

ACCIDENT. 

Meaning  within  Workmen's  Compensation 
Act,  see  Master  and  Servant,  194-202. 

ACCIDENTAL  MEANS. 

Meaning  defined,  see  Accident  Insurance^ 
15,  16,  18. 

ACCIDENT  INSURANCE. 

1.  The  Contract  in  General,  2. 

2.  Statutory  Regulations,  3. 

3.  Warranties  and  Representations,  4. 

4.  Cause  of  Injury,  4. 

5.  Extent   of   Injury,   5. 

6.  Notice  and  Proof  of  Injury,  5. 

7.  Waiver  of  Provisions,  5. 

8.  Action  on  Policy,  5. 

a.  Evidence,  5. 

b.  Instructions,   6. 

e.  Questions  for  Jury,  6. 
d.  Defenses,   6. 

THE  CONTRACT  IN  GENERAL. 

1.  Construction  Against  Insurer.  Where 
the  language  of  an  accident  policy  is  am- 
biguous, it  must  be  construed  most 
favorably  to  the  insured;  the  policy  being 
drawn  by  defendant.  Berry  v.  United 
Commercial   Travelers    (Iowa)    1918A-706. 

2.  "Immediate"  Disability.  An  accident 
policy,  providing  for  payment  of  death 
claim,  declared  that  if  death  should  result 
independently  of  all  other  causes  within 
ninety  days  from  the  accident,  though  not 
necessarily  causing  immediate  and  con- 
tinuous disability,  the  death  benefit 
should  be  paid,  while  if  injuries  should, 
independently  of  all  other  causes,  imme- 
diately, continuously,  and  wholly  disable 
and   prevent  insured  from  performing  all 


ACCIDENT  INSURANCE. 


duties  pertaining  to  his  occupation,  the 
death  benefit  should  be  paid  in  case  of 
death  occurring  within  200  weeks  of  the 
date  of  the  accident.  Insured,  a  dentist, 
injured  his  finger  with  a  burr,  contracting 
blood  poisoning  in  the  wound,  though  for 
several  days  before  he  was  forced  to  re- 
tire, he  was  able  to  go  to  his  office  and 
perform  part  of  his  ordinary  duties.  Af- 
ter a  month  in  bed,  he  returned  to  his 
oflfice  and  for  over  three  months  performed 
all  of  his  regular  duties,  dying  suddenly 
at  the  end  of  that  period.  It  is  held  that 
insured's  disability  was  immediate  and 
continuous  during  the  time  between  the 
infliction  of  the  wound  and  the  develop- 
ment of  infection,  and  so  recovery  cannot 
be  defeated  on  the  ground  that  there  was 
no  continuous  disability.  Doyle  v.  New 
Jersey  Filedity,  etc.  Ins.  Co.  (Ky.) 
1917D-851.  (Annotated.) 

3.  "Burning  of  Dwelling."  The  word 
"dwelling"  alone  is  not  commonly  used 
with  exactly  the  same  meaning  as  the 
words  "dwelling  house."  As  that  word 
is  used  in  a  policy  of  accident  insurance 
covering  injuries  caused  by  the  burning 
of  a  dwelling,  it  is  capable  of  being  under- 
stood to  mean,  "home  or  place  of  habita- 
tion." If  the  insured  did  so  understand, 
and  the  insurer  had  reason  to  suppose  he 
80  understood  it,  that  meaning  must  pre- 
vail. Neb.  Rev.  St.  1913,  §  7909.  Hamilton 
v.  North  American  Accident  Ins.  Co. 
(Neb.)    1917C-409.  (Annotated.) 

4.  Approval  by  Insurance  Commis- 
sioner. Where  a  form  of  an  accident  pol- 
icy had  been  approved  by  the  insurance 
commissioner,  it  will  be  presumed  that 
policies  issued  by  the  insurer  followed 
the  approved  form.  Lundberg  v.  Inter- 
state Business  Men's  Aec.  Assoc.  (Wis.) 
1916D-667. 

5.  Hernia  Clause.  Where  an  accident 
policy  under  the  by-laws  of  the  company 
insured  against  bodily  injury  through 
external,  violent,  and  accidental  means, 
which  would  prevent  the  insured  from  the 
prosecution  of  any  business  pertaining  to 
his  occupation,  but  excepted  damage  re- 
sulting from  hernia  and  injuries  not  the 
proximate  cause  of  the  disability,  the  as- 
signee of  the  insured  is  entitled  to  recover 
for  loss  of  time  resulting  from  a  fall 
which  produced  hernia,  whereby  he  was 
confined  in  the  hospital  and  was  rendered 
unable  to  perform  his  usual  work;  hernia 
being  a  consequence,  and  not  the  prox- 
imate cause,  of  the  injury.  Berry  v. 
United      Commercial      Travelers      (Iowa) 

-  1918A-706.  (Annotated.) 

6.  Validity  of  Contract  Limitation.  A 
provision  in  a  contract  of  insurance,  to 
the  effect  that  no  action  at  law  or  suit  in 
equity  shall  be  commenced  before  three 
months,  nor  after  six  months,  from  the 
date  on  which  affirmative  proof  of  acci- 


dent must  be  furnished  to  the  company, 
is  repugnant  to  the  provisions  of  section 
3321,  Idaho  Eev.  Codes,  which  provides 
that  every  stipulation  or  condition  in  a 
contract  by  which  any  party  thereto  is  re- 
stricted from  enforcing  his  rights  under 
the  contract  by  the  usual  proceedings 
and  the  ordinary  tribunals,  or  which 
limits  the  time  in  which  he  may  enforce 
his  rights,  is  void.  Douville  v.  Pacific 
Coast  Casualty  Co.   (Idaho)   1917A-112. 

7.  Time  to  Sue.  A  provision  in  an  ac- 
cident policy  requiring  suit  to  be  brought, 
if  at  all,  within  one  year  from  the  date 
of  the  accident  on  which  the  suit  is  predi- 
cated is  valid.  Bates  v.  German  Commer- 
cial Aec.  Co.  (Vt.)  1916C-447. 

8.  Reduction  of  Benefits.  An  accident 
policy  provided  that,  in  the  event  of  dis- 
ability due  wholly  or  in  part  to  or  result- 
ing directly  or  indirectly  from  hernia 
commencing  or  appearing  after  the  policy 
had  been  in  force  for  60  days  preceding, 
the  limit  of  the  company's  liability  should 
be  one-third  of  the  amount  that  would 
otherwise  be  payable  under  the  policy. 
Held,  that  such  clause,  construed  most 
strongly  against  the  insurance  company, 
provided  no  limitation  in  case  hernia  re- 
sulted within  the  60-day  period,  in  which 
case  the  company  was  liable  for  full  in- 
demnity. Bates  V.  German  Commercial 
Aec.  Co.  (Vt.)  1916C-^47. 

Notes. 

Construction  of  hernia  clause  in  ac(ri- 
dent  insurance  policy.     1918A-7I0. 

Construction  of  sunstroke  clause  in 
accident  insurance  policy.     1918A-523. 

Construction  of  provision  in  accident 
insurance  policy  relating  to  injury 
"caused  bv  burning  of  building"  or  simi- 
lar phrase".     1917C-410. 

Construction  of  clause  in  accident  in- 
surance policy  excepting  death  caused  by 
disease.     1917C-463. 

2.  STATUTORY    REGULATIONS. 

9.  Standard  Policy  Law.  St.  Wis.  1913, 
§  1960,  subsec.  1,  declares  that  no  accident 
policy  shall  be  issued  until  a  copy  thereof 
and  the  classification  of  risks  and  pre- 
mium rates  shall  have  been  filed  with  the 
commissioner  of  insurance  and  approved. 
Subsection  2  declares  that  in  such  policies 
any  provision  purporting  to  reduce  any  in- 
demnity shall  be  printed  in  bold-faced 
type  with  greater  prominence  than  any 
other  portion  of  the  text  of  the  policy, 
while  subsection  9  declares  that  a  policy 
issued  in  violation  of  the  act  shall  be 
valid,  but  the  rights  of  the  beneficiary 
shall  be  governed  by  the  act.  An  acci- 
dent policy,  providing  that  there  should 
be  no  recovery  on  account  of  bodily  in- 
jury caused  by  the  discharge  of  firearms 
unless  the  accidental  character  of  the  dis- 


DIGEST. 

1916C!— 1918B. 


charge  should  be  established  by  an  eye- 
witness, was  issued  with  the  approval  of 
the  insurance  commissioner.  Held  that, 
in  view  of  the  scope  of  the  commissioner's 
authority,  the  provision  could  not  be 
questioned  on  the  ground  that  it  was  not 
in  bold-faced  type.  Lundberg  v.  Inter- 
state Business  Men's  Ace.  Assoc.  (Wis.) 
1916D-667. 

Note. 
Construction  of  statute  requiring  stand- 
ard health   or   accident  insurance  policy. 
1916D-670. 

3.   WARRANTIES  AND  REPRESENTA- 
TIONS. 

10.  Representation  as  to  Receipt  of 
Previous  Indemnity.  Misrepresentation 
that  the  insured  had  never  claimed  or  re- 
ceived indemnity  for  any  accident  cannot 
as  a  matter  of  law  be  held  a  material  mis- 
representation, where  the  accident  for 
which  he  received  indemnity  was  in  no 
way  connected  with  the  one  causing  his 
death.  Rathman  v.  New  Amsterdam 
Casualty  Co.   (Mich.)   1917C-459. 

11.  Representation  as  to  Physical  Con- 
dition. A  representation  in  an  applica- 
tion for  an  accident  policy  that  insured 
was  in  sound  condition  and  had  not  been 
disabled  or  received  medical  or  surgical 
attention  within  the  past  five  years  is  an 
affirmative  warranty.  Rathman  v.  New 
Amsterdam  Casualty  Co.  (Mich.)  1917C- 
459. 

12.  Occupation  of  Insured  —  Notice  to 
Company.  A  statement  in  the  schedule  of 
warranties  in  an  accident  policy  that  in- 
sured, a  sales  agent,  had  "supervising 
duties,  not  setting  up  or  testing  machin- 
ery," is  sufficient  to  put  the  insurer  on 
inquiry  as  to  the  nature  of  insured's 
supervision  of  the  installation  of  gas  en- 
gines sold  by  him,  and  having  made  no 
inquiry,  it  is  precluded  from  claiming, 
after  an  accident,  that  his  employment 
was  extrahazardous.  Shoop  v.  Fidelity, 
etc.  Co.  (Md.)  1916D-954. 

4.     CAUSE   OF  INJURY. 

13.  Illness  of  Insured  as  Proximate 
Cause.  An  accident  policy  declared  that 
loss  of  life  should  be  deemed  to  mean 
death  from  bodily  injuries  not  intention- 
ally self-inflicted,  which  independently  of 
all  other  causes  are  effected  solely  by  ac- 
cidental means.  The  insured,  who  was 
suffering  from  nephritis  and  was  delirious 
part  of  the  time,  either  fell  or  jumped 
overboard  from  an  ocean  steamer  upon 
which  he  was  returning  home.  It  ap- 
peared that  he  left  his  berth  to  which  he 
had  been  confined,  and  that  his  wife  dis- 
covered him  outside  of  the  railing,  but 
her  grasp  was  torn  away  before  a  steward 
could  be  called.     It  is  held  that,  whether 


the  death  was  intentional  or  the  result  of 
an  accident,  the  illness  which  rendered 
insured  less  able  to  take  care  of  himself 
must  be  construed  as  the  proximate  cause, 
and  the  insurer  was  not  liable.  Rathman 
v.  New  Amsterdam  Casualty  Co.  (Mich.) 
1917C-459.  (Annotated.) 

14.  Result  of  Intentional  Act.  An  in- 
jury is  not  produced  by  accidental  means, 
within  the  terms  of  a  policy,  where  it  is 
the  natural  result  of  an  act  or  acts  in 
which  the  insured  intentionally  engages, 
and  is  caused  by  a  voluntary,  natural, 
ordinary  movement,  executed  as  was  in- 
tended. Stone  T.  Fidelity,  etc.  Co. 
(Tenn.)   1917A-86.  (Annotated.) 

15.  Complainant,  who  attended  a  foot- 
ball game  on  a  cool  day  when  the  grouud 
was  damp,  and  contracted  a  cold,  result- 
ing in  lumbago,  and  who  after  medical 
treatment  and  the  debility  resulting  from 
a  purgative,  and  while  lying  in  bed,  had 
a  paper  brought,  reached  for  it,  and 
raised  it  suddenly  above  his  head,  when 
his  strong  blood  pressure  caused  a  rupture 
of  the  retina,  destroying  the  sight  of  one 
eye,  cannot  recover  on  a  policy  insuring 
him  against  bodily  injury  through  "acci- 
dental means,"  since,  while  the  result  was 
not  foreseen,  the  cause  producing  the  re- 
sult was  not  accidental,  but  an  ordinary 
natural  movement,  executed  as  intended. 
Stone  V.  Fidelity,  etc.  Co.  (Tenn.), 
1917A-86.  (Annotated.) 

16.  Injury  Received  While  Fighting. 
Where  an  accident  policy  insures  against 
an  injury  effected  exclusively  by  acci- 
dental means,  insured,  who  assaulted  a 
third  person,  and  was  attacked  and 
knocked  down,  breaking  his  leg,  cannot 
recover  under  the  policy,  though  insured 
intended  by  a  single  blow  to  render  the 
third  person  unable  to  defend  himself, 
for  an  effect  which  is  the  natural  and 
probable  consequence  of  an  act  or  a 
course  of  action  is  not  produced  by  "acci- 
dental means."  Hutton  v.  State  Acci- 
dent   Ins.    Co.    (m.)    1916C-577. 

(Annotated.) 

17.  Sunstroke  as  Accident.  Where  an 
accident  policy  insured  against  death  or 
disability  through  external,  violent,  and 
purely  accidental  means,  provided  that, 
if  sunstroke  should  result  independently 
of  all  other  causes  in  the  death  of  in- 
sured, the  insurer  would  pay  the  indem- 
nity, a  sunstroke,  while  it  may  by  medical 
experts  be  deemed  a  disease,  is  to  be 
deemed  a  form  of  personal  injury;  it  be- 
ing considered  such  in  common  parlance, 
and,  if  a  disease,  not  being  an  appropriate 
matter  for  accident  insurance.  Bryant  v. 
Continental  Casualty  Co.  (Tex.)  1918A- 
517.  (Annotated.) 

18.  In  such  case,  the  term  "means,"  in 
the  phrase  "due  to  accidental  means,"  is 
used  in  the  sense  of  "cause,"  and  the  in- 


ACCIDENT  INSURANCE. 


surer  is  liable  for  the  death  of  the  in- 
sured, caused  by  exposure  to  sun  and 
humid  atmosphere  on  a  hot  day,  while 
pursuing  his  usual  vocation  in  an  ordinary 
way.  Bryant  v.  Continental  Casualty 
Co.    (Tex.)    1918A-517.  (Annotated.) 

Nates. 

Eight  to  recovery  under  Accident  in- 
surance policy  for  injuries  received  while 
fighting.     1916C-579. 

Intentional  exertion  as  "Accidental 
Means"  of  injury  within  accident  insur- 
ance policy.    '1917A-88. 

5.     EXTENT    OF   INJURY. 

19.  "Loss"  of  Hand.  An  accident  pol- 
icy, which  binds  insurer  to  pay  a  specified 
sum  on  insured  suffering  accidental  in- 
juries resulting  in  the  "loss  of  a  hand" 
by  removal  at  or  above  the  wrist,  makes 
insurer  liable  where  insured  was  acci- 
dentally shot  in  the  hand,  necessitating 
amputation  of  the  hand,  except  a  part 
apparently  worthless;  the  amputation  be- 
ginning at  the  wrist.  Moore  v.  Aetna 
Life  Ins.  Co.    (Ore.)   1917B-1005. 

(Annotated.) 
Note. 
"What   constitutes   loss    or   severance    of 
limb   or  member  within  meaning  of  acci- 
dent insurance  policy.     1917B-I008. 

6.     NOTICE  AND  PROOF  OF  INJURY. 

20.  Waiver.  In  an  action  on  an  acci- 
dent policy,  held,  that  the  whole  course 
of  dealing  by  the  defe'ndant  company 
shows  that  it  recognizes  a  local  agent  as 
an  agent  in  receiving  oral  notice  aud 
proof  of  the  accident,  and  so  acted  upon 
such  informjttion  as  to  waive  a  strict 
compliance  with  the  giving  of  written 
notice  of  such  accident.  Douville  v. 
Pacific  Coast  Casualty  Co.  (Utah)  1917A- 
112.  (Annotated.) 

7.     WAIVER  OF  PROVISIONS. 

21.  An  accident  policy  was  issued 
October  19,  1908,  and  two  days  thereafter 
plaintiff  suffered  accidental  injuries  which 
were  the  basis  of  the  suit.  He  seasonably 
filed  proofs  of  injury  which  were  rejected, 
and  nothing  further  was  done  until  Octo- 
ber 26,  1911,  when  defendant,  at  the 
suggestion  of  the  State  Insurance  Com- 
missioner, requested  full  information  con- 
cerning the  nature  of  the  accident,  stating 
that  on  receipt  of  the  same  the  company 
would  open  the  case.  This  request  was 
complied  with,  and  plaintiff  continued 
from  time  to  time  to  furnish  other  papers 
and  proofs  until  on  November  9,  1911, 
when  defendant  sent  plaintiff  a  check  for 
$2.5  in  full  settlement,  which  he  promptly 
returned    and    brought    suit.     Held,    that 


defendant's  acts  constituted  a  waiver  of 
the  policy  provision  requiring  suit  to  be 
brought,  if  at  all,  within  a  year  after  the 
date  of  the  accident  on  which  the  suit  was 
predicated.  Bates  v.  German  Commercial 
Ace.   Co.    (Vt.)    1916C-447.      (Annotated.) 

22.  Waiver  of  Limitation.  A  provision 
in  an  accident  policy  requiring  suit  to  be 
brought  within  a  year,  if  at  all,  is  matter 
for  the  benefit  of  the  company  and  may 
be  waived.  Bates  v.  German  Commercial 
Ace.   Co.   (Vt.)    1916C-447.      (Annotated.) 

Notes. 

Waiver  of  provision- in  accident  insur- 
ance policv  limiting  time  to  bring  suit 
thereon.     i916C-449. 

Waiver  of  provision  in  accident  insur- 
ance policy  requiring  notice  of  injury  or 
death  to  be  given  within  certain  time. 
1917A-114. 

8.    ACTION  ON  POLICY. 

a.     Evidence. 

23.  Parol  Evidence.  A  warranty,  in  an 
application  for  accident  insurance,  that 
insured's  connection  with  certain  machin- 
ery was  as  "supervising"  agent  only  is 
not  so  definite  in  its  meaning  as  to  ex- 
clude parol  evidence  to  show  what  were 
the  duties  of  a  supervising  agent.  Shoop 
V.   Fidelity,   etc.   Co.    (Md.)    1916D-954. 

24.  Proof  of  Failure  to  Defend  Action, 

Where  an  accident  policy,  conditioned  to 
save  a  motorist  harmless  from  action  from 
injuries  caused  by  her  car,  required  the 
motorist  to,  in  good  faith,  co-operate  with 
the  insurer  in  defending  actions,  a  finding 
by  the  jury  that  the  motorist  failed  to 
comply  with  such  conditions,  by  failing  to 
set  up  contributory  negligence  of  a  guest  of 
the  motorist,  suing  for  injuries  received  in 
an  action  against  the  motorist,  is  held  to  be 
warranted  by  the  evidence.  Collins'  Exec- 
utors v.  Standard  Accident  Ins.  Co.  (Ky.) 
1917D-59.  (Annotated.) 

25.  Requirement  of  Proof  by  Eye  Wit- 
ness. A  witness,  who  saw  deceased  while 
rowing  in  a  boat  before  the  shot  was  fired, 
heard  it  and  then  found  deceased  dead 
and  his  rifle  discharged,  is  not  an  "eye- 
witness" within  an  accident  poUcy  declar- 
ing that  there  should  be  no  recovery  for 
injuries  caused  by  discharge  of  firearms 
unless  the  accidental  discharge  be  estab- 
lished by  an  eyewitness,  where  she  could 
not  see  deceased  when  the  shot  was  fired. 
Lundberg  v.  Interstate  Business  Men's 
Ace.  Assoc.  (Wis.)   1916D-667. 

26.  Cause   of  Death — Burden   of  Proof. 

It  being  shown  in  an  action  on  a  policy 
insuring  against  death  from  external, 
violent,  and  accidental  means  that  death 
came  from  external  and  violent  means, 
and  this  in  connection  with  the  presump- 


DIGEST. 

19160— 1918B. 


tion  against  siucide,  making  a  prima  facie 
case,  instructing  that  plaintiff  did  not 
have  to  prove  death  did  not  result  from 
suicide  is  not  error.  Aetna  L.  Ins.  Co.  v. 
Taylor  (Ark)  1918B-1122. 

(Annotated.) 

b.     Instructions. 

27.  Quantmn  of  Proof.  In  an  action  on 
an  accident  policy,  a  request  by  defend- 
ant for  an  instruction  that  the  jury  must 
be  satisfied,  "beyond  a  reasonable  doubt," 
of  enumerated  facts  before  they  could 
find  for  plaintiff  is  properly  refused. 
Shoop  V.  Fidelity,  etc.  Co.  (Md.)  1916D- 
954. 

c.     Questions  for  Jury. 

28.  As  insured  discharged  all  the  duties 
of  his  profession  as  a  dentist  during  the 
three  months  before  he  met  his  death,  the 
accident  cannot  be  held  to  have  caused 
continuous  and  immediate  disability  up  to 
the  time  of  death,  and  therefore  the  ques- 
tion should  not  be  submitted  to  the  jury. 
Doyle  V.  New  Jersey  Fidelity,  etc.  Ins. 
Co.    (Ky.)    1917D-851.  (Annotated.) 

d.    Defenses. 

29.  Duty  of  Insured  to  Assert  Defenses. 
That  the  owner  of  an  automobile  allowed 
a  guest  to  give  some  directions  to  the 
chauffeur  as  to  the  place  they  should  be 
carried  did  not  make  the  chauffeur  the 
agent  of  the  guest  instead  of  the  owner, 
and  the  chauffeur's  negligence  was  not  im- 
putable to  the  g^est,  so,  in  an  action  by 
the  owner  on  an  accident  policy,  the  guest 
having  been  injured  and  having  recovered 
against  her,  it  is  no  defense  that  the  owner, 
though  obliged  to  defend  action,  refused 
the  requests  of  the  insurer  to  make  th'^ 
defense  of  imputed  negligence.  Collins' 
Executors  v.  Standard  Accident  Ins.  Co. 
(Ky.)    1917D-59.  (Annotated.) 

ACJCOMMODATION  INDORSEES. 

Notice  of  dishonor  to,  see  Bills  and  Notes, 
34. 

ACCOMMODATION  MAKER. 

See  Bills  and  Notes,  41-45. 

ACCOMPLICE. 
Victim  a  party  to  abortion,  see  Abortion, 


ACCORD  AND  SATISFACTION. 

1.  In  General, 

2.  Part  Payment. 

a.  Effect  of  Receipt  in  Full. 

b.  Conditioned    to    Operate    as    Pay- 

ment in  FuU. 

1.     IN  GENERAL. 
1.  Evidence,  in  action  to  recover  inter- 
est  on   city   warrants,    the   principal   and 


part  of  the  interest  on  which  had  been 
paid,  held  insufiicient  to  establish  an  ac- 
cord and  satisfaction.  Alabama  City, 
etc.    R.  Co.  V.  Gadsden  (Ala.)   1916C-573. 

2.  Failure  to  Perform  in  Full.  Plaintiff 
having  been  injured  in  a  railroad  crossing 
accident,  defendant's  claim  agent  offered 
him  a  draft  for  $50  in  settlement,  agree- 
ing also  to  pay  plaintiff's  attorney. 
Plaintiff  testified  that  he  took  the  draft 
because  the  agent  told  him  he  would 
never  get  anything  else,  but  had  no  in- 
tention to  cash  it  and  did  not  do  so.  The 
railroad  company  made  no  attempt  to  set- 
tle with  plaintiff's  attorney  and  sought  to 
excuse  itself  by  stating  that,  suit  having 
been  begun  on  the  same  day  the  settle- 
ment was  effected,  it  concluded  that  no 
settlement  with  him  could  be  made.  Held, 
that  such  facts  were  insufficient  to  estab- 
lish an  accord  and  satisfaction.  St.  Louis 
Southwestern  E.  Co.  ▼.  Mitchell  (Ark.) 
1916E-317. 


2.     PART    PAYMENT. 

a.     Effect  of  Receipt  in  Full. 

3.  Part  Pasrment  of  Liquidated  Claim 
With  Receipt  in  FulL  Va.  Code  1904, 
§  2S59,  provides  that  part  performance  of 
an  obligation,  either  before  or  after 
breach,  when  expressly  accepted  by  the 
creditor  in  satisfaction,  and  under  an 
agreement  for  that  purpose,  though  without 
any  new  consideration,  shall  extinguish 
the  obligation,  promise,  or  undertaking. 
Held,  that  where  on  completion  of  plain- 
tiff's contract  to  construct  certain  houses 
for  defendant,  there  was  no  claim  on  his 
part  that  the  entire  balance  of  the  contract 
price  was  not  payable  in  full,  but  he  re- 
fused to  pay  unless  plaintiffs  deducted 
$450.54  from  their  bill,  which  they  were 
compelled  to  do  because  they  were  in 
financial  straits  and  had  to  have  the 
money,  for  which  they  executed  a  receipt 
in  full,  there  was  no  acceptance  of  the 
lesser  amount  in  satisfaction  within  the 
statute  sufficient  to  preclude  a  recovery 
of  the  amount  so  deducted,  Thomas  v. 
Brown  (Va.)    1917A-128.  (Annotated.) 


b.     Conditioned    to    Operate    as    Pavment 
in  Full. 

4.  Acceptance  in  Full  Settlement.     To 

constitute  an  accord  and  satisfaction  the 
sum  less  than  the  amount  actually  due 
must  have  been  accepted  in  full  settle- 
ment of  the  disputed  claim.  Alabama 
City,  etc.  R.  Co.  v.  Gadsden  (Ala.)  1916C- 
573. 

Note. 

Part  payment  with  receipt  in  full  as 
satisfaction  of  liquidated  and  undisputed 
debt.     1917A-130. 


ACCOUNTS  AND  ACCOUNTING— ACTION  PENDING. 


ACCOUNTS  AND  ACCOUNTINa. 

See  Costs,  5. 

Accounting  for  assets,  see  Bankruptcy,  9. 

Failure  to  account,  see  Embezzlement,  1. 

Book  entries,  admissibility,  see  Evidence, 
90. 

Of  executors  and  administrators,  see 
Executors  and  Administrators,  47-56. 

Of  guardian,  see  Guardian  and  Ward, 
20-28. 

Action  of  account,  counterclaim  for 
wrongful  enhancement,  see  Monopo- 
lies, 23. 

Between  partners,  see  FartnersMp,  13-15. 

By  managers  of  Soldiers'  Home  for  money 
improperly  collected,  see  Pensions, 
2,  3. 

Between  cotenants,  see  Tenants  in  Com- 
mon, 9. 

Accounting  by  trustee,  see  Tmsts  and 
Trustees,  30-32. 

For  proceeds  of  damaged  goods,  see  Ware- 
houses, 5. 

1,  Sufficiency  of  Petition,  The  petition 
of  an  administratrix  in  an  action  on  open 
account  for  goods  sold  to  defendant,  and 
charged  to  him  by  decedent  in  the  usual 
course  of  business,  also  for  advances  and 
loans  of  money  by  decedent  to  defendant, 
which  defendant  agreed  to  repay,  alleging 
that  plaintiff  could  not  furnish  an  item- 
ized account  because  the  books,  accounts, 
and  memoranda  of  decedent  had  been  de- 
stroyed by  fire  without  decedent's  fault, 
claiming  a  lump  sum,  states  a  cause  of 
action.  Givens  v.  Pierson's  Administra- 
trix (Ky.)  1917C-956. 

Note. 

Necessity  that  book  of  accounts  offered 
in  evidence  be  book  of  original  entry. 
1917C-961. 

ACCRUAL  OF  CAUSE  OF  ACTION. 
See  Limitation  of  Actions,  14-32. 

ACKNOWLEDGMENTS. 

1.  Who  may  Take  Acknowledgment. 

2.  Sufficiency. 

3.  Evidence  Requisite  to  Impeach. 

Of  conveyance  of  homestead  by  wife,  see 
Homestead,  11. 

Sufficiency  to  remove  bar,  see  Limitation 
of  Actions,  43. 

Stockholder  as  attesting  notary  for  cor- 
porate mortgagee.  See  Mortgages 
and  Deeds  of  Trust. 

1.  WHO  MAY  TAKE  ACKNOWLEDG- 
MENT. 

1.  Officer  of  Corporate  Mortgagee. 
Where  a  deed  of  trust  is  executed  to 
secure  an  indebtedness  to  a  corporation 
without  fraud,  coercion,  or  undue  ad- 
vantage,  its    validity    is    not   affected   by 


the  fact  that  the  notary  who  takes  the 
acknowledgment  is  a  stockholder  in  the 
corporation.  Davis  v.  Hale  (Ark.)  1916D- 
701.  (Annotated.) 

Note. 
Stockholder  or  officer  of  corporation  in- 
terested  in   instrument  as   disqualified  to 
take    acknowledgment     thereof.       1916D- 
705. 

2.     SUFFICIENCY. 

2.  Signature  of  Notary.  Kirby's  Ark. 
Dig.,  §  746,  provides  that  every  officer  who 
shall  take  the  acknowledgment  of  any  con- 
veyance of  real  estate  shall  grant  a  certi- 
ficate thereof,  to  be  indorsed  on  the  deed, 
and  that  the  certificate  shall  be  signed  by 
the  officer  and  sealed,  if  he  has  a  seal  of 
office.  Held  that,  where  a  certificate  of  a 
notary  public  attached  to  a  deed  of  trust 
bore  a  seal  with  the  notary's  name  thereon, 
but  the  certificate  was  not  subscribed  by 
the  officer,  it  was  void.  Davis  v.  Hale 
(Ark.)  1916D-701. 

3.  Acknowledgment  —  Presumption  in 
Favor  of  Certificate.  The  certificate  of 
acknowledgment  to  a  deed  is  prima  facie 
proof  of  its  execution.  Houlihan  v.  Mor- 
rissey  (111.)   1917A-364. 

3.     EVIDENCE     REQUISITE     TO     IM- 
PEACH. 

4.  While  the  certificate  of  acknowledg- 
ment to  a  deed,  as  between  the  parties, 
may  be  impeached  for  fraud,  collusion,  or 
imposition,  yet  to  overcome  it  clear  and 
satisfactory  proof  is  required,  more  than 
the  unsupported  testimony  of  the  grantor. 
Houlihan  v.  Morrissey   (HI.)    1917A-364. 

(Annotated.) 

Note. 

Evidence  requisite  to  impeach  acknowl- 
edgment.    1917A-368. 


ACQUIESCENCE. 

Estoppel  to  object  to  nuisance,  see  Nui- 
sances, 17. 

ACROSS. 

Meaning,  see  Telegraphs  and  Telephones, 
5. 

ACTIONABLE  PER  SE. 

Words,   see  Libel  and  Slander,   6,   16-21, 
24-36. 


ACTIONABLE  WORDS. 
See  Libel  and  Slander,  6,  16-21,  24-36. 

ACTION  PENDING. 
See  Actions  and  Proceedings,  8. 


DIGEST. 

19ieC— 1918B. 


ACTIONS  AND  PEOCEEDINGa 

1.  Definitions  and  Right  of  Action. 

2.  Nature  and  Form  of  Action. 

3.  Pendency  of  Action. 

4.  Joinder  of  Causes  of  Action. 

5.  Splitting  Causes  of  Actioiu 

6.  Abatement  and  Revival. 

a.  Criminal  Prosecution  Awaited. 

b.  Death  of  Party. 

See  Dismissal  and  Nonsnit;  Iiimltation  of 
Actions;  Lis  Pendens;  Parties  to  Ac- 
tions; Bemoval  of  Causes;  Specific 
Performance,  7-11;  Trespass,  4-12. 

For  attorney's  fees,  see  Attorneys,  33-35. 

Disbarment  proceeding  not  civil  action, 
see  Attorneys,  50. 

To  recover  bank  deposit,  see  Banks  and 
Banking,  54. 

Nature  of  bastardy  proceeding,  see  Bas- 
tardy, 1. 

For  benefits,  see  Beneficial  Associations, 
28-33. 

Offer  to  marry  no  bar,  see  Breach  of 
Promise  of  Marriage,  2,  3. 

Nature  of  action  for  causing  death,  see 
Death  by  Wrongful  Act,  1-6. 

Inheritance  of  chose  in  action,  see 
Descent  and  Distribution,  3. 

By  executors  and  administrators,  see 
Executors  and  Administrators,  71-85. 

For  personal  injury,  survival,  see  Execu- 
tors and  Admiiiistrators,  77-81. 

Against  executors  and  administrators,  see 
Executors  and  Administrators,  86-92. 

For  deceit,  see  Fraud,  8-14. 

Nature  of  habeas  corpus,  see  Habeas  Cor- 
pus, 4. 

Proceedings  in  juvenile  courts,  see  In- 
fants, 26-38. 

Restraining  prosecution  of  action,  see  In- 
junctions, 24-26. 

Independent  action  for  recovery  of  in- 
terest, see  Interest,  1,  2. 

Proceedings  under  mulct  law,  see  Intoxi- 
cating Liquors,  33. 

Action  to  fix  appropriation  rights,  see 
Irrigation,  2-10. 

Special  proceeding,  termination,  see  Judg- 
ments, 1. 

Actions  for  rent,  see  Landlord  and  Ten- 
ant, 36-40. 

Statutory  action,  effect  of  bar,  see  Limi- 
tation of  Actions,  1,  6. 

Action  against  railroad  for  violating  ordi- 
nance, criminal,  see  Municipal!  Cor- 
porations, 102. 

Continuation  of  action  by  the  others  on 
death  of  firm  member,  see  Partner- 
ship, 31. 

Suit  by  receiver  in  foreign  jurisdiction, 
see  Eecelvers,  9. 

Election  of  remedies,  see  Release  and  Dis- 
charge, 6. 

Against  school  districts,  see  Schools,  5-8. 

Against  state,  see  States,  9.  10. 

Actions  on  relation,  see  States,  11. 


Effect  of  repeal  of  statute  on  pending  ac- 
tion, see  Statutes,  125. 

Proceedings  for  special  assessment,  see 
Taxation,  131-144. 

Taxpayer's  actions,  see  Taxation,  201-203. 

By  one  co-tenant  for  injury  to  the  com- 
mon property,  see  Tenants  in  Com- 
mon, 11-12. 

For  incidental  injury  to  third  person,  see 
Torts,  1. 

Transitory  actions,  see  Venue,  1,  2. 

Actions  by  and  against  alien  enemies,  see 
Wai,  11. 

Proceedings  under  Workmen's  Compensa- 
tion Act,  284-305. 


DEFINITIONS      AND 
ACTION. 


EIGHT      OP 


1.  Action  —  Definition.  An  action  is 
"an  ordinary  proceeding  in  a  court  of  jus- 
tice by  which  a  party  prosecutes  another 
party  for  the  enforcement  or  protection 
of  a  right,  the  redress  or  prevention  of 
a  wrong,  or  the  punishment  of  a  public 
offense."  Greenleaf  v.  Minneapolis,  etc. 
E.  Co.  (N.  Dak.)   1917D-908. 

2.  Proceeding  —  Definition.  The  term 
"proceeding"  includes  the  form  and  man- 
ner of  considering  judicial  business  before 
a  court  or  judicial  oflBcer,  and  regular  and 
ordinary  proceedings  in  form  of  law,  in- 
cluding aU  possible  steps  in  an  action 
from  its  institution  to  the  execution  of 
the  judgment.  Greenleaf  v.  Minneapolis, 
etc.  R.  Co.   (N.  Dak.)   1917D-908. 

3.  Effect  of  Statute.  An  existing  com- 
mon-law right  of  action  is  not  taken  away 
by  statute,  unless  by  direct  enactment  or 
necessary  implication.  King  v.  Viseoloid 
Company  (Mass.)  1916D-1170. 

4.  Novel  Cause  of  Action.  That  the  ac- 
tion is  novel,  and  there  is  no  precedent, 
does  not  lead  to  a  conclusion  that  there 
is  no  remedy  for  the  alleged  wrong.  Fin- 
ley  V.  Atlantic  Transport  Co.  (N.  Y.) 
1917D-726. 

5.  Moot  Question.  A  case  in  which  a 
party  asks  to  have  determined  an  abstract 
question  which  does  not  arise  on  existing 
facts,  or  involve  conflicting  rights  so  far 
as  he  is  concerned,  presents  a  moot  in- 
quiry, which  will  not  be  considered. 
Sherod  v.  Aitchison  (Ore.)    1916C-1151. 

2.     NATURE  AND  FORM  OF  ACTION. 

6.  Legal  or  Equitable.  A  complaint 
presenting  an  action  at  law  is  not  changed 
by  the  fact  that  equitable  defenses  have 
been  interposed  or  equitable  rights  sug- 
gested. Smith  V.  Barnes  (Mont.)  1917I>- 
330. 

7.  Moot  Case  —  What  Constitutes.  A 
moot  case  is  one  which  seeks  to  determine 
an  abstract  question,  not  resting  upon  ex- 
isting facts  or  rights,  and  such  case  will 


ACTIONS  AND  PROCEEDINGS. 


not  be  determined  by  the  court  merely  to 
determine  who  is  liable  for  costs.  Postal 
Telegraph-Cable  Co.  v.  Montgomery  (Ala.) 
1918B-554.  (Annotated.) 

Note. 

What  constitutes  moot  case.     1918B-558. 

3.     PENDENCY  OF  ACTION. 

8.  When  Deemed  Pending.  An  action 
is  deemed  to  be  pending  at  common  law  so 
long  as  a  judgment  remains  unsatisfied. 
Sweetser  v.  Fox  (Utah)  1916C-620. 

4.  JOINDER  OF  CAUSES  OF  ACTION. 

9.  Several  Torts.  It  is  improper  to  join 
in  one  declaration  counts  alleging  joint 
torts  by  two  defendants  with  counts  alleg- 
ing several  torts  by  each  of  them.  Tan- 
ner V.  Culpeper  Construction  Co.  (Va.) 
19L7E-794. 

10.  Actions  Requiring  Different  Places 
of  Trial.  Under  N.  Y.  Code  Civ.  Proc, 
§  484,  providing  that  two  causes  of  action 
may  be  joined  if  it  appears  that  they  arose 
out  of  the  same  transaction,  and  do  not 
require  different  places  of  trial,  where  a 
complaint  alleged  the  destruction  of  a 
milling  plant  and  personal  property  in  the 
building  and  on  the  premises,  there  is  a 
misjoinder,  although  the  separate  causes 
of  action  are  not  well  stated,  as  it  does 
not  appear  that  they  do  not  require  dif- 
ferent places  of  trial.  Jacobus  v.  Colgate 
(N.  Y.)    1917E-3«9. 

11.  Consolidation  of  Causes.  The  refusal 
to  compel  an  election  between  causes  of 
action  lor  false  imprisonment  and  for 
damages  for  unlawfully  shackling  a  convict 
laborer  is  not  prejudicial,  in  view  of  Acts 
Ark.  1905,  p.  798,  providing  that  the  court 
may  consolidate  causes  of  like  nature  when 
it  appears  reasonable  to  do  so.  Weigel  v. 
McCloskey  (Ark.)  1916C-503. 

12.  Bights  Arising  from  Same  Transac- 
tions. Under  Rem.  &  Bal.  Wash.  Code, 
§  296,  subd.  8,  permitting  plaintiff  to  unite 
several  causes  of  action  in  the  same  com- 
plaint when  they  arise  out  of  the  same 
transaction,  a  complaint  alleging  a  cause 
of  action  upon  a  breach  of  contract  and 
upon  defendants'  wrong  in  rendering  per- 
formance by  another  party  impossible,  so 
as  to  prevent  the  earning  of  a  commis- 
sion, from  that  party,  is  not  demurrable 
on  the  ground  that  two  causes  of  action 
are  improperly  joined.  Lattlefield  v. 
Bowen  (Wash.)  1918B-177. 

5.  SPLITTING    CAUSES    OF    ACTION. 

13.  Separate  Actions  on  Note  and  Mort- 
gage. Under  the  express  terms  of  Iowa 
Code,  §  3428,  an  action  may  be  brought  on 
a  note  alone  without  regard  to  the  mort- 
gage given  as  security,  and  so  an  action 


may  be  brought  on  the  mortgage  alone,  un- 
less either  is  prevented  by  stipulation  in 
the  note  or  mortgage;  but  under  the  ex- 
press terms  of  section  4288  when  separate 
actions  are  brought  on  the  note  and  mort- 
gage in  the  same  county,  the  plaintiff 
must  elect  between  them,  and  the  other 
will  be  discontinued.  Des  Moines  Savings 
Banks  v.  Arthur  (Iowa)  1916C-498. 

6.     ABATEMENT  AND  REVIVAL. 
a.     Criminal  Prosecution  Awaited. 

14.  Civil  Action  for  Crime.  Proceed- 
ings in  a  civil  action  based  on  a  felony 
will  be  stayed  until  the  offender  has  been 
prosecuted  criminally.  Smith  v.  Selwyn 
(Eng.)    1916C-844.  (Annotated.) 

15.  Action  on  Judgment  —  Effect  of 
Right  to  Appeal  from  Judgment.  When 
the  purpose  of  an  action  is  merely  to  en- 
force a  judgment,  the  plea  of  another  ac- 
tion pending  cannot  be  interposed  in  the 
action  upon  the  judgment  merely  because 
the  time  to  appeal  has  not  passed;  the 
only  plea  available  being  that  the  judg- 
ment has  been  suspended  by  supersedeas 
bond.    Sweetser  v.  Fox  (Utah)  1916C-620. 

Note. 
Merger    or    suspension    of    civil    action 
predicated     on     commission     of     felony. 
1916C-847. 

b.    Death  of  Party. 

16.  Death  of  Defendant.  Pub.  Acts 
Conn.  1903,  c.  193,  provides  that  no  civil 
action  shall  abate  by  the  death  of  any 
party,  but  may  be  continued  by  or  against 
the  administrator  and  Gen.  St.  1902,  §  343, 
provides  that  no  suit  shall  be  brought,  ex- 
cept as  stated,  against  the  executor  of  an 
insolvent  estate  in  the  course  of  settlement, 
and  that  no  execution  shall  issue  on  any 
judgment  rendered  against  the  executor 
before  the  estate  was  represented  insol- 
vent, and,  if  judgment  has  not  then  been 
rendered,  the  suit  shall  abate.  Held  that, 
where  an  action  was  brought  against  de- 
fendant in  his  lifetime,  it  might  be  con- 
tinued by  scire  facias  against  his  executor 
or  administrator,  though  the  estate  is 
represented  insolvent,  unless  the  action  is 
wholly  excepted  from  the  operation  of  the 
act.    Craig  v.  Wagner  (Conn.)  1917A-160. 

17.  Substitution  of  Personal  Represen- 
tative. Where,  on  defendant's  death, 
plaintiff  moved  to  have  defendant's  execu- 
trix made  a  party  within  the  next  term 
after  her  appointment,  when  objection 
was  made  and  erroneously  sustained  that 
plaintiff  could  not  proceed  with  scire  facias 
because  of  the  insolvency  of  decedent's 
estate,  the  delay  in  moving  for  a  scire 
facias  cannot  be  charged  to  plaintiff  so  as 
to  preclude  him  from  continuing  the  ac- 
tion by  scire  facias  against  the  execi'trix. 
Craig  v.  Wagner  (Conn.)   1917A-160. 


10 


DIGEST. 

1916C— 1918B. 


18.  The  time  within  which  plaintiff  is 
required  to  bring  in  defendant's  executrix 
should  not  run  from  defendant's  death, 
but  from  the  appointment  of  the  execu- 
trix. Craig  V.  Wagner  (Conn.)  1917A- 
160. 

ACT   or  GOD. 

Effect  on  delay,  see  Carriers  of  Goods,  4. 
Action  of  tides  as  vis  major,  see  Ware- 
liOTuea,  3. 

ACTUAL. 
Meaning,  see  Emin^it  Domain,  13. 

ACTUAL  WASTE. 
Defined,  see  Waste,  L 

AD  DAMNUM  CLAUSE. 
See  Pleading,  9,  10. 

ADDITIONAL  SECUBITT. 

Taking,  as  waiver  of  right  to  lien,  see 
Mechanics'  Liens,  31,  33,  34,  38. 

Taking  by  mortgagee,  effect,  see  Mort- 
gages and  Deeds  of  Trust,  34. 

ADDITIONS  TO  STOCK. 
See  Chattel  Mortgages,  19-24. 

ADJOINING  LANDOWNERS. 

1.  Bight  to  Lateral  Support. 

2.  Party  Walls. 

3.  Line  Trees. 

4.  Improvement  on  Adjoining  Land. 

5.  Action  for  Injury. 

6.  Damages. 

See  Easements. 

Division    fence,    duty    to    maintain,    see 

Fences,  1,  2. 
Eights  in  subterranean  waters,  see  Waters 

and  Watercourses,  30. 
Eights  as  to  surface  waters,  see  Waters 

and  Watercourses,  34. 

1.     EIGHT   TO  LATEEAL   SUPPOET. 

1.  Deprivation  of  Subjacent  Support. 
One  mining  under  such  a  reservation  is 
liable  for  failure  to  leave  sufficient  sup- 
port to  prevent  the  strata  overlying  the 
coal  from  breaking  or  falling  and  thereby 
causing  drying  up  of  springs  on  the  land, 
since  this  is  a  "surface"  right.  Stonegap 
Colliery  Co.  v.  Hamilton  (Va.)   1917E-60. 

2.     PAETY   WALLS. 

2.  The  erection  of  a  party  wall  by  one 
of  two  adjoining  owners  is  not  a  taking 
of  property  for  private  use  but  amounts 
only  to  the  establishment  of  an  easement. 
Fowler  v.  Koehler  (D.  C.)  1916E-1161. 


3.  Acquiescence  In  Unauthorized  Con- 
struction. If  an  owner  without  authority 
builds  a  party  wall  on  the  adjoining  prem- 
ises and  the  adjoining  owner  allows  the 
construction  to  proceed  without  protest,  he 
estops  himself  to  complain  of  the  trespass. 
Fowler  t.  Koehler  (D.  C.)  1916E-1161. 

4.  Contribution  Toward  Cost.  A  land- 
owner making  use  of  a  party  wall  erected 
by  the  adjoining  owner  is  bound  to  con- 
tribute to  the  cost  thereof  though  the  wall 
was  not  erected  under  an  agreement  to 
contribute.  Fowler  v.  Koehler  (D.  C.) 
1916E-1161.  (Annotated.) 

5.  A  person  who  builds  a  party  wall  and 
then  conveys  the  premises  reserving  in 
his  deed  the  right  to  use  the  party  wall, 
reserves  thereby  the  personal  right  to 
recover  contribution  from  an  adjoining 
owner  thereafter  using  the  wall.  Fowler 
V.  Koehler  (D.  C.)  1916E-1161. 

(Annotated.) 

6.  Party  Walls— Establishment.  There 
are  but  two  ways  in  which  a  party  wall 
can  be  established,  by  contract  or  by  the 
force  of  a  statute.  Fowler  v.  Koehler 
(D.  C.)   1916E-1161. 

Note. 

Liability  of  adjoining  landowner  for 
nse  of  party  wall  in  absence  of  agreement 
to  contribute.    1916E-1165. 

3.     LINE  TEEES. 

7.  Overhanging  Tree  —  Eight  to  Cut  to 
Line.  When  the  base  of  a  tree  is  wholly 
on  the  land  of  one  owner,  the  whole  tree 
is  his  without  reference  to  its  ramifica- 
tions, the  word  "trunk"  meaning  the  body 
of  the  tree  at  and  above  the  surface  of 
the  soil;  but  where  a  tree  stands  wholly 
on  the  ground  of  one  any  part  overhang- 
ing the  land  of  an  adjoining  owner  may 
be  cut  off  by  the  latter  at  the  division 
line,  if  done  without  a  trespass;  but  the 
rule  is  different  where  the  tree  stands  on  a 
division  line  and  is  one  in  which  both  the 
adjoining  landowners  have  an  interest. 
Cobb  V.  Western  Union  Tel.  Co.  (Vt.) 
1918B-1156.  (Annotated.) 

8.  Trees  Near  Boundary  —  Ownership. 
Where  a  person  has  planted  hedge  trees 
on  her  own  land  and  cultivated  and  cared 
for  them,  they  are  her  property;  and, 
although  they  are  growing  near  the 
boundary  line  of  a  neighbor,  such  neigh- 
bor has  no  property  in  them,  and  unless 
the  trees  are  doing  him  an  injury,  he  may 
be  enjoined  from  meddling  with  them. 
Wideman  v.  Faivre    (Kan.)    1918B-1168. 

(Annotated.) 

Note. 
Eights    of    adjoining    landowners    with 
respect  to  tree  on  or  overhanging  bound- 
ary line.    1918B-1157. 


ADJUSTMENT  OF  LOSS— ADMIRALTY. 


11 


4.     IMPROVEMENT     ON     ADJOINING 
LAND. 

9.  Excavation.  Where  one  in  improv- 
ing his  own  property  fails  to  exercise  the 
ordinary  care,  prudence,  and  skill  reason- 
ably dictated  by  the  situation  and  circum- 
stances as  due  for  the  protection  of  a 
building  standing  on  an  adjoining  lot,  and 
thereby  injures  the  same,  he  is  liable  for 
the  injury,  whether  caused  by  affecting 
the  lateral  support  of  the  soil  of  the  ad- 
joining lot  or  otherwise.  Voeckler  v. 
Stroehmann's  Vienna  Bakery  (W.  Va.) 
1917A-350.  (Annotated.) 

10.  Duty  of  Adjoining  Owner  to  Protect 
His  Property.  In  such  case,  the  owner 
is  required  to  do  whatever  is  reasonably 
necessary  to  protect  his  property  from  in- 
jury and  cannot  permit  the  injury  and 
then  claim  full  damages,  when  he  might 
hare  prevented  it  or  lessened  its  effect  by 
a  reasonable  expenditure.  Louisville,  etc. 
B.  Co.  v.  Jackson  (Ark.)  1918A-604. 

11.  Though  one  in  improving  his  own 
property  employs  therefor  a  competent 
architect  and  a  skilled  contractor,  if  the 
work  remains  under  his  control  and  the 
architect  and  the  contractor  merely  repre- 
sent him  as  to  the  means  of  doing  the 
same,  he  is  not  by  their  employment  ab- 
solved from  liability  for  injury  to  adjoin- 
ing property  caused  by  failure  to  exercise 
care  for  its  protection.  Voeckler  v. 
Stroehmann's  Vienna  Bakery  (W.  Va.) 
1917A-350.  (Annotated.) 

Note. 

Liability  of  landowner  excavating  on 
his  own  premises  for  resulting  injury  to 
adjoining  building.     1917A-352. 

5.     ACTION  FOR  INJURY. 

12.  Evidence.  Evidence  that  in  that 
region  it  would  be  impossible,  although 
mining  according  to  usage  and  custom,  to 
mine  any  coal  without  more  or  less  of  the 
overlying  strata  falling  in,  tending  to  dry 
up  surface  springs,  was  irrelevant.  Stone- 
gap  Colliery  Co.  v.  Hamilton  (Va.)  1917E- 
60. 

13.  Jury  Question.  In  trespass  action 
for  injury  to  surface  soil  by  withdrawing 
proper  supports  in  mining  thereunder, 
whether  the  evidence  sustained  plaintiff's 
contention  that  such  mining  dried  up 
springs  in  his  land  is  held  to  be  for  the 
jury.  Stonegap  Colliery  Co.  v.  Hamilton 
(Va.)    1917E-60. 

6.     DAMAGES. 

14.  Bight  of  Purchaser  as  to  Previous 
Damage.  No  recovery  could  be  had  for 
drying  up  of  a  spring,  prior  to  the  time  of 
plaintiff's  purchase  of  the  land.  Stonegap 
Colliery  Co.  v.  Hamilton  (Va.)   1917E-60. 


15.  Proof  of  Damage.  In  such  action  it 
is  error  to  admit  evidence  of  a  crack  in 
adjoining  surface,  where  there  was  no  evi- 
dence that  the  crack  extends  into  plain- 
tiff's land  or  could  have  causal  connection 
with  the  alleged  injury.  Stonegap  Col- 
liery Co.  V.  Hamilton  (Va.)   1917E-60. 

16.  Speculative  Damages.  In  such  ac- 
tion the  owner  could  not  recover  damages 
for  decrease  in  the  value  of  his  land  for 
residence  and  other  purposes,  upon  testi- 
mony that  the  land  was  close  enough  to 
town  to  be  subdivided  for  lots;  such  dam- 
age being  too  remote  and  speculative  for 
jury  consideration.  Stonegap  Colliery  Co. 
V.  Hamilton  (Va.)  1917E-60. 

17.  Remote  Damages.  In  an  action  for 
injury  to  surface  by  mining  the  plaintiff, 
owner  of  the  surface  of  two  tracts  of  land 
formerly  constituting  one  tract,  is  not 
entitled  to  damages  to  one  tract  caused 
by  the  drying  up  of  a  spring  on  the  other 
by  such  mining,  although  the  ownership  of 
the  tracts  had  been  so  reunited  in  him 
before  the  injury;  the  drying  up  of  the 
spring  on  the  latter  tract  being  the  only 
damage  the  evidence  tended  to  prove. 
Stonegap  Colliery  Co.  v.  Hamilton  (Va.) 
1917E-60. 

ADJUSTMENT  OF  LOSS. 

Penalty  for  failure  to  adjust,  see  Carriers 
of  Goods,  7. 

ADMINISTBATION. 

Of  trusts,  see  Trusts  and  Trustees,  34-36. 

ADMINISTBATOE    DE    BONIS    NON. 

Collection  of  assets  by,  see  Executors  and 
Administrators,  20y2. 

ADMINISTRATORS. 
See  Executors  and  Administrators. 


ADMINISTRATOR       WITH 
ANNEXED. 


WILL 


See  Executors  and  Administrators,  20. 


ADMIRALTY. 

1.  Exclusiveness  of  Federal  Authority. 
State  legislation  changing,  modifying,  or 
affecting  the  general  maritime  law  which 
contravenes  the  essential  purpose  ex- 
pressed by  an  act  of  Congress,  or  works 
material  prejudice  to  the  characteristic 
features  of  such  general  maritime  law,  or 
interferes  with  the  proper  harmony  or 
uniformity  of  that  law  in  its  international 
and  interstate  relations,  is  invalid  as  be- 
ing repugnant  to  U.  S.  Const.,  art.  3,  §  2 
(9  Fed.  St.  Ann.  74),  extending  the  judi- 
cial   power    of    the    United   States   to   all 


12 


DIGEST. 

1916C— 1918B. 


cases  of  admiralty  and  maritime  jurisdic- 
tion, U.  S.  Const.,  art.  1,  §  8  (8  Fed.  St. 
Ann.  674),  giving  Congress  power  to  make 
all  laws  necessary  and  proper  to  carry  into 
execution  the  powers  vested  in  the  fed- 
eral government,  and  U.  S.  Judicial  Code, 
§§24,  256  (4  Fed.  St.  Ann.  (2d  ed.)  838; 
5  Id.  921),  giving  the  federal  district 
courts  exclusive  original  cognizance  of  all 
civil  causes  of  admiralty  and  maritime 
jurisdiction,  saving  to  suitors  in  all  cases 
the  right  of  a  common-law  remedy  where 
the  common  law  is  competent  to  give  it. 
Southern  Pacific  Co.  v.  Jensen  (U.  S.) 
1917E-900. 

2.  Jurisdictiozi,  Bestoration  of  Illegal 
Prize.  The  admiralty  courts  of  the  United 
States  have  jurisdiction  to  order  restitu- 
tion {o  the  private  owners  of  a  vessel  and 
cargo  brought  into  a  port  of  the  United 
States  by  a  prize  crew  of  a  belligerent 
nation,  for  the  purpose  of  laWng  her  up 
there  indefinitely,  in  violation  of  the 
rights  of  the  United  States  as  a  neutral. 
The  Steamship  Appam  (U.  S.)  1917D-442. 

3.  Effect  of  Decision  of  Foreign  Prize 
Court.  The  institution  in  a  prize  court  of 
the  captor  nation  of  proceedings  for  the 
condemnation  as  a  prize  of  a  vessel 
brought  into  a  port  of  the  United  States 
by  a  prize  crew,  for  the  purpose  of  lay- 
ing her  up  there  indefinitely,  cannot  oust 
the  jurisdiction  of  an  admiralty  court  of 
the  United  States  to  order  restitution  of 
the  vessel  and  cargo  to  the  private  owners 
for  such  a  violation  of  the  rights  of  the 
United  States  as  a  neutral.  The  Steam- 
ship Appam  (U.  S.)   1917D-442. 

ADMISSIBIUTY  OF  EVIDENCfE. 
See  Evidence,  20-36. 


ADMISSIONS  AND  DECLARATIONS. 

1.  Self-serving  Declarations,  12. 

2.  Admissions    and    Declarations    Against 

Interest,  12. 

3.  Person  by  Whom  Made,  12. 

a.  Agents  or  Corporate  Officers,  12. 

b.  Grantor,  13. 

c.  Deceased  Persons,   13. 

d.  Defendant  in  Criminal  Case,  13. 

e.  Statements  of  Principal  to  Surety,  13. 

4.  Manner  of  Making,  13. 

a.  Admissions  in  Pleading,  13. 

b.  Ees  Gestae,  13. 

c.  Dying  Declarations,  14. 

d.  Exculpatory  Statements,  14. 

5.  Explaining  and  Contradicting  Declara- 

tions, 14. 

Declarations  of  agent  as  binding  princi- 
pal, see  Agency,  20-24. 

Erroneous  exclusion  of  evidence  cured  by 
admissions,  see  Appeal  and  Error,  277. 

Declarations  as  to  ownership  of  car,  see 
AutomoMles,  41. 


Admission  no  bar  to  discovery,  see  Discov- 
ery, 4. 

Admissions  as  affecting  judicial  notice, 
see  Evidence,  2. 

Of  deceased,  see  Homicide,  36,  37, 

Dying  declarations,  see  Homicide,  39. 

Declarations  of  co-defendant,  see  Homi- 
cide, 42. 

Declarations  of  third  persons,  see  Homi- 
cide, 43-47. 

Of  testator  as  affecting  testamentary 
capacity,  see  Wills,  72-74. 

1.     SELF-SERVING    DECLARATIONS. 

1.  Conversations  had  by  the  defendants 
with  third  parties  were  not  admissible,  as 
they  were  self -serving  declarations.  Ham- 
mett  v.  State  (Okla.)   1916D-1148. 

(Annotated.) 

Declarations  made  by  a  defendant  in  his 
own  favor,  unless  a  part  of  the  res  gestae, 
or  of  a  confession  offered  by  the  prosecu- 
tion, are  not  admissible  for  the  defense. 
State  V.  Klasner  (N.  Mex.)  1917D-S24. 

3.  In  an  action  against  a  surgeon  for 
amputating  plaintiff's  leg  without  her  con- 
sent, evidence  as  to  declarations  by  plain- 
tiff to  another  doctor  about  the  amputa- 
tion, and  what  was  said  between  them 
relative  thereto,  and  whether  the  witness 
knew  that  defendant  sent  such  doctor  to 
tell  plaintiff  about  her  condition  is  prop- 
erly excluded,  as  statements  made  or 
things  done  in  the  absence  of  defendant 
and  not  brought  to  his  knowledge  can 
have  no  bearing  on  his  exercise  of  due 
care  and  skill.  Barfield  v.  South  High- 
lands Infirmary  (Ala.)  1916C-1097. 

2.    ADMISSIONS  AND  DECLARATIONS 
AGAINST  INTEREST. 

4.  In  a  suit  by  a  father  to  compel  the 
admission  of  his  children,  who  were  ex- 
cluded from  the  white  school  as  mixed 
bloods,  evidence  of  declarations  by  the 
father  that  he  had  married  a  negress  is 
admissible  only  to  impeach  his  testimony 
that  the  children  were  white;  he  not  being 
such  a  party  in  interest  that  his  declara- 
tions would  be  substantive  evidence  aa 
admissions  ajiainst  interest.  Medlin  v. 
County  Board  of  Education  (N.  Car.) 
1916E'-300.  (Annotated.) 

3.     PERSON  BY   WHOM   MADE, 
a.     Agents  or  Corporate  Officers. 

5.  Acts  and  Declarations  of  Agent.  The 
fact  of  agency  cannot  be  shown  by  the 
mere  acts  and  declarations  of  the  alleged 
agent.  First  National  Bank  v.  Bertoli 
(Vt.)  1917B-590. 

6.  Evidence — Telephone  Conversation — 
Necessity    of    Identifying    Speaker.      A 


ADMISSIONS  AND  DECLARATIONS. 


13 


telephone  conversation  with  a  person 
claiming  to  represent  a  party  cannot  be 
received  against  the  party  unless  the  iden- 
tity and  authority  of  the  speaker  are 
shown.  Carroll  v.  Parry  (D.  C.)  1916E- 
971.  (Annotated.) 

7.  Declaration  by  Servant  —  Admission 
of  Negligence.  Evidence  that  declarant 
was  a  foreman  in  charge  of  laborers  en- 
gaged in  handling  lumber  and  piling  it  in 
the  yard  and  dock  does  not  show  author- 
ity on  his  part  to  admit  liability  of  his 
master,  and  it  was  error  to  admit  evidence 
that,  several  days  after  the  accident,  he 
stated  that  it  was  his  fault  in  that  he  did 
not  warn  the  man.  Marks  v.  Columbia 
County  Lumber  Co.   (Ore.)   1917A-306. 

b.     Grantor. 

8.  Declarations  of  Grantor  as  to  Deliv- 
ery. Declarations  of  a  grantor,  made  af- 
ter he  has  parted  with  his  title  and  in 
disparagement  of  it,  are  inadmissible 
when  made  in  the  absence  of  the  grantee. 
Williams  t.  Kidd  (Cal.)   1916E-703. 

(Annotated.) 

c.    Deceased  Persons. 

9.  Declarations  of  deceased,  made  in  a 
perfectly  natural  manner,  on  the  evening 
of  the  homicide,  that  she  was  about  to 
meet  accused  are  admissible  to  show  that 
what  she  intended  to  do  was  probably  done, 
and  did  not  violate  Ore.  L.  O.  L.,  §  705 
or  §  727,  subd.  4,  as  to  declarations,  or 
any  other  Code  section.  State  v.  Farnam 
(Ore.)    191SA-318.  (Annotated.) 

10.  Declaration  of  Deceased  as  to  In- 
tention to  Meet  Defendant.  Admission  of 
testimony  of  a  girl  friend  of  deceased 
that  she  (deceased)  had  told  her  that  she 
would  stay  home  because  accused  was 
coming  to  see  her  that  evening  is  not 
prejudicial,  where  without  objection  there 
remained  in  the  record,  upon  answer  to 
cross-examination,  a  statement  of  a  state's 
witness  that  deceased  had  told  some  girls 
that  she  had  received  a  letter  from  ac- 
cused, and  could  not  go  out  with  them  be- 
cause accused  was  coming  to  see  her  that 
evening.  State  v.  Farnam  (Ore.)  1918A- 
318.  (Annotated.) 

d.     Defendant  in   Criminal  Case. 

11.  Admissions  of  Accused.  Declara- 
tions by  defendant,  both  before  and  after 
the  commission  of  the  homicide  with 
which   he   is   charged,   tending  to    connect 

■  him  with  it,  are  admissible  as  evidence 
against  him.  Brindley  v.  State  (Ala.) 
1916E-177. 

12.  Declaration  of  Co-conspirator.    On  a 

trial  for  a  conspiracy  by  milk  dealers  to 
raise  the  price,  the  testimony  of  a  witness 
that  he  had  heard  defendants  say,  after 


the  agreement  to  raise  the  price  was 
signed,  that  they  sold  milk  thereafter  at 
the  higher  price  agreed  on  is  admissible. 
State  V.  Craft  (N.  Car.)  1917B-1013. 

e.     Statements  of  Principal  to  Surety. 

13.  In  an  action  against  a  widow  on  a 
note  executed  by  her  to  pay  the  balance 
of  a  debt  which  she  had  incurred  as  surety 
to  plaintiff  for  her  husband  since  de- 
ceased, statements  made  by  him  not  in 
the  presence  of  any  of  the  officers  of 
plaintiff  bank  by  way  of  inducement  to 
secure  the  witness'  signature  to  the  origi- 
nal note  with  his  wife  are  hearsay  and 
not  admissible  on  the  theory  that  the  hus- 
band was  the  bank's  agent  to  secure  the 
note  from  his  wife.  First  National  Bank 
T.  Bertoli  (Vt.)  1917B-590. 

4.     MANNER  OF  MAKING. 
a.     Admissions  in  Pleading. 

14.  In  such  suit  where  there  is  no  denial 
of  the  averment  that  a  reasonable  attor- 
ney's fee  was  in  excess  of  $75,  the  ques- 
tion of  reasonableness  is  settled  by  the 
admission  of  the  pleadings.  Samuels  v. 
Ottinger  (Cal.)  1916E-830. 

b.    Bes  Gestae. 

15.  Declaration  in  Answer  to  Question. 

Declarations  of  plaintiff's  intestate,  when 
living  with  defendant,  prompted  by  in- 
quiries of  the  overseer  of  the  poor,  that 
she  was  boarding  with  defendant,  are  not 
admissible  on  the  issue  of  whether  she 
was  living  with  him  under  a  contract  for 
board  or  a  contract  for  support,  in  con- 
sideration of  her  property,  on  which  de- 
pended title  to  the  property,  they  being 
mere  narrative,  and  not  arising  naturally 
and  spontaneously  from  the  act  of  living 
there,  so  as  to  be  part  thereof  and  derive 
credit  therefrom.  Comstock's  Adminis- 
trators V.  Jacobs  (Vt.)  1918A-465. 

16.  Subsequent  Declarations  in  Delirium. 

Statements  of  deceased  while  in  hospital 
suffering  from  delirium  tremens  some 
hours  after  alleged  accident  as  to  nature 
of  accident  are  not  admissible  as  res 
gestae,  but  are  narratives  of  past  events. 
Carroll  v.  Knickerbocker  Ice  Co.  (N.  Y.) 
1918B-540. 

17.  Scope  of  Res  Gestae  Generally.  The 
doctrine  of  res  gestae,  as  applied  to  ex- 
clamations, should  have  its  limits  deter- 
mined, not  by  the  strict  meaning  of  the 
word  "contemporaneous,"  but  rather  by 
the  causal,  logical,  or  psychological  rela- 
tion of  such  exclamations  with  the  pri- 
mary facts  in  controversy.  State  v. 
Lasecki  (Ohio)  1916C-1182. 

18.  This  doctrine  applies  equally  to  par- 
ticipants, bystanders  and  persons  incom- 
petent to  be  witnesses.  State  v.  Lasecki 
(Ohio)    1916C-1182. 


14 


DIGEST. 

1916C— 1918B. 


19.  Declaration  of  Street  Railway  Em- 
ployee. The  self-serving  explanation  of  a 
street-car  conductor  as  to  how  an  accident 
happened,  made  after  it  occurred,  is  not 
res  gestae  and  is  inadmissible  in  an  action 
for  the  death  of  a  passenger.  Froeming 
V.  Stockton  Electric  B.  Co.  (Cal.)  1918B- 
408. 

20.  Declaration  of  Bystander  at  Acci- 
dent. After  the  explosion  of  the  locomo- 
tive boiler  in  question  the  conductor 
came  forward  and  found  the  engineer 
dead  and  pulled  the  fireman,  then  uncon- 
scious, from  the  place  where  he  lay,  and 
about  five  minutes  thereafter  came  back 
to  him,  whereupon  the  fireman  regained 
consciousness  and  quickly  stated  to  the 
conductor  that  the  water  glass  showed 
about  half  full  when  the  explosion  oc- 
curred, gave  his  home  address,  and  asked 
to  have  his  overclothes  taken  off,  as  they 
were  burning  him.  He  appeared  to  be 
suffering.  Held,  that  under  the  circum- 
stances his  statement  as  to  the  water 
glass  was  competent  as  part  of  the  res 
gestae  in  an  action  by  the  administrator 
of  the  engineer  against  the  railroad  com- 
pany. Denver  v.  Atchison,  etc.  R.  Co. 
(Kan.)  1917A-1007.  (Annotated.) 

c.     Dying  Declarations. 

21.  Foundation.  To  make  statements 
of  deceased  admissible  as  a  dying  declara- 
tion, preliminary  questions  to  her  as  to 
anticipation  of  death  should  not  be  put 
in  a  perfunctory  manner,  as  merely 
formal  and  unimportant,  but  so  as  to 
make  sure  that  she  understands  them. 
People  V.  Kane  (N.  Y.)  1916C-685. 

22.  Admissibility — ^Expectation  of  Death. 
A  declaration  made  by  deceased  after  his 
attending  physician  had  told  him  that  he 
could  not  recover  is  not  admissible,  where 
there  is  nothing  to  show  that  deceased 
understood  that  he  was  then  about  to  die. 
Reeves  v.  State  (Miss.)  1917A-1245. 

23.  Declaration  Showing  Malice  and  Be- 
vengeful  Spirit.  Dying  declarations  by 
deceased  are  not  admissible,  where  they 
clearly  show  that  he  was  actuated  by 
malice  and  desired  accused  to  be  pun- 
ished, but  only  on  the  theory  that  the 
near  approach  of  death  frees  the  declar- 
ant from  the  ordinary  motives  for  falsi- 
fication. Beeves  v.  State  (Miss.)  1917A- 
1245.  (Annotated.) 

24.  Hope  of  Recovery.  The  rule,  as  to 
dying  declarations,  that  it  must  be  shown 
they  were  not  made  in  answer  to  inter- 
rogatories calculated  to  lead  deceased  to 
make  a  particular  statement,  applies  to  the 
statements  in  regard  to  hope  of  recovery. 
People  V.  Kane  (N.  Y.)  1916C-685. 

Note. 
Admissibility  of  dying  declaration  as  af- 
fected by  malice  or  desire  for  revenge  on 
part  of  declarant.     1917A-1247. 


d.     Exculpatory  Statements. 

25.  Exculpatory  Statements  of  Accused 
— ^Admissibility  for  Prosecution.  State- 
ments made  by  a  defendant,  charged  with 
homicide,  subsequent  to  the  commission  of 
the  offense,  that  he  was  not  in  the  city 
where  the  homicide  was  committed,  are 
admissible  on  behalf  of  the  state  in  a 
prosecution,  where  defendant's  witnesses 
testified  that  he  was  in  the  city  where  the 
homicide  was  committed,  but  at  a  different 
place  in  that  city,  since  exculpatory  state- 
ments are  not  confessions  and  need  not  be 
shown  to  have  been  voluntarily  made. 
Mason  v.  State  (Tex.)   1917D-1094. 

(Annotated.) 

Note. 

Admissibility  of  prior  exculpatory  state- 
ment by  accused  to  contradict  evidence 
given  by  him  or  on  his  behalf  at  trial. 
1917B-1101. 

5.    EXPLAINING    AND    CONTRADICT- 
ING DECLARATIONS. 

26.  Receipt  of  Telegram  —  Failure  to 
Notify  of  Nonreceipt.  Where  a  witness 
had  testified  to  sending  a  cablegram  to  de- 
fendant, followed  by  a  letter  stating  that 
he  had  sent  the  message,  his  testimony 
that  he  was  never  notified  that  the  mes- 
sage was  not  received  is  relevant  as  tend- 
ing to  show  an  admission  by  defendant  of 
its  receipt.  Corry  v.  Sylvia  Y  Cia  (Ala.) 
1917E-1052. 

27.  Ante  Mortem  Statement.  An  ante 
mortem  statement  of  a  witness  purporting 
to  give  what  the  plaintiff  in  a  suit  for 
damages  for  a  personal  injury  said  to  him 
as  to  how  she  was  injured,  tending  to  con- 
tradict her  testimony  on  the  stand  in  the 
trial,  is  not  competent  evidence.  Florida 
East  Coast  R.  Co.  v.  Carter  (Fla.)  1916E- 
1299. 

ADMISSIONS  IN  PLEADINGS. 
See  Pleading,  11,  12. 

ADMISSION  TO  THE  BAR. 
See  Attorneys,  3,  5. 

ADOPTION  OF  CHILDREN. 

1.  Proceedings. 

2.  Rights  of  Inheritance. 

a.  By  Adopted  Child. 

b.  From  Adopted  Child. 

1.     PROCEEDINGS. 

1.  Validity  of  Parol  Adoption.  The 
adoption  of  a  child  cannot  be  affected  by 
parol;  the  only  method  of  adoption  being 
by  petition  to  and  decree  of  the  court  of 
common  pleas,  pursuant  to  Act  May  4, 
1855  (Pa.  P.  L.  431)  §  7,  as  re-enacted  by 
Act  May  19,  1857    (P.  L.  125)  §  1,  or  by 


ADOPTION  OF  CHILDREN. 


15 


deed  duly  executed  and  recorded  pursuant 
to  Act  April  2,  1872  (P.  L.  31)  §  1.  Ben- 
son V.  Nicholas  (Pa.)  1916D-1109. 

(Annotated.) 

2.  The  courts  of  Mississippi  are  not  re- 
quired to  recognize  rights  flowing  from  the 
status  of  adoption  created  in  Kentucky, 
with  reference  to  the  inheritance  of  land 
in  Mississippi  by  children  adopted  in  Ken- 
tucky; the  laws  of  which  state  on  the  sub- 
ject are  inconsistent  with  those  of  Missis- 
sippi governing  the  same  matter.  Fisher 
V.  Browning  (Miss.)  1917C-466. 

3.  Enforcement  of  Contract.  Where 
plaintiff  prayed  only  for  specific  perform- 
ance of  a  contract  for  adoption  and  not 
for  damages  for  its  breach,  and  sought  to 
be  allowed  to  participate  in  an  estate  as  a 
distributee,  the  jurisdiction  to  determine 
the  merits  of  her  claim  was  vested  exclu- 
sively in  the  orphans'  court.  Benson  v. 
Nicholas  (Pa.)  1916I>-1109. 

Note. 
Validity   of   contract   or   proceeding   of 
adoption    not    made    in    conformity    with 
statute.     1916D-1110. 

2.    BIGHTS  OF  INHERITANCE. 
a.     By  Adopted  Child. 

4.  "What  Law  Governs — Adoption  in  For- 
eign State.  Since  the  descent  of  lands  in 
Mississippi  is  governed  by  the  laws  of  that 
state,  under  which  an  adopted  child  may 
not  inherit  from  foster  parents  unless  so 
specified  in  the  petition  for  adoption, 
where  a  child  was  legally  adopted  in  Ken- 
tucky, where  she  could  inherit  real  prop- 
erty from  her  foster  parents,  under  a  peti- 
tion which  did  not  give  her  such  right  in 
Mississippi,  where  her  foster  parents  re- 
sided, she  has  no  interest  in  the  land  of 
her  foster  father  in  Mississippi,  which  on 
his  death  without  natural  children  de- 
scends to  his  widow.  Fisher  v.  Browning 
(Miss.)  1917C-466. 

5.  Eight  to  Inherit  from  Foster  Parent. 

An  adopted  child  cannot  take  property  by 
descent  from  its  adoptive  parents,  except 
under  Miss.  Code  1906,  §  542,  providing 
that  an  adopted  child  shall  be  entitled  to 
all  the  benefits  proposed  by  the  petitioner 
to  be  granted  and  conferred  in  the  petition 
for  adoption.  Fisher  v.  Browning  (Miss.) 
1917C-466. 

6.  Inheritance  "by  Adopted  Child — What 
Law  Governs.  Where  a  child  was  adopted 
in  Kentucky,  under  whose  laws  it  inherits 
land  from  its  foster  parent,  and  upon  its 
decease  in  infancy  without  issue  the  land 
so  inherited  reverts  to  the  next  of  kin  of 
such  foster  parent,  such  inheritance  rules 
do  not  violate  the  constitution  or  public 
policy  of  Mississippi,  and  will  be  applied 
to  lands  there  situated.  Brewer  v.  Brown- 
ing (Mass.)   1918B-1013.         (Annotated.) 


b.     From  Adopted  Child. 

7.  Inheritance  from  Adopted  Child. 
Colo.  Eev.  St.  1908,  §  526,  provides  that 
after  a  decree  of  adoption  the  person 
adopted  shall  be  entitled  to  inherit  as  if 
he  had  been  the  petitioner's  child  born  in 
holy  wedlock.  Section  529  declares  that 
the  adopted  child  shall  be  to  all  intents 
and  purposes  the  child  and  legal  heir  of 
the  person  adopting  him,  while  section 
7042  also  declares  that  adopted  children 
shall  be  legalized  and  entitled  to  inherit 
as  legitimate  children.  Held,  that  an 
adopted  child  and  his  adopters  do  not,  ex- 
cept in  so  far  as  provided  by  statute,  as- 
sume the  relation  of  parent  and  child,  and 
where,  after  the  death  of  the  adopters,  the 
adopted  child  died  leaving  no  issue,  his 
relatives  by  blood  take  in  preference  to 
the  children  of  the  adopting  parents. 
Russel  V.  Jordan  (Colo.)  1916C-760. 

(Annotated.) 

8.  Property  Derived  from  Foster  Parents. 
Property  inherited  by  an  adopted  child 
from  its  foster  parents  goes  to  it  in  fee, 
and  on  its  death  descends  according  to 
the  law  of  descent  and  distribution  to  its 
blood  relatives  to  the  exclusion  of  the 
parents.  Fisher  v.  Browning  (Miss.) 
1917C-466.  (Annotated.) 

9.  Inheritance  from  Adopted  Child. 
Decedent  was  duly  adopted  by  his  mother's 
sister,  after  his  father  had  abandoned  his 
family,  under  Laws  N.  Y.  1873,  c.  830, 
providing  that  the  adopted  child  should 
sustain  the  legal  relation  of  a  child,  and 
which  as  amended  by  Laws  N.  Y.  1887, 
c.  703,  gave  the  right  of  inheritance,  previ- 
ously denied,  and  declared  his  "next  of 
kin"  to  be  the  same  as  if  he  was  the 
"legitimate  child"  of  the  person  adopting 
him.  After  the  death  of  his  foster  mother, 
leaving  a  brother  and  two  sisters,  deced- 
ent, while  in  defendant's  employ,  was 
killed,  dying  intestate  and  unmarried. 
N.  Y.  Code  Civ.  Proc,  §§  1902-1905,  pro- 
vides a  recovery  for  wrongful  death  for 
the  benefit  of  decedent's  "next  of  kin," 
defined  by  reference  to  include  all  those 
entitled  under  the  law  relating  to  the  dis- 
tribution of  personal  property.  Domestic 
Relations  Law  (Consol.  Laws,  c.  14)  §  114, 
provides  that  a  foster  parent  and  an 
adopted  minor  child  sustain  the  legal  rela- 
tion of  parent  and  child,  with  rights  of  in- 
heritance from  eaoh  other,  extending  to 
the  child's  heirs  and  "next  of  kin,"  as  if  he 
were  the  "legitimate  child"  of  the  person 
adopting  him.  Decedent  Estate  Law 
(Consol.  Laws,  c.  13)  §  98,  subd.  7,  pro- 
vides that  the  father  of  an  adopted  child, 
dying  intestate,  unmarried,  and  without 
children,  takes  all  the  unbequeathed  as- 
sets. Held,  that  the  law  in  force  at  de- 
cedent's death  controlled;  that  the  right 
of  inheritance  which  passed  to  decedent's 
next  of  kin  was  not  merely  the  right  to 
inherit  from  hia  foster  parent;   that  the 


16 


DIGEST. 

1916C— 1918B. 


term  "legitimate  child,"  used  in  the  estab- 
lished meaning  of  a  child  born  in  lawful 
wedlock,  made  decedent  the  next  of  kin,  as 
though  the  adopted  parent  were  his  nat- 
ural parent;  and  hence  that  the  brother 
and  sistera  of  his  deceased  adopted  mother, 
and  not  his  natural  father,  were  the  "next 
of  kin"  entitled  to  substantial  damages. 
Carpenter  v.  Buffalo  General  Electric  Co. 
(N.  Y.)   1916C-754.  (Annotated.) 

Notes. 

Right  of  inheritance  from  adopted  child 
as  between  natural  parents  and  adoptive 
parents  or  their  descendants.     1916G-757. 

Succession  to  estate  inherited  from  fos- 
ter parent  by  adopted  child  who  dies 
without  issue.    19160-762. 

ADULTEEATION. 
See  Food,  4,  5. 

ADUIfTESY. 

1.  Nature  of  Offense. 

2.  Indictment. 

3.  Defenses. 

Appointment  of  decedent's  mistress  as 
executrix,  see  Executors  and  Adminis- 
trators, 6. 

One  act  insufficient  for  alienation,  see  Hus- 
band and  Wife,  55. 

Gist  of  action  for  criminal  conversation, 
see  Husband  and  Wife,  68. 

1.     NATURE  OF  OFFENSE. 

1.  Persons  Capable  of  Committing.  Un- 
der Vt.  P.  S.  5881,  making  adultery  pun- 
ishable, and  not  defining  the  offense, 
except  by  referring  to  it  by  name,  con- 
strued with  reference  to  the  common-law 
offense,  and  with  reference  to  section  5882 
making  it  adultery  for  an  unmarried 
woman  to  commit  an  act  with  a  married 
man  which  would  be  adultery  if  she  were 
married,  a  single  man  who  has  unlawful 
intercourse  with  a  married  woman  is  guilty 
of  adultery.  State  v.  Bigelow  (Vt.) 
1917A-702.  .  (Annotated.) 

2.  Necessity  of  Joint  Criminal  Intent. 
One  party  to  an  illicit  intercourse  may  be 
guilty  of  adultery  and  the  other  innocent 
thereof;  it  not  being  essential  to  the  com- 
mission of  such  offense  that  there  be  a 
joint'  criminal  intent.  State  t.  Ayles 
(Ore.)    1916E-738. 

Note. 
Persons  capable  of  committing  crime  of 
adultery.     1917A-703. 

2.    INDICTMENT. 

3.  An  indictment  for  adultery  need 
not  allege  that  the  prosecution  was  insti- 
tuted  by   the  injured   spouse,  as   required 


by  Ore.  L.  O.  L.,  §  2072.     State  v.  Ayles 
(Ore.)  1916E-738. 

3.     DEFENSES. 

4.  Connivance  of  Injured  Spouse.  That 
the  husband  of  the  woman  connived  with 
and  abetted  defendant  in  the  commission, 
of  the  act  of  adultery  constitutes  no  de- 
fense.    State  V.  Ayles  (Ore.)  1916E-738. 

(Annotated.) 

Note. 
Connivance    or    procurement    by    other 
spouse  as  defense  to  prosecution  for  adul- 
tery.   1916E-741. 

AD  VALOREM  TAX. 
Power  of  state  to  levy,  see  Taxation.  22. 

ADVANCEMENTS. 

See  Liens,  1. 

Reimbursement  for,  see  Executors  and  Ad- 
ministrators, 53. 

1.  Meaning  of  Term.  An  "advance- 
ment" as  defined  by  N.  Dak.  Rev.  Codes 
1905,  §§5197,  5199,  5200,  does  not  involve 
an  indebtedness.  Stenson  v.  H.  S.  Halvor- 
son  Co.   (N.  Dak.)   1916D-1289. 

2.  Right  to  Charge  Estate.  An  adminis- 
trator with  the  will  annexed,  who  paid 
only  $618  of  probated  demands  and  re- 
ceived in  cash  twice  that  amount,  who 
built  a  family  dwelling  house  on  the  land, 
and  advanced  to  the  widow  and  children 
large  sums  of  money,  so  that  the  money 
expended  exceeded  that  received  by  $2,038, 
is  not  entitled  to  a  judgment  and  a  lien 
against  the  realty;  since  such  expenditures 
were  neither  debts  of  the  decedent  nor  ex- 
penses of  administration  authorizing  the 
probate  court  or  any  court  to  order  a,  sale 
of  the  land.  Stuckey  v.  Stephens  (Ark.) 
1917A-133.  (Annotated.) 

ADVERSE   POSSESSION. 

1.  Necessary  Elements,  17. 

a.  Actual  Possession,  17. 

b.  Hostile  Possession,  17. 

c.  Continuous  Possession,  18. 

d.  Tacking  Possession,  18. 

e.  In   Mining  Property,  18. 

2.  What  Constitutes  Color  of  Title,  38. 

3.  Extent  of  Possession,   18. 

4.  Who  may  Acquire  Title  by  Adverse  Pos- 

session,  19. 

5.  Against  Whom  Title  may  be  Acquired,  19.. 

6.  Evidence,   19. 

a.  Admissibility,  19. 

b.  Sufficiency,  19. 

c.  Questions  of  Law  and  Fact,  20. 

7.  Nature  of  Title   Acquired,  20. 

8.  Purchase  of  Outstanding  Title,  20. 

By  bailee,  see  Bailment,  6. 
Of  grantor  of  minerals  as  to  access  thereto, 
see  Mines  and  Minerals,  3. 


ADVERSE  POSSESSION. 


17 


Adverse  user  of  street,  see  Streets  and 
Highways,  21. 

As  between  cotenants,  see  Tenants  in  Com- 
mon, 6,  7. 

1.     NECESSARY  ELEMENTS. 
a.     Actual  Possession. 

1.  What  Constitutes  Actual  Possession. 
Before  one  can  acquire  an  actual  posses- 
sion to  land  1)0  which  he  has  no  title  and 
to  which  he  has  only  a  color  of  title,  he 
must  enter  upon  the  land  with  the  inten- 
tion of  holding  it,  and,  if  without  color  of 
title,  must  claim  it  to  well  marked  and 
defined  boundaries.  Tennis  Coal  Co.  v. 
Sackett  (K7.)   1917E-629. 

2.  One  entering  under  a  deed,  patent,  or 
other  written  instrument  evidencing  title, 
with  the  intention  of  possessing  the  land 
to  the  extent  of  the  boundaries  described 
in  his  deeds,  etc.,  is  in  the  actual  posses- 
sion to  the  extent  of  his  boundary,  or  to 
the  extent  his  boundary  is  not  in  the 
actual  possession  of  another,  or  unless  the 
boundary  described  in  his  color  of  title  em- 
braces, a  lap  upon  a  senior  grant,  in  which 
instance  he  will  not  be  in  the  actual , 
possession  of  the  part  embraced  in  the  con- 
flict unless  he  actually  enters  thereon. 
Tennis  Coal  Co.  v.  Sackett  (Ky.)  1917E- 
629. 

3.  Necessity  of  Actual  Possession.  A 
possession,  which  if  continued  for  the 
statutory  period  of  fifteen  years  will  ripen 
into  title,  must  in  the  first  instance  be  ,an 
actual  possession.  Tennis  Coal  Co.  v. 
Sackett  (Ky.)  1917E-629. 

4.  Where  a  grantee  enters  land  to  a  part 
of  which  the  vendor's  title  was  valid  and 
to  a  part  of  which  it  was  invalid  and  cov- 
ered by  another's  valid  title  and  occupies 
the  part  to  which  he  has  a  good  title,  he 
does  not  have  adverse  possession  of  the 
part  to  which  he  has  not  a  good  title,  un- 
less he  actually  enters  and  subjects  it  to 
such  use  as  will  be  notice  to  the  true 
owner;  though  a  different  rule  applies 
where  his  title  to  all  the  land  embraced  in 
the  deed  is  invalid.  Tennis  Coal  Co.  v. 
Sackett  (Ky.)  1917E-629. 

5.  One  owning  and  residing  upon  a  tract 
who  acquires  an  inferior  title  to  an  adjoin- 
ing tract,  in  which  another  has  a  con- 
structive possession,  does  not  acquire  an 
actual  possession  of  the  tract  to  which  he 
holds  a  color  of  title,  and  before  he  obtains 
adverse  possession  of  it  he  must  enter  and 
take  physical  possession  of  it.  Tennis 
Coal  Go.  v.  Sackett  (Ky.)  1917E-629. 

6.  Without .  actual  possession  of  some 
part  of  a  tract  of  land,  there  can  be  no 
constructive  possession  of  any  part  by  one 
without  title  or  one  having  a  mere  color 
of  title  under  a  deed,  patent,  etc.,  which 
makes  an  inferior  title.  Tennis  Goal  Co. 
V.  Sackett  (Ky.)  1917E-629. 


7.  Scope  of  Possession  by  Owner.    One 

having  the  title  to  land  and  the  actual 
possession  thereof,  and  who  acquires  the 
title  to  contiguous  tracts  with  the  inten- 
tion of  holding  possession  to  the  extent  of 
the  boundaries  of  all  the  tracts,  is  in  the 
actual  possession  of  all,  as,  having  already 
the  constructive  possession  by  reason  of 
his  title,  the  law  waives  the  necessity  of 
an  entry  upon  each  of  the  newly  acquired 
tracts,  and  the  actual  possession  of  the 
tract  contiguous  to  them  is  extended  over 
all  of  them  by  operation  of  law.  Tennis 
Coal  Co.  V.  Sackett  (Ky.)  1917E-629. 

b.    Hostile  Possession. 

8.  What  Constitutes  Hostile  Possession. 
One  without  color  of  title  may  create  an 
actual  possession  in  himself,  by  construc- 
tion, to  parts  of  a  tract  of  land,  by  enter- 
ing thereon  and  using  and  occupying  a  part 
and  claiming  it  to  a  well  marked  and  de- 
fined boundary,  which  either  already  exists 
or  which  he  places  there,  and  he  is  then  in 
actual  possession  of  the  part  which  he  in- 
closes and  uses,  and  in  actual  possession 
by  construction  to  the  extent  of  his  bound- 
ary, unless  the  land  is  in  the  actual  or 
constructive  possession  of  another,  in 
which  case  his  actual  possession  only  ex- 
tends to  his  incloBures.  Tennis  Coal  Co, 
V.  Sackett  (Ky.)  1917E-629. 

9.  Necessity  of  Hostility.  While  an  ad- 
verse title  may  be  acquired  through  pos- 
session by  a  tenant,  whether  the  claimant 
acts  in  person  or  through  a  tenant,  he  must 
show  a  disseisin  and  imequivocal  assertion 
of  title  in  himself,  and  hence  adverse  pos- 
session of  a  portion  of  a  street  occupied 
by  a  fruit  stand  operated  by  complainant 
under  a  lease  from  the  owner  of  the  ad- 
joining property  was  not  established  in  the 
absence  of  proof  of  notice  of  the  adverse 
claim  to  the  city.  Pastorino  v.  Detroit 
(Mich.)    1916D-768. 

10.  Permissive  Use.  When  such  right  of 
way  is  only  an  easement,  occupation  by 
inclosure  and  cultivation  of  a  part  of  it 
by  the  owner  of  the  servient  estate,  until 
it  is  needed  for  the  operation  of  the  rail- 
road, is  presumed  to  be  permissive  and  not 
adverse,  and  the  statute  of  limitations 
will  begin  to  run  only  from  the  time  the 
railroad  company  has  notice  of  the  occu- 
pier's hostile  claim.  Dulin  v.  Ohio  Eiver 
E.  Co.  (W.  Va.)  1916D-1183. 

11.  Mental  Intention.  Possession  to 
create  title  does  not  consist  of  mental  in- 
tentions but  must  be  based  on  the  exist- 
ence of  physical  facts,  such  as  making  an 
improvement  upon  the  land  or  the  doing  of 
other  acts  upon  it  which  openly  evince  a 
purpose  to  hold  dominion  over  it  in  hos- 
tility to  the  title  of  the  real  owner,  and 
such  as  will  give  notice  of  such  hostile 
intent,  which  adverse  holding  must  con- 
tinue for   the  statutory  period   of  fifteen 


18  DIGEST. 

1916C— 1918B. 
years.  Tennis  Coal  Co.  v.  Sackett  (Ky.)  fails. 
1917E-629. 


e.    Continuous  Possession. 

12.  Sufficiency  of  Adverse  Possession. 
Adverse  possession  must  be  based  upon 
some  physical  acts  done  upon  the  land 
Dvhich  will  give  the  true  owner  notice  that 
another  is  in  possession  of  his  land,  and 
the  acts  necessarily  must  be  such  as  to  en- 
able the  owner  to  maintain  an  action  of 
ejectment  or  trespass  against  the  intruder. 
Tennis  Coal  Co.  v.  Sackett  (Ky.)  1917E- 
629. 

13.  Notoriety  of  Claim.  One  having  an 
easement  over  the  land  of  another  cannot 
change  the  character  of  his  right  to  an  ad- 
verse holding  of  the  land  itself,  unless  he 
either  gives  the  true  owner  actual  notice, 
or  his  acts  and  declarations  of  a  hostile 
claim  are  so  open  and  notorious  as  to  leave 
no  doubt  in  the  mind  of  the  true  owner; 
and  the  fact  that  one  having  an  easement 
of  way  inclosed  it,  occasionally  locked  the 
gate  and  would  not  permit  others  to  use 
it,  and  often  allowed  his  stock  to  pasture 
on  the  way,  is  not  sufficient  to  apprise  the 
owner  of  the  land  that  the  owner  of  the 
easement  is  asserting  a  hostile  title  to 
the  land  itself.  O'Banion  ▼.  Cunningham 
(Ky.)  1917A-1017. 

Note. 
What  constitutes  notice  to  railroad  com- 
pany of  adverse  possession  of  its  property. 
1917A-1274. 

d.  Tacking  Possession. 

14.  ■^i^'hen  the  grantee  of  an  adverse  pos- 
sessor takes  possession,  he  may  unite  his 
subsequent  possession  with  his  grantor's 
prior  possession  to  make  out  adverse  .posses- 
sion for  the  seven-year  period.  Northcut 
V.  Church  (Tenn.)  1918B-545. 

15.  Where  the  grantee  of  mineral  rights 
of  an  adverse  possessor  takes  immediate 
and  appropriate  possession  thereof,  he 
may  unite  his  subsequent  possession  with 
his  grantor's  prior  possession  to  make 
out  statutory  title  by  adverse  possession. 
Northcut  v.  Church  (Tenn.)   1918B-545. 

e.  In  Mining  Property. 

16.  Under  Ky.  St.  §  2366a,  providing 
that,  whenever  the  mineral  rights  appur- 
tenant to  land  shall  pass  from  a  claimant 
in  possession "  of  the  surface  the  continuity 
of  the  possession  of  such  mineral  rights 
shall  not  be  broken,  a  vendor  in  possession 
of  surface  when  he  sells  the  minerals,  by 
thereafter  remaining  in  possession  for  the 
statutory  period,  gives  the  purchaser  of 
the  minerals  a  valid  title;  but  if,  before 
the  statutory  period  expires,  the  vendor 
abandons  the  possession  or  is  evicted  by 
[.•aramount  title,  the  title  of  the  purchaser 


Tennis  Coal  Co.  v.  Sackett   (Ky.) 
1917E-629.  (Annotated.) 

17.  Plaintiff  claiming  title  under  a  pat- 
ent should  have  recovered  a  tract  not 
embraced  by  any  other  patent,  unless  de- 
fendant had  title  by  adverse  possession, 
or  it  was  in  the  adverse  possession  ot 
defendant's  vendors  when  the  deed  to 
plaintiff  from  the  patentee's  devisees  was 
executed.  Tennis  Coal  Co.  T.  Sackett 
(Ky.)   1917E-629. 

18.  Acts  of  possession  required  for  the 
surface  and  those  for  the  minerals  are  dif- 
ferent; the  latter  requiring  some  form  of 
mining  or  activities  directly  related  there- 
to. Northcut  T.  Church  (Tenn.)  1918B- 
545. 


2*     WHAT 


CONSTITUTES 
TITLE. 


COLOB    OP 


19.  Deed  of  Life  Tenant.  In  a  suit  to 
quiet  title,  where  it  appeared  that  the  one 
under  whom  defendant  claimed  was  in 
possession  under  a  quitclaim  deed  from  a 
lite  tenant  until  the  life  estate  fell  in,  in 
1896,  and  that  the  remaindermen  were 
barred  by  the  ten-year  statute  of  limita- 
tions, complainant  from  that  date  having 
been  in  the  adverse  possession  under  claim 
of  ownership,  there  is  no  title  in  defend- 
ant's predecessor  superior  to  that  of  the 
complainant.  Vidmer  v.  Lloyd  (Ala.) 
1917A-576. 

20.  In  an  action  to  quiet  title  against 
defendant,  claiming  under  actual  prior 
possession  of  one  B.  under  color  of  title, 
complainant,  who  while  in  possession  of 
the  property  knew  that  B.  only  had  a  deed 
from  one  claiming  a  life  estate  and  could 
not  convey  good  title,  and  who  entered 
into  a  contract  with  E.'s  husband,  while 
his  wife  was  alive,  whereby  he  was  to 
acquire  a  clear  title  and  convey  it  to  com- 
plainant, and  who  paid  the  full  purchase 
price  prior  to  E.'s  death  and  received  a 
deed  from  the  surviving  husband,  has  a 
perfect  equity  under  such  contract  of  pur- 
chase, and  his  possession  begins  to  run 
against  B.  in  her  lifetime.  Vidmer  v. 
Lloyd  (Ala.)   1917A-576. 

3.     EXTENT   OF  POSSESSION. 

21.  One  having  color  of  title  may  have 
an  actual  possession,  by  construction,  to 
parts  of  a  tract  by  entering  thereon  with 
the  intention  to  take  and  hold  possession 
to  the  extent  of  the  boundaries  of  his 
deed,  etc.,  and  is  then  in  actual  possession 
of  the  part  which  he  occupies  and  in 
actual  possession,  by  construction,  of  the 
remainder,  when  not  in  the  possession  of 
another.  Tennis  Coal  Co.  v.  Sackett  (Ky.) 
1917E-629. 

22.  Adverse  Possession  Under  Overlap- 
ping Grants.  Where  a  junior  grant  laps 
upon   a    senior     grant,   and     although    the 


ADVERSE  POSSESSION. 


19 


senior  patentee  has  never  entered  upon 
any  part  of  hia  patent,  and  has  only  the 
constructive  possession  of  it,  which  the 
law  vests  in  him,  and  the  junior  patentee 
enters  upon  his  grant,  but  without  the  lap, 
with  the  intention  of  holding  to  the  extent 
of  his  boundaries,  he  is  not  in  the  pos- 
session of  the  lap  either  actually  or  con- 
structively, because  his  possession  of  it 
would  only  be  constructive  and  would  not 
displace  the  senior  patentee's  constructive 
possession.  Tennis  Coal  Co.  v.  Sackett 
(Ky.)  1917E-629. 

23.  Separate  Tracts.  Generally,  'where 
title  is  claimed  by  adverse  possession  as 
to  two  separate  pieces  of  land  against  the 
same  claimant,  an  adverse  holding  of  each 
must  be  made  out  by  circumstances  relat- 
ing to  possession  of  each  respectively,  and 
possession  of  one  will  not  extend  con- 
structively to  the  other.  John  L.  Roper 
Lumber  Co.  v.  Richmond  Cedar  Works 
(N.  Car.)    1917B-992. 

24.  Constructive  Possession  of  Owner. 
One  having  no  actual  possession  of  the 
land  embraced  within  his  deed,  by  a  fiction 
of  law,  is  in  the  constructive  possession 
of  all  the  land  embraced  therein  which  is 
not  in  the  actual  possession  of  another. 
Tennis  Coal  Co.  v.  Sackett  (Ky.)  1917E- 
629. 

4.     WHO    MAY    ACQUIRE    TITLE    BY 
ADVERSE  POSSESSION. 

25.  Necessity  of  Surrender  of  Leasehold. 
One  who  enters  into  possession  of  land  as 
a  tenant  cannot,  while  retaining  posses- 
sion, assert  against  his  lessor  an  after- 
acquired  title,  which  he  deems  superior  to 
that  of  the  lessor.  Lawrence  v.  EUer 
(N.   Car.)    1917D-546.  (Annotated.) 

26.  Hunting  Club.  It  is  not  sufficient 
basis  to  support  a  claim  of  title  by  adverse 
possession  to  a  tract  of  27,000  acres,  that 
the  grantees  in  a  deed  of  the  right  to  hunt 
and  fish  thereon,  have  a  clubhouse  there- 
on, and  two  or  three  acres  fenced,  have 
successfully  maintained  a  suit  in  the  fed- 
eral court  enjoining  nonmembers  from 
hunting  and  fishing  there,  and  have  keep- 
ers and  wardens  for  ejecting  nonmembers, 
and  fishing  and  hunting  equipments,  and 
houses  for  employees,  and  have  posted 
notices  forbidding  trespassing.  Stokes  v. 
State  (Ark.)   1917D-657. 

27.  Person  Precluded  by  Judgment  from 
Asserting  Title.  During  the  fifteen  years 
necessary  to  hold  land  in  order  to  create 
a  title  by  adverse  possession,  after  an 
adverse  judgment,  although  possession 
might  be  sufficient  under  the  statute  of 
limitations,  one  estopped  by  the  judgment 
to  deny  the  title  of  the  owner  has  no 
such  adverse  possession  as  will  make  a 
sale  and  conveyance  by  the  owner  void  as 
against  the  champerty  statute.  Tennis 
Coal  Co.  V.  Sackett  (Ky.)  1917E-629. 


5.     AGAINST    WHOM   TITLE  MAY  BE 
ACQUIRED. 

28.  Railroad  Right  of  Way.  The  doc- 
trine of  adversary  possession  is  applicable 
to  land  acquired  by  a  railroad  company  for 
its  right  of  way.  Dulin  v.  Ohio  River  B. 
Co.  (W.  Va.)   1916D-1183. 

(Annotated.) 

29.  Orantee  not  Entitled  to  Possession. 

Neither  limitations  nor  prescription  may 
run  against  a  grantee  invested  with  an  es- 
tate in  fee,  but  not  entitled  to  possession 
before  the  grantor's  death,  until  after 
grantor's  death.  (Phillips  v.  Phillips 
(Ala.)    1916D-994. 

30.  What  Will  Divest  Owner's  Construc- 
tive Possession.  Parties  having  construc- 
tive possession  of  lands  embraced  within 
certain  patents  could  not  be  divested  of 
such  possession,  except  by  an  actual  pos- 
session in  fact,  or  by  such  acts  as  vested 
in  another  an  actual  possession  by  con- 
struction. Tennis  Coal  Co.  v.  Sackett 
(Ky.)  1917E-629. 

Note. 

Acquisition  of  title  to  land  within 
right  of  way  of  railroad  by  adverse  pos- 
session or  prescription.     1916D-1186. 

6.     EVIDENCE. 
a.     Admissibility. 

31.  Notice  to  Agent.  Where  by  the 
rules  of  a  railroad  company,  its  station 
agent  was  under  no  duty  to  report  en- 
croachments by  abutting  owners  upon  its 
right  of  way  in  a  suit  by  the  road  to  re- 
cover possession  of  part  of  its  right  of 
way  encroached  upon  by  defendant,  evi- 
dence is  inadmissible  contradicting  the 
agent's  denial  that  he  had  requested  de- 
fendant to  move  her  fence  off  the  right 
of  way,  and  that  defendant  denied  it  was 
misplaced.  Atlantic  Coast  Line  B.  Co.  v. 
Dawes  (S.  Car.)  1917A-1272. 

(Annotated.) 

32.  Adverse  User — Notice — Admissibility 
of  Evidence.  In  an  action  by  a  railroad 
company  to  recover  possession  of  land  con- 
demned  by  it  in  which  defendant  claimed 
that  the  company  had  abandoned  its  ease- 
ment, a  letter  written  by  the  company  by 
a  person  acting  for  the  then  owner  of 
the  property  offering  it  for  sale  to  the 
company  is  admissible  in  connection  with 
the  company's  reply  asking  for  a  sketch 
of  the  property  to  show  notice  to  the 
company  that  a  third  party  was  then 
claiming  the  property.  New  York,  etc.  B. 
Co.  V.  Cella  (Conn.)  1917D-591. 

b.    Sufficiency. 

33.  Evidence  Insufficient.  In  a  suit  to 
establish  ownership  of  various  tracts  of 
land  conveyed  to  plaintiff  by  the  devisees 


20 


DIGEST. 

1916C— 1918B. 


under  the  will  of  the  original  patentee,  and 
to  the  coal  and  minerals  thereunder,  the 
evidence  is  held  to  be  insufficient  to  show 
adverse  possession  in  the  vendors  of  de- 
fendant coal  company.  Tennis  Coal  Co. 
V.  Sackett  (Ky.)   1917E-629. 

(Annotated.) 

e.     Questions  of  Law  and  Fact. 

34.  Question  for  Jury.  In  a  suit  to  es- 
tablish the  ownership  of  a  tract  of  land 
embraced  in  a  patent  under  which  plain- 
tiff claimed,  it  is  held  that  the  questions 
of  the  adverse  possession  of  the  defend- 
ant's vendors,  and  of  champerty,  were  for 
the  jury.  Tennis  Coal  Co.  v.  Sackett 
(Ky.)  1917E-629. 

35.  Instmction  Improper.  The  charge  of 
the  court  in  respect  to  prescriptive  title 
was  an  inaccurate  statement  of  the  law. 
Bunger  v.  Grimm  (Ga.)  1916C-173. 

7.     NATUKE  OP  TITLE  ACQUIRED. 

36.  Acquirement  of  Title.  The  actual 
possession  of  land  sued  for  by  one,  claim- 
ing it  as  his  own,  for  about  forty  years, 
without  recognition  of  any  claim,  right,  or 
title  of  another,  operates  as  an  absolute 
repose  under  the  doctrine  of  prescription. 
Vidmer  v.  Lloyd  (Ala.)  1917A-576. 

8.     PURCHASE      OF      OUTSTANDING 
TITLE. 

37.  Effect.  One  in  possession  of  land 
under  color  of  title  may  purchase  an  out- 
standing title  without  thereby  breaking 
the  adverse  nature  of  his  holding  under 
the  first  title,  though  the  period  for  per- 
fecting title  under  the  first  holding  has 
not  expired.  John  L.  Roper  Lumber  Co. 
V.  Richmond  Cedar  Works  (N.  Car.) 
1917B-992.  (Annotated.) 

38.  Where  plaintiff  has  held  adversely 
for  six  and  one-half  years  under  color  of 
title  constituted  by  a  deed  from  a  stran- 
ger, he  does  not  abandon  or  relinquish  such 
holding  or  the  right  to  complete  title  there- 
under by  the  purchase  of  an  outstanding 
interest  which  was  contended  to  be  the 
interest  of  a  tenant  in  common  of  defend- 
ants, where  there  is  no  intention  by  plain- 
tiff to  abandon  the  color  of  title.  John 
L.  Roper  Lumber  Co.  v.  Richmond  Cedar 
Works  (N.  Car.)  1917B-992. 

(Annotated.) 
ADVERTISING. 

Misnomer  in  sheriff's  advertisement,  effect, 

see  Judicial  Sales,  i. 
Use  of  walls  by  tenant,  see  Landlord  and 

Tenant,   11. 
Of  city  contracts,  see  Municipal  Corpora- 

tions,  130. 

1.  Validity  of  Regulations.  The  erection 
of  any  billboard  or  signboard  over  twelve 
square  feet  in  area  in  any  block  in  which 


one-half  of  the  l)uildings  on  both  sides  of 
the  street  are  used  exclusively  for  residence 
purposes,  without  first  obtaining  the  writ- 
ten consent  of  the  owners  of  a  majority  of 
the  frontage  on  both  sides  of  the  street  in 
such  block,  may  be  prohibited  in  the  exer- 
cise of  the  state's  police  power,  and  such 
prohibition  works  no  denial  to  a  corpora- 
tion engaged  in  outdoor  advertising  of 
either  the  due  process  of  law  or  equal  pro- 
tection of  the  laws  guaranteed  by  the  14th 
Amendment  to  the  Federal  Constitution  (9 
Fed.  St.  Ann.»  416,  538).  Thomas  Cusack 
Co.  V.  Chicago  (U.  S.)  1917C-594. 

(Annotated.) 

2.  A  municipal  ordinance  passed  under 
authority  delegated  by  the  state  legislature 
to  regulate  or  control  the  construction  and 
maintenance  of  billboards  is  a  valid  exer- 
cise of  the  police  power  unless  it  is  clearly 
unreasonable  and  arbitrary.  Thomas  Cu- 
sack Co.  V.  Chicago   (U.  S.)   1917C-594. 

(Annotated.) 

3.  An  ordinance  requiring  the  consent  of 
the  majority  of  residence  owners  accord- 
ing to  frontage  to  the  erection  of  a  bill- 
board in  a  residence  block  is  not  unrea- 
sonable because  it  requires  the  consent  of 
a  majority  of  the  owners  of  property  on 
both  sides  of  the  street  where  the  bill- 
board is  to  be  erected.  Thomas  Cusack 
Co.  V.  Chicago  (111.)  1916C-488.     . 

(Annotated.) 

4.  An  ordinance  requiring  the  consent  of 
the  majority  of  residence  owners  accord- 
ing to  frontage  to  the  erection  of  a  bill- 
board in  a  residence  block  is  not  unreason- 
able in  view  of  the  liability  of  fire,  the 
liability  of  a  use  by  disorderly  persons 
for  unlawful  and  immoral  purposes,  and 
the  difference  between  fire  and  police  pro- 
tection in  residence  districts  and  other 
districts.  Thomas  Cusack  Co.  v,  Chicago 
(111.)  1916€-t88.  (Annotated.) 

5.  An  ordinance  requiring  the  consent  of 
residence  owners  to  the  erection  of  a  bill- 
board in  a  residence  block  is  not  discrim- 
inatory in  that  there  is  no  difference  be- 
tween fences,  buildings,  and  billboards. 
Thomas  Cusack  Co.  v.  Chicago  (111.)  1916C- 
488,  ,  (Annotated.) 

6.  A  city  has  power  to  enact  an  ordi- 
nance requiring  the  consent  of  a  majority 
of  the  residence  owners  to  the  erection  of 
a  billboard  in  a  residence  block,  under 
Kurd's  111.  Civ.  St.  1913,  c.  24,  §  696,  giving 
cities  power  to  regulate  the  location  of 
billboards,  etc.,  upon  vacant  property  and 
upon  buildings.  Thomas  Cusack  Co.  v. 
Chicago  (111.)  1916C-488.  (Annotated.) 

7.  On  a  question  of  the  reasonableness 
of  a  city  ordinance  requiring  the  consent 
of  the  majority  of  the  residence  owners 
in  accordance  with  frontage,  evidence 
tending  to  show  that  the  erection  of  bill- 
boards is  productive  of  fire,  and  that  resi- 
dence districts  are  not  so  well  protected 


ADVICE  OF  COUNSEL— AGENCY. 


21 


as  the  business  distriet,  is  admissible. 
Thomas  Cusack  Oo.  V.Chicago  (111.)  1916C- 
488.  (Annotated.) 

8.  On  the  question  of  the  reasonable- 
ness of  a  city  ordinance  requiring  the  con- 
sent of  residence  owners  as  a  condition 
to  the  erection  of  a  billboard  in  a  resi- 
dence block,  evidence  that  such  boards 
offered  a  protection  to  disorderly  and  law- 
breaking  persons,  and  that  residence  difl- 
tricts  were  not  so  well  policed  as  other  dis- 
tricts, is  admissible.  Thomas  Cusack  Co. 
V.  CMcago  (111.)  191©C-488. 

(Annotated.) 

Note. 
Municipal  regulation  of  billboards  and 
signs.     1916C-491. 

ADVICE  OF  COUNSEI.. 

As      establishing      probable      cause,      see 
Malicious  Prosecution,  11-13. 

ADVISOEY  OPINIONS. 

See  Courts,  3d. 

As  precedents,  see  Stare  Decisis,  11. 

AFFIDAVIT  OF  DEFENSE. 
See  Pleading,  23. 

AFFIDAVITS. 
Bill  of  exceptions  to  include  affidavits,  see 

Appeal  and  Error,  63. 
Verification  of  indictment,  see  Indictments 

and  Informations,  3,  7. 
Verification    of   juvenile   court   complaint, 

see  Infants,  28. 
Of  jurors  to   show  misconduct,  see  Jury, 

41,  42. 
Verification  of  removal  petition,  see  Jus- 
tices of  the  Peace,  3. 
In  notice  of  claim  of  lien,  see  Mechanics* 

Liens,  28. 
Sufficiency   on   motion  for  new  trial,   see 

New  Trial,  20,  23,  31-34. 
Verification  of  pleadings,  see  Pleading,  107. 
On  motion  for  change  of  venue,  see  Venue, 

6. 
Of  jurors  to  impeach  verdict,  see  Verdicts, 

13. 

1.  Under  Ore.  L.  O.  L.,  §  829,  requiring 
a  witness  in  all  affidavits  to  speak  in  the 
first  person,  an  affidavit  by  V.  charging 
that  he  has  missed  cattle,  that  S.  has 
now  beef  in  his  or  his  family's  possession, 
and  that  "I,  V.,  believe  his  animals"  have 
been  butchered  and  the  beef,  etc.,  may  be 
found  on  the  premises  of  S.  does  not  state 
any  offense  known  to  the  law.  Smith  v. 
McDuffee  (Ore.)  1916D-947. 

AGE. 

Competency  of  witness  to  testify  to,  see 
Witnesses,  2. 


AGENCY. 

1.  Creation  and  Existence  of  Relation,  22. 

a.  Evidence,  22. 

b.  Termination  of  Relation,  22. 

2.  Rights  and  Liabilities  Inter  Se,  22. 

a.  Principal  to  Agent,  22. 

(1)  Damages  for  Breach  of  Con- 

tract, 22. 

(2)  Reimbursement  of  Agent,  22. 

(3)  Compensation  of  Agent,  22. 

b.  Del   Credere  Agents,  22. 

c.  Purchase  of  Property  for  Principal 

by  Agent,  22. 

3.  Rights,    Duties,    and    Liabilities    as    to 

Third  Persons,  23. 

a.  Authority  of  Agent  in  General,  23. 

(1)  Duty  to  Ascertain  Extent  of 

Agent's  Authority,  23. 

(2)  Implied  Authority,  23. 

(3)  Authority  to  Employ  Others,  23, 

(4)  Estoppel  to  Deny  Authority,  23. 

b.  Evidence  of  Authority,  23. 

C.  Liability  of  Principal  for  Unau- 
thorized or  "W'rongful  Acts  of 
Agent,   24. 

d.  Ratification  of  Act  of  Agent,  24. 

(1)  By  Accepting  Benefits,  24.  • 

(2)  Evidence,  24. 

(3)  Question  for  Jury,  24. 

e.  Undisclosed  Agency,  24. 

i.  Notice  to  Agent  as  Notice  to  Prin- 
cipal, 25. 

g.  Limitations  Known  to  Third  Party 
25. 

See  Attorneys. 

Proof  of  agency,  see  Admissions  and  Dec- 
larations, 5-7. 

Authority  of  auctioneer,  see  Auctions  and 
Auctioneers,  2. 

Liability  for  chauffeur's  acts,  see  Automo- 
biles, 23,  32-35. 

Only  principal  liable  for   concealment  of 

assets,  see  Bankruptcy,  32. 
Bank  not  agent  of  depositor,  see  Banks  and 

Banking,  26. 

Authority  to  find  buyer  not  authority  to 
sell,  see  Brokers,  2. 

Depositary  agent  of  both  parties,  see 
Escrow,  5. 

Authority  to  answer  letter,  presumed,  see 
Evidence,  145%. 

Agent's  right  to  insure  his  own  property, 
see  Fire  Insurance,  2,  3. 

Authority  to  sell  land,  see  Frauds,  Statute 
of,  12. 

Insurance  agents,  see  Insurance,  1-8. 

Withdrawal  of  joint  principal  after  cre- 
ation of  agency,  see  Joint  Adventures, 
5. 

Sufficiency  of  designation  of  agency,  see 
Landlord  and  Tenant,  47. 

Tenant  as  agent  of  owner  in  making  im- 
provements, see  Mechanics'  Liens,  3-8. 


22  DIGEST. 

1916C— 1918B. 
1.    CEEATTON    AND    EXISTENCE    OF  .  Note. 

EELiATION.  Illegal  contracts  as  to  compensation  by 

a.    Evidence.  agents  of  vendor  or  vendee.     1917A-511. 


1.  Sufficiency.  Agency  and  conseqnent 
liability  for  negligence  may  be  found  from, 
the  evidence  as  a  whole  and  facts  and  cir- 
cumstances, notwithstanding  the  categor- 
ical answers  to  the  contrary  of  the  alleged 
principal  and  agent,  the  only  witnesses  on 
the  issue.  Bosenberg  v.  Dahl  (Ky.)  1916E- 
1110. 

2.  Ownership  of  Bank  Deposit.  In  gar- 
nishment proceedings  against  a  bank,  the 
evidence  is  held  to  warrant  a  finding  that 
the  judgment  debtor  held  the  funds  in 
the  bank  as  agent  of  the  intervener  in  the 
proceedings.  Home  Land,  etc.  Co.  r. 
Eouth  (Ark.)   1917C-1143. 

b.     Termination  of  Belation. 

3.  Death  of  Principal.  Where,  though  a 
lease  was  signed  by  the  lessor  before  her 
death,  it  was  not  delivered  to  nor  signed 
by  the  lessee  during  the  lessor's  lifetime, 
being  in  the  hands  of  her  agent  at  her 
death  for  that  purpose,  it  cannot  be  deliv- 
ered by  the  agent  after  her  death,  since 
her  death  revoked  the  agency.  Streit  v. 
Wilkerson  (Ala.)  1917E-378. 

(Annotated.) 

Note. 
Bevocation  of  agency  by  death  of  prin- 
cipal.    1917Er-380. 

2.    EIGHTS  AND  LIABILITIES  INTEE 

SE. 

a.     Principal  to  Agent. 
(1)     Damages  for  Breach  of  Contract. 

4.  Becovery  for  Loss  of  Profits.  In  an 
action  for  the  breach  of  a  contract,  in 
which  plaintiff  acted  as  sales  agent  for 
defendant's  automobiles  on  commission,  but 
which  gave  no  exclusive  agency  for  a  defi- 
nite period,  the  profits  derived  by  the 
plaintiff  from  such  sales  were  clearly  con- 
templated by  the  parties;  but  where  the 
only  proof  of  damage  was  that  defendant 
discharged  plaintiff  before  he  could  con- 
summate Bales  to  his  prospective  custom- 
ers, and  there  was  nothing  to  show  that 
sales  were  made  or  could  have  been  made 
to  more  than  four  customers,  a  verdict  for 
plaintiff  for  commissions  on  the  amount  of 
sales  to  all  the  prospective  customers  is 
properly  set  aside  by  the  trial  court.  Mc- 
Ginnis  v.  Studebaker  Corporation  (Ore.) 
1917B-1190.  (Annotated.) 

5.  Alleged  loss  of  opportunity  to  sell  to 
prospective  purchasers  listed  by  plaintiff  is 
held  to  be  the  pith  of  his  complaint  for 
termination  of  his  employment  to  sell  de- 
fendant's automobiles  on  commission.  Mc- 
Ginnis  v.  Studebaker  Corporation  (Ore.) 
1917B-1190.  '  (Annotated.) 


(2)     Beimbursement  of  Agent. 

6.  That  the  traveling  expenses  of  a 
salesman  are  incidental  to  the  work  for 
which  he  is  employed  does  not  bring  the 
incurring  of  such  expenses  on  the  prin- 
cipal's credit  within  the  scope  of  the  sales- 
man's apparent  authority.  Oxweld  Acety- 
lene Co.  V.  Hughes  (Md.)  I9I7C^837. 

(Annotated.) 

7.  Evidence  in  an  action  against  a  com- 
pany, engaged  in  manufacturing  and  sell- 
ing lighting  equipments,  for  the  amount 
of  bills  contracted  by  its  salesman,  is  held 
to  be  insufficient  to  show  that  the  com- 
pany had  recognized  the  salesman's  right 
to  impose  on  it  any  liability  for  his  ex- 
penses. Oxweld  Acetylene  Co.  v.  Hughes 
(Md.)    1917C-837.  (Annotated.) 

Note. 
Power   of   agent   to   bind    principal   for 
traveling  expenses.     19I7C-840. 

(3)     Compensation  of  Agent. 

8.  Sale  of  Land  by  Person  not  Broker — 
Measure  of  Compensation.  Where  one  not 
engaged  in  the  real  estate  business  is  em- 
ployed to  procure  a  purchaser  of  real  estate 
without  any  agreement  as  to  the  commis- 
sion to  be  paid,  a  recovery  for  procuring 
a  purchaser  must  be  limited  to  the  fair 
value  of  the  services,  but  in  determining 
that  fact  the  amount  customarily  charged 
by  real  estate  agents  in  the  neighborhood 
can  be  considered,  but  it  cannot  be  made  a 
governing  factor.  Morehouse  v.  Shepard 
(Mich.)  1916E-305.  (Annotated.) 

Note. 

Amount  of  compensation  of  person  other 
than  reaJ  estate  broker  for  effecting  sale 
of  land  where  contract  fails  to  fix  com- 
pensation.    I916E-306. 

b.     Del  Credere  Agents. 

9.  Liability  to  Principal.  A  del  credere 
agent,  though  he  sells  to  an  undisclosed 
buyer,  is  Liable  to  his  principal  only  as  a 
guarantor  for  the  buyer  and  is  not  subject 
to  an  action  by  the  principal  to  litigate 
disputes  arising  on  the  contract  of  sale. 
Gabriel    v.   Churchill    (Eng.)    1916C-1087. 

(Annotated.) 
Note. 
Nature    and    extent    of  liability   of  del 
credere  agent  to  principal.     1916CJ-1091. 

c.     Purchase  of  Property  for  Principal  by 
Agent. 

10.  Proceeds  of  Property  Charged  With 
Trust.     Where  a  party  furnished  the  pur- 


AGENCY. 


23 


chase  price  of  land  to  Ms  agent,  title  being 
taken  in  such  agent's  name  for  convenience 
under  agreement  that  when  the  land  was 
sold  the  proceeds  should  belong  to  the 
principal,  such  proceeds,  though  deposited 
by  the  agent  in  bank  in  his  own  name, 
belong  to  the  principal.  Home  Land,  etc, 
Co.  V.  Eouth  (Ark.)  1917C-1143. 

3.     RIGHTS,     DUTIES,     AND     LIABIL- 
ITIES AS  TO  THIRD  PERSONS. 

a.     Authority  of  Agent  in  General. 

(1)     Duty  to  Ascertain  Extent  of  Agent's 
Authority. 

11.  Parties  dealing  with  an  agent  assum- 
ing to  have  authority  to  sell  land  are  put 
upon  inquiry  to  ascertain  the  extent  of 
his  authority.  Springer  v.  City  Bank,  etc. 
Co.  (€olo.)  1917A-520. 

(2)     Implied  Authority. 

12.  Employing  Physician  for  Injured 
Servant.  As  a  general  rule,  the  superin- 
tendent of  a  mercantile  corporation  has  no 
implied  authority  to  engage  a  physician 
to  attend  an  employee  of  the  corporation 
injured  while  at  work.  Ward  v.  J.  Sam- 
uels &  Bro.  (R.  L)  I918A-783. 

(Annotated.) 

13.  Proof  of  Implied  Authority.    In  a 

suit  to  determine  an  adverse  interest  in 
realty,  evidence  held  sufficient  to  show  that 
the  owner  of  land  knowingly  permitted  in- 
tending purchasers  to  believe  that  the 
printed  plat  thereof  shown  to  them  by  his 
agent  had  been  duly  recorded,  and  also 
that  he  held  out  such  agent  as  his  general 
agent  in  negotiating  sales.  Nicholas  v. 
Title,  etc.  Co.  (Ore.)  1917A-1049. 

14.  Holding  Out.  The  authority  of  an 
agent  to  bind  his  principal  in  contracts 
with  a  third  party  is  measured,  not  only 
by  the  agent's  express  delegation  of 
power,  but  also  that  which  he  is  held  out 
by  the  principal  as  possessing,  provided 
the  third  party  had  reason  to  believe  and 
did  believe  the  agent  was  acting  within 
his  authority,  and  such  party  would  sus- 
tain a  loss  if  the  contract  were  not  bind- 
ing upon  the  principal.  Nicholas  v.  Title, 
etc.  Co.   (Ore.)    1917A-1149. 

15.  Apparent  Authority  of  Agent.  The 
liability  of  a  principal  for  debts  incurred 
by  his  agent  is  determined,  not  merely 
by  what  was  the  apparent  authority  of 
the  agent,  but  by  what  authority  the  per- 
son extending  the  credit  was  justified  in 
the  exercise  of  reasonable  care  and  pru- 
dence, in  believing  that  the  principal  had 
conferred  on  the  agent.  Oxweld  Acety- 
lene Co.  V.  Hughes  (Md.)  1917C-837. 

16.  Implied  Power  of  Agent — Binding 
Principal  for  Traveling  Expenses.  In  an 
action  against  a  company,  engaged  in  the 
manufacture  and  sale  of  acetylene  light- 


ing equipments,  for  meals,  lodging,  and 
automobile  service  furnished  to  the  com- 
pany's salesman,  plaintiff's  testimony  that 
the  salesman  had  assured  him  that  the 
company  would  pay  such  bills,  and  that 
another  salesman  of  the  company  had  told 
him  that  the  company  paid  the  traveling 
expenses  of  its  agents,  is  inadmissible;  it 
being  essential  that  the  liability  of  a  prin- 
cipal for  a  debt  contracted  by  a  special 
agent  beyond  the  scope  of  his  authority 
be  sustained,  if  at  all,  on  the  basis  of  the 
principal's  conduct,  and  not  merely  on  the 
agent's  misrepresentations.  Oxweld  Acet- 
ylene Co.  V.  Hughes  (Md.)   1917C-837. 

(Annotated.) 

Note. 

Implied  authority  of  officers,  agents,  or 
servants  to  contract  for  medical,  surgical, 
or  other  attendance  or  supplies  for  sick 
or  injured  persons.     1918A-791. 

(3)     Authority  to   Employ  Others. 

17.  Amusement  Contracts  —  Power  of 
Theatrical  Manager  —  Making  Written 
Contract.  The  act  of  reducing  a  contract 
of  employment  to  writing  is  within  the 
apparent  authority  of  the  general  man- 
ager of  a  theatrical  enterprise.  Ferguson 
V.  Majestic  Amusement  Co.  (N.  Car.) 
1917C-389.  (Annotated.) 

(4)     Estoppel  to  Deny  Authority. 

18.  Estoppel  of  Principal.  Where  a 
person  by  words  or  conduct  represents  or 
permits  it  to  be  represented  that  another 
person  is  his  agent,  he  will  be  estopped 
to  deny  the  agency  as  against  third  per- 
sons who  have  dealt,  on  the  faith  of  such 
representation,  with  the  person  held  out 
as  an  agent.  Ferguson  v.  Majestic 
Amusement  Co.   (N.  Car.)   19170-389. 

b.     Evidence  of  Authority. 

19.  Burden  of  Proof.  A  petition  in 
the  usual  form  by  the  indorsee  of 
a  negotiable  note  bearing  the  purported 
indorsement  of  the  payee,  "By  J.  D.  M., 
Agt.,"  was  answered  by  a  verified  de- 
nial that  such  note  was  not  sold  and 
delivered  by  the  payee  company  or  any 
one  for  it  with  authority  so  to  do.  Held, 
that  the  burden  of  proof  was  upon  the 
plaintiff  to  establish  authority  in  the 
agent  to  make  the  indorsement.  First 
National  Bank  v.  Robinson  (Kan.)  1916D- 
286. 

20.  Declarations  of  Agent — Scope  of 
Agency.  Where  by  the  rules  of  plaintiff 
railroad  company,  its  roadmaster's  duties 
were  limited  to  ascertaining  the  boundary 
lines  of  the  company's  property  and  re- 
porting encroachments  thereon,  evidence 
that  he  had  been  asked  by  defendant's 
agent  to  fill  a  certain  hole,  and  that  he 
had  replied   that  it  was   not   on  the   rail- 


24 


DIGEST. 

1916C— 1918B. 


road's  right  of  way,  but  on  her  own  prop- 
erty, is  inadmissible  on  behalf  of  defendant 
in  a  suit  by  the  railroad  to  establish  title 
to  such  part  of  the  right  of  way,  a  prin- 
cipal not  being  bound  by  the  declaration 
of  the  agent  without  authority  in  the 
premises.  Atlantic  Coast  Line  B.  Co.  t. 
Dawes  (S.  Car.)   1917A-1272. 

21.  Purchase  by  Agent  from  Principal. 
The  mere,  fact  that  a  company  selling  auto- 
mobiles buys  them  of  the  producer  does  not 
prove  that  he  is  not  the  producer's  sales 
agent.  Studebaker  Corp.  v.  Hanson  (Wyo.) 
1917E-557.  (Annotated.) 

22.  Automobile  Dealer  m  Agent  of 
Manufacturer.  Evidence  in  an  action  in- 
volving the  question  of  liability  for  breach 
of  warranty  in  the  sale  of  an  automobile 
to  defendant  is  held  to  be  sufficient  to  sus- 
tain a  finding  that  the  company  which 
made  the  sale,  instead  of  being  a  dealer 
in  automobiles,  and,  as  such,  making  the 
sale,  was  a  sales  agent  of  the  producer,  of 
which  plaintiff  was  the  successor,  and,  as 
such,  made  the  sale.  Studebaker  Corpo- 
ration V.  Hanson  (Wyo.)  1917E-o57. 

(Annotated.) 

23.  Proof  of  Agency — ^Declarations  of 
Alleged  Agent.  It  is  not  an  attempt  to 
prove  agency  by  declarations  of  the 
agents,  where  sufficient  independent  cir- 
cumstantial evidence  is  introduced  for  that 
purpose,  and  their  declarations  introduced 
are  confined  to  admissions  of  a  defective 
condition  of  an  article.  Studebaker  Cor- 
poration V.  Hanson  (Wyo.)  1917E-557. 

24.  Admission  of  one's  declaration  of 
agency  was  harmless,  there  being  sufficient 
independent  proof  thereof,  and  no  attempt 
to  disprove  it.  Studebaker  Corporation  v. 
Hanson  (Wyo.)  1917E-557. 

Note. 

Nature  and  construction  of  automobile 
sales  agency  contracts.     1917E-568. 

c.     Liability  of  Principal  for  Unauthorized 
or  Wrongful  Acts  of  Agent. 

25.  Contract  of  Agent — ^Eesponsibility  of 
Principal.  Where  money  is  left  by  a  prin- 
cipal with  an  agent  to  be  loaned,  and  the 
agent  takes  usury,  but  without  the  knowl- 
edge of  the  principal  or  her  receiving  any 
fruits  of  the  transaction,  the  principal  is 
not  chargeable  with  the  effects  of  the 
agent's  misconduct.  Brown  v.  Johnson 
(Utah)    1916C-321.  (Annotated.) 

26.  The  rule  that  when  a  creditor  accepts 
the  obligation  of  an  agent  he  cannot  there- 
after pursue  the  principal  rests  on  the 
assumption  that  credit  has  been  given  to 
the  agent,  and  hence  does  not  apply  where 
no  such  credit  was  given  and  the  principal 
used  the  agent's  name  to  represent  its  own 
contract  and  evidence  its  own  liability. 
Dexter  Horton  Nat.  Bank  v.  Seattle  Home- 
eeekers'  Co.  (Wash.)  1917A-6S5. 

(Annotated.) 


Note. 
Act  of  agent  in  entering  into  usurious 
contract  as  binding  principal.     1916C-327. 

d.     Eatification  of  Act  of  Agent. 
(1)     By  Accepting  Benefits. 

27.  A  mercantile  corporation,  although 
its  superintendent  is  without  actual  au- 
thority to  engage  a  physician  to  attend  an 
employee  injured  while  at  work,  may 
have  80  represented  such  agent's  authority, 
by  payment  for  previous  like  services,  so 
as  to  have  estopped  itself  to  disavow  the 
act.  Ward  v.  J.  Samuels  &  Bro.  (E.  I.) 
1918A-783. 

(2)     Evidence. 

28.  In  an  action  by  a  physician  against 
a  corporation  for  his  attendance  on  an  in- 
jured employee,  the  evidence  is  held  to  be 
sufficient  to  justify  a  finding  that  the  act 
of  the  superintendent  in  engaging  such 
physician  had  been  ratified.  Ward  v.  J. 
Samuels  &  Bro.  (R.  I.)  1918A-783. 

29.  In  an  action  by  a  physician  against 
a  corporation  for  his  services  in  attending 
an  injured  employee,  the  evidence  is  held 
to  be  sufficient  to  justify  a  finding  that 
such  employer  was  liable  by  estoppel  to 
deny  its  superintendent's  authority  to  hire. 
Ward  v.  J.  Samuels  &  Bro.  (R.  I.)  1918 A- 
783. 

(3)     Question  for  Jury. 

30.  Ratification  or  Estoppel.  Whether 
the  unauthorized  act  of  the  superintendent 
of  a  mercantile  corporation  in  engaging  a 
physician  to  attend  an  employee  injured 
while  at  work  has  been  ratified  by  the  em- 
ployer, is  a  question  of  fact.  Ward  v.  J. 
Samuels  &  Bro.  (R.  L)  1918A-783. 

e.    Undisclosed  Agency. 

31.  Election.  Where  a  person,  without 
knowing  it,  deals  with  one  who  is  in  fact 
acting  as  agent  for  another,  he  may  elect, 
upon  a  disclosure  of  the  principal,  to  hold 
either  him  or  the  agent  on  the  contract, 
but  cannot  hold  both.  Horton  v.  Southern 
R.  Co.  (N.  Car.)  1918A-824. 

32.  An  election,  by  one  dealing  with  the 
agent  of  an  undisclosed  principal,  to  hold 
either  the  principal  or  agent,  may  appear, 
by  any  words  or  acts  on  his  part  tending  to 
show  a  definite  purpose  or  an  unequivocal 
and  final  determination,  to  depend  solely 
upon  the  liability  of  one  and  abandon  his 
right  to  proceed  against  the  other.  Hor- 
ton V.  Southern  E.  Co.  (N.  Car.)  1918A- 
824. 

33.  Undisclosed  Principal  —  Right  of 
Agent  to  Sue  in  Own  Name.  Plain- 
tiff, who  contracted  for  the  benefit  of 
a  telephone  company,  agreed  with  defend- 
ant to  purchase  and  furnish  the  necessary 
materials  for  the  construction  of  sixteen 
sections    of    telephone.    Plaintiff    ordered 


AGREEMENTS— AGRICULTURE. 


25 


the  materials,  end  paid  for  them  himself, 

not  disclosing  to  defendant  the  fact  of  his 
agency.  Held,  that  plaintiff,  who  had  an 
interest  in  the  contract  besides  his  pay- 
ment for  the  materials,  it  appearing  that 
he  was  to  receive  compensation  for  erect- 
ing the  line,  might  maintain  an  action  on 
the  contract  for  defendant's  breach  in  his 
own  name,  his  principal  being  undisclosed, 
notwithstanding  the  general  rule  that  only 
a  principal  may  sue  upon  a  contract. 
Camp  V.  Barber  (Vt.)  1917A-451. 

(Annotated.) 

34.  Rights  in  Warranty  to  Agent.  A 
warranty  on  which  sale  is  made  to  one  in 
fact  acting  as  agent  inures  to  the  benefit 
of  the  undisclosed  principal.  Pacific 
Power,  etc  Co.  v.  White  (Wash.)  1918B- 
125.  (Annotated.) 

Note. 

Warranty  to  agent  as  inuring  to  benefit 
of  undisclosed  principal.     1918B-130. 

Right  of  agent  of  undisclosed  principal 
to  sue  on  contract  made  in  his  own  name. 
1917A-454. 

f .    Notice  to  Agent  as  Notice  to  Principal. 

35.  Agent  Acting  in  Hostility  to  Prin- 
cipal. The  knowledge  of  an  agent  is  im- 
puted to  his  principal,  in  the  absence  of 
actual  knowledge  by  the  principal  upon  the 
presumption  that  the  agent  will  divulge  his 
knowledge  to  his  principal;  but,  when  the 
agent  is  engaged  in  a  transaction  where  his 
interests  are  hostile  to  those  of  his  princi- 
pal, or  is  trying  to  defraud  the  principal,  it 
will  not  be  presumed  that  he  has  communi- 
cated his  knowledge  to  his  principal,  and 
hence  the  principal  is  not  charged  there- 
with.    Taulbee  v.  Hargis  (Ky.)  1918A-762. 

36.  Where  the  superintendent  of  a  mer- 
cantile corporation  knew  that  plaintiff 
physician  was  treating  an  injured  em- 
ployee and  intending  to  continue  such 
treatment  as  long  as  required,  and  would 
regard  the  treatment  as  rendered  on  ac- 
count of  the  employer,  and  to  be  charged 
to  it,  such  notice  to  the  superintendent  be- 
ing imputable  to  the  employer,  to  escape 
liability  for  such  medical  services,  it  is 
necessary  for  the  employer  to  notify  the 
plaintiff  it  will  not  pay  for  complete  treat- 
ment, and  that  its  superintendent's  author- 
ity has  been  limited  to  securing  first  aid 
to  the  injured.  Ward  v.  J.  Samuels  &  Bro. 
(R.  I.)   1918A-783. 

37.  In  an  action  by  a  physician  against 
a  corporation  for  attendance  on  an  injured 
employee,  where  the  superintendent  of  the 
defendant  is  empowered  to  attend  em- 
ployees and  to  engage  physicians  for  their 
treatment  to  a  limited  extent,  at  least, 
notice  to  such  superintendent  of  the  con- 
duct and  claims  of  a  physician  employed 
by  him  is  notice  to  the  defendant.  Ward 
v.  J.  Samuels  <fe  Bro.  (R.  I.)  1918A-7S3. 

38.  Knowledge  of  Agent  Imputed  to 
PrincipaL     Where  a  widow  had  dower  as- 


signed to  her  in  certain  land  of  her  de- 
ceased husband,  if  the  person  who  was  the 
administrator  upon  the  estate,  was  also  the 
agent  of  the  widow,  and,  while  acting 
within  the  scope  of  his  authority  as  such, 
he  took  advantage  of  his  position  as  ad- 
ministrator to  obtain  fraudulently  from 
the  court  of  ordinary  an  order  for  the  sale 
of  land,  including  the  land  in  which  a 
dower  had  been  granted,  end  as  to  which 
there  was  a  reversionary  interest  in  the 
heirs,  without  any  necessity  so  to  do  in 
order  to  pay  debts,  but  for  the  purpose 
of  getting  rid  of  the  interest  of  the  other 
heirs  and  vesting  the  entire  title  in  the 
dowress,  and  carried  this  purpose  into 
effect,  the  fact  that  the  same  person  who 
was  the  agent  of  the  dowress  was  also  the 
administrator  of  the  estate  would  not  pre- 
vent application  of  the  ordinary  rule  that 
a  principal  is  bound  by  the  knowledge  of 
his  agent  ^hile  acting  within  the  scope  of 
his  authority;  nor  would  the  fact  that  as 
administrator  he  gave  a  bond  for  the 
proper  performance  of  his  official  duties 
have  that  result. 

(a)  The  charges  complained  of  in  the 
eighteenth,  nineteenth,  and  twentieth 
grounds  of  the  motion  for  a  new  trial  were 
not  absolutely  accurate  in  expression. 
Sutton  V.  Ford  (Ga.)  19iSA-106. 

39.  Presumption.  In  an  action  for 
wrongful  discharge  of  a  company  of  actors 
without  two  weeks'  notice  provided  for  in 
the  written  contract  of  employment  made 
by  defendant's  general  manager,  defendant 
is  presumed  by  law  to  have  knowledge  of 
the  contract  under  which  the  plaintiffs 
were  playing  at  his  theater.  Ferguson  v. 
Majestic  Amusement  Co.  (N.  Car.)  1917C- 
389. 

40.  Agent  Acting  Contrary  to  Instruc- 
tions. Where  an  employee  was  acting 
solely  in  his  own  interest  and  contrary  to 
the  interests  of  plaintiff,  for  whom  he  was 
agent,  as  well  as  defendant,  in  whose  ser- 
vice he  was,  defendant  is  not  charged  with 
knowledge  of  the  employee's  wrongful  acts, 
Carlisle  v.  Norris  (N.  Y.)  1917A-429. 

g.     Limitations    Known    to    Third    Party. 

41.  Act  in  Excess  of  Authority.  One 
who  deals  with  an  agent  assuming 
to  act  for  his  principal,  and  who  knows 
the  limitations  of  the  agency,  cannot  bind 
the  principal  by  any  act  in  excess  of  such 
authority.  Salene  v.  Queen  City  Fire  Ins. 
Co.  (Ore.)   1916D-1276. 

AGREEMENTS. 

See  Contracts. 

AGRICULTURE. 

1.  In  General,  26. 

2.  Farm  Loan  Act,  26. 

3.  Pure  Seed  Law,  27, 

Impracticability    of   labeling,  judicial   no- 
tice of,  see  Evidence,  19. 


26 


DIGEST. 


1916C- 


1.    IN  GENERAL. 


1.  Bnrns  Ind.  Ann.  St.  1908,  §§  5524, 
5525,  requiring  railroads  to  remove  noxious 
weeds  on  lands  occupied  by  them,  and  pro- 
viding'that,  on  the  refusal  of  any  railroad 
so  to  do,  it  shall  be  liable  to  a  penalty  of 
$25,  prosecuted  for  in  action  of  debt  by 
any  person  feeling  himself  aggrieved,  im- 
poses a  penalty  for  a  violation  of  a  statu- 
tory duty,  and  a  company  is  not  deprived 
of  its  property  without  due  process  of  law 
and  without  compensation,  in  violation  of 
Const,  art.  1,  §  21,  and  Const.  U.  S.  Amend- 
14,  when  the  penalty  is  recovered  by  a  pri- 
vate individual  who  has  suffered  no  dam- 
ages. Chicago,  etc.  B.  Co.  v.  Anderson 
(Ind.)  1917A-182.  (Annotated.) 

2.  The  proposition  that,  though  all  the 
orange  groves  in  the  state  may,  in  the 
meanwhile,  be  destroyed  by  citrus  canker, 
defendant  should  be  allowed  t»  maintain 
that  disease  in  his  grove,  upon  the  chance 
that  he  may  discover,  and  until  he  does 
discover,  a  remedy  for  it  which  may  be 
less  drastic  than  the  burning  of  the  trees, 
is  untenable.  The  owners  of  the  other 
groves  are  entitled  to  protection  now  be- 
fore the  destruction  emanating  from  de- 
fendant's place  overtakes  their  groves. 
Louisiana  State  Board  v.  Tanzmann  (La.) 
1917E-217.  (Annotated.) 

3.  Destruction  of  Diseased  Fruit  Trees. 
The  destruction  by  legislative  authority  of 
orange  trees  affected  by  a  disease  for 
which  no  cure  has  been  discovered  and 
which  is  highly  contagious  and  infectious 
is  not  a  taking  of  private  property  for  a 
public  purpose  without  previous  adequate 
compensation,  nor  a  taking  of  such  prop- 
erty without  due  process  of  law,  but  is  a 
competent  exercise  of  the  police  power  of 
the  state.  Louisiana  State  Board  v. 
Tanzmann  (La.)  1917E-217. 

(Annotated.) 

4.  Noxious  Weeds.  A  complaint  for  the 
statutory  penalty  for  the  failure  of  a  rail- 
road to  cut  noxious  weeds  on  its  property, 
as  required  by  Burns  Ind.  Ann.  St.  1908, 
§§  5524,  5525,  need  not  aver  that  any 
actual  damages  have  been  sustained  by 
plaintiff.  Chicago,  etc.  B.  Co.  v.  Anderson 
(Ind.)    1917A-182.  (Annotated.) 

Notes. 

Duty  of  owner  to  destroy  noxious  weeds 
on  his  land,     1917A-183. 

Validity  of  statute  providing  for  de- 
struction of  diseased  fruit  trees,  fruit  or 
vegetables.     1917E-220. 

2.     FARM  LOAN  ACT. 

5.  Attack  on  Statute.  A  citizen  and 
taxpayer  suing  to  enjoin  the  state  treas- 
urer from  issuing  bonds  under  the  Mont. 
Farm  Loan  Act  (Laws  1915,  c.  28)  may 
not  complain  of  references  in  the  bonds  to 
a  guaranty  fund;  since  such  references  can 


-1918B. 

have  no  effect  prejudicial  to  him,  or  of  the 
invalid  exemption  of  mortgages  thereunder 
from  the  recording  fee,  when  he  cannot  be 
affected  thereby.  Hill  v.  Bae  (Mont.) 
1917E-210. 

6.  Validity.  Mont.  Farm  Loan  Act  (Laws 
1915,  c.  28),  creating  a  department  of  farm 
loans  to  formulate  and  receive  application 
for  loans  on  farm  property,  to  require  and 
pass  upon  proof  of  title,  to  formulate  all 
mortgages  securing  such  loans,  to  issue  and 
offer  for  sale  the  bonds  intended  as  evi- 
dence of  such  loans,  and  to  collect  all 
loans  and  pay  the  bonds  as  they  mature, 
prescribing  the  character  of  farm  property 
and  the  form  of  the  bond,  and  appropri- 
ating a  sum  for  administrative  purposes 
and  for  a  guaranty  of  the  bonds,  though 
excluding  farmers  having  only  chattel 
security  or  no  security  from  its  provisions, 
is  not  unconstitutional  as  a  denial  of  the 
equal  protection  of  the  laws.  Hill  v.  Rae 
(Mont.)   1917E-210.  (Annotated.) 

7.  Mont.  Const,  art.  12,  §  12,  forbidding 
appropriations  for  a  longer  term  than  two 
years,  operates  as  an  automatic  limit,  so 
that  an  appropriation  under  the  Mont. 
Farm  Loan  Act  (Laws  1915,  c.  28),  if  other- 
wise valid,  and  though  not  limited  as  to 
time,  will  expire  at  the  end  of  two  years, 
and  is  not  void  ab  initio.  Hill  v.  Rae 
(Mont.)   1917E-210.  (Annotated.) 

8.  Mont.  Farm  Loan  Act  (Laws  1915, 
c.  28),  creating  a  deparment  of  farm  loans, 
and  incidentally  making  an  appropriation 
for  administrative  expenses  and  as  a  guar- 
anty of  the  bonds  evidencing  the  loans, 
does  not  violate  Const,  art.  5,  §  33,  pro- 
viding that  appropriations  other  than  for 
the  ordinary  expenses  of  the  legislative 
and  other  departments,  etc.,  shall  be  by 
separate  bills  each  embracing  but  one  sub- 
ject, since,  while  it  applies  when  the  ap- 
propriation constitutes  the  entire  purpose, 
it  does  not  apply  if  the  appropriation  is 
incidental  to  a  larger,  though  single,  sub- 
ject of  legislation.  Hill  t.  Rae  (Mont.) 
1917E-210.  (Annotated.) 

9.  Mont.  Farm  Loan  Act  (Laws  1915, 
c.  28),  which  appropriated  the  sum  of 
$25,000,  $5,000  of  which  was  to  start  the 
administration  of  the  department  of  farm 
loans  created  by  the  act,  and  the  remainder 
of  which  was  to  serve  as  a  guaranty  fund 
to  assure  lenders  on  mortgage  security  that 
the  interest  on  the  bonds  evidencing  the 
loans  would  be  promptly  met,  whether  the 
mortgagors  had  made  their  payment  or  not, 
as  to  such  guaranty,  is  an  appropriation 
and  a  credit  assurance,  which,  though  the 
purposes  of  the  Farm  Loan  Act  falls  fairly 
within  the  term  "industrial,"  violated 
Mont.  Const,  art.  5,  §  35,  forbidding  appro- 
priations for  industrial  purposes  to  any 
person  not  under  the  absolute  control  of  the 
state,  and  art.  13,  §  1,  declaring  that  the 
state  shall  not  give  or  loan  its  credit,  and 
the  fact  that  the  guaranty  fund  was  to  be 


AIDER  AND  ABETTOR^ALIENS. 


27 


recouped  as  used  did  not  save  it,  because, 
whether  used  or  not,  it  stands  as  a  guar- 
anty for  the  benefit  of  lenders  under  the 
act.    Hill  V.  Rae  (Mont.)  1917E-210. 

(Annotated.) 

10.  Loan  of  Public  Funds.  A  citizen 
and  taxpayer  of  a  county  may  sue  to  en- 
join the  state  treasurer  from  issuing,  nego- 
tiating, or  selling  bonds  pursuant  to  Laws 
Mont.  1915,  c.  28,  commonly  called  the 
Mont.  Farm  Loan  Act,  on  the  ground  of 
unconstitutionality  and  expenditure  of 
state  money.  Hill  v.  Eae  (Mont.)  1917E- 
210. 

Note. 
Validity  of  Farm  Loan  Statute.     1917E- 
216. 

3.     PUEE  SEED  LAW. 

11.  Validity.  The  courts  cannot  judici- 
ally know  that  no  means  or  process  exi»t 
for  cleaning  seeds  so  as  to  exclude  weed 
seeds  from  being  present  therein  in  quan- 
tities not  more  than  one  in  10,000.  State 
▼.  McKay  (Tenn.)  1917E-158. 

(Annotated.) 

12.  The  Tenn.  Pure  Seed  Law  is  not  a 
violation  of  the  due  process  of  law  clause 
of  Const.  XT.  S.  Amend.  14,  because  section 
11  of  the  law  contains  a  proviso  that  no 
one  shall  be  convicted  under  the  act  if  he 
is  able  to  show  that  weed  seeds  named  in 
section  3  are  present  in  quantities  not  more 
than  one  in  10,000,  and  that  due  diligence 
has  been  used  to  find  and  remove  them; 
such  provision  not  showing  palpable  capri- 
ciousness  or  mere  arbitrary  usurpation  of 
power.  State  v.  McKay  (Tenn.)  1917E- 
158.  (Annotated.) 

13.  The  Tenn.  Pure  Seed  Law  is  not  in- 
valid as  arbitrary  and  unjust,  because  sec- 
tion 1  thereof  requires  labels  on  packages 
of  agricultural  seeds  to  set  forth  the  local- 
ity where  the  seed  was  grown.  State  v. 
McKay  (Tenn.)  1917E-158. 

(Annotated.) 

14.  The  Tenn.  Pure  Seed  Law  (Acts 
1909,  c.  395)  is  not  unconstitutional  class 
legislation  violating  the  equal  protection 
clause  of  the  Fourteenth  Amendment  be- 
cause of  exemption  from  its  operation,  by 
subsection  5  of  section  8  thereof  of  the 
farmer  grower,  in  selling  seeds,  since  such 
exemption  is  closely  limited  to  seeds  grown 
by  the  seller  and  sold  and  delivered  by 
him  on  his  own  premises  to  a  purchaser 
for  seeding  by  the  purchaser  himself,  and 
the  differentiation  of  such  sale  from  open 
market  sales  cannot  be  considered  arbi- 
trary, in  view  of  the  greater  opportunity 
for  deception  in  selling  in  open  market. 
State  T.  McKay  (Tenn.)  1917E-158. 

(Annotated.) 

15.  Tenn.  Pure  Seed  Law  is  not  invalid 
as  an  unwarrantable  burden  on  interstate 
commerce  in  violation  of  United  States 
Const.,  its  burden  on  such  commerce  by 
reason  of  the  exemption  in  section  8,  sub- 


section 5,  of  the  farmer  grower  being  in- 
considerable, remote,  incidental,  and  not 
designed.  State  v.  McKay  (Tenn.)  1917E- 
158.  (Annotated.) 

Note. 

Validity  of   statute  regulating  sale   of 
seed.    1917E-167. 


AIDER  AND  ABETTOR. 
Meaning,  see  Torts,  10. 

AIDING  AND  ABETTING. 

Of  concealment  of  assets,  no  offense,  see 
Bankruptcy,  32,  34. 

ALCOHOL. 

See  Intoxicating  Liquors. 

AT.TBL 

Sufl&ciency  of  proof,  see  Criminal  Law,  74. 

ALIENATION  OF  AFFECTIONS. 

Action  for  by  wife  alone,  see  Husband  and 
Wife,  14,  48-65. 

ALIEN  ENEMY. 
See  War,  7,  10-17. 

ALIENS. 

1.  Who  are  Aliens,  27. 

2.  Privileges  and  Disabilities,  28. 

a.  In  General,  28. 

b.  Inheritance  of  Land,  28. 

c.  Employment  on  Public  Work,  28. 

3.  Naturalization,  28. 

a.  Proceedings,   28. 

b.  Revocation,  29. 

4.  Expatriation  of  Citizen,  29.  ' 

5.  Exclusion  of  Aliens,  29. 

Right  to  sue,  see  Death  by  Wrongful  Act, 

15. 
Exclusion   from  hunting   rights,   see   Fish 

and  Game,  3-8. 
Importation  of  contract  labor,  see  Labor 

Laws,  2. 
Nonresident    alien    as    beneficiary    under 

Workmen's     Compensation     Act,     see 

Master  and  Servant,  265. 
Internment  of  alien  enemies,  see  War,   7. 

1.     WHO    ARE   ALIENS. 

1.  Presumption  of  Alienage.  The  facts 
that  a  man  was  an  alien,  that  at  the  ago 
of  twenty  he  married,  and  through  twelve 
succeeding  years  resided  in  Russia  before 
he  came  to  the  United  States  two  years 
before  his  death,  that  his  family  continued 
until  his  death  to  reside  in  Russia  and  re- 
ceive there  their  support  from  him,  and 
were  aliens,  created  a  presumption  that  he 


28 


DIGEST. 

1916C— 1918B. 


was  a  citizen  of  Eussia,  since  the  relation 
is  presumed  to  have  continued  until  a 
change  of  citizenship  is  proved.  Hamilton 
V.  Erie  E.  Co.  (N.  Y.)   1918A-928. 

2.  Declaration  of  Alienage.  A.  person 
born  in  Engldnd  of  alien  parents  cannot  on 
arriving  at  his  majority  make  a  declara- 
tion of  alienage,  where  a  state  of  war  ex- 
ists with  the  nation  of  his  father's  birth, 
and  he  has  during  his  minority  been  en- 
rolled in  the  British  army.  Eex  v.  Com- 
manding Officer  (Eng.)  1917E-480. 

(Annotated.) 

2.    PBrVTLEGES    AND    DISABILITIES, 
a.     In  General. 

3.  Classes  of  Aliens  Excluded.  Where  a 
Chinese  person,  who  lawfully  entered  the 
United  States  as  the  minor  son  of  a  mer- 
chant, thereafter  became  a  laborer,  such 
fact  will  not  deprive  him  of  his  right  to 
remain  in  the  country.  Lam  Fung  Yen  v. 
Frick  (Fed.)  1917C-232.  (Annotated.) 

4.  Discriminations  in  Inheritance  Tax.  A 
citizen  of  a  foreign  country,  residing  there- 
in, has,  in  the  absence  of  express  treaty 
right,  no  reason  to  complain  that  his  in- 
heritance is  taxed  more  than  that  of  a 
fellow  alien  who  resides  in  the  United 
States,  but  not  in  the  state  where  the  de- 
ceased resided  or  of  the  probate  of  the  will. 
Moody  V.  Hagen  (N.  Dak.)  1918A-933. 

b.    Inheritance  of  Land. 

5.  Statutes  which  change  the  common 
law  and  which  allow  aliens  to  take  by  will 
or  to  inherit  are  not  to  be  looked  upon 
in  the  Hght  of  a  recognition  or  extension 
of  any  previously  existing  right  belonging 
to  such  aliens,  but  rather  as  a  fresh  grant 
or  a  right  or  a  statute  of  grace  which  the 
state  chooses  to  confer.  Moody  v.  Hagen 
(N.  Dak.)  1918A-933. 

6.  "Bight  to  Take  by  Descent.  The  alien, 
in  the  absence  of  permissive  legislation, 
has  never  been  allowed,  as  against  the 
sovereign  state,  to  take  by  descent  or  even 
by  will.  Moody  v.  Hagen  (N.  Dak.) 
1918A-933. 

7.  Article  6  of  the  treaty  of  amity  and 
commerce  between  the  United  States  and 
the  kingdom  of  Norway  (7  Fed.  St.  Ann. 
828)  is  only  applicable  to  the  estates  of 
decedents  who  were  citizens  of  Norway 
leaving  property  in  the  United  States  and 
citizens  of  the  United  States,  leaving  prop- 
erty in  Norway,  and  those  inheriting  from 
them,  and  is  not  applicable  to  the  estates 
of  decedents  who  were  citizens  of  the 
United  States.  Moody  v.  Hagen  (N.  Dak.) 
1918A-933. 

c.     Employment  on  Public  Work. 

8.  The  freedom  to  contract  secured  by 
U.  S.  Const.  14th  Amend.  (9  Fed.  St.  Ann. 
428)  is  not  infringed  by  the  provisions  of 
N.    Y.    Consol.    Laws,    c.    31,    §  14,    that 


only  citizens  of  the  United  States  may  be 
employed  in  the  construction  of  public 
works  by  or  for  the  state  or  a  municipality, 
and  that  in  such  employment  citizens  of 
New  York  state  must  be  given  preference. 
Heim  v.  McCall  (U.  S.)  1917B-287. 

(Annotated.) 

9.  Statute  Prohibiting  Employment  on 
Public  Works.  Privileges  and  immunities 
of  the  citizens  of  the  several  states  are 
not  abridged,  contrary  to  U.  S.  Const, 
art.  4,  §  2  (9  Fed.  St.  Ann.  158),  by  the 
provisions  of  N.  Y.  Consol.  Laws,  c.  31, 
§  14,  that  only  citizens  of  the  United 
States  may  be  employed  in  the  construc- 
tion of  public  works  by  or  for  the  state  or 
a  municipality,  and  that  in  such  employ- 
ment citizens  of  New  York  state  must  be 
given  preference.  Heim  v.  MoCall  (U.  S.) 
1917B-287.  (Annotated.) 

10.  Validity.  The  discrimination  against 
aliens  lawfully  resident  in  the  state,  which 
is  produced  by  the  provisions  of  Arizona 
Act  of  December  14,  1914,  that  every  em- 
ployer of  more  than  five  workers  at  any 
one  time,  "regardless  of  kind  or  class 
of  work  or  sex  of  workers  shall  employ 
not  less  than  eighty  per  cent  qualified 
electors  or  native-born  citizens  of  the 
United  States  or  some  subdivision 
thereof,"  renders  the  statute  invalid  under 
U.  S.  Const.  14th  Amend.  (9  Fed.  St.  Ann. 
538)  as  denying  the  equal  protection  of 
the  laws,  and  such  statute  cannot  be  justi- 
fied as  an  exercise  of  the  power  of  the 
state  to  make  reasonable  classifications  in 
legislating  to  promote  the  health,  safety, 
morals,  and  welfare  of  those  within  its 
jurisdiction.  Truax  v.  Eaich  (U.  S.) 
1917B-283.  (Annotated.) 

3.     NATUEALIZATION. 
a.     Proceedings. 

11.  Effect  of  Failure  to  File  Certificate 
With  Petition.  Under  act  of  June  29, 
1906,  c.  3592,  §3,  34  Stat.  596  (Fed.  St. 
Ann.  1909  Supp.  p.  365),  conferring  juris- 
diction to  naturalize  aliens  on  state  courts 
of  record  having  jurisdiction  in  actions  at 
law  or  equity  in  which  the  amount  in 
controversy  is  unlimited,  and  section  4, 
requiring  the  applicant  for  citizenship  to 
file  a  petition,  and  providing  that  at  the 
time  of  filing  the  petition  there  shall  be 
filed  a  certificate  from  the  Department  of 
Commerce  and  Labor  stating  the  date, 
place,  and  manner  of  the  petitioner's  ar- 
rival in  the  United  States,  the  absence 
of  such  a  certificate  does  not  deprive  a 
state  court  of  jurisdiction,  as  the  court  has 
jurisdiction  to  decide  not  only  whether  the 
petition  and  the  petitioner's  procedure  are 
sufficient,  but  also  to  determine  whether  the 
absence  of  the  certificate  is  fatal  to  the 
petitioner's  right  to  be  admitted  as  a  citi- 
zen. United  States  v.  Ness  (Fed.) 
1917C-41. 


ALIENS. 


29 


b.     Eevocation. 

12.  Revocation  of  Naturalization.  Under 
Act  of  June  29,  1906,  c.  3592,  §  15,  34  Stat. 
601  (Fed.  St.  Ann.  1909  Supp.  p.  373),  re- 
quiring United  States  attorneys  to  insti- 
tute proceedings  to  set  aside  and  cancel 
certificates  of  citizenship  on  the  ground  of 
fraud  or  on  the  ground  that  the  certificate 
was  illegally  procured,  such  a  proceeding 
is  a  suit  in  equity  to  be  considered  and 
decided  in  accordance  with  the  rules  and 
principles  applicable  to  such  suits,  and  the 
decision  of  the  lower  court  must  be  pre- 
sumed to  be  correct  unless  some  obvious 
error  of  law  or  some  serious  mistake  of 
fact  clearly  appears.  United  States  v. 
Ness    (Fed.)    1917C-41.  (Annotated.) 

13.  An  alien  who  entered  the  United 
States  from  Canada  did  not  know  that  any 
formalities  were  required  and  saw  no  per- 
son purporting  to  be  an  immigration  com- 
missioner. When  he  applied  for  admission 
to  citizenship,  he  was  unable  to  procure 
and  file  the  certificate  from  the  Depart- 
ment of  Commerce  and  Labor  as  to  his 
arrival  in  the  United  States,  required  by 
Act  of  June  29,  1906,  c.  3592,  §  4,  34  Stat. 
596  (Fed.  St.  Ann.  1909  Supp.  p.  366), 
but  he  possessed  every  essential  qualifica- 
tion for  admission  and  he  proved  every 
fact  required  to  be  stated  in  such  certi- 
ficate. The  question  as  to  his  right  to 
admission  without  the  certificate  was 
raised  and  decided  by  the  court  in  his 
favor.  It  is  held  that  the  certificate  was 
not  illegally  procured  so  as  to  be  subject 
to  cancellation  under  section  15,  even 
though  the  court  made  a  mistake  in  fail- 
ing to  require  the  certificate  as  a  condi- 
tion of  its  decree,  as  "illegality"  signifies 
that  which  is  contrary  to  the  established 
principles  of  the  law.  United  States  v. 
Ness   (Fed.)   1917C-41.  (Annotated.) 

14.  Notwithstanding  the  absence  of  such 
certificate,  the  court's  decision  admitting 
him  to  citizenship  is  just  and  right. 
United  States  v,  Ness  (Fed.)  1917C-41. 

(Annotated.) 
Note. 
Grounds    for    revocation    of    naturaliza- 
tion.    1917C-45. 

4.     EXPATRIATION  OF  CITIZEN. 

15.  Congress  could  validly  enact  the 
provisions  of  the  Act  of  March  2,  1907 
(34  Stat,  at  L.  1228,  c.  2534,  Fed.  St. 
Ann.  1909  Supp.  p.  69)  under  which  an 
American-born  woman  who  marries  a  for- 
eigner forfeits  her  citizenship,  even 
though  she  remains  within  the  jurisdiction 
of  the  United  States.  Mackenzie  v.  Hare 
(U.   S.)    1916E-645.  (Annotated.) 

16.  Marriage  of  Woman  Citizen  to  Alien. 
No  exception  in  favor  of  an  American- 
born  woman  who  marries  a  resident  for- 
eigner and  remains  within  the  jurisdiction 
of  the  United  States  may  be  read  into  the 


provisions  of  the  Act  of  March  2,  1907 
(34  Stat,  at  L.  1228,  c.  2534,  Fed.  St. 
Ann.  1909  Supp.  p.  69)  that  "any  Amer- 
ican woman  who  marries  a  foreigner  shall 
take  the  nationality  of  her  husband,"  but 
may  resume  her  American  citizenship  at 
the  termination  of  the  marital  relation,  if 
within  the  United  States,  by  her  continu- 
ing to  reside  therein,  and,  if  abroad,  by 
returning  to  the  United  States,  or  by  reg- 
istering as  an  American  citizen.  Macken- 
zie V.  Hare   (U.  S.)    1916E-645. 

(Annotated.) 

5.     EXCLUSION  OF  ALIENS. 

17.  Immigration  Act  of  Feb.  20,  1907, 
c.  1134,  §  3,  34  Stat.  899,  provided  that 
the  importation  of  any  alien  female  for 
immoral  purposes  is  forbidden,  and  who- 
ever shall  directly  or  indirectly  import  or 
attempt  to  import  into  the  United  States 
any  alien  woman  for  immoral  purposes,  or 
who  shall  hold  or  attempt  to  hold  any 
alien  woman  for  any  such  purpose,  and 
whoever  shall  maintain  any  immoral  resort 
frequented  by  any  alien  woman  within 
three  years  after  she  shall  have  entered 
the  United  States,  shall  be  deemed  guilty 
of  a  felony,  while  the  alien  woman  shall  be 
deported.  In  1910  (Act  of  March  26, 1910, 
c.  128,  §  2,  36  Stat.  264,  3  Fed.  St.  Ann. 
[2d  ed.]  649)  the  section  was  amended, 
so  as  to  declare  that  any  alien  who  shall 
be  found  an  inmate  or  .connected  with  the 
management  of  an  immoral  resort,  or  who 
shall  share  in,  receive,  or  derive  benefit 
from  any  of  the  earnings  of  any  prosti- 
tute, shall  be  deemed  to  be  unlawfully 
within  the  United  States,  and  shall  be  de- 
ported. Section  20  (section  4269,  3  Fed. 
St.  Ann.  [2d  ed.]  673)  declares  that  any 
alien  who  shall  enter  the  United  States  in 
violation  of  law  and  become  a  public 
charge,  from  causes  existing  prior  to  land- 
ing, shall  be  deported  to  the  country 
whence  he  came  at  any  time  within  three 
years  after  the  date  of  his  entry,  and  that 
the  expense  of  deporting  the  alien  from 
the  port  of  deportation  shall  be  borne  by 
the  owner  or  owners  of  the  vessel  or  trans- 
portation line  by  which  the  alien  came. 
It  is  held  that,  in  view  of  the  amendment 
to  section  3,  the  three-year  period  fixed  by 
section  20  must  be  disregarded,  and  a 
steamship  company  which  brought  an  alien 
to  the  country  is  liable  after  the  expira- 
tion of  the  three-year  period  for  the  ex- 
pense of  his  deportation,  where  he  was 
guilty  of  sharing  the  earnings  of  a  pros- 
titute. Oceanic  Steam  Navigation  Co.  v. 
United  States  (Fed.)   1917C-248. 

(Annotated.) 

18.  Immigration  Act  Feb.  20,  1907,  c. 
1134,  §2,  34  Stat.  898  (3  Fed.  St.  Ann. 
[2d  ed.]  640)  excludes  persons  likely  to 
become  a  public  charge;  section  20  (3  Fed. 
St.  Ann.  [2d  ed.]  673)  makes  it  the  duty 
of  the  Secretary  of  Labor  to  cause  to  be 


30 


deported  at  any  time  within  three  years 
after  entry  any  alien  who  shall  enter  iu 
violation  of  law,  and  as  such  become  a 
public  charge  from  causes  existing  prior  to 
landing;  while  section  21  (3  Fed.  St.  Ann. 
£2d  cd.]  681)  makes  it  the  duty  of  the 
secretary,  when  satisfied  that  an  alien  haa 
been  found  in  the  United  States  in  viola- 
tion of  law,  to  deport  him.  It  is  held  that 
the  act  is  not  limited  to  persons  who  shall 
from  existing  causes  become  a  public 
charge  within  three  years  after  entry,  but 
warrants  the  deportation  of  one  who  is 
likely  thereafter  to  become  a  public 
charge.  Lam  Fung  Yen  v.  Frick  (Fed.) 
1917C-232.  (Annotated.) 

19.  That  petitioner,  when  he  entered, 
was  the  son  of  a  Chinese  merchant,  and 
as  such  liable  to  be  supported  by  his 
father  during  minority,  does  not  except 
him  from  the  immigration  act,  excluding 
pe.sons  likely  to  become  a  public  charge, 
where  it  is  clear  that  at  the  end  of  his 
minority  he  is  likely  to  become  such  a 
charge.  I>am  Fung  Yen  v.  Frick  (Fed.) 
1917C-232.  (Annotated.). 

20.  "The  immigration  act,  excluding  per- 
sons likely  to  become  a  public  charge,"  is 
not  limited  to  paupers  or  those  liable  to 
become  such,  but  includes  those  who  will 
not  undertake  honest  pursuits,  or  who  are 
likely  to  become  periodically  the  inmates 
of  prisons,  and  so  includes  one  who  in- 
tends to  make  his  living  by  gambling,  in- 
stead of  honest  labor.  Lam  Fung  Yen  v. 
Prick  (Fed.)  1917C-232.  (Annotated.) 

21.  The  immigration  act  applies  to  aliens 
bom  in  China,  and  the  minor  son  of  a 
Chinese  merchant  cannot  lawfully  enter 
the  United  States,  if  at  that  time  he  be 
a  person  likely  to  become  a  public  charge. 
Lam  Fung  Yen  v.  Frick  (Fed.)  1917C-232. 

(Annotated.) 

22.  Where  supported  by  competent  evi- 
dence, a  finding  by  the  immigration  au- 
thorities with  regard  to  an  alien  is  con- 
elusive  on  the  courts.  Lam  Fung  Yen  v. 
Frick  (Fed.)  1917C-232.  (Annotated.) 

23.  On  application  by  a  Chinese  person 
for  writ  of  habeas  corpus  against  the  im- 
migration inspector,  the  evidence  is  held 
to  warrant  a  finding  by  the  inspector  that 
such  Chinese  person  was  addicted  to  gam- 
bling when  he  left  China,  and  that  he  en- 
tered the  United  States  intending  to  make 
his  living  by  gambling,  and  not  by  profit- 
able industry.  Lam  Fung  Yen  v.  Frick 
(Fed.)   1917C-227.  <"  Annotated.) 

Notes. 

Immigrant  prostitution  or  immorality. 
1917C-250. 

Classes  of  aliens  excluded  by  immigra- 
tion act.     1917C-235. 


DIGEST. 

1916C— 1918B. 

ALIMONT  AND  SUIT  MONEY. 

1.  Permanent  Alimony. 

a.  Nature  of  Allowance. 

b.  Amount  of  Allowance. 

c.  Modification  of  Decree. 
See  Divorce;  Husband  and  Wife. 


1.     PERMANENT    ALIMONY. 

a.  Nature  of  Allowance. 

1.  Amount  of  Allowance.  Where  a  wife 
was  granted  a  divorce  and  custody 
of  minor  children  of  the  marriage, 
an  award  of  $80  a  month  for  the  support 
of  such  children,  four  in  number,  while 
large,  cannot  be  held  excessive;  the  de- 
fendant husband  having  in  the  past  paid 
the  house  rent  and  allowed  the  wife  $30 
a  week  for  expenses.  Heicke  v.  Heicke 
(Wis.)  1918B-497. 

2.  While  the  amount  awarded  a  wife  on 
divorce  should  not  exceed  from  one-third 
to  one-half  of  the  husband's  property,  it  is 
not  improper,  where  the  husband  is  prac- 
tically the  owner  of  an  apothecary  shop, 
to  award  the  wife  an  insurance  policy  on 
which  the  husband  had  paid  fourteen 
premiums  averaging  $100,  and  to  require 
him  to  continue  payment  of  the  premiums, 
and  also  to  pay  the  wife  three  separate 
sums  of  money  amounting  to  $1,200;  the 
stock  of  drugs  and  some  other  property 
being  awarded  the  husband.  Heicke  v. 
Heicke  (Wis.)  19I8B-497. 

3.  Allowance  of  Gross  Sum.  Under 
Shannon's  Tenn.  Code,  §  4222,  providing 
that  the  court  may  decree  to  the  wife  such 
part  of  the  husband's  real  and  personal 
estate  as  it  may  think  proper,  where  an 
absolute  divorce  was  awarded  a  wife  for 
abandonment  against  her  husband,  worth 
some  $170,000,  the  husband  having  been 
the  more  to  blame  in  their  difficulties,  an 
award  to  the  wife  of  $200  a  month  ali- 
mony cannot  stand,  and  she  will  be  de- 
creed $50,000  in  solido.  Winslow  v.  Win- 
slow   (Tenn.)   1917A-245.         (Annotated.) 

Notes. 

Life  of  decree  for  permanent  alimony. 
1917A-582. 

Allowance  of  alimony  in  gross  sum. 
1917A-248. 

b.  Amount    of    Allowance. 

4.  The  evidence  is  held  to  sustain  chan- 
cellor's allowance  to  wife  of  large  amount 
of  property,  of  value  but  little  in  excess 
of  what  she  had  invested  personally,  in 
view  of  respective  physical  condition  of 
the  parties.  Klekarap  v,  Klckanip  (IU.) 
1918A-663. 

c.     Modification  of  Decree. 

5.  A  decree  for  future  alimony  payable 
in  instalments,  and  which  the  court  may 


ALL  CONTRACTS— ALTERATION  OF  INSTRUMENTS. 


31 


subsequently  annul,  vary,  or  modify  upon 
due  notice  to  all  parties  interested,  confers 
a  vested  right  in  the  beneficiary  to  all  in- 
stalments that  have  become  due,  which 
cannot  be  annulled,  varied,  or  modified,  as 
to  them.  Bolton  v.  Bolton  (N.  J.)  1916E- 
938.  (Annotated.) 

6.  The  statute  of  the  state  of  New  York 
authorizing  the  court  to  make  directions 
concerning  the  allowance  of  alimony,  with 
power  at  any  time  after  final  judgment  to 
annul,  vary,  or  modify  such  judgments, 
confers  no  retroactive  power  to  alter  the 
judgment  as  to  past-due  instalments,  and 
the  annulment,  variation,  or  modification 
can  only  affect  instalments  which  have  not 
fallen  due,  and  such  decree  as  to  past-due 
instalments  is  a  final  decree,  entitled  to 
the  benefit  of  the  full  faith  and  credit 
clause  of  the  Federal  Constitution.  Bolton 
V.  Bolton  (N.  J.)  1916E-938. 

(Annotated.) 

7.  Life  of  Decree.  Where  the  marriage 
status  is  dissolved  by  a  divorce  and  the 
judgment  provides  for  annual  alimony,  the 
right  to  collect  alimony  due  and  unpaid  at 
the  time  of  the  wife's  death  may  be  en- 
forced by  her  personal  representatives; 
alimony  not  being  a  personal  claim  like  a 
cause  of  action  for  slander.  Van  Ness  v. 
Eansom  (N.  Y.)  1917A-580. 

(Annotated.) 

8.  Power  to  Modify  Decree.  The  decree 
made  by  a  court  of  a  sister  state,  adjudg- 
ing alimony  to  a  wife  payable  in  future 
instalments,  is  a  final  judgment  entitled  to 
the  protection  of  the  full  faith  and  credit 
clause  of  the  Federal  Constitution  as  to 
all  past-due  instalments,  unless  the  right 
to  the  alimony  is  so  within  the  discretion 
of  the  court  rendering  the  decree  that  it 
does  not  vest  in  the  beneficiary,  even  in 
the  absence  of  the  exercise  of  any  discre- 
tionary power  which  the  court  may  have  to 
annul,  vary,  or  modify  the  decree.  Bolton 
v.  Bolton  (N.  J.)  1916E-938. 

(Annotated.) 

ALL  CONTRACTS. 
Meaning,  see  Life  Insurance,  30. 

ALL  DAMAGES  AND  COSTS. 

Meaning,  see  Bankruptcy,  29. 

ALL  MUNICIPAL  POWER. 
Meaning,  see  Intoxicating  Liquors,  3. 

ALL      THE      REST,      RESIDUE     AND 
REMAINDER. 

Meaning,  see  Wills,  202. 


ALTERATION  OF  INSTRUMENTS. 

1.  What  Constitutes,  31. 

a.  Materiality,  31. 

3.  Effect,  32. 

4.  Estoppel,  32. 

5.  Ratification,  32. 

6.  Evidence,   33. 

7.  Pleading,  33. 

Evidence    of    alteration,    sufficiency,    tee 
Bills  and  Notes,  73. 

1.     WHAT  CONSTITUTES. 

1.  Distinction  Between  "Alteration"  and 
"Spoliation."  An  "alteration"  occurs  when 
a  written  contract  is  intentionally  changed 
in  a  material  respect  after  execution  by  or 
at  the  instance  of  one  of  the  parties  and 
without  the  consent  of  the  other,  while  a 
"spoliation"  is  the  unauthorized  change  of 
a  written  contract  by  a  stranger.  Smith 
V.  Barnes  (Mont.)  1917D-330. 

2.  Filling  Blanks.  Where  the  makers  of 
a  note,  other  than  the  person  for  whose 
accommodation  it  was  made,  give  it  to  him 
to  negotiate,  with  place   for   the   payee's 

name   blank;    and   the    date    "July  ," 

they  give  him  implied  authority,  not 
merely  to  fill  in  the  name  of  whoever  may 
become  the  payee,  but  the  date  of  the 
actual  delivery  to  the  payee,  so  long  as 
it  is  done  in  a  reasonable  time,  so  that 
filling  in  such  date,  at  his  direction,  is  not 
an  alteration.  Holman  v.  Higgins  (Tenn.) 
1917E-515.  (Annotated.) 

3.  Detaching  Instrument  from  Note. 
Where  a  conditional  sales  contract  for  a 
set  of  scales  has  as  a  part  thereof  an  in- 
stalment note,  the  detaching  of  the  note, 
thereby  making  it  a  negotiable  note,  is  a 
material  alteration  of  the  contract  avoid- 
ing the  entire  contract.  Toledo  Scale  Co. 
V.  Gogo  (Mich.)  19I7E-601. 

(Annotated.) 
Note. 
Effect  of  detaching  from  promissory  note 
contract  or  memorandum  attached  thereto. 
1917E-603. 


2.     MATERIALITY. 

4.  Substitution  of  "Bearer"  for  "Order" 
In  Note.  Under  Iowa  Code  Supp.  1907, 
§  3060al25,  providing  that  an  alteration 
which  changes  the  effect  of  the  instru- 
ment in  any  resj)ect  is  a  "material  altera- 
tion," a  change  in  a  note  payable  to  order, 
made  by  striking  out  the  words  "order  of," 
and  inserting  after  the  name  of  the  payee 
the  words  "or  bearer,"  is  a  material  altera- 
tion which  avoids  the  instrument,  if  made 
after  delivery,  or,  if  made  by  the  maker 
or  the  payee  before  delivery,  discharges  a 
surety.  Builders'  Lime,  etc.  Co.  v.  Weinier 
(Iowa)    1917C-1174.  (Annotated.) 


32 


5.  Materiality  of  Alteration.  The  alter- 
ation of  a  note  by  adding  the  signature,  as 
maker,  of  the  firm  of  which  the  original 
maker  was  a  member  defeats  recovery  on 
the  note  by  the  payee.  Palmer  v.  Blanch- 
ard  (Me.)  1917A-809. 

Note. 

Addition  of  words  "or  bearer"  or  words 
"or  order"  or  substitution  of  one  expression 
for  other  as  material  alteration  of  instru- 
ment,    1917C-1177. 

3.     EFFECT. 

6.  Liability  to  Payee.  The  joint  maker 
in  such  a  case  is  not  liable  to  the  payee  on 
the  altered  note  since  he  has  never  agreed 
to  the  terms  of  the  instrument  which  the 
payee  took.  BuUders'  Lcime,  etc.  Co.  v. 
Weimer  (Iowa)  1917C-1174. 

7.  Liability  of  Maker  to  Innocent  Pur- 
chaser. A  joint  maker  of  a  note,  who  in- 
dorsed it  with  a  comaker,  by  whom  it  was 
materially  altered  before  delivery,  is  lia- 
ble thereon  after  it  passes  into  the  hands 
of  a  holder  in  due  course,  on  the  theory 
that,  where"  one  of  two  innocent  parties 
must  suffer  by  the  acts  of  a  third,  he  whose 
acts  enabled  the  third  party  to  cause  the 
loss  must  bear  it.  Builders'  Lime,  etc.  Co. 
V.  "Weimer  (Iowa)  1917C-1174. 

8.  Effect  of  Alteration.  In  an  action  for 
breach  of  contract,  plaintiff  has  the  burden 
of  establishing  the  contract  substantially 
as  alleged;  and  where  the  declaration  was 
upon  a  contract  without  regard  to  altera- 
tions, and  a  vitiating  alteration  is  alleged 
and  proved  by  defendant,  the  action  faUs. 
Smith  V.  Barnes  (Mont.)  1917D-330. 

9.  Eight  of  Party  Affected  to  Enforce 
Original  Contract.  Under  Mont.  Rev. 
Codes,  §  5069,  declaring  that  the  material 
alteration  of  a  written  contract  by  a  party 
entitled  to  any  benefit  thereunder  extin- 
guishes all  executory  obligations  of  the 
contract  in  his  favor  against  parties  who 
do  not  consent,  the  party  procuring  an 
alteration  of  a  written  contract  canuot 
maintain  any  action  upon  the  contract  in 
either  its  original  or  altered  form,  but  the 
nonconsenting  party  loses  no  right,  and  is 
not  required  to  rescind  or  repudiate  the 
contract  as  it  was  actually  made,  and  may 
hold  the  other  party  to  the  terms  of  the 
original  contract;  and  the  effect  of  a 
spoliation  is  that  the  contract  stands  as 
originally  made,  without  regard  to  the 
change.  Smith  v.  Barnes  (Mont.)  1917D- 
330. 

4,     ESTOPPEL. 

10.  Plaintiff,  in  May,  1902,  quitclaimed 
to  defendant's  assignor  all  plaintiff's  in- 
terest in  a  right  of  way  for  the  C.  ditch, 
with  all  rights  to  the  appropriation  of 
water  and  any  and  all  interests  therein. 
Thereafter  plaintiff  executed  a  written 
contract  by  which  it  assigned  unto  the  D. 


DIGEST, 

1916C— 1918B, 

Ditch  Company  the  entire  one-third  in- 
terest in  and  to  all  the  rights,  privileges 
and  franchises  pertaining  to  and  secured  , 
for  the  appropriation  of  water  from  Sand 
and  Deadman  creeks  in  Larimer  county 
(and  also  all  of  the  rights,  privileges,  and 
franchises  pertaining  to  and  secured  by 
the  appropriation  of  water  from  the  C. 
creek  in  such  county).  By  the  same  con- 
tract the  ditch  company  agreed  to  deliver 
to  plaintiff  sufficient  water  to  irrigate  his 
lands  and  to  pay  plaintiff  for  one-third  of 
the  water  carried  by  the  C.  and  the  D. 
ditches,  except  that  furnished  plaintiff. 
Before  delivery  of  the  contract,  the  por- 
tion in  parentheses  was  erased  by  the  presi- 
dent of  the  ditch  company  for  the  reason 
that  it  "was  never  in  the  agreement." 
Plaintiff  recorded  the  contract  and  the  let- 
ter accompanying  it,  and  for  four  years 
thereafter  made  no  claim  to  any  interest 
in  the  water  flowing  in  the  C.  Ditch,  dur- 
ing which  time  the  ditch  company's  pro- 
ject was  continued  to  completion.  It  is 
held  that  plaintiff  was  thereafter  estopped 
to  object  to  the  alteration  of  the  contract. 
Divide  Canal,  etc.  Co,  v,  Tenney  (Colo.) 
1917D-346.  (Annotated.) 

11.  Where  a  written  contract  has  been 
altered,  the  nonconsenting  party,  entitled 
to  stand  upon  the  contract  as  made  and 
not  required  to  avoid  it,  may  retain  -the 
first  payment,  permit  the  other  party  to 
perform  the  contract,  and  forfeit  the  pay- 
ment if  the  other  party  fails  to  perform, 
and  cannot  be  estopped  by  any  action  or 
inaction  amounting  to  only  less  than  an 
acceptance  of  the  change.  Smith  ▼. 
Barnes  (Mont.)  1917D-330. 

(Annotated.) 

12.  Presumption  from  Apparent  Altera- 
tion. The  fact  that  one  of  the  figures  in 
the  date  of  a  note  showed  that  it  was  writ- 
ten over  an  erasure  does  not  create  a  pre- 
sumption that  the  change  was  made  after 
the  execution,  so  as  to  be  a  material  altera- 
tion which  avoids  the  note.  Palmer  v. 
Blanchard  (Me.)  1917A-809. 


5.     RATIFICATION. 

13.  A  material  alteration  in  a  written 
instrument  may  be  expressly  or  impliedly 
ratified  after  it  has  been  executed  and  de- 
livered, and,  if  so  ratified,  will  bind  the 
parties.  Divide  Canal,  etc.  Co.  v.  Tenney 
(Colo.)  1917D-346.  (Annotated.) 

14.  Waiver  or  Ratification  of  Alteration. 

Ratification  and  waiver  of  alteration  of 
contract  are  in  the  nature  of  estoppel,  and, 
to  be  available,  must  be  pleaded  when  an 
opportunity  to  make  such  plea  is  pre- 
sented. Smith  V.  Barnes  (Mont.)  1917D- 
330.  (Annotated.) 

Note. 

Ratification  or  waiver  of  alteration  of 
instrument.    1917D-335. 


AMBASSADORS  AND  CONSULS— AMBIGUITY. 


33 


6.  EVIDENCE. 

15.  Evidence  of  Alteration  Sufficient. 
Evidence,  in  an  action  for  breach  of  a  con- 
tract for  the  sale  and  purchase  of  stock 
with  provision  that  upon  payment  of  the 
respective  instalments  of  money  a  propor- 
tionate amount  .  of  the  stock  should  be 
delivered  to  the  purchaser,  is  held  to  sus- 
tain a  finding  that  the  parties  did  not  so 
contract,  but  that  their  contract  was 
changed  to  the  terms  pleaded,  after  exe- 
cution, and  without  defendant's  knowledge 
or  consent.  Smith  v.  Barnes  (Mont.) 
1917D-330. 

16.  Evidence  of  Alteration.  In  an  ac- 
tion at  law  for  breach  of  a  contract  for 
the  sale  and  purchase  of  the  stock  of  a 
milling  company,  wherein  defendant  al- 
leges that  plaintiff  materially  altered  the 
contract  after  its  execution,  evidence  of 
the  change  of  the  contract  after  its  execu- 
tion is  admissible.  Smith  v.  Barnes 
(Mont.)  1917D-330. 

7.  PLEADING. 

17.  Effect  of  Spoliation.  In  the  case  of 
a  spoliation  of  a  contract,  the  plaintiff 
must  declare  upon  the  contract  as  origi- 
nally made,  and  it  is  fatal  if  the  contract 
pleaded  is  not,  by  reason  of  spoliation,  the 
agreement  of  the  parties.  Smith  v.  Barnes 
(Mont.)   1917D-330. 

AMBASSADOHS  AND  CONSTTLS. 

Eight  of  consul  to  letters,  see  Executors 
and  Administrators,  3,  4. 

1.  Power  of  Consular  Officers.  Interna- 
tional law  regards  consuls  and  consular 
officials  as  mercantile  agents  of  the  gov- 
ernment appointing  them,  authorized  to 
protect  the  commercial  interests  of  its  citi- 
zens or  subjects  in  the  country  to  which 
they  are  accredited,  and  clothed  only  with 
authority  for  commercial  purposes.  Hamil- 
ton V.  Erie  R.  Co.  (N.  Y.)  1918A-928. 

2.  To  conserve  and  guard  the  property 
within  their  territorial  jurisdiction  of 
their  countrymen  dying  therein,  is  an  im- 
portant right  and  duty  of  consuls  and  con- 
sular officials.  Hamilton  v.  Erie  R.  Co. 
(N.  Y.)  1918A-928. 

3.  Source  of  Rights.  The  rights  of  con- 
suls and  consular  officials  rest  on  interna- 
tional law  as  well  as  on  treaty  stipulations. 
Hamilton  v.  Erie  R.  Co.  (N.  Y.)  19I8A- 
928. 

4.  Power  as  to  Decedent's  Estate.  The 
1909  treaty  between  the  United  States  and 
Russia  contained  the  most  favored  nation 
clause.  The  then  existing  treaty  with 
Spain  provided  that  consular  officials 
should  have  the  right  of  representing  the 
absent,  unknown,  or  minor  heirs,  "next  of 
kin,"  or  legal  representatives  of  citizens  or 


subjects  of  their  country  who  should  die 
within  their  consular  jurisdiction,  and  of 
appearing  in  their  behalf  in  all  proceedings 
relating  to  the  settlement  of  their  estates, 
and  to  perform  all  the  duties  prescribed  by 
the  laws  of  their  country  for  the  safe- 
guarding of  their  property  and  the  settle- 
ment of  the  estate  of  their  deceased  coun- 
trymen. It  is  held  that  the  consular 
officials  of  Russia  were  authorized  thereby 
to  act  for  the  heirs,  next  of  kin,  or  legal 
representatives  of  their  countrymen,  of  the 
description  set  forth,  in  participating  in 
their  behalf  in  legal  or  other  proceedings 
for  the  proper  administration,  conserving 
and  guarding  of  the  estates  of  such  coun- 
trymen. Hamilton  v.  E'rie  R.  Co.  (N.  Y.) 
1918A-928.  (Annotated.) 

5.  Release  of  Claim  for  DeatlL  The  gen- 
eral law  of  nations  does  not  sustain  as 
valid  the  settlement  by  a  consul  general 
with  a  railroad  for  its  negligent  killing 
within  his  consular  jurisdiction  of  a 
countryman  of  the  consul.  Hamilton  v. 
Erie  R.  Co.  (N.  Y.)  1918A-928. 

(Annotated.) 

6.  Release   of   Claim  for   Damages   for 

Death.  Under  the  1909  treaty  between  the 
United  States  and  Russia,  containing  the 
most  favored  nation  clause,  the  powers  of 
the  Russian  consul  and  vice  consul  in  the 
matter  of  settling  with,  and  releasing  a 
railroad  for  damages  arising  from  the 
death  of  a  Russian  subject  killed  by  it,  are 
equal  to  those  given  to  consular  represen- 
tatives of  any  other  nation  by  treaty. 
Hamilton  v.  Erie  R.  Co.  (N.  Y.)  1918A-928. 

(Annotated.) 

7.  Under  these  treaties,  a  Russian  consul 
does  not  have  the  right  without  judicial 
proceedings  to  settle  with  and  release  a 
railroad  company  from  a  cause  of  action 
for  death  by  negligence  within  his  con- 
sular jurisdiction  of  a  Russian  whose  wife 
and  children  resided  in  Russia,  notwith- 
standing the  fact  that  the  treaties  give 
him  right  to  represent  the  "next  of  kin" 
and  that  N.  Y.  Code  Civ.  Proc,  §§  1902- 
1905,  giving  such  right  of  action,  declares 
that  the  damages  recovered  are  exclusively 
for  the  benefit  of  decedent's  husband  or 
wife  and  "next  of  kin,"  since  the  denom- 
ination "next  of  kin"  in  the  statute  is 
merely  a  convenient  means  of  designating 
comprehensively  and  definitely,  the  distrib- 
utees of  the  damages  recovered,  which 
they  take,  not  through  the  laws  of  intes- 
tacy or  as  a  part  of  the  estate  of  the 
intestate,  but  through  their  original  right 
thereto  created  by  the  statute.  Hamilton 
V.  Erie  R.  Co.  (N.  Y.)  1918A-928. 

(Annotated.) 

AMBIGUITY. 

In  writing,  parol  proof  to  explain,  see  Evi- 
dence, 120. 


u 


AMEJTOMENTS. 


See  Pleading,  67-87. 

Refusal  of  leave  to  amend,  harmless,  see 
Appeal  and  Error,  220. 

Of  attachment  bond,  see  Attachineiit,  6.    v 

By-laws  of  benefit  association,  see  Benefi- 
cial Associations,  14-16. 

Of  constitution,  see  Constitutional  Law, 
183-190. 

Of  pleadings,  see  Equity,  17-19. 

Of  indictment,  see  Indictments  and  Infor- 
mations, 6,  18-20. 

Of  judgments,  see  Judgments,  51,  52. 

Of  pleading,  effect  of  limitations,  see  Limi- 
tation of  Actions,  38-41. 

Of  city  charter,  see  Municipal  Corpora- 
tion, 6-9. 

Amending  motion  for  new  trial,  see  New 
Trial,  35. 

Of  statutes,  see  Statutes,  116-121,  }24. 

Trial  amendments,  see  Trial,  59. 


DIGEST. 

1916C— 1918B. 

keeper,  as  there  is  nothing  to  indicate  that 
the  term  "domestic"  is  used  in  other  than 
its  ordinary  and  popular  meaning,  and  the 
term  in  its  popular  meaning  is  a  broad 
one,  meaning  inhabiting,  belonging  or 
relating  to  the  house  or  household  or 
household  affairs,  domesticated,  tame  as 
distinguished  from  wild,  living  in  or  near 
the  habita'tions  of  man  or  by  habit  or  spe- 
cial training  in  association  with  man. 
Thurston  v.  Carter  (Me.)  1917A-389. 

(.Annotated.) 

2.  While  cats  are  not  enumerated  by 
name  as  subjects  of  taxation  in  the  stat- 
utes, the  general  language  of  the  statutes 
is  sufficient  to  include  them,  even  though 
the  owner  has  but  a  qualified  property. 
Thurston  v.  Carter  (Me.)  1917A-389. 

(Annotated.) 
Note. 
Legal  status  of  the  cat.     1917A-391. 


AMPUTATION. 

As  covering  "loss"  of  hand,  see  Accident 
Insurance,  19. 


ANIMAL  INSURANCE. 
See  Insurance,  44. 

ANUiAIA 

1.  Domestic  Animals,  34. 

2.  Trespass  by  Animals,  34. 

3.  Injury  by  Animals,  34. 

a.  Vicious  or  Mischievous  Animals,  34. 

b.  Evidence,  34. 

4.  Herd  Law,  35. 

5.  Licenses,  35. 

6.  Wild  Animals,  35. 

See  Carriers  of  Live  Stock. 

Keeping  sheep  on  shares,  see  Bailment, 
1,  4-6. 

Gift  for  benefit  of  animals,  see  Charities,  5. 

Increase  of,  see  Chattel  Mortgages,  21-23. 

Conversion  of  dog,  see  Conversion,  1-4. 

Catcher's  right  to  caught  fish,  see  Fish  and 
G-ame,  1. 

Liability  of  feed  vender  for  poisoning,  see 
Food,  21. 

Regulation  of  diseased  animals,  see  Health, 
2-4. 

Liability  of  prospector  for  cattle  falling 
into  open  shaft,  see  Mines  and  Min- 
erals, 10. 

City  regulation,  see  Municipal  Corpora- 
tions, 79. 

1.     DOMESTIC  ANIMALS. 

1.  Legal  Status  of  Cat.  A  cat  is  a 
"domestic  animal"  within  Me.  Pub.  Laws 
1909,  c.  222,  §  17,  providing  that  any  per- 
son may  lawfully  kill  a  dog  found  worry- 
ing, wounding,  or  killing  any  domestic 
animal  when  the  dog  is  outside  of  the  in- 
closure  or  immediate  care  of  its  owner  or 


2.     TRESPASS  BY  ANIMALS. 

3.  Liability  of  Owner  of  Uninclosed 
Land.  An  owner  of  uninclosed  land  is  not 
liable  for  the  death  of  trespassing  cattle 
which  strayed  on  his  property  and  fell  into 
an  open  ditch,  for,  while  the  owner  of  the 
cattle  is  not  liable  for  their  trespass  be- 
cause the  land  was  uninclosed,  that  does 
not  make  the  entry  of  the  cattle  rightful, 
nor  cast  on  the  landowner  the  duty  of  ex- 
ercising care  for  their  safety.  Gillespie  v. 
Wheatland  Industrial  Co.  (Wyo.)  1917A- 
287.  (Annotated.) 

Note. 
Liability  as  for  negligence  of  owner  of 
uninclosed  land  for  injury  to  domestic  ani- 
mal straying  thereon.    1917A-2S8.  i» 

3.     INJURY  BY  ANIMALS, 
a.     Vicious  or  Mischievous  Animals. 

4.  Liability  for  Injury  to  Property.    If 

statutes  protecting  beaver  and  prohibiting 
the  destruction  of  their  dams  and  houses 
had  been  unconstitutional,  the  state  would 
not  have  been  liable  to  persons  whose  tim- 
ber was  injured  by  beaver,  since,  the  stat- 
ute being  void,  no  one  need  obev  it.  Bar- 
rett V.  State  (X.  Y.)  1917D-807. 

(Annotated.) 

b.     Evidence. 

5.  The  h.abits,  characteristics,  and  dispo- 
sition of  the  horse  are  matters  of  such 
common  knowledge  that  it  does  not  require 
expert  testimony  to  determine  whether  a 
horse  was  safe  for  certain  work.  Marks  v. 
Columbia  County  Lumber  Co.  (Ore.) 
1917A-306. 

6.  Opinion  Evidence  as  to  Viciousness  of 
Animal.  In  an  action  by  a  servant  for 
injuries  from  the  alleged  viciousness  of  a 
horse  given  him  to  drive,  opinion  evidence 
that  the  horse  was  not  a  safe  one  for  the 


ANIMALS. 


35 


work  is  wrongfully  admitted;  that  being  a 
question  for  the  jury.  Marks  v.  Columbia 
County  Lumber  Co.  (Ore.)  1917A-306. 

7.  Proof  of  Viciousness  —  Subsequent 
Acts.  In  an  action  by  a  servant  for  in- 
juries alleged  to  result  from  the  vicious- 
ness of  a  horse  given  him  to  drive,  evi- 
dence of  conduct  of  the  horse  subsequent 
to  the  accident  is  admissible  to  show  its 
disposition.  (Marks  v.  Columbia  County 
Lumber  Co.  (Ore.)  1917A-306. 

(Annotated.) 

Note. 

Liability  of  owner  for  injuries  caused  by 
runaway  horse.     1916E-1114, 

4.     HERD  LAW. 

8.  Validity.  The  Legislature,  under  the 
police  power,  may  provide  reasonable  regu- 
lations for  the  use  and  enjoyment  of  prop- 
erty, where  the  same  are  necessary  for  the 
common  good  and  the  protection  of  others. 
Held,  that  a  statute  which  prevents  the 
holding  under  herd,  or  in  any  inclosure,  un- 
accompanied by  their  mothers,  of  any 
calves  of  neat  cattle  under  seven  months 
of  age  is  not  violative  of  any  constitu- 
tional provision,  and  is  sustainable  under 
the  police  power,  where  such  regulation 
appears  reasonably  necessary  to  prevent 
the  larceny  of  young  animals.  State  v. 
Brooken  (N.  Mex.)  1916D-136. 

9.  Indictment  for  Violation.  An  indict- 
ment, charging  a  violation  of  section  1, 
c.  23,  S.  L.  K  Mex.  1901,  which,  after  al- 
leging that  defendant  held,  under  herd  in 
a  certain  pasture,  calves  unaccompanied 
by  their  mothers,  proceeds:  "The  said 
calves  being  then  and  there  under  the  age 
of  seven  months,"  is  not  subject  to  attack, 
on  the  ground  that  the  calves  are  not 
directly  and  positively  alleged  to  be  under 
seven  months  of  age.  State  v.  Brooken 
(N.  Mex.)    19I6D-136. 

5.     LICENSES. 

10.  Power  of  Municipality.  Municipal 
Code  of  City  and  County  of  Denver,  c.  16, 
art.  2,  §  747'et  seq.,  prescribing  license  fees 
for  the  keeping  of  dogs  and  penalties  for 
failure  to  pay.  are  constitutional,  since  the 
regulation  of  the  keeping  of  dogs  is  within 
the  police  power  of  the  state,  and  may  be 
delegated  to  cities  and  towns.  McPhail  v. 
Denver  (Colo.)  1916E-1143. 

6.     WILD  ANIMALS. 

11.  If  the  act  of  reducing  to  possession 
wild  animals,  such  as  bees,  is  done  by  a 
trespasser,  he  gets  no  title,  which  vests 
in  the  owner  of  the  soil,  and  the  wrong- 
doer is  liable  to  the  owner  for  the  tres- 
pass and  for  conversion.  Brown  v.  Eckes 
(N.  y.)  1917B-98L  (Annotated.) 


12.  Where  a  swarm  of  bees  leaves  the 
owner's  premises,  his  title  to  them  is  not 
destroyed  by  their  alighting  on  another's 
land.    Brown  v.  Eckes  (N.  Y.)  1917B-981. 

(Annotated.) 

13.  Bees.  Bees  are  "ferae  naturae." 
Brown  v.  Eckes  (N.  Y.)  1917B-981. 

(Annotated.) 

14.  Liability  of  State  for  Injury  to  Prop- 
erty. The  state  has  a  general  right  to  pro- 
tect wild  animals,  their  preservation  being 
a  matter  of  public  interest,  and  no  one 
can  complain  of  the  incidental  injuries 
that  may  result  from  such  protection. 
Barrett  v.  .State  (N.  Y.)  1917D-807. 

(Annotated.) 

15.  Protection  of  Wild  Animals.  Laws 
N.  Y.  1900,  c.  20,  prohibiting  the  killing 
of  beaver,  and  Laws  1904,  c.  674,  §  1,  pro- 
viding that  no  person  shall  molest  or  dis- 
turb any  wild  beaver,  nor  the  dams,  houses, 
homes,  or  abiding  places  of  the  same  are 
not  unconstitutional;  th§  prohibition  of 
the  destruction  of  dams  and  houses  being 
an  apt  means  to  the  desired  end  of  pro- 
tecting the  beav.er.  Barrett  t.  State 
(N.  Y.)  1917D-807. 

16.  Validity  of  Act  Protecting  Beaver. 

The  state  may  provide  for  the  increase  of 
beaVer  by  removing  colonies  to  a  more 
favorable  locality,  or  by  replacing  those 
destroyed  by  fresh  importations,  as  well 
as  by  prohibiting  the  destruction  of  ani- 
mals already  in  the  state.  Barrett  v.  State 
(N.  Y.)  1917D-807. 

17.  Liability  of  Keeper  of  Wild  Animals. 

One  who  keeps  wild  animals  in  captivity 
must  see  to  it  at  his  peril  that  they  do  no 
damage  to  others.  Barrett  v.  State  (N.  Y.) 
1917D-807.  (Annotated.) 

18.  The  state  is  not  liable  for  damage  to 
timber  of  private  individuals  committed  by 
beavers  purchased  and  freed  in  the  Adiron- 
dacks  by  the  forest,  fish,  and  game  com- 
mission under  Laws  N.  Y.  1904,  c.  674. 
Barrett  v.  State  (N.  Y.)   1917D-807. 

(Annotated.) 

19.  The  qualified  property  of  an  owner 
of  a  swarm  of  bees,  which  flies  from  the 
hive,  continues  so  long  as  he  in  person  or 
by  agent  can  keep  them  in  sight  and 
possesses  the  power  to  pursue  them. 
Brown  v.  Eckes  (N.  Y.)  1917B-981. 

(Annotated.) 

20.  Where  plaintiff  in  an  action  to  estab- 
lish his  property  rights  in  certain  swans, 
wood  ducks,  pheasants,  etc.,  which  he  had 
cared  for  as  domestic  fowl,  or  kept  in  in- 
closed runways  in  his  poultry  yard,  as 
against  interference  by  the  game  warden 
and  the  prosecuting  attorney,  a  decree  giv- 
ing him  the  ownership  and  right  to  dispose 
of  them  in  such  manner  as  he  saw  fit  was 
too  broad,  since  thereunder  he  would  have 
the  right  to  kill  and  sell  them  during  the 


36 


DIGEST. 

1916C— 1918B. 


closed  season,  and  so  interfere  with  the 
enforcement  of  the  game  laws  of  the  state, 
and  since  the  state,  for  the  protection  oi 
game  birds,  has  the  right  to  prohibit  the 
killing  and  disposing  of  reclaimed  game 
during  the  closed  season.  Graves  v.  Dun- 
lap  (Wash.)  1917B-944.  (Annotated.) 

21.  Plaintiff,  having  a  property  right  in 
the  deer  which  he  kept  in  an  inclosure,  if 
necessary  in  the  care  and  management  of 
the  herd,  might  kill  one  of  them  without 
offending  the  law.  Graves  v.  Dunlap 
(Wash.)  1917B-944.  (Annotated.) 

22.  Bight  to  Kill.  One  charged  with 
killing  deer  in  violation  of  .Iowa  Code 
Supp.  1913,  §§  2551a,  2551b,  making  it  un- 
lawful for  any  person  other  than  the 
owner  or  person  authorized  by  the  owner 
to  kill  any  deer,  except  when  distrained  as 
provided  by  law,  may  show  in  justification 
that  the  deer,  when  killed,  was  on  his 
premises,  destroying  his  property.  State  v. 
Ward  (Iowa)   1917B-978.         (Annotated.) 

23.  Eight  of  Property.  Wash.  Game 
Code  (Laws  1913,  c.  120),  §  21,  providing 
that  no  person  shall  acquire  any  property 
in,  or  subject  to  his  control,  any  of  the 
game  birds  or  animals  mentioned  in  the 
act,  but  that  they  shall  always  remain  the 
property  of  the  state,  and  section  33,  pro- 
viding that  no  person  shall  have  in  posses- 
sion or  under  control  at  any  time  any  deer, 
fawn,  etc.,  if  retroactive  in  operation  as 
against  one  who  had  reclaimed  certain  deer 
kept  on  an  inclosed  area  on  his  farm,  and 
certain  swans  cared  for  as  domestic  fowls, 
and  wood  ducks,  pheasants,  etc.,  kept  in 
inclosed  runways  in  his  poultry  yard,  vio- 
lated Coast.  Wash.  art.  1,  §  3,  and  Const. 
U.  S.  Amend.  14  (9  Fed.  St.  Ann.  416), 
since  he  had  such  a  property  right  in  them 
that  it  could  not  be  taken  away  without 
due  process  of  law.  Graves  v.  Dunlap 
(Wash.)    1917B-944.  (Annotated.) 

24.  Animals  ferae  naturae,  if  reclaimed 
and  kept  in  inclosed  grounds,  are  prop- 
erty, which  will  pass  to  the  executors  and 
administrators  of  the  one  who  reclaimed 
them.  Graves  v.  Dunlap  (Wash.)  1917B- 
944.  (Annotated.) 

25.  Eight  of  Property.  While  animals 
ferae  naturae  belong  to  the  state,  yet, 
when  they  are  reclaimed  by  the  art  and 
power  of  man,  they  are  the  subject  of  a 
qualified  right  of  property,  defeasible  if 
thev  return  to  their  wild  state.  Graves  v. 
Dunlap  (Wash.)  1917B-944. 

(Annotated.) 

26.  "Game.'"  Animals  ferae  naturae, 
such  as  deer,  ducks,  pheasants,  and  swans, 
are  denominated  "game."  Graves  v.  Dun- 
lap (Wash.)  1917B-944. 


Notes. 
Law  of  bees.     1917B-983. 
Eiglit     of     property     in     wild     animal. 


1917B-949. 


ANNEXATION. 


See  Mnnicip&I  Corporations,  21,  22. 

ANNULMENT  OF  MAREIAQE. 
See  Marriage,  12-15. 

ANONYMOUS  LETTERS. 

Sending,  as  criminal  Ubel,  see  Libel  and 
Slander,  165. 

ANSWER^ 

See  Pleading,  16-33. 

ANTENUPTIAL  CONTEACTS. 
See  Husband  and  Wife,  15-25. 

AITTICIPATORY  BBEACH. 

See  Contracts,  47-48. 

ANTI-NEPOTISM  LAW. 
See  Public  Officers,  11-22. 

ANTI-TEUST  ACT. 

Construction,  see  Monopolies,  12. 

ANT. 

Meaning,    see   Abduction,    2;    Mines    and 

Minerals. 
Defined,   see   Municipal   Corporations,    2L 

ANT  COEPOEATION. 

Meaning,  see  Joint  Adventures,  7. 


ANT   OTHER  ESTATE   OR   INTEREST 
THEREIN. 

Meaning,  see  Deeds,   70. 


ANT  PERSON. 
Does  not  include  men,  see  Prostitution,  2. 

APOTHECARIES. 
See  Drugs  and  Druggists. 


APPEAL  AND  ERROR. 


37 


APPEAL  AND  ERROR. 

1.  Eight  of  Appeal,  38. 

a.  In   General,   38. 

b.  In  Actions  for  Penalty,  39. 

c.  Waiver  of  Right,  39. 

d.  Bight  to  Second  Appeal,  39. 

2.  Jurisdiction  and  Powers  of  Appellate 

Court,  39. 

a.  In  General,  39. 

b.  Amount  in  Controversy,  40. 

c.  Federal  Courts,  40. 

d.  Intermediate  Appellate  Courts,  40. 

e.  Constitutional  Questions,  41, 

3.  Appealable  Judgments  and  Orders,  41. 

a.  In  General,  41. 

b.  In  Administration  or  Probate  Pro- 

ceedings,  42. 

c.  In  Contempt  Proceedings,  42. 

d.  In  Partition  Suits,  42. 

€.  Granting  or  Refusing  New  Trial,  43. 

f.  In  Attachment  Proceedings,  42. 

g.  In  Criminal  Cases,  42. 

h.  In  Habeas  Corpus  Proceedings,  42. 

4.  Parties  to  Appellate  Proceedings,  42. 

5.  Form  of  Appeal,  42. 

6.  Notice  of  Appeal,  42. 

a.  Form  and  Contents,  42. 

b.  On  Whom  Served,  42. 

7.  Perfection  of  Appeal,  43. 

8.  Time   of   Appeal,  43. 

a.  In  General,  43. 

b.  When   Time  Begins  to  Run,  43. 

9.  Record   on   Appeal,  43. 

a.  What  Constitutes  Record,  43. 

b.  Transcript  and  Abstract,  43. 

c.  Settlement  and  Certification,  43. 

d.  Amendment  of  Record,  44. 

e.  Conclusiveness  of  Record,  44. 

10.  Bill   of   Exceptions,   44. 

a.  In  General,  44. 

b.  Inclusion  of  All  the  Evidence,  44. 

c.  Correction,   44, 

d.  Inclusion  of  Matter  by  Reference,  44. 

11.  Assignments  of  Error,  45. 

a.  In  General,  45. 

b.  Sufficiency,   45. 

c.  Cross-assignments,  45. 

12.  Dismissal  of  Appeal,  45. 

a.  Time  for  Motion,  45. 

b.  Grounds    for    Dismissal,    45, 

c.  Questions  Considered,  46. 

d.  Reinstatement  of  Appeal,  46, 

13.  Hearing  of  Appeal,  46. 

14.  Examination  of  Case  on  Appeal,  46. 

a.  What  is  Brought  Up  on  Appeal,  46. 

(1)  Mattery   not   in   Record.   46. 

(2)  Rulings  on  Evidence,  46. 

(3)  Rulings  on  Instructions.  47. 

(4)  Attachment  Proceedings,  47. 

b.  Second  Appeal.  47. 

c.  Examination  of  Questions  of  Fact, 

47. 

(1)  In  General,  47. 

(2)  Power    of    Appellate    Court 

to  Weigh  Evidence,  48. 

(3)  Verdict  or  Finding  of  Jurv,  48. 

(a)  In   General,   48. 

(b)  Verdict     in     Criminal 

Case,  49. 


(4)  Findings  of  Court,  50. 

(5)  Findings  of  Master,  50. 

(6)  Direction  of  Verdict  or  Non- 

suit,  51. 
(7;  Judgment    of    Intermediate 
Appellate  Court,  51. 

(8)  Adherence     to     Theory     of 

Trial   Court,   51, 

(9)  Ocinpetency  of  Witnesses,  51. 
d.  Waiver   of   Error,   52. 

(1)  In  General,  52. 

(2)  Omission     from      Brief     or 

Argument,  52. 

(3)  Pleading  Over  After  Order 

to  Make  More  Specific,  52. 

(4)  Introduction     of     Evidence 

After  Refusal  to  Direct  Ver- 
dict or  Give  Judgment,  52. 

(5)  By     Stipulation    or    Agree- 

ment, 52. 

(6)  Introduction     of     Evidence 

After   Adverse   Ruling  on 
Pleading,  53, 

(7)  By  Requesting  Instruction,  53. 

15.  Review  of  Exercise   of  Discretionary 

Power,  53. 

16.  Presumptions  on  Appeal,  53, 

a.  In  General,  53. 

b.  As  to  Motions,   53. 

c.  As  to  Rulings  on  Pleadings,  53. 

d.  As  to  Evidence,   53. 

e.  As  to  Instructions,  54. 

f.  As  to  Verdict,  54. 

g.  As   to  Judgment,   54. 

17.  Reversible  Error,  54, 

a.  In  General,  54. 

b.  Error  must  be  Clearly  Shown,  54. 

c.  Error  must  be  Material,  54. 

d.  Error  must  be  Prejudicial,  55. 

(1)  In  General,  55, 

(2)  Error  in  Rulings  on  Plead- 

ings, 55, 

(3)  Errors  in  Admission  of  Evi- 

dence, 56. 

(a)  In  General,  56. 

(b)  Instructions     to     Cure 

Error,   57. 

(c)  Evidence    as    to    Ad- 

mitted     or     Proven 
Faets,  58. 

(d)  Irrelevant  Evidence,  58, 

(4)  Exclusion  of  Evidence,  59. 

(a)  In  General^  59. 

(b)  Evidence      Previously 

or  Subsequently  Ad- 
mitted, 59. 

(c)  Facts  Otherwise 

Proved,  59. 

(d)  Error    Cured   by    Ver- 

dict,  59. 

(e)  Immaterial  Evidence,  59, 

(f )  Error  Cured  by  Admis- 

sion of  Counsel,  60, 
,    (5)  Other  EVrors  in  Relation  to 
Evidence,  60. 
(6)   Errors  in  Instructions,  60. 

(a)  In  General,  60, 

(b)  Errors  Cured  by  Other 

Instructions,  61. 


38 


DIGEST. 

1916C— 1918B. 
(c)  Error    Cured   by   Ver-       18.  Decision    or    Judgment    of    Appellate 


diet,  62. 

(d)  Error    Cured    by    Re- 

ducing Judgment,  62. 

(e)  Error  Cured  by  Want 

of  Evidence,  62, 

(f)  Error    Cured    by    Evi- 

dence, 62. 

(g)  Error    as    to   Immate- 

rial     or      Abstract 
Matters,  63. 

(7)  Rulings  as  to  Witnesses,  63. 

(8)  Findings,  63. 

(9)  Submitting  Equity   Case  to 

Jury,  64. 

(10)  Striking  Out  Parties,  64. 

(11)  Misconduct    and    Argument 

of  Counsel,  64. 

(12)  Refusal  of  Continuance,  64. 

(13)  Transfer  of  Cause,  €4. 

e.  Errors  must  Appear  from  Record, 

64. 

(1)  In  General,  64. 

(2)  Error    in     Ruling    on     Evi- 

dence,  65. 

(3)  Error  in  Instructions,  65. 

(4)  Error  in  Argument,  65. 

(5)  Error  in  Rulings    on   Plead- 

ings, 66. 

f.  Errors  not  Available,  66. 

(1)  Questions  not  Raised  Below, 

66. 

(a)  In  General,  66. 

(b)  Sufficiency    of    Plead- 

ings, 66. 

(c)  Reception    and    Rejec- 

tion of  Evidence,  67. 

(d)  Errors  in  Instructions, 
67. 

(e)  Errors  in  Mn dings  or 

Verdict,  68. 

(f)  Rulings  on  Motion  for 

New    Trial,    68. 

(g)  Conduct    of    Court    or 

Counsel,    69. 
(h)  Denial      of      Continu- 
ance, 69. 

(2)  Sufficiency   of    Objection   or 

Exception,  69. 

(a)  Ruling  on  Evidence,  69. 

(b)  Rulings     on     Instruc- 

tions, 69. 

(c)  Time    of   Making   Ob- 

jection, 71. 

(d)  Sufficiency    of    Plead- 

ings, 71. 

(e)  Verdict  or  Findings,  71. 

(f)  Rulings  on  Motion  for 

New   Trial,   72. 

(g)  Sufficiency  of  Decree,  72. 

(3)  Inconsistent      Attitude      on 

Appeal,  72. 

(4)  Error  Caused  by  Appellant,  72. 

(5)  Errors  Favorable   tq   Appel- 

lant, 72. 

(6)  Wrong    Reason    for    Correct 

Decision,  73. 

(7)  Nonsuit  Instead  of  Directed 

Vordict.  7.3. 

(8)  Error  Cured  by  Verdict,  73. 


Court,  73. 

a.  Rendition  of  Final  Judgment  on 

Appeal,  73. 

b.  Granting  New  Trial,  74. 

c.  Remand  for  Additional  Findings,  74. 

d.  Remand   for  Proper  Judgment,   75. 

e.  Modification  of  Judgment,  75.    ^ 

f.  Modification      of      Judgment      of 

Appellate   Court,  75. 

g.  Jurisdiction    of    Appellate    Court 

After  Remand,  75. 
h.  Amendment  of  Pleading^  on  Re- 
mand, 75. 

19.  Effect  of   Appeal,   75. 

20.  Supersedeas  and  Bond,  75. 

a.  In  General,  75. 

b.  Release  of  Sureties,  75. 

c.  Actions  on  Appeal  Bonds,  78. 

21.  Costs,  76. 

22.  Rehearing,   76. 

See  Bastardy,  7;  Certiorari;  Habeas  Cor- 
pu8,  16-20;  Libel  and  Slander,  163, 
164;  Mandamus,  31;  Public  Service 
Commissions,  5-17,  31;  Stare  Decisis, 
4. 

Right  to  appeal  from  disbarment,  see 
Attorneys,  68. 

Review  of  allowance  of  claims,  see  Bank- 
ruptcy, 21. 

In  contempt  proceedings,  see  Contempt, 
18-19. 

Review  of  condemnation  proceedings,  see 
Eminent  Domain,  103-117. 

Suspension  of  appointment  by  appeal,  see 
Executors  and  Administrators,  7. 

Not  triable  by  jury,  see  Jury,  10. 

Costs  on  appeal  in  foreclosure  of  mechan- 
ics' liens,  see  Mechanics'  Liens,  63,  64. 

Appeal  by  city  in  prosecution  under  ordi- 
nance, see  Municipal  Corporations, 
103,  104. 

Review  of  proceedings  on  motion  for  new 
trial,  see  New  Trial,  40. 

Inadequacy  of  remedy,  see  Prohibition,  2. 

Review  of  proceedings  before  Railroad 
Commission,  see  Railroads,  30,  37-47. 

Receivership  pending  bankruptcy  appeal, 
see  Receivers,  5. 

Order  of  removal,  appealability,  see  Re- 
moval of  Causes.  4. 

Remand  for  resentence,  see  Sentence  and 
Punishment,  21. 

In  proceedings  special  assessment,  see 
Taxation,  142,  143. 

In  actions  for  delay  of  telegram,  see  Tele- 
graphs and  Telephones,  36. 

Computation  of  time  for  perfecting  ap- 
peal, see  Time,  1,  2. 

From  order  denying  change  of  venue,  see 
Venue,  8. 

In  proceedings  to  contest  will,  see  Wills, 
133-137. 

1.     RIGHT    OF    APPEAL, 
a.     In   General. 
1.  Bight  Purely  Statutory.    The  right  of 

appeal  in  all  cases  is  a  right  created  by 

statute,  and,  in  the  absence  of  a  statute 

conferring   the   right,   an   appeal   will   not 

lie.     Commonwealth   v.  American  Express 

Co.   (Ky.)   1916E-S75. 


APPEAL  AND  ERROR. 


39 


2.  Persons     Entitled     to     Appeal.     An 

appeal  by  third  persons  from  a  judgment 
annulling  an  election  on  the  prohibition 
question  will  be  dismissed  where  appel- 
lants do  not  allege  and  prove  a  direct 
pecuniary  interest  in  the  suit.  A  future, 
contingent,  and  speculative  interest  con- 
fers no  right  of  action  or  of  appeal.  Alex- 
andria V.  Police  Jury  (La.)  1918A-362. 

(Annotated.) 

3.  Interest    In    Abstract    Question.    A 

city  which  was  made  a  defendant  in  mort- 
gage foreclosure  proceedings,  and  whose 
lien  for  special  assessments  on  the  land 
was  held  superior  to  that  of  the  mort- 
gage, cannot,  because  of  its  interest  in  the 
abstract  question  of  law,  appeal  from  that 
part  of  the  decree  holding  that  the  lien 
of  another  special  assessment  which  the 
city  had  sold  to  another  defendant,  was 
inferior  to  the  mortgage.  Carstens  & 
Earles  v.  Seattle  (Wash.)  1917A-1070. 

Note. 
Eight  of  citizens  or  taxpayers  to  appeal 
as   such  from  judgment  in  proceeding  to 
which  they  are  not  parties.     1918A-365. 

b.     In  Actions  for  Penalty. 

4.  Ky.  St.  §  2569b,  subsec.  2,  makes  the 
transportation  of  intoxicating  liquors  into 
prohibition  territory  a  misdemeanor,  pun- 
ishable by  fine  and  imprisonment.  Cr. 
Code  Prac.  §  347,  gives  the  court  of  ap- 
peals jurisdiction  of  appeals  in  penal  ac- 
tions, and  in  prosecutions  for  misdemean- 
ors, if  the  judgment  be  or  might  have 
been  for  a  fine  exceeding  $50.  Section 
352  declares  that  a  judgment  on  a  verdict 
of  acquittal  of  an  offense  punishable  by 
imprisonment  shall  not  be  reversed,  but 
that  an  appeal  may  be  taken  by  the  com- 
monwealth as  provided  in  section  337, 
when  important  to  the  correct  and  uni- 
form administration  of  the  criminal  law. 
Section  337  prescribes  the  commonwealth's 
appeal  in  felony  cases  before  a  final  judg- 
ment that  the  law  may  be  determined  by 
the  court  of  appeals  before  a  final  trial. 
Section  355  declares  that,  if  the  prosecu- 
tion be  by  penal  action,  the  appeal  shall 
be  similar  in  all  respects  to  appeals  in 
civil  actions.  Section  11  provides  that 
proceedings  in  penal  actions  shall  be  regu- 
lated by  the  code  of  practice  in  civil  ac- 
tions. "Held  that,  as  an  appeal  does  not 
lie  in  a  civil  action  except  from  a  final 
judgment  or  order  therein  which  either 
terminates  the  action  itself  or  operates  to 
divest  a  right  so  that  the  court  after  term 
has  no  power  to'  put  the  parties  in  their 
original  condition,  the  commonwealth's 
penal  action  against  an  express  company 
for  violation  of  the  liquor  statute  to  re- 
cover fines  of  $200,  in  which  there  was  a 
verdict  of  guilty  in  the  amount  of  $100, 
and  in  which  the  judgment  was  set  aside 
and  a  new  trial  granted,  was  never  ter- 


minated, so  that  both  the  commonwealth's 
appeal  and  the  company's  cross-appeal 
would  be  dismissed.  Commonwealth  v. 
American   Express   Co.    (Ky.)    1916E-875. 

(Annotated.) 

c.     Waiver  of  Eight. 

5.  Plaintiff,  by  replying  to  a  new  plea 
supported  by  affidavit  and  certificate  un- 
der the  Baltimore  City  Practice  Act,  and 
by  proceeding  to  trial,  waives  her  right 
of  appeal  from  the  action  of  the  court  in 
permitting  the  withdrawal  of  the  former 
pleas.  Shoop  v.  Fidelity,  etc.  Co.  (Md.) 
1916D-954. 

6.  Effect  of  Paying  Fine.  The  defend- 
ant, a  foreign  corporation,  indicted  for  a 
violation  of  the  statute  prohibiting  an 
unlawful  combination  in  restraint  of  trade, 
sought  an  opportunity  to  change  its  plea 
of  not  guilty  to  guilty  and  receive  sen- 
tence. The  sentence  immediately  imposed 
was  a  fine,  which  was  at  once  paid.  Six 
months  thereafter,  lacking  a  few  days, 
this  appeal  was  taken.  Upon  the  state's 
motion  to  dismiss  the  appeal  it  is  made  to 
appear  that  appellant  paid  the  fine  volun- 
tarily with  the  intention  to  abide  by  and 
comply  with  the  sentence  of  the  court, 
and  hence  the  appeal  should  be  dismissed. 
State  V.  People's  Ice  Co.  (Minn.)  1916C- 
618.  (Annotated.) 

Note. 
Payment    of    fine    in    criminal    case    as 
waiver  of  right  to  appeal.     1916C-619. 

d.     Eight  to  Second  Appeal. 

7.  Failure  to  Perfect  Appeal.  Under 
Rem.  &  B'al.  Wash.  Code,  §  1735,  providing 
that  no  withdrawal  of  an  appeal  and  no 
dismissal  not  on  the  merits  shall  preclude 
any  party  from  taking  another  appeal 
within  the  time  limited,  the  failure  of  an 
appellant  to  perfect  an  appeal  by  giving 
bond  within  the  time  limited  after  the  fil- 
ing of  his  notice  does  not  prevent  him 
from  thereafter  serving  a  new  notice  and 
perfecting  his  appeal  thereunder.  Car- 
stens &  Earles  v.  Seattle  (Wash.)  1917A- 
1070. 

2.     JUEISDICTION    AND   POWERS   OF 
APPELLATE  COURT. 

a.     In  General. 

8.  New  Trial,  Motion  in  Appellate  Court. 
A  petition  in  a  criminal  case  to  rehear  or 
grant  a  new  trial  for  newly  discovered 
evidence  cannot  be  entertained  in  the 
Supreme  Court.  State  v.  Salisbury  Ice, 
etc.  Co.   (N.  Car.)    1916C-728. 

9.  Jurisdiction — Matters  Precluding  Ju- 
risdiction not  Actually  Involved.  In  a 
suit  against  a  city  for  salary  due  a  mar- 
shal, where  none  of  the  objections  to 
Laws  Mo.   1913,  p.   517,  under  which  the 


40 


DIGEST. 

1916C— 1918B. 


city  claimed  to  have  "removed  him,  in- 
volved a  disiucorporation  of  defendant 
municipality  or  its  right  to  exist  as  a  city 
of  the  third  class,  the  supreme  court  was 
not  precluded  from  considering  such  ob- 
jections by  the  rule  that  the  corporate 
existence  of  a  municipal  corporation  can 
only  be  attacked  by  the  state,  through  its 
proper  officers.  Barnes  v.  Kirksville 
(Mo.)   1917C-1121. 

10.  Jurisdiction  of  Supreme  Court — ^Eev- 
enue  Act.  Since  an  action  by  a  township 
against  a  city  for  road  and  bridge  funds 
levied  and  collected  in  the  township  and 
wrongfully  paid  over  by  the  township 
officers  to  the  city  treasurer  is  an  action 
involving  a  construction  of  the  revenue 
laws,  the  Supreme  Liourt  has  jurisdiction 
thereof  on  appeal.  Lamar  Township  v. 
Lamar  (Mo.)  1916D-740. 

b.     Amount  in  Controversy. 

11.  Under  Burns  Ind.  1914,  §§  1389, 
1391,  providing  that  no  appeal  shall  be 
taken  to  the  Supreme  Court  where  the 
amount  in  controversy  does  not  exceed 
$50,  unless  a  constitutional  question  is  in- 
volved, in  which  ease  an  appeal  may  be 
taken  to  the  supreme  court  "for  the  pur- 
pose of  presenting  such  question  only," 
the  supreme  court,  on  appeal  from  a  judg- 
ment for  $25,  can  only  determine  the  con- 
stitutional question  raised,  and  cannot 
consider  whether  a  proper  judgment  has 
been  rendered  on  determining  that  the 
statute  involved  is  constitutional.  Chicago, 
etc.  K.  Co.  V.  Anderson  (Ind.)  1917A-1S2. 

12.  Effect  of  Counterclaim.  Under  Iowa 
Code,  §  4547,  declaring  that  no  appeal  to 
the  district  court  from  the  final  judgment 
of  a  justice  shall  be  allowed  when  the 
amount  in  controversy  does  not  exceed 
$25,  a  suit  in  which  the  petition  claimed 
$20,  which  was  denied  by  answer  counter- 
claiming  for  $6.50,  which  was  denied  by 
plaintiff,  does  not  involve  more  than  $25, 
80  that  the  justice's  judgment  for  $20 
against  defendant  is  not  appealable  to  the 
district  court.  Morrow  v.  Bell  (Iowa) 
1917D-98.  (Annotated.) 

13.  Proceeding  for  Violation  of  Ordi- 
nance. Cal.  Const,  art.  6,  §  4,  proviilo-n 
that  the  supreme  court  shall  have  juris- 
diction on  appeal  from  the  superior  courts 
in  all  criminal  cases,  where  judgment  of 
death  has  been  rendered,  and  that  the  dis- 
trict courts  of  appeal  shall  have  jurisdic- 
tion in  criminal  cases  prosecuted  by  in- 
dictment and  information  in  a  court  of 
record,  except  in  criminal  cases,  where 
judgment  of  death  has  been  rendered. 
Held,  that  where  defendant  electric  com- 
pany was  prosecuted  for  violating  a  city 
ordinance  requiring  the  sprinking  of 
tracks,  and  was  fined  $400,  an  appeal  lay 
to  the  district  court  of  appeal  and  not  to 
the  supreme  court.  People  v.  Pacific  Gas, 
etc.  Co.  (Cal.)  1917A-32'8. 


c.    Federal  Courta. 


14.  Mode  of  Review — Divorce  Decree  in 
Philippine  Islands.  Appeal,  not  writ  of 
error,  is  the  proper  mode  of  reviewing  in 
the  Federal  Supreme  Court  a  decree  of  the 
supreme  court  of  the  Philippine  Islands 
in  a  suit  by  a  wife  for  divorce,  alimony 
pendente  lite,  and  a  division  of  the  con- 
jugal property.  De  La  Rama  v.  De  La 
Rama   (U.  S.)    19170^11. 

d.    Intermediate  Appellate   Courts. 

15.  As  under  N.  Y.  Code  Civ.  Proc. 
S  1346,  as  amended  by  Laws  1914,  c.  351, 
providing  that  an  appeal  may  be  taken 
to  the  Appellate  Division  on  question  of 
law  or  on  the  facts  or  on  both,  from  a 
judgment  on  a  verdict,  as  from  a  judg- 
ment on  a  trial  by  referee  or  court  with- 
out a  jury,  the  appeal  brings  up  the  facts, 
as  well  as  the  exceptions,  in  all  cases, 
a  reversal  by  the  Appellate  Division, 
silent  as  to  its  grounds,  will  in  a  jury 
case,  as  in  others,  import  that  the  findings 
of  fact,  by  whomsoever  made,  were  ap- 
proved by  the  Appellate  Division,  so  that 
Its  reversal  will  be  reviewable  by  the 
Court  of  Appeals  on  that  assumption. 
Middleton  v.  Whitridge  (N.  Y.)  1916C- 
856. 

16.  Power  of  Appellate  Court  to  Make 
New  Findings.  The  power  of  the  Appel- 
late Division,  under  N.  Y.  Code  Civ.  Proc. 
§  1317,  as  amended  by  Laws  1912,  c.  380, 
to  make  new  findings  of  fact  and  a  final 
adjudication  on  the  merits  in  a  case  tri- 
able of  right  by  a  jury,  is  limited  by 
Const,  art.  1,  §  2,  providing,  "The  trial  by 
jury  in  all  cases  in  which  it  has  been  here- 
tofore used  shall  remain  inviolate  forever, 
but  a  jury  trial  may  be  waived  by  the 
parties  in  all  civil  cases  in  the  manner  to 
be  prescribed  by  law,"  so  that  in  such  a 
case  the  ultimate  decision  of  all  disputed 
questions  of  fact  must  be  by  a  jury,  in  the 
absence  of  consent  to  a  decision  of  them  by 
the  court.  Middleton  v.  Whitridge,  (N.  Y.) 
1916C-856. 

17.  A  judgment  of  reversal  by  the 
Appellate  Division  in  a  jury  case,  grant- 
ing a  final  judgment  dismissing  the  com- 
plaint rendered  before  amendment  of 
X.  Y.  Code  Civ.  Proc.  §  1346,  by  Laws 
1914,  c.  351,  is  reviewable  at  least  to  the 
extent  of  determining  whether  it  had 
power  to  dismiss  the  complaint.  Middle- 
ton  V.  Whitridge   (N.  Y.)    1916C-856. 

18.  A  judgment  of  reversal  in  a  jury 
case  by  the  Appellate  DiWsion,  granting 
a  new  trial,  rendered  before  amendment 
of  N.  Y.  Code  Civ.  Proc.  §  1346,  by  Laws 
1914,  c.  351,  would  not  be  reviewable,  un- 
less it  affirmatively  appeared  that  the  find- 
ings of  the  jurv  had  been  affirmed.  Mid- 
dleton V.  Whitridge  (N.  Y.)   1916C-856. 

19.  That  a  judgment  of  the  Appellate 
Division  is  entered  on   its  unanimous  de- 


APPEAL  AND  ERROR. 


41 


cision  that  there  is  evidence  supporting 
or  tending  to  sustan  a  findng  of  fact  or  a 
verdict  not  directed  by  the  court  does 
not,  under  Const,  art.  6,  §  9,  and  N.  Y. 
Code  Civ.  Proc.  §  191,  subd.  4,  deprive  the 
Court  of  Appeals  of  jurisdiction  to  review 
it,  but  that  specific  question  of  law  alone 
is  not  reviewable.  Middleton  v.  Whit- 
ridge  (N.  Y.)   1916C-856. 

20.  An  original  finding  or  decision  by 
the  Appellate  Division,  under  the  author- 
ity of  Code  N.  Y.  Civ.  Proc.  §  1317,  as 
amended  by  Laws  1912,  c.  380,  is  not  a 
decision  that  there  is  evidence  to  sustain 
a  finding  of  the  trial  court  or  a  verdict, 
which,  being  unanimous,  is,  under  Const, 
art.  6,  §  9  and  Code  Civ.  Proc.  §  191,  subd. 
4.  not  reviewable  by  the  Court  of  Appeals. 
Middleton  v.  Whitridge  (N.  Y.)  1916C- 
856. 

21.  The  decision  of  the  Appellate  Divi- 
sion that  there  was  no  evidence  to  sustain 
the  verdict  is  not  one  that  there  was  "evi- 
dence supporting  or  tending  to  sustain  a 
finding  of  fact  or  a  verdict  not  directed 
by  the  court,"  which,  if  unanimous,  is  un- 
der Const,  art.  6,  §  9,  and  N.  Y.  Code  Civ. 
Proc.  §  191,  subd.  4,  not  reviewable  by  the 
Court  of  Appeals.  Middleton  v.  Whit- 
ridge (N.  Y.)   19^16C-856. 

22.  The  judgment  of  the  Appellate  Divi- 
sion, though  unanimous,  being  one  of  re- 
versal, appeal  lies  to  the  Court  of  Appeals 
without  allowance  of  it,  pursuant  to  N.  Y. 
Code  Civ.  Proc.  §  191,  subd.  2.  Middleton 
V.  Whitridge   (N.  Y.)   1916C-856. 

23.  Action  Involving  Freehold.  Where 
a  vendee  assigned  his  contract  as  security 
for  payments  to  be  made  thereon  by  the 
assignee,  who  thereafter  completed  the 
payments  and  took  a  deed  from  the  ven- 
dor, a  suit  by  the  vendee  to  enforce  spe- 
cific performance  against  the  assignee's 
heirs  does  not  involve  a  freehold;  and 
hence  an  appeal  in  such  suit  should  be 
taken  to  the  appellate  court.  Henry  v. 
Britt   (Dl.)   1917C-977. 

24.  Orders  Appealable.  An  order  of  the 
Appellate  Division  which  annuls  an  order 
of  the  Public  Service  Commission  without 
granting  a  rehearing  is  appealable  to  the 
Court  of  Appeals.  People  v.  MeCall 
(N.  Y.)   1916E-1042. 

e.     Constitutional  Questions, 

25.  Constitutional  Question  Unneces- 
sarily Raised.  The  Supreme  Court  on 
appeal  has  jurisdiction  and  M-ill  determine 
the  constitutionality  of  a  law,  although 
the  cause  can  be  decided  upon  other 
grounds,  where  the  constitutional  question 
is  made  in  good  faith  and  relied  on  in  the 
case,  since  by  Tenn.  Acts  of  1907,  c.  82, 
establishing  and  defining  the  powers  of 
the  Court  of  Civil  Appeals,  jurisdiction  of 
that  court  is  defeated  by  the  presence  of 
a    constitutional    question.     Memphis    St. 


R.     Co.    V.    Rapid    Transit    Co.     (Tenn.) 
1917C-1045. 

3.     APPEALABLE    JUDGMENTS    AND 
ORDERS. 

a.    In  General. 

26.  Overruling  of  Demurrer.  An  order 
overruling  a  demurrer  to  the  complaint  on 
the  ground  that  it  failed  to  state  a  cause 
of  action  is  appealable.  Woods  v.  Rock 
Hill  Fertilizer  Co.  (S.  Car.)  1917D-1149. 

27.  Nonsuit.  The  rulings  and  orders  on 
motions  for  nonsuit  and  for  the  direction 
of  a  verdict  are  not  ordinarily  appealable 
until  after  final  judgment.  Woods  v.  Rock 
Hill  Fertilizer  Co.    (S.  Car.)    1917D-1149. 

28.  On  appeal  from  the  overruling  of 
motions  for  a  nonsuit  and  for  the  direc- 
tion of  a  verdict,  not  ordinarily  appeal- 
able until  after  final  judgment,  and  from 
an  appealable  order  overruling  a  demurrer, 
the  matters  involved  will  be  determined, 
in  view  of  the  fact  that  the  reason  of  the 
rule  against  appeals  from  orders  before 
final  judgment  is  to  prevent  unnecessary 
delay  in  the  trial  of  causes.  Woods  v. 
Rock  Hill  Fertilizer  Co.  (S.  Car.)  1917D- 
1149. 

29.  Prosecution  for  Nuisance.  A  pro- 
ceeding by  indictment  for  maintaining  a 
nuisance  under  the  Canadian  statute 
(R.  S.  c.  146,  §§  222,  223)  providing  that 
a  person  convicted  thereunder,  though 
liable  to  fine  or  imprisonment,  "shall  not 
be  deemed  to  have  committed  a  criminal 
offense,"  is  a  civil  and  not  a  criminal  case. 
Accordingly  the  Privy  Council  may  enter- 
tain an  appeal  in  such  a  proceeding  with- 
out determining  whether  the  Canadian 
statutes  (R.  S.  c.  146,  §  1025)  prohibiting 
appeals  from  the  judgment  of  the  Domin- 
ion courts  in  criminal  cases  is  an  infringe- 
ment on  the  royal  prerogative  to  hear 
appeals  in  council.  Toronto  R.  Co.  v.  Rex 
(Eng.)   1918A-991. 

30.  Correction  of  Record.  The  action  of 
the  lower  court,  on  an  application  for  cor- 
rection of  the  record  and  in  reference  to 
the  changes  requested,  is  final  and  not 
reviewable  on  appeal.  Dutton  v.  State 
(Md.)   1916C-89. 

31.  Order  Revoking  License.  The  power  ► 
of  the  district  court  under  Laws  Utah  1911, 
c.  106,  §  10,  to  revoke  liquor  licenses  in 
cities  of  the  first  and  second  classes,  as  is 
its  power  under  section  3,  to  order  their 
issuance  therein,  is  administrative,  so  that, 
in  the  absence  of  provision  in  the  statute 
therefor,  appeal  does  not  lie  from  its  order, 
ruling,  or  judgment  revoking  a  license. 
In  re  Grant  (Utah)  1917A-1019. 

(Annotated.) 
Note. 

Right  to  and  effect  of  judicial  review 
of  revocation  of  liquor  license.  1917A- 
1024. 


42 


DIGEST. 

19160— 1918B. 


b.     In    Administration    or    Probate    Pro- 
ceedings. 

32.  Eevocation  of  Letters.  Where  the 
public  administrator  has  no  superior  right 
to  appointment  as  administrator  with  the 
will  annexed,  no  appeal  will  be  allowed 
from  the  discretionary  order  revoking  his 
letters.  Brinckwirth  v.  Troll  (Mo.)  1918B- 
1056.  (Annotated.) 

c.     In    Contempt   Proceedings. 

33.  Questions  of  Fact.  The  decision  of 
the  trial  tribunal  on  the  facts  in  a  pro- 
ceeding for  contempt  is  not  reviewable  on 
a  writ  of  error.  In  re  Independent  Pub. 
Co.  (Fed.)  1917C-1084. 

d.     In  Partition  Suits. 

34.  In  an  action  for  partition,  a  judg- 
ment against  appellants'  claim  of  an  in- 
terest in  the  land  is  final  as' to  them  and 
appealable,  though  interlocutory  as  to  par- 
ties adjudged  to  have  an  interest.  Albany 
Hospital  V.  Albany  Guardian  Society 
(N.  Y.)  19161^-1195. 

e.     Granting  or  Refusing  New  Trial. 

35.  A  motion  for  a  new  trial  being  ad- 
dressed to  the  court's  discretion,  a  writ  of 
error  will  not  lie  to  review  the  court's  de- 
cision on  it,  in  the  absence  of  an  abuse  of 
discretion.  Philadelphia,  etc.  B.  Co.  v. 
Gatta  (Del.)   1916E-1227. 

36.  Denial  of  New  Trial.  The  action  of 
the  lower  court  in  overruling  a  motion  for 
a  new  trial  is  not  reviewable  by  the  Court 
of  Appeals.  Dutton  v.  State  (Md.)  1916C- 
89. 

f.     In   Attachment   Proceedings. 

37.  Dissolution  of  Attachment.  Mass. 
Kev.  Jjaws,  c.  167,  §  110,  as  amended  by 
St.  1909,  c.  190,  providing  a  summary 
hearing  for  relief  against  excessive  or 
unreasonable  attachment,  prescribes  a  pro- 
ceeding incidental  to  the  action  in  which 
the  attachment  is  made,  and  though  the 
writ  had  not  been  entered  in  court  when 
the  petition  for  relief  was  filed,  the  action 
was  pending,  so  that  the  superior  court's 
order,  dissolving  the  attachment,  is  an  in- 
terlocutory order  in  that  action,  from 
which  no  appeal  can  be  entered  in  the 
supreme  judicial  court.  Richardson  v. 
Greenhood   (Mass.)    1918A-515. 

g.     In  Criminal  Cases. 

38.  Denial  of  Motion  to  Strike  Out 
Judgment.  The  action  of  the  lowor  court 
on  a  motion  to  strike  out  the  judgment 
and  sentence  is  reviewable  by  the  Court 
of  Appeals.  Dutton  v.  State  (Md.)  1916C- 
89. 

h.     In  Habeas  Corpus  Proceedings. 

39.  The  question  of  the  jurisdiction  of 
a    court-martial    is    open    to    inquiry    on 


habeas  corpus  issued  from  a  court  having 
authority  to  issue  that  writ;  and  the  ac- 
tion of  such  court  in  the  premises  may  be 
reviewed  by  this  court  in  the  exercise  of 
the  jurisdiction  conferred  by  article  94 
of  the  constitution.  State  v.  Long  (La.) 
1917B-240. 

4.     PARTIES     TO     APPELLATE     PRO- 
CEEn>INGS. 

40.  Administrator  With  Will  Annexed. 
bpon  appeal  from  a  judgment  of  the  dis- 
trict court  refusing  to  admit  a  will  to 
probate,  the  administrator  with  the  will 
annexed  is  entitled  to  bring  a  writ  of 
error  and  is  the  only  necessary  party 
plaintiff  in  error.     Bell  v.  Davis   (Okla.; 

.1917C-1075.  (Annotated.) 

5.     FORM    OF   APPEAL. 

41.  Omission     of     Prayer     for     Relief. 

Though  Conn.  Gen.  St.  1902,  §  798,  pro- 
vides a  form  of  appeal  with  which  every 
appeal  shall  be  substantially  in  accord- 
ance, which  contains  a  prayer  for  relief, 
an  appeal  otherwise  sufficient  is  not 
fatally  defective  through  omission  of 
prayer  for  relief.  Douthwright  v.  Champ- 
lin   (Conn.)    1917E-512. 

6.     NOTICE  OF  APPEAL. 

a.     Form  and  Contents. 

•42.  Surplusage.  On  appeal  from  an 
order  of  the  Appellate  Division,  modify- 
ing and  affirming  an  order  of  the  Special 
Term,  the  mere  fact  that  the  notice  of 
appeal  stated  that  an  interlocutory  order 
of  the  Special  Term  was  also  to  be  re- 
viewed is  a  harmless  irregularity,  for  the 
right  to  review  that  order  followed  from 
the  right  to  review  the  order  of  the  Appel- 
late Division  affirming  it.  Matter  of  Hein- 
sheimer  (N.  Y.)   1916E-384. 

b.     On  Whom  Served. 

43.  Under  Cal.  Code  Civ.  Proc.  §§  578, 
579,  providing  that  judgment  may  be  for 
or  against  one  or  more  of  several  defend- 
ants, one  of  several  joint  tort-feasors, 
against  all  of  whom  judgment  has  been 
rendered,  may  be  granted  a  new  trial 
without  it  being  granted  to  the  others,  so 
that  some  of  them,  moving  for  new  trial, 
need  not  serve  on  the  others  notice  there- 
ot,  or,  appealing  from  the  denial  thereof, 
notice  of  the  appeal.  Fearon  v.  Fodera 
(Cal.)  1916D-312. 

44.  Defendants  appealing  from  a  judg- 
ment quieting  title  in  plaintiff  and  award- 
ing him  certain  damages  against  each 
defendant  need  not  give  notice  of  their 
appeal  to  a  defendant  against  whom  judg- 
ment was  rendered  by  default,  as  he  can- 
not be  affected  by  reversal  of  the  judgment 
against  them.  Fearon  t.  Fodera  (Cal.) 
1916D-312. 


APPEAL  AND  ERROR. 


43 


45.  Defendants  as  to  whom  the  judg- 
ment is  silent,  but  who  by  their  answers 
have  disclaimed  any  interest  in  the  land 
in  suit,  cannot  be  affected  by  reversal  of 
judgment  against  other  defendants,  and 
therefore  need  not  be  served  as  adverse 
parties  with  notice  of  their  appeal. 
Fearon  v.  Fodera   (Cal.)   1916I>-312. 

7.     PERFECTION  OF  APPEAL, 

46.  Time    When    Appeal    is    Perfected. 

An  appeal  is  perfected  at  the  time  the 
transcript  and  assignment  of  errors  are 
filed.  Cincinnati,  etc.  B.  Co.  v.  McCul- 
lom  (Ind.)  1917E-1165. 

8.     TIME  OF  APPEAL, 
a.     In  General. 

47.  Burns'  Indiana  Annotated  St.  1914, 
§  286,  providing  that,  whoever  has  a 
claim  for  personal  injuries  obtains  a 
judgment,  and  who  dies  pending  the 
appeal  or  before  a  new  trial  after  re- 
versal, his  claim  may  be  prosecuted  by  his 
personal  representatives,  must  be  con- 
strued to  mean  that  the  action  survives  to 
the  personal  representative  of  a  judgment 
piaintiff,  dying  while  awaiting  an  appeal 
or  during  the  continuance  of  the  appeal, 
for  the  words  "pending  such  appeal"  must 
mean  during  the  time  before  appeal,  and 
while  an  appeal  is  impending,  and  the 
word  "pending"  means  during  the  time 
intervening  before,  awaiting,  until,  and 
the  statute,  so  construed,  is  not  unconsti- 
tutional as  class  legislation.  Cincinnati, 
etc.  R.  Co.  v.  McCullom  (Ind.)  1917E- 
1165. 

48.  Under  Wash.  Rem.  &  Bal.  Code, 
§  1720,  providing  that  no  party  can  appeal 
from  any  judgment  already  appealed 
from,  more  than  ten  days  after  service  of 
the  notice  of  the  former  appeal  upon  him, 
the  perfecting  of  an  appeal  by  a  party 
who  had  no  interest  in  the  controversy 
entitling  it  to  appeal,  and  whose  appeal 
was  thereafter  dismissed  on  that  ground, 
does  not  prevent  an  interested  party  from 
appealing  more  than  ten  days  after  the 
notice  of  the  former  appeal.  Carstens  & 
Earles  v.  Seattle  (Wash.)   1917A-1070. 

49.  Under  Cal.  Code  Civ.  Proc.  §  941b, 
providing  that,  as  an  alternative  method 
of  appeal,  the  appellant  may  file  with  the 
flerk  of  the  court  below  a  notice  stating 
that  he  appeals,  identifying  the  judgment 
with  reasonable  certainty,  and  requiring 
notice  of  appeal  to  be  filed  within  60  days 
from  notice  of  entry  of  judgment,  and 
where  no  notice  of  entry  is  given,  within 
6  months  after  entry  of  judgment,  a  notice 
filed  with  the  clerk  31  days  after  judg- 
ment is  sufficient.  Martin  v,  Becker  (Cal.) 
1916D-171. 

50.  Premature  Appeal.  Where  all  par- 
ties   to    a   suit    enter   into    an    agreement, 


which  is  entered  upon  the  minutes  of  the 
court,  to  the  effect  that  the  judge  may 
decide  the  case  in  chambers,  during  the 
vacation  of  the  court,  "and  shall  grant 
an  order  of  appeal,  both  suspensive  and 
devolutive,  to  either  party,  fixing  the  re- 
turn day  and  bond  for  either  appeal,  to 
have  the  same  effect  as  if  done  in  open 
court,"  and  the  judgment  is  rendered,  the 
order  of  appeal  granted,  and  the  appeal 
lodged  in  this  court  in  accordance  there- 
with, such  appeal  will  not  be  dismissed 
on  the  ground  that  it  was  taken  prema- 
turely and  before  the  expiration  of  the 
delay  within  which,  ordinarily,  a  motion 
for  new  trial  may  be  filed,  the  terms  of 
the  agreement  authorizing  the  presumption 
that  the  right  to  file  such  motion  was  in- 
tended to  be  waived.  Succession  of  Lefort 
(La.)  1917E-769. 

b.     When  Time  Begins  to  Bun. 

51.  The  time  allowed  for  appeal  is  com- 
puted from  the  entry  of  the  decree,  and, 
though  service  of  the  notice  of  appeal  was 
not  acknowledged  until  more  than  six 
m.onths  after  the  judge  had  filed  an  opin- 
ion, the  appeal  will  not  be  dismissed  where 
less  than  six  months  had  elapsed  after 
the  entry  of  the  decree.  Des  Moines  Sav- 
ings Bank  v.  Arthur  (Iowa)  1916C-498. 

9.     RECORD  ON  APPEAL. 

a.  What  Constitutes  Record. 

52.  Exceptions.  Under  Wash.  Rem.  & 
Bal,  Code,  §  395,  providing  what  shall  be 
part  of  the  record,  exceptions  shown  by 
the  record  to  have  been  in  time  allowed 
by  an  order  of  the  court,  made  a  part  of 
the  transcript,  and  certified  therein  by  the 
clerk,  cannot  be  stricken.  Perine  Machin- 
ery Co.  V.  Buck  (Wash.)  1917C-341. 

b.  Transcript  and  Abstract. 

53.  Supplying  Deficiency  in  Abstract. 
The  transcript  of  the  reporter's  notes  will 
rot  be  ordered  to  be  certified  to  the  appel- 
late court  to  supply  evidence  omitted  from 
the  abstract,  as  the  office  of  the  transcript 
is  to  settle  disputes  as  to  whether  the 
record  is  as  contained  in  the  abstracts  of 
the  appellant  or  the  appellee.  Ottumwa 
V.  McCarthy  Improvement  Co.  (Iowa) 
1917E-1077. 

e.     Settlement  and  Certification. 

54.  Manner    of    Supplementing    Eecord. 

If  there  is  any  doubt  or  obscurity  as  to 
the  reason  for  the  court's  ruling  in  refusing 
to  permit  the  witness  to  be  recalled,  the 
proper  method  is  to  make  the  matter  clear 
by  a  certiorari  or  remand,  so  that  the  trial 
judge  may  state  whether  he  merely  exer- 
cised his  discretion  or  decided  as  "he  did 
for  want  of  power  to  rule  otherwise.     Me- 


Donald 
1063. 


V.  McLendon     (N.   Car.) 


d.     Amendment  of  Record. 

55.  Issue  as  to  Occurrence  at  Trial. 
Where  an  issue  of  fact  is  raised  as  to  what 
occurred  on  the  trial,  the  proper  procedure 
is  to  ask  for  a  correction  of  the  appeal  in 
the  Supreme  Court  of  Errors,  under  Conn. 
Gen.  St.  1902,  §801,  and  what  the  facts 
were  must  be  proved  on  an  issue  of  fact 
raised,  as  provided  in  the  statute.  Barber 
V.  Morgan  (Conn.)  1916E-102. 

56.  After  Decision.  After  the  case  has 
been  submitted  and  an  opinion  filed,  the 
appellant,  who  has  lost  on  an  imperfect 
appeal,  wiU  not  be  permitted  to  file  a  rec- 
ord which  was  not  a  part  of  the  record 
when  the  case  was  disposed  of;  though  a 
different  rule  prevails  when  a  motion  is 
made  by  appellee  to  file  an  additional  rec- 
ord after  an  opinion  has  been  handed 
down,  and  before  the  petition  for  rehearing 
has  been  disposed  of.  Myers  v.  Saltry 
(Ky.)   1916B-1134. 

e.     Conclusiveness  of  Eecord. 

57.  Conflict  Between  Case  Made  and 
Record.  When  the  record  and  ease  con- 
flict, the  former  controls.  McDonald  v. 
McLendon  (N.  Car.)  1918A-1063. 

58.  Effect  of  Omission  in  Record.  On  a 
question  of  notice  to  a  contractor  of  a 
city  as  to  duty  to  make  repairs,  where  the 
abstract  does  not  contain  all  the  evidence, 
it  will  be  presumed  that  the  omitted  evi- 
dence sustained  a  ruling  of  the  trial  court 
that  there  was  notice.  Ottumwa  v.  Mc- 
Carthy Improvement  Co.  (Iowa)  1917E- 
1077. 

10.     BILL  OF  EXCEPTIONS, 
a.     In  General. 

59.  Necessity  of  Bill  of  Exceptions. 
Facts  which  occur  in  the  trial  of  a  case  can 
only  be  brought  to  this  court  for  review 
by  a  bill  of  exceptions  certified  by  the  trial 
judge.  Florida  East  Coast  K.  Co.  v.  Car- 
ter (Fla.)    1916E-1299. 

60.  Conclusiveness.  One  convicted  of 
crime,  who  accepts  a  bill  of  exceptions  as 
qualified  by  the  trial  court,  is  bound  by  the 
qualification.  Mason  v.  State  (Tex.) 
1917D-1094. 

61.  Establishment  After  Death  of  Judge. 
Where  a  murder  case  was  tried  August  25, 
1914,  and  the  bill  of  exceptions  was  in- 
dorsed "Presented"  on  November  21,  1914, 
by  the  presiding  judge,  who  died  January 
3,  1915,  without  signing  the  same  as  a  bill 
of  exceptions,  and  it  was  stipulated  that 
the  bill  presented  truly  stated  the  points 
for  decision,  together  with  the  facts  in  the 
case,  it  will  be  established  on  motion. 
Brindley  v.  State  (Ala.)  1916E-177. 


DIGEST. 

1916C— 1918B. 
1918A-  62.  Refusal  to  Approve.    The  court  did 

not  abuse  his  discretion  in  refusing  to 
approve  the  exceptions  to  the  conclusions 
of  fact  filed  by  the  defendants  in  error, 
upon  which  error  is  assigned  in  the  cross- 
bill of  exceptions.  National  Bank  v. 
Amoss  (Ga.)   1918A-74. 


b.     Inclusion  of  All  the  Evidence. 

63.  Affidavits.  Affidavits  purporting  to 
show  misconduct  of  counsel,  to  be  avail- 
able on  appeal,  must  be  included  in  the 
bill  of  exceptions.  Bursow  v.  Doerr 
(Neb.)  1916C-248. 

64.  Remarks  of  Prosecuting  Attorney. 
Improper  remarks  by  the  prosecutor  can- 
not be  considered  on  appeal,  when  not 
preserved  by  bill  of  exceptions.  Byan  v. 
People  (Colo.)  1917C-605. 

c.     Correction. 

65.  Evidence  held  sufficient  to  justify  the 
amendment  of  the  bill  of  exception  to  con- 
form with  the  reporter's  stenographic 
notes.  Harris  v.  State  (Wyo.)  1917A- 
1201. 

66.  Use  of  Stenographer's  Notes.  Under 
Wyo.  Comp.  St.  1910,  §  942,  requiring  the 
court  reporter  to  attend  court,  take  full 
stenographic  notes  of  cases  on  trial,  testi- 
mony, admissions,  objections,  rulings,  and 
exceptions,  and  to  preserve  his  notes,  sec- 
tion 945,  making  the  court  reporter  the 
judge's  stenographer,  and  section  944, 
making  his  transcripts,  when  certified  to 
by  the  clerk,  prima  facie  evidence  of  the 
matters  therein,  his  notes  are  such  a  part 
of  the  record  that  they  may  be  received  in 
evidence  to  correct  the  bill  of  exceptions. 
Harris  v.  State   (Wyo.)   1917A-1201. 

d.     Inclusion  of  Matter  by  Reference. 

67.  Incorporation  of  Transcript  by  Ref- 
erence. That  the  transcript  was  "referred 
to  and  made  a  part  of  a  particular  excep- 
tion" is  not  sufficient  to  give  the  transcript 
standing  as  part  of  the  bill  of  exceptions 
so  as  to  entitle  the  contents  thereof  to 
supersede  the  statement  made  in  the  bill. 
First  National  Bank  v.  Bertoli  (Vt.) 
1917B-590. 

6S.  Reference  to  Record  for  Facts.    A 

bill  of  exceptions,  stating  that  plaintiff' 
seasonably  objected  to  the  admission  of 
certain  testimony  and  when  it  was  ad- 
mitted noted  his  exceptions,  that  he  offered 
certain  testimony  which  the  presiding  jus- 
tice excluded,  and  duly  excepted,  and  that 
he  requested  the  presiding  justice  to  give 
certain  instructions  which  were  refused, 
and  duly  excepted,  with  no  other  state- 
ment of  what  the  admitted  or  excluded 
evidence  was  and  nothing  to  show  the 
relevancy,  materiality,  or  comj^etency 
thereof  or  the  appropriateness  of  the  in- 


APPEAL  AND  ERROR. 


45 


structions,  did  not  present  separately  each 
issue  of  law  in  the  clear,  distinct,  sum- 
mary manner  required  by  Me.  Rev.  St. 
c.  79.  §  55,  which  provides  that  a  party 
aggrieved  by  any  of  the  opinions,  direc- 
tions, or  judgments  of  the  presiding  jus- 
tice may  present  written  exceptions  in  a 
summary  manner,  which  if  found  true  shall 
be  allowed  and  signed  by  the  justice, 
1  bough  the  record  of  the  evidence  was 
made  a  part  of  the  bill  of  exceptions,  since, 
while  this  is  not  improper,'  the  reference 
to  the  evidence  or  the  incorporation  of 
the  evidence  as  a  part  of  the  bill  cannot 
take  the  place  of  a  succinct  and  summary 
statement  of  the  specific  grounds  of  excep- 
tion in  the  body  of  the  bill  itself.  Dennis 
V  Waterford  Packing  Co.  (Me.)  1917D- 
788. 

69.  Incorporating  Instructions  by  Refer- 
ence. A  bill  of  exceptions  referring  to 
.purported  instructions  by  number  only, 
where  no  numbered  instructions  appeared 
in  the  record,  did  not  sufficiently  identify 
the  instructions  sought  to  be  reviewed. 
Harris  v.  Bremerton  (Wash.)  1916€-160. 

70.  Identification  of  Evidence.  To  make 
the  evidence  in  an  action  at  law  part  of 
the  record,  it  is  only  necessary  to  use  such 
means  of  identification  in  the  bills  of  ex- 
ception and  orders  as  make  the  adoption 
thereof  reasonablv  certain.  Wilson  v. 
Shrader  (W.  Va.)  1916D-886. 

11.     ASSIGNMENTS   OF  ERROB. 

a.  In  General. 

71.  Denial  of  New  Trial.  Error  cannot 
be  assigned  on  the  overruling  of  a  motion 
for  new  trial.  Parsons  v.  Trowbridge 
(Fed.)    1917C-750. 

b.  Sufficiency. 

72.  Erroneous  Assumption.  Where  the 
allegations  of  a  complaint  and  the  findings 
of  fact  were  materially  different  in  sev- 
eral particulars,  assignments  of  error  as- 
suming that  the  record  showed  that  the 
allegations  of  the  complaint  had  been 
found  proven  are  improper.  Walsh  v. 
Bridgeport   (Conn.)  1917B-318, 

73.  Assignments    of    Error    Insufficient. 

Assignments  of  error  held  not  available 
upon  well-established  rules  of  practice. 
State  V.  Chavez  (N.  Mex.)  1917B-127. 

74.  Definiteness.  An  assignment  that 
the  trial  court  erred  in  sustaining  objec- 
tions to  questions  to  a  witness  concerning 
a  certain  person  is  too  general  to  raise  any 

•  question  for  review.     State  v.  Von  Klein 
(Ore.)   1916C-1054. 

75.  General  Assignment.  An  assignment 
of  error  that  "the  court  erred  in  entering 
judgment  for  the  plaintiffs,  to  which  the 
defendant  then  and  there  excepted,"  is  in- 
sufficient to  raise  any  question  for  review 


by  the  appellate  court.     Philadelphia  Casu- 
alty Co.  V.  Fechheimer  (Fed.)  1917D-64. 

76.  Particularity.  An  assignment  of 
error  complaining  that  the  court  erred  in 
not  holding  a  statute  unconstitutional,  but 
not  pointing  out  any  grounds,  is  too  gen- 
eral for  consideration.  State  v.  Howse 
(Tenn.)   1917C-1125. 

77.  Form — Joinder  of  Several  Assign- 
ments— Omission  of  References  to  Record. 
An  omnibus  exception  or  assignment  of 
error  covering  numerous  items  or  points, 
for  an  understanding  of  which  the  court 
must  search  through  the  abstract  or  tran- 
script, will  not  be  considered.  Davidson 
Bros.  Co.  V.  Des  Moines  City  R.  Co.  (Iowa) 
1917C-1226. 

78.  Consideration  .Together.  Where  an 
instruction  is  considered  in  connection 
with  other  instructions  upon  the  same  sub- 
ject, or  the  entire  charge,  and  is  found 
to  be  free  from  the  defects  complained  of 
ir  the  assignment  of  error,  the  assignment 
will  fail.  Robinson  v.  State  (Fla.)  1917D- 
506. 

c.     Cross-assignments. 

79.  Cross-errors.  A  defendant  in  error, 
who  did  not  himself  institute  proceedings 
in  error,  cannot  in  the  appellate  court  go 
beyond  supporting  the  judgment  and  op- 
posing the  assignments  of  error  by  the 
adverse  party.  Philadelphia  Casualty  Co. 
V.  Fechheimer  (Fed.)  1917D-64. 

80.  Errors  Assigned  by  Appellee.  On  an 
appeal  by  plaintiff,  errors  assigned  by  de- 
fendant's counsel  cannot  be  considered. 
Niebalski  v.  Pennsylvania  R.  Co.  (Pa.) 
1917C-632. 

81.  Necessity  of  Cross-assignments  of 
Error.  A  defendant  who  does  not  appeal 
and  who  does  not  by  cross-assignment  in 
his  brief  ask  for  a  modification  of  the 
judgment,  as  authorized  by  Mont.  Rev. 
Codes,  §  7118,  cannot  on  the  appeal  of 
plaintiff  complain  of  the  judgment.  Will- 
iams V.  Johnson  (Mont.)  1916I)-595. 

12.     DISMISSAL  OF  APPEAL, 
a.     Time  for  Motion. 

82.  Notice  of  Motion.  Under  Rem.  & 
Bal.  Wash.  Code,  §  1733,  providing  that 
motion  to  dismiss  an  appeal  shall  be  made 
at  such  time  as  shall  be  fixed  by  the  rules 
of  court  and  under  supreme  court  rules 
18,  19  (132  Pac.  xiii,  xiv),  a  motion  to 
strike  the  transcript  and  dismiss  the  ap- 
peal, on  the  ground  that  no  statement  of 
facts  had  been  brought  up  and  no  excep- 
tions taken  below,  cannot  be  considered, 
where  not  made  on  ten  days'  notice.  City 
Sash,  etc.  Co.  v.  Bunn   (Wash.)   1918B-3i. 

b.     Grounds  for  Dismissal. 

83.  Unauthorized  Appeal.  An  appeal 
which  is  not  authorized  by  law  will,  upon 


46 


DIGEST. 

1916C— 1918B. 


proper  motion,  be  dismissed  by  this  court. 
Oklahoma  City  v.  Tucker  (Okla.)  1917D- 
984. 

84.  Timeliness  of  Proceedings.  Where 
judgment  in  an  election  contest  appealed 
from  was  rendered  April  18th,  and  April 
28th  the  transcript  was  filed  with  the  clerk 
of  the  court  of  appeals,  and  April  19th  a 
regular  supersedeas  bond  was  executed  be- 
fore the  clerk  of  the  circuit  court,  the 
obligee  being  the  appellee,  but,  after  dis- 
covery of  the  fact  that  the  bond  was  not 
properly  executed  to  the  clerk  of  the  cir- 
cuit court,  and  on  the  same  day  the  record 
was  filed  in  the  court  of  appeals,  another 
bond  was  executed  in  which  the  clerk  of 
the  circuit  court  was  named  as  obligee,  the 
supersedeas  bond  will  not  be  discharged 
and  the  appeal  dismissed  because  the  bond 
was  not  executed  as  provided  by  Ky.  St. 
§  1596a,  subsec.  12,  providing  that  either' 
party  to  an  election  contest  may  appeal 
from  the  judgment  of  the  circuit  court  to 
the  court  of  appeals  by  giving  bond  to  the 
clerk  of  the  circuit  court  with  good  surety, 
conditioned  for  the  payment  of  all  costs 
and  damages,  etc.,  and  by  filing  the  record 
in  the  clerk's  office  of  the  court  of  appeals 
within  thirty  days  after  final  judgment  in 
the  circuit  court.  Johnson  v.  Little  (Ky.) 
1918A-70. 

85.  Entitling  Papers.  Iowa  Code,  §  4108, 
providing  that  on  appeal  the  cause  shall  be 
docketed  as  in  the  court  below,  being  rem- 
edial, is  simply  directory,  and  the  fact  that 
the  abstract  designated  all  parties  ex«ept 
plaintiff  as  defendants  or  appellees,  where- 
as, some  were  defendants  in  cross-petitions 
and  not  in  the  main  action,  is  not  ground 
for  dismissal,  where  the  relation  of  the  par- 
ties to  the  case  was  disclosed.  Des  Moines 
Savings  Bank  v.  Arthur  (Iowa;  1916C-498. 

86.  Mandate  of  Court  Below  Executed. 

A  writ  of  error  from  the  Federal  Supreme 
Court  to  review  a  judgment  of  reversal 
with  instructions  to  dismiss  the  complaint 
which  a  circuit  court  of  appeals  had  en- 
tered on  rehearing  after  it  had  recalled  its 
mandate,  previously  issued,  ordering  a  new- 
trial,  and  had  set  aside  the  judgment  of 
the  court  below,  need  not  be  dismissed, 
either  because  the  trial  court  had  thereto- 
fore entered  judgment  on  the  original  man- 
date, and  bad  adjourned  for  the  term  with- 
out any  application  made  to  recall  such 
judgment,  or  any  writ  of  error  to  review 
such  judgment  sought,  or  because  the  de- 
fendants in  error  in  the  circuit  court  of 
appeals,  on  whose  petition  the  rehearing 
was  granted,  had  waived  therein  any  right 
to  a  new  trial,  and  consented  that  the  case 
be  disposed  of  one  way  or  the  other.  Thorn- 
sen  V.  Cayser  (U.  S.)  1917I)-322. 

c.     Questions  Considered. 

87.  Motion  to  Dismiss — Merits  not  Con- 
sidered.    "Whether  an  order  of  the  court  of 


chancery,  disbarring  a  solicitor  in  chancery 
from  practicing  as  solicitor  and  counselor 
in  the  court  of  chancery,  is  sustainable  as 
an  order  suspending  him  from  practicing 
in  the  court  of  chancery  until  the  supreme 
court  has  acted  under  the  statute,  will  not 
be  considered  on  a  motion  to  dismiss  an 
appeal  from  the  order,  but  the  question  can 
be  dealt  with  only  on  the  appeal  itself  in 
determining  whether  the  order  shall  be 
affirmed,  reversed,  or  modified.  In  re  Hahn 
(N.  J.)  1918B-830. 

See  2,  e,  supra,  as  to  right  to  second  ap- 
peal after  dismissal  of  first  for  failure  to 
perfect. 

d.    Reinstatement  of  Appeal. 

88.  Necessity  of  Showing  Merits.  Upon 
a  motion  to  reinstate  an  appeal,  upon  the 
ground  that  the  order  of  dismissal  was  en- 
tered against  appellant  through  his  mis- 
take, inadvertence,  surprise,  or  excusable 
neglect,  appellant  must  show  apparent 
merit  in  the  appeal.  Hilmen  v.  Nygaard 
(N.  Dak.)  1917A-282. 

13.     HEARING  OF  APPEAL. 

89.  Preference  on  Docket — Public  Inter- 
est Involved.  The  appeal  of  citizens  and 
taxpayers  of  a  parish  from  judgment  an- 
nulling, at  suit  of  a  city,  an  election  vot- 
ing prohibition  in  the  parish,  involves  a 
public  interest,  entitling  it  to  be  trans- 
ferred to  the  preference  docket.  Alexan- 
dria V.  Police  Jury  (La.)  1918A-362. 

14.     EXAMINATION  OF  CASE  ON  AP- 
PEAL. 

a.     What  is  Brought  Up  on  Appeal. 

(1)     Matters  not  in  Record. 

90.  Evidence  not  in  Record.  Where  the 
record  is  without  a  transcript  of  the  evi- 
dence, the  only  question  on  appeal  is 
whether  the  pleadings  support  the  judg- 
ment.    Myers  v.  Saltry  (Ky.)  1916E-1134. 

91.  Evidence  not  in  Record.  A  verdict 
cannot  be  reviewed  in  the  absence  of  the 
evidence.  State  v.  Haffer  (Wash.)  1917E- 
229. 

92.  Question  not  Raised  at  Trial.     In  a 

prosecution  for  conspiracy,  where  the  de- 
fense that  defendants  had  been  entrapped 
by  a  detective  into  the  commission  of  the 
alleged  conspiracy  was  not  raised  or  ruled 
upon  at  the  trial,  it  cannot  be  considered 
on  appeal.  Hummelshime  v.  State  (Md.) 
1917E-1072. 

(2)     Rulings  on  Evidence. 

93.  Necessity  of  Offer  of  Proof.    In  an 

action  for  the  death  of  plaintiff's  intestate 
while  employed  in  handling  switches  at  de- 
fendant's electric  lighting  station,  where 
a   witness   testified   on  direct  examination 


APPEAL  AND  EKROR. 


47 


that  the  station  and  the  apparatus  therein 
vere  safe  if  used  with  reasonable  care,  and 
■where  plaintiff  makes  no  offer  to  prove  that 
the  association,  of  which  the  witness  was  a 
member  had  taken  any  position  as  to  the 
safety  of  a  method  of  wiring  by  which  the 
blade's  of  the  switches  would  be  alive  when 
down,  the  exclusion  of  cross-examination 
as  to  the  association's  position  thereon  will 
not  be  reveiwed.  McCarthy's  Admr.  v. 
Northfield  (Vt.)  1918A-943. 

(3)  Rulings  on  Instructions. 

94.  Construction  as  Whole.  Instructions 
must  be  construed  as  a  whole,  and  the  ap- 
pellate court  may  not  construe  away  the 
plain  meaning  of  ^  a  charge  viewed  as  a 
wtole  by  any  process  of  dissection,  dis- 
memfbering  it  and  leaving  only  separate 
parts.  McCurry  v.  Purgason  (N.  Car.) 
1918A-907. 

(4)  Attachment  Proceedings. 

95.  Dissolution  of  Attachment.  If  any 
question  of  law  could  ever  be  open  upon  a 
petition  under  Mass.  Eev.  Laws,  c.  167, 
§  110,  as  amended  by  St.  1909,  c.  190,  for 
the  dissolution  of  an  attachment,  the  pro- 
cedure, in  the  absence  of  a  report  by  a 
presiding  judge,  is  to  file  a  bill  of  excep- 
tions, which,  if  allowed,  will  await  the 
stage  of  final  disposition  of  the  case  when 
it  may  be  brought  to  the  supreme  judicial 
court.  Richardson  v.  Greenhood  (Mass.) 
1918A-515.  (Annotated.) 

Note. 
Appeal  in   principal   action   as   bringing 
attachment  or  garnishment  proceeding  up 
for  review,     1918A-516. 

b.     Second  Appeal. 

96.  Law    of    Case — Subsequent    Appeal. 

Decisions  of  appellate  courts  of  this  state, 
upon  all  questions  of  law  involved  in  any 
case,  are  binding,  not  only  on  the  lower 
court,  but  on  the  appellate  court  as  well, 
in  case  of  a  subsequent  appeal.  In  re  Ap» 
plication  of  State,  etc,  (Okla.)   1916E-399. 

97.  Decision  in  Former  Appeal.  A  de- 
cision of  the  supreme  court,  on  a  former 
appeal  in  an  action  for  an  employee's  death, 
that  loose  boards  lying  near  the  place  of 
the  accident  did  not  show  negligence  was 
not  res  judicata  of  the  admissibility  of  evi- 
dence of  such  loose  boards  in  a  subsequent 
action;  the  former  decision  being  on  the 
weight  of  the  evidence  and  not  to  its  ad- 
missibilitv.  Korab  v.  Chicago,  etc.  R.  Co. 
(Iowa)   1916E-637. 

98.  Question  of  Law  or  Fact.  "Where 
the  industrial  commission's  finding  that  de- 
cedent left  a  widow  is  based  on  its  deter- 
mination that  com.mon-law  marriages  are 
valid,  a  question  of  law  is  raised  which 
survives  the  appellate  division's  unanimous 


affirmance     of    the     commission's    finding. 
Ziegler  v.  P.  Cassidy's  Sons  (N,  Y.)  1917E- 

248. 

99.  Decision  on  Former  Appeal — Law  of 
Case.  The  law  as  declared  in  a  former  ap- 
peal, where  there  is  no  material  difference 
in  the  evidence  or  questions  presented,  is 
the  "law  of  the  case"  during  the  subse- 
quent trial  or  appeal.  The  refusal  of  an 
instruction  embracing  the  law  as  declared 
in  such  former  appeal  constitutes  reversible 
error.  Marth  v.  Kingfisher  Commercial 
Club  (Okla.)   1917E-235. 

100.  Decision  as  Law  of  Case.  A  hold^ 
ing  on  appeal  that  a  locomotive  fireman, 
who  was  on  his  way  back  to  his  engine 
after  a  visit  to  a  lunch  room  when  he  was 
killed,  was  not  a  trespasser  in  the  yards, 
so  far  as  relates  to  the  defendant's  duty  of 
care,  is  the  law  of  the  case  on  a  subsequent 
appeal  where  the  facts  are  not  materially 
different.  Ingram's  Admx.  v.  Rutland  R. 
Co.  (Vt.)  1918A-1191. 

101.  Law  of  the  Case.  A  proposition  de- 
cided up>on  a  former  appeal  becomes  the 
law  of  the  case  and  should  not  be  re-ex- 
amined in  a  subsequent  appeal  in  the  same 
action.     Orr  v.  Sutton  (Minn.)   1916C-527. 

102.  Review  of  Previous  Holding.  While 
the  supreme  court  will  not  ordinarily  re- 
view its  previous  holding  on  a  subsequent 
appeal,  yet  the  so-called  "law  of  the  case" 
ii  not  binding  when  clearly  erroneous  and 
leading  to  unjust  results,  especially  where 
no  rights  have  accrued  in  reliance  upon  the 
former  decision.  Brewer  v.  Browning 
(Mass.)   1918B-1013. 

c.     Examination  of  Questions  of  Fact. 
(1)     In  General. 

103.  Questions  of  Fact — Combination  in 
Restraint  of  Trade.  The  facts  are  not  still 
in  controversy  on  a  writ  of  error  from  the 
Federal  Supreme  Court  to  a  circuit  court 
of  appeals  to  review  a  judgment  which  re- 
versed, with  instructions  to  enter  an  order 
dismissing  the  complaint,  a  judgment  in 
favor  of  plaintiffs  in  an  action  to  recover 
treble  damages  for  the  injuries  sustained 
as  the  result  of  a  combination  alleged  to 
restrain  foreign  trade,  contrary  to  the  Act 
of  July  2,  1890  (26  Stat.  L.  209,  c.  647,  7 
Fed.  St.  Ann.  336),  where  the  case  was  de- 
cided in  the  circuit  court  of  appeals  upon 
the  proposition  of  law  that  the  combination 
charged  was  not  an  unreasonable  restraint 
of  trade,  and  that  such  character  was  neces- 
sary to  make  it  illegal  under  that  statute, 
both  trial  and  appellate  courts  concurring 
as  to  the  fact  of  combination  and  restraint 
and  the  means  employed,  and  their  conclu- 
sion not  being  clearly  erroneous.  Thomsen 
V.  Cayser  (U.  S.)  1917D-322. 

104.  Auditor's  Report.  An  auditor's  find- 
ing for  plaintiff  is  evidence  sufficient  to 
warrant  a  verdict  for  him,  unless  the  facta 


4S 


DIGEST. 

1916C— 1918B. 


stated  in  the  report  are  insufficient  to  sup- 
port the  conclusion  or  so  inconsistent  as 
to  neutralize  themselves.  Heeht  v.  Boston 
Wharf  Co.  (Mass.)   1917A-445. 

105.  Evidence  Chiefly  by  Deposition. 
Upon  the  question  of  recognition,  and  es- 
pecially upon  the  affirmative  of  that  ques- 
tion, almost  all  of  the  evidence  was  by 
deposition.  It  is  held  that  on  appeal  such 
evidence  will  be  reviewed.  Becord  v.  Ellis 
(Kan.)  l»17C-822. 

106.  Eeview  of  Facta.  The  general  ver- 
dict and  findings  being  supported  by  com- 
petent evidence  and  approved  by  the  trial 
court  will,  under  the  settled  rule,  be  up- 
held. Denver  v.  Atchison,  etc.  R.  Co. 
(Kan.)    1917A-1007. 

107.  In  reviewing  evidence  on  appeal 
from  denial  of  a  motion  for  new  trial, 
the  appellate  court  can  consider  only  the 
evidence  most  favorable  to  the  appellee. 
Western  Union  Tel.  Go.  v.  Louisville,  etc. 
K.  Co.  (Ind.)  1917B-705. 

(2)     Power  of  Appellate  Court  to  Weigh 
Evidence. 

108.  Sufflci^cy  of  Evidence.  The  trial 
court  should  not  set  aside  a  verdict  as 
against  the  evidence  where  there  was  some 
evidence  to  sustain  it,  but  should  not  re- 
fuse to  set  it  aside  where  the  manifest  in- 
justice of  the  verdict  is  so  plain  as  to 
denote  mistake,  prejudice,  corruption,  or 
partiality.  Seidler  v.  Burns  (Conn.) 
1916C-266. 

109.  Weight  of  Testimony.  The  su- 
preme court,  in  passing  on  a  motion  to 
take  a  case  from  the  jury,  either  at  the 
close  of  plaintiff's  evidence  or  of  all  the 
evidence,  can  only  consider  whether  there 
is  any  evidence  in  the  record  fairly  tend- 
ing to  support  pJaintiff's  cause  of  action, 
and  it  is  never  a  question  of  the  weight 
ot  the  testimony;  all  controverted  ques- 
tions of  fact  being  settled  by  the  verdict 
and  the  judgment  of  the  appellate  court. 
Mahlstedt  v.  Ideal  Lighting  Co.  (111.) 
1917D-209. 

110.  Sufficiency  of  Evidence.  Where 
there  is  a  substantial  conflict  in  the  evi- 
dence, the  general  rule  is  that  an  appel- 
late court  will  not  review  it  with  a  view 
to  determine  its  sufficiency  to  support  the 
findings  of  the  trial  court,  but  there  is  an 
exception  where  the  findiug  ig  the  result 
of  bias  or  prejudice,  mistake  or  misappre- 
hension, or  misconception  o'f  the  legal 
effect  of  the  evidence,  or  where  there  is 
none;  nor  can  a  judgment  but  slightly  sup- 
ported by  the  evidence  and  manifestly 
against  its  weight  be  permitted  to  stand. 
Neelley  v.  Farr  (Colo.)   1918A-23. 

111.  Weight  of  Evidence.  Under  Ore. 
Const.,  art.  7,  §  3,  as  amended  in  1910  (see 
Laws  1911.  p.  7),  providing  that  no  fact 
tried  by  a  jury  shall  be  otherwise  re-exam- 


ined in  any  court  of  the  state,  anless  the 
court  can  affirmatively  say  there  is  no 
evidence  to  8upj>ort  the  verdict,  where  the 
supreme  court  cannot  say  that  there  was 
no  competent  evidence  to  support  a  verdict, 
it  cannot  hold  error  in  overruling  a  mo- 
tion for  a  nonsuit  or  a  directed  verdict. 
Taggart  v.  Hunter  (Ore.)  1918A-128. 

112.  Questions  of  Fact.  Where  the  trial 
judge  passed  upon  the  evidence  in  passing 
upon  the  motion  for  new  trial,  exercising 
his  judicial  discretion  therein,  and  permit- 
ting the  facts  produced  by  plaintiff  to  sus- 
tain verdict  in  her  favor,  the  supreme 
court  cannot  interfere,  on  the  ground  that 
the  evidence  is  improbable,  contradictory, 
and  opposed  to  every  instinct  of  human 
nature,  in  the  absence  of  such  error  as  ac- 
tually or  presun»ptively  prevented  a  fair 
trial  to  defendant.  Jensen  v.  Lawrence 
(\^*ash.)  1917E-133. 

113.  It  is  not  the  province  of  the  su- 
preme court  to  weigh  the  evidence  as  it 
appears  in  the  transcript,  but  only  to  de- 
termine whether  there  is  any  evidence  from 
which  the  trial  court  might  draw  its  con- 
clusion; and  a  conclusion,  in  a  suit  to  can- 
cel a  conveyance  because  procured  by  de- 
fendants' fraud,  that  one  defendant  had 
such  knowledge  of  the  transaction  between 
the  other  defendant  and  plaintiff,  whereby 
plaintiff  conveyed  realty-  to  him,  as  would 
deprive  him  of  the  rights  of  an  innocent 
purchaser,  in  view  of  the  opportunities  of 
the  trial  court  for  testing  the  veracity  of 
the  witnesses,  will  not  be  disturbed.  Gil- 
christ V.  Hatch  (Ind.)  1917E-1030. 

114.  Weight  of  Evidence.  It  is  not  the 
purpose  of  Kan.  Code  Cr.  Proc,  §  528,  au- 
thorizing a  reversal  in  case  of  the  death 
penalty  if  the  verdict  is  against  the  weight 
ot  evidence  or  against  law,  to  substitute 
the  conclusions  of  fact  which  may  be 
drawn  by  the  appellate  judges  for  the  con- 
clusions of  fact  which  have  been  drawn 
from  the  evidence  bv  the  jury.  People  v. 
Becker  (Kan.)   1917A-600. 

(3)     Verdict  or  Finding  of  Jury. 
•  (a)     In  General. 

115.  Review  of  Question  of  Fact.  Where 
there  is  any  credible  evidence  to  support 
the  verdict,  is  cannot  be  disturbed.  Gist 
V.  Johnson-Carey  Co.  (Wis.)  1916E-460. 

116.  Verdict  on  Conflicting  Evidence.     A 

verdict  in  an  action  for  libel,  supported 
by  substantial  evidence  that  the  published 
charges  were  untrue,  concludes  the  ques- 
tion on  appeal.  Wilson  v.  Sun  Pub.  Co. 
(Wash.)  1917B-442. 

117.  Verdict  on  Conflicting:  Evidence.  A 
verdict  based  upon  substantial,  though  con- 
flicting, evidence,  will  not  be  disturbed  on 
appeal.  Smith  v.  Barnes  (Mont.)  1917D- 
320. 


APPEAL  AND  ERROR. 


49 


118.  Conflicting  Evidence.  Where  a  con- 
troverted question  of  fact  as  to  the  exist- 
ence of  an  escrow  agreement  and  as  4o  its 
conditions  was  presented,  the  verdict  of 
the  jury  thereon  is  conclusive.  Northern 
Trust  Co.  V.  Bruegger  (N.  Dak.)  1917E- 
447. 

119.  Sufficiency  of  Evidence.  A  verdict 
of  the  jury  will  be  upheld  on  appeal  if 
there  is  any  substantial  evidence  to  sup- 
port it.  Mason  v.  Bowen  (Ark.)  19171)- 
713. 

120.  Scope  of  Eevlew — Sufficiency  of 
Evidence.  A  verdict  approved  by  the  trial 
court  will  be  accorded  great  deference  on 
api>eal.  Frey  v.  Bhode  Island  (R.  I.) 
1918A-920. 

121.  The  evidence  is  not  so  conclusively 
against  the  verdict  as  to  justify  a  reversal 
of  the  order  appealed  from.  Wising  v. 
Brotherhood  of  American  Yeomen  (Minn.) 
1918A-621. 

122.  A  jury's  finding  on  substantial  con- 
flicting evidence  cannot  be  questioned  on 
appeal.  Spain  v.  Oregon-Washington  R. 
etc.  Co.  (Ore.)  1917E-1104. 

123.  A  verdict  on  conflicting  evidence 
and  sustained  by  evidence,  if  believed, 
will  not  be  disturbed  on  appeal.  Switzer 
V.  Sherwood  (Wash.)  1917A-216. 

124.  The  court,  in  testing  the  legal  suffi- 
ciency of  the  evidence  of  plaintiff  to  sus- 
tain a  verdict  in  her  favor,  must  give 
that  evidence  the  highest  probative  value. 
Weber  v.  Weber  (Ark.)  1916C-743. 

125.  A  verdict  on  substantially  conflict- 
ing proof  will  not  be  set  aside,  where  it 
is  supported  by  sufficient  competent  evi- 
dence.    Bursow    T,    Doerr    (Neb.)    1916C- 

248. 

126.  Where  there  is  a  substantia]  con- 
flict in  the  evidence,  the  findings  of  the 
court  will  not  be  disturbed.  Bower  v. 
Moorman  (Idaho)  1917C-99. 

127.  Questions  Reviewed  —  Amount  of 
Damages.  A  finding  by  the  jury  as  to 
the  amount  of  compensatory  damage?  due 
a  patient  who  had  been  imprisoned  in  a 
private  sanatorium  in  a  room  next  to  a 
lunatic,  approved  by  the  trial  court,  can- 
not be  reviewed  on  appeal.  Cook  v.  High- 
land Hospital   (N.  Car.)   1917C-158. 

128.  Verdict  on  Conflicting  Evidence. 
A  verdict  on  conflicting  evidence  will  not 
be  set  aside  on  appeal.  Seidler  v.  Burns 
(Conn.)   1916C-266. 

129.  Where  the  evidence  is  conflicting  as 
to  the  facts  on  which  the  opinions  of  expert 
witnesses  are  based,  and  where  the  opinions 
of  such  witnesses,  on  a  given  state  of  facts 
in  the  case,  materially  differ,  it  is  for  the 

4 


jury  to  determine,  and  their  finding  is  con- 
clusive. McAlinden  v.  St.  Maries  Hospital 
Assoc.  (Idaho)   1918A-380. 

130.  Where  an  ultimate  material  fact  is 
to  be  inferred  from  other  facts,  it  is  for 
the  trier  of  the  facts  to  draw  the  infer- 
ence, and,  when  the  facts  upon  which  the 
inference  is  based  are  such  that  reason- 
able minds  may  draw  opposite  inferences 
therefrom,  the  appellate  court  cannot  say 
that  the  fact  found,  as  a  result  of  the  in- 
ference drawn,  is  not  sustained  by  evi- 
dence, unless  the  facts  are  undisputed,  and 
the  verdict  or  finding  is  opposed  to  the 
only  reasonable  inference  therefrom.  West- 
ern Union  Tel.  Co.  v.  Louisville,  etc.  B.  Co. 
(Ind.)    1917B-705. 

131.  Testimony  to  Facts  Physically  Im- 
possible. While  the  scintilla  rule  prevails 
as  to  the  quantity  of  evidence  necessary 
to  carry  a  case  to  the  jury,  a  verdict  of 
the  jury  based  on  evidence  contrary  to  the 
physical  facts  will  be  reversed,  for  the 
evidence  to  support  a  verdict  must  be  such 
as  is  fit  to  induce  conviction.  Louisville, 
etc,  B,  Co.  V.  Chambers  (Ky.)  1917B-471. 

(Annotated.) 

132.  In  the  case  a^  bar,  while  it  may  be 
true  that  the  jury  were  not  in  a  position 
to  say  beyond  the  possibility  of  a  doubt 
that  any  one  single  fact  in  evidence  or  the 
absence  of  any  one  condition  established 
conclusively  the  negligence  of  appellant's 
physician  and  surgeon  in  placing  the  cast 
upon  the  injured  limb  of  respondent  at  the 
time  and  in  the  manner  in  which  it  was 
done,  and  in  his  failure  to  split  the  cast 
and  thus  permit  free  and  uninterrupted 
veinous  circulation,  yet  if  from  all  the  tes- 
timony and  circumstances  of  the  case  there 
is  evidence  sufficient  to  establish  a  prima 
facie  case,  the  conclusion  reached  by  the 
jury  based  upon  the  evidence  will  not  be 
disturbed  on  appeal.  McAlinden  v.  St. 
Maries  Hospital  Assoc.  (Idaho)  1918A- 
380. 

(b)     Verdict  in  Criminid  Case. 

133.  General  Verdict  on  Several  Counts. 
A  general  verdict  of  guilty  on  an  informa- 
tion in  four  counts,  the  first  count  only 
being  sustained  by  evidence,  will  not  be 
set  aside  on  appeal  where  no  attempt  was 
made  at  trial  to  have  unsupported  counts 
withdrawn  from  jury.  State  v.  Reed 
(Mont.)  1917E-783. 

134.  Weight  of  Evidence,  A  verdict  will 
not  be  set  aside  as  against  the  evidence 
where  there  is  evidence  to  support  it,  and 
where  it  does  not  appear  that  the  jury 
were  not  governed  by  the  evidence,  Rob- 
inson V.  State  (Fla.)  1917D-506. 

135.  Grounds  for  Reversal  of  Conviction 
— Insufficiency  of  Evidence,  In  criminal 
cases  the  jury  determines  both  the  law  and 
fact,   and,  in    the   absence   of    reversible 


50 


DIGEST. 

1916C— 1918B. 


error  in  the  mlings  of  the  trial  court,  the 
appellate  court  may  not  disturb  the  ver- 
dict on  the  sufficiency  of  the  evidence. 
Hummelshime  v.  State  (Md.)   1917E-1072. 

(4)     Findings  of  Court, 

136.  Kevlew  of  Finding.  A  finding  by 
the  district  court,  on  appeal  from  a  finding 
of  the  board  of  supervisors,  that  a  state- 
ment of  consent  to  the  sale  of  intoxicating 
liquors  is  insufficient,  will  not  be  disturbed 
on  appeal  where  there  is  room  for  reason- 
able minds  to  differ  as  to  the  facts.  Eiley 
V.  Litchfield  (Iowa)  1917B-172. 

137.  Decisions  of  Land  Department — 
Judicial  Review.  Courts  have  no  power  to 
review  findings  of  fact  by  the  Land  De- 
partment which  were  within  its  province 
and  duty  to  make.  Daniels  v.  Wagner 
(U.  S.)   1917A-40. 

138.  Presumption.  Tendings  are  pre- 
sumed correct,  unless  against  the  clear 
preponderance  of  the  evidence.  Heicke  v, 
Heicke  (Wis.)   1918B-497. 

139.  Review  of  Finding.  Where  decision 
of  appellate  division  affirming  award  of 
the  compensation  commission  was  not 
unanimous,  the  court  of  appeals  may  con- 
sider whether  there  was  any  evidence  to 
sustain  the  finding.  Carroll  v.  Knicker- 
bocker Ice  Co.  (N.  Y.)  1918B-540. 

140.  Review  of  Facts — Conflicting  Evi- 
dence. Where  a  court  has  considered  con- 
flicting evidence,  and  made  a  finding  or 
decree,  it  is  presumptively  correct,  and  un- 
less some  obvious  error  of  law  has  inter- 
vened, or  some  serious  mistake  of  fact  has 
been  made,  the  finding  or  decree  must 
be  permitted  to  stand.  Silver  King  Coal- 
ition Mines  Co.  v.  Silver  King  Consol.  Min. 
Co.  (Fed.)   1918B-571. 

141.  Misconduct  of  Jury.  A  finding  by 
the  trial  judge,  denying  defendant's  mo- 
tion to  set  aside  the  verdict  for  misconduct 
of  the  jury,  where  based  upon  the  evi- 
dence, is  not  reviewable.  Cook  v.  High- 
land Hospital  (N.  Car.)  19170-158. 

142.  Eeview  of  Facts.  In  determining 
whether  a  decision  is  supported  by  any 
evidence,  the  appellate  court  will  consider 
only  the  evidence  most  favorable  to  the 
successful  party.  Anderson  v.  Knotts 
(Ind.)    1916D-868. 

'  143.  Finding  on  Conflicting  Evidence. 
Findings  based  on  conflicting  evidence  will 
not  be  disturbed  on  appeal.  Jorgenson  v. 
Gessell  Pressed  Brick  Co.  (Utah)  1917C- 
309. 

144.  Evidence  to  Sustain  Finding  of 
Chancellor.  A  finding  of  the  chancellor 
with  reference  to  a  state  of  accounts  be- 
tween the  parties,  not  against  the  pre- 
ponderance of  the  evidence,  must  be  upheld 
and  his  decree  affirmed.  Streudle  v.  Leroy 
(Ark.)   1917D-618. 


145.  Eeview  of  Facts.  A  finding  not 
contrary  to  the  preponderance  of  the  evi- 
dence will  not  be  disturbed  on  appeal. 
Cost  V.  Shinault  (Ark.)  1916C-483. 

146.  Sufllciency  of  Evidence.  Where  the 
record  contains  a  fair  quantum  of  admis- 
sible evidence  to  support  the  conclusions 
of  the  trial  court,  and  there  is  nothing  to 
show  that  it  was  not  governed  by  proper 
rules  of  law,  the  supreme  court  accepts 
its  findings  of  fact.  Eogers  v.  Nevada 
Canal  Co.  (Colo.)  1917C-669. 

147.  Agreed  Findings.  Where  counsel 
for  appellant  or  plaintiff  in  error  in  the 
appellate  court  admit  that  the  findings  of 
fact  made  by  the  trial  court  are  sustained 
by  the  evidence,  such  findings  will  be 
treated  as  in  effect  an  agreed  statement  of 
facts.  Philadelphia  Casualty  Co.  v.  Fech- 
heimer  (Fed.)  1917D-64. 

148.  Finding  on  Conflicting  Evidence.  A 
finding  of  the  chancellor  in  conformity  to 
a  verdict  in  an  equity  case  will  not  be 
disturbed  on  appeal,  where  the  evidence 
is  sharply  conflicting.  Anheier  v.  De  Long 
(Ky.)  1917A-1239. 

149.  Th«  conclusions  of  the  trial  court 
as  to  matters  of  fact  will  not  be  disturbed 
on  appeal.  Brace,  etc.  Mill  Co.  v.  Burbank, 
(Wash.)  1917E-739. 

150.  Immaterial  Question.  The  objec- 
tion that  a  finding  was  immaterial,  and 
that  it  was  not  necessary  to  submit  the 
question  to  the  jury,  will  not  be  passed 
upon  on  appeal,  where  the  finding  is  sup- 
ported by  the  evidence.  Gist  v.  Johnson- 
Carey  Co.  (Wis.)  1916E-460. 

151.  Evidence  to  Support  Finding  of 
Chancellor.  The  chancellor's  findings  on 
issues  of  fact,  as  to  which  the  evidence 
was  conflicting,  not  against  the  preponder- 
ance of  the  evidence,  will  not  be  disturbed. 
Nevada  County  Bank  v.  Sullivan  (Ark.) 
1917D-736. 

152.  Adoption  of  Findings  by  Court. 
When  special  findings  of  fact  made  by  a 
referee  are  adopted  by  the  court  in  such 
manner  as  to  show  an  intention  to  make 
those  findings  its  own,  that  intention  will 
be  given  effect  by  the  appellate  court,  and 
the  findings  will  be  treated  as  having  been 
made  by  the  trial  court,  Philadelphia 
Casualty  Co.  v.  Fechheimer  (Fed.)  1917D- 
64. 

153.  Scope  of  Review — Questions  of  Fact. 
Rule  followed  that  where  questions  of 
fact  have  been  determined  by  the  trial 
court  upon  substantial  and  competent  evi- 
dence, such  determination  is  conclusive  on 
api>eal.  Wideman  v,  Faivre  (Kan.)  1918B- 
1168. 

(5)     Findings  of  Master. 

154.  Where  findings  and  conclusions  as 
to  facts,  made  by  a  master  in  chancery, 


APPEAL  AND  EKROR. 


51 


are  sustained  by  the  chancellor,  and  are 
not  manifestly  against  the  weight  of  the 
evidence,  the  decree  will  not  be  disturbed 
by  the  supreme  court.  Klekamp  v.  Elle- 
kamp  (111.)  1918A-663. 

(6)     Direction  of  Verdict  or  Nonsuit. 

155.  Bequest  by  Both  Parties  for  Direc- 
tion of  Verdict — Effect.  Where  both  par- 
ties requested  peremptory  instructions  and 
the  court  directed  verdict  in  favor  of  de- 
fendants, the  case  stands  on  appeal  as  if 
the  jury,  upon  correct  instructions,  had  re- 
turned a  verdict  in  defendants'  favor,  and 
the  sole  question  is  that  of  the  legal  suffi- 
ciency of  the  evidence.  Sims  v.  Everett 
(Ark.)  1916C-629. 

156.  Denial  of  Nonsuit.  In  the  consider- 
ation of  a  motion  for  a  nonsuit,  where  the 
record  contains  all  the  evidence  produced 
upon  the  trial,  the  supreme  court  must  con- 
sider the  entire  evidence.  Taggart  v. 
Hunter  (Ore.)   1918A-128. 


(7) 


Judgment  of  Intermediate  Appellate 
Court. 


157.  Errors  in  Trial  Court.  "Where  one 
convicted  of  crime  in  the  county  court, 
upon  appealing  to  the  circuit  court,  asked 
that  the  appeal  be  dismissed  and  the  case 
remanded  to  the  county  court  for  error 
in  the  judge's  having  determined  the  fine, 
and  not  the  jury,  on  appeal  from  the  circuit 
court's  affirmance  of  the  conviction,  its 
refusal  to  dismiss  and  remand  is  not  re- 
viewable, since,  under  Ky.  Cr.  Code  Prac, 
§  366,  providing  that  upon  appeal  to  the 
circuit  courts  the  case  shall  be  tried  anew 
as  if  no  judgment  had  been  rendered,  the 
trial  in  the  circuit  court  was  de  novo,  not 
involving  a  review  of  the  county  court's 
action,  and  the  appeal  from  the  circuit 
court's  judgment  was  concerned  only  with 
its  errors,  not  those  below.  Delk  v.  Com- 
monwealth  (Ky.)    1917C-884. 

158.  Review  of  Dismissal  for  Insuffi- 
ciency of  Evidence.  The  court  of  appeals, 
in  reviewing  a  judgment  of  the  appellate 
division  reversing  a  judgment  dismissing 
the  complaint  at  the  close  of  plaintiff's 
evidence,  will  give  plaintiff  the  advantage 
of  all  the  facts  properly  presented  and 
every  favorable  inference  deducible  there- 
from. Lalor  V.  New  York  (N.  Y.)  1916E- 
572. 

(8)     Adherence  to  Theory  of  Trial  Court. 

159.  Where  a  cause  was  tried  in  the 
■circuit  court  as  one  involving  title  as  in 
ejectment,  the  court  on  appeal  must  adopt 
the  same  theory.  Phillips  v.  Phillips  (Ala.) 
1916D-994. 

160.  Theory  of  Case  on  Trial.  Where  an 
action  by  a  creditor  of  a  corporation 
against  a  stockholder  was  founded  origi- 
nally on  the  liability    imposed    by    Conn. 


Gen.  St.  1887,  §  1954,  and  the  court  tried 
the  case  on  that  theory,  but  during  the 
trial  plaintiff  asked  for  an  amendment 
seeking  a  recovery  on  the  theory  that  the 
property  which  the  stockholder  received 
might  be  charged  with  an  equitable  lien 
for  the  payment  of  plaintiffs  debt,  but  the 
amendment  was  withdrawn  on  it  appear- 
ing that  a  postponement  of  the  case  would 
result  by  reason  of  its  allowance,  and 
plaintiff's  counsel  remarked  that  the  trial 
could  proceed  to  determine  the  statutory 
liability,  the  court  cannot  correct  the  find- 
ings of  the  superior  court  that  the  case  was 
tried  on  the  theory  of  statutory  liability. 
Barber  v.  Morgan  (Conn.)  1916E-102. 

161.  Under  Mo.  Eev.  Stat.  1909,  §  9999, 
providing,  relative  to  negotiable  instru- 
ments, that  absence  or  failure  of  consid- 
eration is  a  matter  of  defense  as  against 
any  person  not  a  holder  in  due  course,  and 
that  partial  failure  of  consideration  is  a 
defense  pro  tanto,  where  an  action  on  a 
note  given  for  mining  property  was  tried 
by  defendants  on  the  theory  that  the 
consideration  had  failed  in  that  there  was 
a  breach  of  the  warranty  of  title  to  the 
mining  property,  no  evidence  was  given  as 
to  the  value  or  relative  value  of  the  land 
as  to  which  the  title  was  defective,  there 
was  no  data  to  guide  the  jury  in  an  at- 
tempt to  find  such  value,  and  the  instruc- 
tions requested  by  defendant  were  on  the 
theory  that  there  was  a  total  failure  of 
consideration,  and  no  instruction  on  the 
question  of  partial  failure  of  consideration 
was  requested,  they  cannot  have  a  retrial 
on  the  theory  that  there  was  a  partial 
failure  of  consideration.  Carter  v.  Butler 
(Mo.)  1917A-483. 

162.  The  case  is  treated  on  this  appeal 
as  it  was  tried  below,  and  treated  by  the 
parties  on  the  appeal,  viz.,  a  review  of 
errors  at  law  in  a  law  action,  and  not  a 
trial  de  novo.  Thornhill  v.  Olson  (N. 
Dak.)  1917E-427. 

163.  A  case  will  not  be  reviewed  on  a 
theory  different  from  that  on  which  it  was 
tried  below,  nor  will  questions  argued  for 
the  first  time  on  appeal  be  considered. 
Armstrong  t.  Philadelphia  (Pa.)  1917B- 
1082. 

164.  The  supreme  court  will  review  a 
case  upon  the  theory  on  which  it  was  tried 
in  the  court  below.  Smith  v.  Barnes 
(Mont.)   1917D-330. 

165.  Where  the  complaint  was  not  at- 
tacked by  demurrer  or  motion  of  any  kind, 
resort  may  be  had  to  the  subsequent  pro- 
ceedings to  ascertain  on  what  theory  the 
cause  was  tried  in  the  court  below. 
Smith  v.  Barnes   (Mont.)   1917D-330. 

(9)     Competency  of  Witnesses. 

166.  Children.  Whether  witnesses,  re- 
spectively  11   and   12  years   old,  were   of 


52 


DIGEST. 

1916C— 1918B. 


sufficient  age  and  capacity  to  testify  is  to 
be  determined  by  the  trial  court,  and  such 
determination  is  not  reviewable  on  appeal. 
State  V.  Pitt  (N.  Car.)  1916C-422. 

(Annotated.) 

167.  Mental  Capacity.  The  trial  court's 
conclusion  that  a  witness  was  of  sufficient 
capacity  to  testify,  based  upon  evidence 
warranting  the  finding,  is  not  reviewable 
by  the  supreme  court.  State  t.  Tetrault 
(N.  H.)   1918B-425. 

d.     Waiver  of  Error. 
(1)     In  General. 

168.  Questions  Eeviewable  —  Failure  to 
Aak  Peremptory  Instruction.  On  a  direct 
appeal  to  the  supreme  court,  the  failure 
to  ask  a  peremptory  instruction  in  the  trial 
court  does  not  preclude  the  contention  that 
the  verdict  is  against  the  weight  of  the 
evidence.  Carnaihan  v.  Hamilton  (111.) 
1916C-21. 

(2)     Omission  from  Brief  or  Argument. 

169.  Failure  to  Argue  Question  as 
Waiver..  Where  the  part  of  appellant's 
brief  devoted  to  propositions  and  authori- 
ties made  no  specific  reference  to  any  in- 
struction given  or  refused  or  to  any  testi- 
mony admitted,  such  causes  for  new  trial 
are  waived  under  Rule  22,  cl.  5  (55  N.  E. 
vi),  providing  that  the  brief  of  appellant 
shall  fully  present  every  error  and  excep- 
tion relied  on.  White  v.  State  (Ind.) 
1917B-527. 

170.  Waiver  of  Points  not  Argued.  No 
point  being  made  in  the  brief  as  to  length 
of  time  for  which  the  carrier  should  be 
allowed  for  storage,  any  error  in  this  re- 
spect is  waived.  Holloman  v.  Southern  E. 
Co.  (N.  Car.)  1917&-1069. 

171.  Question  not  Discussed.  Questions 
not  discussed  in  appellant's  brief  are 
waived.  Cincinnati  etc.  B.  Co.  v.  McCul- 
lom  (Ind.)  1917E-1165. 

172.  An  exception  not  mentioned  in  the 
brief  is  abandoned  under  the  rule  of  the 
supreme  court.  McCurry  v.  Purgason 
(N.  Car.)  1918A-907. 

173.  Questions  not  Argued.  Only  those 
assignments  of  error  set  out  in  the  brief 
will  be  considered.  In  re  Rawling's  Will 
"(N.  Car.)  1918A-948. 

174.  An  exception  is  waived  by  failure 
to  brief  it.  Comstock's  Administrator  v. 
Jacobs  (Vt.)  1918A-465. 

175.  Necessity  of  Preserving  Evidence 
in  Record.     Where  the  evidence  was  not 

embodied  in  thd  brief  pursuant  to  Cal.  Code 
Civ.  Proc,  §  953c,  the  question  of  its  suffi- 
ciency cannot  be  reviewed  on  appeal. 
Thompson   v.   Hamilton   Motor  Co.    (Cal.) 

1917A.  677. 


176.  Exceptions  not  Argued.  Exceptions 
not  argued  on  appeal  will  not  be  consid- 
ered. Egan  T.  Dotson  (S.  Dak.)  1917A- 
296. 

(3)  Pleading  Over  After  Order  to  Make 

More  Specific. 

177.  Appeal  from  Order  on  Demurrer. 
Where,  in  an  action  on  an  agent's  contract, 
a  motion  to  make  the  complaint  more  spe- 
cific by  setting  forth  the  agreement  in 
writing  constituting  the  agent's  author- 
ity was  granted  and  plaintiff  thereupon 
amended  the  complaint  by  setting  out 
such  agreement  and  a  demurrer  to  the 
amended  complaint  was  sustained,  the  suf- 
ficiency of  the  amended  pleading  is  the 
only  question  on  appeal,  and  whether  the 
court  erred  in  granting  such  motion  is  im- 
material. Springer  v.  City  Bank,  etc.  Co. 
(Colo.)   1917A-520. 

(4)  Introduction  of  Evidence  After  Re- 
fusal to  Direct  Verdict  or  Give  Judg- 
ment. 

178.  That  a  motion  for  a  directed  ver- 
dict operates  as  a  request  that  the  court 
find  the  facts,  and  is  conclusive  upon  the 
parties  upon  appeal,  does  not  prevent 
consideration  of  the  inadmissibility  of  re- 
jected evidence,  nor  waive  exceptions  to 
the  rulings  of  law  thereon.  Buckbee  v. 
P.  Hohenadel,  Jr.,  Co.  (Fed.)  1918B-88. 

179.  Motion  for  Judgment — ^Waiver  by 
Introduction  of  Evidence.  An  exception 
to  the  overruling  of  a  motion  for  judgment 
at  the  close  of  plaintiff's  evidence  on  the 
trial  of  an  action  to  the  court  is  waived 
by  the  introduction  of  evidence  in  defense. 
Philadelphia  Casualty  Co.  v.  Fechheimer 
(Fed.)   1917D-64. 

180.  Motion  for  Directed  Verdict.  Where, 
at  the  conclusion  of  the  state's  evidence, 
the  defendant  moved  to  direct  a  verdict  in 
his  favor,  but  upon  its  being  overruled 
proceeded  with  his  evidence  and  failed  to 
renew  his  motion,  he  waived  the  motion, 
which  cannot  be  reviewed.  State  v.  Asbury 
(Iowa)  1918A-856. 

(5)     By  Stipulation  or  Agreement. 

181.  Effect  of  Agreement  of  Counsel. 
Where  counsel  for  respective  parties  agree 
that,  should  the  conclusion  of  the  court 
be  adverse  to  the  contention  of  appellant 
upon  one  question,  the  remaining  objec- 
tions assigned  become  immaterial,  and 
when  it  appears  from  the  record  that  a 
consideration  of  said  questions  is  not 
necessary  to  a  final  determination  of  the 
cause  under  consideration,  the  same  will 
not  be  decided  bv  the  court.  Jennings  v. 
Idaho  R.,  etc.  Co".  (Idaho)  1916E-359. 

182.  Admissions  in  Open  Court — Effect. 
Admissions  and  agreements  made  in  open 


APPEAL  AND  ERROR. 


53 


court  by  the  parties  to  the  cause  and  acted 
upon  by  the  court  are  binding  and  a  decree 
founded  therein  will  not  be  reversed. — 
McCoy  V.  McCoy  (W.  Va.)  1916C-367. 

(6)     Introduction  of  Evidence  After  Ad- 
verse  KuUng  on  Pleading. 

183.  Where,  after  the  court  ruled,  over 
objection,  that  the  third  count  of  the 
amended  declaration  was  still  in  the  case, 
and  plaintiff  offered  evidence  to  sustain 
it,  defendant  does  not  waive  his  objection 
to  the  decision  by  offering  evidence  to 
contradict  it.  Wende  v.  Chicago  City  R. 
Co.   (111.)    1918A-222. 

(7)     By  Eequeating  Instruction. 

184.  Where,  in  an  action  on  a  promissory 
note,  parol  evidence  tending  to  vary  and 
contradict  its  terms  is  improperly  admitted, 
over  objection,  the  mere  fact  that  plain- 
tiff's counsel  requests  an  instruction  in 
order  to  limit,  as  far  as  possible,  the  pre- 
judicial effect  of  such  evidence,  does  not, 
where  such  instruction  is  refused  by  the 
trial  court,  estop  the  latter  from  asserting 
on  appeal  that  the  admission  of  such  evi- 
dence was  error.  First  State  Bank  v. 
Kelly  (N.  Dak.)  1917D-1044. 

15.     REVIEW   OF   EXERCISE    OF   DIS- 
CRETIONARY POWER. 

185.  Order  of  Proof — Review  of  Discre- 
tion. The  discretion  of  the  court  in  the 
exclusion  of  evidence  offered  in  rebuttal, 
b'lt  which  was,  in  fact,  a  part  of  the  plain- 
tiff's case  in  chief,  will  not  be  reviewed, 
where  no  abuse  of  discretion  is  shown. 
Hightower  v.  Union  Savings,  etc.  Co. 
(Wash.)  1918A-489. 

186.  Admission  of  Evidence.  The  ques- 
tion whether  the  admission  of  testimony 
given  at  a  former  trial  is  necessary  to  pre- 
vent the  miscarriage  of  justice  is  addressed 
to  the  sound  discretion  of  the  court  and  is 
reviewable  only  for  abuse  of  such  discre- 
tion.    Levi  V.  State   (Ind.)   1917A-654. 

(Annotated.) 

187.  Trial — Limiting  Number  of  Wit- 
nesses. It  is  within  the  discretion  of  the 
trial  court  to  limit  the  number  of  witnesses 
a  defendant  charged  with  criminal  offense 
may  introduce  on  a  single  point  in  issue, 
and  unless  it  appears  clearly  that  there  has 
been  an  abuse  of  discretion,  which  was 
prejudicial  to  defendant,  an  appellate 
court  will  not  consider  it  cause  for  re- 
versal. Samuels  v.  United  States  (Fed.) 
1917A-711. 

188.  Stay  Pending  Appeal.  The  supreme 
court  has  no  power  to  review  the  refusal 
of  the  lower  court  to  annul  the  effect  of 
an  appeal  from  an  order  refusing  to  grant 
a  preliminary  injunction;  such  being  a 
matter  expressly  left  to  the  discretion  of 
the    court  in  which    the    proceedings  are 


pending.     Crownfield    r. 
1916E-991. 


Phillips     (Md.) 


189.  Dissolution  of  Attachment.  In  such 
case,  and  on  the  assumption  in  favor  of 
the  appealing  party  that  the  writ  in  the 
original  action  had  never  been  entered  in 
the  court  so  that  the  order  might  be  re- 
garded as  a  final  judgment,  the  attachment 
was  dissolved  in  the  exercise  of  judicial 
discretion,  and  no  error  was  apparent 
where  there  was  nothing  to  indicate  that 
such  discretion  was  not  wisely  exercised. 
Richardson  v.  Greenhood  (Mass.),  1918A- 
515. 

16.    PRESUMPTIONS  ON  APPEAL, 
a.     In  General. 

190.  Hearing  in  Open  Court.  In  such 
case,  where  the  law  required  that  the  pro- 
ceedings be  heard  in  open  court,  it  will 
be  presumed,  notwithstanding  a  consent 
that  the  decree  should  be  made  at  cham- 
bers, that  it  was  made  in  open  court. 
Glover  v.  Bradley  (Fed.)  1917A-921. 

191.  Presumptions — Duty  to  Show  Error. 
It  is  the  duty  of  a  party  resorting  to  an 
appellate  court  to  make  the  errors  com- 
plained of  clearly  to  appear,  if  they  in 
truth  exist,  every  presumption  being  in 
favor  of  the  correctness  of  the  respective 
rulings  of  the  trial  court.  Henry  v.  Spit- 
ler  (Fla.)  1916E-1267. 

b.     As   to  Motions. 

192.  Denial  by  Substitute  Judge.  Where 
the  motion  for  a  new  trial  was  heard  and 
denied  by  a  judge  called  in,  his  order  can- 
not be  aided  by  those  presumptions  in- 
dulged in  favor  of  a  like  order  made  by 
the  trial  judge.  Smith  v.  Barnes  (Mont.) 
1917D-330. 

c.     As  to  Rulings  on  Pleadings. 

193.  Ruling  on  Demurrer.  Where  rec- 
ord shows  appellant  filed  a  demurrer  but 
does  not  show  that  any  ruling  was  made 
thereon,  it  is  presumed  the  demurrer  was 
overruled.  Stonegap  Colliery  Co.  v.  Ham- 
ilton  (Va.)   1917E-60, 

194.  An  appellate  tribunal  is  disposed  to 
adhere  to  the  construction  of  the  complaint 
adopted  by  the  trial  court,  and  where  that 
court  has  placed  a  reasonable  construction 
upon  a  complaint  open  to  two  construc- 
tions, and  has  proceeded  to  a  determina- 
tion of  the  cause  upon  such  an  understand- 
ing of  its  scope,  the  supreme  court  will 
not  be  forward  to  adopt  a  different  con- 
struction and  reverse  the  case.  Gilchrist  v. 
Hatch  (Ind.)  1917E-1030. 

d.     As  to  Evidence. 

195.  Presumptions  to  Support  Judgment. 

Where  the  petition  in  an  action  on  a  con- 
tract did  not  allege  whether  the  contract 


54 


DIGEST. 

1916C— 1918B, 


■w^as  in  writing  or  oral,  the  court  on  appeal 
from  a  judgment  granting  relief  under  the 
contract  will  presume,  in  the  absence  of 
the  evidence,  that  the  contract  was  written 
if  a  writing  is  necessary  to  support  the 
judgment.  Myers  v.  Saltry  (Ky.)  1916E- 
1134. 

196.  In  the  absence  of  a  transcript,  the 
court  on  appeal  may  presume  that  proof 
of  a  written  contract  sued  on  was  intro- 
duced without  objection  and  that  plaintiff 
without  objection  proved  an  express  prom- 
ise to  pay  the  debt  demanded,  such  as 
would  take  it  out  of  the  statute  of  limita- 
tions.    Myers  v.  Saltry  (Ky.)  1916E-1134. 

e.     As  to  Instructions. 

197.  Issues  submitted  to  the  jury  in  in- 
structions not  brought  to  the  supreme 
court  for  review  will  be  presumed  to  have 
been  properly  submitted.  Schas  v.  Equi- 
table Life  Assurance  Soo.  (N.  Car.)  1918A- 
679. 

198.  An  instruction  will  be  presumed 
correct,  where  the  evidence  on  which  it  is 
based  is  not  set  out  in  the  abstract.  Ot- 
tumwa  V.  McCarthy  Improvement  Go. 
(Iowa)  1917E-1077. 

f.     As  to  Verdict. 

199.  Finding  on  Issue  not  Submitted.  If 
all  the  material  issues  were  not  submitted 
to  the  jury  which  found  for  plaintiff,  and 
no  question  was  requested  by  defendant 
to  cure  the  omissions,  it  will  be  presumed 
on  appeal  by  defendant  that  the  court 
found  in  plaintiff's  favor  on  any  material 
issue  not  submitted.  Eowlands  v.  Chicago, 
etc.  B.  Co.  (Wis.)  1916E-714. 

200.  Verdict  on  Proven  Acts.  It  will 
not  be  assumed  that  the  verdict  was  rested 
on  any  act  of  which  there  was  no  evidence. 
Borok  V.  Birmingham   (Ala.)    1916C-1061. 

g.     As  to  Judgment. 

201.  Wlhere  the  record  is  without  a  tran^ 
script  of  the  evidence,  the  court  on  ap- 
peal will  presume  that  the  omitted  parts 
of  the  record  will  support  the  judgment. 
Myers  v.  Saltry  (Ky.)  1916E-1134. 

202.  All  intendments  favor  the  judg- 
ment of  the  court  below.  Hihn-Hammond 
Lumber  Co.  v.  Elsom  (Cal.)  1917C-798. 

17.     REVERSIBLE  ERROR, 
a.     In   General. 

203.  It  appears  from  the  theory  had  of 
the  case  on  trial  and  on  appeal  that  no 
title  can  ever  be  shown  to  have  been  in 
plaintiffs,  ar.d  that  they  can  never  recover 
on  the  basis  of  title  having  passed  to  them, 
and  are  therefore  without  possibility  of 
relief  in  this  action;  and  the  same  is  ae- 
cordinglv  ordered  dismissed.  Thornhill 
V.  Olsen'  (N.  Dak.)  1917E-427. 


204.  Misconduct  of  Counsel — Bringing 
Inadmissible  Matter  Before  Jury.  The 
action  of  the  attorney  for  plaintiff  suing 
for  a  personal  injury  in  stating  on  the  ex- 
amination of  jurors  on  their  voir  dire  that 
the  damages  recoverable  would  be  paid 
by  an  insurance  company,  and  in  compel- 
ling defendant  on  cross-examination  to 
state  that  sums  paid  by  him  to  plaintiff  for 
a  release  had  been  repaid  by  an  insurance 
company,  is  reversible  error  as  rendering 
the  jury  careless  as  to  the  amount  of  the 
verdict  on  the  theory  that  defendant  was 
protected  from  liability.  Vasquez  v.  Pet- 
tit   (Ore.)    1917A-439.  (Annotated.) 

205.  Misconduct  of  Judge — Reference  to 
Failure  to  Call  Witness.  Where,  in  an 
action  on  certain  notes,  the  alleged  signa- 
tures of  indorsers  are  claimed  to  be  for- 
geries, a  question  by  the  trial  judge  to 
plaintiff's  counsel  as  to  why  he  did  not  call 
the  maker  to  testify  as  to  the  genuineness 
of  the  indorser's  signatures  is  prejudicial 
error.  Fourth  National  Bank  v.  McArthur 
(N.  Car.)  1917B-1054. 

b.     Error  must  be  Clearly  Shown. 
208.  A  verdict  approved    by    the    trial 
court  will  not  be  disturbed  unless  in  case 
of    clear     error.     Marinette     v.     Goodrich 
Transit  Co.  (Wis.)  1917B-935. 

207.  Burden  of  Showing  Error.  An  ap- 
pellant attacking  a  judgment  on  special 
findings  has  the  burden  of  showing  that 
there  is  no  finding  which  will  support  the 
judgment.  In  re  Williams'  Estate  (Mont.) 
1917E-126. 

208.  Newspaper  Publication.  The  ap- 
pellate court  will  not  set  aside  a  verdict 
of  conviction  on  account  of  the  fact  that 
newspaper  articles  were  published  which 
may  have  influenced  the  jurymen,  where 
there  is  no  showing  that  an  impartial 
panel  or  impartial  talesmen  could  not  have 
been  obtained  or  that  defendant  was  de- 
nied his  privilege  of  examining  the  jury- 
men on  the  voir  dire,  and  of  thus  show- 
ing their  prejudice  and  protecting  hia 
rights.  State  v.  Gordon  (X.  Dak.)  1918A- 
442. 

c.     Error  must  be  Material. 

209.  A  judgment  will  not  be  reversed 
because  of  a  ruling  which  is  not  material 
and  prejudicial  to  appellant.  Schas  v. 
Equitable  Life  Assur.  Soc.  (N.  Car.) 
1918A-679. 

210.  Interrogation  of  Accused  Before 
Sentence.  It  is  not  reversible  error,  even  in 
a  capital  case,  not  to  ask  the  prisoner  if 
he  has  any  reason  why  sentence  should 
not  be  passed,  unless  it  appears  that  he 
was  or  may  have  been  injured  by  the 
omission,  but  the  practice  of  inquiring  any 
reason  why  sentence  should  not  be  passed 
is  recommended  in  all  cases  in  which  either 
the   death  penalty  or  confinement  in  the 


APPEAL  AND  ERROR. 


55 


penitentiary   can  he   imposed.     Button   t. 
State     (Md.)     1916C-S9.  (Annotated.) 

211.  Right  of  Accused  to  Sit  by  Counsel. 
Befusal  to  permit  the  defendant  to  sit  by 
his  counsel  during  the  trial  was  harmless, 
where  it  resulted  merely  in  slight  incon- 
venience to  such  counsel,  and  no  defense 
on  the  merits  was  made,  and  the  uncontra- 
dicted evidence  for  the  commonwealth 
showed  defendant's  guilt.  Commonwealth 
V.  Boyd  (Pa.)  1916D-201. 

(Annotated.)^ 

d.     Error  must  be  Prejudicial. 
(1)     In  General. 

212.  Voluntary  Remittitur  by  Plaintilf. 
Where  a  verdict  was  not  excessive  and 
there  is  nothing  to  indicate  that  the  jury 
were  influenced  by  passion  or  prejudice, 
defendant  is  not  prejudiced  by  the  volun- 
tary filing  by  plaintiff  of  a  remittitur  of  a 
part  of  the  recovery,  and  cannot  complain 
thereof  on  the  ground  that  the  error  could 
be  cured  only  by  granting  a  new  trial  and 
not  by  the  filing  of  a  remittitur.  Crag- 
head  V.  McCullough  (Colo.)   1916C-1075. 

213.  Injury  Essential.  Errors  will  not 
cause  reversal  unless  some  real  injury  re- 
sulted. Am.  Ex.  Co.  V.  Terry  (Md.)  1917C- 
650. 

214.  A  judgment  will  not  be  reversed 
and  a  new  trial  granted  when  the  action  of 
the  trial  judge,  even  if  erroneous,  could  by 
no  possibilitv  have  injured  the  appellant. 
Ewbank  v.  Lyman  (N.  Car.)  1917A-S72. 

215.  Submission  of  Exemplary  Damages 
as  Harmless  Error.  Where  the  jury 
awarded  only  $150  for  a  physician's  breach 
of  his  contract  to  attend  a  woman  during 
her  confinement,  the  submission  of  the 
question  of  punitive  damages  is  harmless. 
Hood  v.  Moffett  (Miss.)  1917E-410. 

216.  Criminal  Law  —  Harmless  Error 
Rule.  A  mistrial  should  not  be  ordered  in 
a  cause  simply  because  some  error  has  in- 
tervened. The  error"  must  prejudicially 
affect  the  merits  of  the  case  and  the  sub- 
stantial rights  of  one  or  both  of  the  par- 
ties, and  this  is  as  true  of  the  temporary 
absence  of  the  judge  as  any  other  de- 
parture from  due  process  of  law  during  the 
trial  of  a  cause.  Tingue  v.  State  (Ohio) 
1916C-1156. 

(2)     Error  in  Ruling  on  Pleadings. 

217.  Refusal  of  Accused  to  Plead — Fail- 
ure to  Enter  Plea.  Though  the  statute 
provides  that,  where  accused  refuses  to 
plead,  a  plea  of  not  guilty  shall  be  entered, 
the  failure  to  enter  a  plea  of  not  guilty 
is  harmless,  if  erroneous,  where  the  trial 
proceeds  as  if  accused  had  so  pleaded. 
State  V.  Gould  (Mo.)  1916E-855. 

218.  Nonjoinder  as  Harmless  Error  — 
Suit  by  Insurer  to  Enforce  Subrogation. 


Where,  after  the  owner  of  property  de- 
stroyed by  fire  communicated  by  a  locomo- 
tive collected  the  insurance,  the  raUroad 
company  paid  the  balance  of  the  loss  above 
the  insurance,  the  fact  that,  in  a  suit  by 
the  insurer  against. {he  railroad  company, 
the  owner  was  not  made  a  party,  is  harm- 
less, if  erroneous.  Pittsburgh,  etc.  E.  Co. 
V.  Home  Ins.  Co.  (Ind.)  1918A-828. 

219.  Where,  in  an  action  for  rent,  the 
defendant  had  judgment  because  it  ap- 
peared that  he  had  rightfully  attorned  and 
paid  to  the  mortgagee,  such  judgment  will 
not  be  reversed  merely  because  in  his 
pleading  the  defendant  described  the  per- 
son to  whom  payment  was  made  as  "the 
owner  of  the  reversion,"  when  it  appeared 
from  the  pleadings  that  sucli  person  was 
also  the  mortgagee.  Hinck  v.  Cohn  (N.  J.) 
1916D-200.  (Annotated.) 

220.  Refusal  of  Leave  to  Amend  Harm- 
less. Where  plaintiff  did  not  recover,  the 
denial  of  leave  to  file  an  amended  peti- 
tion, claiming  greater  damages,  is  not  pre- 
judicial. Smith's  Admx.  v.  Middlesboro 
Electric  Co.  (Ky.)  1917A-1164. 

221.  Permitting    Wiihdrawal    of    Plea. 

Error  of  the  court  in  permitting  defendant 
to  withdraw  its  pleas  and  file  a  new  plea 
supported  by  affidavit  and  certificate  is 
harmless,  where  the  case  has  proceeded  to 
trial,  and  verdict  has  been  rendered  in 
favor  of  plaintiff  for  the  full  amount 
claimed  by  her.  Shoop  v.  Fidelity,  etc  Co. 
(Md.)  1916D-954. 

222.  Striking  Out  Unfounded  Plea. 
Where  the  relation  between  plaintiff,  su- 
ing for  a  personal  injury,  and  defendant, 
was  that  of  passenger  and  carrier,  the 
striking  out  of  defendant's  plea  of  the 
Workmen's  Compensation  Act  is  not  preju- 
dicial. Susznik  v.  Alger  Logging  Co. 
(Ore.)   1917C-700. 

223.  Overruling  Demurrer  to  Declara- 
tion. An  erroneous  ruling  upon  a  demur- 
rer to  each  of  two  counts  in  a  declaration, 
one  of  which  is  insufficient,  is  not  alone 
ground  for  reversal,  if  plaintiff's  evidence 
was  admissible  under  the  good  count  and 
was  sufficient  to  sustain  the  cause  of  action 
therein  averred.  Hill  v.  Norton  (W.  Va.) 
1917D-489. 

224.  Overruling  Demurrer  to  Plea. 
Where  defendant's  plea  was  improperly 
held  bad  on  demurrer,  but  the  evidence 
showed  that  the  plea  could  not  have  been 
established,  the  error  is  harmless.  McCar- 
ver  V.  Griffin  (Ala.)  1917C-1172. 

225.  Sustaining  Demurrer  to  Part  of 
Pleading,  Where  every  material  allega- 
tion embodied  in  an  affirmative  defense 
was  contained  in  other  parts  of  the  an- 
swer, the  sustaining  of  a  demurrer  thereto 
in  no  wise  prejudiced  the  defendant. 
Rogers  v.  Nevada  Canal  Co.  (Colo.) 
1917C-669. 


56 


DIGEST. 

1916C— 1918B. 


226.  Befusal  to  Compel  Amendment. 
Where  a  case  was  tried  on  the  issues  of 
uegligenee  of  defendant  and  of  contribu- 
tory negligence  of  plaintiff,  and  defendant 
was  permitted  to  show  contributory  negli- 
gence as  if  the  complaint  had  contained 
matters  defendant  contended  it  should  con- 
tain, the  error  in  refusing  to  compel 
plaintiff  to  amend  the  complaint  is  not 
prejudicial  to  defendant.  Switzer  v. 
Sherwood  (Wash.)   1917A-216. 

226^.  Where  the  petition  in  an  action 
for  the  death  of  a  street-car  passenger  in 
setting  forth  the  appointment  of  a  guard- 
ian ad  litem  was  defective,  but  tke  facts 
as  to  the  appointment  were  fully  shown, 
the  error  in  overruling  a  demurrer  to  the 
petition  is  harmless.  Froeming  v.  Stock- 
ton Electric  E.  Co.  (Cal.)   1918B-408. 

227.  Overmling  of  Demurrer.  Where 
the  issues  on  a  cross-complaint  are  ten- 
dered by  the  affirmative  allegations  of  the 
answer  of  defendant,  and  the  evidence  re- 
lating thereto  is  fully  presented,  and  the 
findings  embrace  them  all,  overruling  of 
demurrers  to  the  answers  to  the  cross-com- 
plaint is  not  prejudicial  error.  American- 
Hawaiian  Eng.,  etc.  Co.  v.  Butler  (Cal.) 
1916C-44. 

228.  Statutory  Offense  Tried  as  Common- 
law  Crime.  That  the  trial  judge  and 
solicitor  considered  that  an  indictment 
charged  a  common-law  conspiracy  is  not 
prejudicial  to  defendants  merely  because 
of  the  failure  of  the  judge  and  solicitor 
to  consider  Lawa  N.  Car.  1913,  c.  41,  pun- 
ishing combinations  in  restraint  of  trade. 
State  V.  Craft  (X.  Car.)  1917B-1013. 

229.  Deficiency  of  Pleading  Supplied  by 
Proof.  Under  Ala.  Practice  Rule  No.  45 
(61  South,  ix),  a  judgment  cannot  be  re- 
versed because  of  omitted  allegations  in 
the  complaint,  where  the  instructions 
specifically  required  proof  thereof.  Best 
Park,  etc.  Co.  v.  Rollins  (Ala.)  1917D-929. 

230.  Befusal  to  Make  Pleading  More 
Certain.  Under  Rem.  &  Bal.  Wash.  Code, 
§§  307,  1^72,  requiring  the  disregarding  of 
immaterial  errors  and  the  consideration  of 
the  case  on  the  merits,  the  erroneous  denial 
of  a  motion  to  make  a  complaint  in  a  mal- 
practice suit  more  definite  and  certain  as 
to  the  usual  test  for  discovering  preg- 
nancy, which  it  was  alleged  defendant  did 
not  use,  is  harmless,  where  defendant  was 
not  surprised,  or  precluded  from  introduc- 
ing any  appropriate  testimony.  Just  v. 
Littlefield  (Wash.)  1917D-705. 

231.  Defect  in  Pleading.  Under  Rom.  & 
Bal.  Wash.  Code,  §  1752,  requiring  the  su- 
preme court  to  decide  the  case  on  its 
merits,  the  refusal  to  grant  a  nonsuit,  in 
an  action  for  libel,  on  the  ground  that, 
when  the  motion  was  made,  the  complaint 
contained  no  allegation  that  the  offending 
publication  was  untrue,  is  not  error,  where 


the  complaint  negatived  the  truth  of  the 
published  charges  by  the  assertion  of  the 
opposite,  and  where  the  answer  averred 
their  truth.  Wilson  v.  Sun  Pub.  Co. 
(Wash.)  1917B-442. 

(3)    'Enora  in  Admission  of  Evidence, 
(a)     In  General. 

232.  Although  in  a  prosecution  for  lar- 
ceny of  estate  moneys  by  the  executor  the 
papers  on  which  his  letters  were  revoked 
should  not  have  been  received  over  his 
objection,  the  error  is  harmless,  when  the 
judge  rules  that  they  shall  not  be  read  to 
the  jury  without  defendant's  consent. 
People  V.  Gibson  (N.  Y.)  1918B-509. 

233.  Errors  in  admission  of  evidence,  if 
technical  and  not  affecting  defendant's 
substantial  rights,  must  be  disregarded, 
under  N.  Y.  Code  Cr.  Proc,  §  542,  requir- 
ing judgment  on  appeal  without  regard  to 
such  errors.  People  v,  Gibson  (N.  Y.) 
1918B-509. 

234.  Harmless  Error — Admission  of  Evi- 
dence Out  of  Order.  The  action  of  the 
court  in  admitting  evidence  as  a  part  of 
plaintiffs'  main  case,  which  was  but  im- 
peaching evidence,  and  which  could  be 
made  proper  by  plaintiffs'  adoption  of  a 
different  order  of  proof,  is  not  prejudicial. 
Williams  v.  Kidd  (Cal.)   1916E-703. 

235.  Proper  Answer  to  Improper  Ques- 
tion. In  an  action  against  a  surgeon  for 
amputating  plaintiff's  leg  without  her  con- 
sent, where  she  testified  that  she  was 
ignorant  that  it  had  been  amputated  for 
several  days  after  the  operation,  if  a  ques- 
tion asked  a  nurse  as  to  whether  plaintiff 
knew  her  leg  had  been  amputated  is  im- 
proper as  calling  for  the  witness'  cognition 
of  the  state  or  operation  of  plaintifiTs 
mind,  it  is  rendered  harmless  by  her  an- 
swer that  plaintiff  would  lie  there  and 
watch  the  leg  being  dressed  every  time  it 
was  dressed,  as  she  stated  only  cognizable 
facts.  Barfield  v.  South  Highlands  In- 
firmary (Ala.)  1916C-1097. 

236.  Admission  of  Trivial  Evidence.  In 
an  action  against  a  surgeon  for  amputat- 
ing plaintiff's  leg  without  her  consent, 
where  plaintiff  intimated  that  from  the 
time  she  went  to  the  hospital  where  she 
was  operated  on  and  was  put  in  defend- 
ant's charge  she  was  kept  in  ignorance  of 
the  danger  of  her  condition  and  deceived 
as  to  the  measures  that  would  be  resorted 
to  for  her  cure,  the  admission  of  testimony 
for  defendant,  apparently  in  answer  to  this 
contention,  that  on  the  morning  she  was 
removed  to  the  hospital  defendant  told 
plaintiff's  mother,  who  was  making  the 
arrangement  for  plaintiff,  that  he  "would 
not  guarantee  her,"  but  that  he  would  do 
all  he  could  for  plaintiff,  relates  to  a  mat- 
ter of  so  little  significance  as  not  to  re- 
quire a  reversal,  especially  as  it  is  proba- 


APPEAL  AND  ERROR. 


57 


bly  competent  to  rebut  the  contention  that 
defendant  made  an  agreement  or  promise 
to  restore  plaintiff  to  health  or  to  save  her 
leg.  Barfield  v.  South  Highlands  Infirm- 
ary (Ala.)   1916C-1097. 

237.  Irresponsive  Answer  by  Witness. 
Motion  to  exclude  an  answer  merely  be- 
cause not  responsive  can  only  be  availed 
of  by  the  interrogator.  Borok  v.  Birming- 
ham  (Ala.)   191&C-1061. 

238.  Admission  of  Evidence  —  Trial 
Without  Jury.  The  admissibility  of  evi- 
dence for  the  plaintiff  in  a  cause  tried 
without  a  jury  will  not  be  considered  upon 
objection  by  the  defendant,  where,  irre- 
spective of  such  evidence,  sufficient  is 
found  in  the  record  to  support  the  judg- 
ment. Rogers  v.  Nevada  Canal  Co.  (Colo.) 
1917C-669.  (Annotated.) 

239.  Evidence  not  Prejudicial — Conceal- 
ment of  Accused  by  Officers  After  Arrest. 
The  admission  of  the  testimony  of  the 
sheriff  of  a  county  in  which  a  murder  was 
committed,  that  he  moved  accused  from 
one  place  to  another,  and  subsequently 
moved  him  again  because  the  newspaper 
reporters  had  located  him,  is  not  preju- 
dicial to  accused  on  the  theory  that  it  was 
necessary  for  the  sheriff  to  conceal  him  to 
protect  him  and  thereby  inflaming  the 
minds  of  the  jury  against  him.  State  v. 
Giudice   (Iowa)   1917C-1160. 

240.  Admission  of  Evidence  as  to  Dam- 
ages. There  being  other  independent  evi- 
dence of  negligence,  any  error  in  admission 
of  evidence  thereof,  which,  would  in  all 
probability  go  only  to  the  quantum  of 
damages,  is  not  sufficiently  prejudicial  to 
require  reversal;  affirmance  being,  because 
of  excessive  damages,  conditional  on  re- 
mission of  part  of  recovery.  Cranford  v. 
O'Shea  (Wash.)  I916C-108i. 

241.  The  prejudicial  effect  of  the  admis- 
sion of  such  evidence  is  not  cured  by  the 
action  of  the  prosecuting  attorney  in  de- 
sisting from  that  line  of  proof  after  the 
court  intimated  that  the  evidence  of  the 
daughter's  illness  must  be  limited  to  the 
question  of  her  symptoms,  where  the  evi- 
dence is  never  stricken  from  the  record 
and  the  whole  subject  of  the  daughter's 
illness  and  death  is  subsequentlv  opened  in 
rebuttal.  People  v.  Buffom  (N.  Y.)  1916D- 
962. 

(b)     Instruction  to  Cure  Error. 

242.  Where,  in  an  action  for  a  railroad 
brakeman's  death  by  catching  his  foot  in 
the  unblocked  space  between  the  main  and 
guard  rails,  the  court  submitted,  as  the 
only  ground  of  negligence,  the  failure  to 
block  such  space,  the  admission  of  evi- 
dence of  loose  boards  lying  near  the  place 
of  accident  could  not  have  prejudiced  de- 
fendant. Korab  v.  Chicago,  etc.  R.  Co. 
(Iowa)  1916E-637. 


243.  Evidence  Stricken  Out.  The  erro- 
neous admission  of  evidence  is  not  preju- 
dicial, where  it  was  stricken  from  the 
record,  and  the  jury  admonished  to  dis- 
regard it.  State  V.  Inlow  (Utah)  1917A- 
741. 

244.  Issue  not  Submitted  to  Jury.  In  an 
action  on  a  policy  on  a  stallion,  where  the 
plaintiff  was  allowed  to  testify  that,  in 
signing  an  application  which  the  com- 
pany's agent  had  filled  out  falsely,  he  had . 
no  intention  of  committing  fraud,  and 
where  the  court,  in  submitting  the  question 
of  fraud,  instructed  that  if  the  insured 
truthfully  states  the  facts  to  the  agent 
who  fills  out  the  answers  in  the  applica- 
tion, and  the  party  securing  the  insurance 
does  not  read  over  the  application,  and 
does  not  have  it  read  over  to  him,  and  has 
no  reason  to  suspect  disparity  between  the 
application  and  his  answers,  he  may  re- 
cover, and  is  not  guilty  of  fraud,  although 
the  agent  has  placed  in  the  application 
different  answers  than  those  given  him  by 
insured,  any  error  in  the  admission  of  the 
testimony  is  harmless,  since  the  question 
of  intent  was  not  submitted  to  the  jury. 
Simmons  v.  National  Live  Stock  Ins.  Co., 
1917D-42. 

245.  Evidence  and  Instructions  on  Imma- 
terial Issue.  The  evidence  being  conclu- 
sive that  plaintiff  was  a  proper  beneficiary 
when  the  member  died,  the  issue  of  de- 
pendency became  immaterial,  and  errors 
assigned  upon  the  reception  of  testimony 
and  the  instructions  of  the  court  upon 
such  issue,  even  if  well  founded,  are  with- 
out prejudice.  Anderson  v.  Royal  League 
(Minn.)  1917C-691. 

246.  Error  not  Cured  —  General  Bemark 
by  Court.  Prejudicial  error  in  the  admis- 
sion of  evidence  that  counsel  appearing 
for  defendant  represented  an  indemnity 
insurance  company  is  not  cured  by  plain- 
tiff's counsel  stating,  at  the  close  of  the 
evidence,  that  he  wanted  defendant's  tes- 
timony (on  cross-examination)  that  cer- 
tain counsel  appearing  for  him  represented 
an  indemnity  insurance  company,  ex- 
cluded, upon  which  the  court  said,  "That 
will  not  be  before  you  for  consideration,"* 
as  the  exclusion  attempted  was  too  gen- 
eral and  indefinite,  the  difficulty  of  eradi- 
cating the  unfavorable  and  erroneous 
impression  naturally  caused  thereby  de- 
manding a  more  definite  and  comprehen- 
sive pointing  out  of  the  matter  to  be  ex- 
cluded, and  the  court's  statement  was  not 
sufficient  in  direct,  positive,  and  un- 
equivocal instruction  to  eradicate  such 
impression,  which  should  have  been  elim- 
inated by  an  affirmative  instruction  to 
entirely  disregard  the  whole  matter  for  all 
purposes,  especially  in  view  of  the  fact 
that  the  attempted  exclusion  was  made 
some  time  after  the  admission  of  the  evi- 
dence, during  which  time  an  impression 
might  have  been  made  on  the  jury,  which 


58 


DIGEST. 

1916C— 1918B. 


the  court's  statement  failed  to  condemn 
and  remove.  Watson  v.  Adams  (Ala.) 
1916E-565. 

247.  Care  and  caution  is  to  be  exercised 
in  the  delicate,  difficult,  and  important 
matter  of  removing  the  prejudicial  effect 
of  evidence  improperly  admitted,  the  bur- 
den of  which  rests  upon  the  party  causing 
its  admission,  and  no  duty  rests  upon  the 
other  party  in  that  connection  after  sea- 
sonably and  properly  reserving  his  excep- 
tion to  its  admission.  Watson  v.  Adams 
(Ala.)  1916E-565. 

248.  In  a  prosecution  of  a  wife  for  the 
murder  of  her  husband,  who  died  of  ar- 
senical poisoning,  the  prejudicial  effect  of 
admitting  evidence  concerning  the  illness 
and  death  of  their  daughter,  apparently 
from  poisoning,  long  after  the  death  of 
the  husband,  is  not  cured  by  an  instruction 
tending  to  limit  the  effect  of  such  evidence 
to  illustrate  the  symptoms  caused  by 
arsenical  4)oisoning.  People  v.  Buffom 
(N.  Y.)  1916r)-962. 

(c)     Evidence  as  to  Admitted  or  Proven 
Facts. 

249.  Admission  of  hearsay  evidence  is 
not  prejudicial,  where  the  same  fact  is 
established  by  other  proof  in  the  record. 
Taylor  v.  Moseley  (Ky.)  1918B-1125. 

250.  Harmless  Error.  In  a  proceeding 
under  the  Mich.  Wtorkmen's  Compensation 
Act  (Pub.  Acts  [Ex.  Sess.]  1912,  No.  10), 
the  determination  of  the  Industrial  Acci- 
dent Board  will  not  be  reversed  because  of 
the  admission  of  hearsay  evidence,  where 
competent  evidence  making  a  prima  facie 
case  is  uncontradicted.  Keck  v.  Whittles- 
berger  (Mich.)  1916C-771. 

251.  Admission  of  Cumulatiye  Testi- 
mony. In  an  action  against  a  railroad  for 
death   of   a   switchman   in   service,   where 

■^.he  conductor  of  the  switching  crew  testi- 
fied as  to  the  exact  earnings  of  switchmen, 
the  admission  of  testimony  of  the  fireman 
of  the  crew  as  to  the  average  earnings  of 
switchmen  per  month  is  not  prejudicial  to 
'defendant,  as  the  evidence  is  only  cumu- 
lative.   Devine  v.  Delano  (111.)  1918A-689. 

252.  Evidence  of  Fact  Otherwise  Proved. 
Any  error  in  admitting  copies  of  letters 
was  harmless,  their  only  effect  being  to  ex- 
plain the  purpose  of  later  correspondence, 
and  such  purpose  being  made  evident  by 
subsequent  letters  in  evidence,  and  their 
effect  as  proof  of  a  certain  matter  being 
merely  cumulative,  so  that  they  might  be 
excluded  without  materially  lessening  the 
effect  or  weight  of  the  correspondence  as 
evidence  for  the  purpose  for  which  it  was 
offered.  Studebaker  Corporation  v.  Han- 
son (Wyo.)  1917E-557. 

253.  Trial  Without  Jury.  In  a  cause 
tried  by  the  court  without  a  jury,  the  ad- 


mission of  incompetent  evidence  cannot 
be  assigned  as  error  on  appeal,  unless  some 
proposition  essential  to  sustain  the  judg- 
ment has  no  other  evidence  to  support  it. 
Hannah  v.  Knuth  (Wis.)  1917C-681. 

(Annotated.) 

254.  Trial  Without  Jury.  In  an  equity 
case  tried  de  novo  in  the  supreme  court, 
the  admission  of  incompetent,  irrelevant, 
or  immaterial  evidence  is  not  reversible 
error,  if  there  is  sufficient  competent  and 
relevant  evidence  to  sustain  the  findings 
and  judgment;  the  incompetent  evidence 
being  disregarded  in  considering  the  case. 
Coe  V.  Wormell  (Wash.)  1917C-679. 

(Annotated.) 

255.  Trial  Without  Jury.  An  admission 
of  evidence  is  harmless,  the  trial  having 
been  without  a  jury,  and  there  having 
been  other  competent  evidence  sufficient  to 
sustain  the  findings.  Sherman  v.  Harris 
(S.  Dak.)  1917C-675.  (Annotated.) 

256.  Where  incompetent  evidence  is  ad- 
mitted in  a  trial  without  a  jury,  a  reversal 
is  warranted  only  when  the  record  shows 
that  the  competent  evidence  was  insuffi- 
cient to  support  the  findings,  or  that  the 
improper  evidence  affected  the  result. 
Eehling  v.  Brainard  (Nev.)   1917C-656. 

(Annotated.) 

257.  Proof  of  Conceded  Facts  Harmless. 
The  admission  of  evidence  that  a  witness 
for  the  state  discharged  his  counsel,  who 
Avas  also  counsel  for  the  defendant  on. 
trial,  and  told  the  prosecuting  attorney 
that  he  was  an  accomplice  to  the  murder, 
is  not  prejudicial  to  defendant,  where  it  is 
conceded  that  he  was  an  accomplice,  and 
defendant's  lawyer  admits  the  fact  that  he 
had  previously  represented  the  accomplice. 
People  V.  Becker  (Kan.)  1917A-608. 

258.  In  such  action  error  in  the  admis- 
sion of  opinion  evidence  as  to  decedent's 
knowledge  of  voltage  and  connections  is 
harmless,  where  the  facts  as  to  voltage  and 
connections  on  which  the  opinion  was 
based  are  detailed  to  the  jury,  so  that  the 
witness's  opinion  is  fairly  obvious  from 
the  facts  detailed,  which  necessarily  led 
to  the  same  opinion.  McCarthy's  Admr.  v. 
Northfield  (Vt.)   1918A-943. 

(Annotated.) 

259.  Hypothetical  Questions  —  Basis  — 
Facts  Subsequently  Supplied.  While  it  is 
better  to  defer  hypothetical  questions 
asked  expert  witnesses  until  evidence  of 
all  the  facts  hypothesized  has  been  offered, 
where  evidence  of  such  facts  is  subse- 
quently offered  and  the  error  is  substan- 
tially cured,  it  does  not  require  a  reversal. 
Barfield  v.  South  Highlands  Infirmary 
(Ala.)    1916C-1097. 

(d)     Irrelevant  Evidence. 

260.  Where  in  a  prosecution  for  murder 
the  theory  of  the  state  was  that  defend- 


APPEAL  AND  ERPtOR. 


59 


aut,  a  police  lieutenant,  instigated  the 
crime  because  deceased,  a  professional 
gambler,  angry  because  defendant  raided 
his  place,  threatened  to  disclose  defend- 
ant's connection  with  gamblers,  admission 
of  evidence  of  conversations  between  a 
police  commissioner  and  the  captain  of  a 
precinct  relative  to  keeping  a  policeman  in 
the  place  raided  is  not  prejudicial  to  de- 
fendant. People  V.  Becker  (Kan.)  1917 A- 
600. 

261.  Cross-examination  on  Immaterial 
Matter — ^Harmless  Error.  Permitting  de- 
fendant in  a  homicide  case  to  be  asked  on 
cross-examination  whether  he  had  previ- 
ously carried  a  revolver,  which  question 
was  immaterial  to  the  issues  involved,  if 
error,  is  harmless,  where  he  answered  in 
the  negative,  especially  where  he  had 
offered  in  evidence  proof  tending  to  show 
his  previous  good  character  as  a  quiet  and 
peaceable  citizen.  State  v.  Cooper  (W. 
Va.)   1917D-453. 

(4)     Exclusion  of  Evidence, 
(a)     In  General. 

262.  In  an  action  for  wrongful  death, 
the  erroneous  exclusion  of  evidence  that 
deceased  could  not  obtain  life  insurance 
is  harmless.  Nicoll  v.  Sweet  (Iowa) 
1916C-661. 

263.  The  court's  exclusion  of  a  pre- 
liminary question,  on  an  issue  as  to  a 
mother's  damage  by  the  wrongful  death 
of  her  son  asking  if  her  husband  did  not 
make  good  wages  in  order  to  minimize  her 
pecuniary  loss  by  the  death  of  her  son,  is 
not  prejudicial  to  defendant.  Brown  v. 
Erie  R.  Co.  (N.  J.)  1917C-496. 

(b)     Evidence  Previously  or  Subsequently 
Admitted. 

264.  Exclusion  of  Cumulative  Evidence. 
It  is  not  prejudicial  error  to  refuse  to  al- 
low cumulative  evidence  of  an  undisputed 
fact.     Mason  v.  Bowcn  (Ark.)  1917D-713. 

265.  Harmless  Error  —  Question  An- 
swered Though  Objection  Sustained  There- 
to. Error  cannot  be  predicated  on  sustain- 
ing objection  to  question  asked  witness, 
where  the  witness  answered  the  question. 
Thompson  v.  Alexander  City  Cotton  Mills 
Co.  (Ala.)  1917A-721. 

266.  Subsequently  Admitted.  The  erro- 
neous exclusion  in  a  criminal  prosecution 
of  evidence  of  accused's  reputation  as  an 
honest  and  good  citizen  is  harmless  where 
the  witness  was  subsequently  allowed  to 
answer  the  question.  State  v.  Schuman 
(Wash.)   1918A-633. 

267.  Error  in  excluding  evidence  is  harm- 
less, where  it  is  subsequently  admitted. 
Streit  V.  Wilkerson  (Ala.)  1917E-378. 

(c)     Facts   Otherwise  Proved. 

268.  The  exclusion  of  testimony  where 
the  facts  to  be  established  thereby  were 


brought    out    by    other    evidence    in    the  , 
record,  is  not  prejudicial.    Taylor  v.  Mose- 
ley  (Ky.)  1918B-1125. 

269.  Where  the  transcript  of  the  testi- 
mony of  a  witness  on  a  former  trial  is  in- 
troduced in  evidence,  any  error  in  ruling 
on  questions  to  the  witness  as  to  his  former 
testimony  is  harmless.  People  v.  Becker 
(Kan.)   1917A-600. 

270.  Error  in  the  exclusion  of  such 
statements,  in  view  of  the  witness'  cross- 
examination  and  other  evidence  leaving  no 
doubt  as  to  his  interest  in  securing  a  con- 
viction, is  a  technical  error  not  affecting 
the  defendant's  substantial  rights  which 
N.  y.  Code  Cr.  Proc,  §  542,  expressly  re- 
quires the  appellate  court  to  disregard. 
People  V.  Roach  (N.  Y.)  1917A-410. 

271.  In  an  action  •  for  the  death  of  a 
hackman,  claimed  to  have  been  caused  by 
negligent  construction  of  a  street,  where 
evidence  of  criminal  charges  against  him 
was  introduced  to  show  that  his  mind 
would  have  been  diverted  from  his  legiti- 
mate business,  and  that  he  would  have 
been  required  to  spend  money  in  defend- 
ing them,  the  exclusion  of  the  indictments 
themselves,  the  substance  of  the  charges 
having  been  stated,  is  not  error.  Richard- 
son V.  Sioux  City  (Iowa)  1918A-618. 

272.  Death  by  Wrongful  Act  —  Evidence 
— ^Habits  and  Character  of  Deceased.  Re- 
jection of  evidence,  in  an  action  for  death 
of  a  white  man,  that  the  negro  woman 
who  was  accompanying  him  was  a  strum- 
pet, is  harmless;  other  evidence  admitted 
tending  as  fully  to  show  his  dissolute 
character  and  depraved  disposition.  Chi- 
cago, etc.  R.  Co.  v.  Gunn  (Ark.)  1916E- 
648.  (Annotated.) 

(d)     Error  Cured  by  Verdict. 

273.  In  an  action  by  the  grantee  of 
leased  premises  against  the  tenant  to  re- 
cover the  value  of  a  growing  crop  deliv- 
ered by  the  tenant  to  the  grantor, 
defended  on  the  ground  that  the  crop  was 
orally  reserved  by  the  grantor,  where  the 
jury  finds  for  defendant,  the  exclusion  of  a 
question  asked  the  grantee  as  to  what 
steps  he  took  to  protect  himself  against 
the  delivery  of  the  crop  is  harmless.  Wil- 
lard  V.  Higdon  (Md.)  1916C-339. 

(e)     Immaterial  Evidence. 

274.  Questions  to  and  answers  by  a  wit- 
ness are  not  prejudicial  to  the  defendant, 
where  they  in  no  wise  tend  to  connect  de- 
fendant with  the  murder  charged.  Brind- 
ley  V.  State  (Ala.)  1916E-177. 

275.  Error  in  the  exclusion  of  such  evi- 
dence was  harmless,  where  it  appeared  that 
such  defendant,  prior  to  and  subsequent 
to  such  time,  had  opened  the  headgate  of 
its  ditches,  contrary  to  the  orders  of  the 
water  officers.  Rogers  v.  Nevada  Canal  Co. 
(Colo.)   1917C-669. 


60 


DIGEST. 

19ieC— 1918B. 


276.  In  an  action  for  the  conversion  of 
electrical  machinery,  sold  with  reserved 
title,  to  be  placed  by  the  buyer  in  an  elec- 
tric plant  constructed  for  defendant  city, 
any  error  in  excluding  evidence  by  the 
mayor  and  council  as  to  whether  they 
would  have  consented  to  having  the 
machinery  placed  in  the  plant,  had  they 
known  of  the  reserved  title,  is  not  reversi- 
ble, being  merely  as  to  purpose  and  not  a 
fact.  Allis-Chalmers  Co.  v.  Atlantic 
(Iowa)   1916D-910. 

(f )     Error  Cured  by  Admission  of  Counsel. 

277.  "Where  the  trial  court  excluded  tes- 
timony offered  by  defendant  but  later 
changed  his  ruling  after  the  witness  had 
gone  home,  and  the  prosecuting  attorney 
admitted  the  facts  which  defendant 
offered  to  prove  by  that  witness,  the  de- 
fendant is  not  thereby  prejudiced.  Mason 
V.  State  (Tex.)  1917D-l094. 

(5)     Other  Errors  in  Eelation  to  Evidence. 

278.  Exclusion  of  Opinion  Evidence. 
The  exclusion  of  such  opinion,  if  error,  is 
harmless,  where  it  appears  that  the  witness 
had  seen  a  man  fall  from  a  different  kind 
of  scaffold,  which  fact  would  not  have 
aided  the  jury  in  determining  whether 
there  was  any  reason  for  defendant  to 
anticipate  injury  from  the  falling  of  a 
man  from  a  staging  such  as  was  used  in 
the  present  case.  Weilbacher  v.  J.  W. 
Putts  Co.  (Md.)  1916C-115. 

279.  Suf&ciency  of  Evidence.  This  court 
will  not  grant  a  new  trial,  where  the  evi- 
dence is  voluminous  and  conflicting,  unless 
palpably  insufficient  to  sustain  the  verdict, 
or  the  amount  clearly  evinces  partiality, 
prejudice,  or  passion  on  the  part  of  the 
jury,  or  that  they  were  misled  by  some 
mistaken  view  of  the  merits  of  the  case. 
Hill  V.  Norton  (W.  Va.)  1917D-489. 

280.  Sufficiency  of  Evidence.  The  judg- 
ment in  a  case  tried  without  a  jury  will 
not  be  disturbed  on  appeal,  though  the  evi- 
dence is  conflicting,  where  it  is  supported 
by  any  substantial  evidence.  Rehling  v. 
Brainard  (Nev.)  1917C-656. 

281.  Exclusion  of  Evidence,  Error  in 
excluding  evidence  v/hich  \yould  not  have 
affected  the  verdict  sustained  by  evidence 
is  not  prejudicial.  Murphy  v.  Skinner's 
Estate  (Wis.)  1917A-817. 

Note. 
Effect  of  admission  of  incompetent  evi- 
dence in   trial  before  court   without  jurv. 
1917C-660. 

(6)     Errors  in  Instructions, 
(a)     In  General. 

282.  Errors  Held  Harmless.  While  some 
of  the  grounds   of  the   motion   for  a  new 


trial  may  have  presented  inaccuracies  in 
the  charge  or  rulings,  none  of  them  show 
error  requiring  a  reversal.  Mitchell  v. 
Langley  (Ga.)   1917A-469. 

283.  Instmctions  and  Eulings  Approved. 
No  reversible  errors  appear  in  the  charge 
or  rulings.  Thysell  v.  McDonald  (Minn.) 
1917C-1015. 

284.  Instruction  on  Contributory  Negli-. 
gence  Prejudicial.  Under  Gal.  Const.,  art. 
ti,  §  4i,  and  Cal.  Code  Civ.  Proc,  §  475, 
directing  courts  to  disregard  any  instruc- 
tion on  appeal  which,  in  the  opinion  of  the 
court,  does  not  affect  the  substantial 
rights  of  the  parties,  in  an  action  against 
a  street  railroad  by  a  passenger  injured 
while  riding  on  the  step  of  a  car,  a  charge 
that,  as  matter  of  law,  plaintiff  was  not 
guilty  of  contributory  negligence  in  so  rid- 
ing is  prejudicial  error,  as  vitally  affecting 
the  railroad's  substantial  rights.  Kelly  v. 
Santa  Barbara  Consol.  R.  Co.  (Cal.)  1917C- 
67. 

285.  Duty  to  State  Ground  for  Refusal. 
It  is  not  reversible  error  or  ground  for 
new  trial  for  the  trial  court  to  fail  to  call 
the  attention  of  counsel  to  typographical 
errors  or  misprisions  in  requested  charges, 
when  they  are  refused  on  that  ground 
alone.  Thompson  v.  Alexander  City  Cot- 
ton Mills  Co.  (Ala.)  1917A-721. 

286.  Errors  Held  Ground  for  Reversal. 
In  this  action  [against]  a  railroad  com- 
pany to  recover  damages  for  personal  in- 
juries, the  evidence  tends  to  show  that  the 
plaintiff  was  guilty  of  contributory  negli- 
gence, and  there  is  no  evidence  of  money 
paid  out  or  of  indebtedness  incurred  in 
endeavoring  to  have  the  injured  party 
cured,  and  no  evidence  of  the  extent  and 
value  of  the  loss  of  service  or  time,  and 
the  amount  of  the  verdict  indicates  harm- 
ful error  in  the  charge  that  the  jury  "are 
entitled  to  take  into  consideration  any 
money  paid  out  by  the  plaintiff  in  en- 
deavoring to  have  the  plaintiff,  Dartha 
Carter,  healed  or  cured;  and  loss  of  time," 
therefore  the  judgment  should  be  reversed. 
Florida  East  Coast  R.  Co.  v.  Carter  (Fla.) 
1916E-1299. 

287.  Instructions  as  to  Form  of  Verdict. 

In  a  prosecution  for  assault  with  intent  to 
kill  with  malice,  an  instruction  that,  if  ac- 
cused wilfully  and  of  his  malice  afore- 
thought did  shoot  at  another  with  intent 
to  kill,  he  should  be  found  guilty  of  assault 
with  intent  to  kill,  is  erroneous,  because 
failing  to  require  the  jury  to  specify  in  the 
verdict  whether  the  act  was  done  with 
malice  is  harmless  to  accused.  State  v. 
Gould  (Mo.)  1916E-855. 

288.  Instruction  on  Immaterial  Issue. 
Any  error  in  instructions,  which  were  ex- 
pressly confined  to  other  issues  than  the 
one  involved  on  appeal,  is  harmless.  In  re 
Bawlings'  Will   (N.  Car.)   1918A-948. 


APPEAL  AND  EEROR. 


61 


289.  Technical  Error.  Plaintiff  whose  ac- 
tion for  malicious  proseeution  was  dis- 
missed because  of  the  evidence  of  probable 
cause,  cannot  complain  of  unfavorable  in- 
structions, though  technically  incorrect. 
Hightower  v.  Union  Savings,  etc.  Co. 
(Wash.)   1918A-489. 

290.  Failure  to  Submit  Issue.  In  an  ac- 
tion on  open  account,  where  defendant  set 
up  a  counterclaim  asserting  unpaid  salary, 
the  issue  being  simple  and  the  evidence 
concerning  it  so  brief  that  the  jury  could 
not  have  failed  to  distinctly  understand 
the  dispute  between  the  parties  in  respect, 
to  salary,  verdict  being  returned  that  de- 
fendant was  not  entitled  to  the  salary 
claimed,  any  error  in  the  instructions,  by 
not  fairly  presenting  the  issue  of  the 
counterclaim  to  the  jury^  is  harmless. 
Givens  v.  Pierson's  Administratrix  (Ky.) 
19170-956. 

291.  Failure  to  Submit  Contention.  Fail- 
ure, in  submitting  the  issues,  in  a 
malpractice  case  for  not  seasonably  dis- 
covering and  setting  a  fracture  of  the 
femur  just  above  the  knee,  to  state  defend- 
ant's contention  that  he  knew  of  the 
fracture,  but  could  not  heal  it,  because  of 
synovitis  of  the  knee  joint  and  fractures 
just  above  the  angle,  is  harmless;  every 
feature  of  the  defense,  as  well  as  plain- 
tiff's case,  having  been  prominently  and 
skillfully  brought  out  during  a  long  trial. 
Crawford  v.  O'Shea  (Wash.)   1916C-1081. 

292.  Joint  Assignment  of  Error — Ruling 
Correct  as  to  One.  Where,  in  an  action 
against  several  defendants  for  malicious 
prosecution,  all  of  them  join  in  an  assign- 
ment of  error,  authorizing  an  allowance 
of  punitive  damages,  and  it  appears  that 
actual  malice  warranting  a  recovery  of 
punitive  damages  have  been  proved  as 
against  one  of  the  defendants,  the  assign- 
ment is  unsustainable.  Mcintosh  v.  Wales 
(Wyo.)   1916C-273. 

293.  Misjoinder  —  Effect.  Under  Va. 
Code  1904,  §  3258a,  providing  that  when- 
ever a  misjoinder  of  parties  shall  appear 
in  any  action,  the  court  may  order  the  ac- 
tion and  suit  to  abate  as  to  any  party  im- 
properly joined,  and  to  proceed  against  the 
others,  where  there  was  a  misjoinder  of 
parties  defendant  in  a  husband's  action 
against  his  wife's  parents,  brothers,  and 
sister  for  conspiracy  to  alienate,  a  reversal 
cannot  be  had  because  of  the  refusal  of  a 
requested  charge  that  unless  the  plaintiff 
proved  a  conspiracy  by  all  of  the  defend- 
ants there  could  be  no  recovery;  since  no 
real  difficulties  from  misjoinder  of  the 
defendants  could  arise  in  view  of  the  stat- 
ute. Ratcliffe  v.  Walker  (Va.)  1917E- 
1022. 

294.  Expert  Evidence — Instructions  Ap- 
proved. The  instructions  of  the  trial  court 
upon  the  question  of  expert  opinion  evi- 
dence held  not  prejudicial  to  the  rights  of 


defendant.     Jacobson  v.  Chicago,  etc.  B. 
Co.  (Minn.)   1918A-355 

295.  Instruction  After  Retirement.  Where 
the  action  of  the  court  in  instructing  the 
jury  in  writing,  after  their  retirement,  on 
a  material  point,  in  the  absence  of  counsel, 
was  in  no  manner  prejudicial,  reversal  will 
not    be    ordered.     Kimmins    v.    Montrose 

.  (Colo.)    1917A-407.  (Annotated.) 

296.  Instructions  Approved.  Instruc- 
tions requested  and  refused,  and  those 
given  and  challenged  as  error  and  argued 
in  the  brief,  examined  and  held  to  submit 
fairly  the  issues  of  fact  and  to  be  non- 
prejudicial. Northern  Trust  Co.  v.  Brueg- 
ger  (N.  Dak.)  1917E-447. 

297.  In  a  prosecution  for  involuntary 
manslaughter  committed  by  reckless  driv- 
ing of  an  automobile,  although  the  people's 
third  instruction  was  erroneous  in  stating 
that  a  speed  greater  than  that  mentioned 
in  the  statute  would  be  proof  of  negli- 
gence, when  by  statute  they  were  only 
made  prima  facie  evidence  of  negligence, 
defendant  is  not  prejudiced,  where  other 
instructions  charged  that  proof  of  negli- 
gence is  not  sufficient  to  warrant  convie- 
tion,  and  that  defendant's  violation  of  law 
would  not,  of  itself,  justify  a  conviction. 
People  v.  Falkovitch  (111.)  1918B-1077. 

(b)     Error  Cured  by  Other  Instructions. 

297^.  Charge  Construed  as  Whole.  Error 
cannot  be  predicated  upon  an  isolated  in- 
struction; but  all  charges  must  be  con- 
strued together,  and  if  any  erroneous  ten- 
dencies in  a  specific  portion  are  cured  by 
other  charges,  there  is  no  error.  Crawford 
V.  McElhinney  (Iowa)   1917E-221. 

298.  The  error  in  such  instruction  is 
harmless  where  the  only  evidence  of 
threats  is  a  threat  to  accuse  the  other  of 
grand  larceny,  especially  where  the  court, 
after  reading  subdivision  2  of  the  section, 
states  that  that  is  the  one  under  which  the 
prosecution  is  brought.  Lee  v.  State 
(Ariz.)  1917B-131. 

299.  Refusal  of  Instruction  Given  In 
Substance.  Where  a  requeeted  instruction 
that  the  jury  might  disregard  testimony  of 
a  witness  if  they  found  from  the  evidence 
that    he    had    made    contradictory    state- 

'  ments  as  to  material  facts  in  the  case  is 
refused,  but  others  substantially  embody- 
ing it  are  given,  any  error  in  the  refusal  is 
not  prejudicial.  Patterson  v.  State  (Ala.) 
191fiC-968. 

300.  Instructing  Orally  Harmlfiss. 
Where  the  court  gives  two  instructions, 
one  orally  over  objection  and  one  in  writ- 
ing, substantially  identical  and  both  cor- 
rect, the  party  objecting  is  not  prejudiced 
bv  the  giving  of  the  instruction  orally. 
Josephs  V.  Briant  (Ark.)  1916E-741. 

301.  Proof  of  Existence  of  Debts  —  Mo- 
tion for  New  Trial  Raising  Question.    The 


62 


DIGEST. 

1916C— 1918B. 


evidence  did  not  authorize  the  court  to 
submit  to  the  jury  the  question  of  whether 
there  were  no  unpaid  debts  of  the  estate  at 
all. 

(a)  The  ground  of  the  motion  for  a  new 
trial  on  this  subject  did  not  include  an 
entire  sentence;  and  the  same  is  true  in 
regard  to  one  or  two  other  grounds  of  the 
motion  for  a  new  trial.  If  there  were  no^ 
other  error,  such  exceptions  would  not  be 
considered  favorably  as  causes  for  re- 
versal; especially  in  view  of  the  general 
charge.     Sutton  v.  Ford  (Ga.)   1918A-106. 

302.  Instructiona  Given  in  Substance. 
The  refusal  of  requested  instructions  is 
not  prejudicial  error,  where  the  subject 
thereof  is  suflSciently  covered  by  the  gen- 
eral charge.  Taylor  v.  Northern  Coal,  etc. 
Co.   (Wis.)   19160-167. 

(c)     Error  Cured  by  Verdict. 

303.  Allowing  Less  Than  Statutory  Pen- 
alty. Where,  in  an  action  by  a  city 
against  an  auctioneer  to  recover  the  statu- 
tory penalty  for  carrying  on  his  business 
without  a  license,  an  instruction  stated 
that  the  fine  might  be  less  than  the  statute 
prescribed,  followed  by  verdict  and  judg- 
ment for  less,  such  instruction  and  judg- 
ment are  harmless  error  as  to  defendant. 
Kimmins  v.  Montrose   (Colo.)   1917A— 407. 

304.  Instruction  Cured  by  Verdict. 
Where  one  not  engaged  in  the  real  estate 
business  sued  for  the  usual  commissions 
for  procuring  a  purchaser  of  real  estate 
pursuant  to  a  contract  not  fixing  the  com- 
pensation, defendant  did  not  offer  any 
evidence  of  the  reasonable  value  of  the 
services,  and  the  jury  rendered  a  verdict 
for  $200  less  than  the  customary  commis- 
sion, the  error  in  an  instruction  authoriz- 
ing a  recovery  of  the  usual  commission  is 
not  reversible.  Morehouse  v.  Shephard 
(Mich.)  1916E-305.  (Annotated.) 

305.  Instruction  as  to  Degree  not  Found 
by  Jury.  An  instruction  which  was  proper 
in  defining  an  assault  in  the  third  degree, 
but  which  was  given  as  defining  an  assault 
in  the  second  degree,  was  without  preju- 
dice, even  if  erroneous  in  respect  to  the 
second  degree,  where  defendant  was  found 
not  guilty  in  the  second  degree,  but  guilty 
in  the  third  degree.  State  v.  Lehman 
(Minn.)  1917D-615. 

(d)     Error  Cured  by  Eeducing  Judgment. 

306.  Cure  of  Error  by  Remittitur.  Where 
a  judgment  is  excessive,  but  capable  of 
correction  by  computation  merely,  it  will 
not  be  reversed  by  an  appellate  court  if 
the  defendant  in  error  files  a  remittitur  of 
the  excess.  Van  Boskerck  v.  Torbert 
(Fed.)  1916E-171. 

(e)     Error  Cured  by  Want  of  Evidence. 

307.  Refusal  of  Instructions — Party  not 
Entitled  to  Recover.    In  an  action  for  libel 


and  slander,  the  refusal  to  give  instruc- 
tions offered  by  plaintiff,  Is  held  not  to  be 
prejudicial  error,  where  the  plaintiff  had 
no  case  in  any  event  because  the  language 
used  was  not  libelous  per  se,  and  the  spe- 
cial damages  avowed  were  too  remote  and 
speculative  to  authorize  a  recovery.  Tay- 
lor V.  Moseley  (Ky.)  1918B-1125. 

308.  As  to  Exceptions  in  Statute  —  No 
Evidence  to  Show  Exception.  ^Vhere  it 
appears  that  accused  either  killed  a  girl 
outright  or  in  an  attempt  to  procure  an 
abortion,  but  there  is  no  evidence  that  an 
operation  was  necessary  to  preserve  the 
life  of  the  mother  or  child,  any  error  in 
failing  to  point  out  the  statutory  excep- 
tions or  justification  for  such  an  operation 
is  harmless.  State  v.  Farnam  (Ore.) 
1918A-318. 

309.  Permitting  Conviction  as  Accessory 
— Error  Harmless.  In  a  prosecution  for 
receiving  the  earnings  of  a  common  pros- 
titute, the  evidence  showed  that  accused,  a 
police  officer,  directed  her  to  make  pay- 
ments to  his  codefendant,  who  ran  a  cigar 
store,  and  that  such  payments  were  made 
for  protection.  Accused,  and  his  code- 
fendant, who  received  the  payments,  were 
prosecuted  and  granted  separate  trials. 
The  court's  charge,  that  to  convict  the 
state  must  prove  that  the  woman  was  a 
common  prostitute,  that  either  accused 
himself  accepted  from  her  money  without 
any  consideration  or  advised  and  aided  his 
codefendant  to  obtain  money  without  law- 
ful consideration,  and  it  was  earned  in 
prostitution,  is  harmless,  though  erroneous 
in  authorizing  accused's  conviction  as  an 
accessory  where  the  information  charged 
him  as  a  principal,  the  evidence  clearly 
showing  either  that  accused  received  the 
money  himself  or  directed  its  payment  to 
his  codefendant,  who  did  not  necessarily 
know  that  money  was  in  the  envelopes 
left  with  the  codefendant  for  accused. 
State  V.  Schuman  (Wash.)  1918A-633. 

310.  Harmless  Error — Instruction.  Such 
statement  of  the  court  is  not  ground  for 
reversal,  even  though  counsel  had  not 
agreed  that  there  was  no  evidence  that 
the  accident  happened  in  any  other  way, 
where  in  fact  there  was  no  such  evidence. 
Dishmaker  v.  Heck  (Wis.)  1917A-400. 

(f)     Error  Cured  by  Evidence. 

311.  Assumption  of  Facts  —  Harmless 
Error.  In  an  action  for  personal  injuries, 
though  an  instruction  that  in  determining 
the  measure  of  damages  the  jury  might 
consider  the  mental  and  physical  pain  and 
suffering  endured  by  plaintiff  in  conse- 
quence of  the  injury,  the  character  and 
extent  of  the  injury,  if  permanent,  to- 
gether with  his  loss  of  time  and  service, 
and  find  for  him  in  such  sum  as  would  be 
reasonable  compensation  for  the  injury, 
assuming  that  he  sustained  injury  and  suf- 


APPEAL  AND  ERROR. 


63 


fered  pain  and  loss  of  time,  this  is  unim- 
portant where  these  facts  were  not  dis- 
puted. Hall  V.  Manufacturers'  Coal,  etc. 
Co.  (Mo.)   1916C-375. 

312.  Refusal  of  Instruction  Harmless. 
In  a  civil  action  for  rape,  where,  if  the 
jury  "believed  all  the  testimony  relative 
to  plaintiff's  indiscreet  conduct  to  which 
a  requested  instruction  applied,  they  could 
Btill  have  reasonably  determined  from  the 
other  evidence  that  defendant  forcibly  and 
unlawfully  raped  plaintiff  against  her  con- 
sent, the  refusal  of  the  instruction  is  harm- 
less. Jensen  v.  Lawrence  (Wash.)  1917E- 
133. 

(g)     Error  as  to  Immaterial  or  Abstract 
Matters. 

313.  Instructions  Approved.  None  of 
the  other  grounds  of  the  motion  for  a  new 
trial,  singly  or  together,  show  error  author- 
izing the  grant  of  a  new  trial.  There  was 
no  error  in  the  rulings  in  regard  to  evi- 
dence, which  were  complained  of.  If  there 
were  any  slight  verbal  inaccuracies  in  ex- 
pression in  one  or  two  of  the  charges,  they 
were  of  minor  importance,  and  would  fur- 
nish no  cause  for  reversal.  Sutton  v.  Ford 
(Ga.)    1918A-106. 

314.  Abstract  Instruction.  In  an  action 
against  a  carrier  for  damages  to  shipments 
of  tobacco,  an  instruction  that  it  was  the 
duty  of  the  defendant  and  its  connecting 
carriers,  after  the  tobacco  had  been  dam- 
aged by  flood  at  an  intermediate  point, 
and  as  soon  as  conditions  there  would  per- 
mit, to  promptly  carry  it  to  destination, 
and  that  defendant  and  its  connecting  car- 
riers failed  to  perform  such  duty  by  reason 
of  which  the  tobacco  was  further  damaged, 
in  so  far  as  bearing  on  the  question  of 
promptness,  merely  prefatory  and  abstract, 
and  not  submitting  the  question  itself,  is 
not  prejudicial  to  defendant.  Louisville, 
etc.  R.  Co.  V.  O'Brien  (Ky.)  1917D-922. 

315.  Irrelevant  Instruction  —  Harmless 
Error.  In  an  action  against  a  street  rail- 
way company  for  damages  from  a  collision 
with  plaintiff's  team,  where  the  court  cor- 
rectly states  the  rule  as  to  the  operation 
of  street  cars,  the  fact  that  he  also  in- 
structs that  the  rules  for  the  operation 
of  steam  cars  differ  from  those  for  the 
operation  of  street  cars  is  not  prejudicial. 
Pollica  V.  Twin  State  Gas,  etc.  Co.  (Vt.) 
1917C-1240. 

316.  In  such  action  an  instruction  that, 
if  defendant's  employees  knew,  or  ought 
to  have  known,  that  decedent  was  in  a 
place  of  danger,  it  was  their  duty  to  have 
given  warning,  is  not  prejudicial  error. 
Tavlor  v.  Northern  Coal,  etc.  Co.  (Wis.) 
19i6C-167. 

317.  Refusal    of    Instruction    Harmless. 

In  an  action  for  the  death  of  plaintiff's 
decedent,    a    licensee,    while    repairing    a 


coal-laden  steamer  at  defendant's  discharg- 
ing dock,  from  coal  dropping  from  the  dis- 
charging buckets,  where  the  questions 
whether  decedent  was  warned  not  to  be 
on  the  dock  between  the  hoisting  rig  and 
the  boat  while  the  hoisting  apparatus  was 
in  operation  were  immaterial,  and,  if  elim- 
inated, would  have  left  findings  sufficient 
to  support  the  verdict,  a  charge  putting 
the  burden  of  proof  upon  the  defendant  on 
the  issues  made  on  such  questions  is  not 
reversible  error.  Taylor  v.  Northern  Coal, 
etc.  Co.  (Wis.)  1916C-167. 

(7)     Rulings  as  to  Witnesses. 

318.  Leading  Questions.  This  court  will 
not  reverse  a  case  on  the  ground  that  lead- 
ing questions  were  asked,  unless  it  is 
shown  that  there  was  a  flagrant  abuse  of 
judicial  discretion.  Hammett  v.  State 
(Okla.)   1916D-1148. 

319.  Improper  Cross-examination  —  No 
Material  Fact  Elicited.  In  an  action  for 
injuries  to  plaintiff's  delivery  wagon  in  a 
collision  with  defendant's  street  car,  where 
defendant's  witnesses  stated  on  cross- 
examination  that  they  could  not  remember 
whether  the  bell  on  the  car  was  rung  or 
how  far  the  car  step  projected  into  the 
street,  their  testimony  is  not  prejudicial  to 
defendant,  even  though  not  proper  cross- 
examination.  Davidson  Bros.  Co.  v.  Des 
Moines  City  E.  Co.  (Iowa)  1917C-1226. 

(8)     Findings. 

320.  Other  Findings  Suflclent.  Wlicre 
findings  as  to  fraud  in  the  procuring  of  a 
guaranty  are  clear,  full,  and  explicit,  and 
are  themselves  sufficient  to  support  the 
judgment,  uncertainty  in  other  findings 
will  be  disregarded.  American  National 
Bank  v.  Donnellan  (Cal.)  1917C-744. 

321.  Inconsistency    of  Findings.     It   is 

only  when  a  judgment  rests  on  some  par- 
ticular finding  for  its  validity  and  support 
that  the  lack  of  sufficient  evidence  to  sup- 
port such  finding  or  the  contradictoriness 
between  two  findings  treating  of  the  same 
essential  matter  will  necessitate  a  re- 
versal. American  National  Bank  v.  Don- 
nellan (Cal.)  1917C-744. 

322.  Finding  by  Referee.  A  referee's 
findings  of  fact,  when  sustained  by  the 
court,  cannot  be  disturbed  on  appeal,  in 
the  absence  of  manifest  error.  Miller  v. 
Dilkes  (Pa.)  1917D-555. 

323.  Error  in  Unnecessary  Finding.  A 
finding  on  one  issue  being  sustained  by 
the  evidence  and  justifying  the  judgment, 
any  errors  as  to  other  issues  are  imma- 
terial. In  re  Rawlings'  Mill  (N.  Car.) 
1918A-948. 

324.  Immaterial  Finding  not  Supported. 

That  some  of  the  special  findings  are  not 
supported  by   the  evidence  will  not  war- 


64 


rant    the    overturning    of    the 

where  there  are  other  special  findings  sup 

ported    by    evidence    which    warrant    the 

judgment.    In  re  Williams'  Estate  (Mont.) 

I.917E-126. 

(9)     Submitting  Equity  Case  to  Jury. 

325.  Directing  Jury  Trial  of  Equitable 
Issue.  The  error  in  directing  a  trial  by 
jury  of  the  ipsiie,  in  a  suit  to  restrain  a 
nuisance,  is  immaterial,  where  the  jury 
failed  to  agree,  and  the  court,  at  rthe  re- 
quest of  both  sides,  set  aside  the  order 
for  submission  and  disposed  of  the  contro- 
versy on  the  evidence  in  the  case,  includ- 
ing that  taken  before  the  jury.  Face  v. 
Cherry  (Va.)   1917E-418. 

(10)     Striking  Out  Parties. 

326.  A  judgment  will  not  be  reversed  for 
technical  error  in  striking  out  the  names 
of  certain  plaintiffs  where  no  prejudice  re- 
sults to  defendant  therefrom.  Sweetser  v. 
Fox  (Utah)   1916C-620. 


(11) 


Misconduct  and  Argument  of  Coun- 
sel. 


327.  Eemarks  of  Counsel  —  Prejudice. 
Where  counsel  on  a  murder  trial  was  given 
every  opportunity  to  bring  all  the  facts 
before  the  jury,  and  the  court  in  sustain- 
ing an  objection  to  a  statement  by  the 
prosecuting  attorney  that,  of  the  articles 
coming  into  the  possession  of  the  chief  of 
police,  a  cap  was  the  most  important,  re- 
naarked  tliat  the  assumption  implied  some- 
thing that  was  not  of  record  and  not  evi- 
dence in  the  case,  error,  if  any,  in  such 
remark  is  not  prejudicial.  State  v. 
Mewhinney  (Utah)  1916C-537. 

328.  Instruction  to  Disregard.  Remarks 
of  counsel  in  argument,  which,  when  ob- 
jected to,  the  court  instructs  the  jury  to 
disregard,  are  not  cause  for  reversal  of  a 
judgment  on  a  verdict  otherwise  free  from 
error.  State  v.  Cooper  (W.  Va.)  1917D- 
453. 

329.  Misconduct  Harmless.  Improper 
argument  of  counsel,  the  only  injurious 
effect  of  which  would  be  to  enhance  dam- 
ages, will  be  deemed  harmless;  the  verdict 
not  being  complained  of  as  excessive. 
Chicago,  etc.  R.  Co.  v.  Gunn  (Ark.)  1916E- 
648. 

330.  Curing  Misconduct.  The  prosecut- 
ing attorney  in  his  closing  argument  read 
to  the  jury  certain  testimony  which  had 
been  stricken  by  the  court.  Upon  objec- 
tion, the  prosecutor  insisted  that  he  was 
reading  from  the  record  of  the  official 
stenographer,  and  that  the  evidence  was  not 
stricken,  and  the  court  overruled  the  objec- 
tion. The  court  also  refused  an  instruc- 
tion that  the  evidence  had  been  stricken, 
and  that  the  jury  should  not  consider  it  or 
the   remarks    by    the    prosecutor,   and,   in- 


DIGEST. 

1916C— 1918B. 
judgment  stead,  charged  that  it  appeared  from  the 
record  that  the  evidence  had  been  stricken 
out  and  they  should  therefore  disregard  it. 
adding  that  the  reference  by  the  counsel 
for  the  defendant  to  the  fact  that  the  evi- 
dence was  not  furnished  by  the  state  was 
also  withdrawn  from  the  jury.  Held,  that 
the  instruction  given  was  too  vague  and 
uncertain,  that  the  defendant  was  entitled 
to  an  emphatic  instruction  that  the  jury 
should  disregard  the  evidence,  and  the 
remark  by  the  counsel  thereon  and  the 
court's  action  in  the  matter  constituted 
reversible  error.  Levi  v.  State  (Ind.) 
1917A-654. 

331.  Misconduct  of  Counsel  Harmless. 
Misconduct  was  harmless  where  the  court 
admonished  the  jury  that  their  verdict 
must  be  based  upon  the  evidence  and  not 
upon  statements  of  counsel,  for  the  jury 
must  have  understood  that  the  evidence 
referred  to  was  immaterial  and  irrelevant. 
State  V.  Inlow  (Utah)  1917A-741. 

332.  A  judgipent  should  never  be  re- 
versed by  reason  of  misconduct  of  counsel 
at  the  trial,  unless  the  appellate  court  is 
of  the  opinion  such  misconduct  had  pre- 
vailing influence  upon  the  jury,  to  the 
detriment  of  appellant.  Therianlt  v.  Cali- 
fornia Ins.  Co.  (Idaho)  1917D-818. 


Note. 

Restricting  argument  of  counsel  in  crim- 
inal action  as  constituting  reversible  error. 
1917A-718. 

(12)     Refusal  of  Continuance. 

333.  Denial  Held  Harmless  —  Facts 
Proved  Without  Absent  Witness.  Sections 
2986  and  2987,  N.  Mex.  Comp.  Laws  1897, 
require  a  continuance  of  a  cause  for  ab- 
sence of  a  witness  only  in  case  the  appli- 
cant has  "no  other  witness  bj'  whom  such 
facts  can  be  fully  proved."  Where,  after 
the  overruling  of  a  motion  for  continuance, 
the  desired  fact  is  fully  proved  by  other 
witnesses,  the  ruling  of  the  court  in  deny- 
ing the  continuance,  even  if  technically 
erroneous  when  made,  is  rendered  harmless. 
State  V.  Chavez  (N.  Mex.)  1917B-127. 

(13)     Transfer  of  Cause. 

334.  Effect  of  Giving  Effect  to  Affidavit 
Filed  Too  Late.     Even  if  the  affidavit  of 
prejudice  against  the  judge  before  whom  a  - 
case  is  pending  for  trial  is  not  seasonably', 
filed,  any  error  in  his  sending  it  for  trial  - 
to  a  judge  presiding  over  another  branch  . 
of  the  circuit  court  for  the  county  is  not 
jurisdictional    or   prejudicial.      Dibbert    v.  - 
Metropolitan      Investment      Co.       (Wis.) 
1916E-924. 

e.    Errors  must  Appear  from  Becord. 

(1)     In  General. 

335.  Prejudice  of  Judge  —  Absence  of 
Unfair  Ruling.     Prejudice  or  fear  on  the 


APPEAL  AND  ERROR. 


65 


part  of  the  trial  judge  on  account  of  the 
publication  of  a  newspaper  article  cannot 
be  presumed  where  the  record  shows  that 
the  rulings  of  such  Judge  were  eminently 
fair.  State  v.  Gordon  (N.  Dak.)  1918A- 
442. 

336.  Only  errors  of  law  apparent  on  the 
record  are  reviewable  on  error.  Facts 
which  do  not  appear  in  the  record  may  not 
be  brought  to  the  attention  of  the  supreme 
court  by  means  of  exhibits  attached  to 
briefs  of  counsel.  Holstein  v.  Benedict 
(Hawaii)   1918B-941. 

337.  Error  must  be  affirmatively  shown, 
and  is  not  shown  with  respect  to  the  sup- 
pression of  a  deposition  on  a  motion  on 
the  ground,  among  others,  that  notice  of 
the  time  and  place  of  taking  the  deposi- 
tion was  not  given,  where  the  evidence  on 
the  motion,  if  any  was  taken,  is  not  before 
the  Supreme  Court  and  it  did  not  appear 
that  the  deposition  was  not  suppressed  for 
lack  of  compliance  with  the  statute.  Bar- 
field  V.  South  Highlands  Infirmary  (Ala.) 
1916C-1097. 

(2)     Errors    in    Ruling    on    Evidence. 

338.  Matters  not  Shown  by  Record.  Al- 
leged errors  in  rulings  on  evidence  may  be 
disregarded;  the  rulings  and  objections 
not  being  shown  by  the  abstract.  People 
V.  Elliott  (HI.)   1918B-391. 

339.  Grounds  of  Motion.  Wihere  the  ab- 
stract does  not  state  the  grounds  assigned 
for  a  motion  to  withdraw  testimony  from 
the  jury,  the  exception  will  be  overruled. 
Davidson  Bros.  Co.  v.  De  Moines  City  R. 
Co.    (Iowa)    I917C-1226. 

340.  Question  Reviewed  —  Evidence  not 
in  Record.  Where  on  appeal  from  a  judg- 
ment sustaining  a  lien  of  attorneys  for 
fees  against  papers  in  their  possession  the 
certificate  of  evidence  as  to  their  lien  was 
not  in  the  record,  the  judgment  cannot  be 
reviewed  on  the  question  of  the  character 
of  their  possession  of  the  papers.  Me- 
Cracken  v.  Joliet  (111.)   1917D-144. 

341.  Sufficiency  of  Record  —  Showing  as 
to  Excluded  Testimony.  The  exclusion  of 
the  testimony  of  a  competent  witness 
which  should  have  been  admitted  is  not 
error,  where  the  record  does  not  show  that 
his  testimony  would  have  been  favorable 
to  the  appellant.  Hightower  v.  Union 
Savings,  etc.  Co.  (Wash.)  1918A-489. 

342.  Omission  from  Record.  Though  a 
telegram  was  erroneously  admitted  in  evi- 
dence, no  inference  of  prejudice  can  be  in- 
dulged in  where  the  telegram  is  not  set 
out  in  the  abstract.  Ottumwa  v.  Mc- 
Carthy Improvement  Co.  (Iowa)  1917E- 
1077. 

343.  Sufficiency  of  Record — Showing  as 
to  Excluded  Testimony.  Error  cannot  be 
predicated   on   the   exclusion   of   questions 

5 


where  the  expected  answers  are  not  shown 
by  the  record  on  appeal.  Schas  v.  Equi- 
table Life  Assurance  Soc.  (N.  Car.)  1918A- 
679. 

344.  Exclusion  of  Evidence.  That  plain- 
tiff may  complain  of  exclusion  of  his  evi- 
dence, offered  to  meet  defendant's  evidence 
of  C's  declarations,  the  record  should  show 
that  defendant  was  permitted  to  prove  C's 
declarations.  Comstoek's  Administrator  v. 
Jacobs  (Vt.)   1918A-465. 

345.  Admission  of  Evidence.  Where  the 
record  does  not  show  wTiat  a  paper  was 
or  its  relation  to  the  case,  error  in  per- 
mitting a  witness  to  testify  that  a  request 
was  made  for  a  paper  which  was  delivered 
to  a  deputy  sheriff  who  said  he  wanted 
to  read  over  the  statement,  is  not  preju- 
dicial.   State  V.  Giudice  (Iowa)  1917C-1160. 

346.  Record  not  Showing  Importance  of 
Testimony.  Where  the  record  does  not 
show  what  an  exhibit  referred  to  by  a 
witness  was,  and  by  whom  signed,  accused 
is  not  prejudiced  by  the  testimony  of  an 
officer  who  was  at  the  jail  when  the  ex- 
hibit was  signed  and  who  heard  the  talk 
between  the  county  attorney  and  accused 
prior  to  the  making  thereof,  that  no  prom- 
ise was  made,  though  the  officer  should 
have  been  required  to  give  the  conversa- 
tion instead  of  his  conclusion.  State  V. 
Giudice   (Iowa)   1917€-1160.  ' 

347.  Ruling  on  Unidentified  Exhibit. 
Where  the  record  does  not  disclose  what  an 
exhibit  was,  the  court  on  appeal  cannot 
say  that  the  trial  court  erred  in  refusing 
t(.  permit  an  identification  of  the  exhibit. 
State  V.  Giudice  (Iowa)  1917C-1160. 

348.  Documents  Excluded  at  Trial.  Doc- 
umentary evidence  excluded  below  cannot 
be  considered  on  appeal,  though  incorpo- 
rated in  the  abstract.  Schworm  v.  EVa- 
tornal  Bankers  Reserve  Soc.  (Iowa)  1917B- 
373. 

(3)     Error  in  Instructions. 

349.  Questions     Presented     by     Record. 

The  general  rule  applied,'  that  on  excep- 
tions to  instructions  given  or  requests 
therefor  refused,  the  charge  given  to  the 
jury  should  be  in  the  record.  Holstein  v. 
Benedict  (Hawaii)   1918B-941. 

350.  Necessity  of  Showing  Exceptions. 
Where  no  exception  to  instructions,  given 
or  refused,  appears  in  the  statement  ot 
facts,  they  will  not  be  reviewed.  Harris 
V.  Bremerton  (Wash.)  1916C-160. 

(4)     Error   in   Argument. 

351.  Absent  the  transcript,  or  an  agree- 
ment dispensing  with  it,  exceptions  to  ar- 
gument of  counsel  cannot  be  considered, 
the  bill  of  exceptions  referring  to  the 
transcript  on  this  question,  and  so  making 
it  controlling,  and  there  being  in  the  bill 
ot  exceptions,  not  the  precise  language  of 


66 


the  argument,  but  only  a  meager-  state- 
ment of  it.  Conistock's  Administrator  v. 
Jacobs  (Vt.)  1918A-465. 

(5)     Error  in  Rulings  on  Pleadings. 

352.  As  the  object  of  the  rule  requiring 
an  assignment  of  errors  Ls  to  enable  the 
court  and  the  opposing  counsel  to  know- 
on  what  points  the  counsel  for  plaintiff  in 
error  intends  to  ask  a  reversal  and  to  limit 
the  discussion  to  these  points,  it  is  a  com- 
mendable practice  to  assign  only  such  rul- 
ings as  are  complained  of  as  reversible 
error,  and  where  plaintiff  in  error  relied 
on  the  overruling  of  a  demurrer  to  the 
petition  for  a  reversal  and  assigned  such 
ruling  as  error,  the  writ  of  error  would 
not  be  dismissed,  because  of  his  failure 
to  ass'gn  as  error  the  rendition  of  the 
judgment  adverse  to  him,  especially  in 
view  of  rule  11  (150  Fed.  xxvii,  79  C.  C.  A. 
xxvii)  which  provides  that  the  court  at 
it?  option  may  notice  a  plain  error  not 
assigned.  Blalock  v.  Georgia  R.  etc.  Co. 
(Fed.)   1917A-679. 

f.     Errors  not  Available. 

(1)     Questions  not  Raised  Below. 

(a)     In  General. 

353.  Capital  Case.  In  a  capital  case, 
where  justice  requires  it,  the  court  of  ap- 
peals may  review  errors,  though  no  excep- 
tion was  taken.  People  v.  Watson  (N.  Y.) 
1917D-272. 

354.  Argument  of  Counsel.  The  general 
rule  is  that  counsel  cannot  remain  quiet 
and  seemingly  acquiesce  in  remarks  of  op- 
posing counsel  in  his  argument  to  the  jury, 
and  after  verdict  obtain  a  reversal  because 
of  matters  not  objected  to  at  the  time. 
Kriss  V.  Union  Pacific  R.  Co.  (Neb.) 
1918A-1122.  (Annotated.) 

355.  Agreement  Dispensing  With  Timely 
Objection.  Where  it  was  agreed  that  to 
avoid  interruption  accused  might  have  an 
exception  to  everything  that  was  said  by 
the  prosecuting  attorney  in  his  argument, 
and  misconduct  of  the  prosecuting  attorney 
was  made  one  of  the  grounds  of  a  motion 
for  new  trial,  the  state  cannot  insist  that 
objection  to  improper  argument  should 
have  been  made.  State  v.  Giudice  (Iowa) 
1917C-1160. 

356.  Questions  not  Raised  Below.  Where 
the  jurisdiction  of  a  court  of  another  state 
in  probate  proceedings  is  attacked  in  the 
surrogate's  court  on  the  sole  ground  that 
notice  was  not  served  upon  the  parties, 
the  objection  cannot  be  raised  on  appeal 
that  the  court  was  without  jurisdiction 
because  the  testator  did  not  have  his  domi- 
cile in  the  state  where  the  proceedings 
were  hold.  Matter  of  Horton  (N.  Y.) 
1&18A-611. 


DIGEST. 

1916C— 1918B. 


357.  Scope  of  Review  —  Test  Case. 
Where  the  mutually  professed  object  of  an 
appeal  is  to  test  the  validity  of  a  statute, 
assignments  which  cannot  aid  in  the  de- 
cision of  that  question  i^ill  not  be  consid- 
ered. Hunter  v.  Colfax  Consolidated  Coal. 
Co.  (Iowa)  1917E-803. 

358.  Separation  of  Conjugal  Frojf&ctj. 
Taking  the  date  of  a  divorce  decree  as  the 
date  for  liquidating  the  wife's  claim  for 
a  division  of  the  conjugal  property  can- 
not be  held  erroneous  on  appeal  to  the 
Federal  Supreme  Court  from  a  decree  of 
the  supreme  court  of  the  Philippine 
Islands,  on  the  grounds  that  there  was  no 
formal  decree  of  separation  of  the  prop- 
erty, and  no  such  inventory  as  was  re- 
quired by  law,  where  there  is  nothing  in 
the  record  sufficient  to  control  the  opinion 
of  the  latter  court  that  the  method  adopted 
by  the  judge  of  first  instance  "in  liqui- 
dating the  assets  of  the  conjugal  partner- 
ship was  substantially  in  accord  with  the 
method  prescribed  in  the  code."  De  La 
Kama  v.  De  La  Rama  (U.  S.)  1917C-411. 

359.  The  Federal  Supreme  Court  will  not 
reverse  a  decree  of  the  supreme  court  of 
the  Philippine  Islands  on  objections  that 
a  division  of  the  conjugal  property  could 
not  be  asked  in  a  divorce  suit  in  the  Phil- 
ippine courts,  but  must  proceed  on  the 
footing  of  a  decree  already  made,  and  that 
the  judge  of  first  instance  who  decided  t"he 
cause  was  illegally  designated,  where  such 
objections  were  not  presented  to  the  court 
below,  nor  assigned  as  error  on  the  appeal. 
De  La  Rama  v.  De  La  Rama  (U.  S.)  1917C- 
411. 

360.  Saving  Questions  for  Review — Mis- 
conduct of  Counsel.  A  claim  of  miscon- 
duct of  counsel  cannot  be  urged  as  ground 
for  reversal,  unless  it  is  made  a  ground 
of  the  motion  for  a  new  trial  in  the  court 
below.  Price  v.  Minnesota,  etc.  R.  Co. 
(Minn.)   1916C-267. 

361.  Contention  not  Made  Below.     In  an 

action  to  recover  payments  under  a  con- 
tract for  the  purchase  of  land  which  the 
purchaser  had  attempted  to  rescind,  where 
no  claim  was  made  in  the  trial  court  that 
there  was  a  rescission  by  mutual  agree- 
ment, no  such  claim  can  be  made  in  the 
Supreme  Court.  Brown  v.  Aitken  (Vt.) 
1916D-1152. 

(b)     Sufficiency  of  Pleadings. 

362.  Order  Sustaining  Demurrer.  An 
order  sustaining  a  demurrer  to  the  answer 
being  made  upon  the  matter  in  writing  and 
on  file  in  the  court,  no  exception  is  neces- 
sary under  Ore.  L.  O.  L.,  §  172,  to  obtain 
review  on  appeal.  Pullen  v.  Eugene  (Ore.) 
1917D-933. 

363.  Questions  Presented  by  Record — 
Admission  of  Evidence.     An  assignment  of 


APPEAL  AND  ERROR. 


67 


error  upon  the  admission  of  testimony, 
where  the  evidence  objected  to  is  neither 
literally  nor  substantially  set  out,  cannot 
be  considered,  Gordon  v.  Spellman  (Ga.) 
1918A-852. 

364.  Objection    not    Ruled    on    Below. 

Where  there  was  no  ruling  by  the  court 
below  upon  the  com.plainant's  objection  to 
the  defendant's  answer,  it  will  be  passed 
en  appeal  without  further  notice.  Vidmer 
V.  Lloyd  (Ala.)  1&17A-576. 

365.  Validity  of  Count  not  Considered 
Below.  Where  an  affidavit  filed  in  re- 
corder's court  for  violation  of  an  ordinance 
was  treated  on  appeal  to  the  criminal  court 
as  importing  the  charge  tried,  and  under 
it  guilt  was  determined,  whether  the  other 
count  of  the  affidavit,  or  the  statement 
filed  in  the  criminal  court,  both  attempting 
to  charge  a  like  offense,  were  sufficient  or 
not,  is  immaterial  on  a  further  appeal. 
Borok  V.  Birmingham  (Ala.)   1916C-1061. 

366.  Objection    not    Made    Below.     An 

objection  that  causes  of  action  set  out 
in  a  petition  are  inconsistent,  not  called 
to  the  attention  of  the  trial  court,  will  not 
be  considered  when  presented  for  the  first 
time  in  this'  court.  Stewart  v.  Murphy 
(Kan.)   1917C-612. 

367.  Criminal  Law — Necessity  of  Excep- 
tion— Ruling  on  Plea  in  Abatement.  A 
plea  in  abatement  filed  in  a  case  is  a  part 
of  the  record,  and  it  is  not  necessary  to 
except  to  the  action  of  the  court  in  sus- 
taining a  demurrer  thereto  in  order  to 
claim  the  benefit  of  error  alleged  to  have 
been  committed  in  sustaining  the  demurrer. 
State  V.  Wetzel   (W.  Va.)   1918A-1074. 

368.  Review — Necessity  of  Objection  Be- 
low— Variance.  On  rehearing,  it  having 
been  called  to  the  attention  of  the  court 
that  no  motion  was  made  for  an  instructed 
verdict  on  the  ground  of  a  variance  be- 
tween the  indictment  and  proof,  or  such 
variance  in  any  manner  called  to  the  at- 
tention of  the  trial  court,  the  judgment  of 
reversal  is  set  aside,  as  it  is  a  well-estab- 
lished rule  of  this  court  that  the  question 
of  variance,  between  the  allegations  in  the 
indictment  and  the  proof,  unless  raised  in 
the  court  below,  cannot  be  reviewed  here. 
State  V.  Klasner.  (N.  Mex.)  1917D-824. 

(c)     Reception  and  Rejection  of  Evidence. 

369.  Where  defendant  did  not  object  to 
testimony  offered  at  the  trial,  the  question 
of  the  competency  of  any  part  of  it  cannot 
be    made    for     the    first     time    on    appeal. 

:Brindley  v.  State   (Ala.)   1916E-177. 

370.  A  wrong  judgment,  whereby  a 
plaintiff  corporation  was  defeated  in  the 
trial  court,  will  not  be  upheld  in  this  court 
on  the  sole  ground  that  the  corporate  ex- 
istence of  the  plaintiff  was  not  proved, 
when    that    corporate    existence    was     not 


treated  as  one  of  the  issues  on  trial,  and 
such  failure  of  proof  is  presented  and  is 
called  to  the  attention  of  the  unsuccessful 
party  for  the  first  time  in  this  court.  In- 
surance Co.  v.  Baer  (Kan.)  1917B-491. 

371.  Ruling  not  Availed  of.  Error  in 
overruling  defendant's  objection  to  a  ques- 
tion asked  plaintiff's  witness  is  harmless 
where  the  question  was  never  answered. 
C'orry  v.  Sylvia  Ylia  (Ala.)  1917E-1052. 

372.  The  fact  that  the  attorney  was  per- 
mitted to  testify  before  the  referee  in 
violation  of  a  code  provision  could  not 
be  considered  on  appeal,  where  no  objec- 
tion was  made  to  such  testimony.  Matter 
of  Howell   (N.  Y.)   1917A-527. 

373.  It  not  having  been  claimed  at  the 
trial  that  the  official  character  of  witness 
affected  the  admissibility  of  a  declaration 
made  to  him,  such  question  cannot  be  con- 
sidered on  review  of  exclusion  of  the  dec- 
laration. Comstock's  Administrator  v. 
Jacobs  (Vt.)   1918A-465. 

374.  Reception  of  Evidence.  In  an  ac- 
tion for  malicious  prosecution,  where  de- 
fendants offered  the  testimony  of  a  deputy 
prosecuting  attorney  as  a  part  of  their 
case,  which  testimony  was  consented  to 
by  the  plaintiff,  and  he  was  called  solely 
to  identify  a  certain  exhibit,  any  error  in 
his  cross-examination  as  to  the  facts  actu- 
ating his  office  in  prosecuting  the  plaintiff 
is  cured  by  its  admission  without  objec- 
tion. Hightower  v.  Union  Savings,  etc. 
Co.  (W"asli.)  1918A-489. 

375.  An  objection  to  the  admission  of 
evidence  cannot  be  considered  on  appeal 
when  not  made  below.  Myers  v.  Bender 
(Mont.)   1916E-245. 

376.  Necessity  of  Objection  Below.  An 
alleged  error  in  admitting  in  evidence  the 
contents  of  a  letter,  the  loss  of  which  it 
was  claimed  was  not  sufficiently  proved, 
cannot  be  reviewed  where  the  finding  did 
not  disclose  that  any  claim  was  made  in 
the  trial  court  as  to  the  insufficiency  of 
the  proof  of  loss,  since,  had  such  claim 
been  made,  other  evidence  would  undoubt- 
edly have  been  required.  New  York,  etc. 
R.  Co.  v.  Cella  (Conn.)  1917D-591. 

(d)     Errors  in  Instruction. 

377.  Striking  Out  Unnecessary  Matters. 
Where  no  objections  are  interposed  to  the 
oral  charge,  and  no  exceptions  are  reserved 
to  it  as  a  whole,  or  to  any  part  thereof, 
and  it  is,  as  a  whole,  incorporated  into  the 
bill  of  exceptions  by  the  party  taking  the 
plea,  it  is  not  error  for  the  trial  judge  to 
strike  it  out  of  the  bill  signing  it.  Thomp- 
son V.  Alexander  City  Cotton  Mills  Co. 
(Ala.)    1917A-721. 

378.  Objections  to  instructions  cannot  be 
raised  on  appeal,  where  they  were  not  ex- 
cepted to,  and  were  not  questioned,  either 


68 


DIGEST. 

1916C— 1918B. 


in  the  motion  for  new  trial  or  for  judg- 
ment non  obstante  veredicto.  Gust  v.  Lit- 
tlefield  (Wash.)  1917D-705. 

379.  Necessity  of  Exception.  Where  no 
exception  is  saved  to  an  instruction,  it 
cannot  be  considered  on  appeal,  under 
Iowa  Code  Supp.  1913,  §  2705a,  providing 
that  all  objections  or  exceptions  to  instruc- 
tions must  be  made  before  they  are  read 
to  the  jury  and  must  point  out  the  grounds 
thereof  with  reasonable  exactness.  State 
V.  Stanton  (Iowa)  1918A-813. 

380.  Necessity  of  Decision  Below.  The 
Supreme  Court  reviews  only  questions  con- 
sidered and  determined  by  the  court  be- 
low, and  therefore  will  not  review  the  cor- 
rectness of  the  submission  of  a  case,  where 
it  has  been  submitted  from  the  standpoint 
in  which  both  parties  manifestly  tried  it. 
Eichardson  v.  Flower  (Pa.)  1916E-10S8. 

381.  iJrror  in  Instructions.  Under  Ore. 
Const,  art.  7,  §  3,  as  amended,  providing 
that,  if  the  Supreme  Court  shall  be  ot 
opinion  that  the  judgment  appealed  should 
have  been  rendered,  such  judgment  shall 
be  affirmed  notwithstanding  any  error  at 
the  trial,  a  judgment  on  a  verdict  for  de- 
fendants in  an  action  for  an  unlawful 
search  will  be  affirmed  where  the  court  in- 
structed that,  if  the  officer  in  executing  the 
warrant  unnecessarily  offended  those  pres- 
ent, the  search  warrant  could  be  of  no 
protection  to  him,  and  that  otherwise 
would  constitute  a  defense  as  to  both  de- 
fendants, even  though  the  search  warrant 
was  issued  without  probable  cause  and 
maliciously  by  the  defendant  justice  of  the 
peace,  to  which  language  no  exception  was 
taken,  though  the  court  erroneously  in- 
structed that  the  process  under  which  de- 
fendants justified  was  regular  on  its  face 
and  justified  the  obedience  to  its  com- 
mands. Smith  V.  McDuffee  (Ore.)  1916D- 
947. 

382.  Where  no  exceptions  are  taken  to 
instructions  given  by  the  court  of  its  own 
motion,  error  cannot  be  assigned  on  such 
instructions.  State  v.  Klasner  (N.  Mex.) 
1917D-824. 

383.  Criminal  Law — ^Review — Necessity 
of  Exception.  N.  Y.  Code  Cr.  Proc.  §  528, 
declares  that,  in  case  of  a  death  sentence, 
the  Court  of  Appeals  may  order  a  new 
trial,  if  justice  requires  it,  though  no  ex- 
ception was  taken.  No  exception  was  re- 
served to  an  instruction  charging  that  ac- 
cused, whose  assailant  attacked  him  in  his 
dwelling  house,  should  have  retreated. 
Accused  claimed  self-defense,  and  admit- 
ted, on  cross-examination,  that  if  he  had 
fled  from  his  house  he  would  have  been 
safe.  Held,  that  a  conviction  of  murder 
in  the  first  degree  must  be  reversed,  though 
no  exception  was  reserved  to  the  instruc- 
tion, for  it  deprived  accused  of  all  benefits 
of  his  plea  of  self-defense.  People  v.  Tom- 
lins  (N.  Y.)  1916C-916. 


(e)  Errors    in    Findings    or   Verdict. 

384.  Necessity  of  Objection — Failure  to 
Make  Finding.  Failure  to  raise,  in  the 
trial  court,  the  question  that  the  master's 
report  made  no  finding  whether  plaintiff 
was  guilty  of  adultery,  waives  such  ques- 
tion. Klekamp  v.  Klekamp  (111.)  1918A- 
663. 

385.  Where  the  correctness  of  a  finding 
was  not  challenged,  appellant  cannot  make 
it  the  basis  of  an  appeal.  Weber  v.  Amer- 
ican Silk  Spinning  Company  (B.  I.)  1917E- 
153. 

386.  Necessity  of  Exception — Direction 
of  Verdict.  Error  in  directing  a  verdict 
for  defendant  is  not  reviewable  by  the 
supreme  court,  unless  excepted  to.  Bar- 
num  V.  Chamberlain  Land,  etc.  Co.  (S. 
Dak.)    1917A-848.  (Annotated.) 

387.  Findings  by  Master— Necessity  of 
Exception.  Objections  to  a  decree,  based 
upon  a  master's  findings  not  excepted  to 
before  confirmation,  and  not  apparently 
erroneous,  are  ineffectual  as  grounds  for 
reversal  in  an  appellate  court.  Williams 
V.  S.  M.  Smith  Ins.  Agency  (W.  Va.) 
1P17A-813. 

388.  Necessity  of  Exceptions.  On  ap- 
peal from  a  decree  in  equity,  assignments 
of  error  in  the  admission  of  evidence  and 
in  findings  of  the  trial  oourt  are  defective 
where  no  exceptions  are  shown  to  have 
been  taken  to  the  action  of  the  court  and 
it  does  not  appear  that  any  action  was 
taken  by  the  court  in  banc  with  reference 
to  the  findings.  Duquesne  Light  Co.  v. 
Pittsburgh  (Pa.)  I917E-534. 

Note. 

Necessity  of  exception  to  direction  of 
verdict.     1917A-849. 

(f)  Rulings  on  Motion  for  New  Trial. 

389.  Necessity  for  Exceptions — Denial  of 
New  Trial.  An  assignment  based  upon 
the  denial  of  the  motion  for  a  new  trial 
cannot  be  considered  by  an  appellate  court, 
in  the  absence  of  an  exception  to  such 
ruling.  Henry  v.  Spitler  (Fla.)  1916E- 
1267. 

3P0.  Necessity  of  Exception.  In  the  ab- 
sence of  an  exception  to  the  denial  of  a 
new  trial,  such  denial  could  not  be  re- 
viewed, to  determine  whether  it  was  an 
abuse  of  discretion.  Philadelphia,  etc.  Ek 
Co.  v.  Gatta  (Del.)  1916E-1227. 

391.  The  technical  error,  in  the  order 
granting  defendants  in  ejectment  a  new 
trial,  that  the  costs  be  paid  "to  the  clerk," 
whereas  the  provision  of  St.  Wis.  1913, 
§  3092,  that  they  "be  paid"  means  paid  to 
plaintiffs,  not  having  been  objected  to  be- 
low, will  not  avail  on  appeal.  Guaranteed 
Investment  Co.  v.  Van  Metre  (Wis.) 
1916E-554.  (Annotated.) 


APPEAL  AND  ERROR. 


69 


392.  Necessity  of  Exception — Decision 
on  Stipulated  Facts.  Where  the  facts 
were  all  stipulated,  no  exception  to  the 
court's  decision  need  be  taken  under  Ore. 
L.  O.  L.  §  172,  declaring  that  no  excep- 
tion need  be  taken  to  any  decision  upon 
a  matter  of  law;  the  judgment  being 
merely  an  application  of  the  law  to  the 
facts.  Grice  v  Oregon-Washington,  R.,  etc. 
Co.  (Ore.)  1917E^645. 

(g)     Conduct  of  Court  or  Counsel, 

393.  Remarks  of  Counsel.  The  question 
a?  to  the  alleged  prejudicial  remarks  of 
the  state's  attorney  being  raised  for  the 
first  time  in  the  trial  court  on  motion  for 
new  trial  will  not  be  reviewed.  People  v. 
Falkovitch  (111.)  1918B-1077. 

394.  Remarks  Addressed  to  Jury  in  An- 
other Case — Prejudice.  In  a  prosecution 
for  conspiracy,  where  the  state's  attorney 
was  excused  at  his  request  for  a  few  min- 
utes, an  interval  of  which  the  court  availed 
itself  to  sentence  one  convicted  of  murder 
in  the  second  degree,  taking  occasion,  in 
the  presence  of  the  jury  in  the  conspiracy 
case,  to  express  at  some  length  its  views 
as  to  the  insufficiency  of  a  defense  in  the 
murder  case,  where  no  exception  was  taken 
by  the  conspiracy  defendants  to  the  ex- 
pressions of  the  court,  and  no  suggestion 
made  at  the  time  that  they  might  have  a 
prejudicial  influence,  such  action  presents 
no  question  for  review.  Hummelshime  v. 
State   (Md.)   1917E-1072. 

(h)     Denial  of  Continuance. 

395.  Where  the  record  fails  to  show  that 
appellant,  when  he  applied  to  the  trial 
court  for  a  continuance,  brought  to  the 
attention  of  the  court,  by  his  aflSdavit  or 
otherwise,  the  fact  that  he  had  been  cited 
to  appear  in  another  court  on  the  day  of 
the  trial,  the  action  of  the  court  in  deny- 
ing the  continuance  will  not  be  disturbed. 
Neven  v.  Neven  (Nev.)  1918B-1083. 

(2)     Sufficiency  of  Objection  or  Exception, 
(a)     Rulings  on   Evidence. 

396.  Sufficiency  of  Evidence.  Though 
accused,  by  proceeding  with  his  defense, 
when  his  motion  to  direct  a  verdict  at  the 
close  of  the  case  for  the  state  was  denied, 
and  failing  to  renew  it  later,  waived  the 
right  to  claim  on  appeal  that  there  was 
no  case  for  the  jury,  yet  his  motion  for 
new  trial  on  the  ground  that  the  evidence 
was  insufficient  to  support  the  verdict,  and 
the  denial  thereof,  will  preserve  for  review 
the  question  whether  the  jury  should  have 
found  it  sufficient.  State  v.  Asbury  (Iowa) 
1918A-856. 

397.  Review  of  Exclusion  of  Question- 
Necessity  of  Offer  of  Proof.  In  a  trial 
for   murder,   there   is   no   error  in   sustain- 


ing an  objection  to  defendafit's  question 
to  a  witness,  "What  did  you  all  say?" 
since  the  question  is  too  general,  and  does 
not  disclose  that  the  answer  sought  to  be 
elicited  would  be  material,  and  since  the 
defendant  did  not  inform  the  court  what 
was  proposed  to  be  proved,  so  that  the 
court  might  see  whether  the  evidence 
sought  was  proper.  Brindley  v.  State 
(Ala.)  1916E-177. 

398.  Motion  to  Strike.  Where  objection 
was  made  to  one  question  propounded  a 
witness,  and  sustained  without  motion 
made  to  strike  from  his  answer,  though 
there  may  have  remained  in  the  answer 
something  not  responsive,  it  cannot  be 
made  the  basis  of  error  on  appeal.  Yiss 
V.  Calligan  (Wash.)  1918A-819. 

399.  Ground  of  Objection  Below.  The 
question  of  evidence  being  incompetent  as 
hearsay  cannot  be  considered  on  appeal,  the 
overruled  objection  below  being  that  it 
was  irrelevant  and  immaterial.  Sherman 
v.  Harris  (S.  Dak.)  1917iC-675. 

400.  Questions  Reviewed  —  Specific  Ob- 
jection. Unless  brought  to  its  attention 
by  special  bills  of  exception,  or  upon  a 
motion  for  a  new  trial,  specifically  stat- 
ing, as  grounds  therefor,  the  admission  or 
rejection  of  evidence,  this  court  will  not 
consider  the  rulings  of  the  trial  court 
thereon.  Hill  v.  Norton  (W.  Va.)  1917D- 
489. 

401.  Withdrawal  of  Evidence — Necessity 
of  Request.  Where  a  witness  called  by 
the  state  testified  contrary  to  her  testi- 
mony at  the  preliminary  hearing,  and  the 
prosecutor  interrogated  her  as  to  that  tes- 
timony, accused  cannot  on  appeal  complain 
that  the  witness'  former  statements  were 
not  wholly  withdrawn  from  the  jury,  where 
his  own  request  on  that  point  was  sub- 
stantially given.  State  v.  Unlow  (Utah) 
1917A-741. 

402.  Instructions — ^As  to  Weight  of  Evi- 
dence— Necessity  of  Specific  Objection. 
In  view  of  court  rule  27  (164  N.  C.  548, 
81  S.  E.  xi),  providing  that  it  shall  not 
be  ground  for  exception  that  the  court 
failed  to  charge  the  jury  as  to  the  effect 
to  be  given  testimony  admitted  in  cor- 
roboration or  contradiction,  unless  such 
charges  are  specially  requested,  the  giving 
of  a  charge  which  informed  the  jury  that 
testimony  was  to  be  considered  solely  in 
impeachment  of  a  witness,  even  if  error, 
i?  harmless.  Medlin  v.  County  Board  of 
Education   (N.  Car.)   1916E-300. 

403.  Sufllciency  of  General  Objection.  A 
general  objection  to  evidence  is  no  ground 
of  reversal.  Garrison  v.  Newark  Call 
Printing,  etc.  Co.  (N.  J.)  1917C-33. 

(b)     Rulings    on    Instructions. 

404.  Specific  Objection  Necessary.  If  an 
instruction  for  plaintiff,  correct  as  far  as 


70 


it  went,  fails  to  state  a  certain  qualifica- 
tion which  all  other  instructions  given  for 
plaintiff  did  contain,  objection  to  the  omis- 
sion should  be  made  the  subject  of  specific 
objection  before  it  can  be  reversible  error. 
Josephs  V.  Briant  (Ark.)  1916E-741. 

405.  Refusal  to  Direct  Verdict — Neces- 
sity of  Motion  for  New  Trial.  The  refusal 
of  the  trial  court  to  direct  verdict  by  per- 
emptory instruction  cannot  be  made  the 
basis  for  an  independent  assignment  of 
error  on  appeal;  such  action  must  be  pre- 
sented to  the  trial  court  as  cause  for  new 
trial,  and  the  court'si  refusal  to  grant  it 
assigned  as  error.  White  v.  State  (Ind.) 
1917B-527. 

406.  Necessity  of  Motion  for  New  Trial. 
Before  the  supreme  court  can  reverse  a 
judgment  on  account  of  the  exclusion  of 
evidence,  that  evidence  must  be  presented 
to  the  trial  court  when  the  motion  for  a 
new  trial  is  heard.  O'Neal  v.  Bainbridge 
(Kan.)  1917B-293. 

407.  Failure  to  Object  or  Except.  A  de- 
fendant requesting  a  directed  verdict  in 
his  favor,  may  not  have  the  accuracy  of 
statements  in  the  charge  of  the  trial  court 
and  the  legal  effect  adjudicated  by  the 
supreme  judicial  court,  in  the  absence  of 
failure  to  direct  the  attention  of  the  trial 
court  specifically  to  the  complaint,  and 
to  allege  exceptions.  McLellan  v.  Fuller 
(Mass.)    1917B-1. 

408.  Appeal  from  Magistrate.  Objection 
to  tlie  sufficiency  of  a  contplaint  for  vio- 
lation of  an  ordinance  cannot  be  made  for 
the  first  time  in  the  circuit  court  on  ap- 
peal. Borok  V.  Birmingham  (Ala.)  1916C- 
1061. 

409.  Instructions — Necessity  of  Bequest. 
Where  a  party  makes  no  special  request 
or  charge,  and  does  not  specially  except 
to  the  charge  given,  the  appellate  court 
win  not  reverse  for  a  mere  inadequacy  in 
the  charge.  Hunter  v.  Bremer  (Pa.) 
1918A-152. 

410.  Instruction  as  to  Indictment.  A 
motion  in  arrest  of  judgment  and  for  new 
trial  on  the  ground  of  error  in  the  refusal 
of  instructions  does  not  present  the  ques- 
tion of  the  sufficiency  of  the  indictment, 
though  one  of  the  requested  instructions 
was  that  the  indictment  did  not  state  an 
offense,  since  such  instruction  was  prop- 
erly refused  in  any  event.  State  v.  Gard- 
ner (Iowa)   1917B-239. 

411.  Exceptions  to  Refusal — Suflaciency 
of  Single  Exception.  A  single  exception 
to  three  refused  instructions  will  not  avail, 
where  one  of  the  instructions  is  argumenta- 
tive and  the  others  covered  by  the  general 
charge.     Lee  v.  State  (Fla.)  1917B-236. 

412.  In  an  action  against  the  indorser  of 
a  note  which  contains  a  complete  waiver 
of    notice    of     presentment    and    dishonor. 


DIGEST. 

19160— 1918B. 

though  the  notice  of  motion  for  judgment 
should  allege  such  waiver,  the  defect  in 
the  notice  is  harmless,  as,  in  view  of  the 
undisputed  written  waiver,  an  amendment 
at  bar  would  be  proper.  CoUey  v.  Sum- 
mers Parrott  Hardware  Co.  (Va.)  1917D- 
375. 

413.  Applicable  to  One  Cause  of  Action 
— Harmless  Error.  Though  the  petition  in 
one  count,  alleging  breach  of  promise  ot 
marriage,  seduction,  pregnancy,  and  abor- 
tion at  the  instance  of  defendant,  might 
well  be  treated  as  one  for  breach  of  prom- 
ise alone,  with  the  other  matters  pleaded 
in  aggravation  of  damages,  yet  plaintiff 
having,  under  Iowa  Code,  §  3470,  also  a 
cause  of  action  for  seduction,  with  right, 
under  section  3545,  to  prosecute  both 
causes  of  action  in  one  action,  and  the 
court,  in  receiving  evidence  and  giving  in- 
structions, having  seemed  to  rule  that  both 
causes  of  action  were  alleged,  and  objec- 
tion not  having  been  raised  to  each  not 
being  stated  in  a  separate  count,  as  they 
should,  an  instruction  authorizing  recov 
ery  of  an  element  of  damages  recoverable 
only  in  an  action  for  seduction  is  not  re- 
versible error;  defendant  not  being  preju- 
diced thereby.  Nolan  v.  Glynn  (Iowa) 
1916C-559. 

414.  In  order  to  object  on  appeal  to  the 
giving  of  a  requested  instruction  in  lan- 
guage different  from  the  request,  an  ob- 
jection should  be  taken  to  the  request  as 
charged  and  to  the  refusal  to  charge  as 
requested.  Miller  v.  Delaware  Eiver 
Trans.  Co.  (N.  J.)  1916C-165. 

415.  Objection  to  Refusal  of  Instruction. 
Notwithstanding  the  new  practice  act,  the 
appellate  court  will  not  review  error  in 
refusing  requested  instructions,  unless  ap- 
pellant, at  the  time  of  presentation,  ob- 
jected to  the  refusal  to  charge  each  specific 
request.  Miler  v.  Delaware  River  Trans. 
Co.   (N.  J.)   1916C-165. 

416.  Necessity  of  Specific  Objection — 
Harmless  Error.  Instructions  declaring 
sound  propositions  of  law,  though  not 
wholly  applicable  to  the  issues,  are  not 
reversible  error,  unless  the  court's  atten- 
tion was  directed  thereto  at  the  time  and 
prejudice  resulted  to  the  party  complain- 
ing. Osteen  v.  Southern  R.  Co.  (S.  Car.) 
1917C-505. 

417.  Duty  to  Instruct — Necessity  of  Re- 
quest. "When  the  trial  court  gives  a  gen- 
eral instruction  upon  a  matter  involved 
in  the  issues,  and  a  more  specific  instruc- 
tion is  requested,  such  request  should 
fairly  present  the  matter  as  it  affects  all 
parties  to  the  litigation.  If  it  fails  to  do 
so,  to  refuse  the  request  will  not  be  preju- 
dicial error  requiring  a  reversal,  unless  it 
appears  from  the  entire  record  that  the 
jury  probably  misunderstood  the  real  issue 
for  want  of  a  more  specific  instruction. 
Kriss  V.  Union  Pacific  R.  Co.  (Xeb.) 
1918A-1122. 


i 


APPEAL  AND  ERROR. 


71 


418.  Necessity     of     Specific     Objection. 

Where  counsel  wishes  to  take  advantage 
of  alleged  errors  in  the  court's  charge,  he 
should  point  out  the  portion  of  the  charge 
which  is  subject  to  criticism,  and  wherein 
the  defects,  if  any,  consist.  State  v.  Bru- 
nette (N.  Dak.)  1916&-340. 

419.  An  exception  to  an  instruction 
which  fails  to  point  out  clearly  the  ground 
of  the  objection  and  the  particular  por- 
tion of  the  instruction  to  which  it  is  di- 
rected is  insufficient.  Carmody  v.  Capital 
Traction  Co.  (D.  C.)  1916D-706. 

(c)     Time   of  Making   Objection, 

420.  Misconduct  of  Juror,  Where  de- 
fendant and  his  attorney  knew  at  the  trial 
that  the  juror  had  a  conversation  with  one 
of  the  witnesses,  but  did  not  call  the  at- 
tention of  the  trial  court  thereto  until 
after  the  motion  for  a  new  trial  was  made, 
such  matter  will  not  be  reviewed,  especi- 
ally where  the  affidavits  presented  war- 
ranted the  court  in  finding  that  the  con- 
versation had  no  reference  to  the  trial. 
People  V.  Falkovitch  (111.)  1918B-1077. 

421.  Denial  of  Motion  to  Dismiss  in  In- 
termediate Court.  Under  Ky.  Civ.  Code 
Prac.  §  334,  providing  that  the  party  ob- 
jecting must  except  when  the  decision  is 
made,  where  defendant  in  a  prosecution 
for  breach  of  the  peace  did  not  except  at 
the  time  to  the  circuit  court's  overruling  of 
his  motion  to  dismiss  and  remand  the  case 
to  the  county  court,  he  cannot  assign  such 
ruling  as  error.  Delk  v.  Commonwealth 
(Ivy.)    1917C-884. 

422.  Amendment  of  Pleading,  Where 
objection  to  the  allowance  of  an  amend- 
ment is  not  made  before  the  trial,  and 
where  it  does  not  appear  that  the  party 
complaining  is  prejudiced,  the  courts  will 
not  favorably  consider  it.  Drennen  v. 
Williams  (Colo.)   1917A-664. 

423.  Time  for  Objecting.  Objections  to 
evidence  must  be  made  at  the  right  time 
or  they  cannot  be  considered  on  appeal. 
State  V.  Von  Klein  (Ore.)  1916C-1054. 

424.  Necessity  of  Objection — Examina- 
tion of  Witness  by  Court,  W^here  on  the 
trial  of  a  case  the  court  propounded  cer- 
tain questions  to  a  witness,  which  examina- 
tion, it  is  insisted,  was  so  conducted  as  to 
prejudice  the  rights  of  the  plaintiff  in 
error  and  elicited  certain  hearsay  testi- 
mony, this  action  on  the  part  of  the  court 
will  not  cause  a  reversal  in  the  absence  of 
any  objection  having  been  raised  thereto 
at  the  time.  Brown  v.  Caylor  (Ga.) 
1916D-745. 

(d)     Sufficiency    of   Pleadings. 

425.  Necessity  of  Demurrer  or  Motion- 
Under  Iowa  Code,  §  5328,  authorizing  de- 
murrer to  the  indictment  for  insufliciency 


to  state  facts  constituting  an  offense,  au- 
thorizing motion  in  arrest  of  judgment  on 
the  same  ground,  the  supreme  court  will 
not  review  the  sufficiency  of  the  indictment 
in  the  absence  of  either  of  these  proceed- 
ings, in  passing  on  a  requested  instruction 
that  it  states  no  offense.  State  v.  Gard- 
ner  (Iowa)   1917D-239. 

426.  Matters  Provable  Under  Other 
Counts,  Error  in  sustaining  demurrers  to 
special  pleas  is  harmless,  where  all  the 
matters  specially  pleaded  were  available 
to  defendant  under  his  plea  of  the  general 
issue.  Corry  v,  Sylvia  Y  Cia  (Ala.) 
1917E-1052. 

427.  Specification  of  Errors — ^Limitation 
on  Appeal  Under  Ind.  Acts  1911,  c.  157 
(Burns'  Ann.  St.  1914,  §  344),  one  who  de- 
murred to  a  complaint  for  want  of  facts 
to  state  a  cause  of  action,  cannot,  on  ap- 
peal, assign  objections  not  stated  in  the 
memorandum  filed  with  the  demurrer, 
Pitts'burgh,  etc,  B,  Co.  v.  Home  Ins,  Co. 
(Ind.)    1918A-828. 

(e)     Verdict   or   Findings. 

428.  No  exception  is  necessary  in  a  fed- 
eral court  to  raise  the  question  whether, 
when  a  jury  has  been  duly  waived,  the 
special  findings  of  fact  by  the  court  are 
sufficient  to  support  the  judgment  ren- 
dered thereon.  Philadelphia  Casualty  Co, 
V.  Fechheimer  (Fed.)   1917D-64, 

429.  To  Overruling  of  Objections  to  Re- 
port of  Referee.  Where  an  action  at  law 
ill  a  federal  court  is  tried  to  the  court  by 
stipulation,  pursuant  to  Eev.  St.  §  649  (4 
Fed.  St.  Ann.  393),  and  by  consent  the 
cause  is  referred  to  a  referee  to  take  the 
evidence  and  report  his  findings  of  fact 
and  conclusions  of  law,  a  general  exception 
to  the  action  of  the  court  in  overruling  in 
a  mass  the  exceptions  taken  to  the  report 
of  the  referee  is  too  indefinite  to  present 
any  question  for  review  by  the  appellate 
court,  and  also,  if  any  one  of  the  rulings 
of  the  referee  excepted  to  was  correct,  the 
exception  is  not  good.  Philadelphia  Casu- 
alty Co.  V,  Fechheimer  (Fed.)  1917D-64, 

430.  Where  the  court,  in  addition  to 
special  findings,  made  a  general  finding 
and  holding  in  favor  of  the  contestees  and 
against  the  contestants,  the  general  assign- 
ment in  the  contestants'  motion  for  new 
trial,  that  the  verdict  is  contrary  to  the 
law  and  the  evidence,  is  sufficient  to  chal- 
lenge the  correctness  of  the  finding  and 
judgment  of  the  court,  Webb  v,  Bowden 
"(Ark.)   1918A-60, 

431.  Failure  to  Request  Submission  of 
Issue — Presumption,  Under  the  express 
provision  of  Wis.  St.  1913,  §  285Sm,  an 
issue  of  settlement  in  an  action  for  the 
balance  due  upon  a  contract  for  grading, 
as  to  which  defendant  requested  no  sub- 
mission,  will   be   deemed,   after   judgment 


72 


DIGEST. 

1916C— 1918B. 


for  plaintiff,  to  have  been  found  by  the 
court  against  defendant,  where  there  was 
ample  evidence  to  support  such  finding. 
Gist  V.  Johnson-Carey  Co.  (Wis.)  1916E- 
460. 

(f)     Eulings  on  Motion  for  New  Trial. 

432.  Where  no  notice  of  intention  to 
n-.ove  for  a  new  trial  was  given,  and  the 
notice  of  the  motion  stated  that  it  would 
be  made  on  the  minutes  of  the  court,  but 
even  that  notice  did  not  contain  the  speci- 
fications which  are  required  in  the  notice  of 
intentions  by  S.  Dak.  Code  Civ.  Proc. 
§  303,  no  errors  predicated  upon  the  motion 
for  new  trial  can  be  considered  on  appeal. 
Kichelson  v.  Mariette  (S.  Dak.)  1917A- 
883. 

(g)     Soifficiency  of  Decree. 

433.  Sufficiency.  Exceptions  challenging 
a  decree,  in  that  it  did  not  do  equity  and 
was  contrary  to  the  evidence,  are  suflfi- 
eient  to  entitle  defendants,  seeking  the 
same,  to  a  hearing  de  novo  on  the  merits 
on  appeal.  Tevis  v.  Tevis  (Mo.)  1917A- 
865. 

(3)     Inconsistent  Attitude  on  Appeal. 

434.  Admissions — ^By  Counsel  at  Trials 
Estoppel  to  Repudiate.  Appellant  is  es- 
topped to  claim  admissions  were  not  made 
by  his  counsel,  or  were  inadvertently 
made,  the  trial  court  having  recapitulated 
what  he  conceived  to  have  been  admitted, 
stating  that  he  intended  to  make  those 
admissions  the  'basis  of  his  decree,  and 
having  appealed  to  counsel  to  say  whether 
there  was  any  dispute  as  to  the  facts  so 
recited,  and  counsel  having  admitted  they 
were  true.  Black  v.  Suydam  (Wash.), 
1916D-1113. 

(4)     Error  Caused  by  Appellant. 

435.  Charge  Given  at  Bec[uest  of  Party. 

Plaintiff,  having  requested  it,  may  not  com- 
plain of  the  giving  of  an  instruction  not 
within  the  issues.  Newby  v.  Times-Mirror 
Company  (Cal.)  1917E-186. 

436.  Though  plaintiff,  having  requested 
it,  may  not  complain  of  the  giving  of  an 
instruction  not  within  the  issues,  he  may 
make  the  point  that  the  implied  findings 
thereunder  are  not  supported  by  the  evi- 
dence. Newby  v.  Times-Mirror  Company 
(Cal.)   1917E-186. 

437.  Estoppel  to  Allege  Error — Refusal 
of  Motion  of  Appellant  to  Dismiss  Appeal. 
Where  defendant,  in  a  prosecution  for 
breach  of  the  peace  before  the  county 
court,  appealed  from  conviction  to  the  cir- 
cuit court,  he  cannot,  on  appeal  from  that 
court's  affirmance,  assign  as  error  its  re- 
fusal to  dismiss  the  appeal  from  the 
county  court  and  remand  the  case  to  it. 
Delk  v.  Commonwealth  (Ky.)  19170-884. 


438.  Where  the  court,  ordering  the  jury 
to  be  kept  together  during  the  trial,  indi- 
cated that  the  order  was  made  at  the  re- 
quest of  accused,  but  the  order  was  subse- 
quently withdrawn  and  the  jury  never 
confined  thereunder,  accused  was  not  preju- 
diced. State  V.  Giudice  (Iowa)  1917C- 
1160. 

439.  Any  error  of  the  court  in  refusing, 
in  a  mortgage  foreclosure  suit,  to  try  out 
the  question  of  priority  of  title  between 
defendants  W.  and  T.,  as  to  nine  acres  of 
the  mortgaged  land,  which  W.  claimed  by 
contract  of  sale  made  by  the  mortgagor 
before  he  conveyed  the  entire  tract  to  T., 
was  invited  by  T.,  and  so  cannot  be  com- 
plained of  by  him,  he  having  objected  to 
trial  therof.  Black  v.  Suydam  (Wash.) 
1916D-1113. 

440.  Requesting  Instruction.  A  'party 
who  has  requested  an  erroneous  instruction 
waives  the  error  of  the  court  in  giving  it 
at  the  instance  of  the  opposite  party.  St. 
Louis,  etc.  R.  Co.  v.  Blaylock  (Ark.) 
1917A-563. 

441.  Rulings  as  to  Pleadings.  The  elim- 
ination by  plaintiff  of  counts  of  a  com- 
plaint rendered  harmless  any  errors  com- 
mitted in  rulings  as  to  such  counts.  Age- 
Herald  Publishing  Co.  v.  Waterman  (Ala.) 
1916E-900. 

442.  Joint  Request  for  Submission  of  Is- 
sues. Where  appellant  has  joined  with  ap- 
pellee in  having  certain  issues  submitted 
to  the  jury,  he  cannot  complain  of  the 
rulings  of  the  court  in  submitting  them. 
St.  Louis,  etc.  R.  Co.  v.  Blaylock  (Ark.) 
1917A-563. 

(5)     Errors  Favorable  to  Appellant. 

443.  Harmless  Error — Exclusion  of  Evi- 
dence Favoring  Adverse  Party.  In  a  pros- 
ecution for  conspiracy,  where  a  detective 
had  been  engaged  to  ascertain  if  there  was 
corruption  in  a  city  council,  and,  posing 
as  one  to  whom  the  city  owed  money,  had 
had  an  interview  with  the  son  of  a  coun- 
cilman respecting  his  supposed  claim,  the 
refusal  of  the  court  to  permit  such  coun- 
cilman to  repeat  a  statement  made  by  his 
son  to  him  after  the  interview,  as  to  which 
the  detective's  testimony  for  the  state  sub- 
stantially agreed,  is  not  prejudicial. 
Hummelshime  v.  State  (Md.)  1917E-1072. 

444.  On  appeal  from  a  judgment  against 
a  sheriff  and  his  surety  for  selling  prop- 
erty levied  under  two  executions,  under 
the  junior  execution,  defendants  could  not 
complain  that  the  trial  judge  ordered  the 
proceeds  of  the  sale  to  be  paid  to  plaintiff 
in*  reduction  of  defendant's  liability,  as  it 
was  beneficial  to  them.  Continental  Dis- 
tributing Co.  V.  Hays  (Wash.)   1917B-708. 

(Annotated.) 

445.  For  "Plaintiff"  in  Action  by  Two. 

In  an  action  by  two  plaintiffs,  where  only 


APPEAL  AND  ERROR. 


73 


k 


one  was*  entitled  to  recover,  a  judgment 
for  "the  plaintiff,"  without  specifying 
which  one,  is  not  prejudicial  to  defendant, 
and  will  not  be  reversed,  where  the  plain- 
tiff entitled  to  recover  makes  no  com- 
plaint. Gish  Banking  Co.  v.  Leachman's 
Admr.  (Ky.)  1916D-525. 

446.  Conviction  of  Included  Offense. 
Accused,  convicted  of  assault  with  intent 
to  do  great  bodily  harm,  cannot  complain 
that  the  evidence  showed  that  he  should 
have  been  convicted  of  assault  with  intent 
to  kill.  State  v.  Cessna  (Iowa)  1917D- 
289. 

447.  Error  Favorable  to  Appellant.     A 

party  who  appeals  from  an  order  granting 
a  new  trial  after  verdict  in  his  favor  can- 
not assail  the  order  on  the  ground  that  the 
trial  court  committed  errors  against  him 
on  the  trial.  Herman  &  Ben  Marks  v. 
Haas  (Iowa)    1917D^543. 

448.  Evidence  Beneficial  to  Party  Com- 
plaining of  Admission.  A  party  cannot 
complain  on  appeal  of  the  admission  of 
incompetent  evidence  which  inures  to  bis 
benefit.  Eehling  v.  Brainard  (Nev.) 
1917C-656. 

449.  Whether  demurrer  to  a  plea  of  lim- 
itations to  a  count  was  properly  overruled 
cannot  be  considered  by  a  reviewing  court, 
defendant  alone  bringing  error,  and  plain- 
tiff assigning  no  cross-errors.  Wende  v. 
Chicago  City  R.  Co.  (lU.)  1918A-222. 

450.  Instruction  Too  Favorable  to  Ap- 
pellant. Where  a  physician  broke  his  con- 
tract to  attend  plaintiff,  a  charge  that  it 
was  his  duty  to  either  have  sent  another 
doctor,  or  notified  plaintiff  that  he  could 
not  attend  her,  being  more  favorable  to 
the  physician  than  is  the  law,  is  harmless. 
Hood  V.  Moffet  (Miss.)  1917E-410. 

451.  An  instruction  that  "if  one  of  the 
parties  to  the  illicit  intercourse  is  guilty, 
then  both  are  guilty  of  adultery,"  being  a 
statement  unduly  favorable  to  the  defend- 
ant convicted,  is  harmless.  State  v.  Ayles 
(Ore.)  1916E-738. 

452.  On  plaintiff's  appeal,  error  in  over- 
ruling a  demurrer  to  the  complaint  will 
not  be  considered.  Thompson  v.  Alexan- 
der City  Cotton  Mills  Co.  (Ala.)  1917A- 
721. 

(6)     Wrong  Season  for  Correct  Decision. 

453.  Punishment  Imposed  Appropriate  to 
Valid  Portion  of  Verdict.  Where  defend- 
ant was  convicted,  under  Ore.  L.  O.  L. 
§§  5293,  5298,  regulating  fishing  in  the 
waters  of  the  state,  of  two  offenses,  first, 
in  having  fished  without  a  license,  and 
second  as  having  fished  without  being  a 
resident  of  the  state,  and  where  the  pun- 
ishment in  each  case  was  the  same,  al- 
though the  defendant  should  have  been 
convicted  under  the  charge  of  fishing  with- 
out a  liecuse  alone,  his  conviction  can  be 


upheld  under  Const,  art.  7,  §  3,  as  amended, 
providing  that  if  the  supreme  court  shall 
be  of  opinion  that  the  judgment  of  the 
court  appealed  from  was  such  as  should 
have  been  rendered,  it  shall  be  affirmed, 
notwithstanding  any  error  committed  dur- 
ing the  trial.  State  v.  Catholic  (Ore.) 
1917B-913. 

454.  Grant  of  Nonsuit.  A  nonsuit 
granted  on  one  of  several  grounds  may  be 
sustained  if  any  of  the  other  grounds  spe- 
cified authorize  it.  Solomon  v.  Public  Ser- 
vice E.  Co.  (N.  J.)  1917C-356. 

(7)     Nonsuit  Instead  of  Directed  Verdict. 

455.  Nonsuit  Instead  of  Directed  Ver- 
dict. The  irregularity,  if  any,  in  entering 
a  compulsory  nonsuit  in  accordance  with 
the  state  practice,  instead  of  directing  a 
verdict  for  defendant,  is  one  of  form  only. 
Dominion  Trust  Co.  v.  National  Surety  Co. 
(Fed.)  1917C-447. 

(8)     Error  Cured  by  Verdict. 

456.  Errors  committed  against  a  party 
are  cured  by  a  verdict  in  his  favor.  Her- 
man &  Ben  Marks  v.  Haas  (Iowa)  1&17D- 
643. 

18.     DECISION     OR     JUDGMENT      OP 

APPELLATE  COURT. 

a.     Rendition   of  Final  Judgment  on  Ap; 

peal. 

457.  Final  Judgment  on  Reversal.  The 
question  of  the  sufficiency  of  the  evidence 
to  present  a  question  of  fact  must  be  de- 
termined on  appeal,  as  regards  the  right 
to  finally  dispose  of  the  case  by  dismissal 
of  the  complaint,  by  the  evidence  actually 
admitted,  including  opinion  evidence, 
given  over  proper  objection  that  the  hy- 
pothetical questions  did  not  include  all  the 
facts  which  should  have  been  put  before 
the  witnesses.  Middleton  v.  Whitridge 
(N.  Y.)   1916C-856. 

458.  Final  Judgment  on  Appeal  as  De- 
nial of  Jury  Trial.  N.  Y.  Const,  art.  1, 
§  2,  merely  guaranteeing  the  substantial 
right  of  trial  by  jury,  and  not  preserving 
ancient  common-law  forms  and  rules  of 
procedure,  is  not  contravened,  where,  as 
matter  of  law,  dismissal  of  the  complaint 
or  direction  of  a  verdict  being  proper,  or 
disputed  questions  of  fact  being  by  con- 
sent submitted  to  the  court  for  decision, 
as  where  both  sides  move  for  a  direction 
of  a  verdict,  without  asking  to  go  to  the 
jury,  the  trial  court  determines  the  cause 
without  taking  a  verdict  of  the  jury,  and 
so  is  not  contravened,  where,  in  such  a 
case,  the  trial  court  having  erred  in  sub- 
mitting it  to  the  jury,  or  in  deciding  a 
question  of  fact  submitted  to  it  for  deci- 
sion, the  appellate  division  makes  such 
final  disposition  of  the  case  as  the  trial 
court  should  have  made.  Middleton  v. 
Whitridge  (X.  Y.)  I916C-8o6. 


74 


DIGEST. 

1916C— 1918B. 


459.  The  final  judgment  of  reversal  and 
dismissal  which  the  appellate  division  is 
empowered  by  N.  Y.  Code  Civ.  Proc.  §  1317, 
as  amended  by  Laws  1912,  c.  380,  to  ren- 
der in  a  jury  case,  being,  required  to  bo 
"on  special  findings  of  the  jury  or  the  gen- 
eral verdict,  or  on  a  motion  to  dismiss 
the  complaint  or  to  direct  a  verdict,"  is 
such  only  as  the,  trial  court  should  have 
rendered  on  such  a  verdict  or  motion;  the 
error  thus  corrected  being  that  of  the  court 
and  not  of  the  jury,  and  the  province  of 
the  jurv  not  being  invaded.  Middleton  v. 
Whitridge  (N.  Y.)  1916C-856. 

460.  Even  if  it  is  indispensable  in  cap- 
ital cases  to  ask  the  prisoner  if  he  has 
anything  to  say  before  sentence,  error  in 
omitting  the  inquiry  affects  yonly  the  sen- 
tence and  not  the  verdict;  and  in  view  of 
Md.  Code  Pub.  Gen.  Laws  1904,  art.  5, 
§  81,  providing  that  if  the  court  of  ap- 
peals reverses  for  error  in  the  judgment  or 
sentence  itself,  it  shall  remit  the  record 
to  the  court  below  that  it  may  pronounce 
the  proper  judgment,  and  especially  where 
a  motion  for  a  new  trial  and  to  strike  out 
a  judgment  and  sentence  have  been  over- 
ruled, the  court  of  appeals  is  not  required 
to  reverse  the  judgment  and  remit  that  the 
court  below  may  first  ask  the  prisoner  if 
he  has  anything  to  say  and  then  to  re- 
sentence him.  Dutton  v.  State  (Md.) 
1916C-89.  (Annotated.) 

461.  Bendering  Final  Judgment  on  Be- 
versal.  A  judgment  for  plaintiff  cannot  be 
reversed,  and  judgment  rendered  by  the 
aK»ellat6  division  for  defendant,  unless 
there  was  no  evidence  presenting  a  ques- 
tion of  fact  in  favor  of  plaintiff,  and  de- 
fendants were  entitled  to  an  order  of  non- 
suit of  a  directed  verdict.  Carlisle  v. 
Norris  (N.  Y.)   1917A-429. 

b.     Granting  New  Trial. 

462.  On  appeal  from  a  judgment  of  the 
appellate  division,  rendered  before  amend- 
ment, by  Laws  1914,  c.  351,  of  N.  Y.  Code 
Civ.  Proc.  §  1346,  reversing  the  judgment 
for  plaintiff  and  dismissing  the  complaint, 
there  being  evidence  from  which  the  jury 
could  draw  inferences  for  plaintiff,  and 
the  record  disclosing  exceptions  requiring 
a  new  trial,  instead  of  remitting  the  case 
to  the  appellate  division  to  consider  it  on 
the  facts,  a  new  trial  will  be  granted. 
Middleton  v.  Whitridge  (N.  Y.)  1916C- 
856. 

463.  Limiting  Issues  on  Betrial.  That 
Miss.  Code  1906,  §§  4944,  4945,  by  the  rule 
of  "expressio  unius  est  exclusio  alterius," 
prohibits  the  supreme  court  from  granting 
a  new  trial  on  the  issue  of  damages  only, 
does  not  affect  such  right  if  it  exists  by 
some  other  statute.  Yazoo,  etc.  E.  Co.  v. 
Scott   (Miss.)   1917E-880.         (Annotated.) 

464.  At  cornmoTi  law  in  a  civil  action, 
the  supreme  court  has  the  power  to  award 


a  new  trial  on  the  issue  of  damages  only. 
Yazoo,  etc.  R.  Co.  v.  Scott  (Miss.)  1917E^ 
880.  (Annotated.) 

465.  Questions  not  Likely  to  Arise  on 
Betrial.  The  case  being  remanded  for  a 
new  trial  upon  another  ground,  it  is  un- 
necessary to  determine  or  decide  questions 
made  by  assignments  of  error  upon  rulings 
of  the  court  ref'using  to  declare  a  mistrial 
based  upon  certain  incidents  occurring 
during  the  trial,  as  those  incidents  will 
probably  not  occur  at  the  next  hearing. 
Loewenherz  v.  Merchants',  etc.  Bank  (Ga.) 
1917E-S77. 

466.  Scope  of  Bemand — New  Trial  on 
Single  Issue.  A  reviewing  court  may,  in 
its  discretion,  qualify  the  order  of  remand 
so  as  to  restrict  the  scope  of  the  new  trial 
ordered.  Perkins  v.  Brown  (Tenn.) 
1917A-124. 

467.  Where  the  only  question  at  issue 
was  the  measure  of  damages,  the  appellate 
court,  on  reversal  of  a  judgment  for  plain- 
tiff, will  qualify  the  order  of  remand  so  as 
to  determine  only  the  matter  of  damages. 
Perkins  v.  Brown  (Tenn.)  1917A-124. 

468.  Issues  —  Effect      of      Agreement. 

Where  opposing  counsel  in  such  case  agree 
that  there  is  no  question  of  assumption  of 
risk  in  the  case,  and  the  trial  judge  agrees 
to  disregard  such  question  in  his  charge, 
and  where,  after  verdict  for  plaintiff,  the 
court,  in  considering  defendant's  motion 
for  judgment  non  obstante  veredicto, 
treats  such  question  as  controlling,  the 
judgment  should  be  vacated  on  appeal  and 
a  new  trial  awarded.  Richardson  v. 
Flower   (Pa.)   1916E-1088. 

469.  General  Bule.  The  supreme  court 
cannot  grant  a  new  trial  merely  for  exces- 
sive damages  for  personal  injury,  unless 
they  appear  to  have  been  given  under  the 
influence  of  passion  or  prejudice;  that  is, 
so  excessive  as  to  be  entirely  out  of  pro- 
portion to  the  injury.  Rosenberg  v.  Dahl 
(Ky.)  1916E-lll6. 

Note. 

Right  of  appellate  court,  upon  granting 
new  trial,  to  limit  issues  to  be  tried  by 
jury.     1917E-888. 

c.     Remand   for   Additional   Findings. 

470.  Bemand  for  Further  Proof — Elec- 
tion Contest.  Where  there  is  a  discrep- 
ancy between  the  printed  list  of  taxpayers 
and  those  who  had  voted  at  the  election 
in  a  township,  but  the  evidence  is  not 
fully  developed,  so  that  it  is  possible  that 
the  contestees  may  show  that  the  election 
returns  are  correct,  the  case  will  be  re- 
manded to  give  the  contestees  an  oppor- 
tunity to  prove  the  correctness  of  the  elec- 
tion returns.  Webb  v.  Bowden  (Ark.) 
1918A-60. 


i 


APPEAL  AND  ERROR. 


75 


d.     Remand  for  Proper  Judgment. 

471.  Disposition  of  Cause — Demurrer 
Properly  Overruled.  Where  the  trial  court 
erred  in  overruling  the  demurrer  to  the 
amended  declaration  on  the  ground  of  mis- 
joinder of  causes  of  action,  the  supreme 
court  will  not  sustain  the  demurrer  and 
enter  judgment  for  defendant,  but  will  re- 
mand, with  instructions  to  give  plaintiff 
leave  to  withdraw  his  joinder  in  the  de- 
murrer and  amend  his  declaration.  Tan- 
ner v.  Culpeper  Construction  Co.  (Va.) 
1917E-794. 

e.     Modification   of  Judgment. 

472.  Cure  of  Error  by  Remittitur. 
Where,  in  an  action  against  a  city  for 
personal  injuries,  the  court  erroneously 
permitted  an  amendment  of  the  claim  filed 
with  the  city  to  include  $G5  expended  in 
the  employment  of  a  nurse,  the  error  can 
be  remedied  on  appeal  without  a  reversal, 
if  plaintiff  will  file  a  remittitur  of  $63. 
Wagner  v.  Seattle   (Wash.)    1916E-720. 

f.  Modification  of  Judgment  of  Appellate 

Court. 

473.  Recall  of  Remittitur.  The  supreme 
court  may  at  any  time  recall  a  remittitur 
which  through  mistake  of  the  clerk  incor- 
rectly states  the  judgment  rendered.  Oak- 
land v.  Pacific  Coast  Lumber,  etc.  Co. 
(Cal.)  1917E-259. 

474.  Where  the  judgment  of  the  supreme 
court  is  not  objected  to  or  modified  within 
30  days  after  its  rendition,  it  becomes  ab- 
solutely final,  and  cannot  thereafter  be 
modified.  Oakland  v.  Pacific  Coast  Lum- 
ber, etc.  Co.  (Cal.)   1917E-259. 

g.  Jurisdiction  of  Appellate  Court  After 

Remand. 

475.  Where  an  appeal  has  been  dis- 
missed, and  the  remittitur  transmitted  to 
and  filed  in  the  trial  court,  the  appellate 
court  has  lost  jurisdiction  of  the  case,  and 
cannot  recall  the  remittitur,  or  review  its 
decision,  unless  the  order  was  based  on 
fraud  or  mistake  of  fact,  or  the  remittitur 
was  sent  down  through  inadvertence  or 
mistake.  Hilmen  v.  Nygaard  (N.  Dak.) 
1917A-282.  (Annotated.) 

Note. 

Jurisdiction  of  appellate  court  after  re- 
mand.    1917A-284. 

h.     Amendment  of  Pleadings  on  Remand. 

476.  Right  to  Amend  Pleading.  Where 
after  a  jury  trial  a  case  is  appealed  and 
reversed  for  new  trial,  amendments  to  the 
pleadings  are  not  a  matter  of  right,  but 
may  be  allowed  in  the  discretion  of  the 
court.  Estate  of  Oldfield  (Iowa)  1917D- 
1067. 

477.  Where  a  plaintiff  elects  to  stand 
upon   his   amended   complaint  when   a   de- 


murrer was  sustained  to  it,  on  reversal  no 
further  amendment  can  be  permitted. 
Dick  V.  Northern  Pacific  E.  Co,  (Wash.) 
1917A-638. 

19.     EFFECT  OP  APPEAL. 

478.  Law  of  the  Case.  A  decision  on 
the  facts  certified  that  defendant's  incom- 
petency as  a  witness  was  waived  becomes 
the  law  of  the  case  for  subsequent  trials, 
as  such  record  can  be  corrected  only  on  a 
rehearing,  and  not  falsified  on  a  subse- 
quent trial,  by  showing  the  facts  were 
otherwise  than  certified.  Comstock's  Ad- 
ministrator V.  Jacobs   (Vt.)    1918A-465. 

479.  Decision  as  Law  of  Case.     The  law 

as  enunciated  by  the  court  on  appeal  as 
applicable  to  a  given  case  remains  the  law 
of  that  case  for  all  future  proceedings. 
Rugenstein  v.  Ottenheimer  (Ore.)  1917E- 
9.53. 

480.  Liability  of  Guardian  for  False 
Claim — Effect    of    Allowance    of    Claim. 

The  right  of  a  minor  ward  upon  coming 
of  age  to  obtain  relief  in  equity  under  the 
Hawaiian  laws,  against  his  guardian,  who 
had,  in  fraud  of  the  ward,  presented  a 
claim  and  obtained  in  his  own  name  an 
aw^ard  by  the  Hawaiian  board  of  land 
commissioners  of  a  title  in  fee  simple  to 
the  ward's  land,  was  not  foreclosed  by  an 
aflirraance  in  the  Federal  Supreme  Court 
of  a  decree  of  the  Hawaiian  Supreme 
Court  adjudging  that  the  award  in  ques- 
tion could  only  be  attacked  by  a  direct 
appeal  by  a  party  who  had  presented  his 
claims  to  the  board,  where  the  vitally  im- 
portant fact  of  guardianship  was  not 
included  in  the  findings  of  fact  certified  to 
the  federal  supreme  court.  Kapiolani  Es- 
tate V.  Atcherly  (U.  S.)  1916E-142. 

Note. 
Force  and  effect  of  advisory  opinion  by 
appellate  judges.     1917A^95. 

20.     SUPERSEDEAS   AND   BOND. 
a.     In  General. 

481.  Appeal  Bond — Failure  to  Indorse 
Filing.  Where  a  justice  accepted  an  ap- 
peal bond,  his  failure  to  mark  it  filed  is 
not  a  jurisdictional  defect.  Brown  v. 
Mellon  (Iowa)   1917C-I070. 

482.  Revocation  of  License — Appeal.  A 
judgment  revoking  a  liquor  license  being 
self-executing,  an  appeal  therefrom  does 
not  suspend  it,  or  stay  its  force,  at  least 
where  a  supersedeas  bond  is  not  given 
under  Utah  Comp.  Laws  1907,  §  3314.  In 
re  Grant  (Utah)  1917A-1019. 

(Annotated.) 

b.     Release    of    Sureties. 

4S3.  Abandonment  of  Appeal.  An  under- 
taking  on    appeal   from   a   justice    of    the 


76 


DIGEST. 

1916C— 1918B. 


peace  is  to  be  construed  strictly  in  favor 
of  the  surety,  and,  where  it  is  conditioned 
that  the  appellant  will  pay  all  costs  and 
disbursements  that  may  be  awarded 
against  him  on  the  appeal,  and  satisfy  any 
judgment  that  may  be  given  against  him 
in  thp  appellate  court,  and  the  appeal  is 
abandoned  and  no  judgment  is  rendered  in 
the  appellate  court,  the  surety  is  not  lia- 
ble. Woodle  V.  Settlemyer  (Ore.)  1916C- 
1222.  (Annotated.) 

Note. 
Effect  of  abandonment  or  dismissal  of 
appeal  on  liability  of  aureties  on  appeal 
bond.     1916C-1226. 

c.     Actions  on  Appeal  Bonds. 

484.  Effect  on  Original  Judgment.  If, 
upon  appeal  to  this  court,  such  judgment 
is  affirmed,  and  the  property  is  returned 
to  the  defendant  pursuant  to  such  judg- 
ment, in  an  action  upon  the  appeal  bond 
the  plaintiff  cannot  recover  damages  oc- 
curring prior  to  the  original  judgment. 
Wallace  v.  Cox  (Neb.)  1917D-699. 

(Annotated.) 

21.     COSTS. 

485.  Cost  of  Transcript.  A  refusal  of 
the  clerk  to  order  either  the  defendant  or 
the  clerk  of  the  court  to  furnish  a  copy 
of  the  stenographer's  minutes,  and  its 
order  that  the  plaintiff  furnish  such  copy 
for  the  purposes  of  his  appeal  from  the 
court's  action  in  setting  aside  a  verdict  in 
his  favor,  is  proper  in  view  of  Conn.  Gen. 
St.  1902,  §  805,  providing  that,  on  appeal 
from  the  denial  of  a  motion  for  new  trial 
based  on  the  verdict  being  against  the  evi- 
dence, the  expense  of  printing  evidence 
shall  be  governed  by  the  provisions  of  sec- 
tion 796,  which  provides  that  the  expense 
of  printing  any  evidence  made  part  of  the 
record  on  appeal  shall  be  paid  by  the  party 
taking  the  exceptions  to  which  it  relates. 
Gray  v.  Mossman    (Conn.)    1917C-27. 

486.  Printing  Unnecessary  Record. 
Where  appellant  prevails,  and  the  record 
is  not  abbreviated  in  compliance  with  the 
rules  of  the  supreme  court  codified  as  Md. 
Code  Pub.  Gen.  Laws,  art.  5,  §§  10,  34,  35, 
but  contains  a  large  amount  of  testimony, 
which  could  have  been  omitted  without 
prejudice  to  any  question  involved,  the 
cost  of  the  record  will  be  divided.  Ox- 
weld  Acetylene  Co.  v.  Hughes  (Md.) 
1917C-S37. 

22.     REHEAEING. 

487.  Baislng  Constitutional  Question.  A 
constitutional  objection  to  a  criminal  stat- 
ute may  be  raised  on  a  petition  for  a  re- 
hearing, even  though  it  has  not  been  raised 
either  upon  the  trial  or  upon  the  original 
appeal.  State  v.  Bickford  (N.  Dak.) 
1916D-140. 


APPEARANCES. 

Effect    of    appointment    of    guardian    ad 
litem,  see  Infants,  19. 

1.  The  filing  of  a  petition  and  bond  for  a 
removal  to  the  federal  court  is  not  an 
appearance  in  the  state  court,  under  the 
provisions  of  the  Revised  Codes  of  Idaho. 
State  V.  American  Surety  Co.  (Idaho) 
1916E-209. 

2.  Objection  to  Jurisdiction — Effect. 
Under  the  federal  practice,  an  appearance 
to  object  to  the  jurisdiction  of  the  court 
does  not  bind  the  parties  appearing  to 
submit  to  the  jurisdiction  on  the  overrul- 
ing of  the  objection.  Hitchman  Coal,  etc. 
Co.  V.  Mitchell  (U.  S.)  191SB-461. 

3.  Waiver  of -Special  Appearance.  In  an 
action  of  replevin,  where  the  defendant 
enters  a  special  appearance  "for  the  pur- 
pose of  moving  to  quash  the  return  to  the 
writ  of  replevin,"  and  files  his  motion  to 
that  effect,  which  is  denied,  and  the  de- 
fendant then  proceeds  to  defend  the  action 
on  the  merits,  he  will  be  considered  to 
have  waived  any  defect  which  may  exist 
in  the  service  of  the  writ.  Henry  v.  Spit- 
ler  (Fla.)  1916E-1267.  (Annotated.) 

4.  A  defendant,  in  an  action  at  law,  who 
has  appeared  specially  for  the  purpose  of 
contesting  the  validity  of  the  service  of 
the  summons  upon  him,  and  such  matter 
has  been  determined  adversely  to  him,  in 
order  to  preserve  his  status  as  not  having 
been  properly  served  with  summons,  so  as 
to  give  the  court  jurisdiction  over  his  per- 
son, must  refrain  from  taking  any  subse- 
quent steps  to  defend  the  action  upon  the 
merits.  In  the  event  he  proceeds  to  a 
trial  upon  the  merits,  he  cannot  thereafter 
in  an  appellate  court  be  permitted  to  raise 
such  question  of  jurisdiction,  but  will  be 
held  to  have  entered  a  general  appear- 
ance. Henry  v.  Spitler  (Fla.)  1916E- 
1267.  (Annotated.) 

5.  Writ  of  Error  as  General  Appearance. 
A  writ  of  error  to  what  purports  to  be  a 

final  judgment  of  a  circuit  court  operates 
as  a  general  appearance  in  the  case  of  the 
party  taking  such  writ.  Henry  v.  Spitler 
(Fla.)   1916E-1267. 

6.  Motion  to  Set  Aside  Order  for  Want 
of  Jurisdiction.  The  contents  of  the 
plaintiffs'  motion  to  set  aside  the  order 
considered  and  held  not  to  constitute  a 
general  appearance  in  the  receivership 
suit.     Bishop  V.  Fisher  (Kan.)  1917B-450. 

(Annotated.) 

Notes. 

Waiver  of  special  appearance  by  plead- 
ing to  merits.     1916E-1270. 

Motion  to  set  aside  order  in  cause  for 
want  of  jurisdiction  as  general  or  special 
appearance.     1917B— 454. 


ARGUMENT  AND  CONDUCT  OF  COUNSEL. 


77 


APPLICATION  OF  PAYMENTS. 
See  Payment,  2-6. 

APPLICATIONS  FOR  MEMBERSHIP. 
See  Beneficial  Associations,  6-7. 

APPRAISEMENT. 

Of  decedents'  estates,  see  Executors  and 
Administrators,   15. 

APPROPRIATION   OF  WATER. 

See  Irrigation,  2-10. 

Priority   of  right  in   subterranean  waters, 
Bee  Waters  and  Watercourses,  12. 

APPROPRIATIONS. 

See  States,  5,  6. 

Of  city  funds,  see  Municipal  Corporations, 

106-108. 
Publication     of    appropriation    ordinance, 

see  Trees  and  Timber,  2-4. 

APPURTENANCES. 
Included  though  not  named,  see  Deeds,  71. 

ARBITRATION  AND  AWARD. 

See  Fire  Insurance,  21,  30-36,  42-44. 

1.  Power  of  Arbitrators.  Arbitrators 
empowered  to  decide  "all  disputes  .  .  . 
arising  out  of"  a  contract  may  determine 
the  existence  of  a  usage  affecting  the  inter- 
pretation and  effect  of  the  contract.  Pro- 
duce Brokers  Co.  v.  Olympia  Oil,  etc.  Co. 
(Eng.)  1916D-351.  (Annotated.) 

2.  Failure  to  Give  Notice  of  Hearing. 

An  award  of  arbitrators  under  Me.  Eev. 
St.  c.  21,  §  6,  authorizing  an  assessment  by 
arbitration  if  any  person  is  dissatisfied,  is 
a  nullity  if  made  without  notice  of  hear- 
ing, in  the  absence  of  waiver  of  notice  by 
the  party  claiming  to  be  aggrieved.  Au- 
burn V.  Paul  (Me.)  1917E-136. 

Note. 
Power  of  arbitrators  to  determine  exist- 
ence of  usage  or  custom.     1916D-360. 

ARCHITECT'S  CERTIFICATE. 
See  Contracts,  86-91. 

AREA. 
Meaning,  see  Streets  and  Highways,  31. 

AREAWAY. 

Meaning,  see  Streets  and  Highways,  30. 


ARGUMENT  AND  CONDUCT  OF  COUN- 
SEL. 

1.  In  General,  77. 

2.  Arguments,   78. 

a.  Legitimate    Deductions    from    Evi- 

dence, 78. 

b.  Comment     Unsupported     by     Evi- 

dence, 78. 

c.  Failure    to    Produce    Evidence    or 

Testify,   78. 

d.  Expression  of  Opinion  as  to  Guilt, 

79. 

e.  Reference    to    Defendant's    Wealth, 

79. 

f.  Erroneous  Statement  of  Law,  79. 

g.  Appeal  to  Race  Prejudice,  79. 

h.  Appeal  to  Sympathy  of  Jurors,  79. 

i.  Retaliatory  Statements,  79. 

j.  Reference  to  Expense  of  Imprison- 
ment, 80. 

k.  Reading  Law,  80. 

1.  Comment  on  Change  of  Venue,  80, 
m.  Comment  on  Rejected  Testimony,  80. 

n.  Abusive  Language,  80. 

o.  Reply  to  Improper  Argument,  80. 

p.  Stating  Penalty  for  Crime,  80. 
Waiver  of  error  by  omission,  see  Appeal 

and  Error,  169-176. 
Reversible  error,  see  Appeal    and    Error, 

204. 
Harmless   error  in   argument,   see   Appeal 

and  Error,  327-332. 
Record  must  show  error,  see  Appeal  and 

Error,  351. 
Waiver  of  error,  see  Appeal   and   Error, 

354,  355,  360. 
Necessity    of   exception,    see   Appeal   and 

Error,  393,  394. 
Advising  jury  to  disregard  argument,  see 

Instructions,  63. 
Exclusion    of    jury    during    argument,    see 

Jury,  32. 
Improper    argument    as    ground  for   new 

trial,  see  New  Trial,  15,  16. 
On  will  contest,  see  Wills,  137. 

1.     IN   GENERAL. 

1.  Determining  Right  to  Open  and  Close 
— Pleadings  Construed.  In  determining 
which  party  has  the  affirmative  of  the  is- 
sue, and  hence  is  entitled  to  open  and 
close,  regard  is  had  to  the  substance  and 
effect  of  the  pleadings,  rather  than  to  their 
form.  Shoop  v.  Fidelity,  etc.,  Co.  (Md.) 
1916D-954. 

2.  Demand  for  Incriminating  Documents. 
Since  the  defendant  in  a  criminal  case  can- 
not be  compelled  to  produce  incriminating 
documents,  counsel  should  not  demand  such 
production.  People  v.  Gibson  (N.  Y.) 
1918B-509.  (Annotated.) 

S.  Right  to  Open  and  Close — Right  to 
Recover  Admitted.  In  an  action  on  an 
accident  policy,  in  which  defendant  by  its 
plea  did  not  expressly  deny  plaintiff's  right 
to  recover,  but  alleged  that  the  accident 
occurred  while  insured  was  engaged  in  an 


78 


DIGEST. 

1916C— 1918B. 


extrahazardous  occupation,  so  that  by  the 
terms  of  the  policy  plaintiff  was  entitled 
to  recover  only  six-elevenths  of  the  amount 
of  the  policy,  defendant  is  not  entitled 
to  open  and  close,  not  having  admitted 
the  plaintiff's  prima  facie  right  of  recov- 
ery, but  in  effect  denying  it  as  to  five- 
elevenths  of  the  face  of  the  policy.  Shoop 
V.  Fidelity,  etc.  Co.  (Md.)  1916D-954. 

(Annotated.) 

4.  In  an  action  for  libel,  an  opening 
statement  by  plaintiffs,  as  attorney  for 
himself,  that  defendants  falsely  charged 
him  with  theft  and  rape,  and  that  such 
charges  caused  his  friends  to  withdraw 
their  support  from  his  candidacy  for  gov- 
ernor, is  prejudicial;  the  statement  being 
a  direct  statement  of  fact,  and  not  as  to 
matters  plaintiff  expected  to  prove.  Egan 
V.  Dotson  (S.  Dak.)  1917A-296. 

Note. 

Bight  to  open  and  close  where  only  issue 
is  amount  plaintiff  is  entitled  to  recover. 
1916D-958. 

2.     ARGUMENTS. 
a.     Le^timate  Deductions  from  Evidence. 

5.  Suflaciency  of  Evidence  to  Warrant. 
In  an  action  for  the  death  of  plaintiff's 
intestate,  who  vas  burned  in  a  fire  in  de- 
fendant's establishment,  where  the  negli- 
gence relied  on  was  defendant's  failure 
to  furnish  adequate  fire  escapes  and  per- 
mitting the  only  fire  escape  to  be  ob- 
structed, evidence  that  other  employees 
jumped  from  windows  to  buildings  below, 
after  they  had  made  an  effort  to  reach  the 
fire  escape,  h'aving  been  received  without 
objection,  argument  that  the  escape  was 
obstructed,  based  on  such  evidence,  is  per- 
missible. Lichtenstein  v.  L.  Fish  Furni- 
ture Co.   (111.)  1918A-1087. 

b.     Comment  Unsupported  by  Evidence. 

6.  Going  Outside  Becord.  The  action  of 
the  prosecuting  attorney  in  assailing  ac- 
cused in  his  closing  argument  for  an 
offense  of  which  there  was  no  proof  and 
properly  could  be  none,  is  prejudicial. 
State  V.  Giu^ice  (Iowa)   1917C-1160. 

7.  The  profession  of  law  being  for  the 
administration  of  justice,  counsel  should 
not  in  their  argument  to  the  jury  appeal 
to  the  passions  of  the  jury  or  go  outside 
the  record.  Egan  v.  Dotson  (S.  Dak.) 
1917A-296. 

8.  Where  defendant  sought  to  recover 
for  libelous  charges  published  against  him 
while  he  was  a  candidate  for  governor, 
argument  that  rival  candidate  had  induced 
the  publication  of  the  charges  which  was 
not  supported  by  anj'  evidence  is  improper. 
Egan  V.  Dotson  (S.  Dak.)  1917A-296. 


9.  Opening  Statement.  UndeV  S.  Dak. 
Code  Civ.  Proc.  §  255,  declaring  that,  when 
the  jury  has  been  sworn,  the  plaintiff, 
after  stating  the  issues  in  his  case,  must 
produce  the  evidence  on  his  part,  and  the 
defendant  may  then  open  his  defense  and 
offer  his  evidence,  plaintiff,  who  was  at- 
torney for  himself,  cannot  in  his  opening 
statement  give  unsworn  testimony  making 
statements  not  as  matters  which  he  ex- 
pected to  prove,  but  as  actual  facts. 
Egan  V.  Dotson  (S.  Dak.)  1917A-296. 

10.  Where  counsel  for  defendant  in  his 
closing  argument  makes  a  statement: 
"This  is  M.,  I  could  say  more.  I  couldn't 
say  less.  He  is  an  absolutely  unreliable 
man  and  an  absolutely  unreliable  police 
magistrate" — and  there  is  no  evidence  in 
the  record  which  tends  in  any  way  to  ques- 
tion the  general  reliability  of  the  witness, 
nor  any  which  casts  discredit  upon  his 
career  as  a  police  magistrate,  it  is  not 
error  for  the  court  to  say:  "I  think  you 
will  have  to  be  a  little  careful,  Mr.  H., 
in  the  use  of  your  words.  You  have  a 
certain  latitude,  but  beyond  that,  please 
don't  go.  .  .  .  Getting  so  close  to  the  line, 
it  was  dangerous."  State  v.  Brunette 
(N.  Dak.)  1916E-340. 

c.    Failure  to  Produce  Evidence  or  Testify. 

11.  railure  to  Call  Attorney  as  Witness. 
In  a  will  contest,  it  is  error  for  contest- 
ant's attorney  in  argument  to  the  jury  to 
ask  why  the  executor's  attorney,  who  had 
helped  draw  up  the  will,  did  not  testify  as 
to  testator's  mental  capacity.  Eavens- 
croft  V.  Stull  (111.)  1918B-1130. 

(Annotated.) 

12.  Comment  on  Failure  of  Incompetent 
Witness  to  Testify.  Where  a  witness  was 
known  to  an  attorney  to  be  incompetent, 
and  he  had  in  fact  objected  to  her  when 
offered,  it  is  error  for  him  to  comment  pn 
her  failure  to  testify.  Eavenscroft  v. 
Stull  (111.)  1918B-1130. 

I.'?.  Failure  of  Defendant  to  Testify. 
Under  N.  Y.  Code  Cr.  Proc.  §  393,  de- 
claring that  the  neglect  or  refusal  of  a 
defendant  to  testify  does  not  create  any 
presumption  against  him,  statements  by 
the  prosecutor  in  argument,  reflecting  on 
defendant's  failure  to  take  the  stand,  by 
pointing  out  that  the  testimony  of  the 
only  eyewitness  was  absolutely  uncontra- 
dicted, and  that  it  would  have  been  contra- 
dicted, if  possible,  are  improper.  People  v. 
Watson  (N.Y.)  1917D-272.      (Annotated.) 

14.  In  a  Libel  Case.  Argument  by  plain- 
tiff, who  acted  as  counsel  for  himself,  that 
he  by  force  stopped  the  taking  of  one 
deposition,  and,  if  present,  he  would  have 
prevented  the  taking  of  another,  is  im- 
proper. Egan  V.  Dotson  (S.  Dak.)  1917A- 
296. 

15.  Where  accused  did  not  testify  in  his 
own     behalf,     but    introduced     testimony 


ARGUMENT  AND  CONDUCT  OF  COUNSEL. 


7a 


tending  to  show  that  between  two  certain 
hours  on  the  evening  of  the  homicide  he 
was  not  at  the  place  where  it  was  com- 
mitted, comment  by  the  state's  attorney 
that  the  testimony  did  not  show  where 
accused  was  prior  to  those  two  hours  is 
not  erroneous  as  a  comment  on  defend- 
ant's failure  to  testify.  Mason  v.  State 
(Tex.)  1917D-1094. 

16.  Under  N.  Y.  Code  Cr.  Proc.  §  524, 
declaring  that  the  court  must  give  judg- 
ment without  regard  to  technical  errors, 
improper  comment  by  the  prosecutor  on 
accused's  failure  to  take  the  stand,  which 
the  jury  was  by  the  trial  court  directed 
to  disregard,  is  no  ground  for  reversal; 
accused's  guilt  being  abundantly  shown. 
People    V,    Watson     (N,    Y.)     1917D-272. 

(Annotated.) 

17.  Reference  to  Failure  to  Produce  Im- 
material Witness.  Where  the  state  claimed 
that  accused  killed  deceased  to  prevent 
the  latter  from  testifying  against  him  in 
a  prosecution  for  burglary,  it  is  improper 
for  the  state's  attorney  to  refer  to  ac- 
cused's failure  to  introduce  witnesses  in 
support  of  his  defense  to  the  charge  of 
burglary,  as  such  evidence  would  have 
been  immaterial  and  irrelevant.  State  v. 
Inlow  (Utah)  1917A-741. 

Note. 

Comment  by  prosecutor  on  failure  of 
accused  to  testify.     1917D-277. 

d.     Expression  of  Opinion  as  to  Guilt. 

18.  It  is  not  improper  for  the  state's 
attorney  in  his  argument  to  state  that  he 
believes  defendant  to  be  responsible  for 
the  condition  of  prosecuting  witness  prior 
to  the  time  she  testified  to  intercourse 
with  him,  and  that  he  bases  his  belief 
upon  a  card  sent  by  defendant  to  the 
prosecuting  witness,  and  which  has  been 
introduced  in  evidence.  Kiggins  v.  State 
(Md.)  1916E-1117. 


e.     Eeference  to  Defendant's  Wealth. 

19.  Where,  in  an  action  under  Iowa 
Code,  §  2423,  to  recover  money  paid  for 
liquor  illegally  sold  by  defendant  to 
plaintiff,  defendant  on  cross-examination 
stated  that  he  had  made  good  money 
in  real  estate,  and  further  questions  on 
cross-examination  insinuated  that  he  had 
become  wealthy  out  of  illegal  sales  of 
liquor,  the  argument  of  plaintiff's  coun- 
sel, that  derendant  became  rich  collecting 
money  on  liquor  which  he  sold,  is  preju- 
dicial, and  the  misconduct  is  not  cured  by 
the  court  stating  that  it  made  no  differ- 
ence whether  defendant  was  rich  or  not. 
Gvitanovich  v.  Bromberg  (Iowa)  1917B- 
309.  (Annotated.) 


Note. 
Propriety  of  argument  of  counsel  refer- 
ring to  poverty  or  wealth  of  party  to  ac- 
tion.    1917B-312. 

f.     Erroneous  Statement  of  Law. 

21.  Opening  statement  of  plaintiff,  in  an 
action  for  personal  injury  on  defendant's 
track,  calling  attention  to  the  legal  propo- 
sition that  the  public  might  use  an  ap- 
proach to  a  station,  that  when  plaintiff 
went  through  a  gate  in  its  right  of  way 
which  had  been  used  as  an  approach  she 
became  a  passenger,  entitled  to  care  and 
protection  as  such,  and  the  proximate 
cause  of  the  injury,  as  he  understood  it, 
was  defendant's  violation  of  its  duty  to 
stop  to  take  her  up,  was  erroneous  as  an 
argument  on  the  law  of  the  case.  Wells 
V.  Ann  Arbor  K.  Co.  (Mich.)  1917A-1093. 

g.     Appeal  to  Eace  Prejudice. 

22.  In  replevin  by  a  mortgagee  for  two 
cows  mortgaged  to  plaintiff  by  defendant 
to  secure  the  price  of  a  horse,  where  coun- 
sel repeatedly  referred  to  plaintiff  in 
argument  as  a  Jew  in  such  a  manner  as  to 
arouse  race  prejudice  on  the  part  of  the 
jury,  and  when  cautioned  by  the  court 
persisted  in  arguing  with  the  court  to  get 
more  of  the  matter  before  the  jury,  such 
conduct  is  prejudicial  misconduct.  Solo- 
mon    V.      Stewart     (Mich.)      1917A-942. 

(Annotated.) 

h.     Appeal  to  Sympathy  of  Jurors. 

23.  Asking  Jury  What  They  Would 
Take  for  Similar  Injury.  Plaintiff's  clos- 
ing argument,  asking  the  jury  which  one 
of  them  would  accept  the  injury  plaintiff 
was  alleged  to  have  suffered  for  a  stated 
sum  of  money,  and  what  each  juryman 
would  think  it  worth  if  plaintiff  was 
his  wife,  was  reversible  error.  Wells  v. 
Ann    Arbor    E.    Co.    (Mich.)    1917A-1093. 

(Annotated.) 

24.  In  a  libel  case,  argument  by  plain- 
tiff, who  was  an  attornej',  and  who  ap- 
peared for  himself,  that  he  was  the  at- 
torney for  the  oppressed,  is  improper,  be- 
ing immaterial.  Egan  v.  Dotson  (S.  Dak.) 
1917A-296. 

Note. 
Propriety    of    argument    of    counsel    in 
personal    injury    case    asking    jury    what 
thev     would     take     for     similar     injury. 
1917A-1099. 

i.     Eetaliatory  Statements. 

25.  Where  plaintiff,  who  was  seeking  to 
recover  for  libel,  was  an  attorney  wno  had 
been  disbarred  by  the  supreme  court,  it 
is  improper  in  his  argument  to  the  jury 
to  mention  his  disbarment  and  cast  asper- 


80 


DIGEST. 

1916C— 1918B. 


fiions  on  the  members  of  the  supreme 
court,  particularly  where  his  plea  for  re- 
instatement contained  an  admission  of  the 
court's  integrity.  Egan  v.  Dotson  (S.  Dak.) 
1917A-296. 

j.    Reference  to  Expense  of  Imprisonment. 

26.  Plea  for  Death  Penalty.  Argument 
Dy  the  prosecutor,  urging  the  jury  not  to 
burden  the  state  with  the  expense  of 
maintaining  accused,  if  he  is  guilty  of 
murder  in  the  first  degree,  is  improper. 
People  V.  Watson  (N.  Y.)  1917D-272. 

k.     Reading  Law. 

27.  Discretion  of  Cfourt.  In  a  will  con- 
test case,  where  on  objections  to  a  ques- 
tion to  a  witness  contestant's  counsel 
read  in  the  presence  of  the  jury  an  opin- 
ion of  another  court  in  another  case,  pro- 
ponent cannot  complain,  for  the  question 
whether  the  jury  should  be  excused  dur- 
ing the  reading  rests  in  the  trial  court. 
In  re. Williams'  Estate  (Mont.)  1917E- 
126. 

1.     Comment  on  Change  of  Venue. 

28.  Where  a  criminal  case  waa  trans- 
ferred from  one  county  to  another,  the 
action  of  the  county  attorney  in  his  open- 
ing argument  in  stating  that  he  believed 
that  the  former  county  owed  to  the  citi- 
zens of  the  latter  county  and  to  the  jurors 
an  apology  and  an  explanation  of  why  the 
jurors  were  present,  and  that  it  was 
through  no  solicitation  of  the  prosecuting 
attorney,  is  improper,  for  it  was  no  con- 
cern of  the  jury  how  the  case  came  to  be 
there.  State  v.  Giudice  (Iowa)  1917C- 
1160. 

m.     Comment  on  Rejected  Testimony. 

29.  In  a  libel  ease,  statements  by  plain- 
tiff's counsel  in  argument  that  depositions 
of  two  Catholic  priests  taken  by  plaintiff 
were  suppressed  on  motion  of  defendant 
because  the  order  was  not  served  in  time 
is  improper.  Egan  v.  Dotson  (S.  Dak.) 
I917A-296. 

n.    Abusive  Language. 

30.  A  prosecuting  officer  under  no  cir- 
cumstances should  resort  to  vituperative 
and  abusive  language  in  arguing  a  case  to 
the  jury.  Bishop  v.  State  (Tex.)  1916E- 
379. 

0.     Reply  to  Improper  Argument. 

31.  Comment  Justified  by  Acts  of  Oppo- 
sing  CounseL  Where  the  attorney  for  ac- 
cused on  the  cross-examination  of  a  wit- 
ness propounded  questions  which  he  must 
have  known  were  improper  and  sought  to 
inject  evidence  in  the  case  that  had  no 
place  there,  the  remark  of  state's  counsel 
that  accused's  attorney  was  "shooting  hot 
air"  into  the  case  and  "insisting  on  stick- 


ing in  that  prejudicial  stuff  that  he  knows 
is  not  true,"  is  not  misconduct.  State  v. 
Giudice  (Iowa)   1917C-1160. 

p.  Stating  Penalty  for  Crime. 
32.  In  a  prosecution  for  statutory  rape, 
the  refusal  to  allow  defendant's  counsel  to 
state  to  the  jury  the  penalty  prescribed 
for  the  offense,  on  the  ground  that  more 
evidence  would  be  required  to  convict  of 
a  serious  crime  than  of  a  trivial  one,  is 
proper.  State  v.  Tetrault  (N.  H.)  1918B- 
425. 

ARMY  AND  NAVY. 

Courts-martial,  see  Courts,  1,  19,  20. 

xlight  to  vote,  see  Elections,  3. 

Public  report  of  army  council,  privilege, 
see  Libel  and  Slander,  64. 

Calling  militia  into  U.  S.  service,  see  Mili- 
tia, 12. 

Soldiers'  Home,  see  Pensions,  1,  2. 

Veterans'  Preference  Acts,  see  Public 
Officers,  10. 

Liberal  construction  of  law,  see  Statutes, 
58. 

1.  The  Powers  of  Congress.  Respectin*; 
the  militia  under  Const,  art.  1,  §  8  (8  Fed. 
St.  Ann.  652),  authorizing  Congress  to  pro- 
vide for  calling  forth  "the  militia  to  exe- 
cute the  laws  of  the  nation,  suppress  in- 
surrections, and  repel  invasions,  and  to 
provide  for  organizing,  arming,  and  dis- 
ciplining the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in 
the  service  of  the  United  States,  reserv- 
ing to  the  states,  respectively,  the  appoint- 
ment  of  officers  and  the  authority  of 
training  the  militia  according  to  the  dis- 
cipline prescribed  by  Congress,  and  the 
power  to  raise  armies  conferred  by  the 
same  section,  are  separate  powers,  and  the 
army  power  embraces  complete  authority, 
and  is  not  diminished  by  the  control  over 
the  militia  left  in  the  states,  though  the 
militia  power  may  diminish  the  occasion 
for  the  exertion  by  Confirress  of  its  mili- 
tary power,  and  though  the  power  to  raise 
armies  is  susceptible  of  narrowing  the 
area  over  which  the  militia  clause  oper- 
ates. Selective  Draft  Law  Cases  (U.  S.) 
191813-857.  (Annotated.) 

2.  When  Congress  exercises  its  power 
to  call  a  citizen  into  the  army  without  his 
consent,  the  army  into  which  he  enters  is 
not  limited  to  services  such  as  those  for 
which  it  is  claimed  the  militia  may  only 
be  used.  Selective  Draft  Law  Cases 
(U.   S.)    1918B-857.  (Annotated.) 

3.  Conscription — ^Validity  of  Act.  Un- 
der Const,  art.  1,  §  8  (8  I'ed.  St.  Ann. 
pp.  637,  645,  649),  authorizing  Congress  to 
declare  war,  to  Taise  and  support  armies, 
and  to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces, 
and  to  make  all  laws  necessary  and  proper 
tor  carrying  the  foregoing  powers  into 
execution,  and  article  6  (9  Fed.  St.  Ann. 


ARMY  AND  NAVY— ARRAIGNMENT. 


81 


218),  providing  that  the  Constitution  and 
laws  of  the  United  States  made  in  pursu- 
ance thereof  shall  be  the  supreme  law  of 
the  land,  Congress  has  power  to  raise 
armies  bj  conscription,  and  such  power  is 
not  denied  by  reason  of  the  fact  tJiat  un- 
der the  Constitution  as  originally  framed 
state  citizenship  was  primary,  and  United 
States  citizenship  but  derivative  and  de- 
pendent thereon,  or  by  the  fact  that,  prior 
to  the  Constitution,  the  state  authority 
over  the  militia  embraced  every  citizen, 
and  therefore  Act  May  18,  1917,  c.  15 
(Fed.  St.  Ann.  Pamph.  Supp,  No,  11, 
p.  85)  providing  for  raising  an  army  by 
means  of  a  selective  draft,  is  valid.  Selec- 
tive Draft  Law  Cases  (U.  S.)   1918B-857. 

(Annotated.) 

4.  Draft  Act^— VaUdity.  Act  May  18, 
1917.  c.  15  (Fed.  St.  Ann.  Pamph.  Supp. 
No.  11,  p.  85);  providing  for  raising  an 
army  by  mea^s  of  a  selective  draft,  does 
not  impose  involuntary  servitude,  in  viola- 
tion of  Const.  Amend.'  13  (9  Fed.  St.  Ann. 
376).  Selective  Draft  Law  Cases  (U.  8.) 
1918B-857.  (Annotated.) 

5.  Act  May  18,  1917,  c.  15  (Fed.  St. 
Ann.  Pamph.  Supp.  No.  11,  p.  85),  pro- 
viding for  the  raising  of  an  army  oy 
means  of  a  selective  draft,  and  exempt- 
ing from  the  draft  regular  or  duly  or- 
aained  ministers  of  religion  and  theolog- 
ical students  under  prescribed  conditions, 
and  also  relieving  from  military  service, 
other  than  service  of  a  noncombatant 
character,  members  of  religious  sects 
whose  tenets  exclude  the  moral  right  to 
engage  in  war,  does  not  violate  Const. 
Amend.  1  (9  Fed.  St.  Ann.  241),  providing 
that  Congress  shall  make  no  law  respect- 
ing an  establishment  of  religion  or  pro- 
hibiting the  free  exercise  thereof.  Selec- 
tive Draft  Law  Cases  (U.  S.)   1918B-857. 

(Ann9tated.) 

6.  Act  Mav  18,  1917,  c.  15  (Fed.  St. 
Ann.  Pamph.  Supp.  No.  11,  p.  85),  pro- 
viding for  raising  an  army  by  selective 
draft,  is  not  void,  as  conferring  judicial 
power  on  administrative  oflScers.  Selec- 
tive Draft  Law  Cases   (U.  S.)   1918B-857. 

(Annotated.) 

7.  Act  May  18,  1917,  c.  15  (Fed.  St. 
Ann.  Pamph.  Supp.  No.  11,  p.  85),  provid- 
ing for  raising  an  army  by  a  selective 
draft,  is  not  void,  as  vesting  administra- 
tive officers  with  legislative  discretion. 
Selective  Draft  Law  Cases  (U.  S.)  1918B- 
857.  (Annotated.) 

8.  Conscription — Validity  of  Act.  Act 
May  18.  1917,  c.  15  (Fed.  St.  Ann.  Pamph. 
Supp.  No.  11,  p.  85),  providing  for  the 
raising  of  an  army  by  means  of  a  selec- 
tive draft,  is  not  void  as  delegating  fed- 
eral  powers  to  state   officials  because    of 

6 


some  of  its  administrative  features.  Selec- 
tive Draft  Law  Cases  (U.  S.)  1918B- 
857.  (Annotated.) 

9.  Compulsory  Service — Persons  Subject 
to  Conscription— Review  of  Finding.  The 
finding  of  a  magistrate  that  an  Irishman 
employed  in  England  was  "ordinarily  resi- 
dent" there  so  as  to  be  subject  to  the 
Military  Service  Act  of  1916  will  not 
be  reviewed  on  habeas  corpus.  Rex.  v. 
Commanding    Officer     (Eng.)     1917C-809. 

(Annotated.) 

10.  Receiving  Public  Property  in  Pledge 
from  Soldier.  On  the  trial  of  a  defend- 
ant for  knowingly  receiving  in  pledge 
from  a  soldier  an  automatic  pistol,  the 
property  of  the  United  States,  in  viola- 
tion of  Pen.  Code,  §  35  (Act  March  4, 
1909,  c.  321,  35  Stat.  1095  [Fed.  St.  Ann. 
1909  Supp.  p.  414]),  the  confession  of  the 
defendant  that  he  received  the  pistol  in 
pledge  from  a  soldier  was  sufficiently  cor- 
roborated to  justify  the  submission  of  the 
case  to  the  jury  by  evidence  showing  that 
the  pistol  was  issued  to  a  soldier,  and  that 
it  was  found  in  the  possession  of  defend- 
ant, whose  place  of  business  was  very 
near  the  reservation  on  which  such  soldier 
was  stationed.  BoUand  v.  United  States 
(Fed.)    1918B-520,  (Annotated.) 

11.  Evidence  offered  by  defendant  to 
show  that  the  pistol  had  been  charged  to 
the  soldier  is  properly  excluded,  where  the 
evidence  does  not  show  that  he  was  the 
owner  at  the  time  it  was  pledged,  but 
that  the  charge  was  made  after  its  loss 
was  known.  BoUand  v.  United  States 
(Fed.)    1918B^520.  (Annotated.) 

12.  Evidence  that  the  pistol  was  found 
in  defendant's  possession  was  sufficient  to 
sustain  a  verdict  of  guilty  under  Rev,  St. 
§§  1242  and  3748  (7  Fed.  St,  Ann.  1017; 
6  Feu.  St.  Ann.  711),  which  make  such 
possession  by  one  not  an  officer  or  soldier 
of  the  United  States  prima  facie  evidence 
that  it  was  obtained  in  violation  of  the 
statute.  BoUand  v.  United  States  (Fed.) 
1918B-520.  (Annotated.) 

Note. 

Compulsory  military  service.  1917C- 
812. 

Right  of  infant  unlawfully  enlisted  to 
release  from  detention  of  military  or 
naval  authorities.     1917C-778. 

Liability  of  civilian  for  purchasing  or 
receiving  in  pledge  public  property  from 
soldier  or  sailor.     1918B-523. 


ARRAIGNMENT. 

See  Criminal  Law,  31. 


82 


ABREST. 


1.  Execution  of  Process. 

2.  Arrest  Without  Warrant. 

See  False  Imprisonment. 
Arrest  of  passenger  by  conductor,  liabil- 
ity, see  Carriers  of  Passengers,  28. 

1.     EXECUTION   OF  PROCESS. 

1.  Right  to  Summon  Bystanders  to  As- 
sist. \S  hile  every  citizen  is  bound  to  as- 
sist a  known  public  officer  in  making  an 
arrest  when  called  upon  to  do  so,  without 
information  as  to  the  offense  charged  or 
inquiry  into  the  regularity  of  the  process, 
and  is  protected  in  making  such  arrest, 
yet,  where  a  special  railway  police  offi- 
cer, not  a  known  public  officer,  but  as- 
suming to  act  as  an  officer,  summons  a 
railroad  employee  to  aid  in  ejecting  and 
arresting  a  passenger  the  employee  is  liable 
as  such  if  the  alleged  officer  was  a  tres- 
passer. Cincinnati,  etc.  B.  Co.  v.  Cundiff 
(Ky.)   1916C-513. 

2.  Sufficiency  of  Warrant.  Under  Ky. 
Cr.  Code  Prac.  §  27,  providing  that  a  war- 
rant of  arrest  shall,  in  general  terms, 
name  and  describe  the  offense  charged  to 
have  been  committed,  and  section  276, 
providing  that  the  only  ground  upon 
which  judgment  shall  be  arrested  is  that 
the  facts  stated  in  the  indictment  do  not 
constitute  a  public  offense  T»ithin  the 
jurisdiction  of  the  court,  where,  in  a 
prosecution  for  a  breach  of  the  peace,  the 
warrant  read  that  'the  said  D  did  .  .  • 
unlawfully  commit  a  breach  of  the  peace, 
by  using  obscene,  vulgar,  and  indecent 
language  in  the  presence  of  and  to  an  as- 
sembly of  people,  men,  women,  and  chil- 
dren, which  language  was  obscene,  inde- 
cent, and  offensive,  and  was  calculated  to 
insult  the  hearers,  and  to  provoke  an  as- 
sault, and  was  in  every  respect  disorderly, 
the  language  used  and  the  words  uttered 
being  unknown  to  the  court,  against  the 
peace  and  dignity  of  the  commonwealth," 
such  warrant,  in  the  absence  of  demurrer 
and  motion  to  make  it  more  specific,  is 
sufficient  upon  motion  in  arrest  of  judg- 
ment, since  the  offense  charged  in  a  war- 
rant need  not  be  placed  with  the  tech- 
nical strictness  required  in  an  indictment, 
while  objection  raised  to  an  indictment  by 
motion  in  arrest  of  judgment,  instead  ot 
by  demurrer,  prevails  only  when  the  in- 
dictment fails '  to  state  a  public  offense 
within  the  jurisdiction  of  the  court.  Delk 
V.  Commonwealth  (Ky.)  1917C-884. 


2.     ARREST   WITHOUT   WARRANT. 

3.  The  requirement  that  the  sheriff,  to 
prevent  breaches  of  the  peace,  arrest  one 
who  threatens  unlawful  sale  of  intoxi- 
cating liquors  and  if  necessary  close  his 
place  of  business,  is  not  subject  to  the 
objection    of    requiring    services    without 


DIGEST. 

1916C— 1918B. 

compensation. 
1918B-889. 


State  V.  Reichman  (Tenn.) 


4.  Duty  of  Sheriff  to  Arrest  Without 
Warrant.  The  right  of  the  sheriff  to  ar- 
rest without  warrant  for  threatened  un- 
lawful sale  of  intoxicating  liquors  and  to 
close  the  place  of  business  is  not  unlawful 
as  an  arbitrary  invasion  of  property 
rights,  which  are  not  more  secred  than 
the  person,  which  may  be  seized  to  pre- 
^'ent  breach  of  peace.  State  v.  Reichman 
(Tenn.)    1918B-889. 

5.  For  a  misdemeanor  committed  with- 
out his  presence,  a  sheriff  cannot  arrest 
without  warrant;  but,  if  breach  of  peace 
is  threatened  in  his  presence,  he  needs  no 
warrant  to  arrest  to  prevent  the  breach 
under  Shannon's  Tenn.  Code,  §  6892.  State 
V.  Reichman  (Tenn.)   1918F-889. 

6.  Insane  Person.  In  an  action  for 
false  arrest  and  imprisonment  it  is  not  a 
justification  that  the  defendant  as  a 
police  officer  made  the  arrest  upon  reli- 
able information  that  the  plaintiff  was 
insane,  that  the  officer  in  good  faith  be- 
lieved this  to  be  true,  and  that  an  ordi- 
narily prudent  person^  under  the  same 
conditions,  would  have  entertained  and 
acted  upon  such  belief,  the  arrest  being 
made  without  warrant,  and  there  being 
no  proof  of  insanity,  nor  any  urgent 
necessity  for  restraint,  even  had  plaintiff 
been  in  fact  insane.  Witte  v.  Haben 
(Minn.)    1917D-534.  (Annotated.) 

Note. 
Right  to  arrest  person  without  warrant 
on  ground  of  insanity.     1917D-536. 

7.  Bight  of  Police  Officer.  Under  the 
Ga.  Penal  Code  (1910),  §  917,  "an  arrest 
may  be  made  for  a  crime  by  an  officer, 
either  under  a  warrant,  or  without  a  war- 
rant if  the  offense  is  committed  in  his 
presence,  or  the  offender  is  endeavoring 
to  escape,  or  for  other  cause  there  is  likely 
to  be  a  failure  of  justice  for  want  of  an 
officer  to  issue  a  warrant." 

(a)  Under  previous  rulings  of  this 
court,  a  police  officer  of  a  city,  in  making 
an  arrest  for  an  offense  against  the  state 
law,  or  for  a  violation  of  an  ordinance 
of  a  municipality,  falls  within  the  protec- 
tion of  the  section  of  the  Penal  Code  just 
aDove  cited.  Graham  v.  State  (Ga.)  191*7 A- 
595. 

8.  Homicide  in  Resisting  Arrest.  By 
the  Ga.  Penal  Code  (1910),  §  921,  it  is  de- 
clared that  a  private  person  may  arrest 
an  offender,  if  the  offense  is  committed  in 
his  presence  or  within  his  immediate 
knowledge;  and  if  the  offense  is  a  felony, 
and  the  offender  is  escaping,  or  attempt- 
ing to  escape,  a  private  person  may  arrest 
him  upon  reasonable  and  probable  grounds 
of  suspicion. 

(a)  This  section  was  a  codification  of 
the    pre-existing    law.     Unless    clearly    so 


ARREST  OF  JUDGMENT— ASSAULT. 


83 


intended,  it  will  not  be  construed  as  work- 
ing so  radical  a  change  in  the  prior  law 
as  to  authorize  a  private  person  to  arrest 
another  for  a  violation  of  a  municipal 
ordinance  committed  in  his  presence,  when 
the  act  does  not  constitute  a  felony  or  a 
misdemeanor. 

(b)  Evidence  was  introduced  to  show 
that  the  person  killed  was  a  police  officer 
of  the  city  of  Broxton,  and  he  was  not  in  . 
uniform  but  had  on  a  badge,  and  that  he 
was  engaged  in  arresting  the  accused 
when  the  homicide  occurred.  It  was  con- 
tended on  behalf  of  the  state  that  the  ac- 
cused was  at  the  time  violating  an  ordi- 
nance of  the  city,  and  also  a  penal  law  of 
the  state;  and  an  ordinance  of  the  city 
was  introduced.  The  charge  of  the  court 
did  not  fully  or  clearly  submit  to  the  jury 
the  issues  involved.  Graham  v.  State 
(Ga.)    1917A-595.  (Annotated.) 

Note. 

Eight  of  private  person  to  arrest  an- 
other for  violation  of  municipal  ordinance 
committed  in  his  presence.     1917A-599. 

AKREST  OF  JUDGMENT. 
See  Judgments. 

ARTESIAN  WELLS. 

Injunction  to  restrain  interference  with 
flow,  see  Waters  and  Watercourses, 
17. 

ASPORTATION. 

See  Larceny,  5. 

ASSAULT. 

1.  As  a  Crime,  83. 

a.  Assault     With     Intent     to     Inflict 
Grievous  Bodily   Harm,   83. 

b.  Assault  With  Dangerous  or  Deadly 

Weapon,  83. 

c.  Defenses,  83. 

d.  Evidence,   84. 

e.  Instructions,   84. 

f.  Questions  for  Jury,  84. 

2.  As  a  Civil  Injury,  84. 

a.  Defenses,  84. 

b.  Evidence,  84. 

c.  Questions  for  Jury,  84. 

d.  Measure  of  Damages,  84. 

Abortion  as  including  assault,  see  Abor- 
tion, 2. 

Excessiveness  of  damages,  see  Damages, 
40. 

Indictment  for  assault  with  intent  to  kill, 
sufficiency,  see  Homicide,  11. 

Action  by  wife  against  husband,  see  Hus- 
band and  Wife,  33. 

Felonious  assault,  see  Limitation  of  Ac- 
tions, 13. 

Wounding  innocent  bystander  in  self- 
defense,  soe  Negligence,  102,  116. 

Assault  with  intent  to  ravish,  see  Eape, 
13. 


Assault  with  intent  to  rob,  see  Robbery, 

1,  2,  5. 
Death  sentence  for  assault  with  intent  to 

rape,   see    Sentence   and  Punisliment, 

15. 
Action   on  bond   for  assault,  see  Sheriffs 

and  Constables,  11. 
Necessity  of  malice,  see  Trespass,  4. 

1.     AS   A   CRIME. 

a.  Assault  With  Intent  to  Inflict  Grievous 

Bodily  Harm. 

1.  Indictment.  The  term  "wilfully"  im- 
ports aesignedly  and  intentionally;  and 
an  indictment  for  an  assault  which  fol- 
lows the  language  of  the  statute  and 
charges  that  defendant  wilfully  assaulted 
another  and  wilfully  inflicted  grievous 
bodily  harm  upon  him  sufficiently  charges 
an  intent  to  inflict  such  harm.  State  v. 
Lehman  (Minn.)  1917D-615. 

b.  Assault    With    Dangerous    or    Deadly 

Weapon. 

2.  Shooting  With  Intent  to  Frighten. 
Unlawfully  discharging  a  firearm  to 
frighten  another,  although  intending  not 
to  hit  him,  is  an  assault  and  battery  if 
the  other  be  hit.  State  v.  Lehman 
(Minn.)    1917D-615.  (Annotated.) 

Note. 
Discharging  firearm  to  frighten  person 
as  assault.     1917D-617. 

c.    Defenses. 

3.  Ejection  of  Trespasser.  A  proprie- 
tor may  order  a  trespasser  off  his  prem- 
ises and,  if  he  refuses  to  go,  he  may  use 
such  reasonable  force  as  may  be  necessary 
to  expel  him.  But  if  he  exceeds  the 
bounds  of  reasonable  force  he  is  guilty  of 
an  assault.  State  v.  Flanagan  (W.  Va.) 
1917D-305.  (Annotated.) 

4.  Defense  of  Habitation.  One  as- 
saulted in  his  habitation  need  not  retreat, 
but  may  repel  force  with  force.  State  v. 
Cessna   (Iowa)    1917D-289. 

(Annotated.) 

5.  Supposed  Intruder,  One  unaware  that 
persons  entering  his  dwelling  are  officers, 
supposing  them  mere  intruders,  may  re- 
sort, to  such  force  to  eject  them  as  a  rea- 
sonably cautious  and  prudent  man  would 
use  under  like  circumstances,  without  in- 
curring criminal  responsibility.  State  v. 
Cessna  (Iowa)  1917D-289. 

6.  Defense  of  Property.  The  owner  of 
property  mav  not  maintain  his  possession 
thereof  by  force  against  an  officer  attach- 
ing it  as  the  property  of  another.  State 
V.  Selengut  (R.  I.)  1917D-303. 

(Annotated.) 
Note. 

Defense  of  property  as  justification  for 
assault.     1917D-291. 


u 


DIGEST. 

1916C— 1918B. 


d.    Evidence. 


7.  What  Constitutes  Participation  — 
rtesence  at  Scene  of  Assault.  The  mere 
presence  of  a  person  at  the  time  and  place 
of  an  assault,  without  any  act,  word,  or 
gesture  in  aid  of  it,  with  nothing  to 
show  he  advised  it,  will  not  render  him 
guilty;  mere  knowledge  not  being  enough. 
Wooden  v.  Commonwealth  (Va.)  1917I>- 
1032.  (Annotated.) 

8.  Sufficiency  of  Evidence.  In  a  prose- 
cution for  assault,  the  evidence  is  held  to 
be  insufficient  to  sustain  a  verdict  of 
guilty.  Wooden  v.  Commonwealth  (Va.) 
1917D-1032. 

e.     Instructions. 

9.  undisputed  Fact.  In  a  prosecution 
for  assault  with  intent  to  kill,  where  the 
jury  heard  the  information  read,  and  it 
charged  and  the  evidence  showed  that  the 
offense  occurred  on  December  19,  1912, 
which  was  within  less  than  three  years 
before  filing,  the  failure  of  an  instruction 
to  state  the  date  of  the  offense,  where  it 
required  the  jury  to  find  that  the  acts 
«faarged  occurred  within  three  years  be- 
fore the  date  of  filing  of  the  information, 
is  not  error.  State  v.  Gould  (Mo.)  1916E- 
855. 

f.     Questions  for  Jury. 

10.  Assault  With  Intent  to  Kill.  In  a 
prosecution  for  assault  with  intent  to  kill, 
held  that,  under  the  evidence,  it  was  a 
question  for  the  jury  whether  accused  was 
acting  in  self-defense  or,  of  his  malice, 
assaulted  the  prosecuting  witness  with  in- 
tent to  kill.  State  v.  Gould  (Mo.)  1916E- 
855. 

2.     AS  A  CIVIL  INJTJEY. 

a.  Defenses. 

11.  Ejection  of  Trespasser.  In  such 
ease,  the  lessee,  on  his  lessor's  refusal  to 
leave  the  premises,  had  a  right  to  forcibly 
remove  him,  and  will  not  be  guilty  of  as- 
sault if  he  used  no  more  force  than  was 
reasonably  necessary  to  remove  him  but 
will  be  liable  if  he  used  unreasonable  or 
excessive  force.  Oleson  v.  Fader  (Wis.) 
19171^-314.  (Annotated.) 

Note. 

Bight  of  person  assaulted  on  his  own 
premises  to  repel  attack  without  retreat- 
ing.    1916C-918. 

Trespass  as  justification  of  assault  and 
battery.     1917D-307. 

b.  Evidence. 

12.  Evidence  of  Self-defense.  In  a 
civil  action  for  assault,  in  which  defend- 
ant claims  that  he  used  only  such  force 
as  appeared  to  him  reasonably  necessary 
to  protect  himself  from  the  threatened 
assault,  evidence  for  defendant  that  plain- 


tiff had  the  reputation  of  being  a  quarrel- 
some and  dangerous  man  who  went  armed, 
and  was  known  as  a  gun  fighter,  is  admis- 
sible. Cooper  V.  Demby  (Ark.)  1917D- 
580. 

c.  Questions  for  Jury, 

13.  In  a  lessor's  action  against  his  les- 
see for  assault,  where  it  appeared  that 
the  lessee  used  considerable  violence  in 
removing  the  lessor  from  the  premises, 
and  there  was  evidence  that  the  lessor's 
resistance  was  very  violent,  the  question 
of  the  lessee's  excessive  force  was  for  the 
jury.     Oleson  v.  Fader  (Wis.)   1917D-314. 

(Annotated.) 

d.  Measure  of  Damages. 

14.  Elements  of  Damages  Becoverable. 
In  a  civil  action  for  assault  and  battery, 
the  compensatory  damages  include  such 
items  as  loss  of  time,  bodily  suffering,  im- 
paired physical  and  mental  powers,  muti- 
lation, disfigurement,  expense  of  attend- 
ance, etc.  Cooper  v.  Demby  (Ark.)  191 7I>- 
580. 

15.  In  a  civil  action  for  assault  and 
battery,  provocation  of  such  a  character 
as  to  make  the  impulse  irresistible  and 
to  be  solely  responsible  for  the  assault 
will  not  affect  the  compensatory  dam- 
ages. Cooper  y.  Demby  (Ark.)  1917D- 
580.  (Annotated.) 

16.  The  extent  to  which  punitive  dam- 
ages may  be  mitigated  is  a  question  of 
fact  for  the  jury  in  each  particular  case, 
and  depends  on  the  nature  and  character 
of  the  provocation.  Cooper  v.  Demby 
(Ark.)   1917D-580.  (Annotated.) 

17.  Provocation.  If  defendant  had  a 
reasonable  excuse  arising  from  the  provo- 
cation or  fault  of  plaintiff,  but  not  suffi- 
cient entirely  to  justify  the  assault,  dam- 
ages ought  not  to  be  assessed  by  way  of 
punishment.  Cooper  v.  Dempey  (Ark.) 
1917D-580.  ,  (Annotated.) 

Note. 

Provocation  in  mitigation  of  damages 
for  assault.     1917D-582. 


ASSESSMENT. 
For  taxation,  see  Taxation,  48-€6. 

Under  Foreign  Corporation  Tax  Act,  seo 
Taxation,    164-169. 

ASSESSMENTS. 
See  Beneficial  Associativns,   16-23. 

ASSETS. 
Distribution,  see  Corporations,  115-116. 
Defined,  see  Executors  and  Administrators, 
2,  13. 


ASSIGNMENTS. 


85 


ASSIGNMENTS. 

1.  What  may  be  Assigned,  85. 

a.  In  General,  85. 

b.  Executory  Contracts,  85. 

c.  Eights  of  Action,  86, 

2.  Construction  and  Effect  of  Assignments, 

86. 

3.  Actions,  87. 

Assignments  of  error,  see  Appeal  and  Er- 
ror, 71-81. 

Eight  of  assignee  to  sue,  see  Bills  and 
Notes,  60. 

Of  prospective  inheritance,  see  Descent 
and  Distribution,  10-14. 

Assignment  of  judgment  to  debtor,  effect, 
see  Judgments,  24. 

Of  lease,  see  Landlord  and  Tenant,  21-31. 

Of  life  policy,  see  Life  Insurance,  45-55. 

Assignability  of  trade  name,  see  Trade 
Marks  and  Trade  Names,  2. 

1.     WHAT  MAY  BE  ASSIGNED. 

a.    In  General. 

1.  Ind.  Acts  1909,  c.  34,  §  4,  prohibiting 
assignments  of  wages  by  a  married  man 
without  his  wife's  consent,  is  not  invalid 
as  a  regulation  of  interstate  commerce 
when  applied  to  an  assignment,  by  an 
employee  of  an  interstate  railroad,  of  part 
of  his  wages  for  the  purchase  of  a  watch, 
which  he  was  required  by  the  company's 
regulations  to  carry.  Cleveland,  etc.  E. 
Co.  V.  Marshall  (Ind.)   1917A-756. 

(Annotated.) 

2.  Validity  of  Prohibition.  Ind.  Acts 
1909,  c.  34,  §  4,  prohibiting  the  assignment 
of  wages  by  a  married  man  without  his 
wife's  consent,  which  was  intended  to  pro- 
tect the  earnings  of  a  married  man  so 
as  to  enable  him  to  perform  his  legal  duty 
to  support  his  family,  is  a  valid  exercise 
of  the  police  power,  and  does  not  deprive 
a  person  of  his  property  without  due  proc- 
ess of  law,  notwithstanding,  however,  that 
it  applies  to  wages  already  earned,  as  well 
as  to  wages  to  be  earned  in  the  future. 
Cleveland,  etc.  E.  Co.  v.  Marshall  (Ind.) 
1917A-756.  (Annotated.) 

3.  Laws  1911,  c.  62,  amending  Burns' 
Ind.  Ann.  St.  1908,  §  2669,  so  as  to  allow  a 
debtor,  injured  by  his  creditor's  assign- 
ment of  the  claim  to  a  nonresident  so  as 
to  enable  its  collection  by  attachment  or 
garnishment,  to  recover  damages  includ- 
ing attorney's  fees,  is  not  void  as  based 
on  an  unreasonable  classification  because 
not  applying  to  persons  who  send  their 
claims  into  foreign  jurisdictions  for  like 
purposes,  for  in  the  latter  case  the  domes- 
tic courts  may  enjoin  the  local  creditors 
from  continuing  the  foreign  action,  while 
in  the  former  the  assignee  cannot  be  en- 
joined, and  if  the  attachment  is  successful 
the  debtor  may  not  have  funds  suflScient 
to  procure  an  attorney  unless  recovery  of 
attorney's  fees  is  provided  for  by  the  stat- 


ute.    Anderson    v.   Knotts    (Ind.)    1916D- 
868.  (Annotated.) 

4.  The  title  of  Laws  Ind.  1911,  e.  62, 
entitled  "An  act  to  amend  section  664  of 
an  act  concerning  public  offenses,"  etc.,  is 
sufficiently  broad  to  include  a  provision 
for  the  allowance  of  attorney's  fees  to  a 
debtor  damaged  by  a  creditor's  assignment 
of  the  claim  to  a  nonresident  in  violation 
of  the  criminal  statute.  Anderson  v. 
Knotts  (Ind.)  1916D-868.         (Annotated.) 

5.  Laws  Ind.  1911,  c.  62,  amending 
Burns'  Ann.  St.  1908,  §  2669,  making  crim- 
inal a  creditor's  assignment  of  a  debt  to  a 
nonresident  to  enable  its  collection  by 
attachment  or  garnishment,  by  adding  a 
provision  authorizing  the  injured  debtor 
to  recover  damages  and  attorney's  fees, 
iB  not  void  under  Const.,  art.  4,  §  19,  pro- 
viding that  every  act  shall  embrace  but 
one  subject  and  matters  properly  con- 
nected therewith,  for  the  provision  for  the 
recovery  of  damages  is  germane  to  the 
criminal  provisions  of  the  statute.  Ander- 
son V.  Knotts  (Ind.)  1916D-868. 

(Annotated.) 

6.  Of  Debt  for  Collection  in  Another 
Jurisdiction.  In  1909  defendant  recovered 
a  judgment  against  plaintiff.  Burns'  Ind. 
Ann.  1908,  §  2669,  enacted  in  1905,  making 
it  a  crime  for  a  creditor  to  assign  a  claim 
for  debt  against  a  citizen  of  the  state  for 
the  purpose  of  having  it  collected  by  at- 
tachment and  garnishment  proceedings  in 
another  state,  was  amended  in  1911  (Laws 
1911,  c.  62)  so  as  to  entitle  the  debtor  in- 
jured by  such  garnishment  to  recover  dam- 
ages and  attorney's  fees.  Thereafter  de- 
fendant assigned  his  claim  to  a  nonresi- 
dent, and  it  was  collected  by  garnishment. 
Held  that,  in  view  of  the  state  of  the  law 
at  the  time  of  the  recovery  of  the  judg- 
ment, the  amendment  of  1911  was  not  in- 
valid as  to  defendant  under  Const.  U.  S., 
art.  1,  §  10,  prohibiting  the  passage  of  any 
law  impairing  the  obligation  of  a  contract. 
Anderson  v.  Knotts  (Ind.)  1916D^68. 

(Annotated.) 
Note. 
Validity  of  statute    forbidding    assign- 
ment of  debt  or  claim  for  collection  in  an- 
other jurisdiction.     1916D-870. 

b.    Executory  Contracts. 

7.  Expectancy.  A  child  having  an  ex- 
pectancy in  the  residue  of  an  estate  may 
for  valuable  consideration  release  such  ex- 
pectancy to  other  children.  Simmons  v. 
Eoss    (ill.)    1916E-1256.  (Annotated.) 

8.  Expectancy.  A  sale  by  an  expectant 
heir  of  an  interest  in  land  which  he  ex- 
pects to  inherit  from  a  person  then  living 
is  not  against  public  policy,  and  the  fact 
that  a  grantor  is  an  expectant  heir  of  the 
owner  of  land,   an  interest  in  which  his 


86 


deed  purported  to  convey,  does  not  prevent 
the  title  subsequently  acquired  by  him  by 
descent  passing  thereunder,  under  the  rule 
of  estoppel.  Blackwell  v.  Harrelson  (S. 
Car.)  1916E-1263.  (Annotated.) 

9.  Expectancy.  A  contract  to  purchase 
the  prospective  interests  of  the  heirs  ap- 
parent of  an  owner  of  land  is  not  enforce- 
able at  law  or  in  equity,  where  the  owner 
has  not  consented  to  the  sale  and  is  insane 
and  cannot  consent.  Stevens  v.  Stevens 
(Mich.)    1916E-1259.  (Annotated.) 

10.  Assignability  of  Covenant.  An  agree- 
ment with  the  buyer,  and  not  with  him 
"and  assigns,"  by  the  sellers  of  the  good 
will  of  a  business  not  to  become  competi- 
tors is  assignable  to  one  to  whom  the  buyer 
sells  such  business  and  good  will.  Public 
Opinion  Pub.  Co.  v.  Bansom  (S.  Dak.) 
1917A-1010. 


c.     Rights  of  Action. 

11.  Assignability  of  mght  of  Action  for 
Tort.  S.  Dak.  Civ.  Code,  §  384,  making 
assignable  a  cause  of  action  for  tort,  is  not 
modified  by  Code  Civ.  Proc,  §  80,  requiring 
every  action  to  be  prosecuted  in  the  name 
of  the  real  party  in  interest,  except  as 
otherwise  provided,  "but  this  section  shall 
not  be  deemed  to  authorize  the  assignment 
of  a  thing  in  action  not  arising  out  of  a 
contract";  the  limiting  clause  not  taking 
away  right  of  assignment  otherwise  con- 
ferred. Sherman  v.  Harris  (S.  Dak.) 
1917C-675. 

12.  S.  Dak.  Civ.  Code,  §  384,  declaring  a 
thing  in  action  arising  out  of  an  obligation 
transferable,  an  assignment  of  a  cause  of 
action  for  deceit  cannot  be  held  contrary 
to  public  policy.  Sherman  v.  Harris 
(S.  Dak.)  1917C-675. 

13.  Criterion  of  Assignability.  The  cri- 
terion as  to  assignability  of  a  cause  of  ac- 
tion under  S.  Dak.  Civ.  Code,  §  384,  declar- 
ing a  thing  in  action  arising  out  of  viola- 
tion of  a  right  of  property,  or  out  of  an 
obligation,  transferable,  is  whether  it  is 
lawful  to  make  the  assignment,  for  in- 
stance, it  must  not  be  within  the  inhibi- 
tion of  sections  918,  919,  as  to  subject- 
matter.  Sherman  v.  Harris  (S.  Dak.) 
1917C-675. 

14.  Bight  of  Action  for  Deceit.  A  claim 
for  deceit,  whether  considered  as  arising 
from  a  violation  of  a  right  of  properly 
or  an  obligation  imposed  by  law,  is  as- 
signable; S.  Dak.  Civ.  Code,  §  384,  declar- 
ing a  "thing  in  action"  (defined  by  section 
383  as  a  right  to  recover  money  or  other 
personal  property  by  a  judicial  proceed- 
ing) arising  out  of  the  violation  of  a  right 
of  property,  or  out  of  an  obligation,  to  be 
transferable;  section  1115  declaring  that 
an  "obligation"  (defined  by  section  1114 
as  a  legal  duty  by  which  a  person  is  bound 
to  do  or  not  to  do  a  certain  thing)  arises 


DIGEST. 

1916C— 1918B. 

from  the  contract  of  the  parties  or  the 
operation  of  law;  section  2444  declaring 
that,  when  the  meaning  of  a  word  is  de- 
fined in  any  statute,  such  definition  is 
applicable  to  the  same  word  wherever  it 
occurs,  except  where  a  contrary  intention 
plainly  appears;  and  section  1134,  which, 
with  sections  1114,  1115,  appears  under 
that  part  of  the  subject  of  "Obligations" 
dealing  with  obligations  in  general,  provid- 
ing that  a  right  arising  out  of  an  obliga- 
tion is  the  property  of  the  person  to  whom 
it  is  due  and  may  be  transferred  as  such, 
Sherman  v.  Harris  (S.  Dak.)  1917C-675. 

15.  Right    of    Action    for    Penalty.     A 

right  of  action  for  a  penalty,  given  by 
section  7  of  chapter  79  of  the  W.  Va.  Code, 
is  not  assignable.  Wilson  v.  Shrader 
(W.    Va.)    1916D-886.  (Annotated.) 

16.  Right  to  Sue  for  Rescission.  A  mere 
litigious  right  cannot  be  assigned;  conse- 
quently one  purchaser  of  land  cannot  as- 
sign to  another  the  right  to  sue  for  a  re- 
scission of  the  contract.  Cooper  v.  Hills- 
boro  Garden  Tracts  (Ore.)  1917E-840. 

(Annotated.) 

Note. 
Assignability  of  right  of  action  for  pen- 
alty.    1916D-893. 


2.     CONSTRUCTION  AND  EFFECT   OF 
ASSIGNMENTS. 

17.  Requisites  of  Assignment,  An  as- 
signment of  a  cause  of  action  must  con- 
form to  the  fundamental  tests  applied  to 
any  contract,  prescribed  by  S.  Dak.  Civ. 
Code,  §  1189,  as  to  parties,  consent,  lawful 
object,  and  consideration.  Sherman  * 
Harris  (S.  Dak.)   1917C-675. 

18.  Assignments  Against  Public  Policy. 
An  assignment  must  not  violate  S.  Dak 
Civ.  Code,  §  1271,  declaring  a  contract  un 
lawful  which  is  contrary  to  the  express 
provisions  of  law,  the  policy  of  express 
law,  or  good  morals.  Sherman  v.  Harris 
(S.  Dak.)  1917C-675. 

19.  What  Constitutes.  Where  the  com- 
missioners of  an  improvement  district 
agreed  to  hold  up  payment  until  plaintiff's 
claim  was  satisfied,  and  the  debtor  con- 
sented, there  is  no  assignment  of  the  pay- 
ment; plaintiff  not  being  a  party  to  the 
agreement.  Dickey  v.  Southwestern  Surety 
Ins.  Co.  (Ark.)  1917B-634. 

20.  Prohibition  of  Aissignment  of  Wages 
— Scope  of  Statute.  Ind.  Acts  1909,  c  34, 
§  4,  prohibiting  the  assignment  of  wages 
by  a  married  man,  who  is  the  head  of  a 
family,  without  the  written  consent  of  his 
wife  duly  acknowledged  although  to  be 
strictly  construed  as  a  statute  in  dero- 
gation of  the  common  law,  is  not  limited 
to  assignments  to  wage  brokers,  to  whieh 
class  alone  sections  2  and  3  of  the  same 
act  apply,  since  the  intention  of  the  legis- 


I 


ASSIGNMENTS  OF  ERRORr— ATTACHMENT. 


87 


lature  to  extend  it  to  all  assignments  is 
so  manifest  from  the  language  that  there 
is  no  room  for  construction.  Cleveland  eic. 
R.  Co.  V.  Marshall  (Ind.)  1917A-756. 

3.     ACTIONS. 

21.  Liability  for  Purchase  Money— De- 
fenses— Payment  to  Third  Person.  Regard- 
ing right  of  recovery  from  G.  by  the  as- 
signee of  F.'s  claim  for  the  price  of  lumber 
•which  F.  sold  G.,  it  is  immaterial  that 
G.,  knowing  of  the  assignment,  under  its 
oral  promise,  void  under  Rem.  &  Bal. 
Wash.  Code,  §  5289,  to  see  that  T.,  who 
had  sold  the  lumber  to  F.,  got  its  money, 
paid  T.  First  National  Bank  v.  G.  Gcske 
&  Co.  (Wash.)  1917B-564. 

22.  Effect  Of  Assignment  on  Suit  to  Re- 
scind. Where  purchasers  of  land  assigned 
their  contracts  to  plaintiff,  the  assignment 
was  an  affirmance  of  the  agreement,  and 
60  precluded  suit  by  plaintiff  for  rescission 
of  the  contracts  on  the  ground  of  misrep- 
resentations; plaintiff  having  no  more 
rights  than  his  assignors.  Cooper  v.  Hills- 
boro  Garden  Tracts  (Ore.)   1917E-840 

(Annotated.) 

23.  Action  on  Assigned  Penalty.  A 
claimant  of  a  penalty  by  an  attempted  as- 
signment from  the  person  entitled  to  sue 
therefor  cannot  maintain  an  action  for  it, 
in  the  name  of  his  alleged  assignor,  and  the 
objection  of  nonassignability  of  the  claim 
is  available  on  a  demurrer  to  the  declara- 
tion. Wilson  V.  Shrader  (W.  Va.)  1916D- 
g86.  (Annotated.) 

24 .  Evidence — ^Weight  —  "Uncontradicted 
Testimony.  An  assignee  suing  on  a  claim, 
who  has  not  been  led  to  expect  that  a  fact 
defeating  a  recovery  on  the  claim  would 
be  attempted  to  be  proved  by  an  admis- 
sion of  his  assignor,  does  not,  by  failing 
to  contradict  testimony  of  a  witness  as  to 
admissions  of  the  assignor,  admit  the  truth 
of  the  testimony,  but  that  is  for  the  jury. 
Schmidt  v.  Marconi  Wireless  Tel.  Co. 
(N.  J.)  1918B-131. 

Note. 
Right   of  assignee   of   contract  for  pur- 
chase of  land  to  sue  for  rescission  thereof. 
1917E-845. 


ASSIGNMENTS  OF  EKROE. 
See  Appeal  and  Error,  71-81. 

ASSOCIATES  IN  OFFICE. 
Defined,  see  Public  Ofllcers,  4,  21. 

ASSOCIATIONS. 

See  Beneficial  Associations;  Corporations; 
Partnership;  Societies  and  Clubs. 


ASSUMPSIT. 

Administrator's  action  on  note,  pleading, 
see  Executors  and  Administrators,  82, 
83. 

For  use  and  occupation,  see  Iiandlord  and 
Tenant,  32,  36. 

1.  Form  of  Remedy  for  Wrongful  Dis- 
charge. Where  a  bookkeeper  was  em- 
ployed under  a  written  contract  for  one 
year  and  subsequently  continued  in  service 
for  several  years  thereafter  receiving  one 
increase  in  salary,  the  appropriate  remedy 
on  his  discharge  is  an  action  on  the  com- 
mon counts  in  assumpsit.  Conrad  v.  Elli- 
son-Harvey Co.  (Va.)  1918B-1171. 

ASSUMPTION   OF  RISK. 

By  passenger,  see  Carriers  of  Passengers, 
39,  40. 

By  servant,  see  Master  and  Servant,  29-31. 

Under  Employers'  Liability  Act,  see  Mas- 
ter and  Servant,  69-72. 

As  defense  under  Workmen's  Compensatdon 
Act^  see  Master  and  Servant,  343. 

ASTI.UMS. 

See  Hospitals  and  Asylmns. 

ATTACHMENT. 

1.  Foreign   Attachments,  87. 

2.  What  may  be  Attached,  88. 

3.  Sufficiency  of  Levy  and  Lien  of  Attach- 

ment, 88. 

4.  Undertaking,  88. 

5.  Dissolution,   88. 

6.  Release  of  Attachment,  89. 

See  Oamishment. 

Appealability  of  proceedings,  see  Appeal 
and  Error,  37. 

Dissolution,  how  appealed,  see  Appeal  and 
Error,  95. 

Force  in  resisting  levy,  see  Assault,  6. 

Judgment  as  concluding  claims  for  wrong- 
ful attachment,  see  Judgments,  77,  78. 

As  waiver  of  right  to  lien,  see  Mechanics' 
Liens,  31. 

1.     FOREIGN  ATTACHMENTS. 

1.  A  corporation  organized  under  the 
laws  of  a  foreign  jurisdiction,  although 
engaged  in  business  in  this  state  and  hav- 
ing complied  with  the  Idaho  Constitution 
and  all  the  laws  of  this  state  affecting 
foreign  corporations'  is  a  nonresident  and 
subject  to  attachment  as  such.  Jennings 
V.  Idaho  R.  Etc.  Co.  (Idaho)  1916E-359. 

(Annotated.) 

2.  Foreign  Conwration  as  Nonresident. 
Under  section  2792,  Rev.  Idaho  Codes, 
which  provides  "that  foreign  corporations 
complying  with  the  provisions  of  this  sec- 
tion shall  have  all  the  rights  and  privileges 


88 


of  like  domestic  corporations,  including  the 
right  to  exercise  the  right  of  eminent  do- 
main, and  shall  be  subject  to  the  laws  of 
the  state  applicable  to  like  domestic  cor- 
porations," such  corporation  is  not  a  citi- 
zen or  resident  of  this  state,  within  the 
meaning  of  the  foreign  attachment  laws, 
and  is  not  exempt  from  attachment  as  a 
nonresident.  Jennings  v.  Idaho  R.  etc.  Co. 
(Idaho)  1916E-359.  (Annotated.) 


Note. 

Bight  to  issne  attachment  against  for- 
eign corporation  on  ground  of  nonresi- 
dence.     1916E-362. 


DIGEST. 

1916C— 1918B. 

require  a  written  undertaking  on  the  part 
of  plaintiff  with  sufficient  surety,  it  was  im- 
material that  the  surety,  by  mistake,  signed 
his  name  to  the  justification  of  the  under- 
taking, instead  of  to  the  undertaking  it- 
self, since,  the  statute  prescribing  no  rule 
as  to  the  execution  of  the  undertaking,  a 
signing  and  delivery  is  sufficient,  and, 
where  the  statute  requires  an  instrument 
to  be  signed,  but  does  not  require  it  to 
be  subscribed,  it  is  not  necessary  for  the 
signature  to  appear  on  any  particular 
part  of  the  instrument,  if  written  with 
intent  to  become  bound.  Boger  v.  Cedar 
Cove  Lumber  Co.  (N.  Car.)  1917D-116. 


2.     WHAT  MAY  BE  ATTACHED. 

3.  Corporate  Stock.  At  common  law 
corporate  stock  is  not  subject  to  attach- 
ment, but  is  made  so  by  Ky.  Civ.  Code 
Prac,  §§  202-236.  Husband  v.  Linehan, 
(Ky.)  1917D-954. 

4.  Equitable  Interest  in  Land.  Under 
N.  Car.  Revisal  1905,  §§  767,  784,  providing 
that  the  officer  to  whom  a  warrant  of  at- 
tachment is  directed  and  delivered  shall 
take  into  his  possession  the  personal  prop- 
erty of  the  defendant,  and  shall  levy  on 
so  much  of  the  real  estate  of  the  defendant 
as  prescribed  for  executions,  an  attach- 
ment can  be  levied  only  upon  property 
subject  to  execution;  and  hence  an  attach- 
ment upon  the  equitable  interest  of  a  non- 
resident defendant  in  lands  held  in  trust 
is  void,  and  will  not  support  any  judgment. 
Johnson  v.  Whilden  (N.  Car.)   1916C-783. 

(Annotated.) 
Note. 
Equitable   interest  in   real  property  as 
subject  to  attachment.     1916C-786. 

3.    SUFFICIENCY  OF  LEVY  AND  LIEN 
OF  ATTACHMENT. 

5.  Manner  of  Levy  on  Stock.  An  at- 
tachment cannot  be  levied  upon  negotiable 
mortgage  coupon  bonds,  or  a  lien  acquired 
thereon,  by  service  of  garnishment  process 
upon  the  corporation  owing  them,  as  they 
can  only  be  attached  by  actual  levy  on 
the  person  in  possession.  Husband  v. 
Linehan  (Ky.)  1917D-954. 

4.     UNDERTAKINa. 

6.  Amendment  of  Bond.  If  an  attach- 
ment undertaking  was  invalid  where  the 
surety  signed  his  name  to  the  justification, 
instead  of  to  the  undertaking,  the  court 
had  power,  on  a  motion  to  vacate,  to  per- 
mit the  filing  of  a  proper  undertaking. 
Boger  V.  Cedar  Cove  Lumber  Co.  (N.  Car.) 
1917D-116.  (Annotated.) 

7.  Signature  in  Wrong  Place.  Under 
N.  Car.  Revisal  1905,  §  763,  directing  the 
officer  issuing  a  warrant  of  attachment  to 


Right      to 
1917D-117. 


Note. 

amend     attachment 


bond. 


5.     DISSOLUTION. 

8.  Death  of  Defendant.  Mass.  St.  1913, 
e.  305,  amending  Rev.  Laws  1902,  c.  167, 
§  112,  providing  that  attachments  not 
levied  on  before  the  debtor's  death  axe 
thereby  dissolved,  by  excepting  attached 
property  which  the  debtor  had  alienated 
before  his  death,  is  prospective  only;  a 
contrary  intention  not  appearing  by 
necessary  implication.  Hanscom  v.  Maiden 
etc.  Gaslight  Co.   (Mass.)    1917A-145. 

(Annotated.) 

9.  Eight  of  Defendant  to  Move  for  Dis- 
solution. Where  plaintiff,  in  an  action  to 
recover  a  debt  from  defendant,  attaches 
money  in  the  hands  of  a  tfust  company, 
defendant,  claiming  that  the  money  be- 
longed to  a  bank,  has  no  standing  to  move 
to  dissolve  the  attachment.  Union  Buffalo 
Mills  Co.  V.  Thesmar  (S.  Car.)  1916D-476. 

(Annotated.) 

10.  Death  of  Defendant.  Since,  under 
the  statute,  plaintiff  may  continue  a  pend- 
ing action  against  defendant's  executor,  an 
attachment  of  realty  sued  out  in  the  action 
was  not  dissolved  by  defendant's  death, 
but  would  be  continued  though  the  estate 
was  insolvent.  Craig  v.  Wagner  (Conn.) 
1917A-160.  (Annotated.) 

11.  Mass.  St.  1913,  c.  305,  amending 
Rev.  Laws  1902,  c.  167,  §  112,  providing 
that  attachments  not  levied  on  before  the 
debtor's  death  are  thereby  dissolved,  by 
excepting  attached  property  alienated  by 
the  debtor  before  his  death,  if  construed 
as  retroactive,  would,  as  to  property  deeded 
subject  to  an  attachment,  be  a  taking  of 
property  without  due  process.  Hanseora 
V.  Maiden  etc.  Gaslight  Co.  (Mass.)  1917A- 
145.  (Annotated.) 

12.  Motion  to  Dissolve — Objection  to 
Sufficiency.  Where  there  has  been  a  trial, 
and  no  objection  has  been  made  to  the 
sufficiency  of  a  motion  or  affidavit  to  dis- 
solve an  attachment,  either  by  demurrer 
or   motion,   an   objection  to  the  introduc- 


ATTEMPTS— ATTORNEYS. 


89 


tion  of  evidence  in  support  of  the  motion, 
on  the  ground  that  it  does  not  put  in  issue 
or  traverse  the  grounds  laid  in  the  affi- 
davit for  attachment,  will  be  sustained 
only  when  the  allegations  of  the  travers- 
ing affidavit  wholly  fail  to  deny  the 
grounds  of  attachment.  First  Bank  of 
Texola  v.  Terrell  (Okla.)  1917A-681. 

13.  Sufficiency  of  Denial.  Where  the 
traversing  affidavit  is  in  the  conjunctive, 
and  is  laid  in  the  present  tense,  its  legal 
sufficiency  should  be  tested  by  either  mo- 
tion or  demurrer,  and  not  alone  by  mere 
objection  to  the  introduction  of  testimony. 
First  Bank  of  Texola  v.  Terrell  (Okla.) 
1917A-681.  (Annotated.) 

Notes. 

Eight  of  defendant  to  move  to  dissolve 
attachment.     1916B-476. 

Dissolution  of  attachment  by  death  of 
defendant.     1917A-149. 

6.     RELEASE    OF   ATTACHMENT. 

14.  Enforcement — Election  of  Remedies. 
A  plaintiff  who  has  attached  a  person's 
effects,  both  at  law  and  in  equity,  may 
dismiss  his  attachment  at  law  and  proceed 
in  equity.  Niehaus  v.  C.  B.  Barker  Con- 
struction Co.  (Tenn.)  1918B-23. 

ATTEMPTS. 
See  Criminal  Law. 

ATTEMPT  TO  SAVE  LIFE. 

As  contributory  negligence,  see  Negligence, 
54. 

ATTESTATION. 
Of  will,  see  Wills,  20-29. 

ATTORNEY  GENERAL. 

Duties,  see  Building  and  Loan  Associations, 
6,  10-12. 

ATTORNEY  IN  PACT. 
See  Agency. 

ATTORNEYS. 

1.  Status,  Admission  and  Right  to  Practice, 

89. 

2.  Relation  of  Attorney  and  Client,  90. 

a.  Authority  of  Attorney,  90. 

(1)  In   General,  90. 

(2)  To     Compromise     Cause     of 

Action,  90. 

(3)  Consent  to  Judgment,  90. 

b.  Summary  Jurisdiction,  90. 

c.  Right  to  Testify,  91. 

d.  Authority  of  Client,  91. 

3.  Compensation  of  Attorneys,  91. 

a.  Right  to  Compensation,  91. 

b.  Actions  for  Compensation,  93. 

4.  Lien  of  Attorneys,  93. 

a.  Right  to  Lien,   93. 

b.  Loss  of  Lien,  94. 


5.  Disbarment,  94. 

a.  Jurisdiction  and  Power,  94. 

b.  Nature   of   Proceedings,  95. 

c.  Grounds  of  Disbanuent,  95. 

d.  The  Hearing,  96. 

e.  Effect  of  Disbarment,  96. 

f.  Right  of  Appeal,  97. 

6.  Personal  Liability  of  Attorney,  97. 
See  Appearances;  Argument  and  Conduct 

of  Counsel;  Attorney  General;  Cham- 
perty and  Maintenance;  Prosecuting 
Attorneys. 

Stipulation  in  note  for  fees,  see  Bills  and 
Notes,  2,  4,  90-94. 

Right  of  attorney  to  costs,  see  Costs. 

Right  of  accused  to  counsel,  see  Criminal 
Law,  35,  36. 

Right  of  private  counsel  to  prosecute,  see 
Criminal  Law,  37. 

Pees  in  suits  for  divorce,  see  Divorce, 
48-51. 

Power  of  executors  and  administrators  to 
employ,  see  Executors  and  Adminis- 
trators, 18,  23. 

Counsel  fees  of  executors  and  administra- 
tors, see  Executors  and  Administrators, 
47,  48. 

Fees  recoverable  for  failure  to  pay  loss, 
see  Fire  Insurance,  46. 

Attorney's  fees  as  "necessaries,"  see  Hus- 
band and  Wife,  38,  41,  42. 

Services  to  minor  as  necessaries,  see 
Infants,  7,  22. 

Partnership  as  disqualification  of  judge, 
see  Judges,  14. 

Mistake  of  attorney  as  ground  for  vacat- 
ing judgment,  see  Judgments,  42. 

Decree  on  invalid  consent  of  attorney,  see 
Judgments,  44. 

Issue  of  fees,  demand  for  jury,  see  Jury,  8. 

Letter,  defendant's  attorney  to  plaintiff's, 
a  publication,  see  Libel  and  Slander,  7. 

Imputation  of  unprofessional  conduct,  see 
Libel  and  Slander,  32. 

Statements  in  court,  privileged  when,  see 
Libel  and  Slander,  38-42. 

Attorney's  fees  as  damages,  see  Malicious 
Prosecution,  33. 

Attorney's  fees  taxed  as  costs,  see  Mechan- 
ics' Liens,  2. 

Liability  for  negligence,  see  Negligence, 
63-65,  69. 

Action  by  attachment  bondsmen  for  neg- 
lect, see  Parties  to  Actions,  4. 

Compensation  of  receiver's  attorney,  see 
Receivers,  6. 

Fees  not  recoverable  in  Federal  courts,  see 
Replevin,  3. 

Fees  as  subject  to  income  tax,  see  Taxa- 
tion, 194. 

Communications  with  client  as  privileged, 
see  Witnesses,  17-26. 

1.     STATUS,  ADMISSION,  AND  EIGHT 

TO  PRACTICE. 

1.  EigM  to  Practice — Nature  of  Eight. 

The   practice    of    law   is   not   an   inherent 

right,  but  a  privilege  subject  entirely  to 


90 


DIGEST. 

1916C— 1918B. 


state     control.     In     re     Bailey      (Mont.) 
1917B-1198. 

2.  Status  as  Officer.  An  "attorney  at 
law"  is  in  a  sense  an  officer  of  state  under 
oath  binding  him  to  the  highest  fidelity 
to  the  court  as  well  as  to  his  client,  and 
sustains  an  obligation  to  the  public  no  less 
significant  than  that  to  his  clients.  In  re 
Bergeron  (Mass.)  1917A-o49. 

3.  Rules  of  Examiners.  A  rule  of  the 
Board  of  Bar  Examiners,  approved  by  the 
supreme  judicial  court,  requiring  an  ap- 
plicant for  examination  to  certify  that  he 
is  a  graduate  of  a  college  or  a  day  high 
school,  or  school  of  equal  grade,  or  has 
passed  the  entrance  examination  of  a  col- 
lege or  of  the  college  entrance  examina- 
tion board,  or  equivalent  examinations,  or 
has  complied  with  the  entrance  require- 
ments of  a  college,  or  has  passed  the  ex- 
amination for  entrance  to  the  Massachu- 
setts state  normal  schools  in  English  gram- 
mar and  literature,  in  United  States  his- 
tory covering  the  history  and  civil  gov- 
ernment of  Massachusetts,  with  related 
geography  and  English  history  directly 
contributory  to  a  knowledge  of  United 
States  history,  in  Latin  or  French,  in 
algebra,  or  plane  geometry,  and  in  any 
two  of  the  following  subjects:  Physiology 
and  hygiene,  physics,  chemistry,  botany, 
and  physical  geography — prescribes  a  qual- 
ification in  general  education  which  is 
reasonable  as  a  prerequisite  for  examina- 
tion for  admission  to  the  bar.  In  re  Ber- 
geron  (Mass.)   1917A-549. 

(Annotated.) 

4.  Eight  of  Nonresident  Counsel  to  Ap- 
pear. Nonresident  counsel  are  not  per- 
mitted to  practice  in  the  courts  of  North 
Dakota  as  a  matter  of  right,  but  as  a  mat- 
ter of  permission  and  privilege  merely. 
Youmans  v.  Hanna  (N.  Dak.)  1917E-263. 

5.  Eepeal  by  Statute.  Eule  7  of  the 
Mass.  Board  of  Bar  Examiners,  relative  to 
general  education,  effective  February  2, 
1914,  was  not  repealed  by  St.  1914,  c.  670, 
§  1,  effective  September  1,  1914,  amending 
Mass.  Rev.  Laws,  c.  165,  §  40,  authorizing 
the  Board  of  Bar  Examiners,  subject  to 
the  approval  of  the  supreme  judicial  court, 
to  make  rules,  as  to  qualifications  of  ap- 
plicants for  admission  to  the  bar,  by  add- 
ing the  proviso  that  he  "shall  not  be  re- 
quired to  be  a  graduate  of  any  high  school, 
college  or  university."  In  re  Bergeron 
(Mass.)   1917A-549. 

6.  Unauthorized  Practice  as  Contempt. 
Under  Mont.  Rev.  Codes,  §  638S,  providing 
that  if  any  person  practice  law  in  any 
court,  except  a  justice's  court  or  a  police 
court,  without  having  received  a  license  as 
attorney,  he  is  guilty  of  a  contempt  of 
court,  where  respondent  advised  clients  as 
to  legal  matters  pending  or  to  be  brought 
before    courts    of    record,    and    prepared 


pleadings  and  proceedings  for  use  in  such 
courts,  and  appeared  before  courts  of  rec- 
ord by  his  partner,  he  "practices  law"  in 
such  a  sense  as  to  render  him  guilty  of 
contempt  when  without  a  license.  In  re 
Bailey  (Mont.)  1917B-1198. 

(Annotated.) 

7.  Under  Mont.  Rev.  Codes,  §  7309,  subd. 
6,  providing  that  assuming  to  be  an  officer, 
attorney,  or  counsel  of  a  court,  and  acting 
as  such  without  authorization,  shall  con- 
stitute contempt  of  court,  where  respond- 
ent employed  all  customary  methods  to 
advertise  himself  as  an  attorney,  when 
without  a  license,  he  is  guilty  of  contempt. 
Ir.  re  Bailey  (Mont.)  1917B-1198. 

(Annotated.) 
Notes. 

Validity  of  rule  regulating  admission  to 
bar.     1917A-552. 

Practicing  law  without  license  as  con- 
tempt of  court.     1917B-1200. 

2.     RELATION     OP    ATTORNEY    AND 
CLIENT. 

a.  Authority  of  Attorney. 

(1)     In  General. 

8.  Power  to  Disclaim.  An  attorney  has 
no  general  power  to  execute  a  retraxit  or 
disclaimer,  or  otherwise  bind  his  client  by 
the  surrender  of  his  rights.  Glover  v. 
Bradley   (Fed.)   1917A-921. 

(2)     To  Compromise  Cause  of  Action. 

9.  Power  to  Compromise.  Consent  of 
counsel  to  orders  and  judgments  made  in 
the  progress  of  a  cause  and  intended  to 
promote  the  interest  of  his  client  is  bind- 
ing on  the  client;  a  compromise  settlement 
made  in  good  faith  by  counsel,  though  the 
client  is  an  infant,  when  sanctioned  by 
the  court  and  embodied  in  a  decree,  being 
binding.  Glover  v.  Bradley  (Fed.)  1917A- 
921. 

10.  Power  to  Release.  An  attorney  can- 
not release  his  client's  claim,  except  upon 
full  payment.  Glover  v.  Bradley  (Fed.) 
1917A-921. 

(3-)     Consent  to  Judgement. 

11.  Power  to  Consent  to  Judgment.     An 

attorney  who  is  representing  interests  an- 
tagonistic to  infant  clients  cannot  give 
binding  consent  to  a  decree  against  the  in- 
fants, and  a  decree  based  on  such  consent 
is  invalid.  Glover  v.  Bradley  (Fed.) 
1917A-921. 

b.  Summary  Jurisdiction. 

12.  Transaction  Outside  Professional  Re- 
lation. The  courts  will  not  maintain  sum- 
mary proceedings  to  discipline  an  attorney 
for  alleged  misconduct,  in  order  to  compel 


ATTORNEYS, 


91 


him  to  pay  money  or  perform  any  other 
act,  in  matters  disconnected  with  his  pro- 
fessional duties.  Krickau  v.  Williams 
(R.  I.)    1916C-1145.  (Annotated.) 

13.  Respondent,  an  attorney,  while  not 
acting  for  petitioner  in  a  professional 
capacity,  received  $500  from  her  as  a  loan, 
and  executed  a  mortgage  to  secure  the 
same  on  property,  the  title  to  which  stood 
in  the  name  of  his  mother-in-law.  He 
claimed  that  the  property  in  fact  belonged 
to  him,  which  the  holder  of  the  title  ad- 
mitted; that  he  had  executed  the  mortgage 
as  collateral  entirely  on  his  own  sugges- 
tion; that  it  was  not  demanded  by  peti- 
tioner, nor  was  it  an  inducement  to  the 
loan,  which  petitioner  admitted.  It  ap- 
peared that  at  the  time  respondent  fully 
explained  the  circumstances  to  petitioner, 
and  since  the  commencement  of  the  pro- 
ceedings to  discipline  respondent,  he  had 
offered  to  repay  the  loan,  with  interest,  but 
petitioner  thought  she  was  not  at  liberty 
to  accept  the  payment  until  the  conclusion 
of  the  proceedings.  Held,  insufficient  to 
justify  any  order  against  respondent. 
Krickau  v.  Williams  (R.  I.)  1916C-1145. 

(Annotated.) 

c.     Right  to  Testify. 

14.  Attorney  Conducting  Trial  as  Wit- 
ness for  Client.  It  is  improper  to  allow 
one  who  testifies  as  a  witness  to  the  prin- 
cipal facts  in  the  case  to  also  as  attorney 
conduct  the  trial  in  the  examination  of  wit- 
nesses and  argument  to  the  jury.  But  the 
judgment  will  not  necessarily  be  reversed 
because  an  attorney  at  law,  who  is  a  wit- 
ness in  the  case,  is  allowed  to  assist  the 
prosecuting  attorney  in  the  preparation 
and  in  the  details  of  the  trial.  Roberts  v. 
State  (Neb.)  1917E-1040. 

d.     Authority   of  Client. 

15.  Kight  of  Client  to  Dismiss  Action. 
A  client  may  dismiss  his  cause  of  action, 
or  settle  with  the  opposite  party,  without 
consulting  his  attorney.  St.  Louis,  etc.  R. 
Co.  V.  Blaylock  (Ark.)  1&17A-563. 

(Annotated.) 

16.  Settlement  of  Cause  of  Action  Sub- 
ject to  Iiien.  It  is  opposed  to  the  policy 
of  the  law  and  section  6293,  Rev,  N.  Dak. 
Codes  1905  (section  6875,  Comp.  Laws 
1913),  gives  to  an  attorney  no  right  to 
prevent  his  client  from  himself  settling 
his  claim  for  damages  for  personal  in- 
juries and  without  dictation  by  such  at- 
torney. An  agreement  which  seeks  to  de- 
prive the  client  of  such  right  is  void,  but 
it  does  not  otherwise  invalidate  an  agree- 
ment for  contingent  fees  which  is  other- 
wise valid.  Greenleaf  v.  Minneapolis,  etc. 
R.  Co.   (N.  Dak.)    1917D-908.     ' 

(Annotated.) 


'  Note.  j 

Right  of  client  to  dismiss  action  with-   § 
out  attorney's  consent.     1917A-570.  ? 


3.     COMPENSATION    OF    ATTORNEYS, 
a.     Right  to  Compensation. 

17.  Contract  Made  After  Establisbment 
of  Relation.  Contracts  affecting  an  attor- 
ney and  his  client  subsequent  to  the  em- 
ployment which  are  beneficial  to  the  attor- 
ney place  the  burden  on  the  attorney  to 
show  that  the  provisions  thereof  are  fair 
and  reasonable,  and  were  fully  known  and 
understood  by  the  client,  and  it  is  not 
incumbent  upon  one  attacking  the  contract 
to  show  fraud  or  undue  influence  on  the 
part  of  the  attorney.  Matter  of  Howell 
(N.  Y.)  1917A-527.  (Annotated.) 

18.  Contract  for  Increased  Compensa- 
tion, An  attorney,  retained  by  the  wife 
in  a  divorce  action  to  represent  her  in  all 
matters  pertaining  thereto,  in  considera- 
tion of  a  fee  of  $250  which  he  received, 
procured  a  tentative  agreement  with  her 
husband  for  a  division  of  property,  and 
binding  him  to  withdraw  objectionable 
matter  from  the  divorce  petition.  The 
wife,  being  desirous  of  having  the  tenta- 
tive agreement  set  aside  against  her  at- 
torney's wishes,  visited  the  attorney's  office 
at  his  request  and  was  induced  by  him, 
under  threat  that  he  would  withdraw  from 
the  case  and  without  advising  her  to  seek 
independent  advice,  to  agree  to  pay  him 
an  additional  fee  of  $1,000,  Held,  that 
such  contract  was  unenforceable,  regard- 
less of  the  purity  of  defendant's  motives 
and  the  wisdom  of  his  advice,  especially 
where  it  did  not  appear  that  he  informed 
and  advised  her  fully  in  respect  to  the 
tentative  agreement,  Egan  v.  Burnight 
(S.  Dak.)    1917A-539.  (Annotated.) 

19.  Strict  Construction  Against  Attor- 
ney, The  grantor  in  a  trust  deed  convey- 
ing real  and  personal  property  in  trust  to 
pay  over  the  net  income  to  the  grantor  for 
life,  with  remainder  over  to  the  trustee 
and  another,  was  made  a  party  defendant 
in  the  trustee's  action  for  an  accounting, 
and  employed  a  firm  of  attorneys  to  rep- 
resent her  in  the  action  under  an  agree- 
ment to  pay  $3,500  for  their  services,  and, 
after  an  interlocutory  judgment  therein 
appointing  a  new  trustee  and  requiring  the 
first  trustee  to  file  an  account,  the  attor- 
neys retired,  charging  only  $1,500  and 
their  disbursements.  Petitioner  was  sub- 
stituted as  attorney,  and  acted  as  such  for 
fourteen  months,  and  three  months  before 
the  report  of  the  referee  on  the  accounting 
he  induced  his  client  to  sign  a  paper  pre- 
pared by  him  agreeing  to  pay  him  $1,656 
net,  equal  to  the  balance  of  the  original 
$3,500,  and  in  addition  any  sum  allowed 
by  the  court  to  him  for  his  services.     On 


92 


DIGEST. 

19160— 1918B. 


motion  to  confirm  final  judgment  for  his 
client  against  the  first  trustee,  he  failed 
to  object  to  costs  and  allowances  to  such 
trustee,  who  was  not  entitled  thereto,  and 
secured  in  the  name  of  his  client  $427  costs 
and  an  allowance  of  $1,000  to  be  paid  out 
of  the  principal  of  the  trust  fund,  and 
thereafter  brought  proceeding  under  Ju- 
diciary Law  (N.  Y.  Consol.  Laws,  c.  30), 
§  475,  to  procure  a  determination  and  an 
enforcement  of  his  lien  for  services.  Held 
that,  construing  the  writing  most  strongly 
against  the  attorney,  the  allowance  to  the 
client  should  be  construed  as  made  to  en- 
aible  her  to  reimburse  herself  in  part  from 
the  principal  of  the  trust  fund  for  ex- 
penses incurred  in  the  litigation,  including 
attorney's  fees,  and  not  as  allowed  as  an 
extra  and  additional  compensation  to  the 
attorney.  Matter  of  Howell  (N.  Y.) 
1917A-527. 

20.  TMrd  Person  Benefited  by  Services. 
Holders  of  stock  in  an  insolvent  bank  em- 
ployed a  trust  company  as  their  agent  to 
make  sale  of  the  stock.  The  stock  was  sold 
to  a  bank  on  a  contract  providing  for  a 
certain  absolute  payment  per  share,  and 
for  additional  payments  upon  certain  con- 
tingencies. The  purchasing  bank,  however, 
refused  to  make  such  additional  payments, 
and  certain  shareholders  sued  on  the  con- 
tract, employing  plaintiffs  as  their  attor- 
neys, and,  it  appearing  that  a  suit  might 
terminate  successfully,  other  shareholders 
intervened,  but  were  represented  by  other 
attorneys,  although  they  had  an  oppor- 
tunity to  employ  plaintiffs.  A  settlement 
was  made  between  the  claimants  and  pur- 
chasing bank,  and  part  of  the  fund  depos- 
ited in  court.  Plaintiffs,  whose  contract 
with  their  clients  provided  for  a  contin- 
gent fee  of  one-third  of  the  amount  recov- 
ered, demanded  compensation  at  the  same 
rate  from  the  other  stockholders.  Held 
that,  there  being  no  contractual  relations 
with  other  stockholders,  they  were  not  en- 
titled to  compensation,  although  their  ser- 
vices had  been  of  benefit  to  the  other 
stockholders.  O'Doherty  v.  Bickel  (Ky.) 
1917A-419.  (Annotated.) 

21.  Allowance  of  Fee.  Under  section 
247  of  the  Kan.  code,  the  allowance  by 
the  court  of  $25  attorney's  fee  for  the 
plaintiff  was  proper.  Sherman  v.  Havens 
(Kan.)    1917B-394. 

22.  Solicitation  of  Business  by  Attorney. 
A  contract  between  an  attorney  and  his 
client  obtained  by  solicitation  of  the 
client  by  the  attorney's  agent,  and  pro- 
viding for  a  contingent  fee,  is  not  unen- 
forceable as  against  public  policy  merely 
because  it  was  obtained  by  solicitation. 
Chreste  v,  Louisville  E.  Co.  (Ky.)  1917C- 
867.  (Annotated.) 

23.  Contract  for  IMvision  of  Fees  With 
Layman.  Generally  a  contract  between  an 
attorney  and  a  layman  by  which  the  latter 


agrees  to  solicit  business  for  the  former 
in  consideration  of  a  share  of  the  fees  is 
void  as  against  public  policy.  Chreste  v. 
Louisville  R.  Co.  (Ky.)   1917C-867. 

24.  Contract  After  Formation  of  Bela- 
tion.  A  contract  for  compensation  made 
by  an  attorney  with  his  client  after  the 
relation  has  arisen  will  be  closely  scrut- 
inized, and  may  be  avoided  when  a  similar 
contract  between  parties  not  sustaining 
the  relation  of  attorney  and  client  would 
be  upheld.  Chreste  v.  Louisville  E.  Co. 
(Ky.)   1917C-867. 

25.  Necessity  of  Showing  Fairness.  A 
contract  made  between  an  attorney  and 
a  prospective  client  with  reference  to  com- 
pensation may  be  enforced  without  the 
showing  on  the  part  of  the  attorney  that 
the  contract  is  just,  fair,  and  reasonable, 
since,  when  it  was  entered  into,  no  confi- 
dential relations  existed.  Chreste  v.  Louis- 
ville E.  Co.  (Ky.)  1917C-867. 

26.  Bights  on  Compromise  by  Client. 
Under  Ky.  St.  §  107,  giving  an  attorney's 
lien  for  fees,  where  a  client,  after  a  judg- 
ment in  his  favor,  settled  with  the  adverse 
party  for  an  amount  less  than  that 
awarded  him  by  the  judgment,  the  attor- 
ney, having  a  contingent  contract  for  one- 
ha^f  of  the  recovery,  is  entitled  to  one- 
half  the  amount  of  the  judgment,  instead 
of  one-half  the  amount  of  the  compromise. 
Chreste  v.  Louisville  E.  Co.  (Ky.)  1917G- 
867. 

27.  Beasonableness  of  Fee.  "Where  an  at- 
torney retained  to  represent  the  defendant 
in  a  divorce  suit  for  a  fee  of  $250,  which 
he  had  received,  procured  a  contract  for  an 
additional  fee  of  $1,000,  under  which  con- 
tract a  satisfactory  settlement  reached  by 
one  day's  efforts  would  have  been  full  per- 
formance, the  amount  of  such  additional 
fee  is  unreasonable,  regardless  of  the  ser- 
vices actually  performed  by  the  attorney 
thereafter;  the  reasonableness  of  a  fee 
being  determined  not  alone  by  the  value  of 
the  services  which  might  become  necessary, 
but  also  by  the  value  of  the  services  that 
might,  in  the  contemplation  of  the  parties, 
have  constituted  a  full  performance.  Egan 
V.  Burnight   (S.   Dak.)    1917A-539. 

(Annotated.) 

28.  Contingent  Fee  for  Recovery  of  Land. 
The  attorney's  compensation  became  due 
when  the  compromise  agreement  was 
signed;  and  hence  the  12^2  per  cent  is 
based  on  the  value  of  the  land  at  such 
time,  though  the  patent  from  the  govern- 
ment was  not  obtained  until  a  later  date. 
Myers  v.  Bender  (Mont.)  1916E-245. 

29.  Under  such  clause  the  attorney  is 
entitled  to  recover  the  12%  per  cent  in 
money  and  not  in  land,  though  the  pre- 
ceding clause  provided  that  plaintiff  should 
receive  "12%  per  cent  of  all  land  and 
money  recovered."  Myers  t.  Bender 
(Mont.)   1916E-245. 


ATTORNEYS. 


93 


30.  Contract  for  Contingent  Fee.  Under 
a  clause  of  a  contract  between  an  attorney 
and  client,  providing  that  the  attorney 
should  receive  12  V^  per  cent  of  the  value 
of  all  the  land  and  money  recovered  by 
compromise  or  in  any  manner  whatsoever 
ia  an  action  pending  against  a  railroad 
company  over  the  title  to  certain  land,  the 
attorney  is  entitled  to  12%  per  cent  of  the 
value  of  all  lands  to  which  hia  client  se- 
cured title  by  a  compromise  agreement, 
though  such  title  was  'oibtained  through  a 
relinquishment  by  the  railroad  company 
to  the  government,  in  order  that  the  client 
might  obtain  title  directly  from  the  gov- 
ernment. Myers  v.  Bender  (Mont.) 
1916E-245. 

31.  Interest  on  Attorneys'  Fees.  Failure 
of  a  client  to  pay  an  attorney  his  fee  when 
it  became  due  under  the  contract  between 
them  is  "a  breach  of  an  obligation  arising 
from  contract,"  within  Rev.  Mont.  Codes, 
§  6048,  providing  that  the  measure  of  dam- 
ages for  such  a  breach,  unless  otherwise 
expressly  provided,  ia  the  amount  which 
will  compensate  the  aggrieved  party  for 
the  detriment  approximately  caused  there- 
by, or  likely  to  result  therefrom;  and  hence 
the  measure  of  damages  for  such  breach 
was  the  principal  amount  due,  together 
with  interest  at  the  legal  rate  up  to  the 
time  of  trial,  allowing  credit  for  payments 
made  at  their  respective  dates.  Myers  v. 
Bender   (Mont.)    1&16E-245. 

(Annotated.) 

Notes. 

Solicitation  of  business  by  attorney  as 
forfeiture  of  right  to  compensation  there- 
for.    1917C-871. 

Right  of  attorney  to  recover  for  ser- 
vices beneficial  to  person  not  employing 
him.     1917A-423. 

Interest  on  attorney's  fees.     1916E-249. 

Validity  of  contract  for  compensation  of 
attorney  made  after  fiduciary  relation  is 
estaiblished.     1917A-531. 

32.  Allowance  of  Fees.  An  attorney's 
fee  of  $1,000  allowed  plaintiff  recovering 
$8,000  on  an  accident  policy  is  reasonable. 
Aetna  L».  Ins.  Co.  v.  Taylor  (Ark.)  1918B- 
1122. 

b.     Actions   for   Compensation, 

33.  In  an  attorney's  action  on  a  contract 
for  additional  compensation,  procured 
after  his  retention  in  a  case,  the  burden 
is  on  plaintiff  to  prove  that  he  advised  his 
client  fully  in  relation  to  her  rights  and 
duties,  and  that  his  advice  was  as  free  of 
all  personal  consideration  on  his  part  as 
would  have  been  the  advice  of  any  dis- 
interested attorney.  Egan  v.  Bumight 
(S.  Dak.)  1917A-539.  (Annotated.) 

34.  Contingent  Fee  Contract.  In  an  at- 
torney's action  for  compensation  under  a 


contract  entitling  him  to  a  certain  per  cent 
of.  the  value  of  land  recovered,  estimated 
at  the  time  of  the  signing  of  a  compro- 
mise agreement,  evidence  of  the  value  of 
the  land  at  a  time  subsequent  to  suoh 
agreement  is  improper.  Myers  v.  Bender 
(Mont.)    1916E-245. 

35.  Acknowledged  by  Client.  An  ae- 
knowredgment  by  a  client  of  a  debt  to  his 
attorney  which  is  barred  by  the  statute  of 
limitations  is  within  the  rule  that  an  at- 
torney is  not  permitted  to  receive  any 
benefit  from  a  client  unless  the  latter  has 
had  independent  advice  in  the  matter. 
Lloyd  V.  Coote  &  Ball  (Eng.)  1916E-4a4. 

(Annotated.) 
Note. 

Validity  of  acknowledgment  by  client 
of  debt  to  attorney  barred  by  Emitatlons. 
1916E-436. 


4.     LIEN  OF  ATTORNEYS, 
a.     Bight  to  Lien. 

36.  Retaining  Lien.  Where  the  court 
reporter  refused  to  surrender  the  certifi- 
cate of  evidence  in  an  action  until  pay- 
ment of  his  fees,  but  loaned  it  to  plain- 
tiff's attorneys  to  prepare  their  abstracts 
and  briefs  for  appeal,  they  are  entitled 
to  a  lien  on  the  certificate  for  their  com- 
pensation; the  character  of  their  possession 
not  being  adverse  to  their  lien.  Mc- 
Cracken  v.  Joliet  (111.)  19171^-144. 

(Annotated.) 

37.  Extent  of  Lien  on  Judgment.  Under 
the  common-law  rule,  giving  an  attorney 
a  retaining  lien  on  all  papers,  securities, 
or  money  belonging  to  his  client  which 
come  into  his  possession  in  the  course  of  his 
professional  employment,  and  a  charging 
lien  against  a  judgment  recovered  through 
the  attorney's  efforts,  and  under  Judiciary 
Law  (N.  Y.  Consol.  Laws,  c.  30)  §  475,  giv- 
ing an  attorney  a  lien  on  his  client's  cause 
of  action  which  attaches  to  a  verdict, 
judgment,  or  final  order  in  hia  client's 
favor,  and  the  proceeds  thereof,  an  attor- 
ney, employed  as  general  counsel  at  an 
annual  salary,  payable  semiannually,  has 
no  lien  for  unpaid  salary  on  the  proceeds 
of  a  judgment  procured  by  him  after  ter- 
mination of  the  general  employment,  un- 
der an  agreement  to  pay  him  reasonable 
value  of  services  in  the  trial  of  the  action. 
Matter  of  Heinsheimer  (N.  Y.)  1916B- 
384.  (Annotated.) 

38.  Lien  on  Cause  of  Action.  The  at- 
torney's lien  given  by  section  6293,  N.  Dak. 
Rev,  Codes  1905  (section  6875,  Comp.  Laws 
1913),  -when  sought  to  be  asserted  in  an 
action  or  proceeding  for  the  recovery  of 
damages  for  personal  injuries,  attaches  t-o 
that  into  which  the  right  of  action  is 
merged.  If  a  judgment  is  recovered  the 
lien  attaches  to  it,  if  a  compromise  agree- 
ment is  made,  the  lien  attaches  to  it,  and 


34 


DIGEST. 

1916C— 1918B, 


in  either  case  the  attorney's  lien  is  such 
that  it  cannot  be  defeated  or  satisfied  by 
a  voluntary  payment  to  his  client  without 
his  consent.  Greenleaf  v.  Minneapolis,  etc. 
R.  Co.  (N.  I>ak.).1917D-908. 

39.  On  Cause  of  Action  for  Tort.  Sec- 
tion 6293,  Rev.  N.  Dak.  Codes  1905,  being 
section  6875,  Comp.  Laws  1913,  and  which 
provides  for  an  attorney's  lien  on  "money 
due  his  client  in  the  hands  of  the  adverse 
party,  or  attorney  of  such  party,  in  an 
action  or  proceeding  in  which  the  attorney 
claiming  the  lien  was  employed  from  the 
time  of  giving  no'tice  in  writing,"  applies 
to  tort  actions  for  personal  injuries  as  well 
as  to  actions  which  are  founded  upon  con- 
tract, and  this  although  such  actions  do 
not  survive  the  death  of  the  plaintiff. 
Greenleaf  v.  Minneapolis,  etc.  R.  Co.  (N. 
Dak.)  1917D-908.  (Annotated.) 

40.  The  words  "action"  and  "proceed- 
ing" as  used  in  section  6293,  Rev.  N.  Dak. 
Codes  1905  (section  6875,  Comp.  Laws 
1913),  include  actions  and  proceedings  for 
the  recovery  of  damages  for  personal  in- 
juries. Greenleaf  v.  Minneapolis,  etc.  R. 
Go.  (N.  Dak.)    1917D-908. 

(Annotated.) 

41.  Where  a  lien  is  claimed  under  sec- 
tion 6£93,  Rev.  N.  Dak.  Codes  1905  (sec- 
tion 6875,  Comp.  Laws  1913),  in  an  action, 
for  personal  injuries,  and  due  notice  there- 
of is  given  to  the  defendant  and  a  settle- 
ii'ent  or  compromise  is  made  with  the 
plaintiff  with  or  without  the  consent  of 
the  attorney,  such  lien  will  attach  merely 
to  the  proceeds  of  the  settlement,  and  if 
the  contract  or  lien  is  for  a  percentage  of 
the  claim  or  recovery,  it  will  merely  be 
for  such  percentage  of  the  amount  for 
which  such  claim  is  settled  or  compro- 
mised. (Greenleaf  v.  Minneapolis,  etc.  R. 
Co.  (N.  Dak.)  1917D-908.         (Annotated.) 

42.  Joining  Attorney  as  Party.  A  firm 
of  attorneys  had  a  contract  with  their 
client  for  a  fee  contingent  upon  recovery 
for  personal  injuries,  and  began  suit  there- 
under. The  client  dismissed  the  suit  and 
commenced  another  one  of  the  same  cause 
of  action  in  a  different  circuit.  Acts  1909, 
p.  892,  Kirby's  Ark.  Dig.  §§  4458,  4462, 
provide  for  an  attorney's  lien  on  the  pro- 
ceeds of  a  judgment  for  their  client.  Held, 
that  the  attorneys  were  not  proper  parties 
to  the  second  action,  the  act  not  giving 
them  any  interest  in  the  cause  of  action 
itself.  St.  Louis,  etc.  R.  Co.  v.  Blaylock 
(Ark.)   1917A-563. 

Notes. 

Lien  of  attorney  as  extending  to  action 
for  tort.     1917D-917. 

Extent  of  attorney's  lien  on  judgment. 
1916E-387. 

Lien  of  attorney  on  papers  in  his  posses- 
sion connected  with  litigation.  191 7D- 
147. 


t.     Loss  of  Lien. 


43.  Settlement  by  Client.  Under  Acts 
1909,  p.  892,  Kirby's  Ark.  Dig.  §§  4458, 
4462,  providing  for  an  attorney's  lien  on 
the  proceeds  of  a  judgment  for  his  client, 
an  attorney  has  a  lien  for  his  fee  which 
cannot  be  defeated  by  any  settlement  of 
the  parties  litigant  before  or  after  judg- 
ment or  final  order.  St.  Louis,  etc.  R.  Co. 
V.  Blaylock  (Ark.)  1917A-563. 

5.     DISBARMENT, 
a.     Jurisdiction  and  Power. 

44.  Eight  of  State's  Attorney  to  Insti- 
tute. Conn.  Acts  1907,  c.  120,  authorizing 
the  appointment  of  a  grievance  committee 
in  each  county  whose  duty  it  shall  be  to 
inquire  into  and  present  to  the  court 
offenses  involving  the  character,  pro- 
fessional standing,  etc.,  of  members  of 
the  bar,  does  not  provide  an  exclusive  mode 
cf  instituting  such  inquiries,  and  does  not 
restrict  the  inherent  power  of  the  court  to 
inquire  into  the  conduct  of  its  own  officers 
on  its  own  motion  or  on  the  complaint  ot 
any  party,  and  hence  the  state's  attorney 
can  present  a  complaint  against  an  attor- 
ney as  authorized  by  section  10  of  the 
rules  of  court.  State  v.  Peck  (Conn.) 
1917B-227. 

45.  Inherent  Power  of  Court.  Courts 
having  power  to  admit  attorneys  to  the  bar 
possess  an  inherent  power  to  disbar  them 
for  unworthy  behavior,  unprofessional  con- 
duct, or  moral  turpitude,  independent  of 
any  statutorv  authoritv.  In  re  Hilton 
(Utah)    1918A-271. 

46.  Findings  in  Disbarment  Proceeding 
—  Facts  Outside  of  Charges.  It  is  imma- 
terial in  a  disbarment  proceeding  that  the 
court  found  facts  outside  of  the  charges 
contained  in  the  complaint,  where  its  judg- 
ment was  not  based  upon  such  findings, 
but  upon  matters  alleged  in  the  complaint 
and  unquestionably  sufficient  to  support 
the  judgment.  State  v.  Peck  (Conn.) 
1917B-227. 

47.  The  state's  attorney  is  not  disquali- 
fied to  present  a  complaint  of  professional 
misconduct  against  an  attorney  by  reason 
of  his  bitter  enmity  to  the  accused  attor- 
ney or  his  prejudice  against  him,  since  he 
does  not  appear  as  a  prosecuting  officer 
and  has  no  power  to  control  the  proceed- 
ing, and  his  only  duty  is  to  call  the  atten- 
tion of  the  court  to  the  alleged  miscon- 
duct; the  duty  thereafter  resting  upon  the 
court  to  see  that  the  interests  of  justice 
are  preserved  and  the  rights  of  the  ac- 
cused attorney  protected.  State  v.  Peck 
(Conn.)    1917B-227. 

48.  Determining  Fitness  of  Accused  to 
Practice.  The  question  for  determination 
in  a  disbarment  proceeding  is  whether  the 
defendant  by   reason   of   his  past  conduct 


ATTORNEYS. 


95 


evidencing  liis  qualities  of  character  and 
uprightness  was  a  fit  person  to  exercisa 
longer  the  functions  of  an  attorney,  and 
iu  determining  this  question  a  large  meas- 
ure of  judicial  discretion  was  to  be  exer- 
cised reasonably,  fairly,  and  dispassion- 
ately.    State   V.   Peck   (Conn.)    1917B-227. 

49.  Court  of  Chancery.  Under  2  Comp. 
N,  J.  St.  1910,  p.  2278,  fixing  a  fee  for  the 
governor  for  a  license  to  an  attorney  and 
solicitor,  to  appear  and  practice  in  all 
courts,  and  page  2281,  providing  for  fees 
for  the  judges  of  the  supreme  court  for 
license  to  an  attorney  and  solicitor,  and 
page"  4054,  §  5,  providing  that  any  coun- 
selor, solicitor,  or  attorney  who  shall  be 
guilty  of  malpractice  in  any  of  the  courts 
shall  be  put  out  of  the  roll  and  not  there- 
after permitted  to  practice,  unless  he  shall 
obtain  a  new  license  and  be  again  enrolled 
in  due  form  of  law,  which  is  section  5  of 
the  Practice  Act  of  190S  regulating  "the 
practice  of  courts  of  law,"  and  the  con- 
stitution, protecting  the  jurisdiction  of 
the  court  of  chancery  as  existing  at  the 
time  of  the  adoption  of  the  constitution, 
the  court  of  chancery  has  no  jurisdiction 
to  make  an  order  adjudging  a  solicitor 
guilty  of  malpractice  and  debarring  him 
from  practice  as  solicitor  and  counsel  in 
the  court  of  chancery.  In  re  Hahn  (N.  J.) 
1918B-830. 

b.    Nature  of  Proceedings. 

50.  A  disbarment  proceeding  is  not  a 
criminal  prosecution,  nor  is  it  a  civil  ac- 
tion, though  section  11  of  the  Conn,  rules 
regulating  the  admission,  suspension,  and 
displacement  of  attorneys  requires  com- 
plaints for  misconduct  to  be  proceeded 
with  as  civil  actions,  and  the  complaint 
need  not  have  the  same  technical  precision 
of  statement  or  conformity  to  recognized 
formalities  required  in  criminal  prosecu- 
tion or  civil  actions;  it  being  sufficient , if 
it  is  sufficiently  intelligible  and  informing 
to  advise  the  court  of  tha  m.attcr  com- 
plained of  in  order  that  it  may  determine 
whether  it  shall  institute  an  inquiry  and 
properly  conduct  it  if  instituted,  and  to 
advise  the  attorney  of  the  accusation  in 
order  that  he  may  be  prepared  to  meet  the 
charges.  State  v.  Peck  (Conn.)  1917B- 
227. 

51.  Sufficiency  of  Complaint.  The  suflS- 
eiency  of  the  complaint  in  a  proceeding  to 
disbar  an  attorney  must  be  determined 
upon  an  examination  of  the  complaint  as 
a  whole.  State  v.  Peck  (Conn.)  1917B- 
227. 

52.  Rights  of  Accused.  An  attorney 
accused  of  professional  misconduct  is  enti- 
tled to  notice  of  the  charge  against  him, 
an  opportunity  to  be  heard,  a  fair  and  dis- 
passionate investigation,,  and  a  reasonable 
exercise  of  the  iudicial  discretion.  State 
V.  Peck  (Conn.)  'l917B-227. 


53.  An  order  of  the  court  of  chancery 
disbarring  a  solicitor  in  chancery  from 
jiracticing  as  solicitor  and  counselor  in  the 
court  of  chancery,  entered  in  proceedings 
not  purporting  to  be  proceedings  to  punish 
for  contempt,  is  not  sustainable  as  a  pun- 
ishment for  contempt.  In  re  Hahn  (N.  J.) 
1918B-830. 

c.     Grounds  of  Disbarment. 

54.  Loss  of  Character.  The  loss  by  a 
member  of  the  bar  of  the  supreme  court 
of  the  United  States  of  his  fair  private 
and  professional  character  by  wrongful 
personal  and  professional  conduct,  no  mat- 
ter where  committed,  furnishes  adequate 
reason  for  taking  away  his  right  to  con- 
tinue to  be  a  member  of  such  bar  in  good 
standing.     Selling     v.     Eadford     (U.     S.) 

ig'iTD-seg. 

55.  Misconduct  as  Judge.  Where  an  at- 
torney who  was  judge  of  the  probate  court 
procured  the  payment  of  $750  to  him  from 
the  assets  o:^  an  estate  as  compensation  for 
pretended  services  as  an  attorney  on  be- 
half of  the  estate  which  were  never  ren- 
dered, and  exerted  his  authority  as  such 
judge  to  secure  such  payment,  resorted  to 
deception  and  concealment  in  his  efforts 
to  secure  such  payment,  and  made  use  in 
his  official  position  of  threats  calculated 
to  produce  the  end  desired,  for  the  purpose 
of  coercing  payment,  he  is  properly  sus- 
pended indefinitely  from  practicing  law. 
State  V.  Peck   (Conn.)   1917B-227. 

(Annotated.) 

56.  That  an  attorney  sought  to  be  dis- 
barred is  judge  of  the  probate  court  does 
not  prevent  his  disbarment,  since  the 
judge  of  the  probate  court  need  not  be  an 
attorney,  and  his  disbarment  can  have  no 
effect  upon  his  official  status.  State  ▼. 
Peck  (Conn.)   1917B-227.  (Annotated.) 

57.  Misconduct  of  an  attorney,  who  wag 
judge  of  the  probate  court,  in  the  course  of 
the  settlement  of  an  estate  of  a  deceased 
person  in  such  court,  justifies  his  disbar- 
ment, since  it  directly  involves  a  misuse  of 
his  professional  privilege  and  is  misconduct 
as  a  member  of  the  bar,  and  moreover  any 
misconduct,  professional  or  nonprofes- 
sional, disclosing  a  moral  unfitness  for 
the  enjoyment  of  the  professional  privi- 
lege, justifies  disbarment.  State  v.  Peek 
(Conn.)    1917B-227.  (Annotated.) 

58.  Attack  on  Court.  Where  an  attor- 
ney, delivering  an  oration  over  the  body  of 
a  murderer,  venomously  attacked  the  su- 
preme court  which  affirmed  the  conviction, 
accusing  the  court  of  being  improperly  in- 
fluenced by  a  powerful  religious  body  in 
the  state,  charging  the  court  with  prejudice 
and  unfairness  and  garbling  the  accounts 
of  the  trial  and  of  proceedings  before  the 
pardon  board,  the  attorney  is  guilty  of 
professional    misconduct    which    warrants 


96 


DIGEST. 

1916C— 1918B. 


his  disbarment  under  Utah  Comp.  Laws 
1907,  §§  113,  120,  respectively,  declaring 
that  it  is  the  duty  of  an  attorney  to  sup- 
port the  Constitution  and  laws  of  the 
United  States,  to  maintain  the  respect  due 
courts,  and  employ  for  the  purpose  of 
maintaining  causes  confided  to  him  only 
such  means  as  are  consistent  with  the 
truth,  and  that  an  attorn.ey  may  be  dis- 
barred for  any  Eolation  or  his  duties  or 
for  moral  turpitude,  for  an  attorney  who 
so  misrepresented  the  court,  attempting  to 
bring  the  high  judicial  office  into  disre- 
spect, is  guilty  of  moral  turpitude.  In  re 
Hilton  (Utah)  1918A-271. 

(Annotated.) 

59.  An  attorney  guilty  of  slandering  or 
defaming  a  court  or  judge  is  subject  to 
discipline  and  disbarment.  In  re  Hilton 
(Utah)   1918A-271.  (Annotated.) 

60.  Criticism  of  Decision  of  Court.     An 

attorney  may  publicly  or  privately  crit- 
icize the  decision  of  the  coujrt,  pointing 
out  wherein  he  deems  it  defective,  and 
may  state  that  it  should  not  be  final.  In 
re  Hilton  (Utah)  1918A-271. 

(Annotated.) 

61.  Loss  of  Moral  Character.  Where  the 
statute  makes  a  good  moral  character  a 
condition  precedent  to  admission  to  the 
bar,  the  court  may  disbar  an  attorney 
when  he  forfeits  his  claim  to  such  char- 
acter by  misconduct  of  a  nature  rendering 
him  unfit  to  be  continued  in  office.  In  re 
Hilton  (Utah)  1918A-271. 

62.  Effect  of  Pardon  (m  Disbarment  Pro- 
ceeding. \^'here  an  attorney  was  convicted 
of  forgery  and  a  certified  copy  of  the  judg- 
ment filed  in  the  supreme  court,  its  eflfect 
as  furnishing  conclusive  ground  for  dis- 
barment is  not  nullified  by  a  conditional 
pardon  granted  to  the  attorney  by  the  gov- 
ernor.    In  re  Sutton  (Mont.)   1917A-1223. 

(Annotated.) 

63.  Crime  Involving  Moral  Turpitude. 
Forgery  is  an  offense  involving  moral  tur- 
pitude, within  Rev.  Mont.  Codes,  §  G393, 
providing  for  the  disbarment  of  attorneys 
on  conviction  of  a  felony  or  of  a  misde- 
meanor involving  moral  turpitude.  In  re 
Sutton  (Mont.)   1917A-1223. 

Notes. 

Criticism  of  decision  of  court  as  ground 
of  disbarment.     1918A-283. 

Pardon  as  affecting  right  to  disbar  at- 
torney for  criminal  misconduct.  1917A- 
1226. 

Misconduct  in  official  or  fiduciary  ca- 
pacity other  than  that  of  attorney  as 
ground  for  suspension  or  disbarment. 
1917B-232. 

d.     The  Hearing. 

64.  Eecord  Conclusive.  By  Rev.  Mont. 
Codes,  §  G393,  a  certified  copy  of  the  record 


of  conviction  of  an  attorney  for  a  felony 
or  for  misconduct  involving  moral  turpi- 
tude is  conclusive  evidence  of  his  unfit- 
ness to  be  a  member  of  the  bar,  and  the 
supreme  court  must  disbar  him  under  sec- 
tion 64-10  without  notice  by  citation  or 
other  process.  In  re  Sutton  (Mont.) 
1917A-1223. 

e.     Effect  of  Disbarment. 

65.  An  order  of  the  court  of  chancery 
debarring  a  solicitor  in  chancery  from 
practicing  as  solicitor  and  counselor  in  the 
court  of  chancery  cannot  be  sustained  un- 
der the  practice  act,  requiring  the  solicitor 
to  act  under  the  direction  of  the  court, 
which  refers  only  to  causes  in  which  the 
solicitor  is  acting,  and  not  to  his  own  dis- 
qualification for  practicing.  In  re  Hahn 
(N.  J.)  1918B-830. 

66.  Standing  in  Other  Courts.  The  want 
of  fair  private  and  professional  character 
in  a  member  of  the  bar  of  the  supreme 
court  of  the  United  States,  inherently 
arising  as  the  result  of  the  act  of  the 
highest  court  of  a  state,  disbarring  him 
from  practicing  in  the  courts  of  that  state, 
for  personal  and  professional  misconduct 
amounting  to  moral  wrong,  should  be  rec- 
ognized by  the  federal  supreme  court  on 
motion  to  disbar  unless,  from  an  intrinsic 
consideration  of  the  record  of  the  state 
court,  it  appears  (1)  that  the  state  pro- 
cedure, from  want  of  notice  or  opportunity 
to  be  heard,  was  wanting  in  due  process, 
or  (2)  that  there  was  such  an  infirmity  of 
proof  as  to  give  rise  to  a  clear  conviction 
that  the  conclusion  as  to  the  want  of  fair 
private  and  professional  character  should 
not  be  accepted  as  final,  or  (3)  that  some 
other  grave  reason  exists,  impelling  the 
conviction  that  to  allow  the  natural  con- 
sequences of  the  judgment  to  have  their 
effect  would  conflict  with  the  duty  not  to 
disbar  unless  constrained  to  do  so  by  prin- 
ciples of  right  and  justice.  Selling  v.  Rad- 
ford (U.  S.)   1917D-569.  (Annotated.) 

67.  An  opportunity  should  be  afforded  to 
a  member  of  the  bar  of  the  supreme  court 
of  the  United  States,  where  his  disbarment 
is  sought  on  the  ground  of  a  previous  dis- 
barment by  a  state  court,  to  file  the  record 
of  the  state  court,  and  by  printed  brief, 
considering  the  record  intrinsically,  to 
point  out  any  ground  within  the  limitations 
prescribed  by  the  federal  supreme  court 
which  should  prevent  that  court  from  giv- 
ing effect  to  the  finding  of  the  state  court 
establishing  the  want  of  fair  private  and 
professional  character.  Selling  v.  Radford 
(U.  S.)  1917I>569.  (Annotated.) 

Note. 

Disbarment  in  one  court  as  affecting 
status  of  attorney  in  another  court. 
1917D-572. 


ATTRACTIVE  NUISANCES— AUCTIONS  AND  AUCTIONEERS.     97 


f.     Eight  of  Appeal. 

68.  Right  of  Appeal.  One  deprived  by 
order  of  the  court  of  chancery  of  his  office 
of  solicitor  and  of  the  right  of  exercising 
to  the  full  extent,  the  office  of  counselor  is 
aggrieved  thereby  within  1  Comp.  N.  J. 
St.  1910,  p.  450,  §  111,  authorizing  persons 
aggrieved  by  any  order  of  the  court  of 
chancery  to  appeal  from  the  same.  In  re 
Hahn  (N.  J.)  1918B-830.         (Annotated.) 

Note. 

Right  of  attorney  to  review  of  disbar- 
ment proceedings.     1918B-836. 

6.     PERSONAL  LIABILITY  OF  ATTOR- 
NEY. 

69.  Personal  Liability  for  Incidental  Ex- 
penses. An  attorney  at  law  is  personally 
liable  for  the  cost  of  printing  briefs  where 
it  appears  that  in  previous  similar  dealings 
with  the  same  f)rinters  he  has  habitually 
paid  for  the  printing  on  bills  rendered  to 
him  personally.  Judd  and  Detweiler  v. 
Gittings  (D.  C.)  1917B-518. 

(Annotated.) 

70.  Negligence  in  Trying  Case.  Where, 
in  an  action  against  an  attorney  for  negli- 
gence in  the  trial  of  an  action  for  plaintiff, 
suing  his  employer  for  a  personal  injury, 
the  jury  could  find  that  the  superintendent 
of  the  employer  was  negligent  the  defense 
of  negligence  of  a  fellow-servant,  or  that 
without  the  concurring  fault  of  a  fellow- 
servant  the  accident  complained  of  would 
not  have  occurred,  is  not  available  to  de- 
feat the  action.  McLellan  v.  Fuller  (Mass.) 
1917B-1.  (Annotated.) 

71.  An  instruction  in  an  action  against 
an  attorney  for  negligent  conduct  in  the 
trial  of  an  action  brought  by  him  for 
plaintiff  against  a  third  person,  as  to  the 
attorney's  neglect  to  anticipate  and  pro- 
vide against  the  death  of  a  third  person, 
is  properly  refused,  where  the  attorney, 
though  without  fault  in  that  regard,  might 
have  been  lacking  in  due  care  in  other 
respects.  McLellan  v.  Fuller  (Mass.) 
I917B-1.  (Annotated.; 

72.  Failure  to  Produce  Available  Wit- 
ness. Where,  in  tort  for  damages  against 
an  attorney  for  negligent  conduct  in  the 
trial  of  an  action  brought  by  plaintiff, 
through  the  attorney,  against  his  employer, 
the  jury  could  find  that  there  were  avail- 
able witnesses  who  would  testify  to  facts 
to  justify  a  finding  that  plaintiff  was  in 
the  exercise  of  due  care,  and  that  the  em- 
ployer was  negligent,  and  that  the  attor- 
ney failed  to  use  the  witnesses,  the  right 
to  recover  is  for  the  jury,  and  a  charge 
that  there  is  not  sufficient  evidence  to  jus- 
tify a  verdict  for  plaintiff  is  properly  re- 
fused. McLellan  v.  Fuller  (Mnss.)  1917B- 
1.  (Annotated.) 

7 


73.  In  a  suit  against  an  attorney  for 
negligence,  the  test  of  the  sufficiency  of 
the  declaration  is  whether  its  allegations, 
if  proved,  would  make  out  a  case,  and,  if 
proof  of  the  facts  alleged  as  to  the  negli- 
gence and  resulting  loss  would  establish 
a  cause  of  action,  the  declaration  is  not 
demurrable.  Maryland  Casualty  Company 
V.  Price  (Fed.)  1917B-50. 

(Annotated.) 

74.  Liability  for  Negligence.  In  a  suit 
against  an  attorney  for  negligence,  plain- 
tiff must  prove  the  attorney's  employ- 
ment, his  neglect  of  a  reasonable  duty, 
and  that  such  negligence  resulted  in  and 
was  the  proximate  cause  of  loss  to  the 
client.  Maryland  Casualty  Company  v. 
Price  (Fed.)  1917B-50.  (Annotated.) 

Notes. 

Liability  of  attorney  for  negligence  or 
breach  of  duty.     I917B-3. 

Personal  liability  of  attorney  for  inci- 
dental expenses  of  action.     1917B-520. 

ATTRACTIVE  NUISANCES. 
See  Negligence,  23-28. 

AUCTIONS  AND  AUCTIONEERS. 

1.  In  General,  97. 

2.  Authority  of  Auctioneer,  97. 

3.  Conduct  of  Sale,  98. 

1.     IN  GENERAL. 

1.  Validity  of  Regulations,  An  ordi- 
nance of  the  city  of  Detroit  prohibited  the 
holding  of  public  auctions  except  between 
the  hours  of  8  A.  M.  and  6  P.  M.,  and 
also  prohibited  the  use  of  musical  instru- 
ments or  criers  to  attract  the  attention  of 
the  public  thereto.  Defendant,  being  con- 
victed of  a  violation  of  such  ordinance, 
brought  certiorari  to  determine  its  consti- 
tutionality. It  is  held  that  the  prohibition 
in  the  ordinance  being  neither  necessary 
nor  proper  for  the  public  welfare  or  pro- 
tection of  society,  it  was  a  discrimination 
in  restraint  of  trade  and  an  unreasonable 
regulation.  People  v,  Gibba  (Mich.) 
1&17B-830. 


2.     AUTHORITY  OP  AUCTIONEER. 

2.  Acting     as     Employee     of    Another. 

Where  an  auctioneer  did  not  bona  fide  be- 
come the  employee  of  another  to  conduct 
auction  sales,  but  the  arrangement  was 
merely  a  subterfuge  between  the  auc- 
tioneer and  such  other  to  evade  payment 
of  the  auctioneer's  license  tax  as  such,  the 
arrangement  is  no  defense,  in  a  city's  ac- 
tion to  recover  the  statutory  penalty  for 
carrying  on  the  business  without  a  license. 
Kimmins  v.  Montrose   (Colo.)    1917A-407. 


98 


DIGEST. 

19160— 1918B. 


3.  Doing  Business  Without  License.  lu 
a  city's  action  against  an  auctioneer  to 
recover  a  penalty  for  conducting  his  busi- 
ness without  a  license,  the  defense  that 
the  business  was  another's,  who  had  a 
license,  for  whom  defendant  acted  as 
agent,  was  a  plea  in  the  nature  of  confes- 
sion and  avoidance,  which  the  burden  was 
on  him  to  establish  by  a  preponderance  of 
the  evidence.  Kimmins  v.  Montrose 
(Colo.)  1917A-407. 

3.     CONDUCT  OP  SALE. 

4.  By-bidding  —  Effect  on  Sale.  Where 
an  owner  does  not,  at  a  sale  by  auction, 
announce  his  intention  to  bid,  by-bidding 
is  illegal,  and  he  cannot  hold  a  purchaser 
where  the  price  has  been  run  up  by  means 
thereof,  and  this  rule  is  adopted  by  Sale 
of  Goods  Act  (Gen.  Laws  R.  L  1909, 
c.  262),  §  5.  Freeman  v.  Poole  (E.  L) 
1918A-841. 

5.  Rights  of  Highest  Bona  Fide  Bidder. 
A  bid  at  auction  for  the  sale  of  real  es- 
tate, without  notice  of  reservation,  is  but 
an  offer  to  purchase  and  not  an  acceptance 
of  an  offer,  and  where  a  bid  is  not  ac- 
cepted, there  is  no  contract,  and  the  knock- 
ing down  of  the  property  on  a  higher  bid 
made  by  an  agent  of  the  owner  must  at 
least  be  given  the  effect  of  a  withdrawal 
of  the  property  from  sale.  Freeman  v. 
Poole  (R.  L)  1918A-841.  (Annotated.) 

Note. 

Right  of  action  by  highest  bidder  at 
auction  sale  for  refusal  of  auctioneer  to 
knock  down  property  to  him.     1918A-850. 

AUDITOR'S  REPORT. 
Review,  see  Appeal  and  Error,  104. 

AUTOMOBILE  INSURANCE. 
See  Insurance,  45-49. 

AUTOMOBILES. 

1.  Regulation  of  Motor  Vehicles,  98. 

a.  In  General,  98. 

b.  Licenses,  99. 

2.  Mutual  Rights  and  Duties  on  Highways, 

100. 

a.  In  General,  100. 

b.  Care  Required  of  Operator,  100. 

c.  Care   Required  of  Pedestrians.  100. 

d.  Responsibility  of  Owner  for  Driver's 

Acts,   101. 

e.  Effect  of  Non-registration,  101. 

f.  Liability  to  Guests,  101. 

g.  Imputed  Negligence,  102. 
h.  Actions.    102. 

(1)  Pleading.  102. 

(2)  Evidence,   102. 

(3)  Questions  for  .Tury,  103. 

(4)  Instructions,   103. 

8.  Injuries  to  Motor  Vehicles  or  Occupants, 

104. 
4.  Liabilitv  of  Manufacturer  for  Iniuries, 

104. 
6.  Crimes  Incidental  to  Operation,  105. 


Title  to  fittings,  see  Accession,  1. 

Indemnity  insurance,  see  Accident  Insur- 
ance, 2*4.  29. 

Prbof  of  sales  agency,  see  Agency,  21,  24. 

Ford  automobile  a  "motor  vehicle,"  see 
Homicide,  5. 

Involuntary  manslaughter,  accident,  see 
Homicide,  5-7. 

Automobile  insurance,  see  Insurance,  45- 
49. 

Action  against  owner  for  driver's  negli- 
gence, see  Master  and  Servant,  369. 

Unusual  accident  as  evidence  of  negli- 
gence, see  Negligence,  40. 

Running  to  catch  runaway  truck  as  negli- 
gence, see  Negligence,  54. 

Jitneys  as  nuisances,  see  Nuisances,  13. 

Garage  as  a  nuisance,  see  Nuisances,  17. 

Speed  laws,  see  Streets  and  Highways,  16. 

Law  of  the  road,  see  Streets  and  High- 
ways, 17,  18. 


1.     REGULATION    OF    ^OTOR    VEHI- 
CLES. 

a.  In  General. 

1.  Municipal  Regulation  of  Speed.  Ore. 
li.  O.  L.,  §  3206  et  seq.,  being  a  general  law 
for  the  organization  of  cities  and  towns, 
establishing  the  procedure  therefor  and  in- 
vesting enumerated  civil  and  criminal 
powers  in  such  municipalities,  and  Laws 
1913,  p.  541,  amendatory  thereof,  does  not 
affect  the  applicability  of  the  Motor 
Vehicle  Law  (Laws  1911,  pp.  265-278)  to 
the  city  of  Portland,  which  at  the  enact- 
ment of  the  latter  act  was  acting  under  a 
special  charter.  Kalich  v.  Knapp  (Ore.) 
1916E-1051.  (Annotated.) 

2.  Portland  City  Charter  (Sp.  Laws 
Ore.  1903,  pp.  3-172),  §§  72,  73,  gives  the 
council  all  legislative  powers  and  author- 
ity of  the  city  of  Portland,  and  gives 
power  to  exercise  within  the  limits  of  the 
city  the  powers  commonly  known  as  police 
powers  to  the  same  extent  as  the  state 
could  exercise  that  power,  to  regulate  and 
control  the  use  of  the  streets  for  vehicles 
of  all  descriptions,  and  to  control  and 
limit  traflBc  on  the  streets,  avenues,  and 
elsewhere.  Pursuant  thereto,  the  city 
adopted  ordinances  in  1904  and  1906,  regu- 
lating the  speed  of  automobiles  on  streets 
of  the  city.  The  Motor  Vehicle  Law 
(Laws  1911,  pp.  265-278)  regulates  the 
use  of  motor  vehicles  throughout  the  state. 
Const,  art.  11,  §  2,  provides  that  corpora- 
tions may  be  formed  under  general  laws, 
but  shall  not  be  created  by  the  legislative 
assembly  by  special  laws,  and  that  the 
legislative  assembly  shall  not  enact, 
amend,  or  repeal  any  charter  or  act  of  in- 
corporation for  any  municipality.  Held, 
that  the  Motor  Vehicle  Law  is  unconstitu- 
tional in  80  far  as  it  attempts  to  regulate 
the  speed  of  automobiles  in  Portland;  such 
regulation  being  an  amendment  of  the  city 
charter.  Kalich  v.  Kuapp  (Ore.)  1916E- 
1051.  (Annotated.) 


AUTOMOBILES. 


99 


3.  Ore.  Const.,  art.  11,  §  2,  as  amended, 
declaring  that  corporations  may  be  formed 
under  general  laws,  and  that  the  legisla- 
ture shall  not  enact,  amend,  or  repeal  any 
charter  of  any  municipality,  but  that  the 
legal  voters  of  every  city  and  town  are 
granted  power  to  enact  and  amend  their 
municipal  charter  subject  to  the  constitu- 
tion and  criminal  laws  of  the  state,  and 
article  4,  §  la,  reserving  the  initiative  and 
referendum  powers  to  the  legal  voters  of 
every  municipality  as  to  all  local,  special, 
and  municipal  legislation,  insure  to  each 
municipality  a  full  measure  of  home  rule, 
and  place  beyond  the  power  of  the  legisla- 
ture to  make  any  change  in  local,  special, 
and  municipal  legislation  and  the  legisla- 
ture may  not  amend  any  municipal  charter 
directly  or  indirectly  where  the  amend- 
ment is  the  subject  of  municipal  concern 
and  regula'tion,  and  Motor  Vehicle  Law 
(Laws  1911,  p.  365),  regulating  the  use  of 
motor  vehicles  throughout  the  state,  is  un- 
constitutional in  so  far  as  it  attempts  to 
regulate  the  speed  of  automobiles  in 
municipalities,  though  the  act  contains  a 
criminal  provision,  which  is  not  a  crim- 
inal law  of  the  state  within  the  constitu- 
tion.    Kalich  V.  Knapp  (Ore.)  1916E-1051. 

(Annotated.) 

4.  Motorcycles.  A  regulation  of  the 
lights  on  "motor  cars,"  excepting  from  its 
provisions  bicycles  and  tricycles,  is  appli- 
cable to  motorcycles.  Webster  v.  Terry 
(Eng.)  1917A-226.  (Annotated.) 

5.  Applicability  to  Sled.  A  sled  is  not 
a  "motor  vehicle,"  as  that  term  is  used  in 
the  statute  referred  to.  Terrill  v.  Virginia 
Brewing  Co.  (Minn.)  1917C-453. 

Notes. 

Municipal  regulation  of  automobiles 
with  respect  to  equipment,  use  of  streets, 
or  the  like.     1916E-1047. 

Motorcycles.     1917A-218. 

Constitutionality  of  statutes  and  ordi- 
nances regulating  speed  of  vehicles  in 
streets  and  highways.     1916E'-1067. 

b.     Licenses. 

6.  Violation  of  License  Law.  Where 
defendant,  a  resident  of  Hamilton  county, 
while  driving  his  automobile  in  Hardin 
county,  was  arrested  for  operating  the 
same  without  having  number  plates  for 
the  current  year  displayed,  and  it  did  not 
appear  that  he  had  ever  operated  the 
machine  in  Hardin  county  prior  to  that 
date,  the  fact  that  he  may  have  operated 
it  in  Hamilton  county  while  he  was  in  de- 
fault will  not  justify  his  conviction  in 
Hardin  county,  under  an  information 
charging  the  commission  of  the  offense  in 
that  county.  State  v.  Gish  (Iowa)  1917B- 
135. 

7.  Validity.  A  reasonable  fee  may  be 
imposed  bj'  statute  as  an  incident  to  the 


exercise  of  the  state's  police  power  to 
regulate  the  use  of  highways  by  motor 
vehicles.  State  v.  Gish  (Iowa)  1917B- 
135. 

8.  Official  Delay  in  Fumisliing  Plates. 
Iowa  Acts  34th  Gen.  Assem.,  e.  72,  regulat- 
ing automobiles,  by  section  3  requires  the 
owner  to  register  his  machine  with  the 
secretary  of  state;  and  section  6  declares 
that  on  the  filing  of  an  application,  and 
the  payment  of  the  fee,  the  secretary  shall 
assign  a  number  and  without  expense  to 
the  applicant  issue  and  deliver,  or  forward 
by  mail  or  express  to  such  owner,  a  certifi- 
cate of  registration,  and  two  number 
plates.  Section  12  declares  that  no  person 
shall  operate  a  motor  vehicle  on  the  high- 
ways of  the  state  after  July  4,  1911,  unless 
the  vehicle  shall  have  a  distinctive  num- 
ber assigned  to  it  by  the  secretary  of  state, 
and  two  number  plates  with  numbers  cor- 
responding to  those  of  the  certificate  of 
registration,  conspicuously  displayed,  front 
and  rear,  section  22  declaring  that  a  viola- 
tion of  sections  3-15,  inclusive,  of  the  act 
shall  constitute  a  misdemeanor  punishable 
by  a  fine.  Held,  that  the  gist  of  the  offense 
was  not  the  operation  of  a  motor  vehicle, 
but  rather  the  failure  to  attach  and  dis- 
play the  number  plates  while  bo  operating; 
and  hence,  where  defendant  had  property 
re-registered  his  machine  for  the  year  1913, 
with  the  secretary  of  state,  been  assigned 
a  number,  and  had  paid  the  necessary 
license  fee.  but  because  of  inability  of  the 
secretary  to  furnish  plates,  none  had  been 
received  by  defendant,  his  operation  of 
his  automobile  with  the  plates  for  the  pre- 
vious year  attached,  by  which  it  was 
properly  identifiable  until  those  for  the 
year  1913  could  be  obtained,  did  not  con- 
stitute a  violation  of  the  statute.  State 
v.  Gish  (Iowa)   1917B-135. 

(Annotated.) 

9.  Necessity  of  Uniformity.  Miss.  Laws 
1914,  c.  120,  §  2,  imposing  a  tax  for  the 
privilege  of  driving  motor  vehicles  and 
motorcycles,  is  a  pure  privilege  tax,  and 
hence  is  not  bad  because  there  is  a  lack 
of  uniformity  and  equality  according  to 
the  value  of  the  vehicles;  the  provisions 
for  equality  and  uniformity  applying  only 
to  ad  valorem  taxes.  State  v.  Lawrence 
(Miss.)   1917E-322. 

10.  Effect  of  Excepting  Nonresidents. 
That  a  nonresident,  who  has  complied  with 
the  laws  of  his  state  as  to  registration, 
may  drive  a  motor  vehicle  within  the 
state  for  sixty  days  without  paying  the 
license  tax  or  registration  fee,  does  not 
render  Laws  Miss.  1914,  e.  120,  §  2,  impos- 
ing upon  those  driving  motor  vehicles  and 
motorcycles  a  tax  for  the  privilege  of 
using  the  road,  invalid  as  discriminatory 
lesislation.  State  v.  Lawrence  (Miss.) 
1917E-322.  (Annotated.) 

11.  Tax  for  Using  Roads.  Miss.  Laws 
1914,     c.     120,  §  2,    imposing    upon    motor 


100 


DIGEST. 

19ieC— 1918B. 


vehicles  and  motorcycles  a  tax  for  the 
privilege  of  using  the  public  roads,  is  not 
bad  as  adopting  an  unreasonable  classifica- 
tion; the  classification  being  a  natural  one. 
State  V.  Lawrence  (Miss.)  1917E-322. 

12.  Validity.  The  legislature,  having 
full  power  over  public  roads,  can  provide 
means  by  which  they  are  to  be  improved, 
and  Laws  Miss.  1914,  c.  120,  §  2,  imposing 
a  privilege  tax  upon  motor  vehicles  and 
motorcycles  for  the  use  of  public  roads, 
and  directing  payment  thereof  into  the 
road  fund,  is  valid.  State  v.  Lawrence 
(Miss.)   1917E-322. 

13.  Motorcycles.  One  who  rides  a  motor- 
cycle without  first  obtaining  the  license  re- 
quired by  Rem.  &  Bal.  Wash.  Code, 
§§  5562-5566,  is  not  guilty  of  negligence 
preventing  a  recovery  for  injuries  sus- 
tained in  a  collision  with  an  automobile 
negligently  operated;  there  being  no 
causal  relation  between  the  failure  to  ob- 
tain a  license  and  the  accident.  Switzer 
V.  Sherwood  (Wash.)  1917A-216. 

(Annotated.) 

14.  Motorcycles.  Chapter  179,  Laws 
Idaho  1913,  p.  558,  is  a  law  intended,  among 
other  things,  to  require  those  who  operate 
motorcycles  upon  the  public  highways  to 
cause  such  vehicles  to  be  registered  and 
to  pay  therefor  a  license  or  registration 
fee,  which  is  in  excess  of  the  amount 
necessary  to  be  raised  for  the  purpose  of 
policing  such  vehicles  upon  the  public 
highways,  and  as  such  is  valid.  Matter  of 
Kesaler  (Idaho)    1917A-228. 

(Annotated.) 

Note. 
Validity    of    inclusion    or    exclusion    of 
nonresidents  in  statute  regulating  use  of 
vehicles.    1917E-324. 

2.    MUTUAL  RIGHTS  AND  DUTIES  ON 
HIGHWAYS. 

a.     In  General. 

15.  Keeping  to  Eight  Side  of  Street. 
Where  a  municipal  ordinance  provided 
that  vehicles,  except  when  passing  other 
vehicles  ahead,  should  be  kept  as  near  the 
right-hand  curb  as  possible,  an  automo- 
bilist  should  keep  his  machine  on  the  right- 
hand  side  of  the  street,  and,  where  he 
uses  the  left-hand  side,  his  rights  are  in- 
ferior to  those  of  travelers  proceeding  in 
the  opposite  direction.  Hiscock  v.  Phin- 
ney  (Wash.)   1916E-1044. 

(Annotated.) 

Note. 
Rights    and    duties    of    persons    driving 
automobiles  in  highways.     1916E-661. 

b.     Care  Required  of  Operator. 

16.  Where  a  wagon  or  other  vehicle  ob- 
scures or  obstructs  his   view  of  a  street 


crossing,  when  the  presence  thereon  of 
others  may  reasonably  be  anticipated,  ex- 
tra vigilance  and  caution  are  required  of 
the  auto  operator,  in  order  to  prevent  in- 
jury to  persons  on  such  crossing.  Deputy 
V.  Kimmell   (W.  Va.)   1916E-656. 

(Annotated.) 

17.  The  vigilance  and  care  required  of 
the  operator  of  an  automobile  vary  in  re- 
spect of  persons  of  different  ages  or  physi- 
cal conditions.  He  must  increase  his  exer- 
tions in  order  to  avoid  danger  to  children, 
whom  he  may  see,  or,  by  the  exercise  of 
reasonable  care,  should  see,  on  or  near  the 
highway.  More  than  ordinary  care  is  re- 
quired in  such  cases.  Deputy  v.  Kimmell 
(W.  Va.)   1916E-656.  (Annotated.) 

18.  Because  of  the  character  of  the 
vehicle  and  the  unusual  dangers  incident 
to  its  use,  a  greater  degree  of  care  is  re- 
quired of  the  operator  of  an  automobile, 
while  on  the  public  highway,  and  espe- 
cially at  street  crossings,  than  is  required 
of  persons  using  the  ordinary  or  less  dan- 
gerous instruments  of  travel.  He  should 
exercise  such  care  in  respect  to  speed, 
warnings  of  approach  and  the  management 
of  the  car  as  will  enable  him  to  anticipate 
and  avoid  collisions  which  the  nature  of 
the  machine  and  the  locality  may  reason- 
ably suggest  likely  to  occur  in  the  absence 
of  such  precautions.  Deputy  v.  Kimmell 
(W.  Va.)   1916E-656.  (Annotated.) 

19.  A  person  using  an  automobile  on  a 
public  highway  owes  the  double  duty  to 
avoid  danger  to  himself  by  another  having 
an  equal  right  to  such  use,  and  the  inflic- 
tion of  injury  upon  such  other  person. 
Both  mast  exercise  that  degree  of  care 
which  a  reasonably  prudent  man  would 
exercise  under  the  same  circumstances. 
Deputy  V.  Kimmell  (W.  Va.)  1916E-656. 

(Annotated.) 

20.  Iieaving  Motor  Truck  Unattended  in 
Street.  Automobiles  and  motor  trucks, 
being  lawful  means  of  conveyance,  may  be 
u.sed  on  the  public  streets  and  highways, 
and  it  is  not  negligence  per  se  to  leave  a 
motor  truck  unattended  in  a  public  street, 
although  it  is  the  duty  of  the  driver  to 
exercise  the  care  of  a  person  of  ordinary 
prudence  under  the  circumstances.  Ameri- 
can Express  Co.  v.  Terry  (Md.)  1917C-650. 

21.  Duty  in  Approaching  Crossing. 
Where  one  approaches  a  crowded  crossing 
in  an  automobile,  if  it  is  imprudent  or 
dangerous  to  use  the  crossing  at  the  time, 
ordinary  care  requires  the  stopping  of  the 
car  or  seeking  another  crossing.  Crawford 
V.  McElhinney  (Iowa)  1917E-221. 

c.     Care  Required  of  Pedestrians. 

22.  Rights  and  Duties  as  to  Pedestrian. 

The  rights  of  pedestrians  and  drivers  of 
automobiles,  when  using  streets  or  other 
public  highways,  are  mutual,  equal  and  co- 


AUTOMOBILES. 


aoi 


ordinate,  except  as  varied  by  the  nature 
of  the  appliance  or  mode  of  travel  em- 
ployed; and  as  long  as  each  observes  the 
reciprocal  rights  of  the  other  neither  will 
be  liable  for  any  injury  his  use  may  cause. 
Deputy  V.  Kimmell  (W.  Va.)  1916E-656. 

(Annotated.) 

d.     Eesponsibility   of  Owner   for  Driver's 
Acts. 

23.  Oliauffeur  Using  Car  Without  Au- 
thority. Where  a  chauffeur  was  directed 
by  the  owner  of  an  automobile  to  take  it 
from  the  garage  at  a  stated  time  and  call 
at  a  house,  but  he  started  nearly  an  hour 
earlier,  and  in  making  a  detour  on  an  er- 
rand of  his  own  an  accident  occurred  at  a 
point  twice  as  far  from,  and  beyond,  the 
place  to  which  he  was  directed  to  go  as 
to  the  garage,  having  made  a  side  trip  of 
several  blocks  from  the  main  trip  of  less 
ithan  one  block,  he  was  not  in  his  master's 

Ifemploy  at  the  time  of  the  accident,  and 
gjiis  master  was  not  liable;  since  while  a 
jacre  disregard  of  instructions  or  deviation 
^from  the  line  of  his  duty  by  servant  does 
^ot  relieve  his  master  of  responsibility,  if 
)the  servant  for  purj>oses  of  his  own  departs 
%o  far  from  the  line  of  his  duty  that  for 
\he  time  being  his  acts  constitute  an  aban- 
iflonment  of  his  service,  the  master  is  not 
^liable.  Eakins  Administrator  v.  Anderson 
VKy.)   1917D-1003.  (Annotated.) 

24.  Liability  of  Owner  for  Negligence  of 
^usband.  Where  an  automobile  owned  by 
liusband  and  wife  as  a  community  and 
used  for  the  community  was  negligently 
Operated  by  their  daughter  while  the  hus- 
Tjand  was  riding  therein,  a  judgment  is 
Jproperly  rendered  against  husband  and 
Hvife  for  the  damages  awarded,  though  the 
jwife    was    not    present    at    the    accident. 

^witzer  v.  Sherwood   (Wash.)    1917A-216. 

*^  25.  Car  Driven  by  Wife.  Under  Iowa 
Code,  §  3156,  providing  that,  for  civil  in- 
juries committed  by  a  married  woman, 
damages  may  be  recovered  from  her  alone, 
and  her  husband  shall  not  be  liable  there- 
for, except  where  he  would  be  jointly  lia- 
ble with  her  if  the  marriage  did  not  exist, 
where  defendant's  wife,  driving  his  auto- 
mobile, which  was  her  invariable  custom, 
he  never  having  driven  it,  upon  a  pleas- 
ure trip  to  which  he  had  invited  two 
guests,  struck  and  killed  a  child,  defend- 
ant husband  is  liable  for  his  wife's  negli- 
gence; she  being  engaged  as  his  servant  in 
a  common  enterprise  with  him.  Crawford 
V.  McElhinney  (Iowa)   1917E-221. 

(Annotated.) 

26.  Imputed  Negligence.  Although  the 
negligence  of  the  driver  of  an  automobile 
cannot  be  imputed  to  one  merely  riding 
with  him,  yet  where  the  driver  is  in  an 
enterprise  of  anj'  kind  for  the  benefit  of 
the  party  riding  with  him,  is  his  employee 
or  under  his  control,  or  where  the  auto- 


mobile is  under  his  control  and  direction 
and  owned  by  him,  and  he  has  a  right  to 
control  and  direct  it,  whether  he  assumes 
such  right  or  not,  he  is  held  for  th6  negli- 
gence of  the  driver.  Crawford  v.  Mc- 
Elhinney (Iowa)  1917E-221. 

Notes. 
Liability  of  owner  of  automobile  for  act 
of  driver  other  than  his  servant  or  child. 
1917E-228.  .  > 

Liability  of  owner  of  automobile  for 
acts  of  his  chauffeur  or  agent.  1917D- 
lOOL 

e.     Effect  of  Non-registration. 

27.  Where  an  automobile  is  on  the  high- 
way unregistered  by  defendant,  its  owner, 
or  a  dealer,  as  required  by  Mass.  St.  1909, 
c.  534,  the  owner  as  a  wrongdoer  and 
creator  of  a  nuisance  is  liable  for  all  direct 
injury  resulting  from  his  unlawful  act, 
though  the  resulting  injury  could  not  have 
been  contemplated  as  the  probable  result 
of  the  act  dono,  and  so  is  not  the  result 
of  an  act  of  negligence.  Koonovsky  v. 
Quellette  (Mass.)  1918B-1146. 

(Annotated.) 

28.  Injury  by  Unregistered  Automobile. 
If  an  automobile  is  unregistered  by  the 
owner  or  dealer,  as  required  by  Mass.  St. 
1909,  c.  534,  its  presence  on  the  highway 
is  unlawful,  and  against  the  right  of  all 
other  persons  lawfully  using  the  highway; 
it  is  outside  the  pale  of  travelers,  and  an 
outlaw.  Koonovsky  v.  Quellette  (Mass.) 
1918B-1146.  (Annotated.) 

f.    Liability  to  Guests. 

29.  Since  to  charge  a  gratuitous  bailee 
gross  negligence  must  be  shown,  and  since 
the  measure  of  liability  of  one  who  under- 
takes to  carry  another  gratis  is  the  same 
as  that  of  a  gratuitous  bailee,  where  a  per- 
son invites  another  to  ride  in  his  auto- 
mobile, in  doing  which  the  guest  is  injured, 
she  cannot  recover,  in  the  absence  of 
showing  of  gross  negligence.  Massaletti 
V.  Fitzroy  (Mass.)  1918B-1088. 

(Annotated.) 

30.  Injury  to  Guest.  Where  a  person  in- 
vites another  to  ride  gratis  in  his  auto- 
mobile, there  is  a  gratuitous  undertaking, 
not  governed  by  rules  as  to  liability  of 
licensors.  Massaletti  v.  Fitzroy  (Mass.) 
1918B-1088.  (Annotated.) 

31.  The  rule  that  to  charge  a  person, 
who  invites  another  to  ride  in  his  auto- 
mobile, in  doing  which  the  guest  is  in- 
jured, with  pliability,  gross  negligence  must 
be  shown,  does  not  mean  that  the  same 
negligence  must  appear  in  every  case  as 
would  charge  a  gratuitous  bailee  with  lia- 
bility for  loss  of  the  goods,  but  each  case 
must  be  determined  upon  its  own  facts. 
Massaletti  v.  Fitzroy  (Mass.)  1918B-1088. 

(Annotated.) 


5'/;)vWu/ 


C-. 


w 


h^ 


102 


DIGEST. 

1916C— 1918B. 


g.     Imputed  Negligence. 

32.  Imputation  of  Driver's  Negligence. 
That  the  wife  owned  an  automobile  which 
she  sent  to  another  city  for  her  husband  to 
use,  and  on  her  casual  visit  to  the  city, 
while  riding  with  him  in  the  automobile, 
it  was  struck  by  a  street  car,  at  a  crossing, 
while  she  was  engaged  in  conversation 
with  another  passenger  and  exercising  no 
control  over  its  operation,  does  not  render 
negligence  of  the  husband,  if  any,  imputa- 
ble to  her,  since  the  husband  was  in  effect 
her  bailee.  Virginia  E.,  etc.  Co.  v.  Gor- 
sueh  (Va.)  1918B-838.  (Annotated.) 

33.  The  mere  fact  that  the  mother,  who 
was  sitting  by  the  side  of  her  son  and  as 
Ms  guest,  did  not  protest  against  his  ac- 
tion when  he  drove  his  automobile  at  an 
excessive  rate  of  speed  for  the  distance  of 
a  little  more  than  a  city  block,  at  the  end 
of  which  an  injury  was  inflicted,  cannot 
be  held  as  culpable  negligence  on  her  part 
which  would  make  her  liable  for  his  negli- 
gence and  the  resulting  injury.  Anthony 
V.   Kiefner    (Kan.)    1916E-264. 

(Annotated.) 

84.  If  the  journey  had  been  undertaken 
as  a  joint  enterprise  to  accomplish  a  com- 
mon purpose  for  the  benefit  of  both,  one 
of  them  might  have  been  regarded  as  the 
agent  of  the  other,  and  she  might  have 
been  responsible  for  injuries  inflicted  by 
the  negligent  operation  of  the  automobile, 
but  it  is  held  that,  her  mere  request  of 
her  son  that  some  time  during  the  ride  he 
should  call  at  a  certain  house  and  obtain 
a  cake  that  a  friend  had  promised  to  make 
for  her  did  not  make  the  trip  a  joint  enter- 
prise nor  make  her  responsible  for  the 
negligence  of  her  son  nor  for  injuries  to 
which  she  did  not  personally  contribute. 
Anthony  v.  Kiefner  (Kan.)  1916E-264. 

(Annotated.) 

35.  Imputation  to  Occupant.  A  mother 
accepted  the  invitation  of  her  son  to  ride 
in  his  automobile  merely  as  his  guest  and 
as  she  had  no  control  and  took  no  part 
in  the  management  of  the  automobile  she 
is » not  responsible  for  injuries  inflicted 
upon  another  by  the  negligence  of  her  son 
in  driving  the  automobile.  Anthony  v. 
Kiefner  (Kan.)   1916E-264. 

(Annotated.) 
Note. 
Negligence    of    driver    as    imputable    to 
occupant  of  automobile.     1916E-268. 

h.     Actions. 
(1)     Pleading.    . 

36.  Liability  of  Owner  for  Negligence  of 
Son.  A  petition  alleged,  in  brief,  as  fol- 
lows: A  woman  owned  an  automobile,  and 
had  a  minor  son.  She  allowed  her  son  to 
run  and  operate  the  car.  On  a  day  named 
the  minor  son  was  the  chauffeur  in  charge 


of  the  car,  operating  it  for  his  mother, 
the  owner,  and  running  it  on  the  public 
road  with  the  knowledge  and  consent  of 
his  mother.  The  boy,  "who  was  the  agent 
of  the  said  [owner],  as  hereinbefore  al- 
leged, driving  said  car,"  negligently  caused 
it  to  collide  with  a  buggy  in  which  the 
plaintiff  was  riding,  causing  injury  to  him 
and  to  the  buggy  and  harness.  The  injury 
was  caused  by  the  carelessness  and  negli- 
gence and  by  acts  and  omissions  to  act  on 
the  part  of  the  mother  and  on  the  part  of 
the  son,  "her  agent  and  chauffeur  in  charge 
of  said  oar."  By  amendment  the  plaintiff 
added  the  following:  "Defendant  kept 
said  automobile  for  the  comfort  and  pleas- 
ure of  her  family,  including  Jim  Russell 
[the  son],  a  member  of  said  family.  He 
was  driving  said  automobile  at  the  time  'of 
the  injury  herein  complained  of,  and  was 
driving  the  same  for  the  comfort  and 
pleasure  of  himself  and  friends,  who  were 
riding  with  him,  by  and  with  the  consent 
of  the  owner  of  said  car,  the  defendant." 
It  is  held  that  such  petition  was  not  sub- 
ject to  general  demurrer.  Griflin  v.  Russell 
(Ga.)  I917D-994.  (Annotated.) 

(2)     Evidence. 

37.  Registration — ^Use  by  Dealer.    In  an 

action  for  injuries  when  struck  by  an  auto- 
mobile, the  evidence  is  held  to  be  sufficient 
to  justify  a  finding  that  the  person,  who, 
according  to  defendant's  evidence,  had 
charge  of  the  machine  at  the  time  of  the 
accident,  was  a  dealer  in  automobiles. 
Koonovsky  v.  Quellette  (Mass.)  1918B- 
1146. 

38.  In  an  action  for  injuries  when  struck 
by  an  automobile,  the  evidence  is  hell  to 
be  sufficient  to  justify  a  finding  that  a 
dealer,  a  third  person,  was  in  control  of 
the  automobile  for  the  purpose  of  sale,  for 
renting,  or  for  use.  Koonovsky  v.  Quel- 
lette (Mass.)  1918B-1146. 

39.  Sufficiency  of  Evidence.  In  an  ac- 
tion for  the  death  of  a  motorcyclist,  caused 
by  a  collision  with  an  automobile  operated 
liy  defendant's  son,  evidence  examined  and 
held  to  be  sufficient  to  support  a  finding 
by  the  jury  that  the  car  was  owned  by 
defendant  and  that  the  eon  at  that  time 
was  engaged  in  the  father's  business,  so 
as  to  authorize  a  recoverv  under  the  in- 
structions given.  Ferris  v.  Sterling 
(N.  Y.)   1916D-1I61. 

40.  License  Number  as  Evidence  of 
Ownership.  The  prima  facie  case  that  de- 
fendant owned  an  automobile,  and  that 
his  son,  who  was  driving  it  when  he  col- 
lided with  a  motorcyclist,  was  engaged  in 
defendant's  service,  which  arises  from 
proof  that  the  license  was  in  defendant's 
name,  is  not  as  a  matter  of  law  rebutted 
by  testimony  of  defendant  and  his  son  that 
the  car  was  licensed  in  the  name  of  de- 
fendant   instead   of   that   of   his   sou,    the 


AUTOMOBILES. 


103 


true  owner,  by  mistake,  since  the  credi- 
bility of  that  testimony  is  for  the  jury. 
Ferris  v.  Sterling  (N.  Y.)  1916D-1161. 

(Annotated.) 

41.  Declarations  as  to  Ownership. 
Where  defendant  claimed  that  an  auto- 
mobile which  killed  plaintiff's  intestate  be- 
longed to  his  son,  who  was  in  charge 
thereof  at  the  time  of  the  accident,  and 
that  the  licensing  of  the  car  in  defend- 
ant's name  was  a  mistake,  and  plaintiff 
claimed  that  the  son's  ownership  of  the 
car  was  a  recent  fabrication  to  avoid  lia- 
bility by  defendant,  it  was  error  to  exclude 
letters  written  before  the  accident  by  the 
son  to  the  secretary  of  state  and  by  the 
secretary  to  the  son,  relating  to  the  mis- 
take in  the  license,  and  other  declarations 
showing  ownership  by  the  son,  since  they 
were  admissible  both  to  refute  the  claim 
of  recent  fabrication  and  as  explanation  of 
defendant's  acts  apparently  inconsistent 
with  his  position  at  the  trial.  Ferris  v. 
Sterling  (N.  Y.)  1916D-1161. 

42.  Speed  of  Automobile.  In  an  action 
for  the  wrongful  death  of  plaintiff's  son, 
killed  in  a  collision  with  defendant's  auto- 
mobile, a  nonexpert  witness  who  had  ob- 
served the  speed  of  automobiles,  but  had 
not  owned  or  operated  one,  may  testify  as 
to  his  opinion  of  the  speed  of  defendant's 
machine.  Hiscock  v.  Phinney  (Wash.) 
1916E-1044. 

43.  Opinion  Evidence.  While,  under 
Ore.  L.  0.  L.,  §  729,  subd.  8,  declaring  that 
judicial  notice  is  taken  of  the  laws  of 
nature,  the  court  may  reject  testimony 
irreconcilable  with  physical  facts,  con- 
clusively established,  or  instruct  that  it  be 
disregarded,  it  cannot  do  so  as  to  reason- 
able testimony,  and  so  where  there  is  a 
question  for  the  jury  whether  or  not  wit- 
ness' means  of  observation  were  such  as 
to  entitle  his  testimony,  as  to  what  was 
the  speed  of  an  automobile,  seen  at  some 
distance  and  for  a  comparatively  short 
space,  the  testimony  is  admissible.  Kelly 
V.  Weaver  (Ore.)  1917D-611. 

(Annotated.) 
Notes. 
Opinion   evidence  as   to  speed   of  auto- 
mobile.    1917D-613. 

License  number  on  motor  vehicle  as  evi- 
dence of  ownership  thereof.     1916D-1163. 

(3)     Questions  for  Jury. 

44.  In  an  action  by  one  hurt  in  attempt- 
ing to  change  the  course  of  a  motor  truck, 
which  had  started  from  the  side  of  the 
street  where  it  had  been  left  unattended, 
evidence  of  defendant's  negligence  is  held 
to  be  for  the  jurv.  American  Express  Co. 
v.  Terry  (Md.)  1917C-650. 

45.  Negligence  of  Driver.  In  an  action 
for  death  of  a  child,  struck  by  defend- 
ants' automobile,  the  question  of  the  negli-  • 


gence  of  the  driver  of  the  car  is  held  .to 
be  for  the  jury  on  the  evidence.  Crawford 
V.  McElhinney  (Iowa)  1917E-221. 

46.  Collision  With  Automobiles  —  Negli- 
gence for  Jury,  in  an  action  for  the 
wrongful  death  of  plaintiff's  son,  killed  in 
a  collision  with  defendant's  automobile, 
the  question  of  the  manner  of  the  collision 
held,  under  the  evidence,  for  the  jury. 
Hiscock  V.  Phinney  (Wash.)  1916E-1044. 

(4)     Instructions. 

47.  Negligence  in  Operation.  In  an  ac- 
tion for  the  death  of  a  person  struck  by 
an  automobile  truck,  an  instruction  that 
if,  as  the  driver  of  the  truck  approached 
the  place  where  deceased  was  injured, 
there  was  no  apparent  necessity  appearing 
for  him  to  stop  or  slacken  the  speed  of 
the  truck  in  order  to  prevent  injury  to  de- 
ceased, then  the  law  did  not  require  him 
to  stop  or  slacken  its  speed  is  erroneous, 
as  the  question  was  not  whether  there  was 
an  apparent  necessity  for  stopping  or 
slacking  the  speed  of  the  truck,  but 
whether  or  not  the  driver  was  operating 
the  truck  with  that  degree  of  care  and 
skill  which  an  ordinarily  prudent  and  skil- 
ful driver  would  have  exercised,  having 
due  regard  to  the  location,  circumstances, 
and  surroundings.  Devine  v.  Brunswick- 
Balke-Collender  Co.  (111.)  1917B-887. 

48.  In  an  action  for  the  wrongful  death 
of  plaintiff's  son,  killed  in  a  collision  with 
defendant's  automobile,  which  was  either 
in  the  center  or  on  the  left-hand  side  of 
the  street,  the  giving  of  an  instruction  that 
the  rights  of  defendant  and  the  son,  who 
was  riding  a  bicycle  in  the  opposite  direc- 
tion, were  the  same  is  prejudicial,  where 
an  ordinance  required  travelers  to  keep  as 
near  the  right-hand  curb  as  possible,  and 
the  jury,  after  receiving  the  instructions, 
returned,  requesting  further  instructions  as 
to  whether  the  defendant  had  the  right  to 
the  center  of  the  street.  Hiscock  v.  Phin- 
ney (Wash.)   1916E-1044.         (Annotated.) 

49.  Husband's  Liability  for  Wife's  Tort. 
In  as  action  for  death  of  a  child, 
when  struck  by  an  automobile  owned  by 
defendant  husband  and  driven  by  defend- 
ant wife,  where  the  court  instructed  that 
the  husband  was  liable  for  his  wife's  act 
if  at  the  time  of  the  matters  complained 
of  they  were  "engaged  in  a  common  enter- 
prise," the  charge  was  not  improper  be- 
cause the  quoted  expression  is  broad  and 
ordinarily  applies  to  a  business  transac- 
tion, or  because  of  a  like  use  of  the  words 
"common  purpose."  Crawford  v.  McEl- 
hinney (Iowa)   1917E-221. 

50.  Negligence  of  Driver.  Where  de- 
fendant, in  approaching  a  crowded  cross- 
ing in  an  automobile,  observes  the  position 
of  a  child  looking  away  from  the  car,  she 
is  not  justified  in  attempting  to  drive  the 


104 


DIGEST. 

1916C— 19183, 


car  across,  unless  a  prudent  person  would 
have  done  so  under  the  same  circum- 
stances, and  a  requested  instruction  is 
properly  modified  to  include  that  feature 
of  the  care  required,  Crawford  v.  McEl- 
hinney  (Iowa)  1917E-221. 

51.  Automobiles  —  Negligence — Duty  at 
Crossing.  In  an  action  for  death  of  a 
child,  struck  by  an  automobile  at  a 
crowded  city  crossing,  where  the  court 
charged  that  the  rights  of  travelers  upon 
streets  were  mutual  and  co-ordinate,  and 
that  an  automobile  driver  could  rightfully 
pass  over  the  crossing  with  his  automobile, 
although  it  was  crowded,  provided  he  exer- 
cised due  care  in  the  management  of  his 
car,  and  that  defendant  was  not  obliged 
to  seek  another  street,  if  by  due  care  he 
might  use  the  crossing  without  injury  to 
others,  but  that,  if  it  was  imprudent  or 
dangerous  to  use  the  crossing  at  the  time, 
ordinary  care  required  defendant  to  stop 
his  car  or  seek  another  crossing,  the  last 
clause  of  the  charge  is  proper,  as  stating 
the  reverse  side  of  a  matter  previously 
touched  upon  in  a  manner  somewhat  par- 
tial to  defendant.  Crawford  v.  McElhin- 
ney  (Iowa)  1917E-221. 

3.     INJUBIES    TO    MOTOR    VEHICLES 
OR  OCCUPANTS. 

52.  Where  a  motor  car  was  injured 
through  defendant's  fault,  the  owner  can- 
not, as  damages  for  loss  of  use,  recover  the 
rental  from  week  to  week  for  a  car,  but 
should  recover  only  the  aggregate  rental 
of  a  machine  for  a  similar  time.  Perkins 
v.  Brown  (Tenn.)  1917A-124. 

(Annotated.) 

53.  The  owner  of  a  motor  car,  held  for 
pleasure  driving  and  used  only  a  small 
portion  of  each  day,  cannot,  where  the  car 
was  injured  through  the  fault  of  defend- 
ant, recover  as  damages  for  the  loss  of 
the  use  of  the  machine  the  full  daily  rental 
value  of  machines  in  that  vicinity.  Per- 
kins V.  Brown    (Tenn.)   1917A-124. 

(Annotated.) 

54.  That  the  owner  of  a  pleasure  motor 
car  did  not  hire  another  car  while  it  was 
being  repaired  after  a  tortious  injury  by 
defendant  does  not  prevent  him  from  re- 
covering damages  for  loss  of  use  thereof. 
Perkins  v.  Brown  (Tenn.)  1917A-124. 

(Annotated.) 

55.  Compensation  for  injury  being  the 
rule,  the  owner  of  an  automobile  used  for 
pleasure  may  recover  substantial  damages 
for  loss  of  use  while  it  is  being  repaired 
after  a  tortious  injury  by  defendant. 
Perkins  v.  Brown  (Tenn.)   1917A-124. 

(Annotated.) 

56.  Value  of  Use  of  Damaged  Property. 

The  owner  of  a  vehicle  held  for  use  may 
recover  for  his  loss  of  use  by  reason  of  a 


tortious  injury  while  being  repaired,  in 
addition  to  the  cost  of  repairs.  Perkins 
v.  Brown   (Tenn.)    1917A-124. 

(Annotated.) 

56i.  The  owner  of  a  vehicle  held  for  use 
may  recover  for  his  loss  of  use  by  reason 
of  a  tortious  injury  while  being  repaired, 
in  addition  to  the  cost  of  repairs.  Perkins 
V.  Brown  (Tenn.)   1917A-124. 

(Annotated.) 

57.  Pleading.  A  complaint,  in  an  ac- 
tion for  injuries  in  a  collision  on  a 
street,  which  alleges  that  defendants  neg- 
ligently lost  control  of  the  automobile, 
and  drove  recklessly  over  a  part  of  the 
street  which  was  several  feet  from  the 
usual  traveled  way,  without  warning  of 
their  approach  and  without  slackening 
their  speed,  and  negligently  permitted  the 
automobile  to  collide  with  plaintiff,  and 
that  the  injury  sustained  by  him  was  due 
solely  to  the  negligence  of  defendants, 
pleads  the  ultimate  and  issuable  facts  as 
against  a  motion  requiring  plaintiff  to  spe- 
cify the  particulars  of  the  negligence  and 
in  what  respect  defendants  lost  control  of 
the  automobile  or  were  careless  in  operat- 
ing it.  Switzer  t.  Sherwood  (Wash.) 
1917A-210. 

Note, 
Liability  of  automobile  owner  to  chauf- 
feur for  personal  injuries.     1916E-1090. 

4.     LIABILITY     OF     MANUFACTURER 
FOR  INJURIES. 

58.  In  such  action  defendant  should  be 
allowed  to  show  what  inquiries  it  made  as 
to  the  S.  Co.  before  contracting  with  it 
for  wheels,  what  answers  it  received,  what 
reputation  that  company  had  as  manufac- 
turers, that  their  wheels  were  as  high 
priced,  if  not  higher  priced  than  any  in 
the  market,  and  that  no  prior  accident  had 
ever  been  heard  of.  Cadillac  Motor  Car 
Co.  V.  Johnson  (Fed.)  1917E-581. 

(Annotated.) 

59.  In  an  action  against  an  automobile 
manufacturer,  which  purchased  the  wheels 
of  its  automobiles  from  the  S.  Co.,  for  in- 
juries sustained  by  a  purchaser  from  a 
dealer,  due  to  a  defect  in  one  of  the 
wheels,  it  is  error  to  exclude  evidence  as 
to  the  practice  of  manufacturers  of  auto- 
mobiles and  of  the  trade  concerning  the 
examination  of  wheels,  even  on  the  theory, 
on  which  the  case  was  tried,  that  the 
manufacturer  was  liable  if  it  knew  or 
ought  to  have  discovered  that  the  wheel 
was  weak  and  insuflScient.  Cadillac  Motor 
Car  Co.  V.  Johnson  (Fed.)  1917E-581. 

(Annotated.) 

60.  Even  though  an  automobile  manu- 
facturer's prospectus  represented  that  it 
manufactured  the  wheels  of  its  automo- 
biles, when  in  fact  it  purchased  them  from 


AVENUE— AVOIDANCE. 


105 


a  manufacturer  of  wheels,  such  representa- 
tion is  not  available  to  a  purchaser  from 
a  dealer  in  automobiles,  who  had  no  con- 
tractual relation  with  the  automobile 
manufacturer,  in  an  action  by  him  for  in- 
juries. Cadillac  Motor  Car  Co.  v.  John- 
son (Fed.)  1917E-581.  (Annotated.) 

.  61.  Defect  in  Construction.  A  manu- 
facturer of  automobiles,  which  purchased 
the  wheels  used  on  its  automobiles,  is  not 
liable  to  an  injured  person,, who  purchased 
an  automobile  manufactured  by  it  from  a 
dealer,  and  who  had  no  contractual  rela- 
tions with  it,  for  its  negligent  failure  to 
discover  that  one  of  the  wheels  was  de- 
fective, since,  while  one  who  manufactures 
articles  inherently  dangerous  is  liable  to 
third  parties  injured  by  such  articles,  un- 
less he  exercises  reasonable  care,  one  who 
manufactures  articles  dangerous  only  if 
defectively  made  is  not  liable  to  third 
parties  for  injuries,  except  in  case  of  wil- 
ful injurv  or  fraud.  Cadillac  Motor  Car 
Co.  V.  Johnson  (Fed.)  1917E-581. 

(Annotated.) 

62.  Liability  of  Manufacturer  to  Pur- 
chaser— Defective  Automobile,  The  manu- 
facturer of  an  automobile  is  liable  to  a 
purchaser  thereof  from  a  dealer  for  in- 
juries caused  by  a  defective  wheel,  the 
defects  in  which  could  have  been  discov- 
ered by  reasonable  inspection,  though  the 
wheel  was  purchased  by  the  automobile 
manufacturer  from  the  maker  thereof. 
MacPherson  v.  Buick  Motor  Car  Co. 
(N.  Y.)    1916C-440.  (Annotated.) 

Note. 
Liability    of    maker    of    automobile    to 
third    persons    for    defective    construction 
thereof.    1917E-584. 

5.     CRIMES  INCIDE'NTAL   TO  OPERA- 
TION. 

63.  Liability  of  Automobile  Driver  for 
Negligent  Homicide.  In  a  prosecution  for 
involuntary  '  manslaughter  committed  bv 
reckless  driving  of  an  automobile,  the  eTi- 
dence  is  held  sufficient  to  show  clearly  the 
guilt  of  the  defendant.  People  v.  Falko- 
Titch  (111.)  1918B-1077.  (Annotated.) 

64.  Identification  of  Defendant.  On  the 
trial  of  an  indictment  for  a  violation  of 
the  N.  Y.  Highway  Law,  §  290,  subd.  3, 
testimony  of  a  witness  that  he  had 
seen  an  automobile  near  the  time  and  place 
of  the  accident  running  at  a  high  rate  of 
speed,  without  being  able  to  identify  it  or 
•state  any  fact  warranting  an  inference 
that  it  was  the  defendant's,  is  inadmis- 
sible.   People  v.  Curtis  (X.  Y.)  1917E-586. 

65.  Admissibility  of  Evidence.  Upon 
the  trial  of  an  indictment  for  a  violation 
of  the  X.  Y.  Highway  Law,  §  290,  subd.  3, 
while    evidence    may    properly    be    given 


showing  how  mach  a  person  was  injured  in 
an  automobile  collision  as  bearing  upon 
the  seriousness  of  the  accident  and  tend- 
ing to  show  that  it  should  not  escape  the 
notice  of  the  defendant,  subsequent  suf- 
fering of  the  injured  person  or  the  length 
of  time  he  remained  in  the  hospital  and 
the  details  of  the  medical  or  sutgical 
treatment  which  he  received  can  have  no 
legitimate  bearing  upon  any  of  the  issues 
arising  on  the  trial  of  an  indictment  and 
are  inadmissible.  People  v.  Curtis  (N.  Y.) 
I917E-586.    . 

66.  Necessity  of  Knowledge  of  Injury. 
It  is  essential  to  a  conviction  under  N.  Y. 
Highway  Law,  §  290,  subd.  3,  that  the  jury 
shall  be  satisfied  beyond  a  reasonable 
doubt  not  only  that  an  injury  had  been 
caused,  but  that  the  defendant  knew  that 
such  injury  had  been  caused,  and,  notwith- 
standing such  knowledge,  left  the  scene  of 
the  accident  without  complying  with  the 
law.     People  v.  Curtis  (N.  Y.)  1917E-586. 

(Annotated.) 

67.  Failure  to  Give  Name  and  Address  to 
Person  Injured.  An  irdictment  charging  a 
violation  of  the  Highway  Law  (N.  Y. 
Consol.  Laws,  c.  25),  §290,  subd.  3,  added 
by  Laws  1910,  c.  374,  providing  that  any 
person  operating  a  motor  vehicle  who, 
knowing  that  an  injury  has  been  caused  to 
a  person  or  property  due  to  his  culpability, 
or  to  accident,  leaves  without  giving  his 
name,  residence,  and  operator's  license 
number  to  the  injured  party  or  a  police 
officer,  or  reporting  the  same  to  the  nearest 
police  station  or  judicial  officer,  shall  be 
guilty  of  a  felony,  need  not  allege  that 
the  accident  occurred  on  a  public  highway. 
People  V.  Curtis  (N.  Y.)   1917E-586. 

Note. 
Construction  of  statute  requiring  person 
operating  automobile  to  give  name  and  ad- 
dress to  person  injured.     1917E-588. 

AUTREFOIS  ACQUIT. 

See  Former  Jeopardy. 

AVENUE. 

Avenue  a  public  highway,  see  Streets  and 
Highways,  1. 

AVERAGE  ANNUAL  EARNINGS. 

Under  Workmen's  Compensation  Act,  se« 
Master  and  Servant,  274,  275,  282. 

AVERAGE  WEEKLY  EARNINGS. 

Under  Workmen's  Compensation  Act,  see 
Master  and  Servant,  271,  273,  274,  276, 
277,  281. 

AVOrDANOE. 

Of  preferences,  see  Bankruptcy,  18-20. 

Of  benefit  contract,  see  Beneficial  Associa- 
tions, 15. 

Of  stock  subscription,  see  Corporations, 
64-70. 


106 


DIGEST. 

1916C— 1918B. 


Of  release,  see  Belease  and  Discharge,  2-5. 
Suit   to   rescind,   see  Bescission,  Cancella- 
tion and  Beformation. 
For  fraud,  see  Sales,  48. 

AWABD. 
See  Arbitration  and  Award. 


BAIL. 

1.  Interest  on  Penalty.  Interest  sbould 
not  be  allowed  on  the  amount  of  the  pen- 
alty of  a  bail  bond  from  the  date  of  the 
forfeiture  of  the  bond.  People  v.  Parisi 
(N.  Y.)  1916C-111.  (Annotated.) 

2.  Enforcement  of  Forfeitnre.  A  surety 
on  a  forfeited  bail  bond  cannot  urge  as  a 
defense  that  he  should  have  bad  notice  of 
the  time  and  place  at  which  the  principal 
was  required  to  appear,  as  that  should 
have  been  presented  by  a  motion  to  relieve 
from  the  forfeiture.  People  v.  Parisi 
(N.  Y.)  1916C-111. 

3.  Necessity  of  Notice  to  Surety  to  Pro- 
duce Principal.  Though  a  person  bound 
over  before  a  magistrate  may  be  indicted 
and  tried  either  in  the  county  court  or 
the  supreme  court,  a  surety  on  his  bail 
bond  is  not  entitled  to  a  notice  of  the  time 
and  place  at  which  the  principal  must  ap- 
pear as  a  condition  precedent  to  a  for- 
feiture of  the  bond.  People  v.  Parisi 
(N.  Y.)  1916C-111. 

Note. 

Allowance  of  interest  on  forfeited  bail 
bond.     1916C-114. 

BAILIFF. 

Disqualification  as  custodian  of  jury,  see 
Jury,  29,  30. 

BAn.TVrF.NT. 

1.  In  General. 

2.  Liability  of  Bailee  for  Loss. 

3.  Limitation  of  Action  by  Bailee  for  Loss. 
See  Escrow;  Warehouses. 

Care  required  of  bailee,  see  Automobiles, 

29. 
Special  deposit,  see  Banks  and  Banking, 

38-42. 
Computation  of  time  of  rental  period,  see 

Time,  4. 

1.     IN  GEI^ERAL. 

1.  What  Constitutes.  An  agreement, 
which  recites  that  a  party  thereto  has  re- 
ceived from  the  adverse  party  sheep  to 
keep,  for  rental  annually  of  half  the  wool 
and  increase,  for  three  years,  creates  a 
bailment  and  imposes  on  the  party  the  im- 
plied obligation  to  return  the  same  sheep. 
In  re  Parsell's  Estate  (Mich.)  1917A-1160. 

2.  Termination  of  Bailment.  Where  a 
bailee  for  a  definite  term,  does  not,  at  the 


expiration  of  the  term,  return  the  prop- 
erty, the  bailment  does  not  necessarily  end 
as  to  him,  and  the  bailor  can  resume  the 
property  or  consider  the  bailment  as  con- 
tinued or  renewed;  for  possession  retained 
without  objection  after  the  period  origin- 
ally fixed  had  expired,  in  connection  with 
other  circumstances,  might  raise  a  question 
of  fact  as  to  whether  the  bailment  was 
terminated  or  continued  and  renewed.  In 
re  Parsell's  Estate  (Mich.)   1917A-1160. 

3.  Bevocation.  The  delivery  of  a  dog 
into  defendant's  possession  by  plaintiff, 
with  consent  of  his  wife,  the  owner 
thereof,  created  at  most  a  bailment  at  will, 
revocable  without  demand  or  notice,  at  the 
pleasure  of  the  bailor.  Herries  v.  Bell 
(Mass.)   1917A-423. 

Note. 
Acquisition    by    adverse    possession    of 
title    to    property    in    hands    of    bailee. 
1917A-1163. 

2.     LIABILITY  OF  BAILEE  FOB  LOSS. 

4.  Death  of  Animal  Bailed.  A  party  re- 
ceiving sheep  of  another  to  keep,  for  the 
rental  annually  of  half  the  wool  and  in- 
creasoj  for  three  years,  must  exercise  aver- 
age diligence  in  caring  for  the  sheep,  and 
he  is  not  an  insurer,  nor  liable  to  replace 
any  perishing  from  natural  causes,  by 
disease  or  accident,  without  his  fault.  In 
re  Parcell's  Estate  (Mich.)  1917A-1160. 

3.    LIMITATION    OF    ACTI5n    BY 
BAILEE  FOR  LOSS. 

5.  A  party  received  sheep  of  the  adverse 
party  to  keep,  for  the  rental  annually  of 
half  the  wool  and  increase,  for  three  years. 
The  party  continued  to  keep  the  sheep  at 
the  end  of  the  three  years.  An  indorse- 
ment on  the  written  agreement  showed 
that  sheep  were  paid  back  five  years  after 
the  party  received  the  sheep.  The  sheep 
returned  were  Iambs.  Many  years  later  the 
party  admitted  that  he  had  the  sheep  and 
was  indebted  on  that  account.  Held,  that 
the  question  of  a  continuance  or  renewal 
of  the  bailment  so  as  to  prevent  the  run- 
ning of  limitations  in  favor  of  the  party 
was  for  the  jury.  In  Re  Parsell's  Estate 
(Mich.)   1917A-il60.  (Annotated.) 

6.  Adverse  Possession  by  Bailee.  Mere 
retention  of  possession  of  property  by  a 
bailee,  however  long  continued,  does  not 
work  a  change  of  ownership,  and  limita- 
tions do  not  run  in  his  favor  until  he 
ivsserts  an  adverse  claim.  In  re  Parsell's 
Estate  (Mich.)    1917A-1160. 

(Annotated.) 

BAILMENT  AT  WILL. 
See  Bailment,  3. 

BALLOTS. 

See  Elections,  12-14,  26-28,  37-73. 


BANANA  PEEI>— BANKRUPTCY. 


107 


BANANA  PEEL. 

Liability  for  passenger's  fall,  see  Carriers 
of  Passengers,  34. 


BANKEUPTCT. 

1.  Assets  of  Bankrupt,  107. 

2.  Title  and  Powers  of  Trustee,  108. 

3.  Liens,   Fraudulent   and  Other  Voidable 

Transfers,   108. 

4.  Claims  Against  Estate,  109. 

5.  Administration  of  Estate,  109. 

6.  Discharge,   110. 

7.  Eights,  Duties  and  Liabilities  of  Peti- 

tioning Creditors,  110. 

8.  Crimes  Against  Bankruptcy  Law,  111. 

Stockholders'  liability,  effect  of  discharge 

of  corporation,  see  Corporations,  133. 
Effect    on    creditor's    bill,    see    Creditors' 

BiUs,  5. 
Liability   for  instituting  proceedings,   see 

Malicious  Prosecution,  4. 
Priority  of  mechanic's  lien,  see  Mechanics' 

Liens,  15. 
Appointment    of    receiver,    see  Beceivers, 

3,  5. 

1.     ASSETS    OF   BANKRUt»T. 

1.  Creditor  Enforcing  Lien.  A  mortgagee 
of  a  stock  of  goods  not  exceeding  $500  in 
value,  on  condition  that  the  mortgagor 
should  keep  the  stock  to  such  value,  who 
took  from  the  mortgagor's  trustee  in  bank- 
ruptcy goods  valued  at  more  than  $1,000 
and  disposed  of  them,  was  liable  to  account 
to  the  trustee  for  the  excess  in  his  hands 
over  $500.  Williams  v.  Noyes,  etc.  Mfg. 
Co.   (Me.)    1916D-1224. 

2.  Chattel  Mortgage  on  Goods.  In  such 
case  the  mortgagee,  whose  right,  if  any, 
to  follow  the  property  was  suspended  by 
the  appointment  of  the  trustee  in  bank- 
ruptcy, against  whom  he  had  no  right  of 
possession,  had  the  burden  of  showing  title 
to  the  goods  claimed  by  him  under  the 
mortgage  (that  is,  those  in  existence  at 
the  mortgage  and  those,  if  any,  substituted 
for  articles  sold  by  purchase  from  the  pro- 
ceeds) ;  and  where  the  mortgagor's  busi- 
ness during  the  intervening  three,  years 
amounted  to  about  $5,000  a  year,  and  much 
of  his  stock  was  purchased  on  credit  from 
others  than  the  mortgagee,  and  some  was 
paid  for  in  cash,  and  where  one-third  of 
the  stock  on  hand  upon  his  bankruptcy 
was  received  from  defendant  and  two- 
thirds  from  other  sources,  there  was  a 
necessary  inference  that  no  part  of  the 
original  stock  was  left  at  the  date  of 
the  mortgagor's  bankruptcy.  "Williams  v. 
Noyes,  etc.  Mfg.  Co.  (Me.)  1916D-1224. 

3.  Salary  of  Public  Officer.  The  annual 
allowance  made  by  way  of  compensation 
to  members  of  the  House  of  Commons  is  a 
"salary  or  income"  a  portion  of  which 
may,  under  the  Bankruptcy  (Ireland) 
Amendment   Act   of   1872,  §  51,   be   appro- 


priated by  an  order  of  court  to  the  pay- 
ment of  the  creditors  of  a  bankrupt  mem- 
ber. Hollinshead  v.  Hazleton  (Eng.) 
1916D-615.  (Annotated.)- 

4.  Counterclaim.  Banjtruptcy  Act  Jnly 
1,  1898,  c.  541,  §1,  (11)  30  Stat.  544  (1 
Fed.  St.  Ann.  527j  Fed.  St.  Ann.  1912  Snpp. 
p.  464),  declaring  that  Ae  term  "debt"  shall 
include  any  debt,  demand,  or  claim  provable 
in  bankruptcy,  does  not  increase  rights  of 
counterclaim  against  the  bankrupt's  estate. 
Morris  v.  Windsor  Trust  Co.  (N.  Y.)  1916C- 
972.  (Annotated.) 

5.  Neither  under  U.  S.  Bankruptcy  Act, 
§  68,  providing  for  the  set-off  of  mutual 
debts,  nor  under  general  principles  of 
equity,  can  a  party  sued  for  conversion  of 
a  pledge  set  off  as  a  counterclaim  •  rights 
based  on  contracts  unconnected  with  the 
conversion  and  growing  out  of  the  indorse- 
ment of  notes  by  the  bankrupt  to  whose 
estate  plaintiff  had  succeeded.  Morris  v. 
Windsor  Trust  Co.  (N.  Y.)  1916C-972. 

(Annotated.) 

6.  Bight  of  Set-off,  Bankruptcy  Act 
July  1,  1898,  c.  541,  §68,  30  Stat,  565  (1 
Fed.  St.  Ann.  696;  Fed.  St.  Ann.  1912 
Supp.  p.  805),  declaring  that  in  all  cases 
of  mutual  debts  or  credits  the  account 
between  the  parties  shall  be  stated  and 
one  debt  set  off  against  the  other,  was  not 
intended  to  enlarge  the  doctrine  of  set-off, 
and  does  not  give  a  party  rights  which  he 
did  not  enjoy  under  previous  statutes  or 
general  equitable  principles.  Morris  v. 
Windsor  Trust  Co.  (N.  Y.)  1916C-972. 

(Annotated.) 

7.  Bight  to  Set  Off  Unliquidated  Claim. 
In  a  bankruptcy  proceeding,  a  claim  for 
unliquidated  damages  for  a  tort  could  not 
be  set  off  against  a  claim  upon  a  judg- 
ment, whether  the  matter  was  controlled 
by  Rev.  Codes  Idaho,  §  4184,  providing  that 
a  counterclaim  must  be  a  cause  of  action 
arising  out  of  the  transaction  set  forth  in 
the  complaint  as  the  foundation  of  plain- 
tiff's claim  or  connected  with  the  subject 
of  the  action,  or,  in  an  action  arising  upon 
contract,  any  other  cause  of  action  also 
arising  upon  contract,  or  by  Bankr.  Act, 
§  63  (1  Fed.  St.  Ann.  679;  Fed.  St.  Ann. 
1912  Supp.  p.  753),  specifying  in  subdivi- 
sion "a"  the  claims  which  may  be  proved, 
and  providing  in  subdivision  "b"  that  un- 
liquidated claims  may  be  liquidated  in 
such  manner  as  the  court  shall  direct,  and 
may  thereafter  be  proved  and  allowed 
against  the  estate,  and  section  68  (1  Fed. 
St.  Ann.  696;  Fed.  St.  Ann.  1912  Supp. 
p.  805)  providing  for  a  set-off  of  mutual 
debts  and  credits,  and  providing  that  a  set- 
off or, counterclaim  shall  not  be  allowed 
which  is  not  provable  against  the  estate, 
as  section  63b  does  not  enlarge  the  scope 
of  subdivision  "a,"  and  unliquidated  claims 
arising  out  of  torts  not  covered  by  subdivi- 
sion "a."  Pindel  v.  Holgate  (Fed.)  1916C- 
983.  (Annotated.) 


108 


DIGEST. 

1916C— 1918B. 


,  8.  Set-off  In  Bankruptcy — Laches  of 
Bankrupt.  Where,  at  the  time  a  bankrupt 
sought  to  set  up  a  claim  for  damages  from 
an  attachment  as  a  counterclaim  against 
the  judgment  obtained  in  the  action  in 
which  the  attachment  was  issued,  an  ac- 
tion by  the  judgment  creditor  against  the 
sheriff  for  his  nagligeBce  in  caring  for 
the  attached  propCTty,  was  barred  by  Rev. 
Codes  Idaho,  §  4055,  subd.  1,  requiring  ac- 
tions against  sheriffs  upon  a  liability  in- 
curred by  the  doing  of  an  act  in  th€ir  offi- 
cial capacity,  and  by  virtue  of  their  office, 
or  "by  the  omission  of  an  official  duty,  to 
be  brought  within  two  years,  and  an  action 
against  the  judgment  creditor  would  have 
been  barred  by  section  4054,  subds.  2,  3, 
requiring  actions  for  trespass  upon  real 
property  and  for  taking  or  injuring  per- 
sonal property  to  be  brought  within  three 
years,  the  bankrupt  is  barred  by  his  laches 
from  setting  up  such  claim.  Pindel  v.  Hol- 
gate    (Fed.)    1916E-983.  (Annotated.) 

9.  Accounting  for  Assets.  On  a  Satur- 
day about  two  weeks  before  bankruptcy, 
the  members  of  a  partnership  received  a 
check  for  $2,000,  and  instead  of  depositing 
it  they  dx'ew  it  out  in  bills  from  the  bank 
upon  which  the  check  was  drawn.  On  re- 
turning to  their  place  of  business  about 
12:30  they  dismissed  their  bookkeeper  for 
the ,  day,  and,  as  they  claimed,  put  the 
money  in  their  safe.  Though  they  were  at 
the  stpre  nearly  all  the  afternoon,  and 
though  the-  store  was  locked  when  they 
left,  and  though  there  was  nothing  to  show 
tha^,  the  store  or  the  safe  was  broken  open, 
or  that  anything  unusual  happened,  they 
claimed  the  money  was  not  there  the  fol- 
lowing Monday.  They  told  the  book- 
keeper on  Monday  to  charge  the  $2,000  to 
expenses,  but  later  directed  her  to  change 
the  entry  and  charge  it  to  materials,  and 
one  of  them  testified  that  he  did  this  be- 
cause he  thought  it  would  look  better  to 
creditors.  It  is  held  that,  while  the 
trustee,  seeking  to  compel  the  turning  over 
of  this  money  to  him,  had  the  burden  of 
proving  that  the  money  was  in  the  bank- 
rupt's possession  by  evidence  which  was 
clear  and  convincing,  he  did  this,  and  the 
burden  was  shifted  to  the  bankrupts  to 
show  what  became  of  the  money.  In  re 
Graning  (Fed.)  1917B-1094. 

(Annotated.) 

10.  What  Property  Passes.  As  the  holder 
of  a  life  insurance  policy,  reserving  to  him 
the  right  to  change  the  beneficiary,  and 
which  by  its  terms  was  assignable,  had  a 
transferable  interest  in  the  policy,  if.  not- 
withstanding an  assignment  thereof  by 
him,  an  interest  in  the  policy  still  re- 
mained in  him,  such  interest  passed  to  his 
trustee  in  bankruptcy  as  of  the  \iate  of 
the  adjudication,  and  a  purchaser  of  his 
right,  title,  and  interest  acquired  a  right 
superior  to  that  of  the  beneficiary. 
Mutual  Benefit  Life  Ins.  Co.  v.  Swett 
(,Fed.)  1917B-298. 


11.  Estoppel  of  Bankrupt.  A  voluntary 
bankrupt  in  his  schedules  listed  the  claim 
of  a  bank  based  upon  a  judgment  with- 
out mentioning  any  offset,  and  stated  that 
he  held  no  unliquidated  claims  or  choses 
in  action  of  any  kind  against  any  person, 
and  in  a  proceeding  to  sell  land  in  which 
he  had  a  homestead  interest,  in  which  the 
necessity  for  making  the  sale  rested  upon 
the  assumption  that  the  claim  of  the  bank 
was  valid,  resisted  a  sale  on  other 
grounds.  An  order  of  sale  was  affirmed  on 
appeal,  and  a  sale  had.  On  application  for 
an  order  confirming  the  sale,  the  bank- 
rupt, more  than  four  years  after  the  peti- 
tion was  filed,  for  the  first  time  set  up  an 
offset  or  counterclaim  for  wrongful  attach- 
ment in  the  action  in  which  the  bank's 
judgment  was  obtained.  It  is  held  that 
he  was  estopped  by  the  representations  in 
the  schedules  and  the  order  of  sale  from 
setting  up  such  counterclaim,  as  a  judg- 
ment is  an  adjudication,  not  only  of  all 
defenses  actually  interposed,  but  of  all 
which  might  have  been  interposed.  Pin- 
del  T.  Holgate  (Fed.)  1916C-983. 

(Annotated.) 

12.  Avoidance  In  Bankruirtcy — Property 
Including  Homestead.  A  conveyance  of 
land  in  which  a  bankrupt  had  a  homestead 
interest  is  voidable  as  to  the  excess  of  the 
land  over  the  homestead  right,  where  the 
deed  was  not  recorded  until  within  four 
months  before  bankruptcy.  Sieg  v.  Greene 
(Fed.)    1917C-1006.  (Annotated.) 

Notes. 

Set-off  under  American  bankruptcy  acts. 
1916C-975. 

Salary  or  pension  of  public  officer  or  em- 
ployee as  affected  by  his  bankruptcy. 
1916D-629. 

2.  TITLE  AND  POWERS  OF  TRUSTEE. 

13.  Title  of  Trustee.  The  trustee's  title 
to  the  bankrupt's  estate  relates  back  to 
the  date  of  the  adjudication.  Williams  v. 
Noyes,  etc.  Mfg.  Co.  (Me.)  1916D-1224. 

14.  Custody  of  Trustee.  Where  a  trustee 
in  bankruptcy  has  taken  possession,  the 
property  is  in  the  custody  of  the  law  and 
cannot  be  removed  therefrom  by  any  pri- 
vate person  or  by  any  process  out  of  any 
court,  except  one  having  a  supervisory  con- 
trol or  superior  jurisdiction  in  the  prem- 
ises. Williams  v.  Noyes,  etc.  Mfg.  Co. 
(Me.)  1916D-1224. 

3.  LIE7CS.  FRAUDULENT  AND  OTHER 

VOIDABLE  TRANSFERS. 

15.  Effect  of  Bankruptcy  of  Property 
Owner.  Plaintiff  sold  defendant  building 
material  used  in  construction  of  buildings 
upon  an  unproven  government  homestead. 
Within  90  days  after  furnishing  said  mate- 
rial, defendant  filed  his  petition  in  volun- 
tary bankruptcy  in  the  federal  cpurt,  and 


BANKRUPTCY. 


109 


was  adjudged  a  banlvrupt.  The  amount 
owing  for  such  building  materials  was 
scheduled  among  his  debts.  Thereafter, 
and  93  days  after  furnishing  the  last  item 
of  materials,  plaintiff  filed  its  mechanic's 
lien  on  the  buildings.  Subsequently  de- 
fendant was  discharged  in  bankruptcy. 
He  pleads  it  as  his  only  defense.  Held, 
the  filing  of  the  petition  and  adjudication 
of  bankruptcy  did  not  defeat  the  right  of 
plaintiff  to,  subsequently  and  after  the  ex- 
piration of  the  90-day  period,  perfect  its 
inchoate  mechanic's  lien  by  the  filing  of  a 
lien  statement.  Moreau  Lumber  Co.  T. 
Johnson  (N.  Dak.)  1917C-290.      . 

(Annotated.) 

16.  Liens  and  Incumbrances  on  Estate. 
A  trustee  in  bankruptcy  takes  the  property 
of  the  estate  subject  to  all  equities,  liens, 
end  incumbrances  existing  against  it  in 
the  hands  of  the  bankrupt.  "Williams  v. 
Noyes,  etc.  Mfg.  Co.  (Me.)  1916D-1224. 

17.  Under  Bankruptcy  Act  July  1,  1898, 
c.  541,  §  6,  30  Stat.  548  (1  Fed.  St.  Ann. 
[2d  ed.]  592)  providing  that  that  act  "shall 
not  affect  the  allowance  to  bankrupts  of 
exemptions  prescribed  by  the  state  laws, 
state  statutes  and  decisions  control  in  de- 
termining whether  a  conveyance  by  a 
bankrupt  of  land  in  which  he  had  a  home- 
stead interest  was  fraudulent  as  to  credi- 
tors.    Sieg  V.   Greene   (Fed.)    1917C-1006. 

(Annotated.) 

18.  What  Constitutes  Preference.  A 
partnership  manufacturing  brick,  being  in- 
solvent, applied  for  assistance  to  continue 
operations  to  S,  who  was  formerly  a  part- 
ner, owned  an  undivided  half  interest  in 
the  brick  plant,  and  had  theretofore  pur- 
chased the  other  half  interest.  S,  knowing 
of  the  firm's  condition,  advanced  it  money 
under  an  agreement  made  in  good  faith 
that  the  firm  would  manufacture  brick 
for  him  to  the  value  of  the  amount  ad- 
vanced, to  be  taken  by  him  in  the  yard  as 
soon  as  they  were  burned.  The  laborers 
in  the  yard  were  paid  with  S's  money, 
and  they  understood  the  bricks  were  being 
made  for  him.  More  than  30  days,  but 
within  4  months,  prior  to  bankruptcy,  S 
took  possession  of  the  plant  and  the  brick 
already  manufactured.  It  is  held  that  the 
transaction  was  not  a  voidable  preference, 
within  Bankruptcy  Act  July  1,  1898,  c.  541, 
§  60a,  30  Stat.  562  (1  Fed.  Ann.  [2d  ed.] 
1004),  making  transfers  by  an  insolvent 
within  4  months  before  bankruptcy,  en- 
abling a  creditor  to  obtain  a  greater  per- 
centage of  his  debt  than  other  creditors, 
preferential,  and  section  60b  (p.  1026), 
making  such  preferences  voidable  if  the 
transferee  had  reasonable  cause  to  believe 
that  the  transfer  would  effect  a  preference, 
since  S  took  possession  in  virtue  of  his 
right,  created  by  the  contract  at  the  time 
it  was  made,  and  in  satisfaction  of  an 
equitable  lien.  Sieg  v.  Greene  (Fed.) 
1917C-1006. 


19.  Avoidance  of  Prieferential  Transfer 
— Grantee.  Where  one  to  whom  a  brick 
plant  was  transferred  by  a  bankrupt 
within"  four  months  before  bankrupitcy 
made  large  expenditures  in  putting  in  new 
machinery  and  otherwise  improving  the 
plant,  any  property  thus  added  is  no  part 
of  the  estate  in  bankruptcy.  Sieg  v, 
Greene  (Fed.)  1917C-1006. 

20.  Voidable  Transfer.  While,  ii  the 
absence  of  fraud,  a  bank  having  a  bank- 
rupt's funds  on  deposit  may  set  off  a  debt 
owing  it  by  the  bankrupt  against  the 
trustee's  claim  for  the  deposit  and  may 
prove  any  balance  against  the  estate,  yet 
where  a  bank  holding  a  depositor's  notes 
accepts  payment  thereof  by  check  against 
the  deposit,  within  four  months  of  the 
bankruptcy  of  the  depositor  and  with  full 
knowledge  of  his  insolvent  condition,  it 
receives  an  "unlawful  preference,"  within 
the  meaning  of  Bankr.  Act  July  1,  1898, 
c.  541,  §  60  (a)  (b)  30  Stat.  562  (1  Fed. 
St.  Ann.  672,  674;  Fed.  St.  Ann.  1912  Supp. 
p.  729,  739),  and  its  right  to  set  off  the 
notes  is  thereby  forfeited,  and  it  becomes 
liable  to  the  trustee  for  the  amount  of  th? 
check.  Knoll  v.  Commercial  Trust  Co. 
(Pa.)  1916C-988.  (Annotate.d.) 

Notes. 

Set-off  by  bank  of  deposit  against  debt 
due  bank  by  depositor  as  voidable  transfer 
under  bankruptcy  law.     1916C-990. 

Effect  of  bankruptcy  of  owner  of  prop- 
erty on  right  to  mechanic's  lien,  1917(5- 
292. 

4.     CLAIMS  AGAINST  ESTATE. 

21.  Review     of    Allowance     of    Claim, 

Under  Bankr.  Act  July  1,  1898,  c.  541,  §  25 
(3),  30  Stat.  553  (1  Fed.  St.  Ann.  602; 
Fed.  St.  Ann.  1912  Supp.  p.  634),  authoriz- 
ing appeals  as  in  equity  eases  from  a  judg- 
ment allowing  or  rejecting  a  debt  or  qlaiin 
of  $500  or  over,  an  order  allowing  such  a 
claim  is  not  reviewable  by  a  petition  to 
revise,  as  each  method  of  procedure  for 
the  review  of  orders  in  bankruptcy  is  ex- 
clusive of  the  other.  Pindel  v.  Holgate 
(Fed.)   1916C-983. 

22.  Keview  of  Allowance  of  Claim  In 
Conjunction  With  Another  Order.  Though 
an  order  allowing  a  claim  is  not,  standing 
alone,  reviewable  on  a  petition  to  reyise, 
where  there  was  only  one  other  small 
claim,  and  the  necessity  for  a  sale  of  land 
in  which  the  bankrupt  had  a  homestead 
interest  depended  mainly  upon  the  validity 
of  the  claim  in  question,  the  allowance  of 
such  claim  will  be  reviewed  on  a  petition 
to  revise  the  order  confirming  a  sale  oJf  the 
homestead.  Pindel  v.  Holgate  (Fed.) 
1916C-983. 

5.     ADMINISTRATION  OF  ESTATE. 

23.  Review  of  Confirmation  of  Sale. 
Under  Bankr.  Act,  §  24b  (1  Fed.  St.  Aan.. 


110 


DIGEST. 

1916C— 1918B. 


595;  Fed.  St.  Ann.  1912  Supp.  p.  611),  pro- 
viding that  the  several  circuit  courts  of 
appeal  shall  have  jurisdiction  to  superin- 
tend and  revise  in  matters  of  law  the  pro- 
ceedings of  the  several  inferior  courts  of 
bankruptcy  within  their  jurisdiction,  an 
order  confirming  the  sale  of  the  land  of  a 
bankrupt  in  which  he  had  a  homestead  in- 
terest is  properly  reviewable  in  matters  of 
law  by  a  petition  to  revise.  Pindel  v.  Hol- 
gate  (Fed.)   1916C-983. 

6.     DISCHARGE. 

24.  Burden  of  Proof.  A  judgment  credi- 
tor has  the  burden  of  showing  that  his 
claim  is  not  barred  by  discharge  in  bank- 
ruptcy; and  where  the  nature  of  the  claim 
appeared  only  from  the  creditor's  declara- 
tion, that  instrument  should  be  given  the 
construction  most  favorable  to  the  bank- 
rupt.    In  re  Grout  (Vt.)   1917A-210. 

25.  IdablUty  for  Wilful  and  Malicious 
Injury.  A  default  judgment  was  recovered 
under  a  declaration  in  trespass  which  al- 
leged that  the  bankrupt  assaulted  another, 
charging  that,  while  she  was  walking  on 
the  street  with  due  care,  he  recklessly, 
carelessly,  and  negligently  ran  into  her. 
Judgment  was  also  recovered  in  another 
action  for  the  same  cause,  under  a  declara- 
tion in  ease  similar  to  the  one  in  contro- 
versy, except  that  the  averments  of  assault 
vere  omitted.  Held,  that  the  judgments 
were  barred  by  defendant's  discharge  in 
bankruptcy,  neither  declaration  showing 
that  the  wrong  was  intentional  or  mali- 
cious; the  charge  of  assault  and  reckless- 
ness not  denoting  anything  more  than  neg- 
ligent violence.  In  re  Grout  (Vt.)  1917A- 
210.  (Annotated.) 

Note. 

Effect  of  discharge  in  bankruptcy  upon 
judgment  for  wilful  and  malicious  injuries 
to  person  or  property.     1917A-212. 

7.    RIGHTS,  DUTIES  AND  LIABILITIES 
OP  PETITIONING  CREDITORS. 

26.  Liability  of  Applicant  for  Costs. 
Under  Bankr.  Act,  §  3e  (1  Fed.  St.  Ann. 
2d  ed.  565),  providing  that  when  a  peti- 
tion is  filed  to  have  a  person  adjudged  a 
bankrupt,  and  an  application  is  made  to 
take  charge  of  and  hold  the  property  of 
the  alleged  bankrupt  prior  to  the  adjudi- 
cation and  pending  a  hearing  on  the  peti- 
tidn,  the  appellant  shall  file  a  bond  with 
sureties  conditioned  for  the  payment,  in 
case  the  petition  is  dismissed,  of  all  costs 
and  expenses  and  damages  occasioned  by 
the  seizure,  taking,  and  detention  of  the 
property,  and  that  if  such  petition  be  dis- 
missed or  withdrawn  the  respondent  shall 
be  allowed  all  costs,  counsel  fees,  expenses, 
and  damages  occasioned  by  such  seizure, 
taking,  or  detention,  if  no  bond  is  given, 
or  if  a  bond  be  given  and  it  proves  to  be 
inadequate,  the  applicant  for  the  appoint- 


ment of  the  receiver  is  liable,  and  inde- 
pendent of  the  bond  can  be  compelled  to 
pav  the  costs  and  expenses  of  the  receiver- 
ship. T.  E.  Hill  Co.  V.  United  States 
Fidelity,  etc.  Co.  (111.)  1917E-78. 

27.  Bequlring  Additional  Bond.  If  at 
any  time  it  becomes  apparent  that  a  bond 
given  upon  the  application  for  the  appoint- 
ment of  a  receiver  in  a  bankruptcy  pro- 
ceeding under  Bankr.  Act,  §  3c  (1  Fed.  St. 
Ann.  2d  ed.  563),  is  insufficient  to  indem- 
nify the  alleged  bankrupt  for  all  damages 
growing  out  of  the  seizure  and  detention 
of  the  property,  he  has  the  right  to  apply 
to  the  court  to  require  the  creditor  who 
secured  the  appointment  of  the  receiver  to 
give  an  additional  and  suflScient  bond. 
T.  E.  Hill  Co.  V.  United  States  Fidelity, 
etc.  Co.  (111.)  1917E-78. 

28.  Indemnity  to  Bankrupt.  Upon  the 
appointment  of  a  receiver  on  the  applica- 
tion of  a  creditor  of  an  alleged  bankrupt 
under  Bankr.  Act,  §  2,  cl.  3  (1  Fed.  St.  Ann. 
2d  ed.  552),  the  alleged  bankrupt  can  be 
indemnified  only  by  the  provisions  of  sec- 
tion 3e,  and  the  bond  there  required  to  be 
given  is  the  only  bond  he  can  look  to  to 
recover  his  damages  and  expenses  upon  the 
discharge  of  the  receiver.  T.  E.  Hill  Co. 
V.  United  States  Fidelity,  etc.  Co.  (111.) 
1917E-78. 

29.  Words  and  Phrases — "All  Damages." 
In  a  bankruptcy  proceeding,  one  of  the  pe- 
titioning creditors  applied  for  and  pro- 
cured the  appointment  of  a  receiver.  On 
February  10th  the  bankruptcy  petition 
was  dismissed.  On  February  13th  an  ap- 
peal was  allowed  upon  the  petitioners 
giving  bond  in  the  sum  of  $5,000;  the 
bond  reciting  that  if  the  petitioning  credi- 
tors prosecuted  their  appeal  with  effect  and 
answered  "all  damages  and  costs"  the  obli- 
gation was  to  be  void.  On  February  14th 
an  assignee  under  the  voluntary  assign- 
ment act  applied  to  the  bankruptcy  court 
for  a  rule  on  the  receiver  to  turn  over  the 
property  of  the  alleged  bankrupt  to  him. 
This  application  was.  denied,  by  an  order 
which  recited  the  fact  that  an  appeal  had 
been  allowed  from  the  order  dismissing  the 
petition,  without  prejudice  to  a  renewal  of 
the  application  if  the  appeal  should  not  be 
prosecuted  with  effect.  It  is  held  that,  the 
bond  on  appeal  did  not  operate  as  a  super- 
sedeas bond,  and  the  surety  was  not  liable 
for  the  bankrupt's  damages  from  the  re- 
ceivership, as  there  was  nothing  to  indi- 
cate that  it  was  intended  that  the  appeal 
bond  should  cover  the  expenses  and  dam- 
ages occasioned  by  the  continuation  of  the 
receivership,  there  w^as  no  occasion  for  a 
supersedeas,  as,  the  receiver  not  having 
been  discharged,  there  was  nothing  to  be 
superseded,  the  penalty  of  the  bond  did 
not  in  itself  indicate  that  the  bond  covered 
mere  than  the  ordinary  costs  and  expenses 
of  the  appeal,  especially  as  the  penalty  was 
fixed  before  the  application  for  the  dis- 
charge of  the  receiver  was  made  and   de- 


BANKS  AND  BANKING. 


Ill 


nied,  and  the  expression  in  the  bond,  "all 
damages  and  costs,"  evidently  meant  such 
damages  and  costs  as  were  incidental  to 
the  appeal.  T.  E.  Hill  Co.  v.  United  States 
Fidelity,  etc.  Co.  (111.)  1917E-78. 

(Annotated.) 
Note. 


Improbable 
1917B-1096. 


testimony     by     bankrupt. 


8.     CRIMES    AGAINST    BANKRUPTCY 
LAW. 

30.  Concealing  Assets.  Bankr,  Act  July 
1,  1898,  c.  541,  §  29b,  30  Stat.  554  (Fed. 
St.  Ann.  1912  Supp.  p.  646),  provides  that 
a  person  shall  be  punished  by  imprison- 
ment for  not  to  exceed  two  years  on  con- 
viction of  having  knowingly  and  fraudu- 
lently concealed  while  a  bankrupt,  or  after 
his  discharge,  from  his  trustee  any  of  the 
property  belonging  to  his  estate  in  bank- 
ruptcy. Cr.  Code  section  332  (Act  March 
4,  1909,  c.  321,  35  Stat.  1152  [Fed.  St.  Ann. 
1909  Supp.  p.  495]),  declares  that  whoever 
commits  any  act  constituting  an  offense  de- 
fined in  any  law  of  the  United  States,  or 
aids,  abets,  counsels,  demands,  induces,  or 
procures  its  commission,  is  a  principal,  and 
section  335  provides  that  all  offenses  which 
may  be  punished  by  death  or  imprison- 
ment for  a  term  exceeding  one  year  shall 
be  deemed  felonies.  It  is  held  that  an  in- 
dictment charging  the  president  and  man- 
ager of  a  bankrupt  corporation  with  know- 
ingly and  fraudulently  aiding  and  abetting 
the  concealment  of  its  assets  charged  a  fel- 
ony. Kaufman  v.  United  States  (Fed.) 
19i6C-466. 

31.  Where  an  alleged  concealment  of 
assets  of  a  bankrupt  corporation  begins 
before  the  appointment  of  a  trustee  and 
continues  after  such  appointment,  it  con- 
stitutes a  concealment  from  him,  within 
Bankr.  Act  July  1,  1898,  c.  541,  §  29b,  30 
Stat.  554  (Fed.  St.  Ann.  1912  Supp.  p.  646), 
making  such  concealment  a  felony.  Kauf- 
man v.  United  States  (Fed.)  1916C-466. 

32.  Concealment  of  Assets.  Bankr.  Act 
July  1,  1898,  c.  541,  §  29b,  30  Stat.  554 
(Fed.  St.  Ann.  1912  Supp.  p.  646),  provid- 
ing that  a  person  shall  be  punished,  etc.  on 
conviction  of  the  offense  of  having  know- 
ingly and  fraudulently  concealed,  while  a 
bankrupt,  or  after  his  discharge,  from  his 
trustee  any  of  the  property  belonging  to 
his  estate  in  bankruptcy,  applies  only  to 
one  who  has  been  adjudicated  a  bankrupt, 
and  not  to  one  guilty  of  aiding  and  abet- 
ting the  bankrupt  in  knowingly  and  fraud- 
ulently concealing  its  assets.  Kaufman  v. 
United  States  (Fed.)  1916C^66. 

33.  In  a  prosecution  of  the  president  and 
manager  of  a  bankrupt  corporation  for 
aiding  and  abetting  the  concealment  of  its 
assets  from  its  trustees,  evidence  held  to 
sustain  a  conviction.  Kaufman  v.  United 
States  (Fed.)  1916C-466. 


34.  Abetting  Concealment  of  Assets.    In 

a  prosecution  of  the  president  and  man- 
ager of  a  bankrupt  corporation  for 
aiding  and  abetting  the  concealment  of 
its  assets  from  its  trustee,  the  fact  that 
there  is  no  evidence  that  defendant  was 
holding  the  moneys  under  an  agreement 
with  the  bankrupt  to  do  with  them  what 
it  requested  does  not  impair  the  govern- 
ment's case.  Kaufman  v.  United  States 
(Fed.)  1916C-466. 

35.  Burden  of  Proof.  While  the  burden 
of  proving  the  concealment  of  assets  by  a 
bankrupt  is  upon  the  trustee,  he  is  not  re- 
quired to  produce  positive  proof  of  an 
agreement  to  conceal,  followed  by  proof 
that  the  property  was  actually  abstracted, 
and  such  proof  is  usually  established  by 
presumptions  drawn  from  the  facts.  In  re 
Graning  (Fed.)  I917B-1094. 

36.  The  bankrupts  utterly  failed  to  give 
any  satisfactory  or  reasonable  explanation 
as  to  what  became  of  the  money,  and  the 
court  erred  in  refusing  to  adjudge  them  in 
contempt  for  failing  to  restore  it  to  the 
estate.    In  re  Graning  (Fed.)  1917B-1094. 

(Annotated.) 

BANKS  AND  BANEINQ. 

1.  Banking  Business  in  General,  111. 

2.  Regulation   and  Control,  112. 

3.  Officers  and  Agents,  113. 

a.  In   General,  113. 

b.  Criminal  Liability,  113. 

4.  Stock  and  Stockholders,  113. 

5.  Deposits,   114. 

a.  In  General,  114. 

b.  Joint   Deposit   and   Right   of  Sur- 

vivorship,   114. 

c.  Special   Deposit,   115. 

d.  Withdrawal,  115. 

e.  Set-off  of  Deposits  Against  Debt, 

115. 

f.  Action  to  Recover  Deposit,  116. 

g.  Recovery  of  Payments,  116. 

6.  Loans,  116. 

7.  Collections,    117. 

8.  Insolvency,   117. 

9.  Savings    Banks,    118. 
10.  National  Banks.  118. 

See  Escrow,  2-8. 

Garnishment  of  debtor's  deposit  of  an- 
other's money,  see  Oamisbment,  1,  5. 

Deposit  in  name  of  donee,  see  Gifts,  10. 

Evidence  to  show  payment  of  draft,  see 
Pasnment,  8-10. 

Personal  liability  of  commissioner.  See 
Public  Officers,  61. 

Personal  liability  of  State  Banking  Board, 
see  Public  Officers,  62. 

National  Banking  Act,  controls  as  to 
usury,  see  Usury.  4. 

1.     BANKING  BUSINESS  IN  GENERAL. 

1.  Power  to  Guarantee.  There  is  no 
provision  in  either  our  state  banking  laws 
or  in  the  federal  banking  laws  that  either 


112 


DIGEST. 

1916C5— 1918B, 


expressly  or  by  implication  empowers  such 
banks  to  guarantee  the  payment  of  a  debt 
of  a  third  party,  solely  for  his  benefit,  and 
any  such  agreement  when  attempted  by 
them  is  ultra  vires,  and  void,  and  is  not 
binding  upon  such  bank  when  made  by 
its  cashier,  since  such  cashier  is  not  au- 
thorized to  bind  such  bank  by  an  agree.- 
ment  that  is  ultra  vires  as  to  such  bank. 
Cottondale  State  Bank  v.  Oskamp  Nolting- 
Co.  (Fla.)  1916D-564.  (Annotated.) 

2.  Ultra  Vires   Guaranty — Estoppel.    A 

customer  of  defendant  bank,  having  se- 
cured a  contract  to  install  electric  fixtures 
in  a  federal  building,  purchased  the  fix- 
tures from  plaintiflfs  assignor  on  the  rep- 
resentation that  defendant  bank  could 
guarantee  payment.  Defendant  sent  plain- 
tiff's assignor  a  telegram,  agreeing  to 
guarantee  the  contractor's  bill  to  the  ex- 
tent of  $2,000,  and,  on  receiving  a  letter 
in  which  plaintiffs  assignor  expressed 
doubts  as  to  the  legality  of  the  bank's 
guaranty,  replied  that  it  had  taken  secur- 
ity and  was  in  a  position  to  make  the 
guaranty;  that  its  ordinary  telegraphic 
guaranty  was  the  usual  order  of  business; 
was  accepted  by  defendant's  New  York 
correspondent  and  other  banks;  that  the 
doubt  of  plaintiffs  assignor  as  to  its  legal- 
ity was  "too  full  a  statement";  and  that 
the  telegram  was  a  guaranty  in  fact. 
Plaintiffs  assignor  thereupon  furnished  the 
fixtures  and  obtained  a  judgment  against 
the  contractor  for  $1,724,  which  it  was 
unable  to  collect.  Held,  that,  there  being 
nothing  in  the  statutes  granting  power  to 
banks  to  make  ^aranties  of  that  char- 
acter or  prohibiting  them  from  doing  so, 
plaintiffs  assignor  having  acted  thereon  to 
his  injury,  the  bank  was  estopped  to  deny 
liability  on  the  ground  that  the  guaranty 
was  ultra  vires.  Creditor's  Claim,  etc.  Co. 
▼.  Northwest  Loan,  etc.  Co.  (WasH.) 
1916D-551.  (Annotated.) 

3.  Validity  of  Contract  of  Guaranty.  A 
guaranty  made  by  a  bank,  without  con- 
sideration, of  an  account  in  which  it  has 
no  interest  is  not  binding.  Mackintosh  r. 
Bank  of  New  Brunswick  (N.  Bruns.) 
1916D-566.  (Annotated.) 

Note. 
Liability  of  bank  on  contract  of  guar- 
anty.    19i6D-554. 

2.     REGULATION  AND  CONTROL. 

4.  State  Supervision.  It  is  the  duty  of 
a  state  banking  board  to  require  a  bank 
to  remove  objectionable  securities  where, 
in  its  opinion,  the  safety  of  the  depositors 
requires  it.  Youmans  v.  Hanna  (N.  Dak.) 
1917E-263. 

5.  Eevlew    of    Order    of    Board.    If    a 

banker  feels  aggrieved  at  the  action  of  the 
state  banking  board  in  requiring  him  to 
remove  objectionable  securities,  he  should 
apply  to  the  courts  to  have  such  order  set 


aside  under  the  provisions  of  paragraph  3, 
S  5U6,  Comp.  Laws  N.  Dak.  1913.     Unless 
this   is   done,   such   order    will    remain    in 
force  and  be  effective.     Youmans  v.  Hanna  • 
(N.  Dak.)  1917E-263. 

6.  Ordering  Bemoval  of  Objectionable 
Securities.  An  order  of  the  state  banking 
board  requiring  the  Savings  Deposit  Bank, 
of  Minot,  to  remove  objectionable  securi- 
ties, and  closing  the  bank  on  account  of 
the  failure  so  to  do,  held  to  have  been 
lawful  and  valid.  Youmans  v.  Hanna 
(N.  Dak.)  1917E-263. 

7.  Powers  of  State  Officers.  The  legisla- 
ture, in  enacting  section  3001,  Rev.  Codes 
Idaho,  making  it  the  duty  of  the  bank  com- 
missioner to  make  an  examination  of  state 
banks,  imposed  such  duty  for  the  benefit 
and  protection  of  the  depositors  as  well  as 
the  public.  State  v.  American  Surety  Co. 
(Idaho)  1916E-209.  (AnnoUted.) 

8.  Arbitrary  power  is  not  unconstitution- 
ally conferred  upon  the  state  superintend- 
ent of  banks  and  banking,  contrary  to 
U.  8.  Const.  14th  Amend,  by  the  provi- 
sions of  Ohio  Gen.  Code,  §§  6373-1  to 
6373-24,  which  require  that  oflBcial,  as  a 
condition  of  granting  the  license  that  such 
statute  makes  a  condition  precedent  to 
dealing  in  corporate  or  quasi  corporate 
securities,  to  be  satisfied  of  the  good  re- 
pute in  business  of  the  applicant  and  its 
selling  agents,  and  empower  him  to  re- 
voke the  license  or  to  refuse  to  renew  it 
upon  ascertaining  that  the  licensee  "is  of 
bad  business  repute,  has  violated  any  pro- 
vision of  the  act,  or -has  engaged,  or  is 
about  to  engage,  under  favor  of  such  li- 
cense, in  illegitimate  business  or  fraudu- 
lent transactions,"  since  there  is  a  pre- 
sumption against  wanton  action  on  his 
part,  and  the  statute  also  affords  judicial 
review  of  his  action  in  cases  where  there 
may  be  a  dispute  of  fact.  Hall  v.  Geiger- 
Jones  Co.  (U.  S.)  1917C-643. 

(Annotated.) 

9.  Banking  Commissioner — Status  and 
Powers.  Under  Laws  Ky.  1912,  c.  4,  §  2, 
providing  for  a  banking  commissioner  and 
prescribing  his  powers  and  duties,  the  com- 
missioner is  not  a  "receiver"  nor  an  "as- 
signee for  the  benefit  of  creditors,"  the 
powers  of  a  receiver  being  limited  by  the 
appointing  court,  and  of  the  assignee  by 
the  powers  and  rights  of  his  assignor,  but 
those  of  the  commissioner  are  limited  only 
by  the  statute.  American  Southern  Nat. 
Bank  v.  Smith  (Ky.)  1918B-959. 

10.  Power  to  Begtdate.  Banks  are 
proper  subjects  of  regulation  by  the  po- 
lice power,  since  they  are  the  chief  re- 
positories of  the  money  of  the  country, 
and  their  solvency  should  be-  safeguarded. 
American  Southern  Nat.  Bank  v.  Smith 
(Ky.)    1918B-959. 

Note. 
Bank  examiners,  1916E>-219. 


BANKS  AND  BANKING. 


113 


3.     OFFICERS   AND  AGENTS, 
a.     In  General. 

11.  A  bank  is  held  not  to  be  bound  by 
a  contract  signed  by  its  manager  as  such. 
GTifBn  V.  Union  Savings,  etc.  Co.  (Wash.) 
1917B-267. 

12.  Unauthorized  Act  of  Agent — Notice 
to  Third  Person.  A  person  who  knows 
that  the  manager  of  a  branch  bank  is  per- 
sonally interested  in  a  transaction  where- 
in he  attempts  to  bind  the  bank  by  a  con- 
tract of  guaranty  is  put  on  inquiry  as  to 
the  extent  of  his  powers.  Mackintosh  v. 
Bank  of  New  Brunswick  (N.  Bruns.) 
1916D-566. 


b.     Criminal  Liability. 

13.  Evidence  of  Insolvency. '  In  the 
prosecution  of  a  bank  cashier  for  accept- 
ing deposits  knowing  the  bank  was  in- 
solvent, evidence  by  the  receiver  as  to 
whether  certain  overdrafts  were  collec- 
tive  is  erroneously  excluded.  Skarda  v. 
State  (Ark.)  1916E-586. 

14.  Receiving  Deposit  When  Insolvent. 

A  cashier  who,  pending  a  decision  of  the 
board  of  directors  to  liquidate  the  bank 
because  of  its  financial  condition^  receives 
all  deposits  offered,  but  with  intent  to 
secure  their  return  to  the  depositors  keeps 
the  same  separate  from  the  funds  of  the 
bank  by  pinning  the  money  received  from 
each  depositor  to  the  deposit  slip  and 
placing  the  same  in  a  box,  does  not  re- 
ceive any  deposit  in  violation  of  the  stat- 
ute, where,  after  the  appointment  of  a 
receiver,  the  identical  money  is  returned 
to  each  depositor  with  a  single  exception, 
and  where  the  failure  of  that  depositor 
to  call  for  and  receive  his  deposit  results 
from  his  failure  to  receive  a  notice  to 
call  at  the  bank  and  receive  the  de- 
posits. Sively  v.  State  (Miss.)  191 7B- 
1075.  (Annotated.) 

15.  Variance  as  to  Deposit.  That  an 
indictment  of  a  bank  cashier  for  accept- 
ing deposits,  knowing  the  bank  was  in- 
solvent, alleged  the  deposit  of  money, 
while  the  proof  showed  a  deposit  of  a 
check,  constitutes  no  variance.  Skarda  v. 
State  (Ark.)  1916E-586. 

16.  An  indictment  against  a  bank  cash- 
ier for  accepting  deposits,  knowing  the 
bank  was  insolvent,  alleging  a  deposit  of 
money,  sufficiently  describes  the  deposit  of 
a  check  drawn  upon  the  bank  by  a  de- 
positor. Skarda  v.  State  (Ark.)  1916E- 
586. 

17.  When  Bank  Is  Insolvent.  Under 
Kirby's  Ark.  Dig.  §  1814,  forbidding  an 
insolvent  bank  to  receive  deposits,  a  bank 
is  insolvent  if,  under  ordinary  circum- 
stances, it  is  unable  to  raise  the  money  to 
pay  its  debts  or  deposits  as  they  become 
due  and  are  presented  for  payment  in  the 

8 


ordinary    course    of    business.     Skarda    v. 
■  State  (Ark.)   1916E-586. 

18.  Description  of  Deposit,  An  indict- 
ment against  a  .bank  cashier  for  ac- 
cepting deposits  knowing  the  bank  was 
insolvent,  alleging  a  deposit  of  $55  of 
gold^  silver,  atd  paper  money,  but  not 
stating  that  it  circulated  as  money  or 
was  of  value,  charges  an  offense  under 
Kirby's  Ark.  Dig.  §  1814,  forbidding  an 
insolvent  bank  to  receive  on  deposit  any 
money,  bank  bills,  or  notes  or  United 
States  treasury  notes,  gold,  or  silver  cer- 
tificates or  currency  or  other  notes,  bills, 
or  drafts  circulating  as  money  or  cur- 
rency. Skarda  v.  State  (Ark.)  1916E'- 
586. 

19.  Proof  of  Authority  of  Bank  Officer. 
In  the  prosecution  of  a  bank  cashier  for 
accepting  deposits,  knowing  the  bank  was 
insolvent,  an  allegation  that  he  was  cash- 
ier when  the  deposit  was  made  is  sus- 
tained by  proof  that  he  had  been  elected 
cashier  and  remained  in  the  bank  osten- 
sibly as  such,  notwithstanding  that  his 
assistant  was  actually  in  charge.  Skarda 
V.  State  (Ark.)   1916E-568. 

20.  An  indictment  against  a  bank  cash- 
ier for  accepting  deposits,  knowing  the 
bank  was  insolvent,  need  not,  in  terms, 
allege  that  defendant  received  the  money 
as  cashier,  when  it  otherwise  appeared 
from  the  indictment.  Skarda  v.  State 
(Ark.)   1916E-586. 

21.  Proof  of  Insolvency   of  Bank.     To 

sustain  the  conviction  of  a  bank  cashier 
for  accepting  deposits,  knowing  the  bank 
was  insolvent,  the  state  must  show  the 
insolvency,  and  that  the  officer  had  knowl- 
edge thereof,  and  it  is  proper  to  show  the 
nature  of  the  bank's  assets  and  liabilities, 
although  such  proof  tends  to  show  the 
commission  of  the  offense  by  the  receipt 
of  other  deposits.  Skarda  v.  State  (Ark.) 
1916E-586. 

22.  In  the  prosecution  of  a  bank  cashier 
for  accepting  deposits  knowing  the  bank 
was  insolvent,  a  complaint  for  the  ap- 
pointment of  a  receiver,  introduced  to 
show  insolvency,  is  inadmissible  as  hear- 
say.    Skarda  v.  State    (Ark.)    1916E-586. 

Notes. 

Intent  as  element  of  offense  of  receiv- 
ing deposit  in  insolvent  bank.  1917B- 
1081. 

Criminal  liability  of  officer  of  insol- 
vent bank  for  receiving  deposit  tnerein 
consisting  of  check  on  same  bank.  1916E- 
592. 

4.     STOCK    AND    STOCKHOLDERS. 

23.  Sale  of  Assets  of  Bank— Transac- 
tion Sustained.  The  purchase  of  the  con- 
trolling stock  in  the  said  bank  by  certain 
of  the  defendants  after  it  has  been  closed 


114 


held  to  have  been  a  vali<l  and  legal  trans- 
action. Youmans  v.  Hanna  (N.  Dak.) 
1917j!;-263. 

5. 


DEPOSITS, 
a.     In  General. 

24.  What  Constitutes  Deposit.  Where 
the  holder  of  a  check  drawn  on  a  bank 
by  a  depositor  presented  it  to  the  bank 
and  demanded  and  was  paid  a  part  there- 
of in  cash,  receiving  a  deposit  slip  show- 
ing a  deposit  to  his  credit  for  the  balance, 
the  transaction  constitutes  a  receipt  of 
the  deposit  within  Kirby's  Ark.  Dig. 
§  1814,  forbidding  an  insolvent  bank  to 
receive  deposits.  Skarda  v.  State  (Ark.) 
1916ii;-586.  ,  (Annotated.) 

25.  Interest  on  Deposits — Effect  of  In- 
solvency. A  receiver  of  an  insolvent 
bank  who  obtains  judgment  on  a  demand 
note  given  by  a  depositor  cannot  complain 
because  the  court  disallowed  interest  on 
the  check  balance  of  the  .deposit  and 
charged  interest  on  the  savings  balance, 
as  though  the  deposit  agreement  therefor 
remained  in  force;  for,  if  it  remained  in 
force,  the  allowance  was  proper,  while,  it 
the  agreement  was  broken  by  the  insol- 
vency, the  allowance  of  the  legal  rate  of 
interest,  which  was  in  excess  of  the  con- 
tract rate,  should  have  been  made.  Will- 
iams V.  Johnson  (Mont.)  1916D-595. 

26.  Payment  of  Depositor's  Note.  Since 
the  relation  of  debtor  and  creditor  exists 
between  a  bank  and  its  depositor,  that  a 
depositor  makes  a  note  payable  at  a  bank 
in  which  he  has  funds  does  not  constitute 
the  bank  his  agent  to  pay  it.  Baldwin's 
Bank  v.  Smith  (N.  Y.)  1917A-500. 

27.  Money  deposited  becomes  part  of 
the  bank's  general  tunds,  and  the  bank 
impliedly  contracts  to  pay  its  depositors' 
checks,  acceptances,  notes  made  payable 
at  the  bank,  and  the  like  to  the  amount 
of  his  credit,  but  the  payment  is  made 
out  of  the  funds  of  the  bank,  not  of 
the  depositor.  Baldwin's  Bank  v.  Smith 
(N.  Y.)   1917A-500. 

28.  Relation  of  Bank — Deposit  as  Trus- 
tee. Where  one  makes  a  deposit  in  his 
name  as  trustee,  that  designation  does  not 
change  his  true  relation  to  the  fund, 
which  may  be  established.  State  Bank- 
ine  Com'r.  v.  E.  Jossman  State  Bank 
(Mich.)  1917C-1203. 

b.     Joint  Deposit  and  Bight  of  Survivor- 
ship. 

29.  A  joint  ownership,  with  the  incident 
of  survivorship  attaching  as  a  matter  of 
law,  may  be  created  in  a  bank  deposit 
by  agreement  between  donor  and  donee. 
Kennedv  v.  McMurray  (Cal.)   1916I>-.515. 

(Annotated.) 

30.  Notwithstanding  Acts  Tenn.  1899, 
e.  94,  §  8,  subd.  5,  declaring  that  a  promis 


DIGEST. 

1916C— 1918B. 

Bory  note  may  be  made  payable  to  one  or 
some  of  several  payees,  a  certificate  of 
deposit  payable  to  a  husband  or  wife, 
naming  them,  must,  in  view  of  the  fact 
that  the  husband  used  the  word  "or"  as 
synonymous  with  "and,"  be  construed  as 
payable  to  the  husband  and  wife.  Smith 
V.  Haire  (Tenn.)  1916B-529. 

(Annotated.) 


31.  A  general  finding  that  one  of  the 
alleged  owners  of  a  bank  deposit  was  sole 
owner  at  his  death  was  controlled  by  spe- 
cial iindings  as  to  the  execution  of  an 
agreement  between  the  parties  constitu- 
ting them  joint  owners  of  the  deposit, 
with  the  incident  of  survivorship  attach- 
ing as  a  matter  of  law.  Kennedy  v.  Mc- 
Murray  (Cal.)   1916D-515. 

(Annotated.) 

32.  Evidence  held  to  show  that  a  father, 
in  executing  an  instrument  prepared  by 
his  savings  bank,  intended  to  create  a 
joint  tenancy  in  the  ueposit  with  his 
daughter  to  which  the  right  of  survivor- 
ship should  attach.  Kennedy  v.  McMur- 
ray   (Cal.)    1916D-515.  (Annotated.) 

33.  In  view  of  the  fact  that  joint  sav- 
ings accounts  are  largely  opened  by  near 
relatives  so  that  the  survivor  shall  take 
the  fund,  where  such  an  account  was 
opened  by  father  and  daughter,  an  agree- 
ment as  to  the  nature  of  their  interests, 
executed  by  them  on  a  form  provided  by 
the  bank  for  its  own  protection,  is  pre- 
sumed a  valid  agreement  between  the 
parties  furnished  by  the  bank  at  their  re- 
quest, creating  a  joint  ownership  to  which 
the  legal  incident  of  survivorship  at- 
tached. Kennedy  v.  McMurray  (Cal.) 
1916-515.  (Annotated.) 

34.  The  mere  fact  that  a  bank  deposit 
is  made  by  one  person  in  the  name  of  him- 
self and  another  is  not  conclusive  as  to 
his  intention  thereby  to  create  such  a 
joint  ownership  in  the  fund  that  the  inci- 
dent of  survivorship  will  attach  thereto  as 
a  matter  of  law,  the  absence  of  a  declara- 
tion of  intention  leaving  the  matter  for 
j'idieial  determination.  Kennedy  v.  Mc- 
Murray (Cal.)  1916D-515. 

(Annotated.) 

35.  Where  deceased  deposited  funds  in 
bank  under  an  instrument  signed  by  him- 
self and  defendant,  his  daughter,  declar- 
ing that  such  funds  and  those  thereafter 
to  be  deposited  were  and  should  be  joint 
between  the  parties  as  to  time,  title,  and 
possession^  that  they  were  the  separate 
property  of  neither,  and  were  payable  to 
either,  and  that  the  receipt  of  either 
therefor  should  be  an  acquittance  of  the 
bank  as  to  the  other,  on  deceased's  death, 
defendant  is  entitled  to  the  fund  on  de- 
posit as  against  his  personal  representa- 
tive; such  a  written  instrument  being  con- 
clusive of  deceased's  intention  to  create  a 
joint  ownership,  the  right  of  survivorship 


BANKS  AND  BANKING. 


115 


following  as  a  legal  incident,  and  so  not 
needing  to  be  expressed.  Kennedy  v. 
McMurray  (Cal.)   1916D-515. 

(Annotated.) 

36.  That  a  husband  who  had  a  certifi- 
cate of  deposit  made  payable  to  himsell: 
and  wife  retained  it  in  his  possession  does 
not  show  a  reduction  to  possession  de- 
stroying the  wife's  rights  of  survivorship. 
Smith  V.  Haire   (Tenn.)   1916D-529. 

(Annotated.) 

37.  Where  a  husband  who  had  a  certifi- 
cate of  deposit  made  payable  to  himselt 
and  wife  made  a  will  carrying  with  it  dis- 
position of  such  certificate,  the  execution 
of  the  will,  which  instrument  was  am- 
bulatory and  did  not  speak  until  the  hus- 
band's death,  did  not  amount  to  a  reduc- 
tion of  the  chose  in  action  to  possession, 
destroying  the  wife's  right  of  survivor- 
ship.    Smith  V.  Haire  (Tenn.)   1916D-529. 

(Annotated.) 
Note. 

Jttights  of  parties  to  joint  deposit  in 
bank.     1916D-519. 

c.     Special  Deposit. 

38.  What  Constitutes.  Where  owner  of 
savings  account  informed  cashier  that 
draft  deposited  was  for  purpose  of  pay- 
ing contractor  for  building  house  and  re- 
fused to  let  it  be  credited  to  her  account, 
whereupon  the  cashier  gave  her  a  special 
receipt  bearing  the  words,  "Sp.  Dept.," 
the  deposit  is  a  special  deposit,  and  the 
money  was  charged  with  a  trust  in  favor 
of  the  contractor,  and  the  bank  does  not 
take  title  to  the  proceeds  of  the  draft. 
Sawyer  v.  Conner  (Miss.)   1918B-388. 

(Annotated.) 

39.  Eights  as  to  Special  Deposit — Prior- 
ity. In  such  case,  the  depositor  is  en- 
titled to  a  preference  against  the  receiver 
of  the  bank  for  the  special  deposit. 
Sawyer  v.  Conner  (Miss.)  1918B-388. 

40.  A  deposit  in  a  bank  is  not  a  special 
deposit,  where  the  banker  is  allowed  to 
loan  out  or  to  use  the  money  deposited. 
A  special  deposit  involves  safe-keeping 
merely,  and  the  return  of  the  identical 
money  or  articles  deposited.  State  v. 
Biektord  (N.  Dak.)   1916D-140. 

41.  What    Constitutes    Special    Deposit. 

A  special  deposit  ig  a  bailment  of  certain 
specified  property,  which  can  be  and  is  to 
be  identified  and  returned.  State  v.  Bick- 
ford   (N.  Dak.)   1916D-140. 

42.  A  special  deposit  as  used  in  para- 
graph 14  of  section  111,  Rev.  Codes  N. 
Dak.,  1905,  implies  the  placing  of  money 
in  a  bank  for  safe-keeping,  so  that  the 
banker  is  a  bailee,  and  must  keep  the 
identical  money  without  mingling  it  with 
the  other  funds  of  the  bank,  to  be  re- 
turned in  kind  to  the  state  treasurer  or 
such  person  or  persons  as  he  mav  direct. 
State  V.  Bickford  (N.  Dak.;  1916D-140. 


d.     Withdrawal. 

43.  Partnership  Deposit — Power  of  One 
Partner  to  Draw.  Funds  deposited  in  a 
bank  to  the  credit  of  a  partnership  may 
be  paid  out  on  checks  signed  with  the 
partnership  name  by  one  of  the  partners, 
since  each  of  the  partners  is  the  agent 
for  the  partnership.  Gish  Banking  Co.  v. 
Leachman's  Adm'r  (Ky.)  1916D-525. 

44.  Joint  Deposit— How  Withdrawn. 
Where  funds  are  deposited  in  a  bank  .to 
the  joint  account  of  a  husband  and  wife, 
the  bank  cannot,  without  special  author- 
ity, pay  them  out  on  checks  signed  by  the 
wife  alone.  Gish  Banking  Co.  v.  Leach- 
man's Adm'r  (Ky.)   1916D-525. 

(Annotated.) 

45.  Deposit  in  Eepresentatlve  Capacity 
— Notice  of  Want  of  Power.  Where  per- 
sons, as  executors,  make  a  deposit  in  a 
bank,  the  representation  contained  in 
such  act  that  they  are  executors  does  not 
merely  charge  it  with  knowledge  that  the 
money  belongs  to  the  estate,  and  put  it 
on  inquiry  as  to  the  depositors  being  exe- 
cutors, but  may,  till  it  receives  notice  of 
its  falsity,  be  relied  on  by  it  in  paying 
out  the  funds  on  their  orders  as  executors. 
Holden  v.  Farmers,  etc.  Nat.  Bank  (N.  H.) 
1917E-23. 

46.  A  bank  in  which  executors,  as  such, 
deposit  money,  is  not  liable  to  the  estate 
for  the  part  thereof  with  which  they  as 
executors  pay  off  a  mortgage  held  by  it 
on  the  property '  of  one  of  them,  where, 
for  all  it  knew,  this  was  a  legitimate  pay- 
ment by  them;  it  not  being  bound  to  over- 
see the  execution  by  them  of  their  trust. 
ITolden  v.  Farmers  etc.  Nat.  Bank  (N.  H.) 
1917E-23. 

47.  Diligence  Eectulred.  A  bank  which 
pays  out  money  on  the  order  of  others 
than  the  depositor,  on  their  false  repre- 
sentation that  they  are  his  executors, 
does  so  at  its  risk.  Holden  v.  Farmers, 
etc.  Nat.  Bank  (N.  H.)  ■1917E-23. 

e.    Set-off  of  Deposits  Against  Debt. 

48.  Set-off  of  Deposit  Against  Debt  to 
Insolvent  Bank.  In  an  action  by  a  re- 
ceiver, upon  a  note  due  an  insolvent  bank 
the  maker  has  a  right  to  set  off  against 
the  note  money  on  deposit  in  the  bank  to 
his  credit  at  the  time  the  receiver  was 
appointed,  notwithstanainc  the  note  was 
not  then  due,  and  notwithstanding  the 
bank  had  pledged  it  to  secure  the  pay- 
ment of  a  debt  which  it  owed,  and  which 
was  paid  out  of  proceeds  of  other  securi- 
ties pledged  at  the  same  time,  and  the 
note  returned  to  the  receiver.  Williams 
V.  Burgess  (W.  Va.)   1917C-1185. 

(Annotated.) 

49.  A  depositor  who  is  indebted  to  a 
bank  on  a  demand  note  in  excess  of  his 
deposit,   is    entitled    to    his    discharge    on 


116 


payment  of  the  difference,  notwithstand- 
ing the  insolvency  of  the  bank,  and  this 
does  not  give  him  a  "preference"  over 
any  other  creditor.  Williama  v.  Johnson 
(Mont.)   1916D-595. 

50.  Deposits  of  one  in  an  insolvent  bank 
and  his  notes  to  the  bank  may  be  set  off 
against  each  other  against  notes  in  the 
hands  of  the  bank  which  are  not  yet  due. 
Hence  depositors  who  were  indebted  to 
the  bank  in  excess  of  the  deposits  cannot 
claim  dividends.  State  Banking  Com'r 
v.  E.  Jossman  State  Bank  (Mich.)  1917C- 
1203.  (Annotated.) 

51.  When  the  debt  of  an  insolvent 
bank,  thus  secured,  has  been  paid  out  of 
the  proceeds  of  a  portion  of  the  securi- 
ties, the  remaining  ones  become  assets  of 
the  bank  to  be  administered  by  the  re- 
ceiver, and  they  are  Subject  to  the  right 
of  set-off  in  favor  of  the  obligors  thereon 
against  the  bank,  existing  at  the  date  of 
the  receiver's  appointment.  Williams  v. 
Burgess  (W.  Va.)  1917C-1185. 

(Annotated.) 

52.  That  the  proceeds  of  a  note,  thus 
deposited  as  security,  would  have  been 
consumed  in  payment  of  the  debt,  if  the 
pledges  had  collected  and  applied  the 
securities  as  they  became  due,  does  not 
affect  the  right  of  set-off,  after  payment 
of  the  debt  and  return  of  the  note  to  the 
receiver  of  the  pledgor.  Williams  v.  Bur- 
gess  (W.  Va.)  1917C-1185. 

(Annotated.) 

53.  Necessity  of  Demand.  No  demand 
is  necessary  for  a  deposit  in  an  insolvent 
bank  in  order  to  set  it  off  against  a  note 
of  the  depositor  in  the  hands  of  the 
receiver.  First  National  Bank  v.  Nye 
County   (Nev.)    1917C-1195. 

(Annotated.) 
Notes. 
Lien  or  set-off  of  insolvent  bank  against 
deposit  for  debt  of  depositor  not  yet  due. 
1917C-1205. 

Right  of  depositor  in  insolvent  bank  to 
set  off  deposit  against  debt  to  bank. 
1917C-1187. 

t.     Action  to  Recover  Deposit. 

54.  Equitable  Lien  on  Deposit.    In  an 

action  against  banks  to  recover  deposits 
held  by  them  in  satisfaction  of  notes 
given  by  an  insolvent  depositor,  a  claim 
of  certain  defendants  to  an  equitable  lien 
created  on  the  deposits  by  an  oral  agree- 
ment that  the  depositor  should  maintain 
in  its  deposit  account  a  balance  equal  to 
at  least  20  per  cent  of  its  discounted 
notes  is  properly  disallowed,  where  it  was 
not  agreed  that  the  banks  should  have  an 
option  to  appropriate  the  deposits  to  pay- 
ment of  discounted  notes,  or  that  they  had 
attempted  to  make  such  an  appropriation 
before  the  appointment  of  receivers  for  the 
insolvent,  or  that  it  had  been  agreed  that 


DIGEST. 

1916C— 1918B. 

they  should  have  a  right  to  hold  such  de- 
posits as  collateral  for  discounted  notes, 
or  that  any  penalty  was  to  be  paid  for 
failure  of  the  corporation  to  keep  such  20 

Set  cent  on  deposit.     Blum  Bros.  v.  Girard 
rational  Bank   (Pa.)    1916D-609. 

55.  Money  Wrongfully  Paid  Out.  One 
to  whom  a  bank  is  liable  on  a  deposit  may 
maintain  suit  therefor  without  demand; 
it  having  paid  it  out  on  the  order  of 
others,  and  claiming  that  they  are  pro- 
tected thereby.  Holden  v.  Farmers,  etc. 
Nat.  Bank  (N.  H.)   1917E'-23. 


g.     Recovery  of  Payments. 

56.  Joint  Deposit  —  Unauthorized  Pay- 
ment by  Bank— Liability,  Where  funds 
which  were  deposited  to  the  joint  account 
of  the  husband  and  wife,  but  which  were 
the  sole  property  of  the  husband,  were 
paid  out  on  the  checks  signed  by  the  wife 
alone,  the  husband  could  recover  the  en- 
tire amount  of  such  payments  from  the 
bank,  except  those  of  which  he  had  re- 
ceived the  benefit.  Gish  Banking  Co.  v. 
Leachman's  Adm'r  (Ky.)  1916-525. 

(Annotated.) 

6.     LOANS. 

57.  A  bank  is  authorized  to  lend  its 
money,  but  not  its  credit.  Cottondale 
State  Bank  v.  Oskamp  Nolting  Co.  (Fla.) 
1916D-564.  (Annotated.) 

58.  The  rule,  upholding  the  liability  ot 
a  bank  which  loaned  money  to  another 
bank  in  excess  of  the  borrower's  charter 
powers  and  accepted  a  pledge  of  assets  in 
security,  to  return  such  assets,  without  re- 
turn of  the  money  loaned,  is  the  same 
regardless  of  how  the  creditor  bank  comes 
into  court.  American  Southern  Nat.  Bank 
v.  Smith  (Ky.)  1918B-959. 

(Annotated.) 

59.  A  bank  which  lends  money  to  an- 
other bank  in  excess  of  the  borrower's 
charter  powers  cannot  claim  the  right  to 
be  placed  in  statu  quo,  though  it  had  no 
actual  notice  of  the  charter  limitation, 
since  the  doctrine  of  constructive  notice 
of  such  limitations  applies.  American 
Southern  Nat.  Bank  v.  Smith  (Ky.) 
1918B-959.  (Annotated.) 

60.  Exceeding  Debt  Limit — Effect.  A 
bank  which  lends  money  to  another  bank 
in  excess  of  the  borrower's  charter  powers 
cannot  defeat  recovery  by  the  banking 
commissioner  of  assets  pledged  to  secure 
such  loan,  on  the  ground  that  the  contract 
is  whollv  void,  and  neither  party  can  ob- 
tain relief  under  it,  since  the  contract  was 
merely  in  excess  of  charter  powers,  and 
not  outside  of  the  corporation  purposes. 
American  Southern  Nat.  Bank  v.  Smith 
(Ky.)  1918B-959.  (Annotated.) 

Note. 
Construction  of  debt  limit  provision  in 
charter    of    private    corporation.     1918B- 
9B6. 


BANKS  AND  BANKING. 


117 


7.     COLLECTIONS. 

61.  Consideration  for  Agreement  to  Col- 
lect. Where  a  bank  takes  notes  for  col- 
lection in  the  usual  course  of  business 
without  making  any  charge  therefor,  the 
general  benefit  from  such  business  is  suffi- 
cient consideration  for  its  agreement  to 
collect.  Citizens  Sav.  Bank,  etc.  Co.  v, 
Northfield  Trust  Co.  (Vt.)  1918A-891. 

62.  The  rule  that  a  bank  to  which  a 
note  was  sent  for  collection  must  pro- 
test it  and  give  notice  of  dishonor  is  a 
rule  of  the  law  merchant,  and  not  a  cus- 
tom, and  need  not  be  stated  in  the  agreed 
statement  of  facts;  but  the  sender  of  the 
note  can  rely  thereon,  unless  the  bank 
shows  a  particular  custom  of  collecting, 
which  was  known  to  the  sender.  Citi- 
zens Sav.  Bank,  etc.  Co.  v.  Northfield 
Trust  Co.  (Vt.)  1918A-891. 

CAnnotated.) 

63.  Where  an  action  against  a  bank  for 
failing  to  protest  and  give  notice  of  dis- 
honor of  a  note  sent  to  it  for  collection  is 
tried  on  an  agreed  statement  of  facts,  it 
is  for  the  defendant  to  show  any  special 
instructions  as  to  the  collection.  Citizens 
Sav.  Bank  etc.  Co.  v.  Northfield  Trust  Co. 
(Vt.)    1918A-891,  (Annotated.) 

64.  Protest  and  Notice  of  Dishonor, 
Where  a  note  was  sent  to  a  bank  for  col- 
lection without  "any  instructions  as  to  the 
means  of  collection,  the  bank  must  use 
all  ordinary  legal  means  for  collecting 
irom  any  parties  liable  thereon,  which  in- 
clude protest  and  giving  notice  of  dis- 
honor. Citizens  Sav.  Bank,  etc.  Co.  v. 
Northfield  Trust  Co.   (Vt.)    1918A-891. 

(Annotated.) 

65.  Application  oi  Deposit.  Sending  a 
note  to  a  bank  where  made  payable  and 
in  which  the  maker  has  funds  is,  in  effect, 
an  order  or  draft  on  the  banker  in  favor 
of  the  holder  for  the  amount  of  the  note, 
and  the  maker  need  not  direct  that  it  be 
charged  to  his  account.  Baldwin's  Bank 
v.  Smith  (N.  Y.)  1917A-500. 

66.  Relation  of  Bank   to  Holder.     The' 

holder  of  a  note,  by  sending  it  to  the 
uank,  where  it  is  made  payable,  for  col- 
lection and  remittance,  constitutes  the 
bank  its  agent  to  collect  the  note  and  re- 
mit the  proceeds.  Baldwin's  Bank  v. 
Smith  (N.  Y.)   1917A-500. 

Note. 

I>uty  of  bank  receiving  paper  for  col- 
lection to  protest  same  and  give  notice 
thereof  in  absence  of  express  instruction. 
1918A-892. 

8.     INSOLVENCY. 

67.  When  Bank  is  "Insolvent."  Within 
the  meaning  of  Ga.  Penal  Code  (1910) 
§  204,   the  insolvency   of   a  bank  is   that 


condition  in  which  its  entire  property  and 
assets  are  insufficient  to  pay  all  of  its 
debts. 

(a)  If  the  entire  property  and  assets 
of  a  bank  are  sufficient  to  discharge  its 
liabilities,  it  is  not  insolvent,  within  the 
meaning  of  Penal  Code  (1910)  §  204,  al- 
tnough  it  may  not  be  able  to  pay  its  debts 
immediately  as  they  become  due,  or  to  pay 
its  depositors  on  demand. 

(b)  Ga.  Civil  Code  (1910)  §  2306,  which 
provides  for  the  winding  up  of  a  bank  by 
tne  state  bank  examiner  under  certain  cir- 
cumstances therein  declared,  does  not  fur- 
nish a  definition  of  insolvency  to  be  ap- 
plied in  construing  Penal  Code  (1910) 
§204.     Griffin  v.  State   (Ga.)-1916C-80. 

(Annotated.) 

68.  In  determining  whether  a  bank  is 
insolvent  under  Kirby's  Ark.  Dig,  §  1814, 
forbidding  insolvent  banks  to  accept  de- 
posits, the  capital  stock  and  surplus  must 
be  considered  as  resources  and  not  as  lia- 
bilities. Skarda  v.  State  (Ark.)  1916E- 
586. 

69.  "May"  as  Meaning  "Must."  The 
word  "may,"  as  used  in  Idaho  Rev.  Codes, 
§  3005,  providing  that,  when  the  bank 
commissioner  has  reasonable  cause  to  con- 
sider a  bank  insolvent,  he  may  immedi- 
ately apply  for  a  receiver,  must  be  con- 
strued to  mean  "must,"  where  to  construe 
it  otherwise  would  give  the  bank  commis- 
sioner such  an  absolute  power  that  he 
would  be  incapable  of  an  abuse  of  dis- 
cretion. State  V.  American  Surety  Co. 
(Idaho)   1916E-209. 

70.  Presumption  of  Fraud.  Properly 
construed,  Ga.  Penal  Code  (1910)  §  204, 
which  provides  for  raising  a  presumption 
of  fraud  against  the  president  and  direc- 
tors of  an  insolvent  bank  chartered  in  this  ' 
state,  is  not  violative  of  the  Fourteenth 
Amendment  of  the  Constitution  of  the 
United  States,  on  the  ground  that  it 
abridges  the  privileges  and  immunities  of 
citizens  of  the  United  States,  or  deprives 
the  president  and  directors  of  an  insol- 
vent bank  of  the  equal  protection  of  the 
laws,  or  deprives  them  of  life,  liberty,  or 
property  without  due  nrocess  of  law,  on 
the  ground  that  similar  provisions  iave 
not  been  made  in  regard  to  the  president 
and  directors  of  other  corporations  than 
banks. 

That  section  is  not  violative  of  the  Four- 
teenth Amendment  of  the  Constitution  of 
the  Uniced  States  for  any  of  the  reasons 
set  out  in  the  first  question  by  the  court 
of  appeals.  Griffin  v.  State  (Ga.)  1916C- 
80. 

71.  Interest  on  Deposits.  Since  the 
effect  of  the  insolvency  of  a  bank  is  to 
make  deposits,  whether  subject  to  check 
or  in  savings  account  for  which  a  pass 
book  is  issued,  due  and  actionable,  a  de- 
positor indebted  to  the  bank  on  a  demand 
note    in    excess    of    the    deposits    of   both 


118 


DIGEST. 

1916C— 1918B. 


classes  is  entitled,  under  Mont.  Bev.  Codes, 
§  6043,  to  interest  on  the  deposits  from  the 
aate  of  the  suspension  and  declared  insol- 
vency to  the  date  of  the  judgment  on  the 
note,  less  the  amount  of  the  deposits 
allowed  as  a  set-ojff.  Williams  v.  Johnson 
(Mont.)   1916D-595. 

72.  Powers  of  Commissioner.  The  re- 
ceiver, or  the  banking  commissioner  who 
has  taken  charge  of  an  insolvent  bank, 
may  disaffirm  a  contract  under  which  the 
bank  borrowed  money  in  excess  of  its  char- 
ter powers  and  pledged  certain  assets,  and 
sue  to  recover  the  assets  without  return- 
ing the  money  borrowed,  since  he  repre- 
sents the  creditors  of  the  bank.  American 
Southern  Nat.  Bank  v.  Smith  (Ky.) 
1918B-959.  (Annotated.) 

73.  The  right  of  the  banking  commis- 
sioner in  charge  of  an  insolvent  bank  to 
disaffirm  an  ultra  vires  contract  by  which 
the  bank  borrowed  money  in  excess  of  its 
powers  and  pledged  assets,  and  to  sue  to 
recover  the  assets,  cannot  be  defeated  on 
the  ground  that  the  bank  received  full 
value  when  the  loan  was  made,  so  that  its 
assets  were  not  impaired  and  creditors 
could  not  complain.  American  Southern 
Nat.   Bank  v.   Smith    (Ky.)    1918B-959. 

(Annotated.) 

74.  Under  Ky.  Laws  1912,  c.  4,  §  2, 
creating  the  office  of  banking  commis- 
sioner and  prescribing  his  duties  and 
powers,  the  commissioner,  on  taking  charge 
of  an  insolvent  bank,  may  sue  to  re- 
cover its  assets,  the  purpose  of  the  act 
being  to  properly  administer  the  affairs 
of  insolvent  banks,  in  doing  which  collec- 
tion of  assets  is  necessary.  American 
Southern  Nat.  Bank  v.  Smith  (Ky.) 
1918B-959. 

Note. 
When  bank  is  "insolvent."     1916C-85. 


9.     SAVINGS   BANKS. 

75.  What  Constitutes  Savings  Bank.  A 
bank  organized  under  Mont.  Rev.  Codes, 
§§  3923-3944,  with  a  capital  stock  repre- 
sented by  shares  transferable  on  the 
books,  and  governed  by  directors,  and  au- 
thorized to  engage  in  various  kinds  of 
business,  not  including  the  business  of  a 
savings  'institution,  except  that  deposits 
may  be  received  and  held  by  it  for  accu- 
mulation at  a  rate  of  interest  agreed  on, 
with  the  right  to  divide  the  profits  among 
the  stockholders,  who  are  liable  for  the 
debts  incurred  by  the  bank  to  the  extent 
of  the  value  of  the  shares  held  by  them, 
is  a  commercial  bank,  and  not  a  "savings 
bank,"  within  sections  3945-3958,  though 
it  includes  in  its  name  the  words  "sav- 
ings bank."  Williams  v.  Johnson  (Mont.) 
1916D-595. 


76.  Nature  of  Institution.  A  "savings 
bank"  has  no  capital  stock,  and  its  incor- 
porators have  no  property  interest  in  the 
funds  deposited,  but  their  sole  office  is  to 
manage  and  invest  the  same  as  trustees 
for  the  depositors,  who  alone  are  inter- 
ested, and  entitled  to  the  profits  of  the 
business,  and  it  is  treated  as  a  quasi  chari- 
table and  benevolent  institution.  Will- 
iams V.  Johnson  (Mont.)  1916D-595. 

10.     NATIONAL  BANKS. 

77.  Banks — Federal  Reserve  Act — Valid- 
ity. Federal  Eeserve  Act  December  23, 
1913,  c.  6,  §  Ilk,  38  Stat.  262  (Fed.  St. 
Ann.  1914  Supp.  p.  272),  providing  that 
the  federal  reserve  board  may  grant  to 
national  banks  applying  therefor,  wnere 
not  in  contravention  of  state  or  local  law, 
the  right  to  act  as  trustee,  executor,  ad- 
ministrator, or  registrar  of  stocks  and 
bonds,  under  such  rules  and  regulations  ag 
the  board  may  prescribe,  is  not  invalid 
as  an  attempted  delegation  of  legislative 
power,  in  violation  of  Const.  U.  S.  art.  1, 
§  1  (8  Fed,  St.  Ann.  290),  declaring  that 
all  legislative  power  shall  be  vested  in 
the  Congress  of  the  United  States,  since 
it  was  only  left  to  the  federal  reserve 
board  as  a  purely  administrative  matter 
to  apply  .the  provisions  of  the  act  to  the 
banks  which  upon  application  are  entitled 
to  its  provisions,  and  the  legislation  grant- 
ing the  power  remained  that  of  Congress. 
People  V.  Brady  (111.)  1917C-1093. 

(Annotated.) 

78.  Exclusiveness    of    Federal    Control. 

National  banks  are  instrumentalities  of 
the  feaeral  government  in  carrying  out 
its  governmental  powers,  and  in  the  con- 
duct of  their  affairs  are  not  subject  to 
the  regulation  or  control  of  the  state  in 
conflict  with  the  laws  of  the  United 
States;  but  Congress  is  the  judge  of  the 
extent  of  powers  to  be  conferred  upon 
national  banks,  and  hag  the  sole  author- 
ity to  regulate  and  control  their  opera- 
tions.    People  V.  Brady  (111.)   1917C-1093. 

79.  Federal  Reserve  Act  December  23, 
1913,  §  Ilk,  providing  that  the  Federal 
Reserve  Board  may  grant  to  national 
banks  applying  therefor,  "when  not  in 
contravention  of  state  or  local  law,"  the 
right  to  act  as  trustee,  executor,  adminis- 
trator, or  registrar  of  storks  and  bonds 
under  such  rules  as  the  board  may  pre- 
scribe, in  view  of  the  board's  rules  re- 
quiring the  trust  department  of  a  bank, 
granted  permission  to  execute  trusts,  to 
be  a  separate  department,  under  the  man- 
agement of  officers  whose  duties  shall  be 
prescribed  by  the  officers  of  the  bank, 
that  the  funds,  investments,  etc.,  shall  be 
held  separate  from  the  funds  and  securi- 
ties of  the  bank,  that  examiners  appointed 
by  the  comptroller  of  the  currency  or  des- 
ignated by  the  board  shall  make  audits  of 


BAR  EXAMINATIONS— BASTARDY. 


119 


the  cash,  securities,  accounts,  and  invest- 
ments of  the  trust  department,  when  ex- 
amination is  made  of  the  banking  depart- 
ment, reserving  to  the  board  the  right  to 
revoke  permits  where,  in  its  opinion,  a 
bank  has  wilfully  violated  its  regulations 
or  toe  laws  of  the  state,  conflicts  with 
state  laws  as  to  state  banks  and  trustees, 
and  with  the  state's  control  over  private 
property  and  its  acquisition  and  disposi- 
tion, and  hence  is  within  the  exception, 
"when  not  in  contravention  of  state  or 
local  law,"  and  unauthorized.  People  v. 
Brady   (111.)    1917C-1093.         (Annotated.) 

80.  Federal  Reserve  Act.  Federal  Re- 
serve Act  December  23,  1913,  §  Ilk,  pro- 
viding that  the  federal  reserve  board 
may  grant  to  national  banks  applying 
therefor,  when  not  in  contravention  of 
state  or  local  law,  the  right  'to  act  as  trus- 
tee, executor,  administrator^  or  registrar, 
etc.,  under  such  rules  as  the  board  may 
prescribe,  is  not  within  the  power  of  Con- 
gress, as  such  functions  belong  exclusively 
to  the  states,  and  as  the  possession  of 
such  powers  by  national  banks  is  not 
necessary  to  their  continued  existence  or 
to  their  performance  of  governmental 
agencies.  People  v.  Brady  (HI.)  1917C- 
1093.  (Annotated.) 

Note. 

Validity  and  effect  of  Federal  Reserve 
Act.     1917C-1099. 

BAR  EXAMINATIONS.  " 
See  Attorneys,  3,  5. 

BARRING  DOWBE. 
See  Dower,  2-11. 

BARRING  ENTAIL. 

See  Estates. 

BASTARDS. 

Inheritance  by,  see  Descent  and  Distribu- 
tion, 5-7. 

Inheritance  through,  see  Descent  and  Dis- 
tribution, 8. 

BASTARDY. 

Invalidity    of    order,    relief,    see   Habeas 

Corpiis,  7. 
Wife  as  witness,  see  Witnesses,  7. 

1.  Nature  of  Proceeding  as  Civil  or 
Criminal.  A  bastardy  proceeding  which 
is  brought  under  the  provisions  of  chap- 
ter 5,  N.  Dak.  Rev.  Codes.  1905,  although 
quasi  criminal  in  its  nature,  is  governed, 
in  so  far  as  its  trial  is  concerned,  by  the 
law  regulating  civil  actions.  State  v. 
Brunette  (N.  Dak.)   1916E-340. 

2.  Mode  of  Ascertaining  Facts.  Sec- 
tion 9655,  N.  Dak.  Rev.  Codes  1905,  which 
provides    that    in    a    bastaray  .proceeding 


and  in  cases  of  a  verdict  of  guilty,  the 
court  "shall  render  such  judgment  as  may 
seem  necessary  to  secure,  with  the  assist- 
ance of  the  mother,  the  maintenance  and 
education  of  such  child  until  such  time  as 
the  child  is  likely  to  be  able  to  support 
itself.  .  .  .  The  court  may  at  any  time 
upon  the  motion  of  either  party  upon  ten 
days'  notice  to  the  other  party,  vacate  or 
modify  such  judgment  as  junstice  may  re- 
quire" presupposes  that  the  court  shall 
reasonably  acquaint  himself  with  the 
necessities  of  the  case.  It  nowhere,  how- 
ever, provides  for  the  method  of  how  the 
information  shall  be  obtained.  The  tak- 
ing of  testimony,  therefore,  upon  such 
questions  and  before  the  rendition  ot 
judgment  is  not  necessary,  where  the  sta- 
tion in  life,  age,  and  occupations  of  all 
of  the  parties  interested  have  been  fully 
exposed  upon  the  trial,  and  especially 
where  tne  defendant  takes  no  exception 
to  the  methods  pursued  by  the  trial  court 
until  after  the  rendition  of  the  judgment. 
State  V.  Brunette  (N.  Dak.)  1916E-340. 

3.  Cross-examination     of    Complainant. 

It  is  not  error  in  a  bastardy  proceeding 
to  refuse  to  allow  the  complainant  to  tes- 
tily on  cross-examination  as  to  whether 
she  had,  outside  of  -the  period  of  gesta- 
tion, asked  the  defendant  to  go  with  her 
to  a  house  of  prostitution.  State  v.  Bru- 
nette (N.  Dak.)  1916E-340. 

4.  Necessity  of  Corroboration  of  Com- 
plainant. It  is  not  necessary  to  a  convic- 
tion unaer  chapter  5  of  the  Criminal  Code 
of  North  Dakota  (Rev.  Codes  1905)  that 
the  testimony  of  the  complainant  should 
be  corroborated  by  other  evidence.  State 
V.  Brunette  (N.  Dak.)    1916E-340. 

5.  Reputation  of  Defendant.    In  a  bas. 

tardy  proceeding  which  is  brought  under 
the  provisions  of  chapter  5,  N.  Dak.  Rev. 
Codes  1905,  evidence  as  to  the  reputation 
of  the  defendant  for  chastity  is  not  ad- 
missible. State  V.  Brunette  (N.  Dak.) 
1916E-340. 

6.  Proof  of  Promise  of  Marriage.  It  is 
not  error  in  a  bastardy  proceeding  to  per- 
mit the  complaining  witness  to  testify 
that  the  defendant,  before  the  acts  of 
intercourse  complained  of,  led  her  to  be- 
lieve that  they  were  to  be  married,  as 
such  evidence  tends  to  show  the  relation- 
ship of  the  parties  and  is  corroborative  in 
its  nature.  State  v.  Brunette  (N.  Dak.) 
1916E-340. 

7.  N.  Y.  Code  Cr.  Proc.  §  684,  provides 
that  neither  a  departure  from  the  form  or 
mode  prescribed  by  the  Code  in  respect 
to  any  pleadings  or  proceedings,  nor  any 
error  or  mistake  therein,  renders  it  in- 
valid unless  it  actually  prejudices  defend- 
ant or  tends  to  his  prejudice  in  respect 
to  a  substantial  right.  Section  861  pro- 
vides, relative  to  bastardy  proceedings, 
tnat  a  person  deeming  himself  aggrieved 
may   appeal   to   the   county   court,   except 


120 


DIGEST. 

19160— 1918B, 


that  a  person  executing  an  undertaking 
to  obey  an  order  of  filiation  and  indem- 
nify the  public  as  provided  in  section  851 
cannot  appeal  from  any  other  part  of  the 
order  than  that  which  fixes  the  weekly 
or  other  allowance  to  be  paid.  It  is  held 
that  the  defendant  in  such  a  proceeding 
arrested  in  a  county  other  than  that  in 
which  the  warrant  was  issued  was  preju- 
diced in  a  substantial  right,  where  he  was 
taken  before  the  magistrate  issuing  the 
warrant  without  being  first  taken  before 
the  magistrate  of  the  county  in  which  he 
was  arrested,  who  indorsed  the  warrant, 
as  he  was  thereby  deprived  of  the  right 
to  give  an  undertaking  in  the  county  ot 
his  residence  and  secure  his  discharge, 
and  was  subjected  to  the  provisions  of 
sections  851  and  852,  which  would  not 
have  been  applicable  if  he  had  given  an 
undertaking,  and  was  denied  the  right  to 
a  full  rehearing  on  an  appeal  to  the 
county  court.  People  v.  Snell  (N.  Y.) 
1917U-222. 

8.  Jurisdiction  of  Proceedings.  An  or- 
der of  filiation  in  a  bastardy  proceeding 
is  void  unless  all  the  material  require- 
ments of  the  statute  are  substantially 
complied  with,  since  the  power  of  a  judi- 
cial tribunal  to  try  or  inquire  and  ad- 
judge in  a  proceeding  purely  statutory  is 
limited  and  confined  by  the  statute,  anH 
the  invalidity  of  the  determination  or  ad- 
judication will  result  from  action  in  dis- 
obedience to,  or  contraventon  of,  the 
statutory  requirements,  as  well  as  from  a 
lack  of  jurisdiction  of  the  subject-matter, 
or  of  the  person.  People  v.  Snell  (N.  Y.) 
1917D-222. 

9.  Uability  of  Father  for  Support.  The 
common  law  did  not  make  the  father  ot 
a  bastard  liable  for  the  support  of  the 
child  or  its  mother,  and  the  father's  lia- 
bility exists  solely  by  virtue  of  the  stat- 
utes.    People  V.  Snell  (N.  Y.)   1917D-222. 

10.  Procedure  tq  Fix  Liability — Neces- 
sity of  Compliance  With  Statute.  The 
proceedings  by  which  the  liability  of  the 
father  of  a  bastard  is  determined  and 
fixed  are  defined  and  controlled  exclu- 
sively by  statute,  which  must  be  in  their 
substance  strictlv  and  fully  complied  with. 
People  v,  Snell  (N,  Y.)  1917D-222, 

11.  Child  Bom  in  Wedlock.  A  child 
bom  in  wedlock  is  presumed  legitimate, 
but  the  presumption  is  not  conclusive. 
Kennedy  v.  State  (Ark.)  1917A-1029. 

12.  Testimony  Insufllcient  to  Overcome 
Presumption.  In  bastardy  proceedings 
testimony  of  the  mother  that  defendant 
had  intercourse  with  her  and  was  the 
father  of  the  child,  and  that  she  had  a 
husband  living,  without  more,  is  insuflB- 
cient  to  overcome  the  presumption  of 
legitimacy,  and  insuflBcient  to  sustain  a 
verdict  against  defendant.  Kennedy  V, 
State  rArk.-)   1917A-1029. 


13.  Necessity  of  Corroboration.  In  ba«. 
tardy  proceedings  it  is  not  necessary  that 
the  testimony  of  the  mother  be  corrobo- 
rated. Kennedy  v.  State  (-\rk.)  1917A- 
1029. 

14.  Jurisdiction— Person  Illegally  Brought 
Within  Jurisdiction.  N.  Y.  Code  Cr.  Proc. 
§  843,  provides,  relative  to  bastardy  pro- 
ceedings, that,  if  the  defendant  reside  in 
a  county  other  than  that  in  which  the 
warrant  is  issued,  the  magistrate  issuing 
it  must  direct  the  sum  in  which  defend- 
ant shall  give  security,  and  the  oflScer 
must  present  it  to  a  magistrate  in  the 
city  or  town  in  which  defendant  resides, 
who  must  indorse  a  direction  thereon  that 
it  be  served  in  that  county.  Section  844 
provides  that,  when  the  defendant  is  ar- 
rested in  another  county,  he  must  be 
tak^n  before  the  magistrate  indorsing  the 
warrant,  or  another  magistrate  of  the 
same  city  or  county,  who  maj-  take  from 
him  an  undertaking  that  he  will  indem- 
nify the  county  and  the  town  or  city,  and 
every  other  county,  town,  or  city  against 
any  expense,  and  pay  the  costs,  or  that 
the  sureties  will  pay  the  sum  indorsed  on 
the  warrant,  or  that  he  will  appear  and 
answer  the  charge  at  the  next  county 
court  of  the  county  where  the  warrant 
was  issued.  Section  845  provides  that, 
when  either  of  such  undertakings  is  given, 
defendant  must  be  discharged,  and  the 
warrant  with  the  undertaking  must  be  re- 
turned to  the  magistrate  granting  the 
warrant.  Section  846  provides  that  if 
defendant  does  not  give  security  he  mu3t 
be  taken  before  the  magistrate  issuing  the 
warrant.  Section  848  provides  for  a  hear- 
ing by  such  magistrate,  and  section  850 
for  an  order  of  filiation,  and  section  851 
provides  that  defendant  must  pay  the 
costs  and  enter  into  an  undertaking  for 
the  child's  support,  and  to  indemnity  the 
county  and  the  town  or  city,  etc.,  or  that 
he  will  appear  at  the  next  term  of  the 
county  court  to  answer  the  charge,  or 
that  the  sureties  will  pay  full  indemnity. 
Section  852  provides  for  the  commitment 
of  the  defendant  to  jail  if  section  851  is 
not  complied  with.  Sections  854  and  853 
provide  for  a  hearing  and  an  order  of 
filiation  when  security  is  taken  out  of 
the  county.  It  is  held  that,  where  de- 
fendant was  arrested  in  another  county 
and  taken  before  the  magistrate  issuing 
the  warrant  without  being  taken  before 
the  magistrate  indorsing  it,  the  magis- 
trate had  no  power  to  commit  defendant 
to  jail  for  noncompliance  with  section  851, 
as  the  statute  is  imperative  and  manda- 
tory, and  it  is  only  when  defendant  has 
been  taken  before  the  magistrate  indors- 
ing the  warrant,  and  fails  to  give  the 
required  undertaking,  that  the  magistrate 
issuing  the  warrant  has  jurisdiction  to 
commit.  People  v.  Snell  (N.  Y.)  1917D- 
222.  (Annotated,) 


BATHING  RESORTS— BENEFICIAL  ASSOCIATIONS. 


121 


15.  Relation  of  Complainant  With  Others 
— Necessity  of   Specific  Questions.     It  is 

not  error  to  refuse  to  permit  the  complain- 
ing witness  to  testify  as  to  presents  given 
her  by  other  men,  -when  the  questions 
asked  are  general  and  are  not  confined  to 
the  times  in  issue.  State  v.  Brunette  (N. 
Dak.)   1916E-340. 

BATHING  RESORTS. 
Duty  to  keep  life  lines,  see  Negligence,  22. 


BATTEBT. 


See  Assault. 


BAWDY   HOUSES. 
See  Disorderly  Houses;  Prostitution. 

BEAVERS. 

Injuries  by,  see  Animals,  4. 
Statute  protecting  beavers,  see  Animals, 
16. 

BEDDING. 

Eegulation     of     bedding     materials,     see 
Health,  5-8. 

BEER. 
See  Intoxicating  Liquors. 

BEES. 

As  wild  animals,  see  Animals,  11-13,  19. 

BENEFICIAL   ASSOCIATIONS. 

1.  Validity  and   Construction  of  Contract 

Generally,   121. 

2.  The  Application,  122. 

3.  Constitution  and  By-laws,  122. 

a.  Construction,   122. 

b.  Operation,   122. 

c.  Amendments,   123. 

4.  Assessments,  123. 

5.  Rights  of  Suspended  Member,  124. 

6.  Beneficiaries,   124. 

7.  Action  to  Recover  Benefits,  124. 

Rights   under    certificate,    see    Conflict    of 

Laws,  7. 
Suit  to  enjoin  assessment,  see  Costs,  7. 
By-laws  in  confiict  with  insurance  statute, 

see  Insurance,  19. 
Action    on    certificate,    see    Limitation    of 

Actions,  12. 

1.    VALIDITY  AND  CONSTRUCTION  OF 
CONTRACT   GENERALLY. 

1.  Provision  Against  Use  of  Intoxicants. 
Defendant's  contract  provided  that  if  any 
holder  of  a  benefit  certificate  should  "be- 
come addicted  to  the  excessive  or  intem- 
perate use  of  intoxicants"  the  defendant 
should  not  be  liable  thereon.     Held,   fol- 


lowing O'Connor  v.  Modern  Woodmen  of 
America,  110  Minn.  18,  124  N.  W.  454,  that 
"the  excessive  or  intemperate  use  of  in- 
toxicants," as  used  in  this  contract,  means 
"that  the  conduct  of  a  member  in  this 
respect  was  of  such  a  nature,  and  the  habit 
so  intemperately  followed,  as  to  impair  his 
health,  mental  faculties,  or  otherwise  ren- 
der the  insurance  risk  on  his  life  more 
hazardous."  Wising  v.  Brotherhood  of 
American  Yeomen  (Minn.)    1918A-621. 

(Annotated.) 

2.  Insurance  Contracts  —  Effect  of  Sui- 
cide— Application  of  Statute.  Under  Rev. 
St.  Mo.  1909,  §  7109  et  seq.,  providing  for 
the  organization  of  fraternal  beneficiary 
associations,  and  Rev.  St.  1899,  §  1408,  de- 
claring such  associations  exempt  from  the 
provision  of  the  general  insurance  laws  of 
the  state,  and  that  no  law  thereafter 
passed  should  apply  to  them  unless  ex- 
pressly designated  therein.  Rev.  St.  1909, 
§  6945,  providing  that  in  suits  on  policies 
of  insurance  on  life  issued  in  that  state  to 
a  citizen  of  that  state  it  shall  be  no  de- 
fense that  the  insured  committed  suicide, 
unless  he  contemplated  such  act  when  he 
applied  for  the  policy,  and  that  any  stipu- 
lation in  the  policy  to  the  contrary  shall 
be  void,  as  construed  by  the  Missouri 
courts,  does  not  apply  to  fraternal  bene- 
ficiary associations.  Travelers'  Protective 
Assoc.  V.  Smith  (Ind.)  1917E-1088. 

3.  Contract  Limitation  of  Time.  Where 
the  contract  of  the  parties  prescribes  a 
limitation  of  time  in  which  to  bring  action, 
which  is  shorter  than  the  statutory  period, 
such  provision,  if  reasonable,  is  valid. 
Such  provisions  are,  however,  in  deroga- 
tion of  law  and  are  not  especially  favored, 
and  should  be  construed  strictly  against 
the  party  invoking  them.  If  the  limitation 
applies  only  under  certain  conditions,  such 
conditions  must  exist  or  it  will  not  bar  an 
action.  Dechter  v.  National  Council 
(Minn.)  1917C-142. 

4.  Restriction  on  Residence  of  Insured. 
The  constitution  of  a  fraternal  society  by 
which  a  member  agreed  in  his  application 
to  be  bound  provided  that  no  benefit  certi- 
ficate should  be  granted  to  any  one  resid- 
ing outside  that  part  of  the  North 
American  continent  between  the  northern 
boundary  of  Mexico  and  the  fifty-fifth 
parallel  of  north  latitude,  and  that,  if  a 
member  should  remove  from  such  territory, 
he  should  forfeit  all  right  to  any  disability 
or  death  benefit.  A  member  who  had  long 
resided  in  Memphis,  where  his  wife  and 
children  continuously  resided,  was  in 
Panama  from  October  to  December,  1908, 
and  again  from  February  to  June,  1910, 
returning  to  his  home  in  Memphis  at  the 
expiration  of  each  of  such  periods.  Held 
that,  construing  the  constitution  strictly 
against  the  insurer,  and  construing  the 
provisions  with  regard  to  residence  in,  and 


122 


DIGEST. 

1916C— 1918B. 


removal  from,  the  specified  territory  in 
pari  materia,  the  policy  was  not  forfeited 
by  the  member's  temporary  sojourn  in 
Panama;  as  the  word  "residing"  referred 
to  the  member's  domicil,  and  implied  a 
legal  residence,  and  not  a  mere  transitory 
existence  in  the  prohibited  territory,  and 
the  prohibited  removal  referred,  not  to  a 
mere  removal  of  the  member's  person,  but 
to  a  removal  of  his  residence.  Lane  v. 
Grand  Fraternity  (Tenn.)   1917A-376. 

(Annotated.) 

5.  What  Constitutes  Membership.  Under 
Iowa  Code  1897,  §  1822,  defining  a  "frater- 
nal beneficiary  association"  as  a  corpora- 
tion, society,  or  voluntary  association, 
formed  for  the  sole  benefit  of  its  mem- 
bers and  their  beneficiaries,  and  having  a 
lodge  system  with  ritualistic  form  of  work 
and  a  representative  form  of  government, 
a  fraternal  association  need  not  require 
members  to  be  initiated  in  order  to  entitle 
them  to  recover  on  their  certificates. 
Schworm  v.  Fraternal  Bankers  Keserve 
Soc.  (Iowa)  1913B-373.  (Annotated.) 

Notes. 

What  constitutes  membership  in  bene- 
ficial association.     1917B-380. 

Construction  of  restriction  in  contract 
of  life  or  benefit  insurance  as  to  travel  by 
or  residence  of  insured.     1917A-381. 

Construction  of  restriction  in  contract  of 
benefit  insurance  as  to  use  of  intoxicants 
by  insured.    1918A-623. 

2.     THE  APPLICATION. 

6.  Misstatement  in  Application.  A  bene- 
fit insurance  certificate  was  not  avoided  by 
misrepresentations  in  the  application  as 
to  the  number  of  the  applicant's  brothers 
and  sisters  and  the  number  who  were 
dead,  where  the  examining  physician,  who 
prepared  the  application,  was  informed 
and  stated  in  the  application  that  the  ap- 
plicant had  been  absent  from  home  for 
years  and  knew  little  about  his  family 
history,  and  where  there  was  no  purpose 
or  attempt  on  the  part  of  the  applicant  to 
deceive  the  company.  Coplin  v.  Woodmen 
of  the  World  (Miss.)  1916D-1295. 

7.  Misstatement  of  Name  of  Applicant. 
Where,  because  of  the  illiteracy  of  an  ap- 
plicant for  insurance,  his  parents,  and 
other  members  of  his  family,  the  family 
name  was  spelled  in  different  ways,  and 
the  applicant  was  known  by  different 
given  or  Christian  names,  a  misstatement 
of  his  name  in  the  application  did  not 
avoid  the  benefit  certificate.  Coplin  r. 
Woodmen  of  the  World  (Miss.)  1916D- 
1295.  (Annotated.) 

3.     CONSTITUTION  AND  BY-LAWS, 
a.     Construction. 

8.  Law  Qoveming  Insurance  Contract. 
Where  the  constitution  of  a  fraternal  bene- 


ficiary association  provides  that  each  ap- 
plication for  membership  must  be  for- 
warded to  the  national  secretary  at  the 
home  office  in  Missouri,  who  shall  refer  it 
to  the  national  directors,  and  that,  if  ap- 
proved, a  certificate  shall  be  issued  by  the 
national  secretary  upon  which  all  benefits 
were  payable  there,  the  policy  is  a  Mi.s- 
souri  contract.  Travelers'  Protective 
Assoc.  V.  Smith  (Ind.)  1917E-1088. 

9.  A  Missouri  association,  which  by  its 
declaration,  purposes,  and  plans  was  under 
the  holding  of  the  courts  of  Missouri,  a  fra- 
ternal association,  does  not,  under  the 
decisions  of  such  courts,  become  an  assess- 
ment company  from  the  fact  that  it  was 
authorized  to  make  assessments.  Travel- 
ers' Protective  Assoc,  v.  Smith  (Ind.) 
1917E-1088. 

10.  Fraternal  or  Assessment  Association. 

The  act  of  a  Missouri  beneficiary  associa- 
tion in  coming  into  this  state  and  comply- 
ing with  its  assessment  laws  is  not  a 
declaration  that  it  is  an  assessment  asso- 
ciation, since  its  real  character  was  deter- 
mined by  its  articles  of  association,  poli- 
cies, or  certificates,  or  by  the  mutual 
character  of  the  business  it  transacted,  or 
attempted  to  transact;  especially  in  view 
of  the  fact  that  Burns'  Ind.  Ann.  St.  1914, 
§  4764,  excepts  fraternal  associations  from 
the  operation  of  the  assessment  laws. 
Travelers'  Protective  Assoc,  v.  Smith 
(Ind.)    1917E-1088. 

11.  Suspension  of  Member  —  Officers 
Authorized  to  Suspend.  The  constitution 
of  a  fraternal  society  provided  that  the 
fraternity  should  be  composed  of  a  su- 
preme governing  council,  and  a  board  of 
directors,  etc.,  and  that  the  governing 
council  should  have  power  to  try  any  mem- 
ber and  expel  or  otherwise  punish  him. 
The  by-laws  made  all  the  death  and  dis- 
ability payments  expressly  subject  to  an 
agreement  not  to  remove  from  the  part 
of  the  North  American  continent  between 
the  northern  boundary  of  Mexico  and  the 
fifty-fifth  parallel  of  north  latitude,  and 
authorized  the  directors  to  cancel  any 
benefit  certificate  for  the  breach  of  such 
covenant.  Held,  that  neither  the  president 
of  the  fraternity  nor  its  grand  secretary 
had  any  authority  to  suspend  a  member 
or  discontinue  the  acceptance  of  his  dues 
because  of  his  removal  from  the  specified 
territory,  and  a  letter  written  a  local  lodge 
by  the  secretary  instructing  it  not  to  re- 
ceive his  dues  did  not  suspend  him.  Lane 
V.  Grand  Fraternity  (Tenn.)  1917A-376. 

b.     Operation. 

12.  Statement  in  Constitution  as  Sestrlc- 
tive.  The  by-laws  of  the  association  hav- 
ing provided  that  policies  may  be  made 
payable  to  the  affianced  wife  of  the  in- 
sured,  a   policy   so   payable  is   valid,   al- 


BENEFICIAL  ASSOCIATIONS. 


123 


though  the  object  of  the  association,  as 
stated  in  its  constitution,  is  to  provide  in- 
surance for  the  surviving  relatives  of  its 
members.  Christenson  v.  Madson  (Minn.) 
1916C-584. 

13.  Designation    of    Beneficiaries.     The 

classes  of  persons  eligible  as  beneficiaries 
under  policies  issued  by  a  fraternal  asso- 
ciation are  to  be  determined  by  the  rules 
adopted  for  the  express  purpose  of  gov- 
erning such  matters,  and  not  by  general 
statements  made  for  the  purpose  of  in- 
dicating the  general  object  of  such  asso- 
ciation, and  restrictions  limiting  the 
classes  who  may  be  so  designated  must  be 
expressed  in  positive  terms  and  cannot  be 
inferred  from  general  statements.  Chris- 
tenson V.  Madson  (Minn.)  1916C-584. 

c.     Amendments. 

14.  Effect  on  Existing  Contracts.  Wlere 
the  insurance  contract  between  a  fraternal 
beneficiary  association  and  its  members 
provided  that  if  the  insured  committed 
suicide,  sane  or  insane,  within  two  years, 
the  association  should  be  liable  for  only 
one-fifth  the  amount  of  the  benefit  cer- 
tificate, and  that  the  insured  should  be 
bound  by  the  laws  of  the  order  then  in 
force  or  thereafter  enacted,  a  subsequent 
amendment  making  the  suicide  provision 
effective  for  a  period  of  five  years  is  bind- 
ing upon  a  member  who  commits  suicide 
while  sane,  and  upon  those  claiming  under 
his  benefit  certificate.  Ledy  v.  National 
Council  (Minn.)   1916E-486. 

15.  Effect  on  Absentee  Whose  Death  is 
Subsequently  Presumed.  In  such  case  an 
insurer  cannot  avoid  its  contract  of  insur- 
ance  on  the  life  of  such  absentee  because 
of  an  alleged  violation  by  the  insured  of 
a  by-law  adopted  by  the  insurer  during 
such  unexplained  absence,  without  evi- 
dence that  the  insured  was  living  when 
the  by-law  was  adopted.  McLaughlin  v. 
Sovereign  Camp  (Neb.)  1917A-79. 

16.  Increase  of  Assessment.  A  Certifi- 
cate, issued  by  a  fraternal  insurer,  author- 
ized the  association  to  levy  as  many 
assessments  as  might  be  necessary  to  meet 
death  losses.  The  by-laws  under  which 
the  certificate  was  issued  declared  that  the 
member  should  pay  the  same  rate  of  assess- 
ment as  long  as  he  remained  in  good  stand- 
ing. The  association  reserved  the  right  to 
change  the  by-laws.  It  is  held  that  there 
was  no  contract  in  the  ordinary  sense,  the 
insurance  being  but  a  mutual  promise  by 
every  member  to  pay  the  certificate  of 
every  other  member;  hence  the  holder  had 
no  vested  right,  preventing  the  associa- 
tion from  raising  the  assessment  to  such  a 
rate  as  would  pay  death  claims.  Thomas 
V.  Knights  of  Maccabees  (Wash.)  1917B- 
804.  (Annotated.) 


Note. 
Validity   of  amendments  to  by-laws  of 
fraternal   benefit    societies    as   applied   to 
existing  members.     191'JB-814. 

4.     ASSESSMENTS. 

17.  Under  Laws  "Wash.  1911,  pp.  281, 
290,  §§  214,  228,  respectively,  declaring 
that  no  fraternal  association  shall  trans- 
act business  in  the  state  which  does  not 
provide  for  periodical  assessments  suffi- 
cient to  provide  for  meeting  its  mortuary 
obligations,  and  that  the  laws  of  such 
societies  shall  provide  that  if  the  stated 
contributions  are  insufficient,  increased 
rates  shall  be  collected,  a  fraternal  order 
has  the  right  to  increase  the  rates  of 
members  so  as  to  be  able  to  meet  death 
claims.  Thomas  v.  Knights  of  Maccabees 
(Wash.)    1917B-804.  (Annotated.) 

18.  Where  a  fraternal  order  increased 
the  assessments,  as  was  its  right,  a  mem- 
ber is  not  entitled  to  rescind  his  contract 
and  recover  back  the  sums  already  paid 
in;  the  order  not  breaching  its  contract. 
Thomas  v.  Knights  of  Maccabees  (-Wash.) 
1917B-804,  (Annotated.) 

19.  In  view  of  Laws  Wash.  1911, 
pp.  279,  281,  §§210,  214,  declaring  that 
fraternal  associations  may  create  and  in- 
vest a  surplus  and  grant  paid-up  insur- 
ance, not  exceeding  in  value  the  propor- 
tion of  the  reserve  to  the  credit  of  such 
members,  and  that  no  member  shall  have 
individual  rights  or  become  entitled  to 
any  part  of  the  reserve  otherwise,  a  mem- 
ber of  a  fraternal  insurer,  which  accumu- 
lated a  reserve  to  pay  death  claims,  has 
no  right  to  require  the  insurer  to  apply 
the  reserve  to  current  deficiencies  in 
assessments,  where  the  reserve  was  not 
sufficient  to  make  up  the  deficiency  in 
assessments  and  pay  the  estimated  claims. 
Thomas  v.  Knights  of  Maccabees  (Wash.) 
1917B-804.  (Annotated.) 

20.  That  a  fraternal  insurer,  authorized 
to  levy  as  many  assessments  as  might  be 
necessary  to  meet  death  losses,  increased 
the  amount  of  the  assessments,  but  not 
their  number,  does  not  give  a  member  any 
equitable  rights;  the  effect  being  the  same 
as  if  more  numerous  assessments  were 
levied.  Thomas  v.  Knights  of  Maccabees 
(Wash.)   1917B-804.  (Annotated.) 

21.  Where  the  assessments  paid  by 
younger  members  were  sufficient  to  pay 
their  insurance,  an  older  member  cannot 
complain  that  an  increase  in  assessments 
was  made  solely  upon  members  of  more 
advanced  age.  Thomas  v.  Knights  of 
Maccabees  (Wash.)  1917B-804. 

(Annotated.) 

22.  As  there  was  no  contract,  there 
could     be     no     estoppel     preventing     the 


124 


DIGEST. 

19160— 1918B. 


society  from  raising  the  assessments. 
Thomas  v.  Knights  of  Maccabees  (Wash.) 
1917B-804.  (Annotated.) 

23,  Waiver  of  Nonpayment  of  Assess- 
ment. In  an  action  upon  a  certificate  of 
insurance  issued  by  a  fraternal  benefit 
association,  the  by-laws  of  which  provide 
that  a  member  who  has  failed  to  pay  an 
assessment  on  or  before  the  last  day  in 
the  month  for  which  assessments  are  due 
shall  be  suspended  without  notice  and  re- 
main suspended  until  reinstated  by  filing 
a  health  certificate  and  the  payment  of 
delinquent  dues  and  assessments,  it  is 
held  (following  Foresters  v.  Hollia,  70 
Kan.  71,  78  Pac.  160,  and  Fenn  v.  Life  In- 
surance Co.,  90  Kan.  34,  133  Pac.  159) 
that  the  facts  stated  in  the  opinion  show 
the  adoption  by  the  association  of  a  cus- 
tom and  course  of  conduct,  at  variance 
with  the  by-laws,  which  estop  the  associa- 
tion from  claiming  a  forfeiture,  and  that, 
the  death  of  the  assured  occurring  prior 
to  the  time  at  which  the  custom  permitted 
her  to  pay  the  assessment,  she  was  at  the 
time  of  her  death  a  member  in  good 
Btandirtg.  Edmiston  v.  The  Homesteaders 
(Kan.)   1916D-588.  (Annotated.) 

Note. 
Waiver  of  forfeiture  of  benefit  certifi- 
cate   for    nonpayment    of    assessment    or 
dues  by  acceptance  of  arrearages  or  simi- 
lar act.     1916D-591. 

6.     EIGHTS     OF     SUSPENDED     MEM- 
BER. 

24.  Amount  of  Recovery — Deduction  of 
Dues.  Where  a  fraternal  society  wrong- 
fully declared  a  benefit  certificate  for- 
feited and  refused  to  accept  dues  there- 
under, but  it  was  kept  alive  by  the  ten- 
der of  dues,  the  amount  of  the  dues  which 
the  society  should  have  received  should 
be  deducted  from  the  amount  recoverable 
under  the  certificate.  Lane  v.  Grand  Fra- 
ternity  (Tenn.)   1917A-376. 

25.  Tender  of  Dues.  Where  a  fraternal 
society  wrongfully  declared  a  benefit  cer- 
tificate forfeited,  and  refused  to  accept 
dues  thereunder,  the  tender  of  such  dues 
as  they  became  due  until  the  death  of 
the  member  kept  his  rights  alive.  Lane  v. 
Grand  Fraternity  (Tenn.)   1917A-376. 

6.     BENETTCIAEIES. . 

26.  Designation  of  Beneficiary  by  Will. 

Designation  of  the  beneficiary  of  the 
amount  agreed  by  a  benefit  society  to  be 
paid  on  death  of  a  member  may  be  made 
by  will,  this  appearing  to  be  the  plan  of 
the  society.  Armstrong  v.  Walton 
(Miss.)    1916E-137. 

27.  Liability  of  Third  Person  for  Indu- 
cing    Change.       Although     a     beneficiary 


named  by  a  member  in  a  certificate  issued 
by  a  benefit  society  may  not  have  such  a 
vested  interest  as  to  prevent- the  member 
from  changing  the  beneficiary,  where  per- 
mitted so  to  do  by  the  statute  law,  the 
charter,  by-laws,  or  certificate,  yet  a 
beneficiary  who  has  been  so  named  is  not 
an  entire  stranger  to  the  contract,  but  has 
such  an  interest  that  if  a  third  person,  by 
false  and  malicious  defamation  of  the 
beneficiary,  fraudulently  induces  the 
member  to  change  the  certificate  and  ap- 
point such  person  as  the  new  beneficiary, 
who  receives  the  amount  specified,  upon 
the  death  of  the  member,  when  otherwise 
the  fund  payable  at  the  death  of  the 
member  would  have  been  received  by  such 
original  beneficiary,  this  will  furnish  a 
basis  for  an  action  ,on  the  case  for  dam- 
ages by  the  injured  person  against  the 
person  bo  acting.  Mitchell  v.  Langley 
(Ga.)   1917A-469.  (Annotated.) 

7.     ACTION  TO  RECOVER  BENEFITS. 

28.  Prematurity.  Where  defendant 
fraternal  benefit  society,  after  institution 
of  suit  on  a  death  benefit  certificate, 
passed  unfavorably  upon  the  claim  before 
the  case  came  to  trial,  repudiating  it  in 
toto  and  refusing  to  allow  or  pay  it,  de- 
fendant cannot  be  heard  to  complain  of 
the  premature  institution  of  suit;  there 
being  no  provision  in  the  certificate  or 
by-laws  of  the  defendant  restricting  the 
institution  of  suits  within  any  time  after 
filing  of  proofs  of  loss.  Werner  v.  Fra- 
ternal Bankers'  Reserve  Soc.  (Iowa) 
1918A-1005. 

29.  Burden  of  Proving  Violation.     The 

burden  of  proving  the  violation  of  such 
provision  of  the  contract  is  on  the  de- 
fendant. Wising  v.  Brotherhood  of 
American    Yeomen    (Minn.)    1918A-621. 

30.  Evidence  Showing  Nature  of  Asso- 
ciation. In  an  action  to  recover  for  fraud 
in  the  settlement  of  a  certificate  issued 
by  defendant  to  plaintiffs  husband  on  the 
ground  that  plaintiff,  the  beneficiary,  had 
been  induced  to  accept  a  smaller  sum  by 
reason  of  defendant's  fraudulent  repre- 
sentations that  that  was  all  that  was  due 
or  recoverable  under  the  policy,  which 
was  a  Missouri  contract,  the  evidence  is 
held  to  show  that  the  defendant  was  not 
an  accident  insurance  company  or  an 
assessment  insurance  company,  but  was  a 
fraternal  beneficial  association  under  the 
laws  of  the  state  of  Missouri.  Travelers' 
Protective  Assoc,  v.  Smith  (Ind.)  1917E- 
1088. 

31.  Expulsion  of  Association.  The  evi- 
dence does  not  show  that  plaintiff  ac- 
quiesced in  a  wrongful  claim  of  expulsion. 
Dechter  v.  National  Council  (Minn.) 
1917C-142. 


BENEFICIARY— BILLS  AND  NOTES. 


125 


32.  Admissibility  of  Certificate  Without 
Other  Parts  of  Contract.  The  beneficiary 
certificate  of  a  fraternal  order  may  be 
received  in  evidence  without  offer  of  the 
application,  the  medical  examination,  or 
the  laws  of  the  order,  though  these  docu- 
ments, form  part  of  the  contract  between 
the  member  and  the  ofder.  Dechter  r. 
National  Council  (Minn.)  1917C-142. 

(Annotated.) 

33.  Variance  Between  Pleading  and 
Proof.  The  complaint  in  an  action  on 
a  beneficiary  certificate  of  a  fraternal 
order  alleged  an  absolute  obligation 
to  pay  a  certain  sum  on  the  death 
of  the  member.  The  certificate  in  fact 
contained  some  conditions.  It  is  clear 
that  defendant  was  not  misled.  Under 
Minn.  Gen.  St.  1913,  §  7789,  providing 
that  the  court  shall  disregard  all  defects 
in  pleadings  which  do  not  affect  the  sub- 
stantial rights  of  the  adverse  party,  the 
variance  was  not  fatal.  Dechter  t.  Na- 
tional Council  (Minn.)  1917C-142. 

Note. 

Admissibility  of  benefit  certificate  in 
evidence  without  other  parts  of  contract. 
1917C-145. 

BENEFICIAEY. 
See  LJfe  Insurance,  22-25. 


or  continue  to  cohabit  with  such  second 
husband  or  wife  in  the  state,  he  or  she 
shall  be  deemed  guilty  of  "polygamy," 
the  unlawful  marriage  must  be  contracted 
or  the  unlawful  cohabitation  must  be  con- 
tinued in  the  state,  each  being  a  distinct 
offense,  so  that  an  information  charging 
defendant  with  an  unlawful  marriage  in 
another  state,  but  not  charging  that  he 
continued  to  cohabit  with  such  second 
wife  in  this  state,  alleges  no  offense.  Peo- 
ple T.  Devine   (Mich.)   1917C-1140. 

(Annotated.) 

Note. 
Cohabitation  under  foreign  marriage  as 
bigamy.     1917C-1141.  ^ 

BILL  BOABDS. 
See  Advertising. 

BILL  OF  DISCOVERT. 
See  Discovery. 

BILL  OF  EXCEPTIONS. 
See  Appeal  and  Error,  59-70. 

BILL  OF  EXCHANGE. 

See  Bills  and  Notes. 


BEST  EVIDENCE. 
See  Evidence,  43-50. 


BILL  OF  INTEKPLEADEB. 
See  Interpleader. 


BEVERAGES. 
See  Intoxicating  Liquors. 

BIAS. 

A.3    disqualification    of    juror,    see    Jury, 
16-18. 

BIDS. 

See  Auctions  and  Auctioneers,  4,  5. 
On  city  contracts,  see  Municipal  Corpora- 
tions,  129,   130, 

BiGAivrsr. 

See  Husband  and  Wife;  Marriage. 

1.  First  Marriage  Voidable.  Where  de- 
fendant's marriage  to  the  daughter  of  his 
half-sister  was  not  void,  but  voidable,  and 
no  proceeding  to  have  it  declared  invalid 
was  ever  commenced,  his  marriage  to  an- 
other woman  after  separation  from  his 
first  wife  is  bigamous.  State  v.  Smith 
(S.  Car.)   1917C-149. 

2.  What  Constitutes.  Under  Mich. 
Comp.  Laws  1897,  §  11691,  declaring  that 
if  any  person  having  a  former  husband  or 
wife    living    shall    marry    another    person 


BILL  OF  PARTICULARS. 
See  Money  had  and  Received,  U 

BILL  OF  REVIEW. 

See  Equity,  35-39;  Limitation  of  Actions, 

7. 

BILL  OF  RIGHTS. 

See  Constitutional  Law. 

BILLS  AND  NOTES. 

1.  Construction      of      Is'^egotiable     Instru- 

ments Act,  126. 

2.  Form  and  Construction,  127. 

3.  Consideration,  127. 

4.  Execution  and  Delivery,  127. 

5.  Negotiability  and  Transfer,  128. 

a.  Effect  of  Various  Provisions  upoa 

Negotiability,  128. 

b.  Indorsement,  128. 

6.  Presentment  and  Demand,  129. 

7.  Parties  Entitled  to  Notice  of  Dishonor, 

129. 

8.  Discharge  and  Payment,  129. 

9.  Rights  and  Liabilities  of  Parties,  129. 

a.  In   General,   129. 

b.  Indorsers,  130. 

c.  Accommodation  Makers,  130. 


126 


DIGEST. 

1916C— 1918B. 


d.  Bona  Fide  Purchasers,  130. 

(1)  Who  are,  130. 

(a)  In   General,   130. 

(b)  Transfer  as  Security  for 

Pre-existingDebt.  131. 

(2)  What      Defenses      Available 

Against,   131. 
•  e.  Forged  Instruments,  131. 
f.  Non-negotiable  Instruments,  132. 
10.  Actions,   132. 

a.  Who  may  Sue,  132. 

b.  Joinder  of  Defendants,  132. 

c.  Issues,  132. 

d.  Evidence,  133. 

e.  Instructions,  134. 

f.  Damages,    134. 

g.  Directing  Verdict,  135. 
*         h.  Judgment,  135. 

See  Alteration  of  Instruments. 

Issue   of  notes  by   county,  see  Counties, 

14-17,  23. 
Promissory    note    is    property,    see    False 

Pretenses,  2. 
Gift   of   note    payable   to    donor's   estate, 

see  Gifts,  3. 
Action  on   lost  note,  pleading  and  proof, 

see  Lost  Instmments,  1-3. 
Effect  of  finding  pending  action,  see  Lost 

Instruments,  4. 
Note  as  payment,  see  Payment,  2. 
Payment  vf  debt  defense  to  pledged  note, 

see  Pledge,  2. 
Reformation,  see  Bescisslon,  Cancellation 

and  Beformatlon,  2. 
Effect    of    usury    on    renewal    note,    see 

Usury,  12-18. 


1.     CONSTEUCTION    OF    NEGOTIABLE 
INSTRUMENTS  ACT. 

1.  Signature  In  Blank  on  Back.  Under 
the  Negotiable  Instruments  Law  (Va. 
Code  1904,  §  2841a,  subsec.  63),  the  pres- 
ence of  a  name  on  the  back  of  a  note 
without  indication  by  appropriate  words 
of  an  intention  to  be  bound  in  some  other 
capacity  classes  such  signer  as  an  in- 
dorser.  CoUey  v.  Summers  Parrott  Hard- 
ware Co.  (Va.')  1917D-375. 

2.  Stipulation  for  Attorney's  Fees.  Un- 
der the  Negotiable  Instruments  Law  (Va. 
Code  1904,  §  2841a),  and  in  view  of  the 
fact  that  at  its  Enactment  the  validity  of 
the  provision  of  a  note  for  attorney's  fees 
was  unsettled  in  this  state,  and  in  view  of 
the  purpose  and  policy  of  the  Negotiable 
Instruments  Law  and  of  the  course  of  de- 
cision prevailing  in  a  majority  of  the 
states  having  substantially  the  same  law 
and  of  the  importance  of  the  uniformity 
of  interpretation,  a  provision  in  a  promis- 
sory note  governed  by  the  laws  of  the 
state  for  a  ten  per  cent  attorney's  fee  if 
suit  should  be  brought  thereon  is  valid. 
Colley  v.  Summers  Parrott  Hardware  Co. 
(Va.)    1917D-375.  (Annotated.) 


3.  Chapter  81  of  the  Acts  of  1907,  chap- 
ter 98  A  (sees.  4172-4368)  of  the  W.  Va. 
Code,  known  as  the  Negotiable  Instru- 
ments Law,  does  not  legalize  contracts  ex- 
pressly condemned  and  declared  void  by 
the  statutes  of  this  stato,  nor  those  for- 
bidden by  the  policy  of  its  laws.  Raleigh 
County  Bank  v.  Poteet  (W.  Va.)  1917D- 
359.  (Annotated.) 

4.  Stipulation  for  Attorney's  Fees.  Pro- 
vision in  a  note  for  an  attorney's  fee,  if 
it  be  not  paid  without  sirit,  by  prior  de- 
cisions held  invalid  as  against  public 
policy,  but  not  rendering  uncertain  the 
sum  payable  nor  affecting  negotiability,  is 
not  validated  by  the  Negotiable  Instru- 
ments Law  (Ark.  Acts  1913,  p.  260),  which 
by  section  2  declares  that  provision  in  a 
note  for  payment  of  an  attorney's  fee 
shall  not  prevent  the  sum  payable  being  a 
"sum  certain,"  necessary  for  negotiability, 
and  by  section  5,  after  declaring  non-' 
negotiable  an  instrument  whioh  contains 
an  order  or  promise  to  do  an  act  in  addi- 
tion to  the  payment  of  money,  and  mak- 
ing certain  exceptions  thereto,  provides: 
"But  nothing  in  this  section  shall  vali- 
date any  provision  or  stipulation  other- 
wise illegal."  Bank  of  Holly  Grove  v. 
Sudbury  (Ark.)   1917D-373. 

(Annotated.) 

5.  Time  of  Taking  Effect.  Negotiable 
Instruments  Law  (Vt.  Acts  1912,  No.  99) 
by  the  provisions  of  section  185  does  not 
apply  to  negotiable  instruments  made  and 
delivered  prior  to  June  1,  1913.  First 
National  Bank  v.  Bertoli  (Vt.)  1917B- 
590. 

6.  Gaming  Consideration.  Chapter  81, 
Acts  of  1907  (chapter  98a  [sees.  4172- 
4368],  of  the  W.  Va.  Code),  known  as  the 
Negotiable  Instruments  Law,  does  not  by 
implication  or  otherwise  repeal,  limit,  or 
qualify,  in  any  degree  or  respect,  section 
1  of  chapter  97  (sec.  4168)  of  the  Code, 
declaring  void  what  are  commonly  known 
as  gambling  contracts.  Twentieth  Street 
Bank  v.  Jacobs  (W.  Va.)  1917D-69o. 

7.  Transfer  —  Who  is  "Holder"  —  Nego- 
tiable Instruments  Law.  Rev.  Stat.  Mo. 
1909,  §  10001,  providing  that  an  instru- 
ment is  negotiated  when  it  is  transferred 
from  one  person  to  another  in  such  man- 
ner as  to  constitute  the  transferee  the 
holder  thereof  and,  if  payable  to  bearer, 
by  the  indorsement  of  the  holder  com- 
pleted by  delivery,  and  section  10004, 
providing  that  a  special  indorsement 
specifies  the  person  to  whom  or  to  whose 
order  the  instrument  is  to  be  made  pay- 
able, and  that  the  indorsement  of  such 
indorsee  is  necessary  to  the  further  nego- 
tiation of  the  instrument,  do  not  prescribe 
an  exclusive  method  by  which  negotiable 
instruments  may  be  transferred,  but  only 
prescribe  the  manner  in  which  their  ucgo- 


BILLS  AND  NOTES. 


127 


liability  or  independence  of  equities  ex- 
isting apainst  the  transferor  may  be 
preserved,  and  in  other  respects  the  law 
in  force  prior  to  the  passage  of  the 
Negotiable  Instruments  Law,  of  which 
such  sections  are  a  part,  remain  un- 
touched, except  in  so  far  as  the  rights  of 
the  transferee  are  enlarged  by  the  terms 
of  that  section,  especially  in  view  of 
section  10019,  providing  that,  when  the 
holder  of  an  instrument  transfers  it  for 
value  without  indorsing  it,  the  transfer 
vests  in  the  transferee  the  title  of  the 
transferor,  and  in  addition  the  right  to 
the  indorsement  of  the  transferor,  if 
omitted  by  accident  or  mistake,  since 
"negotiated,"  as  used  in  the  Negotiable 
Instruments  Law,  is  not  equivalent  to 
"assigned"  or  "transferred,"  in  their 
broadest  sense,  nor  is  "holder"  synony- 
mous with  "owner"  or  "party  in  interest"; 
the  word  "negotiate"  being  derived  from 
"negotiable"  and,  when  used  in  connection 
with  tfie  same  subject,  partaking  of  the 
same  meaning,  and  the  word  "holder"  re- 
ferring to  such  a  title  as  constitutes  a 
party  a  holder  in  due  course.  Carter  v. 
Butler   (Mo.)   1917A-483. 

2.     FORM  AND  CONSTRUCTION. 

8.  A  note  of  a  corporation  was  signed 
by  the  corporation  per  secretary  and 
treasurer,  and  then  followed  the  signature 
of  eight  persons,  each  of  whose  signature 
was  followed  by  the  word,  "director."  It 
is  held  that,  as  the  name  of  the  corpora- 
tion was  attested  by  the  secretary  and 
treasurer,  it  cannot  be  assumed  that  those 
who  signed  as  directors  did  so  for  the 
purpose  of  attesting  the  signature  of  the 
corporation,  and  it  must  be  assumed  that 
they  were  individually  liable  as  makers, 
the  word  "director"  being  mere  descrip- 
tion. Bank  of  Corning  v.  Nimnieh 
(Ark.)  1917D-566,  (Annotated.) 

9.  Person  Signing  as  Oflcer  of  Corpora- 
tion. "Where  a  note  is  signed  with  the 
name  of  a  corporation,  followed  by  the 
names  of  oflBcers,  giving  their  official  title, 
indicating  that  they  are  signing  in  their 
official  capacity,  the  corporation  alone  is 
tion.  Bank  of  Corning  v.  Nimnieh 
(Ark.)    1917D-566.  (Annotated.) 

10.  Note  Secured  by  Mortgage  —  Con- 
struction Together.  In  construing  a  note, 
a  mortgage  executed  at  the  same  time  and 
as  a  part  of  the  same  transaction  is  to 
be  considered  along  with  the  note,  but 
that  does  not  mean  that  the  provisions  of 
the  mortgage  become  part  of  the  note. 
Des  Moines  Savings  Bank  v.  Arthur 
(Iowa)    1916C-498. 

11.  Construction — Necessity  of  Consent 
of  Holder.  A  promissory  note,  containing 
the  provision  that  "all  parties  hereto  .  .  . 
agree  that  this  note  may  be  extended  from 


time  to  time  by  any  one  or  more  of  us 
without  the  knowledge  or  consent  of  any 
of  the  others  of  us,  and  after  such  exten- 
sion, the  liability  of  all  parties  shall  re- 
main as  if  no  such  extension  had  been 
made,"  grants  no  power  to  the  maker  or 
other  parties  to  the  note  to  extend  the 
time  of  payment  without  the  consent  of 
the  payee  or  holder.  First  National  Bank 
V.  Stover  (N.  Mex.)   1918B-145. 

(Annotated.) 
Notes. 

Construction  of  extension  of  or  agree- 
ment to  extend  time  of  payment  of  note. 
1918B-15r. 

Liability  of  person  signing  negotiable 
paper  as  officer  of  corporation.  1917D- 
568. 

3.    CONSIDERATION. 

12.  Discharge  of  Other  Notes.  Where  a 
promissory  note  is  given  to  discharge  two 
other  notes  which  are  surrendered  to  the 
indorser  of  the  note  given,  the  note  is 
supported  by  consideration.  Travis  v. 
Unkart  (N.  J.)   1917C-1031. 

13.  Inadequacy  of  Consideration.  In- 
adequacy of  consideration  is  no  defense  to 
an  action  on  a  promissory  note,  unless 
there  was  fraud  also  on  the  part  of  ^e 
promisee.  Caldwell  v.  Ruddy,  2  Idaho 
(Hash.)  1,  1  Pac.  339,  cited  and  followed. 
Harshbarger  v.  Eby  (Idaho)   1917C-753. 

14.  Pre-existing  Debt.  A  pre-existing 
debt  is  a  sufficient,  consideration  for  a 
note.  Colley  v.  Summers  Parrott  Hard- 
ware Co.  (Va.)  1917D-375. 

15.  Failure  of  Consideration.  Where  a 
note  is  not  included  within  the  conditional 
terms  of  a  contract  of  sale  of  a  business, 
but  is  given  as  the  equivalent  of  cash  for 
a  preliminary  payment,  its  consideration 
does  not  fail  by  reason  of  the  recaption 
of  the  property  by  the  vendor  upon  the 
vendee's  default,  and  the  vendor  may  still 
enforce  it.  Norman  v.  Meeker  (Wash.) 
1917D-462.  (Annotated.) 

16.  Presumption  of  Consideration. 
Where  the  note  sued  on  recites  "value  re- 
ceived," it  is  prima  facie  evidence  of  con- 
sideration, sufficient,  if  not  rebutted,  to 
maintain  plaintiff's  case.  Palmer  v. 
Blanchard   (Me.)   1917A-809. 

4.     EXECUTION    AND    DELIVERY. 

17.  Delivery  of  Note.  Findings  by  the 
trial  court  that  after  a  joint  maker  signed 
the  note  it  was  left  in  the  possession  of 
his  comaker,  by  whom  it  was  altered  so 
as  to  be  payable  to  bearer,  and  that  there- 
after it  was  delivered  to  and  accepted  by 
plaintiff  in  payment  of  a  debt,  show  that 
the  note  was  delivered  by  the  first  maker 
to  the  plaintiff  and  that  he  held  it  as 
payee,  not  as  indorser.  Builders  Lime,  etc. 
Co.   v.  Weimer   (Iowa)   1917C-1174. 


128 


DIGEST. 

1916C— 1918B. 


18.  Ccnditicnal  Delivery.  A  promissory 
note  delivered  by  a  person  who  has  exe- 
cuted the  same  upon  the  express  condition 
that  such  note  shall  not  be  deemed  the 
note  of  the  party  so  executing  it,  or  as  de- 
livered, unless  it  is  also  executed  by  an- 
other person  as  a  comaker,  cannot  be  en- 
forced by  the  payee  against  the  person  so 
executing  it,  unless  also  executed  by  the 
other  person  so  named  in  the  condition  as 
u  comaker.  First  State  Bank  v.  Kelly 
(N.  Dak.)   1917D-1044. 

19.  Delivery.  As  a  general  rule,  a  ne- 
gotiable promissory  note,  like  any  other 
written  instrument,  has  no  legal  or  opera- 
tive existence  as  such  until  it  has  been 
delivered  in  accordance  with  the  purpose 
and  intention  of  the  parties.  First  State 
Bank  v.  Kelly  (N.  Dak.)  1917D-1044. 

5.     NEGOTIABILITY  AND  TRANSFER. 

a.    Effect    of     Various    Provisions    upon 
Negotiability. 

20.  Uncertainty  as  to  Amount.  Pro- 
visions of  a  mortgage  given  as  security 
for  a  note  executed  at  the  same  time  and 
as  a  part  of  the  same  transaction,  making 
the  mortgage  security  for  the  payment  of 
taxes  and  insurance  by  the  mortgagor,  but 
not  containing  any  promise  to  pay  the 
same,  do  not  render  the  note  non-negotiablo 
lor  uncertainty  in  the  amount  payable,  as 
such  provisions  in  no  way  affect  the  obli- 
gation of  the  note.  Des  Moines  Savings 
Bank  v.  Arthur  (Iowa)  1916C-498. 

(Annotated.) 

21.  Provision  for  Discount.  A  promis- 
sory note  is  not  rendered  non-negotiable  by 
the  insertion  of  the  following  provision: 
"A  discount  of  six  per  cent  will  be  al- 
lowed, if  paid  in  full  within  fifteen  days 
from  date."  Farmers  Loan,  etc,  Co.  v. 
Planck  (Neb.)  1918B-598. 

(Annotated.) 

22.  Provision  for  Extension  of  Time.  A 
provision  in  a  note  for  extending  time 
does  not  render  the  note  non-negotiable 
under  the  law  merchant  or  the  provisions 
of  the  Negotiable  Instruments  Law  (Law 
N.  Mex.  1907,  c.  83).  First  National  Bank 
V.  Stover  (N.  Mex.)    1918B-145. 

23.  What  Constitutes  Uncertainty  as  to 
Amount.  A  provision  in  a  mortgage  that 
the  mortgagor  would  pay  the  taxes  on  the 
mortgage  on  a  certain  contingency  did  not 
render  the  note  secured  non-negotiable  for 
uncertainty  in  the  amount  payable,  since  it 
did  not  entitle  the  mortgagee  to  recover 
such  taxes  as  a  part  of  the  indebtedness, 
but  only  made  the  mortgage  a  lien  there- 
for. Des  Moines  Savings  Bank  v.  Arthur 
(Iowa)    1916C-498.  (Annotated.) 

24.  A  stipulation  in  a  note  that  the 
payee  may  recover  any  taxes  on  the  prem- 
ises mortgaged  as  security  therefor  which 


the  payee  shall  pay  renders  it  non-nego- 
tiable for  uncertainty  as  to  the  amount 
payable,  since  no  one  can  tell  what  future 
tax  levies  will  be.  Des  Moines  Savings 
Bank  v.  Arthur  (Iowa)  19160-498. 

(Annotated.) 

25.  Uncertainty  as  to  Date  of  Maturity. 
Under  the  Negotiable  Instruments  Act 
(Iowa  Code  Supp.  1907,  §  3060al),  providing 
that  an  instrument  to  be  negotiable  "must 
be  payable  on  demand  or  at  a  fixed  or 
determinable  future  time,"  a  clause  in  the 
mortgage  given  as  security  that  the  mort- 
gagee might  declare  the  debt  due  for  de- 
fault of  the  mortgagor  did  not  render  the 
note  non-negotiable  for  uncertainty  as  to 
the  time  of  payment.  Des  Moines  Saving's 
Bank  v.  Arthur  (Iowa)   1916C-498. 

(Annotated.) 

26.  A  mortgage,  giving  the  mortgagee 
the  right  to  declare  the  debt  due  without 
regard  to  whether  the  mortgagor  is  in  de- 
fault, renders  the  note  for  whigh  it  is 
security  non-negotiable  for  uncertainty  as 
te  the  time  of  payment.  Des  Moines  Sav- 
ings Bank  v.  Arthur  (Iowa)  1916C-498. 

(Annotated.) 

27.  Negotiability.  A  promissory  note 
does  not  necessarily  possess  the  quality  of 
negotiability.  Colley  v.  Summers  Parrott 
Hardware  Co.  (Va.)  1917D-375. 

Note. 
Negotiability   of     note     containing   pro- 
vision   allowing    discount    if    paid    within 
certain  time.     1918B-600. 

b.     Indorsement. 

28.  Under  Iowa  Code  Supp.  1907,  §  3060a- 
191,  defining  a  "holder"  as  the  payee  or 
indorsee  of  a  bill  or  note  who  is  in  pos- 
session of  it,  section  3060a52,  par.  4,  de- 
fining a  holder  in  due  course  and  irovidiug 
that  at  the  time  it  was  negotiated  to  such 
holder  he  must  have  had  no  notice  of  an 
infirmity,  and  section  3060a30,  providing 
that  an  instrument  is  "negotiated"  when 
it  is  transferred  from  one  person  to  an- 
other in  such  manner  as  to  constitute  the 
transferee  the  holder  thereon  and  that  if 
payable  to  bearer  it  is  negotiable  by  de- 
livery, while  if  payable  to  order  it  is  iir<?o- 
tiated  by  the  indorsement  of  the  hoMor 
completed  by  delivery,  it  is  held  that  only 
one  to  whom  a  note  has  been  negotiated 
after  completion  and  delivery  thereof  is  a 
"holder  in  due  course,"  not  one  to  whom 
a  note  payable  to  holder  was  delivered  by 
the  maker.  Builders  Lime,  etc.  Co.  v. 
Weimer  (Iowa)  1917C-1174. 

29.  "Who  is  Indorsee.  The  fact  that  the 
first  maker  and  two  others  indorsed  the 
note  before  it  was  delivered  to  plaintiff 
did  not  make  plaintiff  an  indorsee  as  to 
the  other  makers,  even  if  it  had  been 
i&sued  to  the  others  and  by  them  returned 


BILLS  AND  NOTES. 


129 


to  the  first  maker,  since  in  such  a  case  the 
redelivery  to  plaintiff  would  have  the  same 
effect  as  if  it  was  an  original  issue.  Build- 
ers Lime,  etc.  Co.  v,  "Weimer  (Iowa)  1917C- 
1174. 

30.  The  "signature,"  which,  under  Colo. 
Eev.  St.  1908,  §§  4494,  4526,  constitutes 
indorsement  of  a  note,  is  not  the  mere 
written  name,  but  includes  genuineness. 
Marks  t.  Munson  (Colo.)    1917A-766. 

(Annotated.) 
Note. 
"When  note  payable  on  demand  is  over- 
due    as     between     maker     and     indorser. 
1917B-842. 

6.     PRESENTMENT  AND  DEMAND. 

31.  Acceptance  Payable  When  Funds  axe 
Available.  Where  a  bill  of  exchange  was 
"accepted  payable  out  of  proceeds  of 
Northwestern  Fisheries  Company  contract 
w^hen  same  becomes  available,"  the  appli- 
cation by  the  acceptor  of  a  remittance 
constituting  part  of  such  proceeds  to  the 
amount  due  on  the  drawer's  indebtedness 
to  the  acceptor,  owing  before  fhe  accept- 
ance, is  a  violation  of  the  acceptance; 
"available"  meaning  merely  "at  one's  dis- 
posal," in  the  absence  of  proof  of  a  trade 
definition,  while  the  holder  of  a  condi- 
tional acceptance  gets  what  the  acceptance 
says  he  gets,  even  if  exceeding  the  rights 
of  the  drawer.  Schwabacher  Hardware 
Co.  V.  Miller  Sawmill  Co.  (Wash.)  1918A- 
940.  (Annotated.) 

32.  Failure  to  Present  for  Payment.  The 
failure  to  make  demand  at  the  time  and 
place  of  payment  agreed  upon  does  not 
exonerate  the  debtor,  whose  readiness  to 
pay  at  the  specified  time  and  place  is 
merely  equivalent  to  a  tender.  Baldwin's 
Bank  v.  Smith  (N.  Y.)  1917A-500. 

Note. 
Construction  of  acceptance  of  bill  of  ex- 
change conditioned  on  possession  or  avail- 
ability of  funds.     1918A-941. 

7.     PARTIES    ENTITLED    TO    NOTICE 
OF  DISHONOR. 

33.  Notice  to  Directors  Indorsing  Note 
of  Corporation.  .That  accommodation  in- 
dorsers  of  a  note  are  directors  of  the  cor- 
poration, which  is  the  maker,  and  consti- 
tute a  majority  of  the  board  of  directors, 
does  not  deprive  them  of  right  to  notice 
of  dishonor.  Houser  v.  Fayssoux  (N. 
Car.)  1917B-835.  (Annotated.) 

34.  Accommodation.  Accommodation  in- 
dorsers  of  a  note  are  entitled  to  notice 
of  dishonor.  Houser  v.  Fayssoux  (N.  Car.) 
1917B-835. 

Note. 
Right   to   notice   of    dishonor   of   stock- 
holder or  officer  indorsing  corporate  paper. 
1917B-836. 
9 


8.     DISCHARGE  AND  PAYMENT. 

35.  What  Constitutes  Payment.  Where 
the  holder  of  a  note  sends  it  to  the  bank 
where  made  payable  for  "collection  and 
remittance,"  and  on  the  date  of  maturity 
the  bank  is  directed  by  the  maker  to 
charge  the  note  to  his  account,  he  at  all 
times  having  had  sufficient  funds  therein 
to  pay  the  note,  the  loss  caused  by  the 
failure  of  the  bank  to  remit  and  its  in- 
solvency seven  days  after  maturity  of  the 
note  must  fall  on  the  holder,  the  bank 
being  his  agent,  in  view  of  Negotiable  In- 
struments Law  (N.  Y.  Consol.  Laws,  c, 
38)  §  147,  providing  that  when  an  instru- 
ment is  made  payable  at  a  bank,  it  i« 
equivalent  to  an  order  to  the  bank  to  pay 
the  same  for  the  account  of  the  principal 
debtor  therein.  Baldwin's  Bank  v.  Smith 
(N.  Y.)   1917A-^00.  (Annotated.) 

36.  Where  the  person  to  whom  payment 
of  the  principal  of  a  negotiable  instrument 
is  made  is  not  in  possession  of  the  instru- 
ment, the  burden  is  upon  the  party  making 
the  payment  to  show  the  agent's  authority 
by  clear  and  satisfactory  evidence.  Con- 
nell  V.  Kaukauna  (Wis.)  1918A-247. 

37.  Payment  of  Negotiable  Instrument. 
Payment  of  a  negotiable  instrument  must 
be  made  to  the  •  party  having  possession 
of  it,  or  duly  authorized  by  the  payee  to 
accept  payment.  Connell  v.  Kaukauna 
(Wis.)  1918A-247. 

Note. 

What  constitutes  payment  of  note  at 
bank  where  it  is  made  payable.  1917A- 
508. 

I 

9.     RIGHTS     AND      LIABILITIES     OF 
PARTIES. 

a.     In   General. 

38.  Effect  of  Renewal  After  Disability 
Bemoved.  Where  a  married  woman  exe- 
cuted a  note  to  a  bank  which  was  several 
times  renewed,  the  fact  of  such  renewals, 
and  that  the  last  note  was  executed  by 
her  when  sold  for  a  remaining  balance 
of  the  debt,  does  not  preclude  her  from 
urging  any  defense  against  it  that  she 
might  have  made  against  the  original  note. 
First  National  Bank  v.  Bertoli  (Vt.) 
1917B-590. 

39.  What  Constitutes  Fictitious  Payee. 
Plaintiff,  whose  real  name  was  John 
Storch,  but  who  had  assumed  the  name  of 
M.  Krause,  and  who  loaned  defendant 
money  on  a  note  payable  to  the  order  of 
M.  Krause,  suing  in  his  real  name  after 
its  resumption,  can  recover,  as,  it  being 
the  intention  of  plaintiff  that  the  note 
should  be  payable  to  himself,  he  is  not  a 
"fictitious  payee,"  which  means  a  fictitious 
person  who,  though  named  in  the  note,  has 
no  right  to  it  or  to  its  proceeds,  because 
it  was  not  so  intended  when  the  note  was 


130 


DIGEST. 

19160— 1918B. 


executed,  and  depends  on  the  knowledgo 
or  intention  of  the  party  against  whom  it 
is  attempted  to  assert  the  rule,  and  not 
upon  the  actual  existence  or  nonexistence 
of  a  payee  of  the  same  name  as  that  ap- 
pearing in  the  instrument,  so  that  a  real 
person  may  be  a  fictitious  payee  and  a  non- 
existing  person  mav  be  real  within  the 
rule.  Soekland  v.  Storch"  (Ark.)  1918 A- 
668.  (Annotated.) 

Note. 
Fictitious  payee  of  promissory  note  or 
bill.     1918A-669. 

b.    Indorsers. 

40.  Renewal.  A  payment  by  the  maker 
on  a  note  before  the  bar  of  the  statute 
does  not  operate  as  a  renewal  of  the  note 
as  to  mere  accommodation  indorsers, 
though  it  does  as  to  sureties,  as  well  as  the 
maker.  Houser  t.  Fayssoux  (N.  Oar.) 
1917B-835. 

c.    Accommodation  Makers. 

41.  Signer  as  Maker  or  Surety.  The 
mere  fact  that  the  consideration  for  a  note 
passed  to  the  maker  who  first  signed  it 
does  not  show  that  the  other  signers  were 
liable  as  sureties,  and,  if  nothing  more 
appears,  they  will  be  treated  as  makers. 
Builders  Lime,  etc.  Co.  v.  Weimer  (Iowa) 
1917C-1174. 

42.  To  Bona  Fide  Holder.  In  such  ease, 
BOtwithstanding  plaintiff  was  not  a  holder 
in  due  course  as  defined  by  Md.  Code  Pub. 
Civ.  Laws,  art.  13,  §  71,  yet  as  section  14 
declares  that  the  term  "holder"  means  the 
payee  or  indorsee  of  a  bill  or  note  who  is 
in  possession  of  it,  or  the  bearer  thereof, 
the  Negotiable  Instruments  Act  is  applic- 
able, though  the  suit  was  between  the 
•riginal  parties,  plaintiff,  the  payee  of  the 
note,  being  a  holder  within  the  act,  as  sec- 
tions 43  and  45  declare  that  every  negoti- 
able instrument  is  deemed  prima  facie  to 
have  been  issued  for  a  valuable  considem- 
tion,  and  any  person  whose  signature  ap- 
pears thereto  to  have  been  a  party  for 
value,  and  that  where  value  has  at  any 
time  been  given,  the  holder  is  deemed  a 
holder  for  value,  and  section  48  provides 
that  an  accommodation  party  is  liable  to  a 
holder  for  value  notwithstanding  such 
holder  knew  him  to  be  only  an  accommo- 
dation party.  Jamesson  v.  Citizens  Na- 
tional Bank  (Md.)  1918'A-1097. 

43.  Nature  of  Liability.  Negotiable  In- 
struments Act  (Md.  Code  Pub.  Civ.  Laws, 
art.  13),  §  15,  declares  that  the  person  pri- 
marily liable  on  an  instrument  is  the  per- 
son who,  by  the  terms  of  the  instrument,  is 
absolutely  required  to  pay  the  same,  and 
that  all  other  parties  are  secondarily  liable. 
Section  138  declares  that  a  negotiable  in- 
strument is  discharged  by  payment  in  due 
course  by  or  on  behalf  of  the  principal 


debtor;  by  payment  in  due  course  by  the 
party  accommodated;  by  the  intentional 
cancellation  thereof  by  the  holder;  by  any 
other  act  which  will  discharge  a  simple 
contract  for  the  payment  of  money,  and 
where  the  principal  debtor  becomes  the 
holder  of  the  instrument  at  or  after  ma- 
turity in  his  own  right.  Section  139  pro- 
vides the  methods  by  which  a  person  sec- 
ondarily liable  on  the  instrument  is  dis- 
charged. Defendant  as  maker  signed  a 
joint  and  several  note,  although  he  was 
only  a  surety  of  the  real  principal.  Upon 
bankruptcy  of  the  principal  debtor,  de- 
fendant tendered  to  plaintiff  the  amount  of 
the  note,  which  tender  was  refused.  There- 
after defendant  tendered  to  the  circuit 
court  of  the  county  in  which  suit  on  the 
note  was  pending  the  amount  thereof,  but 
before  payment  could  be  made,  plaintiff 
dismissed  the  suit,  thereafter  proving  the 
note  as  a  claim  in  the  bankruptcy  proceed- 
ing. It  is  held  that  as  plaintiff  was  one 
primarily  liable,  he  was  not  discharged  by 
reason  of  his  tender.  Jamesson  v.  Citi- 
zens National  Bank  (Md.)  1918A-1097. 

(Annotated.) 

44.  Benunciation  of  Bights  against  Ac- 
commodation Maker.  Defendant,  one  of 
the  makers  of  a  note  who  was  actually 
only  a  surety,  tendered  payment  to  plain- 
tiff upon  the  bankruptcy  of  the  principal 
debtor,  but  such  tender  was  declined.  Ne- 
gotiable Instruments  Act  (Md.  Code,  art. 
13),  §  141,  declares  that  the  holder  may  ex- 
pressly renounce  his  rights  against  any 
party  to  the  instrument,  before,  at,  or  after 
its  maturity,  and  that  an  absolute  renun- 
ciation of  his  rights  against  the  principal 
debtor  discharges  "  the  instrument,  but  a 
renunciation  must  be  in  writing,  unless  the 
instrument  is  delivered  up  to  the  person 
primarily  liable  thereon.  It  is  held  that 
a  refusal  of  the  tender  was  not  a  renuncia- 
tion of  the  holder's  rights  against  defend- 
ant. .Jamesson  v.  Citizens  National  Bank 
(Md.)  1918A-1097. 

45.  Acceptance  of  Accommodation  Maker 
as  Surety.  The  payee  of  a  note  does  not 
accept  one  of  the  makers  as  a  surety 
merely,  because  he  knows  that  he  is  not 
actually  the  principal  debtor,  the  Md.  Ne- 
gotiable Instruments  Act,  §  48,  declaring 
that  an  accommodation  party  is  liable  to  a 
holder  for  value  notwithstanding  the 
holder  at  the  time  of  taking  the  instru- 
ment knew  him  to  be  only  an  accommoda- 
tion party.  Jameason  v.  Citizens  National 
Bank  (Md.)  1918A-1097. 

d.     Bona  Fide  Purchasers. 

(1)     Who  are. 

(a)     In  General. 

46.  Note  Containing  Blank.  Iowa  Code 
Supp.  1907,  §  3060a52,  defines  a  holder  in 
due  course  as  one  who,  in  good  faith  and 


BILLS  AND  NOTES. 


131 


for  Talue,  has  taken  a  note  regular  on  its 
face,  before  it  was  overdue,  and  without 
notice  of  dishonor  or  of  any  infirmity  or 
defect  in  the  title  of  the  party  negotiating. 
A  note  recited  that  it  was  payable  in  "four 

,"     Section   3060a6    declares   that   the 

validity  of  a  note  shall  not  be  affected  be- 
cause it  is  undated.  It  is  held  that  the 
holder  of  the  note  was  not  a  "holder  in  due 
course,"  for  it  was  not  complete  and  regular 
on  its  face;  the  omission  not  falling  within 
the  exception.  Estate  of  Philpott  (Iowa) 
1917B-839. 

47.  Under  Iowa  Code  Supp.  1907, 
§  3060al4,  providing  that  the  person  in 
possession  has  prima  facie  authority  to 
complete  a  note  by  filling  up  blanks,  and 
that  if  any  such  instrument  after  comple- 
tion is  negotiated  to  a  holder  in  due 
course,  it  shall  be  effectual  in  his  hands  is 
if  the  blanks  had  been  filled  in  in  accord- 
ance with  the  authority  given,  the  indorsee 

of  a  note  payable  in  "four  "  is  not  a 

holder  in  due  course;  the  blanks  not  hav- 
ing been  filled.  Estate  of  Philpott  (Iowa) 
1917B-839. 

48.  Bona  Fide  Purchase — Pleading  Sufl- 
cient.  Where,  in  an  action  against  the 
joint  makers  of  a  note,  defendant  pleaded 
that  his  signature  was  procured  by  fraud 
of  the  payee,  a  replication  stating  that  the 
note  was  indorsed  by  the  payee  before  ma- 
turity to  a  bank  to  secure  a  loan  made  by 
the  bank  without  notice  of  any  defense, 
and  that  the  bank,  after  due  notice  to  the 
payee  and  pursuant  to  an  agreement  with 
hjm,  sold  the  note  to  plaintiff  after  the 
payee's  default,  and  applied  the  proceeds 
on  the  loan,  brings  plaintiff  within  the  pro- 
tection of  Ala.  Code  1907,  §§  5012-5014,  re- 
lating to  the  rights  of  holders  of  commer- 
cial paper  acquired  in  due  course,  and  is 
therefore  not  demurrable.  Jackson  v. 
Georgia  Fire  Ins.  Co.  (Ala.)  1917A-807. 

49.  Circumstances  Putting  One  on  In- 
quiry. The  general  principles,  running 
throughout  the  whole  law,  that  notice  of 
ta(^ts  which  should  put  one  upon  inquiry 
and  which,  if  followed  up  with  diligence 
and  understanding,  would  lead  to  the  truth, 
have  no  application  to  the  question  of 
good  faith  in  the  taking  of  negotiable  in- 
struments. The  question  in  such  cases  is, 
Did  the  holder  have  actual  knowledge  of 
the  infirmity  or  defect,  or  knowledge  of 
such  facts  that  his  action  in  taking  the 
instrument  amounted  to  bad  faith?  Sus- 
picious circumstances,  negligence,  or  wilful 
ignorance  may  be  evidence  of  bad  faith 
from  which  the  jury  may  find  the  fact. 
The  holder,  however,  will  be  protected 
unless,  at  the  time  he  took  the  paper,  he 
had  reason  to  believe,  and  did  believe, 
there  was  some  defect  or  infirmity  in  the 
paper.  The  facts  in  this  case  examined 
and  held  not  to  authorize  a  finding  that 
the  appellant  bank  did  not  take  the  note 
iu  good  faith;  there  being  no  substantial 


evidence  to  support  any  such  finding.  First 
National  Bank  v.  Stover  (N.  Mex.)  1918B- 
145. 

(b)     Transfer  as  Security  for  Pre-existing 
Debt. 

50.  Consideration  for  Transfer.  Under 
Kem.  &  Bal.  Code  Wash.,  §§  3416,  3418, 
sections  of  the  Negotiable  Instruments  Act, 
providing  that  "value"  is  any  considera- 
tion sufficient  to  support  a  single  contract, 
that  a  pre-existing  debt  constitutes  value, 
and  that,  where  the  holder  has  a  lien  on 
the  instrument,  he  is  a  holder  for  value  to 
the  extent  of  his  lien;  where  plaintiff 
bank,  suing  the  maker  and  indorser  of  a 
check,  holds  as  collateral  in  part  to  an 
antecedent  debt,  it  is  a  holder  for  value 
to  the  extent  of  such  debt.  German  Am- 
erican Bank  v.  Wright  (Wash.)  1917I>- 
381.  (Annotated.) 

Note. 
Transfer  of  negotiable  note  as  security 
for  antecedent  debt.     1917D-386. 

(2)     What    Defenses    Available    Against. 

51.  Rights  of  Bona  Fide  Holder — Note 
Declared  Void  by  Statute.  While  a  merely 
illegal  consideration  in  a  negotiable  in- 
strument does  not  invalidate  it  in  the 
hands  of  a  holder  in  due  course,  a  papci* 
negotiable  in  form,  but  declared  void  by 
a  statute,  is  not  enforceable  at  the  instance 
of  anybody.  Twentieth  Street  Bank  v. 
Jacobs  (W.  Va.)  1917D-695. 

(Annotated.) 

52.  Note  for  Illegal  Consideration.  Ne- 
gotiable paper,  the  consideration  whereof 
is  money  lost  or  bet  in  gaming,  is  void  in 
the  hands  of  the  holder,  even  though  he 
took  it  for  value  and  without  notice  of  the 
character  of  the  consideration.  Twentieth 
Street  Bank  v.  Jacobs  (W.  Va.)  1917D- 
695.  (Annotated.) 

Note. 
Validity  in  hands  of  bona  fide  holder 
of  negotiable  contract  void  by  statute  be- 
tween original  parties.     1917D-696. 

e.     Forged  Instruments. 

53.  Estoppel  to  Urge.  Where  one  whose 
name  was  indorsed  on  a  note  promptly  de- 
clined to  pay  it  when  first  requested  so 
to  do,  and  persistently  declined  to  pay, 
but  did  not  lead  the  holder  to  believe  that 
he  would  not  rely  on  any  legitimate  de- 
fense, including  the  defense  of  forgery  of 
the  indorsement,  the  defense  of  forgery  is 
available  to  his  estate  when  the  holder 
seeks  to  enforce  the  note  against  it.  Mur- 
phy V.  Skinner's  Estate  (Wis.)  1917A- 
817. 

54.  One  who  knowingly  pays  notes  to 
which  his  name  is  forged  does  not  thereby 
undertake  to  pay  otiier  forged  notes,  where 


132 


DIGEST. 

1916C— 1918B. 


the  holders  thereof  were  not  deceived  by 
♦  the  prior  payments  because  they  had  mo 
knowledge  of  the  other  forgeries.  Mur- 
phy V.  Skinner's  Estate  (Wis.)  1917A- 
817. 

f.     Non-negotiable  Instruments. 

55.  Set-off  Against  Holder.  By  express 
provision  of  Nev.  Civ.  Prac.  Act,  §  46, 
action  on  a  non-negotiable  note  by  its  as- 
signee is  subject  to  any  set-off  or  defense 
existing  at  the  time  of  or  "before  notice 
of"  the  assignment.  First  National  Bank 
V.  Nye  County  (Nev.)  1917C-1195. 

10.     ACTIONS, 
a.    Who  may  Sue. 

56.  Bights  of  Indorsee  for  Collection. 
Where  the  payees  of  a  ijote  indorsed  it  to 
a  bank  to  enable  the  bank  to  collect  it, 
and  the  bank  for  the  same  purpose  in- 
dorsed it»  to  another  bank,  neither  indorse- 
ment gave  the  indorsee  any  interest  in  the 
note,  and  the  indorsees  are  mere  naked 
trustees  to  collect,  and  the  payees  remain 
the  holders  of  the  note  with  the  right  to 
sue  for  its  collection.  Carter  v.  Butler 
(Mo.)    1917A-483. 

57.  Nominal  Holder.  Under  Mo.  Eev. 
St.  1909,  §  1730,  providing  that  a  trustee 
of  an  express  trust  may  sue  in  his  own 
name,  the  payees  of  a  note  having  posses- 
sion thereof  through  their  agent  have  the 
right  to  contract  orally  or  in  writing  with 
the  cashier  of  a  bank  to  whom  the  note 
had  been  delivered  for  collection  that  he 
should  sue  for  their  benefit  and  the  benefit 
of  others  to  whom  they  desired  to  ap- 
point the  proceeds.  Carter  r.  Butler 
(Mo.)   1917A-4S'3.  (Annotated.) 

58.  Presumptiom  from  Possession  of 
Note.  In  an  action  on  a  note  by  a  per- 
son authorized  to  sue  thereon  by  a  con- 
tract with  the  payees,  having  possession 
of  the  note,  it  is  not  necessary  to  prove 
that  the  payees  were  the  holders  of  the 
note,  as  the  law  raises  a  prima  facie  pre- 
sumption to  that  effect  from  their  posses- 
sion.    Carter  t.  Butler  (Mo.)  1917A-483. 

59.  In  an  action  on  a  note  by  a  person 
suing  as  trustee  of  the  G.  Company,  and 
of  W.  and  L.,  a  petition  alleging  the  giv- 
ing of  the  note  to  W.  and  L.,  that  W. 
and  L.  entered  into  an  agreement  in  writ- 
ing transferring  and  assigning  an  interest 
therein  to  the  G.  Company.,  that  such  note 
was  placed  in  plaintiff's  hands,  and  that 
by  such  agreement  he  was  authorized  and 
directed  to  collect  the  note  and  out  of  the 
proceeds  pay  to  the  G.  Company  the 
amount  of  its  interest,  suflBciently  pre- 
sents the  facts  upon  which  plaintiff  claims 
such  a  title  to  the  note  as  to  enable  him 
to  maintain  the  action,  where  the  objec- 
tion to  the  sufficiency  of  the  petition  is  not 


raised   by  motion    or   answer.     Carter  v. 
Butler  (Mo.)  1917A-483. 

60.  Eight  of  Assignee  to  Sue.  Where 
there  is  a  valid  written  assignment  of  a 
note,  the  assignee  is  authorized  to  sue,  and 
the  makers  and  sureties  cannot  question 
the  consideration  for  the  assignment. 
Sims  V.  Everett  (Ark.)  1916C-G29. 

61.  Necessary  Parties.  In  an  action 
against  a  county  on  its  note,  given  a  bank, 
by  the  assignee  thereof,  neither  the  re- 
ceiver of  the  bank  nor  its  preferred  cred- 
itors are  necessary  parties;  any  questions 
of  preference  being  for  the  receiver- 
ship matter  First  National  Bank  v.  Nye 
County  (Nev.)   1917C-1195. 

Note. 
Right    of     action     thereon    of    nominal 
holder  of  promissory  note.     1917A-490. 

b.     Joinder  of  Defendants. 

62.  Joint  Makers  or  Indorsers.  Under 
Va.  Code  1904,  §  2853,  prescribing  against 
whom  an  action  may  be  brought,  the  holder 
of  a  note  may  sue  defendant  alone  with- 
out joining  other  joint  makers,  whether  de- 
fendant is  a  joint  maker  or  an  indorser. 
Colley  V.  Summers  Parrott  Hardware  Co. 
(Va.)  1917D-375. 

c.    Issues. 

63.  Proving  Signature  of  Maker.  The 
common-law  rule  requiring  proof  of  the 
signature  of  the  maker  to  recover  on  a 
note  is  in  force  in  West  Virginia  except 
as  it  is  affected  by  the  statute  (Code  c.  125, 
§40  [§4794])  dispensing  with  such  proof 
in  case  a  specific  averment  of  execution 
is  not  expressly  denied.  Williams  v.  S.  M. 
Smith  Ins.   Agency    (W.  Va.)    1917A-813. 

(Annotated.) 

64.  Making  for  Accommodation — Neces- 
sity of  Plea.  The  party  for  whose  accom- 
modation a  promissory  note  was  executed 
is  not  entitled  to  recover  from  the  accom- 
modation party  thereon,  but  such  defense, 
in  order  to  avail,  ^must  be  specially 
pleaded.  First  State  Bank  v.  Kelly  (N. 
Dak.)  1917D-1044. 

65.  Actions — Necessity  of  Proving  Sig- 
nature. Plaintiff's  cause  of  action  to  can- 
cel a  tax  deed  as  a  cloud  on  title  depend- 
ing on  his  being  the  owner  and  holder, 
as  alleged  in  the  complaint,  of  the  note, 
made  payable  to  another,  secured  by  trust 
deed  on  the  property,  the  general  denial 
raises  the  question,  putting  plaintiff  on 
proof,  of  the  facts  alleged,  including  the 
transfer  of  the  note  to  him.  Marks  v. 
Munson  (Colo.)  1917A-766. 

(Annotated.) 

66.  Variance.  In  an  action  against  an 
indorser,    the    defendant    cannot    prove    a 


BILLS  AND  NOTES. 


133 


failure  of  consideration  contradictory  to 
Ms  verified  plea  in  the  cause  averring  that 
he  was  an  original  joint  contractor  with 
the  makers.  CoUey  v.  Summers  Parrott 
Hardware  Co.  (Va.)  1917D-375. 

67.  Equitatle  Defense.  As  a  plea  on 
equitable  grounds  is  unavailing  as  a  de- 
fense in  an  action  at  law,  unless  it  sets 
up  facts  which  would  entitle  the  defend- 
ant to  relief  in  equity  as  against  a  judg- 
ment at  law,  as  provided  in  Md.  Code 
Pub.  Civ.  Laws,  art.  75,  §  86,  one  who 
signed  a  note  as  maker  cannot  defend  an 
action  thereon  upon  the  equitable  ground 
that  he  was  only  a  surety,  though  one  of 
the  parties  primarily  liable  under  the  Nego- 
tiable Instruments  Act,  and  that  under  the 
law  prior  to  that  act's  taking  effect  he 
would  have  been  discharged  by  the  payee's 
extension  of  time  to  the  principal  debtor. 
Jamesson  v.  Citizens'  National  Bank  (Md.) 
1918A-1097. 

d.    Evidence. 

68.  Evidence  Held  Properly  Ezclnded. 
It  is  held  that  the  court  did  not  err  in 
denying  appellants'  offer  of  certain  proof. 
Harshbarger  v.  Eby  (Idaho)  1917C-753." 

69.  Evidence  lasufllcient.  In  an  action 
on  a  note,  a  special  verdict,  finding  that 
the  note  was  altered  after  delivery  by  a 
change  in  the  date,  held  to  be  against 
the  weight  of  the  evidence.  Palmer  v. 
Blanchard  (Me.)  1917A-809. 

70.  Proof  of  Bona  Fides — Sufficiency. 
Sections  646,  649,  653,  N.  Mex.  Code  1915, 
applied,  and  held  that  the  plaintiff  bank, 
under  the  circumstances,  took  the  note  in 
question  charged  with  the  burden  of  proof 
that  it  took  the  same  in  the  course.  Held 
further,  that  under  the  proof,  that  burden 
had  been  successfully  met.  Held  further, 
that  where  the  evidence  was  all  one  way, 
and  the  witness  stands  unimpeached  in 
any  way,  his  evidence  is  to  be  taken  by 
this  court  as  true  in  determining  whether 
there  is  any  substantial  evidence  to  sup- 
port the  verdict.  First  National  Bank  v. 
Stover  (N.  Mex.)   1918B-145. 

71.  In  an  action  on  a  note  given  for  min- 
ing property,  the  testimony  of  one  of  the 
defendants,  in  answer  to  a  question  as  to 
whether  they  had  held  the  property  ever 
since  they  received  it  from  defendants, 
that  he  supposed  that  would  be  it,  is  suffi- 
cient evidence  that  possession  was  deliv- 
ered, assuming  that  the  burden  of  showing 
such  deliverv  rests  on  plaintiff.  Carter  v. 
Butler  (Mo.)  1917A-483. 

72.  Evidence  of  Notice.  Evidence  that 
a  bank,  which  in  due  course  of  business 
took  a  note  as  security  for  a  loan  made  to 
the  payee,  knew  that  the  payee  then  was 
or  had  been  in  trouble  with  an  insurance 
company  concerning  the  application  of 
funds  received    from    insurance  notes,  is 


irrelevant,  where  the  insurance  company 
makes  no  claim  to  the  notes  sued  on. 
Jackson  v.  Georgia  Fire  Ins.  Co.  (Ala.) 
1917A-807. 

73.  Evidence  Insufficient  In  an  action 
on  a  note,  evidence  held  not  sufficient  to 
sustain  a  special  verdict  that  the  note  was 
altered  after  delivery,  by  adding  the 
signature  of  another  maker.  Palmer  v. 
Blanchard  (Me.)  1917A-809. 

74.  In  an  action  on  a  note,  evidence  of 
want  of  consideration  held  not  sufficient  to 
overcome  the  recital  of  consideration  con- 
tained in  the  note.  Palmer  v.  Blanchard 
(Me.)  1917A-809. 

75.  Necessity  of  Proving  Signature. 
Wis.  St.  1913,  §  4193,  providing  that,  in 
actions  on  notes  by  indorsee,  the  posses- 
sion of  the  note  shall  be  presumptive  evi- 
dence that  the  same  was  indorsed  by  the 
persons  to  whom  it  purports  to  be  indorsed, 
permits  the  holder  of  a  note  showing  his 
possession  thereof  to  make  a  prima  facie 
case  against  indorsers;  but,  where  the  de- 
fense is  that  the  indorsements  were  for- 
geries, the  holder  has  the  burden  of  prov- 
ing the  genuineness  of  the  indorsements 
by  a  preponderance  of  the  evidence.  Mur- 
phy V.  Skinner's  Estate  (Wis.)  1917A- 
817.  (Annotated.) 

76.  Degree  of  Proof  Bequisite.  To  es- 
tablish a  defense  that  a  note  sued  on  after 
the  death  of  the  maker,  so  that  neither 
party  could  testify  regarding  it,  was  a 
forgery,  the  testimony  must  be  clear  and 
convincing,  because  of  the  presumption 
against  the  commission  of  a  felony. 
Palmer  v.  Blanchard  (Me.)  1917A-809. 

77.  Evidence  of  Forgery  Insufficient.  In 
an  action  on  two  notes  against  the  maker's 
administrator,  a  special  verdict  that  the 
signature  of  the  maker  to  the  notes  was 
a  forgery  held  against  the  weight  of  evi- 
dence. Palmer  v.  Blanchard  (Me.)  1917A- 
809. 

78'.  Necessity  of  Proving  Signature.  In 
an  action  on  a  promissory  note  defended 
on  the  ground  of  forgery  the  burden  is  on 
the  plaintiff  to  prove  the  genuineness  of 
the  signature.  Palmer  v.  Blanchard  (Me.) 
1917A-809.  (Annotated.) 

79.  Parol  Evidence  of  Signature  for  Ac- 
commodation. One  who  signs  a  promis- 
sory note  for  the  accommodation  of  an- 
other may  show  that  fact  by  parol,  in  an 
action  against  him  by  the  party  accom- 
modated. First  State  Bank  v.  Kelly  (N. 
Dak.)  1917D-1044. 

80.  Parol  Evidence  as  to  CoHsideratlon. 
In  an  action  by  the  original  payee  of  a 
negotiable  instrument,  or  by  one  having 
notice,  the  question  of  the  consideration 
may  be  inquired  into,  and  parol  evidence 
is  admissible  to  show  the  real  considera- 
tion for  the  instrument.  First  State  Bank 
V.  Kelly  (N.  Dak.)  1917D-1044. 


134 


DIGEST. 

1916C— 1918B. 


81.  Parol  Evidence — Conditional  Deliv- 
ery of  Note.  Evidence  tending  to  prove 
the  condition  upon  which  notes  were  exe- 
cuted and  delivered  to  the  payee,  and  that 
such  condition  had  never  been  complied 
with,  is  competent,  and  does  not  come 
within  the  rule  that  parol  evidence  is  in- 
admissible to  contradict  or  vary  the  terms 
of  a  written  instrument.  First  State  Bank 
V.  Kelly  (N.  Dak.)  1917D-1044. 

(Annotated.) 

82.  Evidence  of  Genuineness — Admissi- 
bility. Where  an  action  against  an  in- 
dorser  of  a  note  is  defended  on  the  ground 
that  the  indorsement  was  a  forgery,  evi- 
dence of  payments  by  the  indorser  of  other 
notes  bearing  his  indorsements  and  found 
in  his  possession  is  admissible  as  an  admis- 
sion that  the  indorsements  of  the  other 
notes  were  genuine  as  bearing  on  the  issue 
of  the  genuineness  of  the  indorsement  on 
the  note  sued  on.  Murphy  v.  Skinner's 
Estate  (Wis.)  1917A-817. 

83.  Parol  Evidence  of  Agreement  to  Se- 
lease.  Parol  evidence  is  inadmissible  to 
show  that  prior  to,  or  contemporaneous 
with,  the  execution  of  a  note,  the  payee 
agreed  to  release  the  maker  upon  the  hap- 
pening of  a  certain  contingency,  and  take 
R  note  of  another  person  in  lieu  thereof. 
First  State  Bank  v.  Kelly  (N.  Dak.) 
1917D-1044. 

84.  Evidence  Insufficient.  In  action  on 
a  note  negotiated  in  breach  of  faith,  evi- 
dence is  held  not  to  show  conclusively  that 
the  plaintiff  was  a  holder  in  due  course. 
Estate  of  Philpott  (Iowa)  1917B-839. 

85.  Burden  of  Proof  as  to  Taking  In  Due 
Course.  Iowa  Code  Supp.  1907,  §  3060a55, 
declares  that  the  title  of  one  who  negoti- 
ates a  note  in  breach  of  faith  is  defective. 
Section  3060a59  declares  that  every  holder 
is  deemed  prUna  facie  a  holder  in  due 
course,  but  when  it  is  shown  that  the  title 
of  one  of  the  persons  who  negotiated  the 
instrument  was  defective,  the  holder  has 
the  burden  of  proving  that  he  or  some 
one  under  whom  he  claimed  had  acquired 
title  in  due  course.  It  is  held  that  on 
proof  that  a  note  was  indorsed  in  breach 
of  an  agreement  that  it  should  be  returned 
for  cancellation,  plaintiff  has  the  burden 
of  proving  that  he  was  a  holder  in  due 
course.  Estate  of  Philpott  (Iowa)  1917B- 
839. 

86.  Where  execution  and  indorsement  of 
a  note,  on  ownership  of  which  by  transfer 
depends  plaintiff's  cause  of  action,  are  put 
in  issue  by  the  answer,  the  note  is  not 
admissible  without  proof  of  the  signa- 
tures. Marks  v.  Munson  (Colo.)  1917A- 
766.  (Annotated.) 

87.  Proof  Sufficient.  Where  the  presi- 
dent of  a  bank  to  which  a  note  was  given 
as  security  testified  that  the  transaction 
vas  with  him  and  he  had  no  notice  of  anv 


defense  thereto,  the  evidence  was  suffi- 
cient to  justify  a  finding  of  want  of  notice 
to  the  bank,  though  the  other  officers  did 
not  testify,  and  though  the  burden  of  proof 
was  on  the  bank  under  Iowa  Code  Supp. 
1907,  §§  3060a55,  3060a59,  because  the 
payee  negotiated  the  note  in  bad  faith. 
Des  Moines  Savings  Bank  v.  Arthur 
(Iowa)   1916C-498. 

Notes. 

Necessity  of  proving,  in  action  on  prom- 
issory note,  signatures  of  maker  and  in- 
dorser.    1917A-770. 

Parol  evidence  of  conditional  delivery 
of  bm  or  note.     1917D-1049. 

e.     Instructions. 

88.  Necessity  of  Proving  Sigmature  of 
Maker.  Where,  in  an  action  against  the 
joint  makers  of  a  note,  one  defendant  filed 
a  plea  of  non  est  factum  as  to  which  plain- 
tiff offered  no  proof,  it  is  proper  to  give 
affirmative  instructions  for  such  defendant. 
Jackson  v.  Georgia  Fire  Ins.  Co.  (Ala.) 
1917A-807.  (Annotated.) 

89.  Seasonable      Time      for      Transfer. 

Whether  a  demand  note  negotiated  six 
months  after  date  was* negotiated  an  un- 
reasonable length  of  time  after  issue,  so 
that,  under  Iowa  Code  Supp.  1907,  §  3060a- 
53,  the  holder  was  not  a  holder  in  due 
course,  is  held  to  be  for  the  jury,  in  view 
of  section  3060al93,  requiring  the  facts  of 
the  particular  case  to  be  considered  in  de- 
termining what  is  a  reasonable  time. 
Estate  of  Philpott  (Iowa)  1917B-839. 

(Annotated.) 

f.     Damages. 

90.  Liability  of  Indorser.  An  indorser 
of  a  note,  stipulating  for  payment  of  at- 
torney's fees  in  case  of  suit,  though  he 
be  an  accommodation  indorser,  is  liable 
for  such  fees,  especially  where  he  waives 
demand,  protest,  and  notice.  Franklin  r. 
The  Duncan  (Tenn.)  1917C-1080. 

(Annotated.) 

91.  Liability  of  Guarantor.  The  liabil- 
ity of  a  guarantor  of  the  payment  of  a 
note,  stipulating  for  payment  of  attorney's 
fees  in  case  of  suit,  includes  the  liability 
of  the  maker  for  payment  of  the  fees, 
especially  where  the  contract  of  guaranty 
specified  that  the  guarantor  accepted  all 
the  provisions  of  the  note.  Franklin  v. 
The  Duncan  (Tenn.)   1917C-10S0. 

92.  Necessity  of  Suit  on  Note.  The 
holder  of  a  mortgage  note,  providing  for 
payment  of  attorney's  fees  if  the  note  was 
placed  "in  the  hands  of  an  attorney  for 
collection,  has  to  be  sued  upon,  or  if  liti- 
gation arises  in  the  course  of  its  collec- 
tion," is  entitled  to  have  the  fees  allowed, 
over  objection  that  its  suit  was  needless, 
since  foreclosure  out  of  court  was  provided 


BINDING  SLIP— BONDS. 


135 


for  in  the  mortgage,  where  a  general  cred- 
itors' bill  was  filed  against  the  maker  of 
the  note  and  an  injunction  granted  there- 
in, which  operated  to  enjoin  the  holder 
of  the  note  from  foreclosing  the  mortgage 
except  in  that  cause,  and,  on  the  holder's 
intervening  to  set  up  its  claim  by  cross- 
bill, the  complainant  answered,  denying 
the  validity  of  the  mortgage.  Franklin 
T.  The  Duncan  (Tenn.)  1917C-1080. 

93.  Liability  of  Third  Person.  Where  a 
note  secured  by  chattel  mortgage  provided 
for  attorneys'  fees  in  case  of  suit  for  col- 
lection, an  attorney's  fee  allowed  the 
holder  cannot  be  recovered  from  one  liable 
because  having  obtained  property  subject 
to  the  chattel  mortgage.  Northern  Brew- 
ery Co.  V.  Princess  Hotel  (Ore.)  1917C- 
621. 

94.  Stipulation  for  Attorney's  Fees.  A 
stipulation  in  a  negotiable  promissory  note 
for  the  payment  of  "five  per  cent  collec- 
tion fees"  on  the  principal  thereof,  and 
in  addition  thereto  "$10  attorney  fee  in 
addition  to  the  attorney's  fees  taxed  or 
allowed  by  law,"  is  forbidden  by  the  pol- 
icy of  the  law  and  void  and  unenforce- 
able. Raleigh  County  Bank  v.  Poteet  (W. 
Va.)   1917D-359.  (Annotated.) 

Notes. 

Validity  of  stipulation  for  attorney's 
fee  in  promissory  note.     1917D-365. 

Provision  in  note  for  payment  of  attor- 
ney's fees  as  binding  indorser.  1917C- 
1082. 

g.     Directing  Verdict. 

95.  In  this  case,  the  amended  answer 
being  insufficient  as  a  denial  of  the  alle- 
gations in  the  complaint,  and  the  court 
having  instructed  the  jury  to  find  for  re- 
spondent, it  is  held  that  the  instruction 
was  right,  as  no  evidence  was  required  on 
the  part  of  respondent  to  establish  appel- 
lants' indebtedness  on  the  note,  and  there 
was  sufficient  evidence  to  establish  the  at- 
torney's fee.  Harshbarger  v.  Eby  (Idaho) 
1917C-753. 

h.     Judgment. 

96.  Action  on  Joint  Note — Judgment 
Against  One  Maker.  In  an  action  against 
the  joint  makers  of  a  promissory  note, 
judgment  may  be  rendered  against  one 
maker  and  in  favor  of  the  others.  Jack- 
son V.  Georgia  Fire  Ins.  Co.  (Ala.)  1917A- 
807. 

BINDING  SLIP. 
See  lire  Insurance,  4. 

BLACKLISTING. 
See  Labor  Combinations,  4,  6-8. 

BLANKS. 
See  Alteration  of  Instruments,  2;  Bills  and 
Notes,  46,  47. 


BLASTING. 

Injury  by  concussion,  see  EzploslOBS  And 
Explosives,  4,  5. 

BLIND  MAN'S  WILL. 
How  attested,  see  Wills,  28,  101, 

BLIND  TIGEE. 

Defined,  see  Disorderly  Houses,  1. 
Defined,  see  Intoxicating  LicLuors,  110. 

BLOOD   STAINS. 
Admissibility,  see  Homicide,  21,  26,  28,  29. 

BLOOD   TEST. 

Faiure  to  make  before  operation,  see  Phy- 
sicians and  Surgeons,  22. 

BLUE  SKY  LAW. 
See  Licenses,  33,  34. 

BOARDING  OAK. 

Person  boarding  not  a  passenger,  se* 
Carriers  of  Passengers,  12. 

BOABD  OF  HEALTH. 
See  Health,  1. 

BOABD  OF  UNDEBWBITEES. 

Liability  for  torts  of  employees,  see  Mas- 
ter and  Servant,  365. 

Not  a  municipal  corporation,  see  Munici- 
pal Corporations,  5. 

BOAT. 
Defined,  see  Master  and  Servant,  59. 

BOATABLE    STBEAM. 
Meaning,  see  Evidence,  18. 

BONA   FIDE   CITIZENS. 

Meaning,  see  Corporations,  1. 

BONA  FIDD  PXmCHASEB. 

See  Bills  and  Notes,  46-55;  Sales,  57-60. 
Of  altered  note,  see  Alteration  of  Instru- 
ments, 7. 
Of  land,  see  Vendor  and  Purchaser,  21. 

BONA  FIDES. 

Criterion  of  official  conduct,  see  Sheriffs 
and  Constables,  14. 

BONDS. 

See  Public  Contracts,  5,  6;  Suretyship. 
Appeal  bonds,  see  Appeal  and  Error,  481- 
484. 


136 


DIGEST. 

19160— 1918B. 


Undertaking  on  attachment,  tee  Attach- 
ment, 6,  7. 

Bail  bond,  see  Bail. 

Bond  to  indemnify  bankrupt,  see  Bank- 
ruptcy, 27-29, 

Contractor's  bond  in  building  contract,  see 
Contracts,  84,  85. 

Corporate  mortgages  and  bonds,  see  CJor- 
porations,  149-159. 

County  bonds,  see  Counties,  11,  12. 

Of  defaulting  cashier,  enforcement,  see 
Equity,  2. 

Of  executors  and  administrators,  see  Ex- 
ecutors and  Administrators,  12. 

Failure  to  give,  effect  on  guardian's  sale, 
see  Guardian  and  Ward,  11,  12. 

Injunction  bond,  see  Injunctions,  41. 

Liquor  dealer's  bond,  see  Intoxicating 
Liquors,  76-77. 

Contractor's  bond  as  waiving  right  to 
lien,  see  Mechanics'  Liens,  29. 

Municipal  bonds,  see  Municipal  Corpora^ 
tlons,  109-119. 

Action  on  detinue  bond,  see  Beplevln,_3. 

Beformation,  changing  name  of  obligee, 
see  Bescission,  Cancellation  and 
Beformation,  9. 

Sheriff's  bond,  liability  of  sureties,  see 
Sheriffs  and  Constables,  10,  11. 

Taxation  of  bonds,  see  Taxation,  45-47. 

Bond  issue  for  forest  preservation,  see 
Trees  and  Timber,  2-12, 

1.  Eecovery  by  Beneficial  Obligee. 
Where  plaintiff  sues  as  beneficial  obligee 
on  a  bond  of  indemnity,  he  must  prove 
that  he  had  an  interest  in  the  perform- 
ance of  the  duty  and  that  the  duty  was 
imposed  either  for  his  sole  benefit  or 
jointly  for  the  benefit  of  himself  and 
others.  Clark  T.  Niekell  (W.  Va.) 
1917A-1286, 

2,  Pleading  Delivery.  Allegations  of 
the  execution  of  a  surety  bond  sued  on 
implied  a  delivery  thereof.  American 
Surety  Co.  v.  Pangburn  (Ind.)  1916E- 
1126. 

BOULEVARDS. 

Exclusion  of  business  vehicles,  see  Streets 
and  Highways,  24. 


BOUNDARIES. 

Overhanging  trees,  cutting  to  line,  see 
Adjoining  Landowners,  7,  8, 

Establishment  by  estoppel,  see  Estop- 
pel, 1, 

River  as  state  boundary,  see  States,  3,  4. 

Of  land  bordering  on  navigable  stream, 
see  Waters  and  Watercourses,  4. 

1.  Establishment  by  ParoL  A  dis- 
puted boundary  line  between  coterminous 
proprietors  may  be  established  by  oral 
agreement,  if  the  agreement  be  accom- 
panied by  actual  possession  to  the  agreed 
line,  or  is  otherwise  duly  executed. 
Bunger  v.  Grimm  (Ga.)   1916C-173. 


2.  Before  the  doctrine  of  estoppel  can 
be  invoked  to  settle  a  boundary  line  or 
the  ownership  of  a  fence  as  a  boundary 
line,  it  must  first  be  established  that  the 
parties  hare  recognized  the  boundary 
line,  or  recognized  the  fence  as  the  divi- 
sion line,  and  when  the  facts  are  resolved 
to  the  contrary,  the  doctrine  of  estoppel 
cannot  operate.  Wideman  v.  Faivre 
(Kan.)    1918B-1168. 

BOYCOTTS. 
See  Labor  Combinations,  4. 

BRANDS. 
See  Trademarks  and  Tradenames. 

BREACH  OF  PEACE. 

Arrest  without  warrant,   see  Arrest,   3. 
Jurisdiction    of    military    authorities,    see 

Militia,  15-18. 
Duty   of  sheriff  to  suppress,   see  Sheriffs 

and  Constables,  7,  16. 

1.  What  Constitutes  Vulgar  Language 
in  Public  Place.  Where  a  clergyman  in 
a  sermon  used  the  language:  "Some  men 
wiU  stand  around  the  depot,  stores,  the 
post  office,  and  street  corners,  and  watch 
the  women  pass,  and  size  them  up,  the 
foot,  ankle,  and  form,  and  they  would 
.  .  .  give  five  dollars  for  the  fork,"  such 
language  constitutes  a  "breach  of  the 
peace,"  which  is  a  generic  offense,  in- 
cluding all  violations  of  the  public  peace  or 
order,  or  acts  tending  to  the  disturbance 
thereof,  possibly  consisting  of  public  tur- 
bulence or  indecorum,  in  violation  of  the 
common  peace  and  quiet,  of  an  invasion 
of  the  security  and  protection  which  the 
law  affords  every  citizen,  or  acts  which 
tend  to  excite  violent  resentment,  actual 
personal  violence  not  being  an  element  in 
the  offense,  but  where  the  incitement  of 
terror  or  fear  of  personal  violence'  is  a 
necessary  element,  the  conduct  or  lan- 
guage of  the  wrongdoer  must  be  of  a  char- 
acter to  induce  such  condition  in  a  per- 
son of  ordinary  firmness,  and  for  the  public 
utterance  of  such  expressions  defendant 
was  liable  to  punishment  under  Ky.  St. 
§  1268,  providing  that,  if  any  person  shall 
be  guilty  of  a  breach  of  the  peace,  he 
shall  be  fined  or  imprisoned;  the  prosecu- 
tion not  being  under  Ky.  St.  §  1267,  de- 
nouncing fine  or  imprisonment  against 
any  person  who  shall  wilfully  interrupt  a 
congregation  assembled  for  worship. 
Delk  v.   Commonwealth    (Ky.)    1917C-884. 

(Annotated.) 

2.  Violence  not  EssentiaL  It  is  not 
necessary  that  an  act  have  in  itself  any 
element  of  violence  in  order  to  constitute 
a  breach  of  the  peace.  State  t.  Reich- 
man  (Tenn.)   1918B-889. 

3.  What  Constitutes.  The  word  "peace," 
in    the    phrase    "breach    of    the    peace," 


BREACH  OF  PROMISE  OF  MARRIAGE. 


137 


meaiu  the  tranquillity  enjoyed  by  the  citi- 
zens of  a  municipality  or  community 
where  good  order  reigns  among  its  mem- 
bers; that  invisible  sense  of  security 
which  every  man  feels  necessary  to  his 
comfort,  and  for  which  all  governments 
are  instituted.  State  v.  Beichman  (Tenn.) 
1918B-889. 

4.  "Breach  of  the  peace,"  in  view  of 
the  generally  accepted  definition,  and  of 
constitutional  provision  that  all  indict- 
ments shall  conclude,  "against  the  peace 
and  dignity  of  the  state,"  includes  any 
violation  of  any  law  enacted  to  preserve 
peace    and    good    order.     State    v.   Seich- 

•man  (Tenn.)   1918B-889. 

5.  Illegal  Sale  of  Intoxicants  as  Breach 
of  Peace.  Shannon's  Tenn.  Code,  §  993, 
Bubsec.  2,  requiring  every  applicant  for  a 
liquor  license  to  give  bond  to  keep  ft 
peaceable  and  orderly  house,  is  a  legisla- 
tive declaration  that  the  liquor  law  is  in- 
tended to  preserve  the  peace,  so  that  any 
violation  thereof  is  a  breach  of  the  peace. 
State  V.  Eeichman  (Tenn.)   1918B-889. 

6.  Engaging  in  the  sale  of  intoxicating 
liquors,  declared  by  Tenn.  Acts  1913  (2d 
Ex.  Sess.),  c.  21,  to  be  a  nuisance  always 
among  that  class  of  nuisances  always 
treated  by  the  court  as  tending  to  dis- 
turb the  peace  and  good  order  of  the 
community.  State  v.  Beichman  (Tenn.) 
1918B-889. 

7.  Unlawful  Sale  of  Intoxicants. 
"Breach  of  the  peace"  being  a  generic 
term  including  all  violations  of  public 
peace  or  order,  includes  unlawful  sale, 
actual  or  threatened,  of  intoxicating 
liquors,  and  the  sheriff  may  arrest  with- 
out warrant  therefor.  State  v.  Beich- 
man (Tenn.)  1918B-889. 

8.  While  mere  possession  of  intoxicating 
liquors  in  any  quantity  is  not  unlawful, 
it  is  a  breach  of  the  peace  for  one  having 
liquors  to  prepare  for  sale  thereof,  that 
being  a  threat  to  violate  the  law  against 
sales.  State  v.  Beichman  (Tenn.)  1918B- 
889. 

9.  Powers  of  Notary.  The  authority  of 
notaries  public,  as  well  as  of  justices,  as 
conservators  of  the  peace,  not  being  other- 
wise prescribed  by  statute,  is  limited  to 
the  powers  possessed  by  conservators  of 
the  peace  at  common  law,  prior  to  the 
enactment  of  W.  Va.  St.  1  Ed.  iii,  c.  16, 
authorizing  the  appointment  of  justices  of 
the  peace.  Those  duties  were  to  prevent 
and  arrest  for  breaches  of  the  peace,  in 
their  presence,  but  not  to  arraign  and  try 
the  offender.  Howell  v.  Wysor  (W.  Va.) 
1916C-519. 

Note. 
Language    constituting    disorderly    con- 
duct or  breach  of  peace.     1917C-889. 


BBEACH  OF  PBOMISB  OF  MABBIAOB. 

1.  Actions,   137. 

a.  Defenses,  137. 

b.  Admissibility  of  Evidence,  138. 

c.  SuflBciency  of  Evidence,  138. 

d.  Instructions,    138. 

e.  Damages,  138. 

1.     ACTIONS. 
a.    Defenses. 

1.  Disease.  An  instruction,  in  an  action 
for  breach  of  marriage  promise  by  de- 
fendant's intestate,  that  if  he  had  per- 
nicious anemia  it  would  not  excuse  his 
breach,  but  if  he  believed  it  would  be 
fatal  after  a  year  or  so,  or  it  would  be 
reasonably  certain  to  bring  death  in  a 
few  months,  this  could  be  considered  in 
mitigation  of  damages,  is  sufficiently  fav- 
orable to  plaintiff.  Parsons  v.  Trowbridge 
(Eed.)   1917C-750. 

2.  Offer  to  Maxry.  An  offer  to  marry 
after  a  breach  of  promise  to  marry  is  no 
bar  to  an  action  for  the  breach.  Stacy  v. 
Dolan  (Vt.)   1917A-650.  (Annotated.) 

3.  Subsequent  Offer  to  Marry.  Offers 
of  marriage,  made  by  defendant  in  good 
faith  after  the  breach  and  after  the 
bringing  of  the  suit,  but  while  his  char- 
acter, condition,  and  circumstances  re- 
mained unchanged,  are  admissible  in  evi- 
dence in  mitigation  of  damages  so  far  as 
the  jury  might  think  they  should  go  in 
mitigation,  and  are  improperly  excluded. 
Stacy  V.  Dolan  (Vt.)  1917A-650. 

(Annotated.) 

4.  Death.  Where  performance  of  a  eon- 
tract  to  marry  is  rendered  impossible  by 
death  of  one  of  the  parties,  no  cause  of 
action  arises  for  the  breach  of  the  con- 
tract, since  there  is  an  implied  condition 
to  the  contract  of  marriage  that  the  par- 
ties will  be  alive  at  the  time  appointed 
for  performance.  Estate  of  Oldfield 
(Iowa)  1917D-1067. 

5.  To  justify  a  repudiation  of  the  con- 
tract, however,  upon  such  ground,  the  dan- 
ger to  life  and  health  which  will  be  caused 
by  the  consummation  of  the  marriage 
must  be  reasonably  certain,  as  the  inevi- 
table consequence  of  the  marriage  rela- 
tion, and  not  a  mere  problematical  or  pos- 
sible contingency.  Estate  of  Oldfield 
(Iowa)    1917D-lb67.  (Annotated.) 

6.  Disease  as  Defense.  Where  a  man 
engaged  to  marry  becomes  afflicted  with 
disease  whereby  the  performance  of  mar- 
riage duties  would  aggravate  his  disease 
and  hasten  his  death,  either  party  to  the 
contract  may  repudiate  without  being 
subjected  to  liability  therefor,  since  the 
consideration  for  an  agreement  to  marry 
is  the  giving  and  receiving  by  marriage 
all  that  is  implied  in  the  relationship,  en* 


138 


DIGEST. 

19160— 1918B. 


tailing  mutual  obligations  of  giving  and 
receiving,  for  the  failure  of  which  by  the 
act  of  God  either  party  is  entitled  to  re- 
fuse the  performance.  Estate  of  Oldfield 
(Iowa)  1917D-1067.  (Annotated.) 

7.  One  becoming  afflicted  with  a  loath- 
some disease,  contracted  subsequently  to 
the  making  of  the  contract,  which  upon 
consummation  of  the  marriage  may  be 
communicated  to  the  spouse  and  offspring, 
may  repudiate  an  agreement  to  marry. 
Estate  of  Oldfield  (Iowa)  1917D-1067. 

(Annotated.) 

8.  Where  one,  after  contracting  to 
marry,  contracts  a  malady  which  wUl 
cause  death  within  a  few  months,  he  may 
repudiate  the  contract,  and  his  estate  upon 
his  death  will  not  be  liable  in  damages  as 
for  a  breach.  Estate  of  Oldfield  (Iowa) 
1917D-1067.  (Annotated.) 

Notes. 

Disease  as  defense  to  action  for  breach 
of  promise   of   marriage.     1917D-1084. 

Effect  of  offer  by  defendant  to  marry 
plaintiff  on  action  for  breach  of  promise 
of  marriage.     1917A-652. 

b.     Admissibility    of   Evidence. 

9.  In  an  action  for  breach  of  promise 
of  marriage,  where  it  was  not  claimed  and 
there  was  nothing  in  plaintiff's  reply  to  a 
letter  from  defendant's  sister  written 
after  the  action  was  commenced  and  con- 
taining an  offer  of  marriage,  from  which 
it  could  be  claimed  that  she  accepted  the 
proposal,  a  question  asked  her  as  to 
whether  she  meant  by  expressions  in  the 
letter  to  refuse  the  offer  is  properly  ex- 
cluded.    Stacy  V.  Dolan  (Vt.)   1917A-650. 

10.  In  an  action  for  breach  of  promise 
of  marriage,  it  appeared  that  before  mail- 
ing her  reply  to  an  offer  of  marriage  from 
defendant,  made  after  the  action  was  com- 
menced, plaintiff  submitted  the  reply  to 
her  counsel,  and  she  was  asked  why  she  did 
so.  She  replied  that  defendant  had  so 
often  promised  to  marry  her  and  broken 
his  word  that  she  thought  it  best  to  have  his 
statement  in  writing.  Held,  that  her  at- 
titude and  feelings  in  the  matter,  whether 
calculated  to  enhance  or  diminish  damages, 
were  material,  and  hence,  though  the  an- 
swer was  not  exactly  responsive,  it  was 
properly  permitted  to  stand.  Stacy  v, 
jJolan  (Vt.)   I917A-650. 

11.  Testimony  that  it  was  the  under- 
standing of  the  members  of  the  family  of 
plaintiff,  in  an  action  for  breach  of  mar- 
riage promise,  that  she  was  to  marry  de- 
fendant is  objectionable  as  an  opinion  or 
conclusion  of  the  witness.  Nolan  v. 
Glynn  (Iowa)  1916C-559.         (Annotated.) 

12.  Explanation  of  Subsequent  Offer  to 
Mairy.  Where  offers  of  marriage  by  de- 
fendant  after  the   commencement   of   the 


suit  are  admitted  in  mitigation  of  dam- 
ages, defendant's  testimony  that  they 
were  made  in  good  faith  is  not  admissible 
to  rebut  the  inference  that  such  offers 
were  an  admission  of  a  previous  engage- 
ment, as  the  good  faith  of  the  offer  could 
not  rebut  any  inferences  proper  to  be 
drawn  therefrom.  Stacy  v.  Dolan  (Vt.) 
1917A-650. 

Note. 
Understanding  of  family  or  friends  of 
party  as  evidence  of  agreement  to  marry. 
1916C-564. 


c.     Sufficiency  of  Evidence. 

13.  Understanding  of  Family.  Proof  of 
the  understanding  by  members  of  the 
family  of  one  of  the  parties  that  they  were 
to  marry  may  not,  in  an  action  for  breach 
of  marriage  promise,  be  considered  as  evi- 
dence of  an  agreement  to  marry.  Nolan 
V.  Glynn  (Iowa)  1916C-559. 

(Annotated.) 

d.     Instructions. 

14.  As  to  Good  Faith  of  Parties.  Where 
the  court  gave  defendant's  requested  in- 
struction to  find  for  defendant  if  when 
plaintiff  requested  defendant  to  marry  her 
she  was  not  willing  to  marry  him,  but 
made  the  request  for  an  ulterior  purpose, 
but  added  statements  as  to  the  willingness 
of  either  party  to  marry  within  a  reason- 
able time  after  the  original  promise  was 
made,  to  which  no  exception  was  taken, 
defendant  cannot  complain  of  what  the 
court  said  in  addition  to  the  requested  in- 
struction. Stacy  V.  Dolan  (Vt.)  1917A- 
650. 

e.    Damages. 

15.  Abortion.  While  in  an  action  for 
damages  from  breach  of  marriage  promise 
alone  seduction,  accomplished  through  the 
promise,  and  pregnancy,  resulting  from  the 
seduction,  may  be  shown,  on  the  ground 
of  the  mental  anguish  and  humiliation 
from  the  breach  of  being  intensified 
thereby,  abortion,  though  at  the  instance 
of  defendant,  may  not  be  shown;  this  be- 
ing an  element  of  damages  only  in  an 
action  for  seduction.  Nolan  v.  Glynn 
(Iowa)  1916C-559. 

16.  Effect  of  Death  of  Defendant. 
Though  one  breaking  a  contract  to  marry 
dies  before  action  therefor,  plaintiff  is  not 
as  matter  of  law  entitled  to  recover  one- 
third  of  the  value  of  his  estate.  Parsons 
V.   Trowbridge   (Fed.)   1917G-750. 

17.  Nature  of  Action.  Though  an  action 
for  breach  of  promise  of  marriage  is  in 
assumpsit,  the  damages  are  determined  on 
principles  not  applying  in  ordinary  cases 
of  assumpsit.  Stacy  v.  Dolan  (Vt.) 
1917A-650. 


BREACH  OF  WARRANTY— BROKERS. 


139 


BKEACH   OF  WABEANTT. 
See  Sales. 

BREAKINa. 
Defined,  see  Burglary,  1. 

BBIBEiBY. 

1.  Offer  tb  Serve  for  Less  than  Legal 
Salary.  A  promise  by  a  candidate  for 
office  that  if  elected  he  will  turn  back  a 
certain  portion  of  the  salary  into  the  pub- 
lic treasury  constitutes  bribery  of  electors 
within  the  meaning  of  a  corrupt  practice 
act,  irrespective  of  the  existence  of  a  cor- 
rupt motive.  Diehl  v.  Totten  (jST.  Dak.) 
1918A-S84.  (Annotated.) 

2.  Purpose  in  Offering  Bribe.  An  infor- 
mation based  upon  section  3476  of  the 
General  Statutes  of  Florida,  charging  the 
defendant  with  an  attempt  to  bribe  a  dep- 
uty sheriff  of  Dade  county  to  permit  the 
defendant  "to  sell  liquors  unlawfully  in 
Dade  county,  Florida,  without  interference 
from"  such  officer,  is  fatally  defective  in 
that  it  fails  to  allege  that  the  defendant 
had  attempted  to  bribe  an  official  to  per- 
mit the  deiendant  to  sell  "spirituous,  vin- 
ous, or  malt  liquors  in  any  county  or  pre- 
cinct which  has  voted  against  the  sale  of 
such  liquors,  under  the  provisions  of  arti- 
cle XIX  of  the  constitution  of  the  state 
of  Florida,"  without  interference  from 
such  officer.  Brunson  v.  State  (Fla.) 
1918A-312. 

3.  Allegation  of  Value  of  Thing  Offered. 
An  indictment  or  information  for  bribery 
or  attempted  bribery  must  allege  that 
something  of  value  was  given,  promised,  or 
received,  though  it  is  not  necessary  to  in- 
sert a  description  of  the  thing  offered, 
all  that  is  essential  being  an  allegation 
that  it  was  of  value.  An  allegation  that 
"a  certain  gift  or  gratuity,  to  wit,  money," 
was  offered,  without  alleging  that  the 
money  was  of  value,  is  insufficient.  Brun- 
son T.  State  (Fla.)  1918A-312. 

(Annotated.) 
Notes. 
Promise  to  do  certain  things  after  elec- 
tion as  bribery  of  electors.     1918A-888. 

Sufficiency  of  indictment  or  information 
for  bribery  with  respect  to  allegation  of 
value  of  thing  offered  or  received  as  bribe. 
19I8A-314. 

BRICK   KILN. 

As  a  nuisance,  see  Nuisances,  8,  9. 

BRICKS. 

City  regulation  of  manufacture,  see  Muni- 
cipal Corporations,  82,  83. 
Warranty  of  color,  see  Sales,  18. 

BRIDGE  COMMISSIONERS. 
Status,  see  Public  Officers,  8. 


BRIDGEi 

Compensation  for  injury  to  land,  see  Emi- 
nent  Domain,    30. 

Right  of  township  to  bridge  tax,  see 
Towns,  1,  2. 

1.  Injury  by  Vessel.  In  an  action  by  a 
city  for  damages  to  a  bridge  caused  by  a 
steamer  running  into  it,  evidence  exam- 
ined and  held  to  be  sufficient  to  sustain  a 
finding  that  the  absence  of  such  lights  on 
the  bridge  as  were  required  by  the  light- 
house board  did  not  contribute  to  the  col- 
lision. Marinette  v.  Goodrich  Transit  Co. 
(Wis.)   1917BU935.  (Annotated.) 

2.  In  an  action  for  damages  to  a  bridge 
caused  by  a  steamer  running  into  it,  cer- 
tain negative  evidence  examined  and  held 
to  be  sufficient  to  sustain  a  finding  that 
the  whistles  required  of  the  steamer  to 
signal  for  the  opening  of  the  bridge  were 
not  blown.  Marinette  v.  Goodrich  Tran- 
sit Co.  (Wis.)  1917B-935.         (Annotated.) 

3.  Injury  by  Vessel — Liability.  Where 
a  collision  occurs  between  a  steamer  and 
a  bridge,  the  absence  of  such  lights  on 
the  bridge  as  are  required  by  the  rules  of 
the  lighthouse  board,  made  under  author- 
ity of  act  of  Congress,  throws  the  burden 
on  the  party  in  default  to  show  that  the 
absence  of  such  lights  not  only  did  not 
but  could  not  have  caused  the  injury. 
Marinette  v.  Goodrich  Transit  Co.  (Wis.) 
1917B-935.  (Annotated.) 

4.  Injury  by  Vessel — ^Liability.  In  an 
action  by  a  city  for  damages  to  a  bridge 
caused  by  a  steamer  running  into  it,  the 
question  whether  the  absence  of  lights  on 
the  bridge,  as  required  by  the  lighthouso 
board  was  the  cause  of  the  injury,  is  held 
to  be,  under  the  evidence,  for  the  jury, 
both  on  a  motion  for  nonsuit  and  on  mo- 
tion to  direct  a  verdict.  Marinette  ▼. 
Goodrich  Transit  Co.  (Wis.)  1917B-935. 

(Annotated.) 

Note. 
Liability  for  injury  to  bridge  caused  by 
vessel.     1917B-938. 


BRIEFS. 

Waiver  of  error  by  omission  from  brief, 
see  Appeal  and  Error,  171-175. 

In  disbarment  proceeding,  see  Attorneys, 
67. 

Attorney  liable  for  printing,  see  Attor- 
neys, 69. 

BROKERS. 

1.  Real  Estate  Brokers,  140. 

a.  Contract  of  Employment,  140. 

b.  Authority,   140. 

c.  Eight  to  Compensation,  140. 

d.  Actions  for  Compensation,  140. 

e.  Liability  to  Principal,  141. 

2.  Stock  Brokers,  141. 

a.  Right  to  Pledge  Stock,  141. 

3.  Loan   Brokers,    141. 


140 


DIGEST. 

19160— I918B. 


See  Pawnbrokers. 

Begulation  of  commission  mercbants,  too 

Constitutional  Law,  43. 
Insurance  brokers,  see  Insuran£e,  1-8. 
Blue  sky  law,  see  Licenses,  33,  34. 

1.    BEAL  ESTATE  BROKERS. 
a.     Contract  of  Employment. 

1,  Contract  Strictly  Construed.  A  con- 
tract of  agency  giving  power  to  sell  land 
is  to  be  strictly  construed,  and  if  there 
is  any  doubt  whether  acts  of  the  agent 
thereunder  are  within  his  delegated 
powers,  they  should  be  resolved  against 
the  agent  and  against  any  third  party 
dealing  with  him.  Springer  v.  City  Bank, 
etc.  Co.  (Colo.)  1917A-520. 

b.     Authority. 

2.  Power  to  Make  Contract  of  Sale. 
An  agreement  between  G.  and  S.  provided 
that  S.  was  to  be  at  the  expense  of  ob- 
taining title  to  certain  land  from  the  gov- 
ernment and  of  finding  a  purchaser,  and 
as  compensation  was  to  receive  one-half 
of  the  proceeds  after  paying  G.  $4  an 
acre,  the  title  to  remain  in  G.,  and  the 
land  not  to  be  sold  for  less  than  $8  an 
acre,  and  that  should  the  land  not  be  sold 
within  one  year  the  title  should  be  fully 
vested  in  G.  Held,  that  such  contract 
merely  authorized  S.  to  find  a  purchaser 
and  did  not  authorize  him  to  make  a  con- 
tract binding  G.  to  sell,  since  where  real 
estate  is  placed  in  the  hands  of  an  agent 
to  find  a  purchaser  or  with  instructions 
in  general  terms  "to  sell,"  the  agent  is  not 
authorized  to  enter  into  a  contract  of  sale 
binding  upon  the  principal.  Springer  t. 
City  Bank,  etc.  Co.  (Colo.)  1917A-520. 

(Annotated.) 
Note. 
Power  of  real   estate   broker  to  make 
contract  of  sale.     1917A-522. 

c.     Right   to    Compensation. 

S.  Contract  for  Commissions  from  Both 
Parties — Sale  Prevented  by  One  Party. 
A  complaint,  in  a  broker's  action  for  com- 
mission, alleging  that  defendants  and  cer- 
tain other  owners  entered  into  a  written 
contract  to  exchange  certain  properties  at 
stipulated  values  and  that  each  of  the 
parties  was  to  pay  plaintiff  a  commission 
upon  the  execution  of  the  instrument 
effecting  the  exchange,  that  the  other  con- 
tracting parties  had  been  ready,  able,  and 
willing  to  execute  their  instruments  of 
conveyance,  but  that  defendants  refused 
to  perform  their  contract,  and  rendered 
performance  by  the  other  parties  impos- 
sible, states  a  cause  of  action  against  the 
defendants  for  the  agreed  compensation 
to  be  paid  by  both  parties.  Littlefield  v. 
Bowen  (Wash.)  19I8B-177. 

(Annotated.) 


4.  Contract  for  Commission  from  Both 
Parties — Sale    Prevented   by    One   Party. 

A  real  estate  broker,  who,  as  agent  for  all 
of  the  parties,  procured  a  contract  be- 
tween himself,  defendants,  and  other  par- 
ties for  an  exchange  of  their  properties, 
entitling  him  to  a  commission  irom  each, 
payable  on  the  execution  of  the  instru- 
ments effecting  the  exchange,  may,  upon 
defendants'  failure  to  carry  out  their  con- 
tract, maintain  an  action  against  thera 
for  the  loss  of  the  commissions  agreed  to 
be  paid  by  the  other  party.  Littlefield  v. 
Bowen  (Wash.)  1918B-177. 

(Annotated.) 

5.  Goods  Rejected  for  Defects.  A  packer 
of  corn  wrote  a  broker  of  corn-packing 
products  offering  "10,000  cases  fancy,"  at 
$1  per  dozen  cases.  The  broker  procured 
ft  purchaser  subject  to  approval  of  a 
sample  case,  but  upon  receipt  of  the 
sample  case  the  purchaser  refused  to  ac- 
cept the  corn  as  not  being  of  fancy  qual- 
ity. The  evidence  showed  that  "fancy" 
corn  was  of  a  higher  grade  than  standard 
corn  and  consisted  of  the  very  best  part 
of  a  good  pack,  packed  from  tender 
creamy  corn  with  good  consistency,  and 
was  sweet,  tender,  of  extra  flavor,  not 
hard  nor  wet,  and  taken  when  the  corn 
was  "rigrht  in  the  milk,"  and  that  the  com 
in  question  was  not  fancy  com  as  re- 
garded in  the  trade.  It  is  held  that  the 
broker,  having  produced  a  customer  ready 
and  willing  to  buy  on  the  packer's  terms 
and  able  to  buy,  had  earned  his  commis- 
sions. Dennis  v.  Waterford  Packing  Co. 
(Me.)  1917D-788. 

6.  Commissions  from  Both  Sides.  A  real 
estate  broker  cannot  recover  au  agreed 
commission  from  both  sides  in  the  absence 
of  a  showing  of  consent  of  both  principals 
to  the  double  commission;  dual  agency 
without  such  consent  being  against  public 
policy,  as  prejudicial  to  the  interest  of  the 
principals,  since  the  law  requires  the  utmost 
good  faith  and  loyalty  from  agents.  Leno 
V.  Stewart  (Vt.)  1917A-509.      (Annotated.) 

Note. 
Liability    on    contract    of    buyer    and 
seller  to  pay  broker's  commission  jointly. 
1918B-180. 

d.     Actions  for  Compensation. 

7.  Performance  by  Broker — Refusal  of 
Irlncipal  to  Accept  Trade — Necessity  of 
Tender.  In  a  broker's  action  for  commis- 
sion under  a  contract  for  the  exchange  of 
properties,  the  fact  that  the  transfer  by 
the  other  parties  to  the  plaintiff  was  re- 
fused made  it  immaterial  whether  such 
other  parties  made  any  tender  of  a  deed 
or  not.  Littlefield  v.  Bowen  (Wash.) 
1918B-177. 

8.  In  a  broker's  action  against  defend- 
ants for  a  commission  due  under  their 
contract  with  plaintiff  and  with  other  par- 


BUILDING  AND  LOAN  ASSOCIATIONS. 


141 


ties  for  an  exchange  of  properties,  where 
it  is  only  incumbent  upon  plaintifE  to 
make  a  prima  facie  case,  showing  that  the 
other  parties  were  willing  and  g,ble  to 
comply  with  the  contract,  and  that  de- 
fendants refused  to  perform,  the  other 
party's  ownership  is  provable  by  parol. 
Littlefield   v.   Bowen    (Wash.)    1918B'-177. 

9.  Refusal  by  Principal  to  Convey  — 
Sufficiency  of  Evidence.  The  evidence,  in 
an  action  for  a  commission,  payable  under 
a  contract  for  the  exchange  of  properties 
whereby  each  of  the  exchanging  parties 
was  to  pay  plaintiflF  a  commission,  to  re- 
cover a  commission  directly  payable  by 
defendants,  and  the  commission  due  from 
the  other  party  lost  by  defendants'  breach, 
is  held  to  support  a  finding  that  defend- 
ants refused  to  perform  the  contract,  and 
rendered  it  impossible  for  the  other  party 
to  perform,  though  ready  and  able  to  do 
BO.  Littlefield  v.  Bowen  (Wash.)  1918B- 
177. 

10.  Compensation    from    Both    Parties. 

Where  the  plaintiff,  a  broker  employed  to 
sell  or  exchange,  seeks  to  recover  on  an 
agreement  for  half  commissions  with  de- 
fendant, another  broker  employed  by  one 
who  also  wished  to  exchange,  after  re- 
ceiving his  commissions  from  his  own  em- 
ployer, consent  of  the  principals  to  the 
double  commission  is  required,  and  the 
burden  is  on  the  plaintiff  to  show  their 
consent.  Leno  v.  Stewart  (Vt^)  1917A- 
509.  (Annotated.) 

11.  Ability  of  Purchaser.  A  person  em- 
ployed to  arrange  for,  advertise,  and  con- 
duct an  auction  sale  of  lands,  whether 
called  a  sales  manager,  with  a  salary  and> 
expenses  and  a  right  to  one-half  the  net 
profits  or  a  broker,  cannot  recover,  unless 
there  is  a  sale  or  the  production  of  some 
one  able  and  willing  to  purchase  accord- 
ing to  the  terms  previously  agreed  upon 
between  him  and  the  owners  or  on  terms 
agreeable  to  the  owners;  and  hence,  in  an 
action  for  compensation,  evidence  as  to 
the  pecuniary  responsibility  of  one  to 
whom  the  property  was  struck  off,  but 
who  was  never  in  a  position  to  buy  the 
land,  is  properly  received.  Sotham  v. 
Macomber  (Mich.)   1916C-694. 

e.     Liability  to  Principal. 

12.  Recording   of   Contract   by   Broker. 

The  fact  that  plaintiff,  a  real  estate 
broker,  who  had  caused  defendants  to  en- 
ter into  a  written  contract  to  exchange 
certain  properties  with  other  parties,  re- 
corded such  contract,  which  record  did  not 
colorably  establish  any  right,  claim,  or 
lien  in  the  broker,  does  not  render  him 
liable  to  damages  for  the  recording  of 
the  contract.  Littlefield  v.  Bowen  (Wash.) 
1S18B-177. 


2.  STOCK  BTIOKERS. 
a.     Right  to  Pledge  Stock. 

13.  Duty  to  Account  for  Pledged  Stock. 
When  stock  is  pledged  by  a  customer  with 
a  broker,  it  is  sufficient  if  the  broker  h'as 
in  Mb  possession  or  under  his  control  an 
amount  of  stock  equal  to  that  hypothe- 
cated, which  upon  settlement  he  returns 
to  the  customer.  Carlisle  v.  Norris  (N.  Y.) 
I917A-429.  (Annotated.) 

3.  LOAN  BROKERS. 

14.  Chattel  Loans — Validity  of  Regula- 
tion. Chattel  loans  on  mortgage  security 
or  otherwise,  the  rate  of  interest  on  such 
loans,  and  the  ways  and  means  of  assign- 
ing wages,  are  proper  subjects  for  the 
exercise  of  the  police  power  by  the  gen- 
eral assembly  of  the  state.  Wessell  v. 
Timberlake    (Ohio)    1918B-402. 

(Annotated.) 
Note. 
Validity  of  state  or  municipal  regula- 
tion   of    commission    merchants.     1917B- 
631. 

BUEtDINQ  AND  LOAN  ASSOCIATIONS. 

1.  Statutory  Regulations,  141. 

2.  Loans,    142. 

3.  Insolvency  and  Dissolution,  142. 

1.    STATUTORY   REGULATIONS. 

1.  Exemption  from  Usury  Laws.  Laws 
Miss.  1912,  c.  167,  is  "An  act  providing 
for  organization  of  domestic  and  foreign 
building  and  loan  associations,  or  other 
corporations  whose  business  is  loaning 
money  on  real  estate  to  be  paid  in 
monthly  instalments."  Section  2  provides 
that  the  term  "building  and  loan  asso- 
ciation" shall  include  all  corporations  and 
associations  organized  to  enable  members, 
"or  borrowers  who  are  not  members,"  to 
acquire,  make  improvements  on,  or  to  re- 
move incumbrances  from  realty,  or  to  loan 
money  on  real  estate,  to  be  paid  in 
monthly  instalments  on  a  loan  for  not  less 
than  two  years,  or  for  the  "accumulation 
of  the  fund  to  be  returned  to  its  members 
who  did  not  obtain  advances  thereon." 
Section  9  provides  that  all  associations 
may  contract  for  loans  to  members,  or  to 
borrowers  who  are  not  members,  at  the 
rate  of  interest  not  exceeding  10  per  cent. 
It  is  held,  that  the  business  of  such  asso- 
ciations differentiates  them  from  other 
lenders  of  money,  so  that  the  permission 
to  charge  interest  at  10  per  cent  does  not 
violate  Const.  1890,  §  90,  prohibiting  spe- 
cial law  regulating  the  rate  of  interest 
on  money.  Halsell  v.  Merchants'  Union 
Ins.  Co.   (Miss.)   1916E-229. 

(Annotated.) 

2.  Supervision.  In  view  of  the  purpose 
of  building   and  loan   associations   to   en- 


142 


able  a  large  number  of  persona  who  are 
without  ready  means  to  build  homes 
which  are  paid  for  in  small  instalments, 
and  the  benefit  of  the  community  derived 
from  such  associations,  the  state  may,  un- 
der its  police  power,  exercise  rights  of 
supervision  and  inspection  over  such  asso- 
ciations greater  than  over  ordinary  busi- 
ness associations.  Union  Savings,  etc.  Co. 
V.  District  Court  (Utah)   1917A-821. 


Note. 
Constitutionality  of  statutes  exempting 
building  and  loan  associations  from  usury 
laws.     1916E-232. 

3.  Loan  to  Nonmember.  Where  a  build- 
ing and  loan  association  is  authorized  to 
lend  only  to  its  stockholders  to  the 
amount  of  stock  held,  and,  after  a  loan 
to  a  stranger  by  a  third  party,  attempts 
to  purchase  the  note  and  mortgage  there- 
for, its  act  is  ultra  vires,  since  it  cannot 
do  indirectly  that  which  it  could  not  do 
directly.  North  Avenue  Bldg.,  etc.  Assoc. 
T.  Huber  (111.)  1917B-587. 

(Annotated.) 

2.     LOANS. 

4.  When  a  building  and  loan  associa- 
tion purchases  a  note  and  mortgage  of  one 
not  a  stockholder  when  it  is  authorized 
only  to  lend  to  its  stockholders,  it  cannot 
foreclose  a  mortgage,  its  act  in  purchasing 
it  being  ultra  vires;  nor  can  its  assignor 
be  held  a  trustee  and  the  mortgage  be 
foreclosed  by  him  for  the  association. 
North  Avenue  Bldg.,  etc.  Assoc,  y.  Huber, 
(Ul.)   1917B-587.  (Annotated.) 

Note. 
To  whom  building  and  loan  association 
may  loan  money.     1917B-590. 

3.     INSOLVENCY  AND  DISSOLUTION. 

5.  Effect  of  Insolvency.  Whenever  a 
building  and  loan  association  is  declared 
insolvent,  its  right  to  collect  the  instal- 
ments payable  by  its  members  ceases,  and 
the  mortgages  of  borrowing  members  at 
once  become  due  and  payable,  and  may  be 
foreclosed.  Union  Savings,  etc.  Co.  v. 
District  Court  (Utah)  1917A-821. 

6.  Power  to  Appoint  Receiver.  The 
remedy  given  .by  Utah  Comp.  Laws  1907, 
§  400,  which  provides  that  when  a  domes- 
tic building  and  loan  association  is,  in 
the  opinion  of  the  secretary  of  state,  con- 
ducting its  affairs  illegally,  or  is  unsafe, 
he  shall  notify  the  directors,  and  if  the 
objections  be  not  immediately  remedied, 
shall  advise  the  attorney  general,  who 
shall  take  the  necessary  steps  to  wind  up 
Its  affairs,  is  exclusive,  and  the  courts 
cannot  appoint  a  receiver  to  wind  up  the 
affairs  of  the  association  at  the  request  of 
one  or  more  of  the  shareholders.  Union 
Savings,  etc.  Co.  v.  District  Court  (Utah) 
1917A-821.  (Annotated.) 


DIGEST. 

1916C— 1918B. 

7.  Utah  Const,  art.  1,  §  11,  requiring  the 
courts  to  be  open  to  all  alike,  does  not 
prevent  the  state  from  reserving  to  itself 
the  sole  right  to  bring  actions  for  the  dis- 
solution of  building  and  loan  associations, 
since  that  section  is  a  limitation,  not  a 
grant  of  power,  prohibiting  any  restric- 
tions upon  the  common-law  right  of  access 
to  the  court,  but  not  enlarging  that  right. 
Union  Savings,  etc.  Co.  v.  District  Court 
(Utah)    1917A-821.  (Annotated.) 

8.  Beceivers — Complaint  —  Presumption. 
Where  a  complaint  for  the  appointment 
of  a  receiver  tor  a  building  and  loan  asso- 
ciation did  not  allege  that  the  officers  of 
the  association  or  the  secretary  of  state 
nad  failed  to  perform  the  duties  imposed 
upon  them  by  Comp.  Laws  Utah  1907, 
§§  392-402,  regulating  such  associations, 
it  must  be  presumed  that  the  officers  have 
performed  their  statutory  duties.  Union 
Savings,  etc.  Co.  v.  District  Court  (Utah) 
1917A-821. 


9.  Bight  to  Appoint  Beceiver.  An  ac- 
tion by  a  shareholder  to  secure  the  ap- 
pointment of  a  receiver  to  wind  up  the 
business  of  a  building  and  loan  associa- 
tion, while  not  technically  an  action  to 
dissolve  the  association,  has  practically 
that  effect,  and  cannot  be  entertained  by 
the  courts.  Union  Savings,  etc.  Co.  v. 
District  Court  (Utah)   1917A-821. 

(Annotated.) 

10.  The  danger  that  a  shareholder  in  a 
building  and  loan  association  may  suffer 
irreparable  injury  through  the  failure  of 
the  attorney  general  to  wind  up  the 
affairs  of  the  association,  as  required  by 
Comp.  Laws  Utah  1907,  §  400,  does  not  au- 
thorize an  action  for  that  purpose  by  the 
shareholder,  since  it  is  presumed  that 
every  officer  will  do  his  duty,  and  if  the 
duty  is  clear  the  attorney  general  may  be 
required  by  the  courts  to  perform  it. 
Union  Savings,  etc.  Co.  t.  District  Court 
(Utah)     1917A-821.  (Annotated.) 

11.  Action  by  Public  Oflacer.  Before  an 
action  for  the  dissolution  of  a  building 
and  loan  association  is  brought  under 
Comp.  Laws  Utah  1907,  §  400,  the  associa- 
tion should  be  given  an  opportunity  to 
correct  any  abuses  in  its  management,  un- 
less its  affairs  are  such  that,  in  the  opin- 
ion of  the  secretary  of  state  or  attorney 
general,  they  cannot  be  corrected.  Union 
Savings,  etc.  Co.  v.  District  Court  (Utah) 
1917A-821. 

12.  Duty  to  Bring  Proceeding.  Under 
Comp.  Laws  Utah  1907,  §  400,  providing 
that  if  the  secretary  of  state  is  of  the 
opinion  that  a  building  and  loan  associa- 
tion is  violating  the  law  or  is  unsafe,  he 
shall  advise  the  attorney  general,  who 
must  bring  an  action  to  dissolve  the  asso- 
ciation, if  the  secretary  of  state  refuses 
to  perform  his  duty;  it  nevertheless  is  the 
duty  of  the  attorney  general  to  bring  the 
action,  if  it  is  made  to  appear  to  him  by 


BUILDING  OR  WORKING  CONTRACTS— BUILDINGS. 


143 


any  shareholder  that  the  association  J8 
not  complying^  with  the  law.  Union  Sav- 
ings, etc.  Co.  T.  District  Court  (Utah) 
1917A-821. 

Note. 
Appointment    of    receiver    for    building 
and  loan  association.     1917A-827. 

BUILDING  OR  WORKING  CONTRACTS. 

See  Contractors,  78-99. 

BUILDING  RESTRICTIONS. 

See  Landlord  and  Tenant,  13;  Vendor  and 
Purchaser,  22-26. 

BUILDINGS. 

1.  Definition,  143. 

2.  Validity    and    Construction    of   Regula- 

tions, 143. 

3.  Enforcement  of  Regulations,  143. 

a.  Who  may  Sue,  143. 

b.  Defenses.   144. 

Damage    by     excavation,    see    Adjoining 

Landowners,  9-11. 
Fire  escapes,  see  Fires,  1-5. 
Sale  of  building,  see  Frauds,  Statute  of,  5. 
Action  for  collapse,  see  Negligence,  76. 
School  buildings,  see  Schools,  9-12. 

1.     DEFINITION 


1.  Meaning  of  "Tent."  An  ordinance 
of  the  city  of  St.  Louis  defined  a  "build- 
ing" as  any  structure  for  the  support, 
shelter,  or  inclosure  of  persons,  and  de- 
fined buildings  of  the  fourth  clasf?  as  any 
building  not  of  the  first  three  classes,  and 
provided  that  no  fourth-class  building 
should  be  >built  within  the  fire  limits. 
Defendant  constructed  a  moving  picture 
theater,  ninety-seven  feet  long,  fifty-eight 
feet  wide,  with  a  height  along  the  center 
of  thirty  feet,  using  telegraph  poles  joined 
by  a  wire  cable  and  guy  cables  to  sup- 
port and  attach  a  canvas  covering  and  at 
the  rear  built  a  stage  of  wood,  with  wings 
composed  partly  of  wood  and  partly  of 
canvas,  made  a  floor  of  boards  nailed  to 
cross-pieces  sunk  in  the  ground,  equipped 
the  stage  and  the  whole  structure  with 
electric  lights,  the  front  with  doors  of 
wood  and  glass,  and  a  ticket  booth  of 
wood,  and  furnished  it  with  stoves  for 
heating  and  with  benches  to  seat  640  per- 
sons, which,  if  a  building,  was  a  building 
of  the  fourth  class.  Rev.  St.  Mo.  1909, 
§  8057,  declares  that  words  in  statiites  are 
to  be  regarded  as  used  in  their  plain, 
usual,  and  everyday  meaning.  It  is  held 
that  the  structure  was  not  a  "tent,"  de- 
fined as  a  pavilion  or  portable  lodge  con- 
sisting of  canvas,  etc.,  supported  and  sus- 
tained by  poles  used  for  sheltering  per- 
sons from  the  weather,  esnecially  soldiers 
in  •camp,  in  that  it  lacked  the  element  of 
portability  and  was  constructed  of  other 
materials    than    those    ordinarily    used   in 


tents,  but  was  a  'Tsuilding"  within  the  in- 
tent of  the  ordinance.  St.  Louis  v.  Nash 
(Mo.)   1918B-134.  (Annotated.) 

Note. 
Legal  meaning  of  "tent."     1918B-138. 

.2.     VALIDITY     AND     CO^STRUCTION 
OF  REGULATIONS. 

2.  Force  and  Effect.  The  building  reg- 
ulations of  the  District  of  Columbia  as 
to  party  walls  are  neither  statutes  nor 
ordinances,  but  are  mere  rules  for  the  en- 
forcement of  existing  rights,  and  have  no 
force  outside  the  limits  of  the  city  of 
Washington  as  they  existed  at  the  time 
the  regulations  were  promulgated.  Fowler 
V.  Koehler  (D.  C.)  1916E-1161. 

3.  Construction  of  Building  Ordinance. 
A  provision  in  a  building  ordinance  that 
in  the  rear  of  every  tenement  subse- 
quently erected  there  shall  be  a  yard  not 
less  than  15  feet  in  denth,  measured  in 
the  clear  from  the  porches  to  the  rear  line 
and  the  provision  that  no  tenement  shall 
cover  more  than  80  per  cent  of  a  lot 
bounded  by  two  or  more  intersecting 
streets  must  be  construed  together  and 
in  harmony  with  each  other,  and  a  pro- 
posed tenement  may  not  violate  either 
provision.  Building  Commission  v.  Kunin 
(Mich.)    1916C-959. 

4.  Reasonableness  of  Bnilding  Ordi- 
nance. A  provision  in  a  building  ordi- 
nance of  a  city  that  in  the  rear  of  every 
tenement  subsequently  erected  there  shall 
be  a  yard  across  the  entire  width  of  the 
lot  open  from  the  ground  to  the  sky,  un- 
obstructed except  by  fire  escapes,  or  un- 
inclosed  outside  stairs  and  porches,  and 
the  depth  of  the  lot  measured  in  the  clear 
from  the  porches  to  the  rear  line  of  the 
lot  shall  not  be  less  than  15  feet  in  any 
part  is  reasonable,  and  the  court  cannot 
adjudge  it  invalid  under  its  power  to  ad- 
judge ordinances  invalid  when  clearly  un- 
reasonable or  oppressive.  Building  Com- 
mission V.  Kunin  (Mich.)  1916C-959. 

5.  Burden  of  Showing  Invalidity  of 
Ordinance.  One  asserting  the  invalidity 
of  a  municipal  ordinance  has  the  duty  of 
establishing  the  invalidity,  and  the  •court 
must,  if  it  can  consistently  do  so,  give 
to  the  ordinance  such  a  reasonable  con- 
struction as  will  sustain  it,  but  it  may 
not  invade  legislative  power.  Building 
Commission  v.  Kunin    (Mich.)    1916C-959. 

3.    ENFORCEMENT  OF  REGULATIONS, 
a.     Who  may  Sue. 

6.  Injunction  Against  Violation  of  Ordi- 
nance. A  building  ordinance  which  au- 
thorizes the  department  of  buildings  to 
stop  the  construction  or  removal  of  any 
building  constructed  in  violation  of  the 
ordinance,  and,  if  the  order  be  not  obeyed, 
to  apply  to  any  court  to  restrain  any  per- 


144 


DIGEST. 

19160— 1918B. 


son  from  disobeying  the  order,  empowers 
the  department  of  buildings  to  sue  to  en- 
join a  threatened  violation  of  the  ordi- 
nance by  the  erection  of  a  building. 
Building  Commission  v.  Kunin  (Mich.) 
1916C-959.  (Annotated.) 

7.  Estoppel  to  Enforce  Ordinance.  The 
granting  by  the  building  department  of 
a  city  of  a  buiding  permit  under  a  mis- 
conception of  the  building  ordinance  not 
requiring:  a  permit  does  not  thereby  estop 
the  department  from  suing  in  equity  to 
enjoin  the  construction  of  the  building  in 
violation  of  the  ordinance.  Building  Com- 
mission V.  Kunin  (Mich.)   1916C-959. 

b.     Defenses. 

8.  Where  one  constructing  a  building 
disregarded  provisions  of  the  building 
ordinance,  and  had  early  notice  thereof, 
but  continued  the  construction,  he  could 
not  rely  on  an  equitable  estoppel  to  pre- 
Tent  the  building  department  of  the  city, 
consenting  by  mistake  of  law  to  the  erec- 
tion of  the  building,  from  maintaining  a 
suit  to  enjoin  the  construction  because 
violative  of  the  ordinance.  Building  Com- 
mission V.  Kunin  (Mich.)  1916C-959. 

9.  Owners  of  Premises — Liability  for 
Collapse  of  Building — Violation  of  Bond- 
ing Ordinance.  Where,  when  a  permit  to 
erect  a  two-story  building  was  applied 
for,  the  plans  and  specifications  submitted 
to  the  city  building  inspector  provided 
that  the  building  should  be  so  constructed 
that  a  third  story  might  be  added  at  some 
future  time,  no  causal  relation  appears 
between  the  failure  to  obtain  a  permit  for 
the  erection  of  a  third  story  which  it  was 
subsequently  decided  to  add^  as  required 
by  a  city  ordinance,  and  an  injury  result- 
ing from  the  collapse  of  such  building,  as, 
if  any  inference  might  be  drawn,  it  would 
be  that  the  permit  would  have  been 
granted,  had  application  been  made. 
Prest-o-Ute  Co.  v.  Skeel  (Ind.)  1917A-474. 

(Annotated.) 

BULK  SALES  LAW. 
See   Fraudulent   Sales   and   Conveyances, 
15-20;  Sales,  66-70. 

BUEDEN  or  PEOOF. 
See  Evidence,  146-148. 

BURIAL  INSUEANCE. 
See  Insurance,  59. 

BUBSTINQ  WATEB  PIPE. 

Liability   irrespective    of    negligence,    see 
Waterworks  and  Water  Companies,  11. 

BURYING  GEOUNDS. 
See  Cemeteries. 


BUSINESS. 
Meaning,  see  Master  and  Servant,  41. 

BY-BIDDING. 

Effect  on  sale,  see  Auctions  and  Auction- 
eers, 4. 

BY-LAWS. 

See  Beneficial  Associations,  11-16;  Corpo- 
rations, 9-11. 

Of  cities,  see  Municipal  Corporations,  48- 
108. 

BYSTANDERS. 

Effect  of  on  privilege,  see  Libel  and 
Slander,  56,  57. 

BUEGLAEY. 

1.  Opening   Partly    Opened   Door.     One 

who  finds  the  door  of  a  freight  car  partly 
open  and  pushes  it  further  open  in  order 
to  effect  an  entry  for  the  purpose  of  com- 
mitting larceny  therein  commits  a  "break- 
ing" which  is  sufficient  to  support  a  charge 
of  burglary,  since  the  breaking  is  the  re- 
moval of  an  obstruction  which,  if  left  as 
found,  would  prevent  an  entrance,  and  the 
fact  that  a  portion  of  the  space  needed 
for  the  entrance  is  already  open  will  not 
relieve  the  defendant  from  the  penalty. 
State  v.  Lapoint  (Vt.)   1916C-318. 

(Annotated.) 

2.  Unauthorized  Entry  by  Employee. 
Where  an  employee  of  a  harness  company 
was  given  a  key  to  the  building  so  that 
he  might  open  up  in  the  morning,  but  was 
not  given  permission  to  enter  the  build- 
ing before  or  after  hours,  his  ^ntry  out  of 
hours  by  means  of  the  key  constitutes  a 
breaking,  and  when  it  is  accompanied  by 
larceny  of  goods  in  the  building,  the  em- 
ployee is  guity  of  burglary.  State  v.  Cor- 
coran  (Wash.)   1916E-531. 

(Annotated.) 

3.  Proof  of  Other  Offenses.  In  a  prose- 
cution for  a  burglary  by  an  employee  of 
a  harness  company,  who  was  given  a  key 
to  the  building,  evidence  that  on  prior 
trips  he  carried  away  other  articles,  that 
be  padded  an  inventory  of  the  stock,  and 
that  articles  secreted  around  his  work 
bench  were  removed,  is  admissible  to  show 
a  general  scheme,  notwithstanding  the 
rule  that  evidence  of  other  distinct  crimi- 
nal acts  cannot  be  introduced  to  prove  ac- 
cused guilty  of  an  independent  crime. 
State  v.  Corcoran  (Wash.)  1916E-531, 

Notes. 

Burglary  by  opening,  suflBciently  to 
gain  entrance,  door  or  window  partly 
open.     1916C-320. 

Unauthorized  entry  of  premises  by  em- 
ployee of  owner  as  burglarious  entry. 
1916E-534. 


CALL  MEN— CARRIERS. 


145 


CALL  2VIEN. 

In    citj   fire     department,    lee    Municipal 
Corporations,  165,  166. 

CANALS. 

See  Water  and  Watercourses;  Irrigation. 

Liability    for     drowning    of     trespassing 
child,  see  Negligence,  93. 

1.  Grant  of  Water  Power — Construction. 
Complainant,  the  owner  of  all  the  water 
power  of  a  river  near  a  certain  point,  con- 
tracted to  sell  all  his  rights  to  defendants, 
who  thereafter  organized  a  power  com- 
pany, erected  a  dam  above  complainant's 
old  dam  and  power  plant,  after  which 
complaina,nt  executed  a  deed  to  the  power 
company  conveying  all  his  rights  except  a 
reservation  of  a  certain  amount  of  water 
for  his  mill;  the  deed  closing  with:  "[Com- 
plainant] his  heirs  and  assigns  shall  be 
entitled  to  receive  his  portion  of  any  water 
which  at  any  time  hereafter,  passing  the 
dam  of  said  company,  may  be  caught  by 
the  aforesaid  dam  [old  dam,]"  etc.  Held, 
in  view  of  the  situation  of  the  parties,  the 
subject-matter,  and  the  object  which  the 
parties  had  in  view,  that  the  quoted  clause 
was  not  a  reservation  of  a  right  to  the 
overflow  from  the  dam  with  reference  to 
the  height  of  the  dam  (18  feet)|  when  the 
deed  was  executed  so  as  to  prevent  the 
power  company  from  thereafter  increasing 
its  height  so  as  to  meet  the  growing  de- 
mands of  its  business;  the  quoted  clause 
not  controlling  nor  limiting  the  height  of 
the  dam  nor  the  power  company's  use  of 
the  water,  but  itself  being  controlled  and 
limited  by  the  use  which  the  company  may 
make  of  the  water  power  for  its  purposes. 
Bridgewater  Milling  Corp.  v.  Fredericks- 
burg Power  Co.   (Va.)   1916D-1027. 

(Annotated.) 

2.  By  a  deed  executed  in  1874  defendant 
power  company  agreed  to  furnish  com- 
plainant milling  company  50  cubic  feet  of 
water  per  second  for  its  mill;  the  power 
company  agreeing  to  repair  and  put  in 
order  the  canal  to  complainant's  mill,  and 
to  raise  the  embankment,  and  complainant 
agreeing  "to  keep  in  good  order,  at  their 
costs  and  charges,  the  said  race  from  and 
after  the  time  when  it  shall  have  been  put 
in  order  as  hereinbefore  prescribed." 
Held,  in  view  of  the  clear  language  of 
the  quoted  clause  and  the  interpretation 
placed  thereon  by  the  parties  as  shown 
by  their  actions,  that  it  was  unquestion- 
ably complainant's  duty,  after  defendants 
had  put  the  canal  in  order,  to  keep  it  in 
repair,  at  its  own  cost.  Bridgewater  Mill- 
ing Corp.  V.  Fredericksburg  Power  Co. 
(Va.)    1916D-1027.  (Annotated.) 

3.  Grant  of  Water  Power — Construction. 
In  a  lease  involving  the  right  to  draw 
water  from  a  canal,  the  use  of  the  term 
"horse  power"  to  designate  the  standard 

10 


by  which  the  water  so  drawn  was  to  be 
measured  shows  that  the  contracting  par- 
ties intended  that  the  water  should  be  used 
solely  for  producing  power,  not  for  con- 
sumption. Eastern  Pa.  Power  Co.  v.  Le- 
high Coal,  etc.  Co.  (Pa.)  1916D-1000. 

(Annotated.) 

CANCELLATION. 
See  Rescission,  Cancellation,  and  Befonn»- 

tion,  11-35. 
Of  lease  by  act  of  parties,  see  Landlord 

and  Tenant,  44. 

CANDIDATE  FOR  OFFICE. 

Criticism  of,  see  Libel  and  Slander,  10  14, 
33,  37,  45-47,  146,  156. 

CANDIDATES. 
See  Elections. 

CANVASS. 

Of  votes,  see  Elections,  29-81. 

CAPITAL  PUNISHMENT. 

Effect  on  incontestable  clause,  see  JAt^ 
Insurance,  27. 

CAPPERS. 
Solicitation  by,  see  Attorneys,  21. 

CARE. 

Degrees  of  care  defined,  see  Negligence, 
4,5. 

CARPENTER. 

As    within    Federal    Employers'    Liability 
Act,  see  Master  and  Servant,  53. 

CAR  REPAIRER. 

As    within    Federal    Employers*    Liabilitj 

Act,  see  Master  and  Servant,  51. 

CARRIERS. 

1.  Regulation    and     Control   of     Common 

Carriers,  145. 

a.  In  General,   145. 

b.  Regulation  of  Rates,  147. 

2.  Contracts  Limiting  Liability,  147. 

See  Carriers  of  Goods;  Carriers  of  Live 
Stock;  Carriers  of  Passengers;  Inter- 
state Commerce;  Public  Service  Com- 
missions;  Railroads;   Street  Railways. 

Combination  of  ocean  carriers  to  restrain 
competition,  see  Monopolies,  16,  17. 

1.     REGULATTOISr    AND    CONTROL    OF 

COMMON  CARRIERS. 

a.     In   General. 

1,  Validity   of    Discriminatory    Regula- 

tions  of  Carriers.    Mo.  Const,  art.  12,  §  14, 


146 


DIGEST. 

19160— 1918B. 


and  Mo.  Eev,  St.  1909,  §  3232,  forbidding 
discrimination,  is  binding  upon  the  state, 
notwithstanding  tliat  by  the  Constitution 
railroads  are  declared  to  be  public  high- 
ways. State  V.  Missouri,  etc.  B.  Co.  (Mo.) 
1916E-949. 

2.  Penalty  for  Failure    to    Pay  Claim. 

Congress  has  so  far  taken  over  the  sub- 
ject of  a  carrier's  liability  for  loss  or  dam- 
age to  interstate  shipments  by  the  act  of 
Congress  of  June  18,  1910  (36  Stat,  at 
L.  539,  c.  309  (Fed.  St.  Ann.  1912  Supp. 
p.  112),  and  the  act  of  June  29,  1906  (34 
Stat,  at  L.  584,  c.  3591  (Fed.  St.  Ann. 
1909  Supp.  p.  271),  amending  respectively 
§§1  and  20  of  the  act  of  February  4,  1887 
(24  Stat,  at  L.  386,  c.  104),  as  to  invali- 
date the  provisions  of  S.  C.  Civ.  Code 
1912,  §  2573,  in  so  far  as  they  may  subject 
a  terminal  carrier  to  the  prescribed  pen- 
alty of  $50  for  failure  to  pay  promptly 
a  claim  for  damages  to  an  interstate  ship- 
ment, no  matter  where  the  loss  occurred, 
unless  the  carrier  proves  that  the  shipment 
never  came  into  its  possession,  or  succeeds 
within  the  forty  days  allowed  in  shifting 
the  loss  by  giving  notice  as  to  when,  where, 
and  by  which  carrier  the  property  was 
damaged,  or  by  showing  that  it  used  due 
diligence,  but  was  unable  to  discover 
where  the  damage  occurred;  nor  is  the 
statute  saved  by  calling  it  an  exercise  ot 
the  police  power,  nor  by  the  proviso  in  the 
act  of  June  29,  1906,  saving  the  rights  of 
holders  of  bills  of  lading  under  existing 
law.  Charleston,  etc.  B.  Co.  v.  Varnville 
Furniture  Co.  (U.  S.)  1916D-333. 

(Annotated.) 

3.  Bringing  into  the  state  property  to  be 
used  in  violation  of  its  laws  is  a  legitimate 
subject  of  punitive  legislation  akin  to  that 
of  bringing  in  stolen  property.  State  v. 
Missouri  Pacific  B.  Co.  (Kan.)  1917A-612. 

(Annotated.) 

4.  Regulation  by  Public  Service  Commis- 
sion— Requiring  Particular  Class  of  Ser- 
vice. A  provision,  whether  made  by  stat- 
ute or  order  of  a  commission,  which  fixes 
rates  for  the  carriage  of  passengers  or 
freight  by  a  railroad  company  is  to  be  dis- 
tinguished from  an  order  which  requires 
it  to  furnish  a  particular  facility  or  per- 
form a  duty  imposed  by  reason  of  the 
exercise  of  rights  and  franchises  which  it 
has  acquired  from  the  state;  the  fact  that 
some  loss  would  result  from  compliance 
with  the  latter  does  not  in  and  of  itself 
conclusively  establish  the  unreasonableness 
of  the  order,  but  is  an  important  element 
to  be  considered  with  all  the  other  facts 
bearing  on  that  question.  Hocking  Valley 
E.  Co.  V.  Public  Utilities  Commission 
(Ohio)  1917B-1154.  (Annotated.) 

5.  Where  a  railroad  sought  to  restrain 
the  enforcement  of  an  order  of  the  public 
service  commission  fixing  the  maximum 
charge  for   commutation  tickets,  and  the 


evidence  as  to  whether  such  rate  was  un- 
reasonable and  confiscatory  was  unsatis- 
factory and  inconclusive,  the  rate  should 
be  allowed  to  go  into  effect  to  determine 
hy  actual  experience  its  character,  subject 
to  the  right  of  the  road  at  any  future 
time  to  seek  its  abrogation  by  judicial 
action  for  cause  shown.  Pennsylvania  B. 
Co.  V.  Towers  (Md.)  1917B-1144. 

6.  In  a  suit  by  a  railroad  to  enjoin  en- 
forcement of  an  order  of  the  public  service 
commission  firing  the  maximum  charge  for 
commutation  tickets,  evidence  is  held  to 
be  insufficient  to  show  that  such  rate  was 
unreasonable  and  confiscatory.  Pennsyl- 
vania B.  Co.  V.  Towers  (Md.)  1917B-1144. 

7.  In  firSing  railroad  charges  for  any 
specific  class  of  service,  the  point  of  in- 
justice is  reached  before  that  of  confisca- 
tion, and  to  give  the  constitutional  pro- 
hibition against  confiscation  any  beneficial 
effect,  it  must  be  read  to  prohibit  the  fix- 
ing of  rates  at  a  point  at  which  the  rail- 
road property  will  return  to  its  owners 
enough  to  pay  operating  expenses  and  a 
fair  profit  on  the  investment.  Pennsyl- 
vania B.  Co.  V.  Towers  (Md.)  1917B-1144. 

(Annotated.) 

8.  The  mere  fact  that  the  rate  fixed  by 
the  public  service  commission  for  com- 
mutation tickets  is  discriminatory,  is  not 
conclusive  of  its  invalidity.  Pennsylvania 
B.  Co.  V.  Towers  (Md.)   1917B-1144. 

(Annotated.) 

9.  In  determining  whether  the  action  of 
the  public  service  commission  in  fixing  a 
railroad  commutation  rate  was  reasonable, 
the  entire  net  revenue  of  the  road,  from 
whatever  character  of  service  derived,  is 
not  to  be  looked  to,  since  the  specific  ser- 
vice regulated  must  have  its  charges  so 
fixed  as  to  return  the  road  a  normal  profit 
on  such  specific  branch  of  the  service  bv 
itself,  to  avoid  confiscatory  action,  which 
would  ultimately  defeat  the  end  the  regu- 
lation was  intended  to  accomplish,  the  pro- 
motion of  the  public  good  and  convenience. 
Pennsylvania  B.  Co.  v.  Towers  (Md.) 
1917B-1144.  (Annotated.) 

10.  The  action  .of  the  state  in  establish- 
ing, through  the  public  service  commission, 
a  single  fare  rate  does  not  exhaust  its 
power  to  regulate  transportation  charges, 
and,  after  establishing  a  single  fare  rate, 
it  may  thereafter  make  any  reasonable 
regulation  affecting  mileage  or  commuta- 
tion rates,  leaving  them  so  as  to  bring  a 
proper  return  to  the  railroad  for  the  spe- 
cific service,  independent  of  the  return  to 
it  from  other  services.  Pennsylvania  B. 
Co.  V.  Towers  (Md.)  1917B-1144. 

(Annotated.) 

11.  Regulation  by  Public  Service  Com- 
mission —  Commutation  Rates.  Although 
the  public  service  commission  has  no  power 
to  make  avj  order  except  so  far  as  author- 


CARRIERS  OF  GOODS. 


147 


ity  is  conferred  by  the  legislature,  under 
Md.  Code  Pub.  Civ.  Laws,  art.  23,  §  435, 
creating  the  commission,  as  amended  by 
Acts  1912,  c.  162,  the  commission  has  full 
power,  80  far  as  the  legislature  could 
grant  it,  to  supervise  all  railroad  tariffs 
and  transportation  charges  within  the 
state,  including  commutation  rates.  Penn- 
sylvania E.  Co.  V.  Towers  (Md.)  1917B- 
1144.  (Annotated.) 

12.  Excessive  Rates — Invalidity.  A  rate 
that  is  confiscatory  or  insufficient  to  pay 
the  cost  of  transportation  and  other  neces- 
sary outlays,  as  well  as  to  return  the  car- 
rier a  reasonable  profit  on  the  investment, 
is  invalid  as  depriving  the  carrier  of  its 
property  without  due  process  of  law. 
State  Public  Utilities  Com.  v.  Chicago,  etc. 
E.   Co.    (111.)    1917C-50. 

13.  Apportionment  of  Joint  Rates. 
Where  joint  rates  charged  by  interurban 
and  street  railroad  companies  are  con- 
fiscatory as  to  one  and  excessive  as  to  the 
other,  the  public  utilities  commission  may 
adjust  and  apportion  the  joint  rates  so  as 
to  make  them  just  and  reasonable  and  suffi- 
cient to  be  reasonably  remunerative  to 
both  companies.  State  Public  Utilities 
Com.  V.  Chicago,  etc.  E.  Co.  (111.)  1917C- 
50. 

14.  Power  to  Fix  Rates — Prior  to  Public 
Utilities  Act,  After  passage  of  the  public 
utilities  act,  but  before  it  went  into  effect, 
street  railway  and  interurban  railway 
companies  might  without  consent  of  the 
public  utilities  commission  increase  their 
rates,  provided  the  rates  established  were 
reasonable  and  just.  State  Public  Utili- 
ties Com.  V.  Chicago,  etc.  E.  Co.  (111.) 
1917C-50. 

Notes. 

Validity  of  statute  imposing  penalty  on 
carrier  of  goods  or  live  stock  for  failure 
to  pay  claim  within  certain  time.  1916D- 
335. 

Power  of  public  service  commission  to 
compel  carrier  to  furnish  particular  class 
of  service.     1917B-1160. 

Validity  of  order  by  public  service 
commission  regulating  commutation  rates. 
1917B-1153. 

b.     Eegulation  of  Eates. 

15.  If  the  difference  in  railroad  rates  is 
based  upon  a  reasonable  and  fair  differ- 
ence in  conditions  which  equitably  and 
logically  justify  a  different  rate,  it  is  not 
an  unjust  discrimination.  State  v.  Mis- 
souri, etc.  E.  Co.  (Mo.)  1916E-949. 

16.  It  needs  neither  a  statute  nor  a  con- 
stitutional provision  to  make  an  unjust 
discrimination  in  railroad  rates  unlawful, 
for  such  discrimination  is  forbidden  by 
common  law.  State  v.  Missouri,  etc.  E. 
Co.  (Mo.)   1916E-949. 


17.  Under  Mo.  Const,  art.  12,  §  14,  for- 
bidding unjust  discrimination  in  railroad 
rates,  it  does  not  follow  that  because  a 
discrimination  is  apparent  it  is  an  unjust 
discrimination.  State  v.  Missouri,  etc.  B. 
Co.  (Mo.)   1916E-949. 

2.    CONTEACTS  LIMITING  LIABILITY. 

18.  Power  to  Limit  Liability.  A  com- 
mon carrier  cannot  relieve  itself  from  the 
liability  imposed  by  section  8994 — 1,  Ohio 
General  Code,  by  any  rule  or  regulation 
contained  in  the  schedule  filed  by  it  with 
the  state  public  utilities  commission.  Erie 
E.  Co.  T.  Steinberg  (Ohio)  1917E-661. 

(Annotated.) 

CARRIERS  OF  GOODS. 

1.  Delivery  to  Consignee,  147. 

2.  Loss  of  or  Injury  to  Goods,  147. 

a.  In  General,  147. 

b.  Loss  by  Floods,  148. 

c.  Penalty  for  Failure  to  Adjust  Loss, 

148. 

3.  Liability  as  Warehousemen,  148. 

4.  Limitation  of  Liability,  148. 

a.  In  General,   148. 

b.  Consent  to  Limitation,  149. 

5.  Waiver  of  Liability,  149. 

6.  Charges,  149. 

7.  Connecting  Carriers,  150. 

8.  Actions  Against  Carriers,  151. 

a.  Actions  for  Loss,  Injury  or  Delay, 
151. 

(1)  In  General,  151. 

(2)  Evidence,  151. 

(3)  Instructions,    152. 

(4)  Damages,  152. 

See  Carriers;  Carriers  of  Live  Stock;  Car- 
riers of  Passengers;  Interstate  Com- 
merce. 

Eecovery  of  undercharge  in  rate,  see  In- 
terstate Commerce,  11.  12. 

1.     DELIVEEY  TO  CONSIGNEE. 

1.  Right  to  Inspection.  Every  consignee 
is  entitled  to  an  inspection  of  goods 
shipped  in  carload  lots  before  he  is  bound 
to  accept  or  reject  the  shipment.  Burk- 
enroad  Goldsmith  Co.  v.  Illinois  Central  R. 
Co.  (La.)   1917C-935. 

2.    LOSS  OF  OE  INJURY  TO  GOODS, 
a.     In   General. 

2.  Carriers  of  Goods — Duty  of  Consignee 
to  Receive  Damaged  Goods.  From  the 
time  that  a  carrier  refuses  to  pay  for  dam- 
age to  a  shipment  of  goods,  it  is  the  con- 
signee's duty  to  take  them,  they  not  hav- 
ing become  worthless  by  the  carrier's  act, 
with  right  to  sue  for  damages;  so  that 
not  taking  them  he  is  liable  for  storage 
charges.  Holoman  v.  Southern  E.  Co,  (N. 
Car.)   1917E-1069. 

3.  Right  to  Assume  Common-law  Liabil- 
icy.     The  U.  S.  Interstate  Commerce  Law 


148 


DIGEST. 

1916C— 1918B. 


(Act  Feb.  4,  1887,  e.  104,  24  Stat.  379). 
wMch  was  designed  to  prevent  preferences, 
does  not  prohibit  a  carrier  from  assuming 
tlie  common-law  liability  in  carrying  goods 
from  one  state  to  another.  Grice  v.  Ore- 
gon-Washington R.  etc.  Co.  (Ore.)  1917E- 
645. 

Note. 
Liability  of  carrier  for  damages  caused 
by  act  of  God  co-operating  with  ita  own 
negligence.     1918A^81. 

b.    Loss  by  Floods. 

4.  Delay  by  Carrier  Co-operating  With 
Act  of  God.  Whether  a  common  carrier  is 
liable  for  injury  to  goods,  where,  after 
being  negligently  delayed  in  transit,  the 
goods,  while  still  in  transit,  are  injured  by 
an  act  of  God,  such  as  an  unprecedented 
flood,  depends  upon  whether  the  negligent 
delay  of  the  carrier  has  a  proximate  causal 
relation  or  a  mere  remote  or  casual  rela- 
tion to  the  subsequent  injury.  Seaboard 
Air  Line  Ky.  v.  MuUin  (Fla.)  1918A-576. 

(Annotated.) 

5.  A  merely  negligent  delay  in  transport- 
ing goods,  which  delay  causes  the  goods  to 
be  at  a  point  in  transit  where  they  are  in- 
jured or  destroyed  by  an  unprecedented 
flood  that  could  not  have  been  foreseen  at 
the  time  of  the  delay,  does  not  render  the 
carrier  liable  for  the  direct  consequences 
of  the  flood  upon  the  goods,  if  there  was 
no  malconduct  by  the  carrier,  and  negli- 
gence of  the  carrier  in  providing  reason- 
ably safe  and  adequate  facilities  for  and 
attention  to  the  safety  of  the  goods  does 
not  directly  contribute  to  the  injury,  even 
though  the  goods  would  not  have  been  at 
the  point  where  they  were  injured,  and 
would  hare  escaped  the  flood  but  for  the 
negligent  delay  of  the  carrier  at  a  time 
when  the  flood  could  not  have  been  fore- 
seen. Such  an  injury  is  not  an  ordinary 
natural  sequence  of  the  delay.  Seaboard 
Air  Line  By.  v.  Mullin  (Fla.)  1918A-576. 

(Annotated.) 

6.  Act  of  God.  Where  in  the  course  of 
transportation  goods  are  injured  by  an  un- 
precedented flood  and  there  is  no  negli- 
gence on  the  part  of  the  common  carrier 
in  taking  care  of  the  goods  or  otherwise, 
the  loss  is  attributable  to  the  flood  as  an 
act  of  God  and  the  carrier  is  not  liable. 
Seaboard  Air  Line  By.  v.  Mullin  (Fla.) 
1918A-576. 

c.     Penalty  for  Failure  to  Adjust  Loss. 

7.  Bights  of  Undisclosed  Principal  as 
Against  Carrier.  Under  N.  C.  Revisal 
1905,  §  2634,  as  amended  by  Eevisal 
Supp.  1913,  §  2634,  providing,  relative 
to  claims  for  loss  of  or  damage  to 
property  while  in  the  possession  of  a  car- 
rier, that  failure  to  adjust  and  pay  such 
claims    within    the     periods     therein    de- 


scribed shall  subject  the  carrier  to  a  pen- 
alty of  $50,  to  be  recovered  by  "any  con- 
signee aggrieved"  or  the  consignor,  when 
he  was  the  owner  of  the  property  at  the 
time  of  shipment  and  at  the  time  of  suit, 
and  is  therefore  the  party  aggrieved,  but 
that  unless  such  consignee  or  consignor  re- 
cover the  full  amount  claimed  no  penalty 
shall  be  recovered,  where  the  nominal  con- 
signee was  acting  for  his  wife,  who  was 
the  real  party  in  interest,  and  the  owner 
of  the  goods,  she  could  recover  the  pre- 
scribed penalty,  though  she  was  not  dis- 
closed as  principal,  as  the  right  to  recover 
the  penalty  is  incidental  to  the  right  to 
recover  for  the  loss  or  damage,  and  there 
is  no  real  danger  of  the  carrier  being  sub- 
jected to  a  double  liability,  since,  if  the 
agent  sues  and  recovers  before  the  prin- 
cipal is  disclosed,  the  principal  is  bound 
by  his  act.  Horton  v.  Southern  B.  Co.  (N. 
Car.)  1918A-824.  (Annotated.) 

3.     LIABILITY    AS   WAEEHOUSEMEN. 

8.  Duty  of  Carrier  After  Arrival  at  Des- 
tination. Though  a  carrier  is  authorized 
by  S.  Dak.  Civ.  Code,  §  1557,  to  retain  the 
goods  until  the  bill  of  lading  is  surrendered 
Or  indemnity  furnished,  it  is  not  relieved 
from  its  duty  to  properly  protect  and  care 
for  the  property  in  the  meantime.  Dun- 
lap  V.  Great  Northern  E.  Co.  (S.  Dak.) 
1916D-805. 

9.  Eefrigeratlon  of  Fruit.  Where  a  car- 
rier refused  to  deliver  a  car  of  apples  to 
plaintiff  on  arrival  at  destination  because 
of  plaintiffs  inability  to  surrender  the  bill 
of  lading,  due  to  its  loss,  and  continued 
to  hold  the  apples  in  the  car,  for  which 
demurrage  was  charged,  and  during  the 
time  the  apples  were  so  held  the  car  was 
not  properly  ventilated  or  iced,  the  car- 
rier's liability  is  not  changed  to  that  of 
a  mere  warehouseman  after  tender  of  de- 
livery on  production  of  the  bill  of  lading. 
Dunlap  V.  Great  Northern  B.  Co.  (S.  Dak.) 
1916D-805. 

10.  Where  apples  were  shipped  in  a  re- 
frigerator car  requiring  icing  and  ventila- 
tion, failure  to  properly  ice  and  ventilate 
the  car  while  the  terminal  carrier  was 
holding  the  goods,  because  of  its  refusal  to 
deliver  without  a  surrender  of  the  bill  of 
lading  which  had  been  lost,  did  not  con- 
stitute ordinary  care,  and  hence  it  is  liable 
for  the  injury  sustained,  though  regarded 
as  a  warehouseman  under  S.  Dak.  Civ. 
Code,  §  1377,  requiring  a  depositary  for  hire 
to  use  at  least  ordinary  care  for  the  pres- 
ervation of  the  thing  deposited.  Dunlap 
v.  Great  Northem_B.  Co.  (S.  Dak.)  1916D- 
805. 

4.     LIMITATION  OF  LIABILITY, 
a.     In   General. 

11.  Bnrden  of  Proof.  A  carrier,  seeking 
to   reduce   its   liability  for  goods  lost   in 


CARRIERS  OF  GOODS. 


149 


transit,  must  allege  and  prove  facts  en- 
titling it  to  the  reduction.  Grice  v. 
Oregon-Washington  B.,  etc.  Co.  (Ore.) 
1&17E-645. 

b.     Consent  to  Limil^ation. 

12.  Authority  to  Consent  to  Limitatio*. 
A  transfer  company,  authorized  to  deliver 
household  goods  to  a  particular  railroad 
company  for  shipment,  has  no  authority 
to  consent  to  a  reduction  of  the  carrier's 
common-law  liability,  and  the  agreement 
reducing  the  Fiability  is  not  binding  on  the 
shipper.  Grice  v.  Oregon-Washington  R., 
•tc.  Co.  (Ore.),  1917E-645. 

(Annotated.) 

5.     WAIVER  OF  LIABILITY. 

13.  Authority  to  Consent  to  Limitation 
of  Liability.  For  a  waiver  of  liability 
made  by  a  drayman  to  an  express  com- 
pany to  become  binding  on  a  shipper  by 
ratification,  the  company  must  show  that 
the  shipper  was  fully  advised  regarding 
the  waiver  soon  enough  to  have  rejected  it. 
Grice  v.  Oregon-Washington  R.,  etc.  Co. 
(Ore.)    1917E-645.  (Annotated.) 

14.  Custody  of  goods  at  the  moment  of 
shipping  is  not  such  indicia  of  authority 
that  agency  to  waive  liability  on  the  part 
of  an  express  company  by  which  he  is  ship- 
ping them  will  be  presumem  Grice  v. 
Oregon-Washington  R.,  etc.  Co.  (Ore.)" 
1917E-645.  (Annotated.) 

Note. 
Rights  as  against  carrier  of  undisclosed 
principal  of  person  shipping  goods  or  live 
stock.     1918A-826. 

6.     CHARGES. 

15.  Implied     Liability     of     Consignee. 

Where  peaches  were  consigned  to  defend- 
ant to  be  sold  on  commission,  defendant  to 
remit  the  proceeds  to  his  principal,  less 
commission  and  freight  charges,  and  the 
plaintiff  railroad  company,  without  knowl- 
edge of  defendant's  agency,  charged  de- 
fendant by  mistake  less  freight  than  was 
called  for  by  the  rate  filed  with  the  Inter- 
state Commerce  Commission,  the  fact  that 
the  mistake  was  not  discovered  and  the 
additional  freight  demanded  until  after 
settlement  between  the  defendant  and  his 
principal  does  not  affect  plaintiff's  right 
to  recover,  since  under  such  circumstances 
the  plaintiff  has  the  right  to  treat  defend- 
ant as  the  owner  of  the  goods,  and  the 
defendant,  in  allowing  plaintiff  to  act  on 
that  assumption  and  deliver  the  goods, 
impliedly  agreed  to  pay  the  transportation 
charges.  Pennsvlvania  R.  Co.  v.  Titus 
(N.  Y.)  1917C-862.  (Annotated.) 

16.  Duty  to  Collect  Lawful  Charge.  Un- 
der the  U.  S.  Interstate  Commerce  Act  the 
freight  rate  on  an  interstate  ihipment  ia 


the  lawful  rate  existing  at  the  time  of 
the  shipment,  which  rate  the  carrier  is  re- 
quired to  collect.  Central  of  Ga.  R.  Co. 
v.  Southern  Ferro  Concrete  Co.  (Ala.) 
1916E-376. 

17.  Liability  for  Undercharge.  Liability 
for  the  fixed  freight  charges  is  not  affected 
by  the  carrier's  waiver  or  loss  of  its  lien 
on  the  goods  by  delivery  without  collect- 
ing the  lawful  rate,  and  conference  ruling 
No.  314  of  the  Interstate  Commerce  Com- 
mission of  May  1,  1911,  governing  a  car- 
rier's rights  to  collect  freight  under- 
charges, properly  left  it  to  the  courts  hav- 
ing jurisdiction  to  declare  in  each  case 
whether  the  consignor  or  consignee  is 
legally  liable  for  the  undercharges.  Cen- 
tral of  Ga.  R.  Co.  V.  Southern  Ferro  Con- 
crete Co.  (Ala.)  1916E-376. 

(Annotated.) 

18.  Liability  of  Conslgmee  for  Under- 
charge. The  consignee's  acceptance  and 
removal  of  the  goods  sold  to  it  f.  o.  b.  its 
station  with  knowledge  that  the  carrier 
was  giving  up  a  lien  thereon  for  freight 
undercharges  does  not  create  an  obliga- 
tion on  its  part  to  pay  the  freight  charges 
at  the  request  and  for  the  convenience  of 
the  consignor  beyond  the  amount  stated. 
Central  of  Ga.  R.  Co.  v.  Southern  Ferro 
Concrete  Co.  (Ala.)  1916E-376. 

(Annotated.) 

19.  Reasonableness.  A  state  commission 
having  adopted  demurrage  rules  under  au- 
thority conferred  by  Pub.  Acts  1911,  No. 
173,  §  1,  amending  Pub.  Acts  1909,  No.  300, 
§§3,  8,  such  rules  though  applicable  to  in- 
terstate commerce,  are  valid  and  applicable 
to  intrastate  shipments,  in  the  absence  of 
evidence  presented  by  an  objecting  carrier 
to  show  their  unreasonableness,  under  Pub. 
Acts  1909,  No.  300,  §  26,  providing  that, 
in  all  actions  under  such  section  to  avoid 
orders  of  the  Commission,  the  burden  of 
proof  shall  be  on  the  complainant  to  show, 
by  clear  and  satisfactory  evidence,  that 
the  order  is  unlawful  or  unreasonable. 
Michigan  Central  R.  Co.  v.  Michigan  R.  R. 
Com.  (Mich.)  1916E-695.  (Annotated.) 

20.  Demurrage,  Power  of  State  to  Regu- 
late. By  Act  of  Cong.  June  20,  1906,  c 
3;')91,  34  Stat.  584  (Fed.  St.  Ann.  1900 
Supp.  p.  255)  the  Interstate  Commerce 
Commission  Act  was  amended  by  section  1 
so  as  to  define  the  term  "transportation" 
to  include  cars,  vehicles,  and  all  instru- 
mentalities and  facilities  for  the  carriage 
of  goods  and  all  services  in  connection  with 
the  receipt,  delivery,  elevation,  and  trans- 
fer in  transit,  etc.,  requiring  that  the  car- 
rier shall  provide  such  transportation  on 
reasonable  request  and  establish  just  and 
reasonable  rates  applicable  thereto.  Sec- 
tion 6  declares  that  the  schedules  printed 
and  filed  by  the  carrier  shall  contain  a 
classification  of  freight  in  force,  and  shall 
state  separately  all  terminal,  storage,  icing 
charges,  or  the  value  of  servics  rendered 


150 


DIGEST. 

1916C— 1918B. 


to  the  passenger,  shipper,  or  consignee. 
Held,  that  terminal  and  storage  eharges  in- 
clude denaurrage,  and,  the  Interstate  Com- 
merce Commission  having  tentatively  ap- 
proved the  revised  car  demurrage  rules 
adopted  by  the  American  Railroad  Asso- 
ciation, the  state  legislature  has  no  juris- 
diction to  pass  Pub.  Acts  1911,  No.  173, 
§  1,  amending  Pub.  Acts  1909,  No.  300, 
|§  3,  8,  so  far  as  they  attempted  to  confer 
on  the  State  Railroad  Commissions  power 
to  adopt  and  enforce  different  demurrage 
rules  applicable  to  interstate  commerce. 
Michigan  Central  R.  Co.  v.  Michigan  R.  R. 
Com.  (Mich.)  1916E-695.  (Annotated.) 

21.  Where  a  rate  or  charge,  based  upon 
the  value  of  the  articles  transported,  is 
provided  in  the  schedule  filed  with  the 
public  utilities  commission  of  the  state,  it 
is  the  duty  of  the  transporting  company 
to  require  the  shipper  to  declare  the  value 
and  to  demand,  collect,  and  receive  from 
him  the  rate  fixed  in  its  schedule  filed  with 
the  state  commission.  Erie  R.  Co.  v.  Stein- 
berg (Ohio)  1917E-661. 

22.  "Where  a  copy  of  such  schedule  is 
printed  and  filed  as  provided  by  sections 
505  and  506,  Ohio  General  Code,  shippers 
and  travelers  are  charged  with  notice  of 
the  tariffs  named  in  this  schedule  and  must 
abide  thereby,  unless  the  same  be  found 
unreasonable  by  the  public  utilities  com- 
mission of  the  state.  Erie  R.  Co.  v.  Stein- 
berg  (Ohio)    1917E-661. 

23.  Necessity  of  Adhering  to  Published 
Schedule.  Where  a  railroad  has  filed  a 
schedule  under  the  provisions  of  sections 
505  and  506,  Ohio  General  Code,  showing 
all  rates,  fares,  and  charges  for  trans- 
portation of  passengers  and  property,  and 
any  service  in  connection  therewith,  such 
rates,  fares,  and  charges  named  in  the 
schedule  become  the  legal  rate  for  the  ser- 
vice rendered,  and  must  be  charged  by  it 
and  paid  by  the  shipper  or  passenger  with- 
out deviation  therefrom.  Erie  R.  Co.  v. 
Steinberg   (Ohio)   1917E-661. 

Notes. 

Implied  agreement  by  consignee  of  goods 
to  pay  freight  charges.     1917C-864. 

Validity  of  statute,  ordinance  or  rule  pro- 
viding for  reciprocal  demurrage.  1916E- 
701. 

Liability  as  between  consignor  and  con- 
signee for  payment  of  freight  undercharges 
on  interstate  shipment.     1916E-378. 

7.     CONNECTING  CARRIERS. 

24.  Injury  to  Goods.  Where  freight  has 
been  delivered  in  good  order  to  a  common 
carrier  for  transportation,  its  then  existing 
condition  is  presumed  to  continue  to  exist 
until  the  contrary  is  shown,  and  where  it 
has  been  transported  by  successive  con- 
necting carriers,  and  delivered  to  the  con- 


signee in  a  damaged  condition,  it  will  b« 
presumed  that  the  injury  has  been  received 
while  in  the  possession  of  the  last  carrier, 
and  the  burden  is  on  it  to  show  the  con- 
trary. Dunlap  v.  Great  Northern  R.  Co. 
(S.  Dak.)  1916D-805. 

25.  Where  plaintiff  shipped  certain  ap- 
ples to  M.,  and  without  delivery  directed 
that  the  shipment  be  continued  to  F.  over 
defendant's  line,  transportation  should  not 
be  regarded  as  involving  two  separate  and 
distinct  shipments,  but  a  continuous  ship- 
ment from  starting  point  to  final  destina- 
tion, within  the  rule  that  where  property 
is  delivered  to  an  initial  carrier  for  trans- 
portation in  good  condition,  and  is  deliv- 
ered in  bad  condition  by  the  terminal  car- 
rier, it  will  be  presumed  that  the  injury 
occurred  on  the  line  of  the  terminal  car- 
rier. Dunlap  v.  Great  Northern  R.  Co. 
(S.  Dak.)  1916D-805. 

26.  Duty  of  Carrier  as  to  Refrigeration. 
Where  apples  were  shipped  in  a  refrigera- 
tor car  over  lines  of  connecting  carriers, 
defendant  terminal  carrier  is  charged  with 
knowledge  that  the  contents  of  the  car  re- 
quired cooling  and  ventilation,  and,  by 
accepting  the  car  at  the  junction  point 
without  opening  or  examining  its  contents, 
defendant  assumes  the  risk  as  against  the 
consignee  of  its  having  been  kept  prop- 
erly cooled  and  ventilated  up  to  that  time, 
and,  by  undertaking  to  continue  the  trans- 
portation to  destination,  defendant  as- 
sumes the  obligation  of  keepiTJg  it  cooled 
and  ventilated  until  it  was  delivered. 
Dunlap  V.  Great  Northern  B.  Co.  (S.  Dak.) 
1916D-805. 

27.  Liability  of  Initial  Carrier.  Under 
the  Carmack  amendment  to  the  U.  S.  in- 
terstate commerce  act  (Act  Feb.  4,  1887,  c. 
104,120,  24  Stat.  386  [3  Fed.  St.  Ann. 
850]  as  amended  by  Act  June  29,  1906, 
c.  3591,  §  7,  34  Stat.  593  [Fed.  St.  Ann. 
1909  Supp.  p.  273],  the  initial  carrier,  as 
principal,  is  liable  not  only  for  its  own 
negligence,  but  that  of  any  agency  which 
it  may  use,  and  is  considered  to  have 
adopted  its  connecting  carrier  as  its  agent. 
Burkenroad  Goldsmith  Co.  v.  Illinois  Cen- 
tral R.  Co.   (La.)   1917C-935. 

(Annotated.) 

28.  Where  a  carload  of  feed  was  water- 
damaged  in  transit,  and  the  sealed  car  was 
delivered  at  the  point  of  destination  to  a 
branch  railroad  for  delivery  to  the  con- 
signee, and  was  by  him  rejected  on  ac- 
count of  said  damage,  and  the  loaded  car 
was  thereupon  returned  to  the  delivering 
carrier,  and  the  feed  suffered  further  de- 
preciation, before  it  was  sold  by  said  car- 
rier, held,  that  the  initial  carrier  is  liable 
for  the  damages  to  the  feed  not  only  from 
water,  but  from  the  failure  of  its  agent, 
the  delivering  carrier,  to  promptly  dispose 
of  the  feed  to  the  best  advantage.  Bur- 
kenroad Goldsmith  Co.  v.  Illinois  Central 
R.  Co.  (La.)  1917C-935.  (Annotated.) 


CARRIERS  OF  GOODS. 


151 


29.  Liability  of  Initial  Carrier.  If  in- 
trastate freight,  addressed  to  a  place  be- 
yond the  usual  route  of  a  common  carrier 
who  first  received  it,  is  lost  or  injured,  or 
if  the  shipper  is  damaged  by  the  unneces- 
sary and  unreasonable  delay  in  said  ship- 
ment, it  must,  within  a  reasonable  time 
after  demand,  give  satisfactory  proof  to 
the  consignor  that  the  loss,  injury,  or  dam- 
age did  not  occur  while  it  was  in  its 
charge,  or  because  of  unnecessary  and  un- 
reasonable delay  caused  by  it,  or  it  will 
be  liable  therefor.  The  demand  for  such 
proof  must  be  direct  and  specific,  and  a 
simple  request  or  demand  for  payment  of 
the  loss  or  damage  does  not  bring  the  ship- 
per within  the  requirements  of  the  statute, 
which  provides  for  a  demand  for  proof 
that  the  damage  or  injury  was  not  caused 
by  the  initial  carrier.  Missouri,  etc.  K. 
Co.  V.  Foote  (Okla.)  1&17D-173. 

30.  The  only  liability  assumed  by  an 
initial  common  carrier  of  intrastate  com- 
merce in  this  state,  unless  it  contracts  for 
a  greater  responsibility,  is  that  it  will  de- 
liver the  shipment  to  the  end  of  its  route, 
in  the  proper  direction  of  its  destination, 
to  some  other  competent  carrier,  carrying 
to  the  place  of  address,  or  connected  with 
those  who  thus  carry,  and  when  it  Ijias  done 
that  its  responsibility  ceases,  subject,  of 
course,  to  a  proper  response  to  the  demand 
of  the  shipper  for  proofs  that  the  loss, 
injury,  or  unnecessary  delay  did  not  occur 
on  its  line.  Missouri,  etc.  R.  Co.  v.  Foote 
(Okla.)  1917D-173. 

31.  Liability    of    Initial    Carrier.    The 

Carmack  Amendment  to  the  Hepburn  Act 
of  Cong.,  approved  June  29,  1906  (34  Stat. 
593  [Fed.  St.  Ann.  1909,  Supp.  p.  273]), 
c.  3591,  §  7,  pars.  11,  12,  declaring  that 
every  railroad  company  receiving  property 
for  transportation  from  one  state  to  an- 
other shall  issue  a  receipt  therefor,  and 
shall  be  liable  for  any  loss  caused  to  it 
by  any  carrier  to  which  the  property  may 
be  delivered  or  over  whose  lines  it  may 
pass,  makes  an  initial  carrier  liable  for 
delay  by  a  connecting  carrier,  though  the 
bill  of  lading  otherwise  provided.  South- 
ern Pacific  R.  Co.  v.  A.  J.  Lyon  &  Co. 
(Miss.)  1917D-171 

8.     ACTIONS  AGAINST  CARRIERS. 

a.     Actions  for  Loss,  Injury,  or  Delay. 

(1)     In  General. 

32.  Remedies  of  Shipper.  Where  goods 
have  been  delivered  to  a  common  carrier 
for  transportation  and  the  common  carrier 
converts  the  property  to  its  own  use,  the 
shipper  may  maintain  an  action  for  dam- 
ages for  breach  of  contract  of  carriage  or 
may  sue  for  conversio  \  Erie  R.  Co.  v. 
Steinberg  (Ohio)    1917E-661. 

33.  Where  neither  the  shipper  nor  the 
carrier  had  any  reason  to  believe  that  the 


shipment  of  beans  would  spoil  after  four 
or  five  days  in  a  closed  car,  and  the  beans 
spoiled  in  conseqeunce  of  negligent  failure 
to  transport  them  within  a  reasonable 
time,  the  carrier  cannot  relieve  itself  from 
liability  on  the  ground  that  it  had  no  no- 
tice that  the  beans  were  in  an  abnormal 
condition.  Lyons  v.  Grand  Trunk  R.  Co. 
(Mich.)  1917D-162.  (Annotated.) 

(2)     Evidence. 

34.  Authenticity  of  Eeply  Letter.  In  an 
action  for  damages  to  shipments  of  to- 
bacco, where  it  appeared  that  the  shipper 
wrote  a  letter  to  the  agent  of  the  terminal 
carrier  in  the  state  advising  him  of  the 
damage,  the  consignee's  or  agent's  refusal 
to  accept  it,  and  presenting  a  claim  for  a 
certain  amount,  and  that  he  later  received 
a  typewritten  letter  on  a  letterhead  of  the 
terminal  carrier,  oflSce  of  its  freight  claim 
adjuster,  and  signed  by  such  adjuster,  ad- 
dressed to  the  shipper  and  relating  to  its 
claim,  and  denying  responsibility  because 
the  damage  was  due  to  a  flood,  stating  its 
sale  for  shipper's  account  and  balance  to 
his  order,  such  letter  is  prima  facie  genuine 
and  admissible  in  evidence  without  proof 
of  the  handwriting  or  other  proof  of  its 
authenticity.  Louisvile,  etc.  R.  Co.  v, 
O'Brien  (Ky.)  1917D-922.        (Annotated.) 

35.  Agreed  Valuation  of  Goods.  A  bill 
of  lading  provided  that  the  amount  of  any 
loss  or  damage  for  which  the  carrier  was 
liable  should  be  computed  upon  the  basis 
of  the  value  of  the  property,  being  the 
bona  fide  invoice  price,  unless  a  lower 
value  had  been  represented  in  writing  by 
the  shipper,  or  agreed  upon,  or  is  deter- 
mined by  the  classification  or  tariff  upon 
which  the  rate  was  based.  A  carrier  lost 
goods  delivered  under  such  a  bill.  Neither 
the  bill  of  lading  nor  the  statement  of 
facts  on  which  the  cause  was  tried, showed 
the  valuation  of  the  property.  The  state- 
ment of  facts  failed  to  show  that  a  value 
lower  than  the  invoice  price  had  been  rep- 
resented by  the  shipper,  or  that  a  lower 
value  had  been  agreed  upon,  or  the  value 
as  determined  by  the  classification  or  tariff 
upon  which  the  rate  was  based.  It  is  held 
that,  as  none  of  these  matters  were  dis- 
closed by  the  pleadings  or  statement  of 
facts,  the  carrier  was  liable  for  the  actual 
value  of  the  goods  under  the  common-law 
rule.  Grice  v.  Oregon-Washington  R.,  etc. 
Co.  (Ore.)   1917E-645. 

36.  Proof  of  Value.  Where,  in  an  ac- 
tion against  a  carrier  for  injuries  to  apples 
in  transportation,  it  appeared  that  the 
apples  in  their  damaged  condition  had  no 
market  value,  and  plaintiff's  agent  was 
only  able  to  get  one  offer  of  $2.75  a  barrel 
from  one  who  intended  to  peddle  the  apples 
in  the  country,  to  whom  he  sold  them  at 
such  price,  the  fact  of  such  sale,  assuming 
that  it  was  fairly  made,  is  admissible  to 


152 


DIGEST. 

19160— 1918B. 


show  prima  facie  that  such  was  the  actual 
value  of  the  apples  in  their  injured  con- 
dition. Dunlap  V.  Great  Northern  E.  Co. 
(S.  Dak.)  1916D-805.  (Annotated.) 

37.  Presumption  from  Injury  to  Part  of 
Goods.  Where  apples  shipped  in  a  car 
were  in  first-class  condition  when  placed  in 
the  car,  and  all  of  which  were  subjected  to 
exactly  the  same  conditions  from  that  time 
until  the  car  was  opened  at  destination, 
when  a  few  of  the  barrels  were  opened,  the 
contents  examined,  and  all  uniformly  found 
to  have  been  seriously  damaged,  it  will 
be  presumed  that  all  of  the  apples  in  the 
car  were  similarly  damaged,  and  the  car- 
rier cannot  successfully  claim  that  there 
was  no  proof  of  damage  except  as  to  the 
barrels  examined.  Dunlap  v.  Great  North- 
em  B.  Co.  (S.  Dak.)  1916D-805. 

(3)     Instructions. 

38.  In  such  case,  where  the  evidence 
showed  that  the  longer  tobacco  was  per- 
mitted to  remain  wet  the  greater  the  dam- 
age, and  there  was  no  evidence  to  the  con- 
trary, the  court  did  not  err  in  assuming 
that  the  tobacco  was  further  damaged  by 
the  delay,  and  in  leaving  the  extent  of  the 
damage  to  the  jury.  Louisville,  etc.  B.  Co. 
v.  O'Brien  (Ky.)  1917D-922. 

39.  Where  tobacco  in  transit  was  dam- 
aged and  delayed  by  flood,  and  it  appeared 
that  even  after  the  shipment  was  started 
from  that  point  to  destination  the  tracks 
were  in  bad  condition,  though  it  did  not  ap- 
pear that  such  condition  was  the  cause  of 
the  delay,  that  there  was  a  through  train 
to  destination,  and  that  the  usual  shipping 
time  between  the  place  of  origin  and  de- 
livery was  about  five  days,  and  that  there 
was  a  delay  of  twenty  days  from  the  inter- 
mediate point,  the  court  did  not  err  in  as- 
suming that  the  delay  was  unreasonable. 
Louisville,  etc.  E.  Co.  v.  O'Brien  (Ky.) 
1917D-922. 

40.  Where,  in  an  action  for  damages  to 
a  shipment  of  beans,  due  to  negligent  delay 
in  transportation,  it  appears  that  defend- 
ant retained  the  money  for  which  the 
beans  were  sold,  and  the  contract  price  is 
the  only  evidence  of  the  market  price  at 
the  place  of  delivery,  it  is  proper  to  in- 
struct that  plaintiflf,  if  entitled  to  recover, 
should  recover  the  contract  price  at  the 
place  of  delivery  at  the  time  the  shipment 
should  have  been  delivered.  Lyons  v. 
Grand  Trunk  R.  Co.  (Mich.)  1917D-162.. 

(Annotated.) 

(4)     Damages. 

41.  In  an  action  for  damages  occasioned 
by  unnecessary  and  unreasonable  delay  in 
the  shipment  of  freight,  only  such  damages 
may  be  recovered  as  were  contemplated,  or 
might  reasonably  be  supposed  to  have  en- 
tered into  the  contemplation  of  the  parties 


to  the  contract  of  carriage,  and  if  the 
shipper  expects  to  charge  the  carrier  with 
any  special  damages,  he  must  communi- 
cate to  the  carrier,  at  or  prior  to  the  time 
of  shipment,  all  the  facts  and  circum- 
stances of  the  case  which  do  not  ordinarily 
attend  the  carriage  of  such  freight,  or  the 
peculiar  character  and  value  of  the  prop- 
erty carried;  otherwise,  such  peculiar  cir- 
cumstances cannot  be  contemplated  by  the 
carrier.  Missouri,  etc.  B.  Co.  v.  Foote 
(Okla.)   1917D-173.  (Annotated.) 

42.  Delay  in  Transportation — Damages. 
In  an  action  for  damages  to  shipments  of 
tobacco,  limited  by  the  trial  court  to  the 
damages  resulting  from  an  unreasonable  • 
delay  between  an  intermediate  point  and 
destination,  and  to  the  difference  between 
the  market  value  of  the  damaged  shipment 
when  delivered  and  its  market  value  when 

it  should  have  been  delivered,  the  evidence 
is  held  to  sustain  a  verdict  for  plaintiff 
for  $1,000.  Louisville,  etc.  B.  Co,  ▼. 
O'Brien  (Ky.)  1917D-922. 

43.  Delay  In  Transportation.  Where 
goods  were  sold  at  a  stipulated  price  if 
they  arrived  on  schedule  time,  but  the 
carrier  was  not  informed  of  that  arrange- 
ment, the  measure  of  damages  is  the  dif- 
ference between  the  market  price  of  the 
goods  at  the  time  when  they  should  have 
arrived  and  when  they  did.  Southern  Pa- 
cific B.  Co.  V.  A.  J.  Lyon  &  Co.  (Miss.) 
1917D-171.  (Annotated.) 

44.  Delay  In  Transportation.  The  meas- 
ure of  damages  for  delay  in  transporting 
goods  to  market  is  the  difference  between 
the  market  value  at  the  time  and  place 
at  which  delivery  should  have  been  made 
and  the  same  value  when  delivery  was 
actually  made,  whether  the  difference  was 
the  result  of  a  decline  in  the  market  or 
of  an  injury  suffered  by  the  goods  in  con- 
sequence of  the  delayed  delivery.  Lyons 
v.  Grand  Trunk  B.  Co.  (Mich.)  1917D- 
162.  (Annotated.) 

45.  Delay  In  Transportation — Damages. 
Under  section  2869,  Okla.  Bev.  Stat.  1910 
Ann.  the  detriment  caused  by  a  carrier's 
delay  in  the  delivery  of  freight  is  deemed 
to  be  the  depreciation  in  the  intrinsic  value 
of  the  freight  during  the  delay,  and  also 
the  depreciation,  if  any,  in  the  market 
value  thereof,  otherwise  than  by  reason  of 
a  depreciation  in  its  intrinsic  value,  at  the 
place  where  it  ought  to  have  been  deliv- 
ered, and  between  the  day  at  which  it 
ought  to  have  been  delivered  and  the  day 
of  its  actual  delivery.  Missouri,  etc.  B. 
Co.  T.  Foote  (Okla.)  1917D-173. 

(Annotated.) 

Note. 

Measure  of  damages  for  carrier's  delay 
in  transporting  goods  resulting  in  deprecia- 
tion in  value.     1917D-164. 


CARRIERS  OF  LIVE  STOCK— CARRIERS  OF  PASSENGERS.     153 


CARRIERS  or  UVE  STOCK. 

1.  Loss  or  Injury  to  Live  Stock- 

2.  Limitation  of  Liability, 

3.  Actions. 

1.     LOSS  OR  INJURY  TO  LIYE  STOCK. 

1.  Improper  Loading  by  Shipper.  Where 
a  carrier  furnishes  a  car  to  a  shipper  for 
the  purpose  of  shipping  live  stock,  and  the 
shipper  loads  the  live  gtock  himself  and 
in  doing  so  overcrowds  the  animals  or 
places  in  one  compartment  animals  of  dif- 
ferent kinds,  the  risk  of  loss  or  injury  is 
upon  the  shipper,  though  the  manner  of 
loading  is  discoverable  if  it  is  not  actually 
discovered,  by  the  carrier.  Illinois  Central 
R.  Co.  v.  Rogers  (Ky.)  1916E-1201. 

(Annotated.) 

2.  Injury  Due  to  Propensity  of  Animals. 
A  carrier  of  live  stock  may  stipulate  for 
exemption  from  liability  for  injuries  due 
to  the  natural  propensities  of  the  animals. 
Adams  Express  Co.  v.  Allendale  Farm 
(Va.)   1916D-894.  (Annotated.) 

Note. 
Liability  of  carrier  of  live  stock  for  in- 
jury  to   stock  where   shipper  loads  stock 
improperly.     1916E-1203. 

2.     LIMITATION  OF  LIABILI-^Y. 

3.  A  express  company  may  stipulate,  in 
a  contract  for  the  carriage  of  live  stock, 
for .  exemption  from  liability  for  delay, 
injuries  to,  or  loss  of,  the  animals,  unless 
caused  by  the  negligence  of  its  agents  or 
employees.  Adams  Express  Co.  v.  Allen- 
dale Farm  (Va.)  1916D-894. 

3.     ACTIONS. 

4.  Evidence  of  Negligence  Insufficient. 

Evidence,  in  an  action  for  injuries  to  live 
stock  en  route,  held  not  to  show,  as 
against  a  demurrer  thereto,  any  injury  in 
transit  to  which  the  alleged  paralysis  of 
the  animal  could  be  reasonably  attributed. 
Adams  Express  Co.  v.  Allendale  Farm 
(Va.)   1916D-894. 

5.  Burden  of  Showing  Negligence.  The 
mere  fact  that  a  cow  shipped  by  express 
was  found  to  be  sick  after  being  unloaded 
at  an  intermediate  point  in  apparently 
good  condition,  was  not  such  proof  in  in- 
jury to  the  cow  as  to  shift  the  burden 
upon  the  express  company  of  proving  its 
freedom  from  fault  under  Va.  Code  1904, 
§  12941,  making  the  fact  of  damage  or  loss 
prima  facie  evidence  of  negligence  by  the 
carrier,  even  if  the  statute  is  applicable 
to  an  interstate  shipment.  Adams  Ex- 
press Co.  V.  Allendale  Farm  (Va.)  1916D- 
894. 

6.  One  suing  for  damages  to  cattle 
shipped  must  show  some  injury  to  the  ani- 
mal which  did  not  result  from  its  inherent 
nature  or  defects^  in  order  to  require  the 


carrier  to  show  that  the  injury  was  not 
through  its  fault.  Adams  Express  Co.  v. 
Allendale  Farm  (Va.)  1916D-894. 

CARRIERS  OF  PASSENGERS. 

1.  Duty  to  Receive  for  Carriage,  154. 

2.  Construction    and    Validity    of    Statu- 

tory Regulation,  154. 

3.  Tickets  and  Fares,  154. 

a.  Rate  of  Fare,  154. 

4.  Who  are  Passengers,   155. 

a.  Persons  Intending  to  Ride,  155. 

b.  Person  Attending  Live  Stock,  155. 

c.  Person  Alighting,  155. 

5.  Duty  in  Carriage  of  Passengers,  155. 

a.  Duties  and  Liabilities  in  General, 

155. 

b.  To  Provide  Safe  Cars  and  Prem- 

ises Generally,  155. 

e.  To  Protect  Passengers,  156. 

(1)  From  Carrier's  Servants,  158. 

(2)  From  Arrest,  156. 

d.  To  Sick  Passenger,  156. 
©.  To  Announce  Station,  157. 

f.  To    Stop    at    Passenger's    Destina- 

tion,  157. 

g.  To  Passenger  Boarding  or  Alight- 

ing, 157. 

(1)  In  General,  157. 

(2)  Assisting  Passenger,  157. 

h.  Passenger's    Assumption    of    Risk, 

158. 
1.  Duty  Respecting  Appliances,  158. 
j.  Duty   to  Provide   Safe   Place   for 

Baggage  Delivery,  158. 

6.  Right  to  Make  Rules,  159. 

7.  Ejection  for  Invalidity  of  Ticket,  159. 

8.  Contributory  Negligence,  159. 

a.  In  General,  159. 

b.  Riding  on  Steps  or  Platform,  159. 

9.  Actions  for  Injuries,  159. 

a.  Pleading,   159. 

b.  Presumption  of  Negligence,  160. 

c.  Burden  of  Proof,  160. 

d.  Admissibility  of  Evidence,  160. 

e.  Sufficiency  of  Evidence,  160. 

f.  Quseions  for  Jury,  161. 

g.  Instructions,  161. 
10.  Jitneys  and  Taxis,  162. 

See  Carriers;  Carriers  of  Goods;  Carriers 
of  Live  Stock;  Ferries;  Public  Ser- 
vice Commissions. 

Evidence,  res  gestae,  see  Admission  and 
Declarations,  19. 

Deportation  of  undesirables,  see  Aliens, 
17. 

Liability  for  unnecessary  burial  at  sea, 
see  Dead  Body,  3. 

Elevator  as  carrier,  see  Elevators,  2. 

Prevention  of  jitneys  from  infringing 
street  railway  franchise,  see  Injunc- 
tions, 3. 

Regulations  of  carriers  as  governing  street 
railways,  see  Street  Railways,  4. 

"Ocean  Wave"  amusement  device  as  car- 
rier, see  Theaters  and  Amusements,  8. 


154 


DIGEST. 

19160— 1918B. 


Scenic    railway    as    carrier,    see    Theaters 
and  Anmsemeuts,  7. 

1.     DUTY     TO     RECEIVE     FOR     CAR- 
RIAGE. 

1.  Befusal   to    Carry   Disabled   Person. 

Any  person  is  entitled  to  be  received  as 
a  passenger  on  payment  of  fare,  notwith- 
standing a  seeming  incapacity  on  his  part 
to  take  care  of  himself,  if,  in  fact,  he  is 
competent  to  travel  alone  without  requir- 
ing other  care  than  that  which  the  law 
requires  a  carrier  to  bestow  on  all  persons 
alike.  The  disability  which  will  disentitle 
a  person  to  transportation  may  be  mental 
or  physical,  and  in  respect  to  physical 
disability  the  carrier  is  under  no  obliga- 
tion to  receive  as  a  passenger  one  who, 
without  an  attendant,  is  unable  because  of 
extreme  age  or  tender  years  to  care  for 
himself,  and  the  same  test  applies  as  to 
other  physical  disabilities.  Hogan  v. 
Nashville  Interurban  R.  Co.  (Tenn.) 
1916C-1162.  (Annotated.) 

2.  A  man  about  26  years  of  age,  who 
has  always  had  to  walk  with  two  crutches, 
but  who  for  10  years  has  continuously 
traveled  alone  and  unattended  in  trains, 
street  cars,  etc.,  and  who  only  requires 
ordinary  care,  cannot  be  excluded  from  a 
passenger  train  on  the  ground  of  his 
physical  disabilities.  Hogan  v.  Nashville 
Interurban  R.   Co.    (Tenn.)    1916C-1162. 

(Annotated.) 

3.  Statute  Requiring  Free  Transporta- 
tion of  Police  Officers.  The  N.  J.  Act  of 
May  26,  1912  (Pamph.  L.  p.  235),  in  so 
far  as  it  requires  street  railway  companies 
to  grant  free  transportation  to  police 
officers  when  in  uniform  or  on  duty,  is  a 
constitutional  exercise  by  the  legislature 
of  its  police  power.  State  r.  Sutton 
(N.  J.)   1917C-91.  (Annotated.) 

2.     CONSTRUCTION     AND     VALIDITY 
OF    STATUTORY    REGULATION. 

4.  Acts  1875,  c.  139  (Shannon's  Tenn. 
Code,  §  3046),  abrogating  the  common-law 
rule  as  to  rights  of  action  for  exclusion 
from  public  conveyances,  and  declaring 
that  no  carrier  of  passengers  need  carry 
or  admit  any  person  whom  it  chose  not  to, 
was  abrogated  by  Acts  1897,  c.  10,  §  14, 
declaring  all  corporations,  etc.,  operating 
railroads  to  be  "common  carriers,"  which 
term  depends  upon  whether  the  carrier 
may  determine  who  he  will  carry  or 
whether  he  is  bound  to  carry  all  alike,  and 
which,  under  Acts  1907,  c.  433,  declaring 
that  any  incorporated  interurban  railroad 
company  shall  have  the  same  powers  and 
privileges  as  railroad  companies,  subject 
to  the  same  duties  and  obligations,  in- 
cludes an  interurban  street  railway  com- 
panv.  Hogan  v.  Nashville  Interurban  R. 
Co.^Tenn.)    1916C-1162.  (Annotated.) 


5.  Power  to  Regulate  Rates— Validity 
of  Grant.  Public  utilities  act,  providing 
for  the  regulation  of  the  rates  of  street 
railway  companies,  does  not  violate  111. 
Const.,  art.  11,  §  4,  declaring  that  no  law 

•  shall  be  passed  by  the  general  assembly 
granting  a  right  to  construct  and  operate 
a  street  railroad  within  a  city  without 
requiring  the  consent  of  the  local  authori- 
ties, for  the  prohibition  does  not  deprive 
the  general  assembly  of  the  right  to  regu- 
late the  rates.  State  Public  Utilities  Com. 
V.  Chicago,  etc.  R.  Co.  (111.)  1917C-50. 

(Annotated.) 

6.  Bnrden  of  Showing  Reasonableness. 
Where  rates  of  a  public  utility  as  a  street 
railroad  are  attacked  as  unjust,  it  has 
the  burden  of  showing  that  the  rates  are 
reasonable  and  not  excessive.  State  Pub- 
lic Utilities  Com.  v.  Chicago,  etc.  B.  Co. 
(HI.)    1917C-50. 

7.  The  public  utilities  act,  providing  for 
the  regulation  of  the  rates  of  street  car 
companies,  is  not  affected  by  111.  Const., 
art.  4,  §  34,  authorizing  the  passage  of 
any  law,  local,  special,  or  general,  provid- 
ing a  scheme  or  charter  for  the  territory 
embraced  within  the  limits  of  the  city 
of  Chicago;  the  section  expressly  except- 
ing article  11,  §  4,  giving  the  legislature 
rate-making  powers,  from  its  operation. 
State  PubUe  Utilities  Com.  v.  Chicago, 
etc.  E.  Co.  (m.)   1917C-50. 

(Annotated.) 

3.     TICKETS  AND  FARES, 
a.    Rate  of  Fare. 

8.  Reduced  Fare  for  Militia.  The  one- 
cent  militia  fare  law  (Mo.  Rev.  St.  1909, 
9  8396)  providing  that  railroads  shall 
carry  between  points  in  the  state  the 
National  Guard  when  ordered  in  military 
duty  by  the  Governor  at  one  cent  a  mile 
for  each  officer  and  enlisted  man,  with  not 
to  exceed  100  pounds  of  baggage  or  camp 
equipage,  constitutes  unjust  discrimina- 
tion under  Mo.  Const.,  art.  12,  §  14,  provid- 
ing that  the  general  assembly  shall  pass 
laws  to  prevent  unjust  discrimination  in 
passenger  rates,  in  view  of  Rev.  St.  1909, 
§  3232,  fixing  the  maximum  fare  for  adult 
passengers  at  two  cents  a  mile  and  for 
children  under  12  at  one  cent  a  mile,  as 
such  rate  is  prima  facie  a  reasonable  rate, 
and  there  is  nothing  to  show  that  the  cost 
of  transporting  the  National  Guard  would 
be  cheaper  than  carrying  any  other  pas- 
senger. State  V.  Missouri,  etc.  R.  Co. 
(Mo.)  1916E-949.  (Annotated.) 

9.  Reduced  Fare  for  Militia.  The  one- 
cent  militia  fare  law  (Mo.  Rev.  St.  1909, 
§  8396)  is  not  in  violation  of  Mo.  Const., 
art.  12,  §  23,  forbidding  discrimination  be- 
tween or  in  favor  of  transportation  com- 
panies and  individuals,  as  it  is  a  case  of 
discrimination  in  favor  of  the  state  or  the 


CARRIERS  OF  PASSENGERS. 


155 


United  States  if  it  should  be  found  that 
the  latter  recoups  the  state  for  the  outlay. 
State  V.  Missouri,  etc.  B.  Co.  (Mo.)  1916C- 
949.  (Annotated.) 

10.  The  one-cent  militia  fare  law  (Mo. 
Rev.  St.  1909,  §  8396)  violates  Mo.  Const., 
art.  12,  §  14,  providing  that  the  general 
assembly  shall  pass  laws  to  prevent  un- 
just discrimination  in  passenger  tariffs, 
etc.,  conceding  that  a  one-cent  fare  is  un- 
just discrimination,  as  the  legislature  may 
not  fail  to  carry  out  the  command  of  the 
Constitution  and  do  the  diametrically  con- 
trary thing.  State  v.  Missouri,  etc.  R.  Co. 
(Mo.)    1916E-949.  (Annotated.) 

4.     WHO  ARE  PASSENGERS, 
a.     Persons  Intending  to  Ride. 

11.  When  Intending  Passenger  Becomes 
Such.  One  who  attempts  to  board  a  mov- 
ing train  is  not  a  "passenger,"  though  he 
may  have  purchased  a  ticket  entitling  him 
to  passage  thereon.  Kentucky  Highlands 
R.  Co.  V.  Creal  (Ky.)  1917C-1205. 

(Annotated.) 

12.  Person  Attempting  to  Board  Moving 
Car.  Where  plaintiff  left  a  street  car, 
when  it  stopped  at  a  point  where  passen- 
gers were  received  and  discharged,  and 
after  it  was  in  motion  attempted  to  board 
the  car  again,  he  was  not  then  a  passen- 
ger, and  the  conductor  was  under  no  duty 
to  render  him  assistance,  though  bound,  if 
he  saw  him  in  danger,  to  use  ordinary 
care  to  prevent  injury.  Jonas  v.  South 
Covington,  etc.  St.  R.  Co.  (Ky.)  1916E'- 
965. 

Note. 
When  intending  passenger  actually  be- 
comes such.     1917C-1206. 

b.     Person   Attending  Live   Stock. 

13.  A  person  in  charge  of  live  stock, 
riding  under  a  contract  which  evidences 
his  right  of  transportation  on  the  train 
transporting  the  stock  shipment,  and  con- 
templates his  carriage  to  care  for  the 
gtock,  is  a  "passenger  for  hire."  Mc- 
Gregor V.  Great  Northern  R.  Co.  (N.  Dak.) 
1917E-141.  (Annotated.) 

c.     Person  Alighting. 

14.  A  passenger  alighting  from  a  street 
car  is  still  a  "passenger"  until  he  has  had 
a  reasonable  opportunity  to  reach  a  place 
of  safety.  Louisville  R.  Co.  t.  Kennedy 
(Ky.)    1916E-996. 

5.     DUTY  IN  CARRIAGE  OF  PASSEN- 
GERS. 

a.     Duties  and  Liabilities  in  General. 

15.  Duty  to  Anticipate  Unusual  Peril. 
A  carrier  of  passengers  need  not  antici- 


pate unusual  and  unexpected  perils  to  its 
passengers.  Louisville,  etc.  R.  Co.  v. 
O'Brien   (Ky.)   1916E-1084. 

16.  Violation  of  Rule  not  Enforced.  By 
failing  to  enforce  a  rule,  a  railroad  com- 
pany may  allow  it  to  become  a  dead  let- 
ter, and  in  effect  waive,  abandon  or  abro- 
bate  it.  Florida  East  Coast  R.  Co.  v.  Car- 
ter (Fla.)  1916E-1299.  (Annotated.) 

17.  Degree  of  Care  Required.  To  pro- 
vide for  the  safety  of  passengers,  a  car- 
rier must  exercise  the  highest  degree  of 
care  reasonably  to  be  expected  from 
human  vigilance  and  foresight,  in  view  of 
the  character  of  the  conveyance  adopted, 
and  consistent  with  the  practical  opera- 
tion of  the  business.  Dibbert  v.  Metro- 
politan Investment  Co.  (Wis.)  1916E- 
924. 

Note. 
Operating  car  or  train  with  insufficient 
number    of    employees    as    negligence    on 
part  of  carrier  of  passengers.     1917C-73. 

b.     To  Provide   Safe    Cars   and   Premises 
Generally. 

18.  A  person  so  traveling  will  be 
deemed  to  have  assumed  all  risks  reason- 
ably incident  to  the  mode  of  transporta- 
tion utilized,  but  not  those  risks  and  dan- 
gers produced  by  unnecessary  and  unusual 
occurrences  not  incident  to  the  proper 
handling  of  a  train  of  that  kind.  Mc- 
Gregor V.  Great  Northern  R.  Co.  (N.  Dak.) 
1917E-141.  (Annotated.) 

19.  A  railway  company  is  not  relieved 
from  its  obligation  to  exercise  great  care 
for  the  safety  of  such  passenger.  Mc- 
Gregor V.  Great  Northern  R.  Co.  (N.  Dak.) 
1917E-141.  (Annotated.) 

2.  A  carrier,  though  required  to  in- 
spect its  trains  for  the  safety  of  its  pas- 
sengers, need  not  keep  up  a  continuous 
inspection  and  is  not  chargeable  with 
knowledge  at  each  moment  of  the  con- 
dition of  every  part  of  its  train.  Louis- 
ville, etc.  R.  Co.  V.  O'Brien  (Ky.)  1916E- 
1084. 

21.  From  the  mere  fact  that  the  regula- 
tions of  the  United  States  required  de- 
fendant, as  the  operator  of  a  steamship 
carrying  passengers  to  place  lifeboats  so 
that  they  could  be  launched  safely  in  less 
than  two  minutes,  it  cannot  be  ruled,  as 
a  matter  of  law,  that  an  easily  removable 
chain  bridging  the  unguarded  space  in  the 
rail,  through  which  a  lifeboat  passed  when 
launched,  is  the  only  practicable  protec- 
tion, since  that  is  a  question  of  fact;  it 
being  possible  that  the  jury  may  find  that 
passengers  should  have  been  excluded 
from  the  neighborhood.  Hanley  v.  East- 
ern Steamship  Corporation  (Mass.) 
1917D-1034.  (Annotated.) 


156 


DIGEST. 

19160— 1918B. 


22.  Where  the  steamship  on  which  de- 
ceased traveled  carried  several  hundred 
passengers,  in  view  of  the  high  responsi- 
bility resting. on  the  defendant  steamship 
company  as  a  common  carrier,  negligence 
may  be  found  in  its  failure  to  inspect  the 
vessel,  by  which  a  gap  in  the  rail,  to  al- 
low the  launching  of  a  lifeboat,  was  left 
unguarded  by  the  usual  chain  for  several 
hours.  Hanley  v.  Eastern  Steamship  Cor- 
poration  (Mass.)    1917D-1034. 

(Annotated.) 

23.  Liability  to  Person  in  Charge  of 
Live  Stock.  It  is  held  that,  under  the 
terms  of  the  contract  and  the  circum- 
stances of  the  case,  a  caretaker  of  a  ship- 
mient  of  horses  who  at  the  time  of  the 
accident  was  riding  in  the  stock  car,  in- 
stead of  in  the  caboose,  was  not  guilty 
of  contributory  negligence  as  a  matter  of 
law.  McGregor  v.  Great  Northern  R.  Co. 
(N.  Dak.)   1917E-141.  (Annotated.) 

24.  Injury  to  Passenger  —  Negligence — 
Duty  as  to  Passenger  on  Step.  Where  a 
street-car  passenger  rode  on  the  step 
thereof  and  was  injured  by  the  street 
railroad's  bringing  the  car  into  collision 
with  another  standing  still,  in  broad  day- 
light, without  obstruction  to  view,  the 
railroad  is  guilty  of  negligence,  since,  if  a 
passenger,  on  account  of  the  crowded  con- 
dition of  a  street  car,  takes  up  his  posi- 
tion on  a  side  step  or  platform,  he  volun- 
tarily assumes  the  natural,  obvious  risks 
attending  his  position,  but  the  company, 
in  accepting  his  fare  with  knowledge  of 
the  increased  danger  of  his  position,  is 
under  greater  obligation  to  use  greater 
precaution  in  the  operation  of  the  car  for 
his  protection.  Kelly  v.  Santa  Barbara 
Consol.  R.  Co.  (Cal.)  1917C-67. 

Notes. 

Liability  of  carrier  by  water  for  injury 
to  or  death  of  passenger  falling  over- 
board.    1917D-1038. 

Liability  of  carrier  to  person  riding  on 
drover's  pass  or  in  charge  of  stock. 
1917E-149. 

Act  of  carrier  in  permitting  cars  to  be 
overcrowded  as  constituting  nuisance. 
1918A-994. 

c.    To  Protect  Passengers. 
(1)     From   Carrier's    Servants. 

25.  Insulting  Language  to  Passenger. 
Objectionable  remarks,  addressed  by  a 
street-car  conductor  to  a  patron  of  the 
road,  referring  to  her  personal  appear- 
ance, while  on  the  car^  which  mortify  and 
humiliate  her,  are  actiona'ble,  and  the  car 
company  will  be  held  in  damages  there- 
for Haile  v.  New  Orleans  B.,  etc.  Co. 
(La.)    1916C-1233.  (Annotated.) 


26.  The  only  negligence  for  which  a 
passenger  steamship  company  is  responsi- 
ble, in  an  action  for  conscious  suffering  of 
a  passenger,  drowned  when  flung  over- 
board by  the  lurching  of  the  ship,  is  that 
of  the  company's  servants  or  agents. 
Hanley  v.  Eastern  Steamship  Corporation 
(Mass.)   191 70-1034.  (Annotated.) 

27.  The  act  of  the  motorman  in  invit- 
ing a  boy  nine  years  old  to  ride  on  the 
car  is  within  the  scope  of  his  employment, 
and  the  street  railway  company  is  liable 
for  his  negligent  operation  of  the  car 
causing  injury  to  the  child.  Solomon  v. 
Public  Service  R.  Co.  (N.  J.)  1917C-356. 

(Annotated.) 

(2)     From    Arrest. 

28.  Liability — ^Arrest  of  Passenger  by 
Conductor.  Under  Ore.  Laws  1911,  c.  13S, 
providing  that  to  be  intoxicated  or  to 
drink  intoxicating  liquor  in  an  ordinary 
passenger  car  is  a  punishable  crime,  and 
L.  O.  L.,  §  6959,  declaring  that  the  con- 
ductor of  a  railroad  train,  while  actually 
engaged  as  such,  shall  have  the  power  of 
a  sheriff,  in  each  county  through  which 
the  train  passes,  to  protect  the  public 
peace  and  arrest  violators  thereof  on  oi 
near  the  train,  where  defendant  railroad's 
conductor  arrested  a  sober  passenger  on 
the  pretext  that  he  was  drunk,  the  rail- 
road cannot  escape  liability  for  the  tort 
on  the  ground  that  the  conductor  was  act- 
ing as  sheriff  and  had  laid  aside  his  char- 
acter as  defendant's  servant.  Spain  ▼. 
Oregon-Washington  R.,  etc.  Co.  (Ore.) 
1917E-1104. 

d.     To  Sick  Passenger. 

29.  Duty  to  Passenger  Taken  Sick  in 
Transit.  Where  a  passenger  becomes  sick 
and  unable  to  care  for  himself,  and  the 
carrier's  servants  know,  or  have  notice  of 
facts  requiring  them,  in  the  exercise  of 
reasonable  prudence,  to  know,  that  he  is 
sick  and  needs  attention,  it  is  their  duty 
to  give  him  such  reasonable  attention  as 
the  circumstances  and  their  obligations  to 
other  passengers  permit;  and  if  they 
know,  or  should  know,  he  is  too  ill  to  re- 
main on  the  car,  it  is  their  duty,  if  prac- 
ticable, to  remove  him  and  put  him  in  the 
custody  of  an  officer  or  some  one  who  can 
look  after  him.  Middleton  v.  Whitridge 
(N.  Y.)    1916C-856.  (Annotated.) 

Where  the  evidence  is  only  that  de- 
ceased's life  could  have  been  saved  if  he 
had  received  proper  care  within  an  hour 
or  two  after  his  first  attack  of  apoplexy, 
while  on  defendant's  car,  defendant  is 
entitled  to  an  instruction  that  any  omis- 
sion of  duty  of  its  servants  to  him  after 
that    time     cannot    be    made     the    basis 


CARRIERS  OF  PASSENGERS. 


157 


of  a  finding  of  actionable  negligence. 
Middleton  v.  Whitridge  (N.  Y.)  1916C- 
856.  (Annotated.) 

31.  Duty  to  Insane  Passenger.  A  rail- 
road company  must  bestow  upon  a  pas- 
senger any  special  care  and  attention  be- 
yond that  given  to  the  ordinary  passenger 
which  reasonable  prudence  and  foresight 
demands  for  his  safety,  considering  any 
manner  of  conduct  or  disposition  of  mind 
manifested  by  the  passenger  and  known 
to  the  company,  or  that  might  have  been 
reasonably  anticipated  from  one  in  his 
mental  and  physical  condition,  tending  to 
increase  the  danger  to  be  apprehended 
and  avoided,  and  if  the  employees  of  a 
railroad  company,  after  discovering  the 
condition  of  a  passenger  who  became  in- 
sane while  on  the  train,  failed  to  use  such 
care  when  they  could  have  reasonably 
done  so,  and  thereby  prevented  her  from 
jumping  from  the  car  window,  the  com- 
pany is  liable  in  damages  for  her  death, 
caused  by  injuries  thereby  sustained. 
Weirling  v.  St.  Louis,  etc.  R.  Co.  (Ark.) 
1916E-253.  (Annotated.) 

Notes. 

Duty  and  liability  of  carrier  to  pas- 
senger taken  sick  during  transit.  1916C- 
862.  \ 

Duty  and  liability  of  carrier  with  re- 
spect to  insane  passenger.     1916E-256. 

e.     To  Announce  Station. 

32.  Cars.  An  adult  passenger,  appar- 
ently of  ordinary  intelligence,  and  in  full 
possession  of  her  senses,  is  bound  to  take 
notice  of  her  route  and  make  the  neces- 
sary change  of  cars,  and  the  carrier  is  not 
required  to  give  her  special  notice  of  the 
necessity  therefor,  so  that,  if  it  announces 
the  arrival  at  a  junction  where  it  is  neces- 
sary to  change  for  points  on  the  line  of 
the  connecting  carrier,  it  is  not  liable  for 
carrying  the  passenger  beyond  the  junc- 
tion. St.  Louis,  etc.  R.  Co.  v.  Needbam 
(Ark.)    1917D-486.  (Annotated.) 

Kote. 

Duty  of  carrier  to  give  passenger  no- 
tice of  and  time  to  make  change  of  cars. 
1917D-488. 

f.     To  Stop  at  Passenger's  Destination. 

33.  Duty  to  Stop  at  Passenger's  Destina- 
tion— Contract.  Where  plaintiff  boarded 
a  through  train  which  did  not  stop  at  his 
destination,  under  an  alleged  special  con- 
tract made  with  defendant's  ticket  agent 
that  the  train  would  stop  there  to  set 
plaintiff  down,  plaintiff  is  not  entitled  to 
have  the  carrier's  breach  of  such  alleged 
contract  submitted  to  the  jury  as  a  basis 
for  a  recovery,  in  the  absence  of  any  evi- 
dence that  the  agent's  statenxent  was  re- 


lied on  and  that  plaintiff  suffered  damage 
as  the  proximate  result  thereof.  Brad- 
ley v.  Atlantic  Coast  Line  R.  Co.  (S.  Car.) 
1916E-1219.  (Annotated.) 

Note. 
Duty  of  railroad  to  put  passenger  off  at 
destination  not  stopping  station.     1916E- 
1220. 

g.     To  Passenger  Boarding  or  Alighting. 
(1)     In   General. 

34.  Liability  for  Injury  —  Banana  Peel 
on  Car  Step.  A  carrier  is  not  liable  for 
injuries  to  a  passenger  slipping  on  a 
banana  peel  on  a  car  step  while  alighting, 
unless  the  trainmen  knew  of  its  presence 
on  the  step,  or  it  had  been  there  such  a 
length  of  time  before  the  accident  as 
would  impute  notice  to  them.  Louisville, 
etc.  R.  Co.  V.  O'Brien  (Ky.)  1916E-1084. 

(Annotated.) 

35.  Degree  of  Care.  Carriers  are  held 
to  the  highest  degree  of  care  for  the 
safety  of  passengers,  and  passengers 
should  use  ordinary  care  to  protect  them- 
selves in  getting  on  or  off  trains,  when 
safe  and  suitable  means  of  boarding  or 
alighting  from  trains  are  provided.  They 
must  take  the  responsibility  of  the  ordi- 
nary incidents  of  travel,  including  the 
stoppage  of  cars  required  by  statute  at 
railway  junctions,  and  must  govern  them- 
selves accordingly.  Florida  East  Coast  E. 
Co.  V.  Carter  (Fla.)   1916E-1299. 

36.  As  to  one  attempting  to  board  a 
moving  train  a  carrier  owes  no  duty  ex- 
cept that  which  it  owes  to  a  trespasser, 
and  upon  discovery  of  his  peril  must  exer- 
cise ordinary  care  to  avoid  injury  to  him; 
and  hence,  where  there  is  no  failure  on 
the  part  of  the  engineer  to  do  all  that  can 
be  done  to  prevent  injury  after  discovery 
of  plaintiff's  peril,  there  is  no  actionable 
negligence.  Kentucky  Highlands  R.  Co. 
V.  Creal  (Ky.)  19i7C-1205. 

(Annotated.) 
Note. 
Liability   of  carrier  for  injury   to   pas- 
senger caused  by  slipping  on  banana  peel 
or  the  like.  1916E-1087. 

(2)     Assisting  Passenger. 

37.  Negligence  of  Conductor  —  Seizing 
Person  Attempting  to  Board  Car.  Where 
the  conductor  of  a  street  car,  in  attempt- 
ing to  assist  plaintiff  to  board  it  while  it 
was  in  motion,  seized  plaintiff  by  the  arm 
and  dragged  him  along,  the  conductor  was 
guilty  of  negligence,  and  the  company  was 
liable  for  injuries  received  by  plaintiff 
from  a  fall  resulting  when  the  conductor 
loosed  his  hold.  Jonas  v.  South  Coving- 
ton, etc.  St.  E.  Co.  (Ky.)  1916E-965. 

38.  Alighting  at  Place  not  Regular  Sta- 
tion.   Where  passengers  habitually  get  off 


158 


DIGEST. 

1916C— 1918B. 


the  trains  at  a  point  where  they  are  not 
invited  to  get  off,  and  no  effectual  means 
are  attempted  to  be  used  to  prevent  them 
from  doing  so,  there  is  a  duty  on  the  com- 
pany to  see  that  they  have  a  safe  oppor- 
tunity to  alight.  Florida  East  Coast  E. 
Co.  V.  Carter  (Fla.)  1916E-1299. 

h.     Passenger's   Assumption   of   Bisk. 

39.  From  the  mere  fact  that  a  space  on 
the  deck  of  defendant's  vessel  between  a 
raft  and  a  lifeboat  was  unguarded  by  any 
rail,  it  cannot  be  said  as  matter  of  law 
that  a  passenger,  flung  through  such  open- 
ing when  the  ship  lurched,  had  assumed 
the  risk.  Hanley  v.  Eastern  Steamship 
Corporation  (Mass.)  1917D-1034. 

(Annotated.) 

40.  Boarding  Moving  Car.  Where  a 
person  was  injured  while  attempting  to 
board  a  moving  trolley  car,  and  the  fact 
that  the  car  was  in  motion  was  the  sole 
producing  cause  of  the  accident,  the  risk 
of  its  occurrence  was  one  which  the  per- 
son assumed.  Solomon  v.  Public  Service 
R.  Co.  (N.  J.)  1917C-356. 

i.    Duty  Respecting  Appliances. 

41.  A  carrier  must  use  every  precau- 
tion for  the  safety  of  its  passengers  that 
human  skill  and  foresight  could  suggest; 
and,  if  there  are  known  and  satisfactory 
tests  by  which  latent  defects  may  be  dis- 
cerned in  those  appliances  on  the  sound- 
ness and  strength  of  which  safety  of  pas- 
sengers depends,  they  must  be  used. 
Dibbert  v.  Metropolitan  Investment  Co. 
(Wis.)  1916E-924. 

Note. 

Liability  of  carrier  of  passengers  with 
respect  to  appliances  purchased  from 
manufacturer.     1916E-929. 

j.    Duty     to     Provide     Safe     Place     for 
Baggage  Delivery. 

42.  In  an  action  for  injuries  to  a  pas- 
senger alighting  from  a  railroad  com- 
pany's train  at  his  destination  in  the  de- 
pot of  an  independent  terminal  company 
sustained  by  the  falling  of  a  trunk  from 
a  pile  on  the  trunk  platform,  while  the 
passenger  was  engaged  in  identifying  his 
baggage  for  delivery,  a  plea  that  the  ter- 
minal company  "is  a  separate  and  inde- 
pendent corporation,  engaged  in  receiving 
and  delivering  baggage  to  passengers"  at 
the  terminal  depot  over  whose  employees 
and  over  which  corporation  the  defendant 
railroad  company  has  no  control,  and  is 
Tiot  engaged  in  any  way  in  its  management, 
and  that  the  terminal  company,  its  agents 
and  servants  are  not  the  agents  and  ser- 
vants of  the  defendant  railroad  company 
except  for  the  purpose  of  storing  and  deliv- 
ering baggage  discharged  from  defendant's 


trains,  does  not  state  a  defense  to  the  ac- 
tion, since  the  duty  of  the  defendant  rail- 
road company  to  provide  a  safe  place  for 
the  delivery  of  baggage  to  passengers  at 
their  destination  on  the  defendant's  line 
cannot  be  delegated  to  another  Johnson 
V.  Florida  East  Coast  E.  Co.  (Fla.)  1916C- 
1210.  (Annotated.) 

43.  A  primary  duty  of  a  railroad  com- 
mon carrier  imposed  by  law  is  to  maintain 
a  suitable  and  safe  place  for  the  delivery 
of  baggage  to  passengers  at  their  destina- 
tion on  the  carrier's  line;  and,  in  so  far 
as  it  affects  the  safety  of  passengers  in 
the  delivery  of  their  baggage,  this  duty 
cannot  be  delegated  to  another,  whether 
it  be  a  separate  and  independent  corpora- 
tion or  a  mere  employee,  so  as  to  relieve 
the  carrier  of  its  legal  liability  for  an 
injury  to  the  passenger  caused  by  the 
negligence  of  those  engaged  in  delivering 
baggage  to  a  passenger  on  the  premises 
used  by  the  carrier  for  that  purpose. 
Johnson  v.  Florida  East  Coast  E.  Co. 
(Fla.)    1916C-1210.  (Annotated.) 

44.  Whatever  may  be  the  rule  of  lia- 
bility where  injury  is  caused  by  the  negli- 
gence of  the  employees  of  an  independent 
contractor  in  other  instances  and  circum- 
stances, it  does  not  operate  to  relieve 
common  carriers  from  their  primary  duty 
to  maintain  safe  accommodations  for  their 
passengers  in  the  delivery  to  them  of 
their  baggage  at  the  point  of  destination; 
nor  does  the  rule  exempt  such  carriers 
from  the  legal  consequences  of  the  negli- 
gence of  those  engaged  in  the  delivery  of 
baggage  to  passengers,  whether  those  em- 
ployed in  such  delivery  be  the  employees 
of  the  carrier  or  other  independent  cor- 
porations using  and  directing  their  own 
employees  in  the  delivery  of  baggage  to 
passengers  at  their  destination  on  the 
depot  premises  used  by  the  carrier.  John- 
son V.  Florida  East  Coast  R.  Co.  (Fla.) 
1916C-1210.  (Annotated.) 

45.  The  duty  of  the  carrier  to  maintain 
a  suitable  and  safe  place  for  the  delivery 
of  baggage  to  passengers  at  their  destina- 
tion on  the  carrier's  line  is  not  changed 
when  the  carrier  uses  the  premises,  em- 
ployees and  facilities  of  another  independ- 
ent corporation  as  its  agency  for  such 
delivery  of  baggage  to  passengers.  John- 
son v.  Florida  East  Coast  E.  Co.  (Fla.) 
1916C-1210.  (Annotated.) 

46.  Whether  the  carrier  owns  or  con- 
trols the  premises  or  not,  and  whether  the 
carrier  exercises  any  authority  or  direc- 
tion over  the  employees  so  engaged  or 
not,  the  carrier  is  not  relieved  of  the  legal 
consequences  of  the  negligence  otf  the 
employees  resulting  in  injury  to  a  pas- 
senger of  the  carrier  while  properly  en- 
gaged with  the  omiployees  in  receiving 
his  baggage  on  the  depot  premises  at  his 


CARRIERS  OF  PASSENGERS. 


159 


destination.      Johnson    v.     Florida     Fast 
Coast  E.  Co.  (Fla.)   1916C-1210. 

(Annotated.) 

Note. 
Duty  of  carrier   to   provide   safe   place 
for    delivery    of    baggage    to    passenger. 
1916C-1213. 

6.     RIGHT  TO  MAKE  RULES. 

47.  Power  to  Make  Rules.  Railroad 
companies  have  the  power  to  make  rea- 
sonable regulations  for  the  management 
of  their  trains,  and  one  who  buys  a  ticket 
is  bound  to  inform  himself  of  the  rules 
and  regulations  of  the  company  governing 
the  transit  and  conduct  of  the  trains  upon 
which  he  proposes  to  travel.  He  should 
inform  himself  when  about  to  take  pas- 
sage on  a  railroad  train  when,  where  and 
how  he  can  go,  or  stop,  according  to  the 
regulations  of  the  railroad  company. 
Florida  East  Coast  R.  Co.  v.  Carter  (Fla.) 
1916E-1299. 

48.  A  street  railroad  company  has  a 
right  to  make  and  enforce  reasonable 
rules.  Taylor  v.  Spartanburg  B.,  etc.  Co. 
(S.  Car.)   1916D-585. 

49.  Rule  as  to  Use  of  Transfers.  A  rule 
of  a  street-car  company  requiring  a  per- 
son holding  a  transfer  ticket  to  take  the 
next  succeeding  car  at  thepoint  desig- 
nated on  the  transfer  is  reasonable,  as  a 
protection  against  imposition  and  fraud. 
Taylor  v.  Spartanburg  R.,  etc.  Co.  (S. 
Car.)   1916D-585.  (Annotated.) 

Note. 
Validity  of  rule  of  street  railway  with 
respect  to  use  of  transfer.     1916D-586. 

7.     EJECTION    FOB    INVALIDITY    OF 
TICKET. 

50.  A  street-car  company  whose  regula- 
tions require  persons  holding  transfers  to 
take  the  next  succeeding  car  at  the  point 
designated  is  justified  in  refusing  trans- 
fers of  passengers  boarding  the  car  at 
about  200  yards  from  such  point,  and  in 
demanding  fare  from  them,  and,  on  their 
refusal  to  pay,  is  not  liable  for  their  ejec- 
tion. Taylor  v.  Spartanburg  B.,  etc.  Co. 
(S.  Car.)   1916D-585.  (Annotated.) 

8.     CCTEIBUTORY  NEGLIGENCE.     ' 
a.     In  General. 

51.  Extending  Arm  Outside  Car.  Plain- 
tiff, while  riding  on  an  interurban  car,  to 
flick  the  ashes  from  his  cigar  thrust  his 
hand  over  the  guard  rail  a  sufficient  dis- 
tance beyond  the  side  line  of  the  car  to 
bring  it  in  contact  with  the  trunk  of  a 
tree  standing  beside  the  track;  the  force 
of  the  blow  breaking  his  wrist.  Held, 
that  he  was  guilty  of  contributory  negli- 


gence  as   a   matter   of  law.     Malakia    v. 
Rhode  Island  Co.  (B.  I.)   1916C-1216. 

(Annotated.) 

52.  Where  a  railroad  company  fails  to 
enforce  one  of  its  rules  and  a  passenger 
is  injured  in  neglecting  to  observe  it,  un- 
der our  statutes  the  mere  contributory 
negligence  of  the  passenger  is  not  an 
absolute  bar  to  recovery.  Florida  East 
Coast  B.  Co.  T.  Carter  (Fla.)  1916E-1299, 

(Annotated.) 

Notes. 

Failure  of  carrier  to  enforce  rule  as  af- 
fecting contributory  negligence  of  passen- 
ger in  violation  thereof.     1916E-1308. 

Contributory  negligence  of  passenger  in 
permitting  part  of  his  body  to  protrude 
from  car.     1916C-1218. 

b.     Riding  on  Steps  or  Platform. 

53.  Boarding  Moving  Car.  A  boy  nine 
years  old,  who  on  the  invitation  of  the 
motorman  boarded  a  car  going  so  slowly 
that  the  boy  could  grasp  the  handle  bar 
with  his  right  hand  and  place  both  feet 
on  the  step  of  the  car,  but  who  was 
thrown  from  the  car  by  the  sudden  accel- 
eration of  the  speed,  was  not  guilty  of 
contributory  negligence  as  a  matter  of 
law.  Solomon  v.  Public  Service  B.  Co. 
(N.  J.)   1917C-356. 

54.  Preparation  for  Alighting — ^Moving 
Car.  That  a  passenger  on  a  street  car 
went  upon  the  platform  or  steps  of  the 
moving  car  preparatory  to  alighting  does 
not  alone  show  contributory  negligence. 
Froeming  v.  Stockton  Electric  B.  Co. 
(Cal.)  1918B-408. 

Note. 

Contributory  negligence  of  passenger  in 
alighting  from  street  car  and  passing  to 
rear  of  it  across  parallel  tracks  without 
looking  for  approaching  car.  1916E- 
998. 

9.     ACTIONS   FOR   INJUBIES. 
a.     Pleading. 

55.  Enforcement  of  Right  to  Carriage. 
-A  complaint  alleging  that  a  common  car- 
rier's refusal  to  accept  complainant  was 
a  persecution  of  complainant  for  having 
brought  a  suit  for  damages  against  it  and 
an  attempted  intimidation  shows  a  pal- 
pable abuse  of  a  public  franchise,  which 
a  court  of  equity  will  enjoin.  Hogan  v. 
Nashville  Interurban  R,  Co.  (Tenn.) 
1916C-1162. 

56.  A  complaint  alleging  that  a  com- 
mon carrier  had  wrongfully  refused  to 
accept  complainant  as  a  passenger  and 
threatened  to  continue  such  wrongful  act 
sets  out  a  right  to  relief  by  injunction, 
on  the  ground   that  a  single  action  is  a 


160 


DIGEST. 

19160— 1918B. 


more  adequate  remedy  than  an  action  or 
actions  at  law  for  damages.  Hogan  v. 
Nashville  Interurban  B.  Co.  (Tenn.) 
1916C-1162. 

57.  Act  as  Exclusive  Semedy  —  Plead- 
ing as  Defense  to  Action.  Where  the 
com,plaint,  in  an  action  for  a  personal 
injury,  alleged  that  the  relation  of  pas- 
senger and  carrier  existed  between  plain- 
tiff and  defendant  at  the  time  of  the 
accident  causing  the  injury,  defendant 
could  plead  and  prove  that  the  relation 
of  master  and  servant  existed,  and  that 
plaintiff  must  resort  to  the  relief  afforded 
by  the  Workmen's  Compensation  Act. 
Susznik  v.  Alger  Logging  Co.  (Ore.) 
1917C-700. 

58.  Pleading  —  Contributory  Negligence. 
An  answer,  in  an  action  for  injury  to  a 
passenger,  which  alleges  that  plaintiff 
was  transported  by  defendant  on  its  log- 
ging train  gratuitously  solely  for  the 
benefit  of  plaintiff  and  defendant  in  con- 
nection with  the  business  in  which  de- 
fendant was  engaged,  and  that  plaintiff, 
on  reaching  his  destination,  ran  in  front 
of  the  engine  and  was  injured,  sets  forth 
plaintiff's  contributory  negligence,  though 
it  does  not  admit  any  negligence  of  de- 
fendant. Susznik  v.  Alger  Logging  Co. 
(Ore.)  1917C-700. 

59.  Construction  of  Pleading.  In  an 
action  for  wrongful  death  of  a  street-car 
passenger,  where  the  petition  alleges 
that  the  decedent  was  injured  "by  start- 
ing the  car  while  she  was  attempting  to 
alight  therefrom,"  the'  allegation  is  not 
an  admission  that  decedent  negligently 
alighted  from  a  moving  car,  but  only  that 
she  was  ready  to  alight.  Froeming  v. 
Stockton  Electric  E.  Co.  (Cal.)  1918B- 
408. 

b.     Presumption  of  Negligence. 

60.  Effect  of  Presumption,  In  a  pas- 
senger's action  for  injuries  from  a  colli- 
sion between  two  trains  on  the  same 
track,  plaintiff  need  not  prove  any  speci- 
fic act  of  negligence,  but  may  rest  his 
case  entirely  on  the  presumption  of  negli- 
gence arising  from  the  collision.  Niebal- 
ski  V.  Pennsylvania  B.  Co.  (Pa.)  1917C- 
632. 

61.  Presumption  of  Negligence  from 
Accident.  Proof  of  injury,  without  con- 
tributory negligence,  to  a  passenger  in 
an  elevator,  from  its  fall  due  to  a  defec- 
tive bolt,  raises  a  presumption  of  negli- 
gence of  the  carrier,  requiring  it  to  show 
that  all  required  precautions  to  safeguard 
passengers  had  been  taken.  Dibbert  v. 
Metropolitan  Investment  Co.  (Wis.) 
1916E-924. 

62.  Proof  of  Negligence.  Where  a  pas- 
senger is  injured  from  a  collision  between 


the  train  on  which  he  is  riding  and  an- 
other train  on  the  same  track,  a  presump- 
tion of  negligence  on  the  part  of  the 
company  carrying  the  passenger  arises,  re- 
gardless of  any  question  as  to  his  negli- 
gence. Niebalski  v.  Pennsylvania  E.  Co. 
(Pa.)   I917C-632.  (Annotated.) 

Note. 
Presumption  of  negligence  from  collision 
resulting  in  injury  to  passenger.     1917C- 
634. 

c.    Burden  of  Proof. 

63.  Contributory  Negligence  of  Passen- 
ger. In  a  passenger's  action  for  injuries 
from  a  collision  between  two  trains  on 
the  same  track,  plaintiff's  contributory 
negligence  is  a  matter  of  defense,  the  bur- 
den of  proof  as  to  which  is  on  defendant. 
Niebalski  v.  Pennsylvania  E.  Co.  (Pa.) 
1917C-632. 

d.     Admissibility  of  Evidence. 

64.  Evidence  of  Bad  Faith.  In  an  ac- 
tion against  defendant  railroad  by  one 
claiming  to  have  been  arrested  by  the 
conductor,  ejected  from  the  train,  and 
thrown  into  prison  for  drunkenness,  when 
in  fact  perfectly  sober,  testimony  that 
plaintiff's  companions,  who  drank  with 
him  from  the  same  bottle,  were  not  dis- 
turbed by  the  conductor,  is  admissible  as 
bearing  on  the  good  faith  of  the  conductor 
in  making  the  arrest.  Spain  v.  Oregon- 
Washington  E.,  etc.  Co.  (Ore.)  1917E- 
1104. 

65.  Such  testimony  was  admissible  as 
part  of  the  res'  gestae.  Spain  v.  Oregon- 
Washington  B.,  etc.  Co.  (Ore.)  1917E-1104. 

e.     Sufficiency  of  Evidence. 

66.  Evidence  Sufficient.  Evidence  in  an 
action  for  the  death  of  a  street-car  pas- 
senger is  held  to  be  sufficient  to  sustain 
a  verdict  for  the  plaintiff.  Froeming  v. 
Stockton  Electric  E.  Co.  (Cal.)  1918B-408. 

67.  Evidence  in  an  action  for  death  of  a 
passenger,  who,  suffering  a  stroke  of  apo- 
plexy while  on  a  street  car,  was  carried 
thereon  for  five  hours,  held  to  warrant  a 
finding  of  negligence  of  the  conductor  in 
assuming,  and  continuing  to  indulge  in  the 
assumption,  that  the  passenger  was  drunk, 
and  not  in  a  critical  condition  and  in  need 
of  immediate  medical  attention.  Middle- 
ton  V.  Whitridge  (N.  Y.)  1916C-856. 

(Annotated.) 

68.  In  an  acton  against  a  steamship  com- 
pany for  death  of  a  passenger  flung  over- 
board through  an  unguarded  space  in  the 
rail  of  the  vessel,  the  evidence  is  held  to 
be  sufficient  to  support  a  finding  t^at  the 
accident  was  caused  by  a  lurrh  of  the  ship, 
and  not  by  deceased's  volition  or  lack  of 


CARRIERS  OF  PASSENGERS. 


161 


attention.     Hanley    v.    Eastern    Steamship 
Corporation  (Mass.)  1917D-1034. 

(Annotated.) 

69.  Inability  for  Injury  to  Passenger 
Falling  Overboard.  In  an  action  against  a 
steamship  company  for  the  conscious  suf- 
fering of  a  passenger  drowned  upon  going 
overboard  through  an  unguarded  place  in 
the  rail  when  the  vessel  lurched,  the  evi- 
dence is  held  to  be  sufficient  to  support 
a  finding  of  due  care  on  the  part  of  de- 
ceased. Hanley  v.  Eastern  Steamship  Cor- 
poration (Mass.)   1917D-1034. 

(Annotated.) 

70.  Person  Riding  Wrongfully  by  Per- 
mission of  Employee.  Where  a  boy  nine 
years  old  attempted  to  board  a  moving 
trolley  car  on  the  invitation  of  the  motor- 
man,  the  act  of  the  motorman  in  suddenly 
accelerating  the  speed  of  the  car  before 
the  child  reached  a  place  of  safety  justi- 
fied a  finding  of  actionable  negligen<;e  of 
the  street  railway  company.  Solomon  t. 
PubUc  Service  B.  Co.   (N.  J.)   1917C-356. 

(Annotated.) 

f.     Questions  for  Jury. 

71.  Passenger  Alighting  from  Street  Car 
— CJrossing  Parallel  Track  Without  Look- 
ing. A  person,  passing  behind  a  west- 
bound street  car  from  which  she  had  just 
alighted  and  going  upon  the  east-bound 
track  without  looking  for  a^'^approaching 
car,  was  not  guilty  of  conttibutory  negli- 
gence as  a  matter  of  law,  where  her  at- 
tention was  directed  towards  another  ap- 
proaching west-bound  car,  and  her  view 
of  the  east-bound  car,  which  struck  her, 
was  obscured  by  the  standing  car,  as  she 
had  a  right  to  presume  that  proper  warn- 
ing of  the  approa-ching  car  would  be 
given,  and  that  the  car  would  be  under 
proper  control,  and  was  not  required  to 
anticipate  negligence  on  the  part  of  those 
in  charge  of  the  car;  and  hence  whether 
she  was  negligent  is  a  question  for  the 
jury.  Louisville  R.  Co.  v.  Kennedy  (Ky.) 
1916E-996.  (Annotated.) 

72.  Boarding  Car.  In  an  action  by  one 
injured  in  attempting  to  board  a  moving 
street  car,  who  claimed  that  the  conductor 
negligently  grabbed  his  arm,  the  questions 
of  negligence  and  of  plaintiff's  contributory 
negligence  held  for  the  jury.  Jonas  v. 
South  Covington,  etc.  St.  B.  Co.  (Ky.) 
1916E-965. 

73.  Contributory  Negligence — Riding  on 
Step.  In  a  passenger's  action  against  a 
street  railroad  for  injuries  while  riding  on 
the  step  of  a  c&r,  the  question  of  contrib- 
utory negligence  is  held  to  be  for  the  jury 
under  the  evidence.  Kellv  v.  Santa  Bar- 
bara Consol.  B.  Co.  (Cal.)  19170-67. 

(Annotated.) 

74.  One  who  rides  on  the  step  of  a 
street  car  on  account  of  its  crowded  con- 
dition    may     be     guilty    of    contributory 

11 


negligence  in  bo  doing  the  question  being 
for  the  jury;  so  that,  in  an  action  for  in- 
jury to  sueh  a  passenger,  a  charge  that, 
as  matter  of  law,  he  was  not  guilty  of 
such  contributory  negligence  is  erroneous. 
Kelly  V.  Santa  Barbara  Consol.  E.  Co. 
(Cal.)  1917C-67.  (Annotated.) 

75.  Question  of  Recovery.  On  conflicting 
evidence,  in  an  action  for  the  death  of 
a  street  car  passenger,  the  question  of 
recovery  is  for  the  jury,  and  must  be  sub- 
mitted, although  one  of  plaintiff's  wit- 
nesses on  cross-examination  testified  ad- 
versely to  him  on  matters  outside  the 
direct  examination.  Froeming  v.  Stockton 
Electric  B.  Co.  (Cal.)  1918B-408. 

76.  Evidence  in  an  action  for  death  of 
a  passenger,  who  suffered  a  stroke  of 
apoplexy  while  on  a  street  car,  and  was 
carried  thereon  for  hours  afterwards,  held 
sufficient  to  go  to  the  jurv  on  the  issue  of 
the  omission  of  the  carrier's  duty  to  him 
being  the  proximate  iiause  of  his  death. 
Middleton  v.  Whitridge  (N.  Y.)  1916C- 
856.  (Annotated.) 

77.  Whether  a  person  in  attempting  to 
board  a  moving  trolley  car  is  negligent 
depends  on  the  circumstances  and  may, 
accordingly,  be  either  a  question  for  the 
court  or  jury.  Solomon  v.  Public  Service 
B.  Co.  (N.  J.)  1917C-356. 

78.  Evidence  considered  and  held  suffi- 
cient to  warrant  submitting  to  the  jury 
the  question  whether  it  was  negligence  to 
operate  a  street  car  in  the  city  of  Winona 
without  a  conductor,  and  to  justify  the 
jury  in  finding  that  it  was.  Koeller  v. 
Wisconsin    E.   etc.   Co.    (Minn.)    19170-71. 

(Annotated.) 

79.  In  such  action,  where  the  issue  is 
whether  the  carrier  announced  the  junc- 
tion and  the  necessity  for  changing  cars 
as  claimed  by  it,  an  instruction,  leaving  it 
to  the  jury  to  determine  whether  the 
trainman  exercised  ordinary  care  to  ap- 
prise plaintiff  of  the  place  she  was  to 
leave  the  train  to  take  a  train  on  a  con- 
necting road,  is  erroneous,  as  ignoring  the 
real  issue.  St.  Louis,  etc.  B.  Co.  v.  Need- 
ham   (Ark.)    1917D-486.  (Annotated.) 

80.  In  an  action  for  damages  from  de- 
fendant's negligent  failure  to  notify 
plaintiff  of  the  necessity  for  changing 
cars  at  a  junction,  the  evidence  is  held 
to  make  the  defendant's  announcement 
of  the  junction  and  the  necessity  for 
changing  a  question  for  the  jury.  St. 
Louis,  etc.  B.  Co.  v.  Needham  (Ark.) 
1917D-486.  (Annotated.) 

g.    Instructions. 

81.  Injury  to  Passenger — Overcrowding 
of  Car.  In  an  action  for  injury  to  a  pas- 
senger on  a  street  car  while  standing  on 
a  step  thereof,  charges  that  every  street 


162 


DIGEST. 

191GC— 1918B. 


railroad  mast  furnish  on  the  inside  of  its 
passenger  cars  suflficient  room  and  accom- 
modations for  all  passengers  who  pay  or 
buy  tickets,  that  a  carrier  of  persons  for 
reward  shaJl  not  overcrowd  or  overload  his 
vehicle,  and  mrist  give  reasonable  accom- 
modations, and  that  a  carrier  should  not 
allow  so  many  passengers  upon  its  cars 
as  to  overcrowd  them,  and,  if  unable  to 
prevent  overcrowding,  the  carrier  has  a 
right  to  refuse  to  move  its  cars,  but,  if  it 
does  not  adopt  such  course,  and  under- 
takes to  transport  all  passengers,  whether 
within  the  cars  or  on  its  platform  it  is 
under  additional  care,  commensurate  with 
the  perils  or  dangers  surrounding  the  paa- 
gengers  by  reason  of  the  overcrowded  con- 
dition of  the  cars,  declared  with  fairness 
the  law  governing  the  conduct  of  common 
carriers  of  passengers,  as  expressed  by 
Cal.  Civ.  Code,  §§  483,  2102,  2184,  2185. 
Kelly  V.  Santa  Barbara  Consol.  E.  Co. 
(Cal.)  1917C-67. 

82.  Bight  of  Passenger  on  Car  Step.  In 
an  action  for  death  of  a  street  car  pas- 
senger, an  instruction  that,  if  a  passenger 
is  injured  without  fault  on  his  part  while 
on  the  steps  of  a  moving  car,  the  burden 
is  on  the  company  to  show  absence  of 
negligence,  is  not  erroneous  for  declaring 
that  a  passenger  has  a  right  to  be  on  the 
steps  of  a  moving  car,  since  that  is  his 
right  in  entering  and  preparatory  to  leav- 
ing the  car.  Froeming  v.  Stockton  Elec- 
tric R.  Co.  (Cal.)  1918B-408. 

83.  Insane  Passenger.  In  an  action  for 
the  death  of  a  passenger  who  became  in- 
sane while  riding  on  the  train,  and  at- 
tempted, to  the  knowledge  of  the  porter 
and  brakeman,  to  throw  her  baby  from  the 
car  window,  and  after  being  prevented 
from  so  doing,  and  after  apparently  quiet- 
ing down,  threw  herself  from  the  window, 
instructions  held  to  have  correctly  declared 
the  law  and  the  measure  of  the  carrier's 
dutv  toward  the  passenger.  Weirling  v. 
St.  Louis,  etc.  B.  Co.  (Ark.)  1916E-253. 

(Annotated.) 

10.     JITNEYS  AND  TAXIS. 

84.  Taxlcab  Company  as  Carrier.  A 
taxicab  company  is  a  common  carrier 
within  the  meaning  of  the  act  of  Cong. 
of  March  4,  1913  (37  Stat,  at  L.  938,  c. 
150)  §  8,  and  hence  subject  to  the  jurisdic- 
tion of  the  Public  Utilities  Commission  of 
the  District  of  Columbia  as  a  "public  util- 
ity" in  respect  of  its  exercise  of  its  exclu- 
sive right  under  lease  from  the  Washing- 
ton Terminal  Company,  the  owner  of  the 
Washington  Union  Railway  station,  to 
solicit  livery  and  taxicab  business  from 
persons  passing  to  or  from  trains,  and  of 
its  exclusive  right  under  contracts  with 
certain  Washington  hotels  to  solicit  taxi- 
cab  business  from  guests,  but  that  part  of 
its  business  which  consists  in  furnishing 
automobiles  from  its  central  garage  on 
individual  orders,  generally  by  telephone, 


cannot  be  regarded  &8  a  public  utilit}', 
and  the  rates  charged  for  such  service  are 
therefore  not  open  to  inquiry  by  the  Com- 
mission. Terminal  Taxicab  Co.  v.  Kutz 
(U.  S.)  1916D-765.  (Annotated.) 

85.  Jitney  Bus  as  Common  Carrier.  A 
"jitney"  is  a  self-propelled  vehicle,  other 
than  a  street  car,  traversing  the  pubUc 
streets  between  certain  definite  points  or 
termini,  and,  as  a  common  carrier,  con- 
veying passengers  at  a  five-cent  or  some 
small  fare,  between  such  termini  and  in- 
termediate points,  and  so  held  out,  adver- 
tised, or  announced.  Memphis  v.  State 
(Tenn.)    1917C-1056.  (Annotated.) 

86.  Where,  under  an  act  of  the  legis- 
lature, municipalities  are  authorized  to 
regulate  by  ordinance,  subject  to  the  stat- 
ute, the  operation  of  jitnev  buses  as  com- 
mon carriers,  and  the  city  council  fails 
to  regulate,  a  street  railway  company  can 
have  the  operation  of  jitneys  enjoined, 
since  the  city  council  might  fail  to  act  at 
all  under  the  statute,  and  thus  the  rights 
of  the  company  be  unlawfully  invaded. 
Memphis  St.  R.  Co.  v.  Rapid  Transit  Co. 
(Tenn.)  1917C-1045.  (Annotated.) 

87.  Begulation  of  Jitney  Buses — Effect 
of  Noncompliance.  Under  Tenn.  Acts 
1915,  c.  60,  making  jitneys  common  car- 
riers, and  requiring  them,  under  ordi- 
nances of  the  cities  or  towns,  to  file  bonds 
and  perform  the  conditions  of  the  statute 
and  ordinances,  a  jitney  company  is  alto- 
gether without  right  to  do  business  on  the 
streets  of  a  city,  where  the  city  has 
passed  no  ordinance  pursuant  to  the  act, 
and  the  company  has  failed  to  procure 
any  license  or  execute  any  bond  under  the 
act.  Memphis  St.  R.  Co.  v.  Rapid  Tran- 
sit Co.   (Tenn.)   1917C-1045. 

(Annotated.) 

88.  Tenn.  Acts  1915,  c.  60,  regulating 
jitneys  as  common  carriers,  and  prohibit- 
ing their  operation,  except  upon  pre- 
scribed conditions,  does  not  make  an  arbi- 
trary classification  between  jitney  buses 
and  street  railway  cars,  since  the  jitney 
runs  upon  no  track,  and  is  less  substantial 
and  more  dangerous  than  the  street  car, 
thus  presenting  essential  differences  prop- 
erly the  subject  of  classification.  Mem- 
phis V.  State  (Tenn.)  1917C-1056. 

89.  Separate  Begulation  of  Jitney  Buses. 
Tenn.  Acts  1915,  c.  60,  regulating  jitneys 
as  common  carriers,  and  prohibiting  their 
operation,  except  upon  prescribed  condi- 
tions, does  not  make  an  arbitrary  classi 
fication  between  jitneys  and  privately 
owned  automobiles,  since  the  uses  and 
character  of  operation  of  the  two  classes 
are  distinct.  Memphis  v.  State  (Tenn.) 
1917C-1056. 

90.  Tenn.  Acts  1915,  c.  60,  regulating 
jitneys  as  common  carriers,  and  pronibiting 
their  operation,  except  upon  prescribed  con- 
ditions, does  not  make  an  arbitrary  claoi^i- 


CARRYING  WEAPONS— CERTIORARI. 


163 


fieation  between  jitneys  and  taxicaba, 
since  taxicabs  are  for  hire  at  a  fare  pro- 
portioned to  the  length  of  the  trips  of 
the  several  passengers,  without  regard  to 
route,  while  the  jitney  carries  passengers 
upon  a  designated  route,  and  the  invest- 
ments in  the  two  classes  of  machines 
are  widely  different.  Memphis  v.  State 
(Tenn.)   1917C-1056. 

91.  Jitney  Bus  as  Common  Carrier.  The 
legislature,  being  endowed  with  police 
power  to  regulate  the  use  of  streets  in 
public  places,  may  prescribe  the  condi- 
tions with  which  jitneys,  being  common 
carriers,  must  comply  in  order  to  operate. 
Memphis  v.   State    (Tenn.)    1917C-1056. 

(Annotated.) 

Notes. 

State  or  municipal  regulation  of  jitney 
buses.     1917C-1051. 

Taxicab  proprietor  as  common  carrier. 
1916D-767. 

Jitney  bus  proprietor  as  common  car- 
rier of  passengers.     1917C-1060. 

CAREYINa  WEAPONS. 
See  Weapons. 

CAETAGE. 

Eight  to  lien  for  cartage,  s^e  Mechanics' 
Liens,  12,  13. 

CARTOON. 

As  libel,  see  Libel  and  Slander,  153. 

CASHIER. 
Authority  of,  see  Banks  and  Banking,  19. 

CASUAL  EMPLOYEE. 

As  within   Workmen's   Compensation   Act, 
see  Master  and  Servant,  241,  276. 

CATS. 
See  Animals,  1,  2. 

CAUSA  MORTIS. 
See  Gifts,  11-17. 

CAVEAT. 

On  will  contest,  see  Wills,  126. 

CAVEAT  EMPTOR. 

Application  to  guardian's  sale,  see  Guard- 
Ian  and  Ward,  13. 

CEMETERIES. 
Proceeding     for     exhumation,     see    Dead 
Body,  7-10. 

1.  Injunction  Against  Maintenance. 
While   a   cemetery   is   not   a  nuisance  per 


se,  yet  underdrainage  of  a  cemetery, 
which  would  pollute  a  stream  used  by  an 
adjoining  landowner  to  water  his  stock, 
will  be  enjoined  without  requiring  a  prior 
judgment  at  law  establishing  the  nature 
of  the  nuisance.  Sutton  v.  Pindlay  Ceme- 
tery Assoc.  (111.)  1917B-559. 

(Annotated.) 

2.  A  cemetery  is  not  a  nuisance  per  se, 
and  its  use  cannot  be  enjoined  because 
offensive  to  the  esthetic  sense  of  an  ad- 
jacent proprietor.  Sutton  v.  Findlay 
Cemetery  Assoc.  (111.)  1917B-559. 

(Annotated.) 

3.  The  maintenance  of  a  cemetery  on 
land  adjacent  to  that  of  complainant  will 
not  be  enjoined  on  the  ground  of  nui- 
sance, where  it  appeared  that  the  surface 
waters  promptly  drained  from  the  ceme- 
tery and  would  not  pollute  a  stream  flow- 
ing through  complainant's  lower  lands. 
Sutton  V.  Findlay  Cemetery  Assoc.  (111.) 
1917B-559.  (Annotated.) 

Note. 
Equitable  relief  against  cemetery  as  nui- 
sance.    1917B-563. 


CENSUS. 
Meaning,  see  Municipal  Corporations,  158. 

CERTAINTY. 

Requisite  of  charitable  gift,  see  Charities, 
15-17. 

Of  indictments,  see  Indictments  and  In- 
formations, 10,  11. 

Of  instiuctions,  see  Instructions,  12-17. 

As  essential  to  remedy,  see  Specific  Per- 
formance, 2. 

As  statute  requisite,  see  Statutes,  15-17. 

Of  trusts,  see  Trusts  and  Trustees,  3. 

CERTIFICATE  OF  DEPOSIT. 
Construction,  see  Banks  and  Banking,  30. 

CERTIFIED  CHECKS. 
See  Checks,  8-11. 

CERTIFIED  COPY. 

Of  record,  as  evidence,  see  Evidence,  86, 

87. 

CERTIORARL 

1.  Scope  and  Purpose  of  Writ.  Certi- 
orari is  a  common-law  writ,  which  issues 
in  the  sound  judicial  discretion  of  the 
court  to  an  inferior  court,  not  to  take  the 
place  of  a  writ  of  error  or  an  appeal,  but 
to  cause  the  entire  record  of  the  inferior 
court  to  be  brought  up  by  certified  copy 
for  inspection,  in  order  that  the  superior 
court  may  determine  from  the  face  of  the 
record  whether  the  inferior  court  has  ex- 
ceeded   its   jurisdiction,    or    has    not    pro- 


164 


DIGEST. 

19160— 1918B. 


ceeded  according  to  the  essential  require- 
ments of  the  law,  in  cases  where  no  direct 
appellate  proceedings  are  provided  by 
law.     Malone  v.  Quincy  (Fla.)  1916D-208. 

2.  What  Constitutes  Part  of  Becord. 
On  certiorari  to  review  the  decision  in  an 
election  contest,  the  opinion  of  the  lower 
court  though  not  strictly  a  part  of  the 
record,  is  open  to  examination  to  discover 
the  grounds  of  the  court's  action.  Cra- 
mer's Election  Case   (Pa.)   1916E-914. 

3.  Scope  of  Beview.  An  order  of  the 
trial  court,  made  pending  an  action  for 
libel,  requiring  defendant  therein  to  pro- 
duce its  circulation  books,  is  not  review- 
able by  certiorari,  since  the  court  had 
jurisdiction  of  the  parties  and  the  sub- 
ject-matter and  had  power  to  make  the 
oruer,  and  certiorari  is  not  to  correct 
errors  committed  by  the  court,  but  only 
to  review  cases  where  the  court  has  ex- 
ceeded its  jurisdiction  and  the  order  is 
illegal.  Dalton  v.  Calhoun  County  Dis- 
trict Court  (Iowa)   1916D-695. 

4.  Necessity  of  Notice  of  Hearing. 
Where  a  petition  for  certiorari  does  not 
ask  for  a  stay  of  proceedings  in  the  lower 
court,  a  notice  of  hearing  served  on  the 
lower  court  is  not  a  condition  precedent 
to  the  issuance  of  the  writ  under  Iowa 
Code,  §  4157.  Dalton  v.  Calhoun  County 
District  Court   (Iowa)   1916D-695. 

CHALUSNaiNG  JT7B0BS. 
See  Jury,  22-28. 

OHAMPEBTY     AND     MAINTENANCE. 

1.  Agreement  to  Collect  on  Commission. 
A  good-faith  agreement  by  a  layman  to 
collect,  compromise,  or  settle  a  promissory 
note  in  consideration  of  a  certain  percent- 
age of  the  amount  collected  or  recovered, 
is  not  per  se  void  on  the  ground  of  cham- 
perty or  public  policy.  Bohan  v.  Johnson 
(N.   Dak.)    1918A-794.  (Annotated.) 

Note. 

Validity  of  agreement  by  person  other 
than  attorney  to  collect,  settle  or  compro- 
miee  claim  for  eomnussion.     1918A-797. 

CHANGE  OF  BENEFICIABT. 

In  benefit  contract,  see  Beneficial  Associa- 
tions, 27. 

CHANGE  OF  GBADE. 
See  Streets  and  Highways,  9-14. 

CHANGE   OF   NAME. 
Suit  to  change  name,  see  Names,  5. 

CHANGE  OF  TITLE. 
See  Fire  Insurance,  12-17. 


CHANGE  OF  VENUB. 
See  Venue,  3-«. 

CHAEACTEB. 

Of  accused,  evidence,  see  Criminal  Law, 

49,  50,  96,  97. 
Certificate    of,    on    discharge,   see   Master 

and  Servant,  8. 

CHAEACTEB  AND  BEPUTATION. 
Proof  of,  see  Evidence,  42. 

CHAEACTEB  EVIDENCE. 

On  impeachment  of  witness,  see  WiV 
nesses,  109-111. 

CHAEACTEB  OF  SEEVANT  OB  EM- 
PLOYEE. 

Privileged  communications  to  prospective 
employer,  see  Libel  and  Slander,  66- 
68. 

CHABGE  TO  JUBT. 
See  Instructions. 

CHABITiEa 

1.  What     Institutions     or     Purposes    are 

Charitable,   164. 

a.  In  General,  164. 

b.  Education,   165. 

e.  Gift  for  Ben   fit  of  Animals,  165. 

d.  Home  for  Indigent  Women,  165. 

e.  Volunteer  Fire  Company,    165. 

f.  National  or  Patriotic  Purpose,  165. 

2.  The  Cy  Pres  Doctrine,  165. 

S.  Terms  and  Validity  of  Gift,  165. 

a.  In  General,   165. 

b.  Certainty,    166. 

c.  Rule  AgaiDst  Perpetuities,  168. 

d.  Inadequacy,  166. 

e.  Construction,    166. 

4.  Liabilitv  of  Charitable  Institution  for 
Tort,  167. 

Saving's  bank  as  charity,  see  Banks  and 
Banking,  76. 

Bights  of  members  of  fire  company  on  dis- 
solution, see  Corporations,  115. 

Liability  of  fire  patrol  for  negligence,  see 
Master  and  Servant,  365. 

City  regulation  of  private  charity,  see 
Municipal  Corporations,   85. 

Statute  against  perpetuities  inapplicable, 
see  Perpetuities,  5,  6,  10. 

Exemption  from  taxation,  see  Taxation, 
76,  77. 

1.     WHAT     INSTITUTIONS     OB     PUB- 
POSES  ABE  CHARITABLE. 

a.     In  General. 

1.  What  Constitutes  Charity.  The  word 
"charity"  includes  substantially  any 
scheme  to  better  the  conditions  of  any 
considerable  part  of  society,  and  includes 


CHARITIES. 


165 


any  gift,  not  inconsistent  with  the  law, 
which  tends  to  promote  science  or  the 
education,  enlightenment,  or  the  ameliora- 
tion of  the  conditions  of  mankind,  or 
which  is  for  the  public  convenience.  Wil- 
son T.  First  National  Bank  (Iowa)  1916D- 
481. 

2.  What  Constitutes  Charitable  Purpose. 
A  "charitable  trust"  is  a  trust  implying 
a  public  utility  in  its  purpose,  and  if  the 
purpose  to  be  attained  is  personal,  pri- 
vate, or  selfish,  it  is  not  charitable;  but 
when  the  purpose  accomplished  is  that  of 
public  usefulness  unstained  by  personal, 
private,  or  selfish  consideration,  its  chari- 
table character  insures  its  validity.  Mat- 
ter of  MacDowell  (N.  Y.)  .I917E-853. 

3.  Scope  of  Term  "Charity."  A  "char- 
ity" is  not  confined  to  mere  almsgiving  or 
the  relief  of  poverty  and  distress,  but  has 
a  wider  signification,  and  embraces  the 
improvement  and  promotion  of  the  happi- 
ness of  man.  Thorp  v.  Lund  (Mass.) 
1918B-1204. 

Note. 
Gift  for  establishment  of  home  for  per- 
sons of  particular  class  ag  charitable  gift. 
1917E-857. 

b.     Education.  / 

4.  Gifts  to  establish  or  endow  schools 
for  the  mental  or  moral  improvement  of 
the  people,  especially  of  the  poor,  are  law- 
ful public  charities.  Wilson  v.  First  Na- 
tional Bank  (Iowa)  1916D-481. 

c.  Gift  for  Benefit  of  Animals. 

6.  Gift  for  Benefit  of  Animals.  A  de- 
vise in  trust  "for  the  protection  and  bene- 
fit of  animals"  is  a  valid  charitable  trust. 
In  re  Wedgwood  (Eng.)  1917B-924. 

(Annotated.) 

d.  Home  for  Indigent  Women. 

6.  Establishment  of  Home  for  Indigent 
Women  as  Charity.  A  testamentary  pro- 
vision giving  property  to  be  invested  and 
the  income  to  be  used  for  hiring  and  main- 
taining a  house  to  be  used  as  a  home  for 
refined,  educated,  Protestant  gentlewomen, 
whose  means  are  small  and  whose  home  is 
made  unhappy  by  having  to  live  with 
relatives  who  think  them  in  the  way,  with 
a  preference  to  testatrix's  sister  and  to 
her  named  cousins  and  their  lineal  de- 
scendants forever  and  to  her  named 
friends,  all  inmates  of  the  home  to  pay 
board  not  to  exceed  $7  per  week  toward 
paying  the  expenses  of  the  home,  is  not 
rendered  invalid  as  a  charitable  trust  be- 
cause of  the  preference  given  to  testa- 
trix's relatives  and  friends;  though  if  the 
purpose  had  been  to  create  a  trust  only 
for  their  benefit  it  would  not  have  come 
without  the  designation  of  a  "charitable 
trust."  Matter  of  MacDowell  (N.  Y.) 
1917E-853.  (Annotated.) 


0.     Volunteer  Fire  Company. 

7.  Charities— What  is  Charitable  Corpo- 
ration— Volunteer  Fire  Company.  The 
volunteer  fire  company,  incorporated  by 
Ky^  Act  March  24,  1851  (Acts  1850-61, 
c.  728),  and  whose  charter  was  amended 
by  Act  April  24,  1884  (Acts  1883-84, 
c.  1112),  is  not  a  public  charity  corpora- 
tion, within  Ky.  St.  §  323,  as  to  disposi- 
tion of  a  charity  society's  property  on  its 
dissolution,  there  not  only  being  no  ^t 
to  anybody,  but  no  public  purpose  brfng 
imposed  on  the  owners  of  the  property, 
necessary  under  the  definition  of  a  public 
charity  in  section  317.  Neptune  Fire  En- 
gine, etc.  Co.  V.  Board  of  Education  (Ky.) 
1917C-789.  (Annotated.) 

Note. 
Fire  company,  insurance  patrol  or  the 
like  as  charitable  institution.     19170-797. 

f.    National  or  Patriotic  Purpose. 

8.  What  Constitutes  Charity — National 
or  Patriotic  Purpose.  A  deed  of  trust 
providing  that  a  fund  should  be  appointed 
to  a  "national  or  philanthropic  purpose  in 
Norway  associated  with  the  name  of  my 
late  husband,  Ole  Bull,"  must  be  held  to 
create  a  charity  when  due  consideration  is 
given  to  the  words  "national"  and  "phil- 
anthropic," and  to  the  fact  that  Ole  Bull 
is  regarded  as  a  distinguished  patriot  and 
national  hero  whose  name  and  example 
serve  to  inspire  the  youth  of  Norway. 
Thorp  v.  Lund  (Mass.)  1918B-1204. 

(Annotated.) 

2.     THE  CY  PBES  DOCTEINE. 

9.  Inadequacy  of  Fund  for  Expressed 
Purpose.  Under  the  cy  pres  doctrine,  em- 
bodied in  N.  Y.  Personal  Property  Law, 
§  12,  each  case  must  depend  upon  its  own 
peculiar  circumstance,  and  inadequacy  of 
the  trust  fund  to  accomplish  the  purpose 
of  the  charity  may  justify  a  change  in 
the  scheme  of  the  charity,  and,  if  the  su- 
preme court  cannot  cause  a  testamentary 
trust  to  be  carried  out  in  the  precise  man- 
ner contemplated,  it  will  apply  the  trust 
fund  to  other  charities  as  nearly  as  pos- 
sible like  that  specifically  mentioned  in 
the  will.  Matter  of  MacDowell  (N,  Y.) 
1917E-853. 

3.     TERMS  AND  VALIDITY  OF  GIFT, 
a.     In  General. 

10.  Form  of  Creation — Us©  of  Term 
"Charity."  The  employment  of  the  word 
"charity"  or  "charitable"  in  a  deed  of 
trust  is  not  essential  to  the  creation  of  a 
valid  charity.  Thorp  v.  Lund  (Mass.) 
1918B-1204. 

11.  A  testamentary  gift  of  the  income 
Ox  property  to  maintain  a  home  for  re- 
fined,   educated,    Protestant   gentlewomen 


166 


DIGEST. 

19160— 1918B, 


whose  means  are  small  and  whose  home  is 
made  unhappy  by  having  to  live  with 
relatives  who  think  them  in  the  way,  ex- 
pressing a  preference  of  benefits  to  the 
testatrix's  sister,  her  named  cousins  and 
their  lineal  descendants  forever,  and  to 
certain  named  friends,  is  a  gift  to  a  chari- 
table use  within  N.  Y.  Personal  Property 
Law,  §  12,  providing  that  no  gift  to  chari- 
table uses  shall  be  doomed  invalid  by  rea- 
son of  the  indefiniteness  or  uncertainty  of 
the  beneficiaries,  and  that  if  it  names  a 
trustee  the  property  shall  vest  in  him,  and 
that  if  no  trustee  is  named  it  shall  vest  in 
the  supreme  court  with  power  to  control 
and  administer  it,  as  a  public  charity  need 
have  no  special  reference  to  the  poor,  and 
its  character  as  such  was  not  impaired  by 
the  fact  that  the  inmates  of  the  home 
were  required  to  pay  board,  or  by  the  in- 
adequacy of  the  trust  fund.  Matter  of 
MacDowell  (N.  Y.)  1917E-853. 

(Annotated.) 

12.  Construction  in  Favor  of  Gift.    A 

gift  for  charitable  uses  will  be  effected  if 
it  is  consistent  with  the  law,  and  for  that 
purpose  the  most  liberal  rules  permissible 
will  be  applied,  and  a  charitable  trust 
will  often  be  sustained,  where  a  private 
trust  would  fail.  "Wilson  v.  First  Na- 
tional Bank  (Iowa)  1916D-481. 

13.  Necessity  for  Institution.  A  gift 
for  the  foundation  of  a  manual  training 
school  is  not  invalid  on  the  ground  that 
such  a  charity  has  been  superseded  by  the 
adoption  of  manual  training  in  the  public 
schools;  it  not  being  open  to  the  parties 
or  to  the  court  to  inquire  whether  charity 
in  that  field  of  education  has  been  ren- 
dered unnecessary  in  that  manner.  Wil- 
son v.  First  National  Bank  (Iowa)  1916D- 
481. 

14.  Construction  in  Favor  of  Gift.  All 
doubts  will  be  resolved  in  favor  of  a 
charitable  trust.  "Wilson  v.  First  Na- 
tional Bank  (Iowa)  1916D-481. 

b.     Certainty. 

15.  Designation  of  Beneficiaries.  A 
charitable  trust  is  not  invalid  because  of 
indefiniteness  and  is  sufiicient  if  the  bene- 
fited class  is  designated  in  a  general  way, 
leaving  the  practical  application  of  the 
gift  to  be  made  by  the  trustee.  Wilson 
V.  First  National  Bank  (Iowa)  1916D- 
481. 

16.  Definiteness  as  to  Object.  A  will 
recited  testator's  "desire  to  establish  at 
I.  an  industrial  training  school  for  chil- 
dren and  a  library  building  to  be  used  by 
the  people  of  I.,"  and  then  named  trustees 
who  should  administer  the  charity  until  a 
corporation  could  be  organized  to  execute 
the  trust,  and  also  rrovided  for  the  con- 
struction of  a  building  for  the  school  by 
the  trustees,  and  that  the  school  should  be 
open  to  all  persons  fitted  for  the  training 


offered,  without  regard  to  sex,  race,  color 
etc.  Held,  that  the  trust  was  not  invalid 
as  a  charitable  trust  on  the  ground  of  in- 
definiteness. Wilson  V.  First  National 
Bank  (Iowa)  1916D-481. 

17.  If  the  general  nature  and  purpose 
of  the  charity  is  expressed  by  an  instru- 
ment creating  a  charitable  trust,  or  is  rea- 
sonably ascertainable,  the  details  of  its 
practical  administration  may  be  left  to 
the  trustee,  and  need  not  be  provided  for 
in  the  instrument.  Wilson  v.  First  Na- 
tional Bank  (Iowa)  1916D-481. 

c.     Rule    Against    Perpetuities. 

18.  Charitable  Gift  Indefinite  as  to 
Time,  The  fact  that  a  will,  which  de- 
vised funds  in  trust  to  establish  a  school, 
and  provided  that  a  corporation  should  be 
organized  to  take  over  the  stock,  did' not 
limit  the  time  in  which  the  corporation 
must  be  organized  cannot  make  the  gift 
invalid  under  the  statute  against  per- 
petuities, where  testator  bound  the  trus- 
tees by  contract  to  organize  the  corpora- 
tion within  a  year  after  his  death,  and 
the  will  reaffirmed  such  contract,  since  the 
trustees  could  be  compelled  to  comply 
with  such  obligations.  Wilson  v.  First 
National  Bank  (Iowa)   1916D-481. 

19.  Where,  under  a  will  giving  a  fund 
in  trust  for  the  establishment  of  a  school, 
the  fund  was  not  available  until  the  death 
of  testator's  brother  and  sister,  the  trus- 
tees or  the  corporation  directed  to  be  or- 
ganized to  take  over  the  trust  were  not 
negligent  in  not  attempting  to  establish 
the  school  before  such  means  were  avail- 
able, so  that  it  cannot  be  claimed  that 
the  fund  would  not  vest  in  the  corpora- 
tion, under  the  statute  against  perpetu- 
ities, on  the  ground  that  there  is  no  school 
in  existence.  Wilson  v.  First  National 
Bank  (Iowa)   1916D-481. 

d.  Inadequacy. 

20.  A  charitable  gift  is  not  invalid 
merely  because  it  cannot  take  effect  as 
fully  as  the  donor  intended,  but  will  be 
effected  so  far  as  possible,  and  is  not 
necessarily  void  because  it  contemplates 
contributions  from  others  which  may 
never  be  made,  so  that  it  cannot  be  said 
that  the  gift  of  $30,000  for  the  founding 
of  a  manual  training  school  and  public 
library  is  so  inadequate  in  amount  as  to 
render  the  gift  invalid  as  a  charitable 
trust.  Wilson  v.  First  National  Bank 
(Iowa)  1916D-481.  (Annotated.) 

Note. 
Inadequacy  of  gift   to  accomplish  pur- 
pose   of   chnritable   trust    as   affecting  its 
validity.     1916D-487. 

e.  Construction. 

21.  Power  of  Appointment — Propriety 
of  Exercise— Beneficiary  Designated  Gen- 


CHARTER— CHATTEL  MORTGAGES. 


167 


erally.  A  trustee's  proposed  appointment 
to  the  Ole  Bull  fund  committee  of  a  fund 
appointed  to  a  "national  or  philanthropic 
purpose  in  Norway,  associated  with  the 
name  of  .  .  .  Ole  Bull"  is  valid,  where  it 
appears  that  such  committee  was  estab- 
lished by  royal  charter  in  Norway  to  ad- 
minister the  surplus  moneys  collected  for 
the  Ole  Bull  monument  and  not  needed  for 
that  purpose,  and  such  augmentations  as 
mip:ht  come  to  it  by  gift  or  otherwise,  the 
income  to  be  applied  to  the  distribution 
of  donations  to  the  younger  musicians, 
actors,  and  actresses  holding  engagements 
with  the  National  Stage  of  Bergen,  which 
was  founded  by  Ole  Bull  and  is  devoted 
to  the  fostering  of  a  national  and  patri- 
otic spirit.  Thorp  v.  Lund  (Mass.)  1918B- 
1204. 

22.  Such  appointment  of  the  fund  was 
not  to  a  public  charity  or  for  a  "national 
or  philanthropic  purpose"  within  the  terms 
of  the  deed  of  trust  specifying  that  the 
fund  should  be  devoted  to  such  purpose. 
Thorp  V.  Lund  (Mass.)  1918B-1204. 

23.  Nature  of  Purpose  as  Charitable — 
Circumstances  Considered.  In  determining 
whether  a  deed  of  trust  providing  that  a 
fund  should  be  devoted  to  soine  national 
or  philanthropic  purposes  associated  with 
the  name  of  the  settlor's  husband  created 
a  charitable  trust,  the  circumstances  of 
the  parties  and  their  relation  to  the  sub- 
ject matter  should  be  considered.  Thorp 
v.  Lund  (Mass.)  191SB-1204. 

24.  Construction  in  Favor  of  Charity. 
In  view  of  Mass.  Const,  pt.  2,  c.  5,  §  2,  mak- 
ing it  the  duty  of  magistrates  to  encour- 
age public  and  private  charity,  a  gift 
dictated  by  a  benevolent  purpose  is  to  be 
liberally  construed,  and,  if  reasonably  pos- 
sible, upheld  as  a  valid  charity  rather  than 
declared  void.  Thorp  v.  Lund  (Mass.) 
1918B-1204. 

25.  Construction — "Or"  Construed  as 
"And."  The  rule  in  the  construction  of  in- 
struments establishing  charities  that  the 
word  "or"  will  be  construed  to  mean  "and" 
when  this  seems  necessary  to  effectuate  the 
meaning  intended  applies  especially  where 
one  word  expresses  a  charitable  use  and 
the  other,  if  standing  alone,  might  not  in- 
dicate a  strict  charity,  in  which  case  the 
dominant  word  is  taken  to  be  the  one 
pointing  to  a  charity,  and  the  indefinite 
word  is  narrowed  by  its  context  or  used  as 
a  synonym  with  it.  Thorp  v.  Lund 
(Mass.)    1918B-1204. 

4.     LIABILITY    OF    CH  A  CITABLE    IN- 
STITTTTION  FOE  TORT. 

26.  Liability  for  Acts  of  Employees. 
Though  a  hospital  is  a  "charitable  institu- 
tion" and  not  within  the  rule  respondeat 
superior,  it  nevertheless  is  liable  for  in- 
juries to  patients  resulting  from  its  negli- 
gence in  the  selection  of  its  agents  and 


servants.  Hoke  v,  Glenn  (N.  Car.)  1916E- 
250.  (Annotated.) 

CHABTEB. 

See  Corporations. 

Construction  of  railroad  charter,  see  Bail- 
roads,  1. 

CHATTEL  MORTGAGES. 

1.  Nature,  Form,  and  Validity,  167, 

2.  Consideration,  167. 

3.  Filing  or  Eecording,  168. 

4.  Lien,    168. 

a.  What  is  Embraced,  168. 

b.  Waiver  and  Discharge,  169. 

5.  Default   and  Foreclosure,  170. 

a.  In  General.  170. 

b.  Rights  of  Junior  Mortgagee,  170. 

6.  Rights    and   Duties    of    Mortgagor   and 

Mortgagee  as  to  Third  Parties,  170. 

Holder  not   entitled  to   excess  over  debt, 
see  Bankruptcy,  1,  2. 

1.     NATURE,  FORM,  AND  VALIDITY. 

1.  Beservation  to  Mortagor  of  Right  to 
Use.  A  mortgage  on  personalty  not  neces- 
sarily consumable  in  its  use,  where  posses- 
sion nnd  right,  to  use  the  property  are 
rt  served  in  the  grantor,  will  not  be  held 
invalid,  unless  it  appears  from  the  instru- 
ment as  a  whole  that  the  reservation  is  in- 
consistent with  the  purposes  of  the  instru- 
ment and  is  for  the  general  benefit  and 
advantage  of  the  grantor.  Morgan  v. 
Dayton  Coal,  etc.  Co.  (Tenn.)  1917E-42. 

2.  Mortgage  on  Stock  of    Merchandise. 

A  mortgage  on  a  stock  of  merchandise, 
with  possession  and  right  to  continue  busi- 
ness reserved  to  the  mortgagor,  is  fraudu- 
lent upon  its  face  and  void.  Morgan  v. 
Dayton  Coal,  etc.  Co.  (Tenn.)  1917E-42. 

3.  Validity  as  to  Creditors.  A  mortgage 
by  a  corporation  of  its  real  estate,  plant, 
equipment,  stock,  bonds,  leases,  together 
with  the  issues  and  profits,  reserving  in  the 
mortgagor  the  right  of  possession  until 
default  and  possession  taken  by  the  mort- 
gagee, does  not  indicate  that"  the  reserva- 
tions are  made  for  the  benefit  of  the  mort- 
gagor and  to  cover  up  the  property  from 
other  creditors,  and  is  not  invalid  as  to 
such  creditors.  Morgan  v.  Dayton,  Coal, 
etc.  Co.  (Tenn.)   1917E-42. 

4.  Duress.  Where  the  mortgagee,  after 
two  demands  for  payment  of  a  running 
account,  told  the  debtor  that  he  was  pre- 
pared to  close  him  up  unless  he  signed  a 
mortgage,  whereupon  the  debtor  elected  to 
do  so,  the  mortgage  was  not  invalid  aS 
having  been  executed  under  duress.  Will- 
iams V.  Noyes,  etc.  Mfg.  Co.  (Me.)  1916D- 
1224. 

2.     CONSIDERATION. 

5.  Pre-existing  Debt.  A  pre-existing 
debt  is   a  sufficient    consideration    for  a 


168 


DIGEST. 

19160— 1918B. 


parol    chattel    mortgage.     Brown    v.    Mit- 
chell (N.  Car.)   1917B-933. 

(Annotated.) 

8.    FILING  OB  RECORDING. 

6.  Under  Utah  Comp.  Laws  1907,  §§  150, 
2473,  postponing  the  rights  of  a  chattel 
mortgagee  to  those  of  a  creditor  of  the 
mortgagor  who  extended  credit  subse- 
quently to  the  execution,  but  previous  to 
the  filing  of  the  mortgage,  where  plain- 
tiff, after  filing,  secured  the  assignment  of 
a  claim  against  the  mortgagor  which  had 
accrued  previous  to  the  filing,  plaintiff  ac- 
quired all  rights  of  such  mortgagor  therein, 
including  the  right  to  invalidate  the  mort- 
gage. Volker  Lumber  Co.  v.  Utah,  etc. 
Lumber  Co.  (Utah)  1917D-1158. 

(Annotated.) 

7.  A  chattel  mortgage  which  is  not  filed 
as  required  is  valid  against  all  persons 
having  claims  against  the  mortgagor  which 
accrued  previous  to  the  execution  and  de- 
livery of  the  mortgage,  unless  such  persons 
acquire  a  lien  by  attachment  or  otherwise 
against  the  property  before  the  mortgage 
is  filed  as  provided;  since  a  debtor  may 
prefer  his  creditors.  Volker  Lumber  Co. 
v.  Utah,  etc.  Lumber  Co.  (Utah)  1917D- 
1158.  (Annotated.) 

8.  Where  a  chattel  mortgage  is  filed  aa 
provided,  it  becomes  effective  as  against 
all  persons  extending  credit  to  the  mort- 
gagor after  auch  filing,  unless  such  per- 
sons can  invalidate  it  on  the  ground  of 
fraud  or  other  legal  basis  of  attack. 
Volker  Lumber  Co.  v.  Utah,  etc.  Lumber 
Co.  (Utah)   1917D-1158.  (Annotated.) 

9.  Under  Utah  Comp.  Laws  1907,  S  150, 
providing  that,  unless  the  possession  of 
personal  property  be  given  to,  and  re- 
tained by,  the  mortgagee,  no  mortgage 
thereof  shall  be  valid  as  against  the 
rights  ajid  interests  of  third  persons,  un- 
less the  mortgage  or  a  copy  thereof  be 
filed  in  the  ofSce  of  the  recorder  of  the 
county  where  the  mortgagor  resides,  etc., 
and  under  section  2473,  providing  that  re- 
tention of  possession  of  goods  by  their 
vendor  shall  be  conclusive  evidence  of 
fraud  as  against  creditors,  including  all 
persons  who  shall  be  creditors  of  the  ven- 
dor at  any  time  while  such  goods  shall 
remain  under  his  control,  a  chattel  mort- 
gage is  invalid  as  against  all  persons  who 
without  notice  or  knowledge  of  its  exist- 
ence givt  credit  to  the  mortgagor  at  any 
time  subsequent  to  execution  and  previous 
to  filing.  Volker  Lumber  Co.  v.  Utah,  etc. 
Lumber  Co.   (Utah)   1917D-1158. 

(Annotated.) 

10.  A  bona  fide  purchaser  of  offspring 
after  its  natural  separation  from  the 
mother  is  not  bound  by  the  registration 
of  a  mortgage  upon  the  dam,  but  takes  free 
of  that  incumbrance.  McCarver  v.  GriflSn 
(Ala.)  1&17C-1172.  (Annotated.) 


11.  Where  a  chattel  mortgage  was  unen- 
forceable at  law  because  of  the  mort- 
gagee's failure  to  take  possession  of  the 
property  or  record  his  mortgage  within  five 
days,  as  required  by  B.  I.  Gen.  Laws, 
1909,  c.  258,  §  10,  and  the  mortgagor  after 
the  mortgage  was  recorded  sold  the  prop- 
erty to  complainant,  who  took  with  notice 
of  the  facts  and  the  mortgagee's  rights  in 
the  premises,  complainant  is  in  particeps 
criminis  with  the  mortgagor  in  seeking  by 
such  sale  to  defeat  the  mortgage,  and  is 
therefore  not  entitled  to  a  decree  in  equity 
restraining  the  mortgagee  from  taking 
possession  of  the  property  and  from  fore- 
closing or  treating  the  mortgage  as  valid. 
Howard  v.  McPhail  (R.  I.)  1917A-186. 

(Annotated.) 

,  12.  Where  the  owner  of  certain  personal 
property  executed  a  mortgage  thereon,  but 
the  property  was  neither  delivered  to  the 
mortgagee  nor  the  mortgage  recorded  with- 
in five  days,  as  required  by  R.  I.  Gen. 
Laws  1909,  c.  258,  §  10,  a  buyer  of  the 
mortgaged  property  from  the  mortgagor 
after  the  mortgage  was  recorded  and  with 
notice  of  the  agreement  of  the  seller  to 
create  a  valid  mortgage  on  the  property 
win  be  regarded  in  equity  as  a  trustee  for 
the  mortgagee  to  the  extent  of  the  latter's 
interest  under  the  mortgage.  Howard  v. 
McPhaU  (B.  I.)  1917A-186. 

(Annotated.) 

13.  Failure  to  Record  Within  Statutory 
Time.  A  buyer  of  personal  property  sub- 
ject to  a  mortgage  which  had  not  been  re- 
corded within  the  statutory  period,  who 
buys  after  the  mortgage  is  recorded  and 
with  notic*  of  the  mortgage,  cannot  ac- 
quire title  freed  from  the  lien  of  the 
mortgage  by  estoppel.  Howard  v.  Mc- 
Phail (R.  L)  1917A-186.  (Annotated.) 

14.  Failure  to  Record  Effect  as  Between 
Parties.  Under  the  express  provisions  of 
R.  I.  Gen.  Laws  1909,  c.  258,  §  10,  requir- 
ing that  chattel  mortgages  shall  be  re- 
corded within  five  days  or  possession  of 
the  property  delivered  to  the  mortgagee, 
such  a  mortgage  is  valid  as  between  the 
parties,  though  neither  of  such  require- 
ments is  complied  with.  Howard  v.  Mc- 
Phail (R.  L)  1917A-186. 

Note. 
Validity   of     chattel     mortgage   not   re- 
corded as  required  by  statute  as  against 
person   taking   conveyance    subsequent  to 
actual  recording.     1917A-198. 

4.     LIEN, 
a.     What  is  Embraced. 

15.  Construction  of  Mortgage  of  Income. 
Under  a  mortgage  by  a  going  concern  of 
its  real  estate,  plant,  and  establishment, 
together  with  its  income,  issues,  and 
profits,  choses  in  action,  etc.,  reserving  a 


CHATTEL  MORTGAGES. 


169 


right  of  user  and  enjoyment  in  the  grantor 
until  default,  and  giving  the  mortgagee 
the  right  to  enter  and  take  charge  of  the 
plant  and  operate  it  to  discharge  the  mort- 
gage debt,  the  income,  issues,  profits,  etc., 
do  not  pass  under  the  lien  of  the  mortgage 
until  default  and  possession  thereunder  by 
the  trustee,  and  the  lien  then  only  attaches 
to  such  income,  issues,  etc.,  as  arise  after 
default  and  possession  thus  taken.  Mor- 
gan V.  Dayton  Coal,  etc.  Co.  (Tenn.) 
1917E-42. 

16.  Increase.  As  between  mortgagor  and 
mortgagee,  offspring,  regardless  of  its  age 
and  development,  continues  subject  to  the 
mortgage  incumbrance.  McCarver  v.  Grif- 
fin (Ala.)  1917C-1172.  (Annotated.) 

17.  The  offspring  of  female  animals 
when  they  come  into  visible  existence 
and  are  endowed  with  independent  life 
rest  at  birth  under  the  same  title  or 
ownership  as  the  dam,  and  are  subject 
to  any  existing  mortgage  incumbrance 
upon  her.  McCarver  v.  GriflSn  (Ala.) 
1917C-1172.  (Annotated.) 

18.  In  detinue  by  the  mortgagee  of  a 
mare  for  a  colt  born  during  the  life  of  the 
incumbrance,  which  plaintiff  had  bought 
from  the  mortgagor  after  separation  from 
the  mother,  the  evidence  is  held  to  charge 
defendant  with  knowledge  that  the  colt 
was  subject  to  the  mortgage  on  the  dam. 
McCarver  v.  Griffin  (Ala.)  1917C-1172. 

(Annotated.) 

19.  Additions  to  Stock  of  Goods.  As  be- 
tween the  parties,  a  mortgage  upon  goods 
which  authorizes  the  mortgagor  to  sell 
them,  and  with  the  proceeds  of  such  sale 
to  purchase  other  goods  to  take  their  place, 
is  valid.  Williams  v.  Noyes,  etc.  Mfg.  Co. 
(Me.)  1916D-1224.  (Annotated.) 

20.  The  intention  of  the  parties  as  gath- 
ered from  the  language  of  all  parts  of  the 
agreement,  considered  in  relation  to  each 
other,  and  interpreted  with  reference  to 
the  situation  of  the  parties,  and  their  ob- 
ject, always  prevails,  unless  some  estab- 
lished principle  of  law  or  sound  public 
policy  would  thereby  be  violated;  and 
hence  under  a  chattel  mortgage  providing 
that  the  mortgagor  might  sell  in  the  or- 
dinary course  of  business,  replacing  the 
stock  with  new  stock  and  keeping  it  to  its 
present  value,  and  that  it  covered  all 
after-acquired  property  added  to  the  busi- 
ness in  any  manner  or  during  the  exist- 
ence of  the  mortgage,  the  mortgagee  did 
not  rely  or  intend  to  rely  upon  the  agree- 
ment to  sell  from  the  stock  and  replace 
it  with  new  stock,  and,  in  view  of  what 
interested  third  parties  might  ascertain 
from  inspection  of  the  mortgage,  he  could 
take  only  such  goods  as  he  showed  title  to, 
which  were  in  existence  at  the  date  of  the 
mortgage  or  substituted  for  articles  sold 
by  purchase  from  the  proceeds,  as  to  hold 
otherwise  would  be  a  violation  of  an  es- 


tablished principle  of  law  and  sound  pub- 
lic policy.  Williams  v.  Noyes,  etc.  Mfg. 
Co.  (Me.),  1916D-1224.  (Annotated.) 

21.  Additions  to  Stock  of  Goods.  A 
printed  provision  of  a  chattel  mortgage 
covering  a  stock  of  goods,  which  was  writ- 
ten on  an  ordinary  farm  mortgage,  that 
"all  increase  from  said  stock  of  whatever 
kind  or  nature,  the  above-described  stock 
being  kept  in  my  possession  on  ....  Sec- 
tion No '  Township  No Bange 

No ,"  could  not  be  construed  to  cover 

additions  to  or  substitutions  in  the  stock 
of  goods.  In  re  Thompson  (Iowa)  1916D- 
1210.  (Annotated.) 

22.  At  common  law  a  chattel  mortgage 
only  included  property  which  was  in  ex- 
istence and  owned  by  the  mortgagor  when 
the  mortgage  was  executed,  unless  he  had 
a  potential  ownership  therein  at  the  time, 
as  in  case  of  crops,  wool  upon  sheep,  etc.; 
but,  in  absence  of  express  provisions  to 
that  effect,  a  mortgage  of  a  stock  of  goods 
would  not  cover  and  include  other  goods 
subsequently  purchased  from  the  trustees 
of  the  stock  mortgaged,  or  otherwise.  In 
re  Thompson  (Iowa)   1916D-1210. 

(Annotated.) 

23.  While  the  increase  of  chattels  mort- 
gaged need  not  have  a  separate  identity 
at  the  time  the  chattels  and  increase  are 
mortgaged,  in  order  to  be  covered  by  the 
mortgage,  it  must  be  at  least  the  product 
or  growth  of  property  which  at  the  time 
had  a  corporeal  existence,  and  in  which 
the  mortgagor  had  a  present  interest.  In 
re  Thompson  (Iowa)  1916D-1210. 

(Annotated.) 

24.  Confusion  of  Goods.  Where,  after  a 
stock  of  goods  was  mortgaged,  the  mort- 
gagor openly  sold  from  the  goods  in  the 
same  town  in  which  the  mortgagee  lived, 
and  replaced  them  with  other  goods,  so 
that  the  subsequently  acquired  goods  were 
mingled  with  the  mortgaged  property,  ap- 
parently with  the  mortgagee's  consent, 
each  party  would  be  entitled  to  such  pro- 
portionate share  of  the  whole  mass  as  the 
property  to  which  he  was  entitled  bore  to 
the  whole  mass.  In  re  Thompson  (Iowa) 
1916D-1210.  (Annotated.) 

Notes. 

Chattel  mortgage  on  stock  of  mercantile 
goods  as  covering  additions  thereto. 
1916D-1215. 

Bight  of  chattel  mortgagee  or  condi- 
tional vendor  to  accession  to  property 
mortgaged  or  sold.     1917C-1170. 

Mortgage  on  animals  as  including  in- 
crease.    1917C-1173. 

b.     Waiver  and  Discharge. 

25.  Levy  of  Attachment.  The  levy  of  an 
attachment  by  a  chattel  mortgagee  on  the 
mortgaged    property    as    the    property    of 


170 


DIGEST. 

19160— 1918B. 


the  mortgagor  does  not  •^yaive  the  title  of 
the  mortgagee,  or  estop  him  from  main- 
taining an  action  of  detinue  to  recover  the 
mortgaged  property^  since,  by  the  direct 
provisions  of  Ala.'  Code  1907,  §  4091.  a 
chattel  mortgagor  has  an  equity  in  the 
mortgaged  property  subject  to  levy.  Ex 
parte  Logan  (Ala.)  19160-405. 

(Annotated.) 

Note. 

Waiver  of  chattel  mortgage  lien  by  at- 
tachment.    1916C-408. 

6.     DEFAULT  AND  FORECLOSURE, 
a.     In  General. 

26.  Bemedies  of  Mortgagee.  A  chattel 
mortgagee  has  three  several  or  concurrent 
remedies  against  the  mortgagor:  An  action 
at  law  to  recover  the  debt;  an  appropriate 
action  to  recover  possession  of  the  prop- 
erty; and  a  foreclosure  of  the  mortgage, 
and  sale  of  the  property.  Ex  parte  Logan 
(Ala.)   1916C-405. 

27.  Waiver  of  Fraud  or  Duress.  Where 
the  mortgagor  for  about  three  years  there- 
after carried  on  his  business  with  the  mort- 
gage on  his  stock,  he  thereby  waived  any 
right  to  set  up  fraud  or  duress  in  the  exe- 
cution of  the  mortgage.  Williams  v. 
Noyes,  etc.  Mfg.  .Co.  (Me.)  1916D-1224. 

b.     Rights   of   Junior   Mortgagee. 

28.  Price  in  Excess  of  Debt.  Where  per- 
sonal property,  subject  to  a  mortgage  to 
secure  rent,  was  sold  by  a  receiver  under 
foreclosure  and  bid  in  by  the  lessor  at 
the  full  amount  of  the  mortgage,  which 
exceeded  the  amount  of  the  rent  due,  the 
lessor  is  liable  to  a  subsequent  chattel 
mortgagee  for  the  overplus,  and  the  sale 
will  not,  in  an  analogy  to  sales  of  real 
property,  be  set  aside  on  the  ground  that 
the  purchase  price  exceeded  the  value  of 
the  goods,  for  sales  of  personalty  are  not 
t)rdinarily  subject  to  redemption.  North- 
em  Brewery  Co.  v.  Princess  Hotel  (Ore.) 
1917C-62L 

6.  BIGHTS  AND  DUTIES  OF  MORT- 
GAGOR AND  MORTGAGEE  AS  TO 
THIRD  PARTIES. 

29.  Effect  of  Settlement  With  Mortga 
gOT.  Where  by  statute  the  mortgagor  in 
possession  of  a  horse  may  sue  the  railroad 
company  whose  train  killed  it  and  the 
company  compromises  with  the  mortgagor, 
it  is  not  liable  for  a  second  payment  for 
the  value  of  the  horse  to  the  mortgagee, 
since  the  law  contemplates  but  one  set- 
tlement or  satisfaction  for  the  same  injury. 
Chicago,  etc,  R.  Co.  v.  Earl  (Ark.)  19170- 
552. 

30.  In  such  case  where  a  mortgaged 
horse  is  killed  by  a  railway  company,  the 


mortgagor  then  in  possession  may  maintain 
an  action  against  the  company  for  the 
killing  of  the  horse,  under  Kirby's  Ark. 
Dig.  §  6776,  providing  that  any  person  who 
has  a  special  ownership  in  property  killed 
by  a  train  may  sue  the  company  for  dam- 
ages for  such  killing.  Chicago,  etc.  R.  Co. 
V.  Earl  (Ark".)  1917D-552.        (Annotated.) 

31.  Bight  of  Action  Against  Third  Per- 
son. Although  the  possession  by  a  mort- 
gagor of  personal  property  is  permissive 
only,  since  Kirby's  Ark.  Dig.  §  5410,  enti- 
tles the  mortgagee  to  possession,  the  mort- 
gagor has  such  a  special  ownership  and 
such  duties  in  regard  to  the  mortgaged 
property  that  he  can  maintain  an  action 
for  negligent  destruction  or  for  conversion 
of  the  propertv.  Chicago,  etc.  R.  Co.  v. 
Earl  (Ark.)  19i7D-552.  (Annotated.) 

32.  Duty  to  Protect  Property.  Although 
Kirby's  Ark.  Dig,  §  5396,  makes  the  filing 
of  a  mortgage  for  record  notice  to  all 
persons  of  its  existence,  and  section  5410 
provides  that  the  mortgagee  shall  have  the 
legal  title  thereto  and  the  right  of  posses- 
sion, the  mortgagor  in  possession  of  mort- 
gaged personal  property  has  the  special 
interest  of  a  bailee,  is  under  the  duty  of 
protecting  the  property,  and  is  liable  to 
the  mortgagee  if  he  fails  to  protect  it. 
Chicago,  etc.  R.  Co.  v.  Earl  (Ark.)  1917D- 
552. 

Note. 
Right    of    action    of    chattel    mortgagor 
against   third   person   for   injury,   etc,   to 
chattels.     1917D-554. 


CHATTELS. 

Meaning,   see  Executors  and  Administra- 
tors, 2. 

CHATJFFEUBS. 

Liability  of  owner   for   driver's  acts,  see 
Automobiles,  23-26. 


CHEATS. 
See  False  Pretenses. 

CHECKS. 

1.  Nature  and  Effect  of  Instrument,  171. 

2.  Presentment  for    Payment,   171. 

3.  Revocation    and   Countermand   of   Pay- 

ment, 171. 

4.  Certified  Checks,  171, 

5.  Rights  and  Liabilities  of  Indorsers,  172, 

See  Banks  and  Banking,  44. 

Check  as  payment,  see  Escrow,  3,  7. 

Worthless   check,   indorser  defrauded,   see 

False  Pretenses,  3,  4. 
Finding  in  suit  to  cancel  as  conclusive  in 

action  on  check,  see  Judgments,  65. 
Indorser's  liability  on  pledged  check,   see 
Pledge,  1. 


CHECKS. 


171 


1.     NATURE  AND  EFFECT  OF  INSTRU- 
MENT. 

1.  Negotiability.  A  "check"  is  a  nego- 
tiable instrument  payable  on  demand  or  at 
eight  without  days  of  grace,  and  is  not 
an  "inland  bill  of  exchange,"  or  less  a 
check  because  it  is  postdated.  Merchants, 
etc.  Bank  v.  New  National  Bank  (Ark.) 
1917A-944. 

2.     PRESENTMENT  FOR  PAYMENT. 

2.  Place  of  Presentment.  Under  the 
Negotiable  Instruments  Law  (N.  Y.  Consol. 
Laws,  c.  38),  §  133,  declaring  that,  where 
no  place  of  payment  is  specified,  present- 
ment for  payment  is  properly  made  at  the 
place  of  business  of  the  one  to  make  pay- 
ment, a  check  is  properly  presented  for 
payment  at  the  banking  house  of  the  in- 
stitution on  which  it  is  drawn.  Columbia- 
Knickerbocker  Trust  Co.  T.  Miller  (N.  Y.) 
1917A-348. 

3.  Check  not  Promptly  Presented.  Rem. 
&  Bal.  Wash.  Code,  §  3444,  provides  that, 
where  an  instrument  payable  on  demand 
is  negotiated  unreasonably  long  after  issue, 
the  holder  is  not  a  holder  in  due  course. 
Section  3575  provides  that  a  "check"  is  a 
bill  of  exchange  drawii  on  a  bank,  pay- 
able on  demand,  and  that,  except  as  other- 
Ivise  provided,  the  provisions  of  the  Nego- 
tiable Instruments  Act  applicable  to  a  bill 
of  exchange  payable  on  demand  apply  to 
a  check.  Section  3576  provides  that  a 
check  must  be  presented  for  payment  with- 
in a  reasonable  time  after  issue,  or  the 
drawer  will  be  discharged  to  the  extent 
of  the  loss  caused  by  the  delay.  A  check 
was  given  by  the  maker  to  the  indorser 
as  an  advance  payment  for  corporate 
stock  sold  by  the  indorser  to  the  maker; 
the  understanding  being  that  the  check 
should  not  be  negotiated  until  delivery  of 
the  stock.  The  indorser  five  weeks  there- 
after pledged  the  check  with  plaintiff  bank 
as  security  for  a  pre-existing  debt  and  a 
further  loan.  It  is  held  that  the  bank 
was  not  thereby  precluded  from  being  a 
holder  in  due  course,  since,  by  section  3576, 
the  fact  that  the  instrument  was  stale 
when  taken  discharged  the  maimer  from  lia- 
bility only  to  the  extent  of  the  loss  caused 
by  the  delay,  of  which  there  had  been 
none,  while,  assuming  that  the  bank  was 
chargeable  with  knowledge  of  all  the  facts 
existing  at  the  time  of  taking  the  check, 
it  was  merely  chargeable  with  knowledge 
that  such  check  was  given  in  connection 
with  an  executory  contract  for  the  pur- 
chase of  stock  to  be  delivered  60  days  from 
the  date  of  the  check,  which  time  had  still 
30  days  to  run  before  breach,  by  failure  to 
deliver  the  stock,  could  occur,  while  knowl- 
edge by  the  indorsee  of  a  negotiable  in- 
strument that  it  has  been  given  in  consid- 
eration of  an  executory  contract  or  agree- 
ment will  not  deprive  such  indorsee  of  his 


character  as  bona  fide  holder  in  due 
course,  unless  prior  to  the  assignment  he 
had  notice  of  some  breach  of  the  execu- 
tory contract.  German-American  Bank  v. 
Wright   (Wash.)    1917D-381. 

4.  Presentment  Through  Clearing  House. 

Under  N.  Y.  Negotiable  Instruments  Law, 
§  132,  providing  that  presentment  for  pay- 
ment must  be  made  by  some  person  author- 
ized, a  bank  to  whom  a  check  \yas  indorsed 
may  present  it  to  the  drawee  bank  through 
the  clearing  house.  Columbia-Knicker- 
bocker Trust  Co.  v.  Miller  (N.  Y.)  1917A- 
348. 

5.  Delay  in  Presenting.  The  failure  to 
present  a  check  within  a  reasonable  time 
does  not  exonerate  the  drawer  unless  there 
has  been  a  loss  to  him  thereby.  Baldwin's 
Bank  v.  Smith  (N.  Y.)  1917A-500. 

6.  Failure  to  Present  Pledged  Check. 
Where  a  bank  sues  the  maker  and  in- 
dorser of  a  check  pledged  to  it  by  such 
indorser,  evidence  is  properly  rejected  as 
to  whether  it  was  customary  or  in  keeping 
with  prudent  banking  to  hold  a  check 
taken  as  collateral  for  20  days  before  send- 
ing it  through  for  collection;  the  material 
point,  under  Rem.  &  Bal.  Wash.  Code, 
§  3576,  providing  that  a  check  must  be  pre- 
sented within  reasonable  time  after  its 
issue,  or  the  maker  will  be  discharged  to 
the  extent  of  loss  caused  by  the  delay, 
being  whether  loss  was  caused  by  any  de- 
lay. German-American  Bank  v.  Wright 
(Wash.)   1917D-381. 

7.  Effect  of  Acceptance.  The  "accept- 
ance" of  a  check  contemplates  a  promise 
on  the  part  of  the  drawee  to  pay  same,  and 
is  essentially  different  from  the  payment 
thereof.  Elyria  Savings,  etc.  Co.  v.  Wal- 
ker Bin  Co.  (Ohio)  1917D-105o. 

(Annotated.) 

3.     REYOCATION        AND       COUNTER- 
MAND   OF    PAYMENT. 

8.  Right  to  Stop  Payment  of  Certified 
Check.  After  a  bank  has  certified  a  check, 
thereby  implying  that  it  is  drawn  upon 
suflScient  funds  in  its  hands  set  apart  for 
its  satisfaction,  and  that  they  will  be  so 
applied  when  it  is  presented  for  payment, 
the  drawer  cannot  stop  payment  on  it,  and 
the  mere  fact  that  he  notifies  the  bank 
not  to  pay  it  does  not  release  the  bank 
from  its  liability  thereon.  Merchants,  etc. 
Bank  v.  New  National  Bank  (Ark.)  1917A- 
944.  (Annotated.) 

Note. 
Eight  of  drawer  to  stop  payment  of  cer- 
tified check.     1917A-947. 

4.    CERTIFIED  CHECKS. 

9.  Effect  of  Certification.  Whore  the 
drawer  of  a  check,  payable  November  1st, 
on  the  29th  day  of  .Tune  causes  the  cashier 
of  the  drawee  bank  to  note  thereon  "Cer- 


172 


DIGEST. 

19160— 1918B. 


tified  for  $2,000.  6/29/1911.  B.  C.  Pow- 
ell"— the  certification  becomes  an  acknowl- 
edgment bj  the  bank  that  the  drawer  will 
have  funds  on  deposit  which  it  will  pay 
to  the  holder  on  presentation  after  Novem- 
ber Ist,  the  word  "certify"  meaning  an 
absolute  promise  on  the  part  of  the  bank  to 
pay  the  check  on  presentation  after  No- 
vember 1st.  Merchants,  et^.  Bank  v.  New 
National  Bank  (Ark.)   1917A-944. 

10.  Bights  of  Bona  Fide  Holder.  Where 
e  bank  certified  a  postdated  check  of  a 
depositor,  which  was  delivered  to  a  third 
person,  to  be  by  him  delivered  to  the 
payee  after  its  date,  on  his  compliance 
with  the  terms  of  a  contract  between  him- 
8«lf  and  the  maker,  and  it  was  delivered 
to  the  payee,  although  he  had  not  com- 
plied with  his  part  of  the  contract,  a  bank 
which  credited  him  with  the  amount  which, 
he  drew  out  before  it  had  notice  of  any 
fraud  in  the  transaction,  or  that  the 
drawee  bank  had  been  enjoined  from  pay- 
ing it,  is  a  bona  fide  holder  for  value  in 
the  usual  course  of  business  without  no- 
tice, and  may  enforce  payment  as  against 
the  drawee  bank.  Merchants,  etc.  Bank 
V.  New  National  Bank  (Ark.)   1917A-944. 

11.  Liability  of  Bank  to  Holder.  By 
force  of  the  provisions  of  Ohio  General 
Code,  §  8294,  General  Code,  there  is  no  lia- 
bility on  the  part  of  a  bank  to  the  holder 
of  a  check  nnless  and  until  it  accepts  or 
certifies  the  check.  Elyria  Savings,  etc. 
Co.  V.  Walker  Bin  Co.  (Ohio)  1917D-1055. 

5.     EIGHTS     AND     LIABILITIES     OP 
INDOKSERS. 

12.  Effect  of  Secret  Agreement.  Where 
defendant  draws  a  check  to  the  order  of 
his  codefendant  without  any  indication  on 
its  face  that  it  is  not  to  be  negotiated,  it 
not  even  being  postdated,  the  secret  agree- 
ment between  the  parties  being  that  it 
should  not  be  negotiated  until  the  payee 
delivers  to  the  maker  certain  stock,  such 
agreement  will  not  defeat  the  recovery  of 
&  bank,  with  which  the  indorser  pledges 
the  check  as  collateral  for  a  new  loan  and 
for  an  antecedent  debt,  since  he  who 
makes  a  loss  possible  should  suffer  the  loss. 
German-American  Bank  v,  Wright  (Wash.) 
I917D-381. 

13.  Clearing  House  Rules.  The  liability 
of  an  indorser  cannot  be  affected  by  the 
fact  that  the  check  was  sent  through  the 
clearing  house;  and,  where  the  drawee  re- 
fused payment,  he  cannot  escape  liability 
on  the  ground  that,  under  the  clearing 
house  rules,  the  drawee  was  not  privileged 
to  do  so.  Columbia-Knickerbocker  Trust 
Co.  V.  MUler  (N.  Y.)  1917A-348 

(Annotated.) 

14.  Payment  on  Forged  Instrument. 
Where  a  check  is  paid  by  a  bank,  which 
is  the  drawee  thereof,  on  a  forged  indorse- 


ment, and  there  is  stamped  upon  the  check 
"Paid,"  together  with  the  date  of  the  pay- 
ment and  the  name  of  the  bank,  and  the 
check  is  charged  to  the  account  of  the 
drawer,  this  is  not  an  acceptance  of  the 
check  within  the  meaning  of  Ohio  Gen- 
eral Code,  §  8294,  and  does  not  create  a  lia- 
bility against  the  bank  in  favor  of  the 
true  holder  or  payee.  Elyria  Savings,  etc. 
Co.  T.  Walker  Bin  Co.  (Ohio)  1917D-1055. 

(Annotated.) 
Note. 
Liability    of    bank    to    true    holder    or 
payee   of   check   paid   on   forged   indorse- 
ment.    1917D-1058. 

CHEWING  TOBACCO. 

Liability   of   manufacturer   for   injury   t» 
consumer,  see  Negligence,  2. 

CHILD. 

"Child"  does  not  include  bastard,  see  Exe- 
cutions, 4. 

CHILDEEN. 
See  Adoption  of  Children;  Infants;  Parent 

aad  Child. 
As  including  posthumous  child,  see  Wills, 

199. 

CHINESB. 
Deportation,  see  Aliens,  18-23. 

CHIBOPRACTIO. 
See  Physicians  and  Surgeons,  1,  2. 

CHIBOPEACTOR. 
See  Physicians  and  Surgeons,  1,  2. 

CHOSE  IN  ACTION. 
Assignability,  see  Assignments,  11-16. 

CHRISTIAN  NAME. 
Use  of,  see  Names,  3,  4. 

CHUECHEa 
See  Beliglons  Institutions. 

OIECTJMSTANTIAI.  EVIDENCE. 

See  Evidence,  160-162. 
SuflRciency,  see  Criminal  Law,  91,  92. 
Sufficient  to  prove  illicit   intercourse,  see 
Husband  and  Wife,  63. 

CITIES. 
See  Municipal  Corporations. 

CITIZEN. 

Not   including    corporation,    see   Corpora- 
tions, 2. 


CITIZENSHIP— CLAIM  OF  LIEN. 


173 


CITIZENSHIP. 

Expatriation  by  marriage,  see  Aliens,  15, 
18. 

CITY. 

See  Municipal  Corporations. 

CITY  CHARTEB. 
See  Municipal  Corporations,  1-17. 

CITY  WAEEANTS. 
See  Municipal  Corporations,  36,  120-128. 

CIVIL  ACTION. 
See  Actions  and  Proceedings. 

CIVU,  CONSPIEACY. 

See  Conspiracy,  13-20. 

CIVIL  DAMAGE  ACTS. 

Participation  of  officers  as  defense  to  lia- 
bility for  mob  violence,  see  Mobs,  1. 

1.  Liability  for  Death  from  Intoxication. 

In  an  action  against  a  liquor  dealer  for 
a  death  caused  by  intoxication,  evidence 
considered  and  held  to  warrant  finding  that 
defendant  sold  liquors  to  decedent  while 
the  latter  was  intoxicated.  White  t.  State 
(Ind.)  1917B-527.  (Annotated.) 

2.  In  an  action  against  a  liquor  dealer 
for  a  death  caused  by  intoxication,  evi- 
dence considered  and  held  to  justify  find- 
ing that  decedent's  intoxication  was  the 
cause  of  his  physical  disability  and  death. 
White  V.  State  (Ind.)  1917B-527. 

(Annotated.) 

3.  Instructions  Sustained.  In  an  action 
against  saloon  keepers  and  their  surety  for 
injuries  inflicted  by  a  drunken  father  on 
his  daughter,  instructions  submitting  to 
the  jury  four  essentials  of  defendants'  lia- 
bility, that  plaintifif  was  assaulted  and  in- 
jured, that  the  father  was  intoxicated, 
that  such  intoxication  was  caused  by  the 
defendants,  and  that  the  father  was  in  the 
habit  of  using  liquor,  are  proper,  although 
on  some  of  such  elements  the  plaintiff's 
evidence  was  undisputed,  since  the  credi- 
bility of  witnesses  is  for  the  jury,  who 
may  disregard  any  testimony.  Yonkus  v. 
McKay  (Mich.)  ini7E-458. 

4.  Evidence.  In  an  action  against 
saloon  keepers  and  their  surety  for  in- 
juries inflicted  by  a  drunken  father  on  his 
daughter,  evidence  that  on  the  day  of  the 
assault  such  father  had  no  money  with 
which  to  purchase  liquor  is  properly  ad- 
mitted as  bearing  on  the  issue  whether  at 
the  time  of  the  assault  he  was  in  fact  in- 
toxicated. Yonkus  V.  McKay  (Mich.) 
1917E-458. 

5.  Complaint  Sufllcient.  Where,  in  aa 
action  against  a  liquor  dealer  for  a  death 


caused  by  intoxication,  the  complaint  al- 
leged that  the  intoxication  incapacitated 
the  decedent  to  manage  his  horses  prop- 
erly, that  because  of  such  incapacity  th^y 
became  unmanageable,  and  that,  while  de- 
cedent was  intoxicated  and  the  team  in 
such  state,  he  leaned  out  over  the  dash- 
board, and  one  of  the  horses,  irritated  by 
his  acts,  kicked  him  on  the  head  and  face, 
inflicting  injuries  from  which  he  died, 
such  complaint  sufficiently  avers  connection 
between  decedent's  intoxication  and  his  in- 
jury.    White  V.  State  (lud.)  1917B-527. 

6.  Civil  Damage  Act — Evidence  Admis- 
sible— ^Possession  of  Money  by  Alleged 
Drunkard.  In  an  action  against  saloon 
keepers  and  their  surety  t«  recover  for  in- 
juries inflicted  upon  plaintiff  by  her  father 
when  drunk,  testimony  tending  to  show 
that,  on  the  day  of  the  assault,  such  father 
had  no  money  to  buy  liquor  is  admissible 
to  impeach  the  father's  testimony  that  he 
had  money,  such  matter  being  material  to 
the  issues.  Yonkus  v.  McKay  (Mich.) 
1917E-458. 

Note. 

Damages  for  death  by  intoxication. 
1917B-530. 

CIVIL  BIGHTS. 

1.  Who  Is  "Colored"  Person.  In  view 
of  S.  Car.  Const,  art.  3,  §  33,  declaring  void 
the  marriage  of  a  white  person  with  a 
negro  or  mulatto  having  one-eighth  or 
more  negro  blood,  the  child  of  a  union  of 
a  white  person  and  one  having  less  than 
one-eighth  negro  blood  is  entitled  to  exer- 
cise all  the  legal  rights  of  a  white  man, 
except  those  arising  from  a  proper  elasm- 
fication,  when  equal  accommodations  are 
afforded.  Tucker  v.  Blease  (S.  Car.) 
1916C-796. 

CIVIL  SEBVICE. 

1.  Application  to  Policemen.  The  civil 
service  provisions  of  section  1238  of  the 
Kan.  Gen.  Stat,  of  1909,  relating  to  com- 
mission government  in  cities  of  the  first 
class,  must  be  restricted  to  the  employ- 
ment of  subordinates  and  employees,  and 
cannot  apply  to  officers  within  the  con- 
templation of  section  2,  of  art.  15,  of  the 
Kan.  state  Constitution.  Haney  v.  Cofran 
(Kan.)  l'917B-660. 

CIVIL  WAB  VETEEANS. 

See  Pensions. 

CLAIM  AND  DELIVEEY. 
See  Replevin. 

CLAIM  OF  LIEN. 

Notice,    filing,    service,    see    Mechanics' 
Liens,  18-28. 


174 


CLASSIFICATION. 
Of  cities,  see  Municipal  Corporations,  8,  9. 

CLASS   LEQISLATION. 
See  Constitutional  Law,  63-70,  87. 


CLERICAL  EBROBS. 

Disregard,  in  statute,  see  Statutes,  97. 

CLOUD  ON  TITLE. 

Injunction  to  prevent,  see  Injunctions,  6. 
Sale  of  curtesy   interest  as  effecting,  see 
Judicial  Sales,  5. 

CLUBS. 
See  Societies  and  Clubs. 

COAL. 

See  Mines  and  Minerals. 

COAL  HOLE. 

Injury  to  pedestrian,  see  Negligence,  29- 
31. 

COAL  MINES. 
See  Mines  and  Minerals. 


DIGEST.  ^ 
1916C— 1918B. 

COLLISION. 
See  Ships  and  Shipping,  1,  2. 
Motorcycle  and  auto,  see  Automobiles,  13 

39-41,  46. 
Of  ship  with  bridge,  liability,  see  Bridges, 

1-4. 
Presumption  of  nofjligence  from  accident, 
see  Carriers  of  Passengers,  62. 


COASTING  IN  STEEET. 

of     child. 


Contributory     negligence 
Negligence,  87. 


see 


CODES. 

Codification,   effect   on   titles  of  statutes, 

see  Statutes,  4. 
Codification,    effect    on    construction,    see 

Statutes,  81. 
Revival  of  will'  by,  see  Wills,  111,  112. 
Construction    of    codicils,    see   Wills,   109, 

170. 

COLLAPSE  OF  BUILDING. 

Action  for,  see  Negligence,  76. 


COLLOQUIUM. 

In  complaint  for  defamation,  see  Libel 
and  Slander,  84,  85,  89,  91,  107. 

COLORED  PERSONS. 

Who  are,  see  Civil  Rights,  1. 

Race  discrimination,  see  Constitutional 
Law,  64,  111,  125. 

Validity  of  law  requiring  white  signers 
to  license  application,  see  Intoxica- 
ting Liq.uors,  44. 

Charge  of  placing  negro  over  white  girls, 
see  Libel  and  Slander,  17. 

Ordinances  segregating  races,  see  Muni- 
cipal Corporations,  59-71. 

Separation  of  races,  see  Schools,  39. 

Note. 
Separation  of  white  and  colored  pupils 
for  purposes  of  education.     1916C-806. 

COLOR  OF  TITLE. 
See  Adverse  Possession,  19,  20. 


COMBINATIONS    IN    RESTRAINT 

TRADE. 
See  Monopolies. 


or 


COMITY. 
See   Courts;   Extradition;   Foreign  Laws; 
Judgments. 

Adoption   proceedings   of  sister  state,  see 
Adoption  of  Children,  2,  4. 

COMMENT  ON  PUBLIC  MATTERS. 
Privileged  communications,  see  Libel  and 
Slander,  63-65. 


COLLATERAL  ATTACK. 

On  judgment,  when  permissible,  see  Judg- 
ments, 81,  82. 

On  judgment,  see  Quieting  Title,  12. 

On  order  of  Railroad  Commission,  see 
Railroads,  36. 

COLLECTIONS. 
See  Banks  and  Banking,  61-66. 
Agreement    for    commission    not    champer- 

tous,  see  Champerty  and  Maintenance. 

1. 


COMMERCE. 
Meaning,  see  Fish  and  Game.  21. 
Defined,  see  Interstate  Commerce,  1. 
Meaning,  see  Master  and  Servant,  41. 

COMMERCIAL  PAPER. 
See  Bills  and  Notes;  Checks. 

COMMISSIONERS      FOR     CONDEMNA- 
TION. 

Report  and  proceedings,  see  Eminent  Do- 
main, 64-67. 


COLLEGES  AND  UNIVERSITIES. 

County  bonds  to  aid  state  university,  see 
Counties,  IS. 


COMMISSION      FORM      OF      GOVERN- 
MENT. 
See  Municipal  Corporations,  10-14. 


COMMISSION  MERCHANTS— COMMON  LAW. 


175 


COMMISSION  MERCHANTS. 

Eegulatioii  of,  see  Constitutional  Law,  43; 
Licenses,  35. 


COMMISSIONS. 

Of  brokers,  see  Brokers,  3-11. 

Of  executors  and  administrators,  see 
Executors  and  Administrators,  62-64. 

On  sheriff's  sale,  see  Sheriffs  and  Con- 
stables, 13. 

COMMON  CARRIERS. 

See  Carriers;  Carriers  of  Goods;  Carriers 
of  Live  Stock;  Carriers  of  Passengers; 
Elevators;  Ferries. 

COMMON  LAW. 

1.  In  General. 

2.  To  What  Extent  in  Force. 

3.  In  Relation  to  Crimes. 

Eight  of  action  how  abolished,  see  Actions 
and  Proceedings,  3. 

Liability  of  bastard's  father  for  support, 
see  Bastardy,  9. 

A.pplication  of  eminent  domain,  see  Emi- 
nent Domain,  5. 

Presumption  as  to  common  law  of  sister 
state,  see  Evidence,  143-145. 

Common  law  indictment  copcluding  against 
statute,  see  Indictments  and  Informa- 
tions, 4. 

Common  law  survivorship,  see  Joint  Ten- 
ants,  1. 

Defense  of  privilege,  see  Libel  and  Slan- 
der, 75. 

Declaration  for  defamation,  see  Libel  and 
Slander,  88. 

Conspiracy  to  raise  prices  indictable,  see 
Monopolies,  8. 

Effect  on  duties  of  sheriff,  see  Sheriffs 
and  Constables,   1. 

As  inannlieable  to  attestation  of  wills,  see 
Wills,  20. 

Applif^abilitv  to  revocation  of  will,  see 
WiUs,  104. 

1.     IN  GENERAL. 

1.  Nature  and  Scope.  The  common  law 
consists  of  those  principles  and  rules  of 
action  which  have  been  from  time  to  time 
adopted  and  acted  on  by  the  courts  when 
administering  .iustice,  in  cases  not  gov- 
erned by  any  written  law  arising  out  of 
private  disputes  of  individuals.  Yazoo, 
etc.  R.  Co.  V.  Scott  (Miss.)  1917E-S80. 

Note. 
What     the     "common     law"     includes. 

1918A-968. 


2.  TO  WHAT  EXTENT  IN  FORCE. 

2.  Extent  of  Adoption.  The  common 
law  is  in  forco  in  this  state,  except  where 
it  has  been  modified  by  competent  govern- 


mental  authority.     Ingram-Dekle   Lumber 
Co.  V.  Geiger  (Fla.)  1918A-971. 

(Annotated.) 

3.  What  ia  Included.  Burns'  Ind.  Ann. 
St.  1914,  §  236,  adopting  all  rules  of  the 
common  law  of  England  in  force  in  the 
year  1607,  does  not  bind  the  court  to  fol- 
low an  English  decision  within  the  period 
named  if  such  decision  is  unreasonable 
and  unsuitable  to  American  institutions, 
as  the  theory  of  the  adopted  system  is 
that  the  law  consists,  not  in  the  actual 
rules  enforced  by  the  decisions  of  the 
courts,  but  only  in  the  principles  from 
which  these  rules  flow.  Ketelsen  v.  Slilz 
(Ind.)    1918A-965.  (Annotated.) 

Note. 
Extent    of    adoption    of    common    law. 
1918A-981. 

3.     IN  RELATION  TO  CRIMES. 

4.  Crimes.  Mont.  Rev.  Codes,  §  8275, 
denouncing  as  criminal  contempt  false  or 
grossly  inaccurate  reports  of  the  proceed- 
ings of  a  court,  when  construed  in  the 
light  of  the  constitutional  guaranty  of 
freedom  of  speech,  does  not  denounce  as  a 
crime  every  false  or  grrossly  inaccurate  re- 
port concerning  causes  finally  determined, 
when  no  public  interest  can  suffer  as  a 
consequence  of  the  publication,  although 
such  a  report  constituted  a  contempt  at 
common  law,  and  where  the  due  adminis- 
tration of  the  law  is  not  impeded,  and  a 
publication  to  the  effect  that  the  relator's 
first  case  was  thrown  out  of  court  on  a 
technicality,  and  his  second  case,  by 
which  he  sought  to  oust  a  county  com- 
missioner from  office  for  misappropriation 
of  public  funds,  was  thrown  out,  and  char- 
acterized by  the  court  as  a  "dirty  mess," 
and  that  if  a  man  steals  cattle  he  goes  to 
the  penitentiary,  while  if  the  county  com- 
missioners take  county  money  that  is 
simply  "a  dirty  mess,"  did  not  constitute 
contempt  within  the  statute.  State  v. 
District  Court  (Mont.)   1918A-985. 

(Annotated.) 

5.  Extent  of  Adoption.  The  common 
law,  as  far  as  applicable,  is  in  force  by 
virtue  of  Mont.  Rev.  Codes,  §  3552,  declar- 
ing that  the  common  law,  so  far  as  not 
repugnant  to  or  inconsistent  with  the  fed- 
eral or  state  Constitution  or  laAvs  of  the 
state,  is  the  rule  of  decision  in  all  the 
courts  of  the  state,  and  the  law  of  con- 
tempt as  understood  in  England  at  the 
time  of  the  Revolution  is  not  in  force  in 
the  state,  since  before  the  organization  of 
the  territory  the  law  in  England  had  been 
modified  by  various  acts  of  Parliament,  by 
decisions  of  the  courts,  and  by  disuse. 
State  v.  District  Court  (Mont.)  1918A- 
985. 

Note. 

Adoption  of  common  law  in  relation  to 
crimes.     1918A-990. 


176  DIGEST. 

1916C— 1918B 
COMIHON  LAW  LIABILITY. 
ABsnmption  of,  see  Carriers  of  GoodB,  3. 


COMMON  LAW   MAEEIAGE. 

See  Marriage,  6-10. 

COMMON  NUISANCE. 

Statutory  definition,  see  Nuisances,  7. 

COMMON  STOCS. 

See  Corporations,  59. 

COMMONWEALTH  ATTORNEYS. 
See  Prosecuting  Attorneys. 

COMMUNICATION. 
As  including  acts,  see  Witnesses,  19. 

COMMUNISTIC  SOCIETY. 
See  Eeligious  Societies,  1-4. 

COMMUTATION  OF  AWARD. 

Under  Workmen's  Compensation  Act,  see 
Master  and  Servant,  280. 

COMMUTE. 

As  used  in  Workmen's  Compensation  Act, 
see  Master  and  Servant,  280. 

COMPANIES. 
See  Corporations;  Partnerships. 

COMPANY. 

Defined,  see  Trademarks  and  Trade-names, 
6. 

COMPARISON   or   TYPEWRITING. 
Bee  Forgery,  3. 

COMPENSATION. 

Of  attorneys,  see  Attorneys,  17-35. 

Of  brokers,  see  Brokers,  3. 

Of  corporate  officers,  see  Corporations,  54, 
55. 

For  property  taken  for  public  use,  see 
Eminent  Domain,  29-55. 

Of  executors  and  administrators,  see 
Executors  and  Administrators,  62-64. 

Of  guardian,  see  Guardian  and  Ward,  29, 
30. 

Of  judges,  see  Judges,  3-8. 

Of  servants,  see  Master  and  Servant,  6-7. 

Under  Workmen's  Compensation  Act,  see 
Master  and  Servant,  270-283. 

Of  city  officers,  see  Municipal  Corpora- 
tions, 135,  136. 

Of  city  firemen,  see  Municipal  Corpora- 
tions, 161-163. 


Of  sheriffs,  see  Sheriffs  and  Constables,  12, 
13. 

Of  abutting  owner  for  closing  street,  see 
Streets  and  Highways,  4. 

Of  cotenant  for  selling  the  common  prop- 
erty, see  Tenants  in  Common,  10. 

COMPETENCY  OF  WITNESSEa 
See  Witnesses,  1-46. 

COMPETITION. 

See  Monopolies;  Trademarks  and  Trade- 
names. 

Bight  of  partner  to  compete  with  firm,  see 
Partnership,  16,  17. 

COMPETITIVE    BIDDING. 
On  school  building,  see  Schools,  10. 

COMPLAINT. 

Bee  Pleading,  4-6. 

To  magistrate,  when  privileged,  see  Libel 
and  Slander,  43-44. 

COMPLETED. 

Meaning,  see  Taxation,  78,  79. 

COMPOSITION   OF   CREDITORS. 
See  Accord  and  Satisfaction;  Assignments 
for  Benefit  of  Creditors;  Bankruptcy; 
Compromise  and  Settlement. 

COMPOUND  INTEREST. 
Accounting  by  trustee,  see  Interest,  5. 

COMPROMISE  AND  SETTLEMEliT. 

Authority  of  attorney,  see  Attorneys,  9. 
Bight  of  client  to  settle  his  case,  see  At- 
torneys, 16. 
Effect  on  attorney's  lien,  see  Attorneys,  43. 

1.  Agreement  Held  to  be  Compromise. 
Complainant  obtained  an  oil  and  gas  lease 
on  Indian  land  from  the  father  and  mother 
of  the  deceased  allottee,  claiming  to  be 
his  sole  heirs.  Before  the  lease  was  re- 
corded the  lessors  sold  the  land,  and  the 
purchaser  executed  a  lease,  afterward  ac- 
quired by  defendant,  which  went  into  pos- 
session, claiming  priority,  because  its 
lessors  obtained  title  before  the  recording 
and  without  knowledge  of  complainant's 
lease.  One  M.  obtained  a  conveyance  of 
the  land  from  other  relatives  of  the  de- 
ceased allottee,  and  claimed  adversely  to 
both  lessees.  Complainant  brought  suit 
against  all  adverse  claimants  and  obtained 
a  receiver.  Both  complainant  and  defend- 
ant made  offers  to  M.,  who  leased  to  de- 
fendant for  a  royalty  and  an  agreement  to 
carry  on  the  litigation  and  conditionally 
to   pay   a    bonus.     The    court   determined 


COMPUTATION  OF  TIME— CONFESSIONS. 


177 


that  the  father  was  the  sole  heir,  but  that 
defendant's  lease  from  his  grantee  was 
prior  because  of  complainant's  failure  to 
record.  Thereupon  M.  filed  an  ancillary 
bill  to  recover  the  royalty  on  oil  sold  by 
the  receiver.  Held,  that  the  lease  and 
contract  were  in  effect  a  compromise  and 
settlement  between  two  of  the  thrje  ad- 
verse claimants,  that  they  were  the  con- 
sideration for  the  surrender  by  M.  of  his 
claim  to  the  oil  rights,  and  that  he  was 
entitled  to  his  share  of  the  fund  in  the 
hands  of  the  receiver  in  accordance  with 
their  terms.  Kiefer  Oil,  etc.  Co.  t.  Mc- 
Dougal  (Fed.)  1916D-343. 

2.  Annulment  of  Compromise.  An 
agreement  of  compromise  and  settlement 
is  not  invalidated  because  of  a  mistake 
of  law  by  one  of  the  parties.  Kiefer  Oil, 
etc.  Co.  v.  McDougal  (Fed.)  1916D-343. 

(Annotated.) 

Note. 

Mistake  of  law  as  ground  for  annulment 
of  compromise.     1916D-347. 

COMPUTATION  OF  TIMB. 

See  Time. 

CONCEALED  WEAPONS. 
See  Weapons. 

CONCEALING  ASSETS. 

See  Bankrutcy,  30-36. 

CONCEALMENT  OF  ASSETS. 

Liability     of     corporation,     see    Corpora- 
tions, 24. 

CONCLUSIONS  OF  LAW. 

To  be  avoided,  see  Pleading,  3. 

CONDEMNATION. 
Meaning,  see  Eminent  Domain,  3. 

CONDITIONAL  PAKDON. 

See  Pardons,  4. 

CONDITIONAL  SALES. 
See  Sales,  61-65. 

CONDITIONS. 
Defined,  see  New  Trial,  37. 

CONDITIONS  PRECEDENT. 

To  exercise  of  police  power,  see  Constitu- 
tional Law,  20. 
To  discovery,  see  Discovery,  1. 
To  issue  of  mandamus,  sec  Mandamus,  23. 
12 


To  suit  for  reformation,  see  Rescission, 
Cancellation  and  Reformation,  4. 

To  suit  for  cancellation,  see  Rescission, 
Cancellation  and  Reformation,  21-26. 

Enforcement  of  contract,  see  Specific  Per- 
formance, 7. 

Compliance  with  mandatory  law,  see  Stat- 
utes, 19. 

CONDONATION. 
See  Divorce,  15-18,  32,  44-47. 

CONFESSIONS. 

1.  Admissibility. 

a.  In  General. 

b.  Determination  of  Question. 

c.  Effect  of  Improper  Admission. 

2.  Weight  and  Corroboration. 

1.     ADMISSIBILITY, 
a.    In  General. 

1.  Procurement  by  Fraud.  That  a  con- 
fession has  been  procured  by  deceptive 
practices  does  not  render  it  inadmdssible 
in  evidence.  People  v.  Buffom  (N.  Y.) 
1916D-962.  (Annotated.) 

2.  Effect  of  Intoxication.  Intoxication, 
less  than  mania,  does  not  exclude  a  con- 
fession made  during  its  continuance,  but  is 
a  fact  for  the  jury  tending  to  discredit' 
such  confession.  Lindsey  v.  State  (Fla.) 
1916C-1167.  (Annotated.) 

Notes. 

Intoxication  as  effecting  admissibility 
of  confession.     1916C-1168. 

Admissibility  of  confessions  obtained 
by  fraud  or  trick.     I916D-966. 

b.    Determination  of  Question. 

3.  Question  for  Jury.  In  a  trial  for 
murder  held  on  the  evidence  that  whether 
defendant's  confessions  were  voluntary 
was  for  the  jury.  People  v.  Koach  (N.  Y.) 
1917A-^10. 

€.    Effect  of  Improper  Admission. 

4.  In  a  prosecution  of  a  wife  for  the 
murder  of  her  husband,  who  died  of 
arsenical  poisoning,  the  erroneous  admis- 
sion of  evidence  of  the  illness  and  death 
of  defendant's  daughter,  presumedly  of 
poisoning,  long  after  the  death  of  the  hus- 
band, requires  a  reversal  when  considered 
in  connection  with  the  admission  of  a  con- 
fession procured  from  defendant  by  de- 
ception. People  V.  Buffom  (N.  Y.)  1916D- 
962. 

2.     WEIGHT  AND  CORROBORATION. 

6.  Corroboration  of  Confession.  Under 
N.  Y.  Code  Cr.  Proc,  §  395,  providing  that 
the  confession  of  the  accused  is  not  suffi- 


178 


DIGEST. 

19160— 1918B, 


cient  to  warrant  his  conviction  without 
additional  proof  that  the  crime  charged 
has  been  committed,  there  must  be,  in 
addition  to  the  confession,  proof  of  the 
corpus  delicti,  and  where  the  corpus  delicti 
Ib  established  by  independent  evidence,  a 
conviction  based  upon  defendant's  volun- 
tary confession  is  warranted.  People  v. 
Roach  (N.  Y.)  1917A-410. 

fi.  Where  the  voluntary  nature  of  con- 
fessions was  submitted  to  the  jury  under 
proper  instructions,  a  verdict  against  the 
defendant  is  conclusive  on  the  issue.  Peo- 
ple v.  Roach  (N.  Y.)  1917A-410. 

7.  Confession  as  Suflcient  Corroboration 
of  Accomplice.  Kirby's  Ark.  Dig.,  §  2384, 
provides  that  a  conviction  for  a  felony 
cannot  be  had  on  the  testimony  of  an  ac- 
complice, unless  corroborated  by  other 
evidence  tending  to  connect  defendant 
with  the  commission  of  the  offense,  and 
that  the  corroboration  is  not  sufficient  if 
it  merely  shows  the  offense  was  committed 
and  the  circumstances  thereof.  Section 
2385  declares  that  the  defendant's  confes- 
sion, unless  made  in  open  court,  will  not 
warrant  a  conviction,  unless  accompanied 
by  other  proofs  that  the  offense  has  been 
committed.  Held  that,  where  defendant's 
daughter  testified  that  defendant  had  had 
intercourse  with  her,  with  her  consent, 
defendant's  voluntary  confession  of  the 
same  fact  to  officers  after  his  arrest  for 
incest  constituted  sufficient  corroboration 
to  sustain  a  conviction.  Knowles  v.  State 
(Ark.)  1916C-568.  (Annotated.) 

Note. 

Confession  of  defendant  as  sufficient 
corroboration  of  accomplice.     1916C-570. 

CONFISCATION. 

Of  liquor  unlawfully  kept,  see  Intoxicat- 
ing Liquors,  17,  22. 

CONTIiICT  OF  LAWS. 

See  Bigamy,  2;  Limitation  of  Actions,  5. 
Law     governing     benefit     certificate,     see 

Beneficial  Associations,  8. 
Jurisdiction   of   civil   and   military   courts, 

see  Courts,  19. 
Descent   of   corporate    stock,   see   Descent 

and  Distribution,  4'. 
Operation     of     Workmen's     Compensation 

Act  outside  of  state,  see  Master  and 

Servant,  179-183. 
Measure   of   damages   for   tort   committed 

outside  state,  see  Master  and  Servant, 

370. 
Treaties   in   conflict  with   state   laws,   see 

Treaties,  7. 

1.  Sale  of  Intoxicants.  A  contract  for 
the  purchase  of  intoxicating  liquors  for  a 
quantity  in  excess  of  that  authorized  by 
law,  between  a  citizen  of  this  state  and 
a  citizen  of  some  other  state,  cannat  bo 


enforced  in  the  courts  of  our  state,  al- 
though the  laws  of  the  other  state  in  ques- 
tion may  authorize  such  contract.  Klein 
V.  Keller  (Okla.)  1916D-1070. 

2.  Where  two  parties  reside  in  different 
states,  both  of  which  authorize  the  sale  of 
intoxicating  liquors,  and  a  retail  dealer  in 
one  of  such  states  contracts  with  a  whole- 
sale dealer  in  the  other  of  such  states  for 
a  quantity  of  liquors,  such  contract  being 
made  with  no  intention  to  violate  the  laws 
of  either  state,  and  being  valid  in  either 
of  such  states,  and  being  such  a  contract 
as  affects  neither  the  statutes  nor  the 
policy  of  this  state,  it  may  be  enforced  in 
the  courts  of  this  state.  Klein  v.  Keller 
(Okla.)  1916D-1070. 

3.  Validity  of  Contract.  The  question 
whether  a  contract  is  legal  or  illegal  is 
judged  by  the  law  on  the  subject  in  the 
state  or  country  in  which  the  contract  is 
made;  the  general  rule  being  that  "a  con- 
tract good  where  made  is  good  every- 
where, and  a  contract  invalid  where  made 
is  invalid  everywhere."  The  exceptions 
to  the  general  rule  are:  "(1)  Where  the 
contract  in  question  is  contrary  to  good 
morals;  (2)  where  the  state  of  the  forum 
or  its  citizens  would  be  injured  through 
the  enforcement  by  its  courts  of  contracts 
of  the  kind  in  question;  (3)  where  the  con- 
tract violates  the  positive  legislation  of 
the  state  of  the  forum,  that  is,  is  contrary 
to  its  Constitution  or  statutes;  (4)  where 
the  contract  violates  the  public  policy  of 
the  state  of  the  forum.  Klein  v.  Keller 
(Okla.)  1916D-1070. 

4.  The  prosecution  of  transitory  actions 
in  a  state -or  country  other  than  that  in 
which  the  cause  of  action  arose  is  based 
on  the  principle  of  enforcing  a  foreign 
right  by  comity,  so  that,  if  under  the  lex 
loci  no  right  of  action  exists,  none  can  be 
enforced  in  the  jurisdiction  of  suit.  Os- 
borne V.  Grand  Trunk  R.  Co.  (Vt.)  1916C- 
74. 

5.  Liability  of  Wife  for  Household  Ex- 
penses. The  law  of  New  York  governs  a 
wife's  liability  for  the  purchase  price  of 
provisions  furnished  to,  and  consumed  by, 
the  family  in  that  state.  Mettler  v.  Snow 
(Conn.)   i917C-578. 

6.  Personal  Status.  Under  Civ.  Code 
Cal.  1872,  §  1387,  legitimatizing  the  issue 
of  marriages  null  in  law,  children  of  a 
bigamous  marriage  born  in  California  are 
entitled  to  their  father's  share  in  the  es- 
tate of  his  sister  dying  intestate  domi- 
ciled in  Connecticut,  since  the  personal 
status  as  to  legitimacy  established  by  an- 
other state  should  be  recognized  in  Con- 
necticut unless  violating  some  positive 
law  of  the  state,  contravening  its  estab- 
lished public  policy,  or  offending  against 
good  morals;  while,  had  the  mother  of 
the  children  been  a  deceased  sister  of  the 


CONFUSION. 


179 


intestate,  instead  of  their  father  a 
brother,  their  right  to  share  would  have 
been  complete  under  Connecticut  law. 
Moore  v.  Saxton  (Conn.)   1917C-534. 

(Annotated.) 

7.  Rights  Under  Benefit  Certlflcate.  In 
this  action  upon  a  certificate  issued  by  a 
fraternal  benefit  society,  organized  under 
the  statute  of  Illinois,  we  assume,  for  the 
purposes  of  this  case,  that  the  laws  of 
that  state  govern  the  rights  of  the  parties. 
Anderson  v.  Eoyal  League  (Minn.)  1917C- 
691. 

8.  Transfer  of  Corporate  Stock.  The 
laws  of  Kentucky  must  determine  the 
rights  of  a  judgment  creditor  of  the  trans- 
feror of  corporate  stock  in  "West  Virginia 
to  attach  the  stock  in  a  suit  in  Kentucky, 
where  no  common  law  or  statute  of  West 
Virginia  invalidating  the  transfer  is 
pleaded  or  proved.  Husband  v.  Linehan 
(Ky.)  1917D-954.  (Annotated.) 

9.  Discharge  of  Surety.  The  effect  of 
acts  of  the  creditor  to  discharge  a  surety 
is  to  be  determined  by  the  law  of  the 
place  where  the  contract  of  suretyship  is 
made.  Scandinavian  Amer.  Nat.  Bank  v. 
Kneeland  (Manitoba)  1917B-1177. 

10.  Enforcing  Foreign  Cdntract.  A  con- 
tract, though  valid  under  the  law  of  the 
place  where  it  was  made,  will  not  be  en- 
forced in  a  jurisdiction  where  to  so  en- 
force it  would  involve  a  disregard  of  the 
established  public  policy  of  that  jurisdic- 
tion. Grosman  v.  Union  Trust  Co.  (Fed.) 
1917B-613. 

11.  Existence  of  Corporation.  Whether 
a  foreign  corporation,  doing  business  in 
the  state  and  treated  as  a  de  facto  going 
concern,  has  a  legal  existence,  depends 
upon  the  laws  of  the  state  of  its  domicil. 
Dickev  v.  Southwestern  Surety  Ins.  Co. 
(Ark.)  1917B-634. 

12..  Legality  of  Contract.  Where  a  con- 
tract in  a  foreign  state  is  sought  to  be 
enforced  in  another  state,  the  lex  loci  con- 
tractus controls  the  question  of  the  legal- 
ity of  the  contract,  unless  otherwise  pro- 
vided in  the  contract,  and  the  laws  of  the 
state  where  the  contract  was  made  will  be 
observed,  in  determining  the  rights  and 
obligations  of  the  parties,  and  effect  given 
thereto,  unless  such  foreign  laws  are  ir- 
reconcilable with  the  local  laws,  or  in 
conflict  with  the  established  policy  of  the 
enforcing  state,  provided  that  such  laws 
of  the  foreign  state  are  pleaded  and 
proved.  Marx  v.  Hefner  (Okla.)  1917B- 
656. 

13.  Construction  of  Foreign  Contract. 
In  enforcing  a  Missouri  contract,  the 
courts  of  Indiana  are  required  to  give  full 
faith  and  credit  to  the  statutes  of  Mis- 
souri, as  construed  by  its  courts.     Travel- 


ers'   Protective    Assoc,    v.    Smith    (Ind.) 
1917E-1088. 

14.  Construction  of  Contract  of  Sale. 
Where  a  letter  offering  to  buy  lumber  was 
received  by  the  seller  at  its  place  of  busi- 
ness in  Ohio  where  the  letter  of  accept- 
ance was  mailed  and  from  which  the  lum- 
ber was  shipped  to  points  outside  Ohio, 
the  contract  is  an  Ohio  contract,  the  con- 
struction of  which  is  controlled  by  the 
laws  of  that  state.  W.  G.  Ward  Lumber 
Co.  V.  American  Lumber,  etc.  Co.  (Pa.) 
1918A-451. 

Note. 

Presumption  as  to  knowledge  of  foreign 
law.     1916D-1072. 

CONFUSION. 

1.  Confusion  by  Mistake  or  Accident,  179. 

2.  Confusion  by  Consent  of  Owners,  180. 

3.  Confusion  by  Wrongful  Act,  180. 

Rights   of   mortgagee,   see    Chattel   Mort- 
gages, 24. 

1.  CONFUSION  BY  MISTAKE  OB  ACCI- 
DENT. 

1.  Confusion  by  Inevitable  Accident. 
Where  a  confusion  of  goods  is  the  result 
of  inevitable  accident,  the  several  owners 
are  tenants  in  common  in  the  whole  mass 
in  proportion  to  the  amount  of  property 
contributed  thereto  by  each.  In  re 
Thompson   (Iowa)    1916D-1210, 

2.  Loss  FalUng  on  Person  Causing  Con- 
fusion. Since  the  doctrine  of  confusion 
of  goods  is  the  protection  of  the  innocent 
owner,  the  resulting  loss  falls  upon  the 
person  causing  the  confusion,  in  case  he 
is  unable  to  distinguish  his  property. 
In  re  Thompson  (Iowa)   1916D-1210. 

(Annotated.) 

Note. 

Confusion  of  goods  resulting  from  mis- 
take or  accident.     1918A-746. 

3.  Apportionment  of  Proceeds.  In  an 
action  to  recover  the  proportionate  share 
of  property  or  goods  confused  by  another, 
it  is  not  necessary  to  identify  exact  prop- 
erty, and  where  the  goods  confused  could 
have  been  separated  by  the  holder,  but 
were  not,  he  is  liable  to  the  owner  for 
the  average  price  received  at  the  sale  of 
such  goods.  Hobbs  v.  Monarch  Refriger- 
ating  Co.    (111.)    1918A-743. 

4.  Effect  of  Accidental  Confusion. 
Where  poultry  in  a  warehouse  becomes 
mixed  by  inevitable  accident,  the  original 
owners  become  tenants  in  common  of  the 
mass,  bearing  proportionately  any  loss, 
and  being  in  equity  entitled  to  their  just 
pronortion  of  the  poultry.  Hobbs  v.  Mon- 
arch Refrigerating  Co.  (111.)  1918A-743. 

(Annotated.) 


180 


DIGEST. 

1916C— 1918B. 


2.     CONFUSION      BY      CONSENT      OF 
OWNEHS. 

5.  Confusion  by  Consent.  Where  there 
is  a  confusion  of  goods  by  consent  of  the 
parties,  their  rights  in  the  goods  would 
rest  upon  the  contract  involved  in  such 
consent,  with  a  presumption  that  they 
were  tenants  in  common  therein.  In  re 
Thompson  (Iowa)   1916D-1210. 

8.     CONFUSION  iBY  WRONGFUL  ACT. 

6.  Wrongful  Confusion.  Where  goods 
are  wrongfully  mixed,  the  party  whose 
wrong  causes  the  confusion  must  bear  the 
loss,  unless  the  property  consists  of  parts 
of  equal  value,  and  the  value  of  each  part 
with  reference  to  the  value  of  the  whole 
is  ascertainable,  when  the  parties  will  be 
tenants  in  common  and  each  entitled  to 
his  proportion  thereof.  In  re  Thompson 
(Iowa)  1916D-I210. 

7.  Confusion  by  Negligence.  Where  a 
confusion  of  goods  is  caused  through  mis- 
take or  negligence  without  actual  fraud, 
the  person  causing  the  confusion  must 
bear  the  loss,  unless  -he  can  designate  his 
own  property.  In  re  Thompson  (Iowa) 
1916D-1210. 

8.  Fraudulent  confusion  of  a  debtor's 
property  with  that  of  another  in  one  fund 
converts  the  claim  of  the  injured  creditor 
into  a  priority  of  right  on  the  commingled 
fund.  Gurney  v.  Tenney  (Mass.)  1918A- 
739.  (Annotated.) 

9.  Fraudulent  Confusion.  There  being  a 
fraudulent  confusion  of  property,  and 
plaintiff  tracing  that  of  his  debtor  into 
the  common  mass,  defendant  has  the  bur- 
den of  proof  as  to  separation.  Gurney  v. 
Tenney  (Mass.)  1918A-739. 

(Annotated.) 
Note. 
Tortious  or  wrongful  confusion  of  goods. 
1918A-740. 


CONNECTING  CARRIERS. 
See  Carriers  of  Goods,  24-31. 

CONNIVANCE. 

See  Divorce,  19-22. 

No  defense,  see  Adultery,  4, 

CONSENT. 

Confusion  by,  effect,  see  Confusion,  5. 
As  defense  to  crime,  see  Criminal  Law,  9. 
Of  landowner  to  improvement  as  essential 

to  lien,  see  Mechanics'  Liens,  17. 
Absence   of   consent,   specific   performance 

denied,  see  Specific  Performance,  1. 

CONSENT  JUDGMENTS. 
Bee  Judgments,  43-45. 


CONSERVATOR  AND  WARD. 
Sea  Guardian  and  Ward. 

CONSERVATORS  OF  THE  PEACE. 

Notary    as    conservator,    gee    Breach    of 
Peace,  9. 


CONSERVATORY  WRITS. 

No  action  on  dissolution,  see  Malicious 
Prosecution,  3. 

CONSIDERATION. 

See  Bills  and  Notes,  6,  12-16;  Deeds,  23. 

Written  contract,  parol  proof  of  considera- 
tion, see  Evidence,  122,  129. 

Statement  of  in  memorandum,  see  Frauds, 
Statute  of,  18. 

Partial  failure  of  in  antenuptial  contract, 
effect,  see  Husband  and  Wife,  22. 

Of  mortgage  debt,  see  Mortgages  and 
Deeds  of  Trust,  19,  20. 

For  warranty,  see  Sales,  12. 

Furnishing  consideration  by  third  party 
as  raising  trust,  see  Trusts  and  Trus- 
tees, 16,  17. 

CONSORTIUM. 
Husband's  action  for  loss  of,  see  Husband 
and  Wife,  35. 

CONSPIRACY. 

1.  Criminal  Conspiracy,  180. 

a.  Eight  to  Prosecute  One  of  Several 

Conspirators,  180. 

b.  Indictment,  180. 
e.  Evidence.  181. 

2.  Civil  Liability,  181. 

a.  Character   of   Act   and   Nature    of 

Liability,  181. 

b.  Plea.ding,'^182. 

c.  Evidence,  182. 

Evidence,  declarations  of  co-conspirator, 
see  Admissions  and  Declarations,  12. 

Survival  of  action,  see  Executors  and  Ad- 
ministrators, 84. 

To  raise  prices,  see  Monopolies,  7,  8. 

1.     CRIMINAL  CONSPIRACY. 

a.     Right    to    Prosecute    One    of    Several 
Conspirators. 

1.  Effect  of  Acquittal  of  One  Defend- 
ant. Upon  the  indictment  of  two  persons 
alone  for  criminal  conspiracy,  the  acquit- 
tal of  one  is  an  acquittal  of  the  other. 
Gordon   v.   McLeam    (Ark.)   1918A-482. 

b.     Indictment. 

2.  Variance  Immaterial.  The  variance 
between  an  indictment  alleging  that  de- 
fendants wrongfully  agreed  to  raise  the 
price   of   milk   to   13   cents  and   the   proof 


CONSPIRACY. 


181 


that  after  the  agreement  they  sold  milk 
at  12^  cents  is  immaterial,  for  the  gist  of 
the  offense  was  the  unlawful  combination 
to  raise  the  price,  sustained  by  proof  of 
agreement  so  to  do,  and  that  in  conse- 
quence thereof  defendants  did  raise  the 
price.  State  v.  Craft  (N.  Car.)  1917B- 
1013. 

3.  Defenses  —  Inducement  for  Purpose 
of  Prosecution.  An  indictment  charged  a 
conspiracy  to  pervert  the  due  administra- 
tion of  the  laws.  The  proof  was  of  an 
agreement  by  defendants  with  a  detective 
in  the  employ  of  the  state's  law  oflBeers 
to  detect  defendants  in  corrupt  conduct, 
by  which  the  detective  was  to  pay  them 
money  for  their  votes  as  members  of  a 
city  council.  Held  that,  as  the  indictment 
charged  but  one  conspiracy,  to  which  the 
detective  was  proper  to  be  a  necessary 
party,  and  as  his  object  was  to  expose  cor- 
ruption, and  prevent  injury  to  the  public, 
there  was  a  failure  to  prove  a  conspiracy 
to  pervert  the  due  administration  of  the 
laws.  State  v.  Dougherty  (N.  J.)  1917l>- 
950.  (Annotated.) 

c.     Evidence. 

4.  Proof  by  Circumstances.  It  is  not 
necessary  to  prove  a  conspiracy  by  posi- 
tive evidence;  but  its  existence  may  be 
inferred  from  circumstances  attendant 
upon  the  doing  of  the  act,  and  from  the 
subsequent  conduct  of  the  parties.  Brind- 
ley  v.  State  (Ala.)  1916iM77. 

5.  Where,  on  the  trial  of  C,  a  political 
leader,  for  selling  a  nomination  to  W.  for 
a  public  office  there  was  evidence  suffi- 
cient to  make  a  question  of  the  existence 
of  a  conspiracy  between  C,  W.  and  a 
third  person  to  bring  about  the  nomina- 
tion of  W.,  the  testimony  of  a  witness  as 
to  what  W.  said  to  him  after  W.  and  C. 
and  the  third  person  had  conferred  about 
the  nomination,  and  later  at  the  time  he 
procured  a  loan  for  W.  on  a  note,  and  be- 
fore the  money  was  paid  over  to  him,  is 
admissible.  People  v.  Cassidy  (N.  Y.) 
1916C-1009. 

6.  Acts  and  Declarations  of  Co-consplr- 
ators  Admissible.  Where  evidence  of  a 
conspiracy  has  been  given  to  make  the 
question  of  its  existence  one  for  the  jury, 
any  evidence  of  the  acts  and  declarations 
of  the  conspirators  in  furtherance  of  the 
common  purpose  is  competent,  and  it  is 
unnecessary  that  the  conspiracy  should  be 
charged  in  the  indictment  to  make  the 
proof  oomoetent.  People  v.  Cassidy  (N.  Y.) 
1916C-1009. 

7.  Relationship  of  Parties.  In  deter- 
mining whether  accused  and  his  wife  were 
co-conspirators  in  killing  deceased,  the 
fact  of  their  relationship  may  be  consid- 
ered.    State   V.   Inlow   (Utah)    1917A-741. 

8.  Circumstantial  Evidence.  While  a 
conspiracy   cannot  be  established  by  the 


acts  and  declarations  of  only  one  of  the 

alleged  co-conspirators  so  as  to  render  such 
acts  and  declarations  admissible  against 
accused,  yet  a  conspiracy  may  be  estab- 
lished by  circumstantial  evidence,  and  in 
such  case  the  acts  of  one  co-conspirator 
are  admissible  against  the  other.  State 
▼.  Inlow  (Utah)  1917A-741. 

9.  Sufficiency  of  Evidence.  In  a  prosecu- 
tion for  conspiracy,  the  question  whether 
the  defendants  were  actuated  by  lawful 
or  unlawful  motives  is  held  to  be  a  ques- 
tion of  fact  on  which  the  jury's  finding 
is  not  reviewable.  Hummelshime  v.  State 
(Md.)  1917E-1072. 

10.  investigation  by  Detective.  In  a 
prosecution  for  conspiring  to  demand 
money  to  corrupt  a  city  council,  testi- 
mony of  a  detective,  engaged  to  entrap 
defendants,  and  the  person  from  whom 
the  money  was  demanded,  as  to  whether 
he  had  investigated  other  members  of  the 
city  council,  and  as  to  whether  it  was 
necessary  to  investigate  other  persons  in 
connection  with  the  water  system,  is  prop- 
erly excluded.  Hummelshime  v.  State 
(Md.)  1917E-1072. 

11.  In  prosecution  for  conspiracy,  where 
citizens  had  engaged  a  detective  to  ascer- 
tain if  there  was  corruption  in  a  city 
council,  the  refusal  of  the  court  to  require 
an  attorney,  who  had  been  engaged  to  en- 
gage such  detective,  to  divulge  the  names 
of  his  clients,  is  not  improper,  where  an 
opportunity  was  offered  by  the  court  and 
accepted  by  the  defense  to  ask  any  wit- 
ness if  he  were  one  of  the  attorney's 
clients.  Hummelshime  t.  State  (Md.) 
1917E^1072. 

12.  Mailing  of  Letter.  In  a  prosecution 
for  conspiring  to  demand  money  to  cor- 
rupt a  city  council,  where  the  person  from 
whom  defendants  were  charged  to  have 
demanded  the  money  was  a  detective  en- 
gaged to  entrap  them,  testimony  by  the 
detective  that  the  mail  chute  in  an  office 
building  in  which  he  placed  a  letter  to  a 
defendant  was  connected  with  the  mail 
box  below  is  admissible.  Hummelshime  v. 
State  (Md.)   1917E-1072.         (Annotated.) 

2.     CIYIL  LIABILITY. 

a.     Character  of  Act  and  Nature  of  Lia- 
bility. 

13.  Petition  to  Bevoke  License.  De- 
fendants' motive  being  the  public  good, 
and  they  being  not  actuated  by  malice  or 
intent  to  injure  plaintiff,  their  action  in 
signing  and  presenting  such  petition  was 
not  a  conspiracy,  since  a  "civil  conspir- 
acy" is  a  combination  between  two  or 
more  persons  to  accomplish  by  concert  of 
action  an  unlawful  purpose,  or  to  accom- 
plish a  purpose  not  in  itself  unlawful  by 
unlawful  means;  the  damage  being  the 
gist  of  any  action.  McKe©  v.  Hughes 
(Tenn.)   1918A-459. 


182 


DIGEST. 


1916C 

14.  Gist  of  Civil  Action.  In  a  hus- 
band's action  against  the  relatives  of  his 
wife  for  conspiring  to  alienate  her  affec- 
tions, a  recovery  may  be  had  against  two 
or  more  of  the  defendants  if  the  charge 
of  conspiracy  is  sustained,  and  against 
any  one  or  more  for  individual  respon- 
sibility if  no  conspiracy  is  proved,  since 
the  damage  to  the  plaintiff  and  not  the 
conspiracy,  is  the  gist  of  the  right  of  ac- 
tion. Eatcliffe  v.  Walker  (Va.)  1917E- 
1022. 

15.  Qist  of  Civil  Action  for  Conspiracy. 
The  gist  of  the  action  of  conspiracy  is 
damage,  and  where  no  damage  is  proved 
the  action  cannot  be  maintained.  You- 
mans  v.  Hanna  (N.  Dak.)  1917E-263. 

(Annotated.) 

16.  Acts  Lawful  if  Done  by  Individual. 
Except  where  the  members  engaged  make 
what  would  otherwise  be  a  lawful  and 
innocent  act  a  nuisance  and  harmful. vrnat 
one  may  do  singly  a  number  may  do  to- 
gether. The  mere  fact  that  a  number  of 
persons  join  together  in  making  a  pur- 
chase of  banking  stock  upon  terms  and 
conditions  which  would  have  been  per- 
fectly lawful  for  one  to  do  by  himself 
does  not  render  such  transaction  unlaw- 
ful. Youmans  v.  Hanna  (N.  Dak.)  1917E- 
263. 

b.  Pleading. 

17.  Failure  of  Proof.  Under  Va.  Code 
1904,  §  3384,  providing  that,  if  at  the  trial 
of  any  action  there  is  a  variance  between 
proof  and  pleadings,  the  court,  if  substan- 
tial justice  will  be  promoted,  and  the 
opposite  party  will  not  be  prejudiced,  may 
allow  amendment  of  the  pleadings  to  con- 
form with  proof,  in  a  husband's  action 
against  the  relatives  of  his  wife  for 
alienation  of  her  affections,  a  charge  that, 
unless  the  plaintiff  prove  conspiracy  by 
all  the  defendants,  there  could  be  no  re- 
covery, is  properly  refused;  since  any 
variance  between  the  parties  alleeed  to  be 
liable  and  those  shown  by  proof  to  be  so 
can  be  cured  by  amendment  under  the 
statute.  Ratcliffe  v.  Walker  (Va.)  1917E- 
1022. 

c.  Evidence. 

18.  Evidence  of  Conspiring.  In  an  ac- 
tion by  a  husband  against  the  relatives  of 
his  wife,  who  had  left  him,  for  conspiring 
to  procure  a  separation,  plaintiff  need  not 
prove  that  the  defendants  came  together 
and  actually  agreed  in  terms  to  bring 
about  the  separation  and  to  pursue  the 
end  by  common  means;  it  being  sufficient 
if  it  was  shown  that  the  defendants  pur- 
sued the  same  object  by  their  acts  with 
a  view  to  its  attainment.  Ratcliffe  v. 
Walker   (Va.)   1917E-1022. 

19.  Declarations  of  Co-consplrators — 
Proof  of  Conspiracy  as  Prerequisite  to 
Adniisslon.  Tn  order  that  the  deolaratirrs 
and  conduct  of  third  persons  may  be  ad- 


— 1918B. 

missible  against  defendant,  it  is  neces- 
sary to  show  by  independent  evidence 
that  there  was  a  combination  between 
them  and  defendants,  but  it  is  not  neces- 
sary to  show  by  independent  evidence 
that  the  combination  was  criminal  or 
otherwise  unlawful,  and  the  element  of 
illegality  may  be  shown  by  the  declara- 
tions themselves.  Hitchman  Coal,  etc.  Co. 
v.  Mitchell  (U.  S.)  1918B-461. 

20.  Where  H.  was  engaged  in  an  effort 
to  organize  the  coal  miners  of  a  particular 
district  as  the  representative  of  a  volun- 
tary association  of  which  defendants  were 
active  members,  and  in  the  execution  of  a 
purpose  to  which  they  had  given  consent, 
and  in  which  some  of  them  were  actively 
co-operating,  his  declarations  and  conduct 
while  so  doing  are  evidence  against  de- 
fendants. Hitchman  Coal,  etc.  Co.  v. 
Mitchell  (U.  S.)   1918B-461. 

CONSCRIPTION. 
See  Army  and  Navy,  1-9. 

CONSOLIDATION  OF  SCHOOLS. 
See  Schools,  3,  4. 

CONSTABLES. 

See  Sheriffs  and  Constables. 

CONSTITUTIONAL  LAW. 

1.  Nature    and    Operation    of    Constitu- 
tion, 183. 

2.  Distribution  of  Powers  of  Government, 
184. 

a.  In  General,  184. 

b.  Legislative,  184. 

c.  Judicial,   184. 

3.  Police  Power,  185. 

a.  In  General,  185. 

b.  Scope  of  Power,  185. 

c.  Regulation  of  Business,  186. 

d.  Conflict    With    Federal    Constitu- 
tion, 187. 

4.  Due  Process  of  Law,    187. 

5.  Equal  Protection  of  Laws,  188. 

a.  In  General,  188. 

b.  Judicial   Review  of  Classification, 
188. 

6.  Impairment    of    Obligation     of    Con- 
tracts, 189. 

7.  Privileges  and  Immunities,  189. 

8.  Personal  and  Religious  Liberty,  190. 

9.  General  and  Special  Laws,  190. 

10.  Delegation  of  Legislative  Power,  190. 

11.  Self-executing  Provisions.  190. 

12.  General  Principles  Governing  D.-'ter- 
mination  as  to  Constitutionality  of 
Statutes,   191. 

a.  In    General,   191. 

b.  Who     may     Raise    Constitutional 
Question,  192. 

c.  Avoidance  of  Determination.  193. 

d.  Waiver   of  Objection,  19.S. 

e.  Construction  in  Favor  of  Validity, 
19.^,. 

f.  Presumption  in  Favor  of  Validity 
194. 


CONSTITUTIONAL  LAW. 


183 


g.  "Wisdom  of  Statute,  195. 
h.  Declaring      Statute      Unconstitu- 
tional,   196. 

13.  Construction  of  Constitution,   196. 

14.  Amendment  of  Constitution,  197. 

a.  Adoption,   197. 

b.  Construction  and  Operation,  197. 
See  Carriers,  1,  2,  8-10,  12,  15-17;  Coun- 
ties, 1-4,  6-8,  9,  18;  Divorce,  1-3; 
Elections,  1,  2;  Eminent  Domain,  2,  6, 
7,  14,  15,  25-27,  59,  97-99;  Fish  and 
Game,  6-8,  10-13,  15-22,  25-27;  Food, 
8-11,  15-20;  Former  Jeopardy,  1,  2, 
6-8,  12;  Fraudulent  Sales  and  Con- 
veyances, 15-17;  Gas  and  Gas  Com- 
panies, 1,  6,  -7;  Guardian  and  Ward, 

1,  2,  4;  Habeas  Corpus,  13;  Husband 
and  Wife,  5;  Imprisonment  for  Debt 
In  Civil  Cases,  1,  2;  Indictment  and 
Informations,  7;  Initiative  and  Ref- 
erendum, 1-6;  Injunctions,  2,  8;  Inn- 
keepers, 3;  Interstate  Commerce,  1,  5, 
6,  9;  Intoxicating  Liquors,  1,  6,  12-31; 
44,  58-69.  82;  Irrigation,  12;  Judges, 
3,  4,  8,  13;  Jury,  1-7,  32;  Licenses  2, 
17,  19,  20,  27,  29,  30,  31,  37;  Mechan- 
ics' Liens,  1,  2,  14,  31,  38;  Militia,  8, 
12;  Municipal  Corporations,  1,  3,  7, 
11-13,  19,  40,  42,  55,  59-71,  79,  84,  88, 
117-119,  146,  150,  159,  164;  Public 
Contracts,  1-3;  Railroads,  6;  Schools, 
26,  33-40,  44;  Sentence  and  Punish- 
ment, 1-5,  8,  9,  13-17;  Stare  Decisis, 

2,  4,  5.  11;  Streets  and  ^Highways,  4, 
5;  Street  Railways,  3;  Taxation,  1, 
6-11.  25,  26,  31,  32,  36,  37,  41,  54,  55, 
60.  61,  67,  72.  74,  7S.  79,  95.  flu.  98,  120, 
122,  123,  173,  181,  190-193,  199; 
Theaters  and  Amusements,  1,  3,  4; 
Towns,  1,  2;  Treaties,  5;  Trees  and 
Timber,  2,  6-18;  Waters  and  Water- 
courses, 5;  Weights  and  Measures,  1. 

Farm  Loan  Act,  see  Agriculture,  6-9. 

Pure  Seed  Law,  see  Agriculture,  12-15. 

Eegulation  alien  employment,  see  Aliens, 
9,  10. 

Selective  Draft  Act,  see  Army  and  Navy, 
3-9. 

Prohibiting  assignment  of  claim  to  non- 
resident, see  Assignments,  5,  6. 

Prohibiting  assignment  of  wages,  see  As- 
signments, 2. 

Regulations  for  bar  admission,  see  Attor- 
neys, 3. 

Eegulation  of  auctions,  see  Auctions  and 
Auctioneers,  1. 

Eegulation  of  motor  vehicles,  see  Auto- 
mobiles, 2,  3,  7,  9. 

Eequiring  courts  open  to  all,  see  Building 
and  Loan  Associations,  7. 

Eegulation  of  rates  of  fare,  see  Carriers 
of  Passengers,  5,  8-10. 

Regulation  of  jitneys,  see  Carriers  of  Pas- 
sengers, 88-91. 

Power  to  punish  for  conten;y)t,  see  Con- 
tempt, 3,  8-14. 

Rights  as  to  inheritance  and  devise,  see 
Descent  and  Distribution,  2. 


Regulation  of  employment  of  labor,  see 
Labor  Laws,  1,  3-9,  12-15,  17-22,  24- 
32. 

Scope  of  legislative  power,  see  Legisla- 
ture, 1,  2. 

Freedom  of  speech,  limitation  on  Con- 
gress, see  Libel  and  Slander,  1,  2. 

Right  to  apply  for  redress  of  grievances, 
privilege,  see  Libel  and  Slander,  61. 

Constitutionality  of  Employers'  Liability 
Act,  see  Master  and  Servant,  43-45. 

Constitutionality  of  Workmen's  Compensa- 
tion Acts,  see  Master  and  Servant, 
108,  110-168. 

Granting  new  trial  on  single  issue  not 
denial  of  due  process,  see  New  Trial, 
10. 

Granting  new  trial  on  single  issue  not 
denial  of  jury  trial,  see  New  Trial, 
11. 

Right  to  impose  condition  in  pardon,  see 
Pardons,  4. 

Eegulation  of  pawnbrokers,  see  Pawn- 
brokers, 1,  2. 

Regulation  of  optometrists,  see  Physicians 
and  Surgeons,  4. 

Regulation  of  drugless  practitioners,  see 
Physicians  and  Surgeons,  6,  7. 

Regulation  of  nurses,  see  Physicians  and 
Surgeons,  8-10. 

White  Slave  Act,  see  Prostitution,  14. 

Anti-nepotism  law,  see  Public  Officers,  16. 

Statute  creating  state  bond  fund,  see  Pub- 
lic Officers,  67-74. 

Public  utilities  act,  see  Public  Service 
Commissions,  8-10,  19,  20,  23,  27,  28. 

Exemption  from  taxes  and  recording  fees, 
see  Recording  Acts,  4. 

Seizure  of  private  papers,  see  Searches 
and  Seizures,  2. 

Limitation  on  state's  power,  see  States, 
2. 

T'itle  and  subject  of  statutes,  see  Stat- 
utes, 1-14. 

1.  NATURE  AND  OPEEATION  OF 
CONSTITUTION. 

1.  Rights    Protected    by    Constitution. 

The  provisions  of  the  Constitution,  Nev. 
state  or  federal,  do  not  cover  rights,  privi- 
leges, and  obligations  not  specified  and 
not  existing  or  understood  at  the  time 
of  its  adoption,  or  not  in  force  by  long 
acquiescence,  or  by  continued  official  or 
public  approval.  Worthington  v.  District 
Court  (Nev.)  1916E-1097. 

2.  Constitution  as  "Law."  A  statute 
and  a  Constitution  though  of  unequal  dig- 
nity, are  both  "laws,"  and  each  rests  upon 
the  will  of  the  people.  State  v.  Brantley 
(Miss.)  1917E-723. 

3.  The  spirit  of  the  Federal  Constitu- 
tion does  not  oppose  but  favors  congres- 
sional action  which  makes  for  the  promo- 
tion of  obedience  to  the  laws  of  the  sev- 
eral states.  State  v.  Missouri  Pacific  R. 
Co.  (Kan.)  1917A-612. 


184 


DIGEST. 

1916C— 1918B. 


2.     DISTRIBUTION     OF    POWERS     OF 
GOVERNMENT. 

a.  In  General. 

4.  Powers  of  Federal  Government.  Un- 
der Const.  U.  S.  Amend.  10  (9  Fed.  St. 
Ann.  356),  declaring  that  the  powers  not 
delegated  to  the  United  States  by  the 
Constitution  nor  prohibited  by  it  to  the 
states  are  reserved  to  the  states  respec- 
tively, or  to  the  people,  the  government 
of  the  United  States  is  one  of  enumerated 
powers,  and  can  claim  no  powers  not 
granted  to  it  by  the  Constitution,  and  the 
powers  actually  granted  must  be  such  as 
are  given  expressly  or  by  necessary  impli- 
cation. People  V.  Brady  (111.)  1917C- 
1093. 

5.  Bespective  Powers  of  State  and  Fed- 
eral Government.  The  power  to  regulate 
property  within  the  limits  of  the  state, 
the  modes  of  acquiring  and  transferring 
it,  and  the  rules  of  descent  and  distribu- 
tion dealt  with  by  trustees,  executors,  etc., 
are  subjects  belonging  exclusively  to  the 
jurisdiction  of  the  state,  not  subject  to 
federal  control.  People  v.  Brady  (Dl.) 
1917C-1093. 

b.     Legislative. 

6.  Legislative  Power  to  Begnlate.    The 

constitution  of  Ohio  vests  the  judicial 
power  of  this  state  in  the  courts  and  spe- 
cifically defines  and  limits  both  the  origi- 
nal and  the  appellate  jurisdiction  of  the 
courts  of  appeals.  The  general  assembly 
of  the  state  cannot  enlarge  or  restrict 
this  jurisdiction  in  matters  judicial,  but 
may  provide  by  law  for  the  exercise  of 
that  jurisdiction.  Thompson  v.  Redington 
(Ohio)   1918A-1161. 

7.  Scope  of  Legislative  Power.  Under 
Me.  Const,  art.  4,  pt.  3,  §  1,  giving  the 
legislature  full  power  to  make  and  estab- 
lish all  reasonable  laws  and  regulations 
for  the  defense  and  benefit  of  the  people 
of  the  state  not  repugnant  to  the  Consti- 
tution, the  powers  of  the  legislature  are 
absolute,  except  as  limited  by  the  Consti- 
tution. Laughlin  v.  Portland  (Me.)  1916C- 
734. 

8.  Begnlation  of  Public  Utilities.  There 
is  nothing  in  the  constitution  that  pro- 
hibits the  legislature  from  enacting  laws 
to  regulate  and  control  public  utility  cor- 
porations. Idaho  Power,  etc.  Co.  v. 
Bloomquist  (Idaho)   1916E-282. 

9.  After  the  adoption  of  section  14,  art. 
1,  of  the  Idaho  constitution,  it  only  re- 
mained for  the  legislature  to  provide  the 
procedure  to  carry  into  effect  the  provi- 
sions of  said  section.  The  legislature, 
however,  may  add  to  the  public  uses 
enumerated  in  said  section,  but  it  cannot 
annul  or  repeal  any  of  the  uses  therein 
specified.  Blackwell  Lumber  Co.  v.  Em- 
pire Mill  Co.  (Idaho)  1918A-189. 


e.     Judicial. 


10.  Formolation   of   Public   Policy.     I 

supreme  court  can  announce  no  public 
policy  of  its  own,  but  merely  what  it  be- 
lieves to  be  the  public  policy  of  the  peo- 
ple of  the  commonwealth  by  which  it  is 
created.  It  has  no  power  to  create  or 
command  but  merely  to  construe;  and 
where  the  people  have  spoken,  either  in 
the  form  of  a  constitutional  enactnuent 
or  a  valid  and  constitutional  statute,  it 
must  be  controlled  by  their  decisions  and 
conclusions.  Northern  Pacific  R.  Co.  v. 
Richland  County  (N.  Dak.)  1916E-574. 

11.  Province  of  Courts.  In  the  division 
of  powers,  it  is  the  function  of  the  legisla- 
tive department  to  make  the  laws,  and 
the  function  of  the  judicial  department  to 
enforce  them;  and  the  courts  are  no  more 
responsible  for  what  a  law  may  contain, 
so  long  as  it  is  a  valid  enactment,  than  is 
the  legislature  responsible  for  the  manner 
in  which  the  courts  may  enforce  the  law. 
The  responsibilities  of  the  two  depart- 
ments are  as  separate  as  their  functions. 
Van  Winkle  t.  State  (Del.)  1916D-104. 

12.  Validity  of  Statute.  Coroner's  Act 
(Hurd's  111.  Rev.  St.  1913,  c.  31),  §  14, 
making  it  the  duty  of  coroners'  juries  to 
inquire  how,  in  what  manner,  and  by 
whom  or  what  dead  bodies  came  to  their 
death,  and  of  all  other  facts  of  and  con- 
cerning the  same,  together  with  all  mate- 
rial circumstances  in  any  wise  related  to 
or  connected  with  the  death,  and  to  make 
up  and  sign  a  verdict  and  deliver  it  to  the 
coroner,  is  not  unconstitutional  as  invest- 
ing the  coroner's  jury  with  judicial  power 
in  violation  of  Const,  art.  6,  S  1,  by  which 
all  judicial  powers  are  vested  in  the 
courts,  as  "judicial  power"  is  the  power 
which  adjudicates  upon  and  protects  the 
rights  and  interests  of  individual  citizens, 
and  to  that  end  construes  and  applies  the 
laws,  and  this  power  involves,  not  only  the 
power  to  hear  and  determine  a  cause,  but 
also  the  power  and  jurisdiction  to  adjudi- 
cate and  determine  the  rights  of  the  par- 
ties to  the  controversy  and  to  render  a 
judgment  or  decree  which  will  be  effectual 
and  binding  upon  them  in  respect  to  their 
personal  or  property  rights  in  controversy 
in  such  proceedings,  and  the  power  to  hear 
without  the  power  to  adjudicate  and  deter- 
mine the  rights  of  the  parties  is  not  judi- 
cial power,  as  that  term  is  used  in  the 
constitution.  Devine  v.  Brunswick-Balke- 
Collender  Co.  (111.)  1917B-887. 

13.  Delegation  of  Judicial  Power.  It 
docs  not  follow  from  pronouncements  that 
judicial  power  may  not  be  delegated,  that 
none  but  duly  constituted  constitutional 
courts  may  exercise  judicial  power,  and  ft 
may  be  delegated  to  and  exercised  by  spe- 
cial tribunals  or  officers  exercising  quasi 
judicial  functions  and  by  purely  admiuis- 


CONSTITUTIONAL  LAW. 


185 


trative  bodies  upon  whom  such  functions 
have  been  conferred.  Hunter  v.  Colfax 
Consolidated  Coal  Co.  (Iowa)  1917E-803. 

3.     POLICE  POWER, 
a.     In  General. 

14.  The  "police  power"  of  the  state  is 
an  attribute  of  sovereignty,  and  when 
exercised  within  its  scope  is  supreme,  to 
the  exclusion  of  the  power  of  the  general 
government.  It  is  the  power  of  govern- 
ment inherent  in  every  sovereignty — that 
is,  the  power  to  govern  men  and  things — 
and,  when  exercised  by  a  state  sover- 
eignty, extends  to  such  restraints  and 
regulations  as  are  reasonable  and  proper 
to  protect  the  lives  and  property  of  its 
citizens  and  to  promote  the  order  and  wel- 
fare of  society.  Van  Winkle  v.  State 
(Del.)   1916D-104. 

15.  A  rightful  exercise  of  the  police 
power  is  not  a  violation  of  the  Fourteenth 
Amendment,  U.  S.  Const.,  even  though 
property  interests  are  affected.  People  v. 
Weiner  (111.)   1917C-1065. 

16.  Whether  a  statute  based  on  the 
police  power  is  reasonable  depends  on 
whether  in  its  attempted  regulation  it 
makes  efficient  constitutional  guaranties 
and  conserves  rights,  or  is  destructive  of 
inherent  rights.  People  v.  Weiner  (111.) 
1917C-1065. 

17.  To  come  within  the  police  power,  a 
statute  or  ordinance  must  tend  in  some 
degree  toward  the  prevention  of  offenses 
or  the  preservation  of  the  public  health, 
morals,  safety,  or  welfare,  and  it  must  be 
apparent  that  such  end  is  the  one  actually 
intended,  and  there  must  be  some  connec- 
tion between  the  provisions  of  the  law  and 
£uch  purpose.  People  v.  Weiner  (111.) 
1917C-1065. 

18.  While  the  police  power  cannot  ex- 
cuse the  enactment  of  unreasonable,  op- 
pressive, or  unjust  laws,  it  may  be  legiti- 
mately exercised  to  preserve  the  public 
health,  safety,  morals,  and  general  wel- 
fare. State  V.  Bunting  (Oregon)  1916C- 
1003. 

19.  The  "police  power"  is  the  inherent 
sovereign  power  under  which  the  state 
must  act  by  enacting  statutes  for  the 
benefit  of  society  and  the  protection  of 
morals,  health,  and  order.  Chicago,  etc. 
R.  Co.  V.  Anderson  (Ind.)  1917A-182. 

20.  Prerequisites  to  Exercise.  The  state 
may  exercise  the  police  power  whenever 
the  public  interests  demand  it,  but,  to 
justify  the  state  in  thus  interposing  its 
authority  in  behalf  of  the  public,  it  must 
appear:  First,  that  the  interests  of  the 
public  generally,  as  distinguished  from 
those  of  a  particular  .class,  require  such 
interference;  and,  second,  that  the  means 


are  reasonably  necessary  for  the  accom- 
plishment of  the  purpose,  and  not  unduly 
oppressive  on  individuals.  Barrett  v. 
State  (N.  Y.)  1917D-807. 

21.  Reasonableness  of  Police  Regula- 
tion. The  consideration  and  determination 
of  the  reasonableness  of  regulations  under 
the  police  power  rests  with  the  legislative 
departments,  and  court  will  not  examine 
the  question  de  novo  and  overrule  such 
judgment  by  substituting  its  own,  unless 
it  clearly  appears  that  those  regulations 
are  so  beyond  all  reasonable  relation  to 
the  subject  to  which  they  are  applied  as 
to  amount  to  mere  arbitrary  usurpation 
of  power,  or  are  unmistakably  in  excess 
of  the  legislative  power  or  arbitrary  be- 
yond possible  justice,  bringing  the  case 
within  the  rare  class  in  which  such  legis- 
lation is  declared  void.  State  v,  McKay 
(Tenn.)  1937E-158. 

22.  A  statute  enacted  within  the  police 
power  will  not  be  adjudged  invalid  merely 
because  omitted  cases  might  have  been 
properly  included  in  the  statute.  People 
V.  Charles  Schweinler  Press  (N,  T.) 
1916D-1059. 

b.    Scope  of  Power. 

23.  Nature  and  Scope  of  Police  Power. 
The  legislature  has  power  to  pass  laws  for 
the  preservation  of  good  order,  or  to  pro- 
mote public  welfare  and  safety,  or  prevent 
fraud,  deceit,  cheating,  and  imposition,  as 
the  police  power  was  in  the  state  prior 
to  the  adoption  of  the  Federal  Constitu- 
tion, and  remained  with  the  state  under 
the  constitution,  and  has  not  been  taken 
away  by  any  of  the  amendments  thereto. 
People  V.  Weiner  (111.)  1917C-1065. 

24.  Where  the  legislature  has  jurisdic- 
tion, in  view  of  the  facts,  to  exercise  its 
police  power,  the  selection  of  the  method 
and  extent  of  its  action  is  largely  within 
its  discretion,  and  will  not  be  adjudged 
invalid  by  the  courts  unless  clearly  so. 
People  V.  Charles  Schweinler  Press  (N.  Y.) 
1916D-1059. 

25.  The  police  power  of  the  state  is  co- 
extensive with  self-protection,  and  is  not 
inaptly  termed  "the  law  of  overruling 
necessity."  State  v.  Starkey  (Me.)  1917A- 
196. 

26.  Nature  and  Scope  of  Police  Power. 

The  "police  power"  in  effect  sums  up  the 
whole  power  of  government,  and  all  other 
powers  are  only  incidental  and  ancillary 
to  the  execution  of  the  police  power;  it  is 
that  full,  final  power  involved  in  the  ad- 
ministration of  law  as  the  means  to  the 
administration  of  practical  justice.  Wes- 
sell  V.  Timberlake   (Ohio)   1918B-402. 

27.  The  "police  power"  is  that  inherent 
and  plenary  power  in  the  state  which  en- 
ables it  to  prohibit  all  things  hurtful  to 


186 


DIGEST. 

1916C— 1918B. 


the  comfort,  safety,  and  welfare  of 
society.  People  v.  Weiner  (111.)  1917C- 
1065. 

28.  Rights  of  property  may  not  be  in- 
vaded under  the  guise  of  police  regulation. 
People  V.  Weiner  (111.)  1917C-10t)5. 

29.  An  act  passed  under  the  police 
power  of  the  state  must  hare  some  rela- 
tion and  be  adapted  to  the  ends  sought  to 
be  accomplished.  People  v.  Weiner  (HI.) 
1917C-1065. 

30.  Application  of  Fourteentli  Amend- 
ment. The  Fourteenth  Amendment  to  the 
Federal  Constitution  [9  Fed.  St.  Ann.  384 
et  seq.]  was  not  designed  to  interfere 
with  the  exercise  of  the  police  power  of 
states.     Durand  v.  Dyson   (111.)   1917D-84. 

31.  The  police  power  of  the  state  in- 
cludes the  right  to  regulate,  control,  and 
prohibit  occupations  endangering  the 
health,  morals,  and  safety  of  the  general 
public.  Longmire  v.  State  (Tex.)  1917A- 
726. 

32.  Nature  and  Scoj)©,  The  right  to  im- 
pose restraints  on  the  use  and  disposition 
of  property,  found  by  experience  or  on  in- 
spection to  be  injurious  to  the  health, 
morals,  or  general  welfare,  is  within  the 
police  power,  and  a  statute,  uniform  and 
general  and  applicable  to  all  persons  in 
the  same  circumstances,  does  not  deny  to 
one  the  "equal  protection  of  the  law" 
within  Ind.  Const.,  art.  1,  §  23,  and  Const. 
U.  S.  Amend.  14.  Chicago,  etc.  K.  Co.  v. 
Anderson  (Ind.)   1917A-182. 

33.  Extension  by  Modern  Conditions. 
The  advance  of  civilization  and  conse- 
quent extension  of  governmental  activi- 
ties has  resulted  in  lessening  the  dominion 
of  individuals  over  their  property  and 
strengthening  the  state's  regulation  there- 
of, until  all  private  property  is  now  held 
subject  to  the  right  of  the  state  to  impose 
on  the  use  and  enjoyment  thereof  such 
reasonable  regulations  as  are  deemed  ex- 
pedient for  the  public  welfare.  Harris  v. 
Louisville    (Ky.)    1917B-149. 

34.  The  police  power  is  not  to  be  lim- 
ited to  guarding  merely  the  physical  in- 
terests of  the  citizen,  and  his  moral, 
intellectual,  and  spiritual  needs  may  also 
be  considered,  as  in  preserving  wild  ani- 
mals. Barrett  v.  State  (N.  Y.)  1917D- 
807. 

35.  Begnlating  Use  of  Property.  Every 
holder  of  property  holds  it  under  the  im- 
plied liability  that  its  use  may  be  so  regu- 
lated that  it  shall  not  encroach  injuriously 
on  the  enjoyment  of  property  by  others  or 
be  injurious  to  the  community.  Pitts- 
burgh, etc.  E.  Co.  V.  Chappell  (Ind.) 
1918A-627. 

c.     Regulation  of  Business. 

36.  Power  to  Pass  Inspection  Laws. 
The  right  to  pass  inspection  laws  belongs 


to    the   police   power   of   the   government. 
State  V.  Starkey  (Me.)  1917A-196. 

37.  Regulation  of  Commerce.  The  "lib- 
erty" guaranteed  by  La.  Const.,  art.  2, 
providing  that  no  person  shall  be  deprived 
of  life,  liberty,  or  property  without  due 
process  of  law,  includes  the  right  to  manu- 
facture and  offer  for  sale  any  article  of 
commerce  one  pleases  so  long  as  the  doing 
so  does  not  come  under  the  restrictive 
jurisdiction  of  the  police  power.  New 
Orleans  v.  Toca  (La.)  1918B-1032. 

38.  Agencies.  The  state,  in  the  exer- 
cise of  its  police  power,  could,  consistently 
with  the  Federal  Constitution,  enact  so 
much  of  Mich.  Pub.  Acts  1913,  act  No.  301, 
as  provides  for  the  licensing  of  private 
employment  agencies,  and  prescribes  rea- 
sonable regulations  in  respect  to  them,  to 
be  enforced  according  to  the  legal  discre- 
tion of  a  conunissioner,  including  a  provi- 
sion making  it  a  misdemeanor  to  send  one 
seeking  employment  to  an  employer  who 
has  not  applied  for  help.  Brazee  v. 
Michigan   (U,  S.)   1917C-522. 

(Annotated.) 

39.  The  term  "police  power"  has  a  mean- 
ing coextensive  with  sovereign  power  or 
sovereignty.  As  understood  in  American 
constitutional  law,  the  term  denotes  the 
power  of  the  state  to  impose  those  re- 
straints on  private  rights  which  are  neces- 
sary for  the  general  welfare  of  all,  and  is 
but  the  power  to  enforce  the  maxim,  "Sic 
utere  tuo  ut  alienum  non  laedas."  It  is 
the  power  to  regulate  the  business  of 
others,  and  not  a  power  to  go  into  busi- 
ness. Union  Ice,  etc.  Co.  v.  Ruston  (La.) 
1916C-1274. 

40.  The  police  power  of  the  state  is  suffi- 
ciently broad  and  comprehensive  to  en- 
able the  legislature  to  regulate  by  law 
public  utilities,  in  order  to  promote  the 
health,  comfort,  safety,  and  welfare  of 
the  people,  and  thus  regulate  the  manner 
in  which  public  utility  corporations  shall 
construct  their  systems  and  carry  on  their 
business  within  the  state.  Idaho  Power, 
etc.  Co.  V.  Blomquist  (Idaho)  1916E-282. 

41.  Control  of  Public  Utilities.  All 
property  devoted  to  public  use  is  held  sub- 
ject to  the  power  of  the  state  to  regulate 
or  control  its  use  in  order  to  secure  the 
general  safety,  health,  and  public  welfare 
of  the  people,  and  when  a  corporation  is 
clothed  with  rights,  powers,  and  franchises 
to  serve  the  public,  it  becomes  in  law  sub- 
ject to  governmental  regulation  and  con- 
trol. Idaho  Power,  etc.  Co.  v.  Blomquist 
(Idaho)   1916E-2S2. 

42.  Regulation  of  Petroleum  Products. 
The  state  has  full  power  to  enact  proper 
laws  for  the  inspection  of  oils,  gasoline, 
petroleum,  ether,  and  like  substances;  and 
legislation  relating,  to  such  inspection,  if 
otherwise  valid,  is  not  void  as  an  unlaw- 


CONSTITUTIONAL  LAW. 


187 


ful  exercise  of  its  police  power.    Castle  v. 
Mason  (Ohio)  1917A-164. 

(Annotatea.) 

43.  Commission  Merchants — Validity  of 
Regulation.  The  rights  of  liberty  and 
property,  guaranteed  by  Const.  U.  S. 
Amend.  14,  and  the  corresponding  provi- 
sions in  the  state  constitution  are  not 
designed  to  interfere  with  the  police 
power  of  the  state  for  the  protection  of 
the  health,  safety,  morals,  and  welfare; 
hence  Eem.  &  Bal.  Wash.  Code,  §§  7024- 
7035,  known  as  the  Commission  Mer- 
chants' Law.  enacted  to  protect  those  con- 
signing property  to  commission  mer- 
chants, is  a  ralid  exercise  of  the  police 
power,  and  docs  not  interfere  with  the 
rights  of  liberty  and  property,  which  in- 
clude the  privilege  of  pursuing  an  ordi- 
nary calling  without  restriction.  State  v. 
Bowen  &  Co.  (Wash.)   1917B-625. 

(Annotated.) 
Note. 

State  or  municipal  regulation  of  manu- 
facture of  bricks.     1917B-931. 

d.     Conflict  With  Federal   Constitution. 

44.  Conflict  With  Federal  Constitution. 
Though  the  exercise  of  the  police  power  is 
not  to  be  interfered  with  whwe  it  is  with- 
in the  scope  of  legislative  authority,  and 
the  means  adopted  reasonably  tend  to  ac- 
complish a  lawful  purpose,  such  power, 
broad  as  it  is,  cannot  justify  the  passage 
of  a  law  or  ordinance  running  contrary  to 
the  limitations  of  the  federal  constitution. 
Buchanan  v.  Warley  (U.  S.")  1918A-1201. 

4.     DUE   PROCESS  OF  LAW. 

45.  Application  to  States.  The  due  pro- 
cess of  law  clause  of  the  fifth  amendment 
to  the  federal  constitution  applies  only  to 
Congress  and  does  not  affect  state  legis- 
lation. School  Town  of  Windfall  City  v. 
Somerville  (Ind.)   1916D-661. 

46.  Eight  of  School  Corporation  to  De- 
mand Due  Process.  Acts  1903,  c.  204 
(Burns'  Ind.  Ann.  St.  1908,  §6671),  pro- 
viding that  real  property  owned  by  com- 
mon school  corporations  shall  be  liable  to 
special  assessment  for  public  improvements 
already  constructed,  and  the  corporation 
shall  make  payment  is  not  invalid  under 
Const.  U.  S.  Amend.  14,  prohibiting  the 
deprivation  of  property  without  due  pro- 
cess of  law  for  school  corporations;  being 
created  by  the  legislature  in  accordance 
with  Const,  art.  4,  §  1,  the  legislature  has 
plenary  power  over  them  as  well  as  over 
the  roads  and  streets,  and  they  cannot  in- 
voke the  due  process  clause.  School  Town 
of  Windfall  City  v.  Somerville  (Ind.) 
1916D-661. 

47.  Section  22,  art.  1,  of  the  Constitution 
of  North  Dakota,  which  provides  that  "all 
courts  shall  be  open,  and  any  man  for  any 
injury    done   him   in   his   lands,   goods,   or 


reputation  shall  have  remedy  by  due  pro- 
cess of  law,  and  right  and  justice  admin- 
istered without  sale,  denial,  or  delay,"  is 
aimed,  not  merely  against  bribery  and  the 
direct  selling  of  justice  by  magistrates  and 
officials,  but  against  the  imposition  of 
unreasonable  restraints  upon  and  charges 
for  the  use  of  the  courts.  Malin  v.  La- 
moure  County  (N.  Dak.)   1916C-207. 

(Annotated.) 

48.  What  Constitutes  "Property."  With- 
in Const.  U.  S.  Amend.  14  (9  Fed.  St.  Ann. 
416),  protecting  life,  liberty,  and  property 
from  invasion  without  due  process  of 
law,  "property"  is  more  than  the  mere 
thing  which  a  person  owns  and  includes 
the  right  to  acquire,  use,  and  dispose  of 
it,  and  these  essential  attributes  of  prop- 
erty are  protected  by  the  Constitution. 
Buchanan  v.  Warley  (U.  S.)  1918A-1201. 

49.  Right  to  Public  Trial.  Notwith- 
standing Mont.  Const,  art.  3,  §  16,  guar- 
anteeing to  an  accused  person  a  right  to 
a  public  trial,  the  trial  court  has  the  right 
to  preserve  decorum,  and  may  exclude 
persons  for  disorderly  conduct,  or  because 
they  impede  the  due  administration  of  the 
law.     State  v.  Keeler  (Mont.)   1917E-619. 

(Annotated.) 

50.  The  right  of  an  accused  to  a  public 
trial  guaranteed  by  Mont.  Const,  art.  3, 
§  16,  is  not  infringed,  because  the  court- 
room is  not  large  enough  to  include  all  per- 
sons, or  because  of  an  order  closing  the 
doors  after  the  room  is  filled.  State  v. 
Keeler  (Mont.)  1917E-619. 

(Annotated.) 

51.  The  right  of  an  accused  person  to  a 
public  trial  guaranteed  by  Mont.  Const, 
art.  3,  §  16,  may  be  waived.  State  v. 
Keeler  (Mont.)  1917E-619. 

(Annotated.) 

52.  Rules  as  to  Burden  of  Proof.  The 
constitution  is  not  violated  by  statutes 
which  change  burden  of  proof  and  take 
away  defenses  like  assumption  of  risk, 
negligence  of  fellow  servant,  and  con- 
tributory negligence.  Rules  as  to  burden 
of  proof,  and  permitting  such  defenses,  are 
made  either  by  courts  or  by  legislative 
action,  and  the  legislature  may  change  any 
rule  made  by  the  legislature,  or  one  made 
by  the  court.  The  constitution  gives  no 
vested  rights  in  mere  rules  of  procedure 
and  the  like.  Hunter  v.  Colfax  Consoli- 
dated Coal  Co.  (Iowa)   1917E-803. 

(Annotated.) 

53.  License  Tax  Regulations.  Liberty  to 
contract  is  not  unconstitutionally  in- 
fringed, contrary  to  the  due  process  of 
law  clause  of  U.  S.  Const.  14th  Amend. 
(9  Fed.  St.  Ann.  416),  by  Florida  Laws 
1913,  c.  6421,  §  35,  making  merchants  offer- 
ing with  merchandise  bargained  or  sold 
any  coupons,  profit-sharing  certificates,  or 
other  evidences  of  indebtedness  or  liability 
redeemable  in  premiums,  liable  to  pay  an 


188 


DIGEST. 

1916C— 1918B. 


additional  license  tax,  which  may  be  pro- 
hibitive, and,  if  the  same  are  to  be  re- 
deemed by  someone  else  than  the  merchant 
offering  them,  liable  to  pay  a  similar  li- 
cense fee  for  the  one  who  is  to  redeem. 
Eust  V.  Van  Deman,  etc.  Co.  (U.  S.) 
1917B-455.  (Annotated.) 

54.  Nor  is  it  invalid  as  unreasonable 
because  requiring  the  giving  of  a  surety 
bond  for  $3,000  before  license  can  be  is- 
sued. State  T.  Bowen  &  Co.  (Wash.) 
1917B-625.  (Annotated.) 

55.  Employment  of  CTitizens  Only  on 
Public  Works.  Property  is  not  taken 
without  due  process  of  law,  nor  is  the 
equal  protection  of  the  laws  denied,  con- 
trary to  U.  S.  Const.  14th  Amend.  (9  Fed. 
St.  Ann.  416,  538)  by  the  provisions  of 
N.  Y.  Consol.  Laws,  c.  31,  §  14,  that  only 
citizens  of  the  United  States  may  be  em- 
ployed in  the  construction  of  public  works 
by  or  for  the  state  or  a  municipality,  and 
that  in  such  employment  citizens  of  New 
York  state  must  be  given  preference.  Heim 
V.  McCall   (U.  S.)   1917B-287. 

(Annotated.) 

56.  Effect  of  Coroner's  Verdict.  As  no 
rights,  property  or  otherwise,  are  fixed  or 
established  by  a  verdict  of  a  coroner's 
jury,  under  111.  Coroner's  Act,  §  14,  that 
flection  is  not  void  as  depriving  persons  or 
property  without  due  process  of  law. 
Devine  v.  Brunswick-Balke-CoUender  Co. 
(111.)    1917B-887. 

57.  Statute  Establishing  Presumption. 
A  state  may,  consistently  with  the  due  pro- 
cess of  law  clause  of  U.  8.  Const.  14th 
Amend.,  establish  by  statute  presumptions 
and  rules  respecting  the  burden  of  proof, 
provided  that  the  statute  be  not  unreason- 
able in  itself,  and  not  conclusive  of  the 
rights  of  a  party.  Hawkins  v.  Bleakly 
(U.  S.)   1917D-637. 

58.  Cximlnal  Law.  Ga.  Penal  .Code 
(1910)  §  204  is  not  violative  of  article  1, 
section  1,  paragraph  3,  of  the  state  con- 
stitution, which  declares  that  "no  person 
shall  be  deprived  of  life,  liberty,  or  prop- 
erty, except  by  due  process  of  law." 
Griffin  v.  State    (Ga.)    1916C-80. 

59.  The  fifth  amendment  of  the  constitu- 
tion of  the  United  States  is  not  a  limi- 
tation upon  the  power  of  the  states,  but 
operates  upon  the  national  government 
only.  Accordingly  section  204  of  the  Ga. 
Penal  Code,  is  not  invalid  as  being  viola- 
tive of  that  amendment.  Griffin  v.  State 
(Ga.)   1916C-80. 

60.  What  Constitutes.  No  process  is 
"due  process"  which  does  not  give  notice, 
either  actual  or  constructive,  and  no  tak- 
ing of  property  for  debt  is  lawful  unless 
the  debt  has  been  created  with  the  knowl- 
edge and  consent  of  the  debtor.  Anderson 
V.  Great  Northern  R.  Co.  (Idaho)  1916C- 
191. 

61.  Coroner's  Inquest.  A  coroner's  in- 
quest is  within  the  spirit  of  Const.  S.  Car. 


art.  1,  §  15,  requiring  all  courts  to  be  pub- 
lic.    State  V.  Griffin  (S.  Car.)  1916D-392. 

Note. 
Validity      of      statute       discriminating 
against  aliens  in  employment  of  laborers. 
1917B-287. 

6.     EQUAL  PROTECTION  OP  LAWS. 
a.     In  General. 

62.  A  statute,  under  which  those  in- 
cluded and  those  excepted  are  each-  at 
liberty  to  place  themselves  in  the  same 
position  that  the  other  is,  is,  if  a  dis- 
crimination at  all,  a  purely  academic  one. 
Hunter  v.  Colfax  Consolidated  Coal  Co. 
(Iowa)   1917E-803. 

63.  Classification  mast  always  rest  upon 
some  difference  bearing  a  reasonable  and 
just  relation  to  the  act  in  respect  to  which 
the  classification  is  proposed,  though  it 
need  not  always  depend  on  scientific  or 
marked  differences  in  things  or  persons  or 
relations,  but  it  suffices  if  it  is  practical, 
and  it  is  not  reviewable  unless  palpably 
arbitrary.  Hill  v.  Rae  (Mont.)  1917E- 
210. 

64.  Bace  Discrimination.  Colored  per- 
sons are  citizens  of  the  United  States,  and 
have  the  right  to  purchase  property  and 
enjoy  and  use  it  without  laws  discrim- 
inating against  them  solely  on  account 
of  color.  Buchanan  v.  Warley  (U.  S.) 
1918A-1201. 

b.     Judicial  Review  of  Classification. 

65.  Class  Legislation.  Under  Const.  U. 
S.  Amend.  14  (9  Fed.  St.  Ann.  538),  pro- 
hibiting the  denial  to  any  person  of  the 
equal  protection  of  the  law,  and  Const. 
Tenn.  art.  1,  §  8,  prohibiting  the  imprison- 
ment or  execution  of  any  person,  or  depriv- 
ing him  of  life,  liberty,  or  property,  except 
by  judgment  of  his  peers  or  the  law  of 
the  land,  and  article  11,  §  8,  forbidding 
class  legislation,  the  same  rules  will  be 
applied  to  classifications  therein  as  to  the 
classifications  made  in  legislative  enact- 
ments, so  that  the  basis  for  a  classification 
must  be  natural,  and  not  arbitrary  or 
capricious,  and  must  rest  on  some  substan- 
tial difference;  but  the  classification  is  not 
invalid  merely  because  it  does  not  depend 
on  scientific  or  marked  differences.  Mem- 
phis V.  State  (Tenn.)  1917C-1056. 

66.  Under  the  provisions  of  the  con- 
stitution prohibiting  class  legislation,  it  is 
not  sufficient  to  invalidate  a  statute  merely 
to  show  points  of  similarity  in  the  thing 
classified,  and  the  thing  excluded  from  the 
classification;  but  it  must  be  shown  that 
the  classification  is  unreasonable  and  im- 
practicable. Memphis  v.  State  (Tenn.) 
1917C-1056. 

67.  Legislative  classification  is  permis- 
sible because  in  the  nature  of  things  and  in 
due  appreciation  of  equality  in  the  opera- 


CONSTITUTIONAL  LAW. 


189 


tion  of  the  law  it  is  necessary  for  pnr- 
poses  of  revenue,  or  in  the  application 
of  the  police  power,  or  in  legislation  de- 
signed to  increase  the  industries  of  the 
state,  develop  its  resources  and  prosperity, 
etc.     Hill  V.  Ra©  (Mont.)  1917E-210. 

68.  The  provision  of  the  federal  Con- 
stitution guaranteeing  to  all  persons  the 
"equal  protection  of  the  laws,"  does  not 
mean  broadly  that  all  persons,  however 
situated,  shall  have  the  same  rights  and 
be  protected  in  doing  the  same  things,  but 
means  that  all  persons  in  like  situations 
shall  have  an  equal  protection  of  the  law; 
the  test  in  ascertaining  whether  equal  pro- 
tection of  the  laws  is  denied  to  any  per- 
son, or  to  any  class  of  persons,  is  whether 
the  classification  adopted  is  an  arbitrary 
one,  or  is  a  reasonable  one  in  view  of  the 
purposes  and  objects  of  the  act.  Van 
Winkle  v.  State  (Del.)  1916D-104. 

69.  While  legislative  classification  must 
have  some  reasonable  basis  upon  which  to 
rest,  unless  the  courts  are  satisfied  that 
there  can  be  no  basis  in  reason  therefor, 
they  will  not  overthrow  the  statute.  Van- 
dalia  Eailroad  Co.  v.  Stillwell  (Ind.) 
1916D-258.  (Annotated.) 

70.  The  wealth  and  prosperity  of  Cali- 
fornia or  of  any  other  state  in  the  Union 
is  of  vital  importance  to  the  people  of 
North  Dakota.  A  statute,  therefore,  which 
discriminates  in  the  matter  of  the  amount 
of  an  inheritance  tax  between  a  citizen 
and  resident  of  Norway  and  a  citizen  of 
Norway  residing  in  California  or  any  other 
state  of  the  Union,  is  not  for  that  reason 
vord  on  the  ground  of  class  legislation. 
Moody  V.  Hagen  (N.  Dak.)  1918A-933. 

6.     IMPAIRMENT  OF  OBLiaATION  OF 
CONTRACTS. 

71.  Impairing  Obligation  of  Contract. 
Rights  and  privileges  arising  from  con- 
tracts with  the  state  are  subject  to  regu- 
lations for  the  protection  of  the  public 
health,  morals,  and  safety  in  the  same 
sense  as  are  rights  arising  from  other  con- 
tracts. Pittsburgh,  etc.  R.  Co.  ▼.  Chappell 
(Ind.)   191SA-627. 

72.  Contract  obligations  are  not  uncon- 
stitutionally impaired  by  the  imposition, 
under  Florida  Laws  1913,  c.  6421,  §  35, 
of  an  additional  license  fee  upon  merchants 
offering  with  merchandise  bargained  or 
sold  coupons,  profit-sharing  certificates,  or 
other  evidences  of  indebtedness  or  liabil- 
ity redeemable  in  premiums,  since  the  stat- 
ute must  be  deemed  to  be  prospective  in 
its  operation,  and  not  to  affect  sales  com- 
pleted before  its  enactment.  Rast  ▼.  Van 
Deman,  etc.  Co.  (U.  S.)  1917B-455. 

(Annotated.) 

7.     PRIVILEGES   AND  IMMUNITIES. 

73.  A  discrimination  is  not  necessarily 
unlawful,  but  a  privilege  or  a  burden  is 


or  is  not  a  denial  of  the  eqnal  protection 
of  the  laws  according  to  whether  the  dis- 
crimination relates  to  a  matter  upon  which 
classification  is  legally  permissible,  and, 
if  so,  whether  the  classification  is  a  rea- 
sonable one.  Hill  v.  Rae  (Mont.)  1917E- 
210. 

74.  Privileges  and  DiscrimlnationB.  In 
the  application  of  the  Fourteenth  Amend- 
ment to  the  federal  constitution  (9  Fed. 
St.  Ann.  392)  no  distinction  is  to  be  ob-. 
served  between  the  effect  of  privileges 
conferred  and  of  burdens  imposed;  a  priv- 
ilege conferred  upon  one  class  being  a  dis- 
crimination in  favor  of  that  class  and 
against  all  others  not  similarly  endowed, 
as  a  burden  upon  one  class  is  a  discrimina- 
tion against  it  and  in  favor  of  all  others 
not  similarly  burdened.  Hill  ▼.  Rae 
(Mont.)   1&17E-210. 

75.  Corporation  as  Citizen.  A  corpora- 
tion may  not  invoke  the  protection  of  the 
privileges  and  immunities  provisions  of  the 
federal  constitution,  because  it  is  not  a 
"citizen,"  within  the  meaning  of  that  pro- 
vision. Hunter  v.  Colfax  Consolidated 
Coal  Co.  (Iowa)  1917E-803. 

76.  Const.  U.  8.  Amend.  14,  and  Const. 
Ind.  art.  1,  §  23,  prohibiting  the  granting 
of  privileges  or  immunities,  do  not  forbid 
classification  of  persons  for  legislative  pur- 
poses, and  where  the  situation,  conditions, 
and  circumstances  of  the  person  included 
within  a  class  to  which  the  law  is  made  to 
apply  so  differ  from  those  not  so  included 
as  to  indicate  the  propriety  of  making  the 
law  applicable  only  to  those  included  with- 
in it,  and  the  law  applies  to  all  whom  the 
reason  applies,  and  excludes  all  to  whom 
the  reason  excludes,  is  not  unconstitu- 
tional, and  a  classification  having  a  rea- 
sonable basis  will  not  be  condemned  merely 
because  it  is  so  framed  as  to  include  all 
within  the  reason  of  the  classification  and 
exclusion  of  others.  Cincinnati,  etc.  R.  Co. 
V.  McCullom  (Ind.)  1917E-1165. 

77.  Meaning  of  Prohibition.  Const.  U.  S. 
Amend.  14,  is  a  prohibition  against  the 
states,  and  requires  that  all  burdens  and 
liabilities  imposed  by  law  shall  rest  equally 
upon  all  persons  under  like  circumstances 
and  conditions,  and  Const.  Ind.  art  1,  §  23, 
prohibiting  the  gn"*°ti°&  *<>  ^^7  citizen,  or 
class  of  citizens,  privileges  or  immunities, 
forbids  the  granting  of  privileges  or  im- 
munities which  under  like  circumstances 
are  not  granted  to  all  citizens;  the  one 
forbidding  the  curtailment  of  rights,  and 
the  other  the  enlargement  of  the  rights  of 
some  in  disparagement  of  the  rights  of 
others.  Cincinnati,  etc.  R.  Co.  v.  McCul- 
lom (Ind.)  1917E-1165. 

78.  The  equality  of  rights  and  privileges 
with  citizens  of  the  United  States  with  re- 
spect to  security  for  persons  and  property 
which  citizens  of  Italy  are  assured  by  the 
Italian   treaty   of  February   26,   1871    (17 


190 


DIGEST. 

1916C— 1918B. 


Stat,  at  L.  845;  7  Fed.  St.  Ann.  656)  is 
not  infringed  by  the  provisions  of  N.  Y. 
Consol.  Laws,  c.  31,  §  14,  that  only  citi- 
zens of  the  United  States  may  be  em- 
ployed in  the  construction  of  public  works 
by  or  for  the  state  or  a  municipality,  and 
that  in  such  employment  citizens  of  New 
York  state  must  be  given  preference. 
Heim  v.  McCall  (U.  S.)  1917B-287. 

(Annotated.) 

79.  Abridgment  of  Privileges  of  Citizen 
— Scope  of  Federal  Constitution.  The 
Fourteenth  Amendment  (9  Fed.  St.  Ann. 
392)  draws  a  distinction  between  a  citizen 
of  the  United  States  and  a  citizen  of  a 
state,  and  classifies  the  privileges  of  citi- 
zens into  those  which  they  have  as  citizens 
of  the  United  States  and  those  which  they 
have  as  citizens  of  the  state  wherein  they 
reside,  and  forbids  the  abridging  of  tho 
privileges  of  a  citizen  of  the  United  States, 
but  does  not  forbid  the  state  from  abridg- 
ing the  privileges  of  its  own  citizens. 
Hopkins  v.  Eichmond  (Va.)  1917D-1114, 

8.     PERSONAL  AND   RELIGIOUS  LIB- 
ERTY. 

80.  Mass.  St.  1913,  c.  678,  §  2,  prohibiting 
the  carrying  of  red  or  black  flags  in 
parades,  is  not  bad  as  unlawfully  depriving 
persons  of  their  liberty;  the  purpose  of 
the  enactment  being  to  prevent  parades 
which  would  provoke  turbulence,  which  is 
8  legitimate  regfulation  of  personal  lib- 
erty. Commonwealth  v.  Karvonen  (Mass.) 
1916D-846.  (Annotated.) 

81.  Liberty  of  Contract.  Liberty  of  con- 
tract is  not  an  absolute  and  unlimited 
right,  but  upon  the  contrary  is  always 
subservient  to  the  public  welfare.  Pitts- 
burgh, etc.  R.  Co.  V.  Kinney  (Ohio) 
1918B-286. 

82.  Liberty  of  Speech  and  of  Press.  Un- 
der the  right  of  freedom  of  speech  and 
of  the  press,  the  public  have  a  right  to 
know  and  discuss  all  judicial  proceedings, 
but  this  does  not  include  the  right  to  at- 
tempt, by  wanton  defamation  and  ground- 
less charges  of  unfairness  and  partisan- 
ship, to  degrade  the  tribunal  and  impair 
its  efficiency.  In  re  Hayes  (Fla.)  191SB- 
936.  (Annotated.) 

83.  Liberty  of  Speech  and  of  Press.  The 
thirteenth  section  of  the  declaration  of 
rights  of  the  constitution  of  Florida,  which 
provides  that  "every  person  may  fully 
speak  and  write  his  sentiments  on  all  sub- 
jects, beinig  responsible  for  the  abuse  of 
that  right,  and  no  laws  shall  be  passed  to 
restrain  or  abridge  the  liberty  of  speech 
or  of  the  press,"  etc.,  does  not  secure  im- 
munity from  punishment  to  any  citizen 
who  falsely  and  with  the  purpose  to  de- 
fame, attacks  in  the  newspapers  the  char- 
acter of  any  other  citizen,  or  impugns  the 
integrity,  honor  and  authority  of  the 
courts.     In  re  Hayes  (Fla.)  1918B-936. 

(Annotated.) 


84.  The  exercise  of  the  right  to  "fully 
speak  and  write"  one's  sentiments  on  all 
subjects,  a  right  secured  by  our  constitu- 
tion, is  always  subject  to  the  preservation 
of  the  governmental  authority  of  the  state 
as  conferred  by  law.  In  re  Hales  (Fla.) 
1918B-936.  (Annotated.) 

85.  An  attorney  cannot,  under  his  con- 
stitutional right  of  free  speech,  slander  or 
defame  a  court.  In  re  Hilton  (Utah) 
1918A-271.  (Annotated.) 

Note. 
Validity   of  statute   or  ordinance   regu- 
lating    parades     or     processions.     1916D- 
847. 

9.     GENERAL  AND  SPECIAL  LAWS. 

86.  Eflfect  of  Slight  Inequality.  A  stat- 
ute is  general  and  uniform,  within  the  re- 
quirements of  the  constitution,  if  it  oper- 
ates equally  upon  every  person  and  locality 
within  the  circumstances  covered  by  the 
act,  and  when  a  classification  has  a  rea- 
sonable basis  it  is  not  invalid  merely  be- 
cause not  made  with  exactness,  or  because 
in  practice  it  may  result  in  some  inequal- 
ity. Steele,  etc.  Co.  v.  Miller  (Ohio) 
1917C-926. 

87.  Classification.  Reasonable  classifi- 
cations in  a  legislative  act  are  not  prohib- 
ited by  the  Constitution  prohibiting  the 
passage  of  local  or  special  laws.  Worth- 
ington  T.  District  Court  (Nev.)  1916E- 
1097. 

88.  Law  Relating  to  Divorce.  The  Nev. 
Constitution,  prohibiting  any  special  laws 
granting  divorce,  renders  void  any  special 
act  grantinig  divorce,  as  divorces  were 
granted  by  Parliament  and  state  legis- 
latures prior  to  the  constitutional  provi- 
sion. Worthington  v.  District  Court 
(Nev.)   1916E-1097. 

10.  DELEGATION    OF    LEGISLATIVE 

POWER. 

89.  Delegatiom  to  Courts  of  Nonjudicial 
Duty.  In  the  absence  of  express  constitu- 
tional provision  therefor,  the  general  as- 
sembly of  Ohio  cannot  assign  to  the 
judicial  branch  of  tho  government  any 
duties  other  than  those  that  are  properly 
judicial,  to  be  performed  in  a  judicial  man- 
ner. Thompson  v.  Redington  (Ohio) 
1918A-1161. 

11.  SELF-EXECUTING      PROVISIONS. 

90.  The  part  of  Const.  Mo.  art.  9,  §  9, 
which  provides  that  in  any  county  which 
shall  have  adopted  township  organization 
the  question  of  discontinuing  the  same 
may  be  submitted  to  a  vote  of  the  electors 
at  a  general  election  in  the  manner  that 
shall  be  provided  by  law,  is  not  self- 
executing,  but  the  provision  that,  if  a  ma- 
jority  of   the  votes   cast  on  the  question 


CONSTITUTIONAL  LAW. 


191 


shall  be  against  townahip  organization,  it 
shall  cease  in  the  county,  and  all  laws  in 
force  in  relation  to  counties  not  having 
township  organization  shall  immediately 
take  effect,  is  self-executing,  and  legisla- 
tion is  necessary  to  carry  into  effect  the 
first  part,  while  legislation  as  to  the  sec- 
ond must  conform  to  it.  State  v.  Duncan 
(Mo.)  1916D-1. 

91.  Prohibiting  Intoxicants.  The  prohi- 
bition amendment  to  the  Ariz,  constitu- 
tion, which  in  section  1  prohibits  the  manu- 
facture in  or  introduction  into  the  state 
of  any  intoxicating  liquor  and  punishes 
any  person  who  manufactures  or  sells  or 
introduces  into  the  state  intoxicating 
liquor,  and  which  declares  in  section  2  that 
the  legislature  shall,  by  appropriate  legis- 
lation, provide  for  carrying  into  effect  of 
the  amendment,  and  which  provides  in  sec- 
tion 3  that  the  amendment  shall  take  effect 
on  and  be  in  force  after  January  1,  191o, 
is,  when  considered  as  a  whole,  self-exe- 
cuting, and  section  2  merely  imposes  on  the 
legislature  the  duty  of  enacting  appro- 
priate legislation  for  enforcement  of  pro- 
hibition; "appropriate"  meaning  suitabl?, 
fit,  befitting,  proper.  Gherna  v.  State 
(Ariz.)   1916D-94. 

92.  Legislation  in  Aid  of  Self-executing 
Provision  of  Constitution.  Const.  Ariz, 
art.  2,  §  21,  requiring  the  legislature  to 
enact  all  necessary  laws  to  carry  into 
effect  the  provisions  of  the  constitution, 
grants  no  power  to  the  legislature,  and 
the  duty  it  seeks  to  impose  exists  without 
the  provision.  Gherna  v.  State  (Ariz.) 
1916D-94. 

93.  As  to  School  Taxes.  Ark.  Const, 
art.  5,  §  28,  declares  that  no  money  shall 
be  drawn  from  the  treasury  except  in 
pursuance  of  a  specific  appropriation  made 
by  law,  which  shall  not  be  longer  than  two 
years.  Article  14,  §§  1-4,  respectively,  pro- 
vide that  common  schools  shall  be  main- 
tained, that  no  school  fund  shall  be  used 
for  any  other  purpose,  that  the  general 
assembly  shall  provide  by  general  laws  for 
the  support  of  common  schools  by  taxes, 
that  school  districts  may  be  allowed  to 
levy  special  taxes,  and  that  the  supervision 
of  public  schools  and  the  execution  of  laws 
relating  thereto  shall  be  vested  in  such 
officers  as  may  be  provided  for  by  the  gen- 
eral assembly.  It  is  held  that  the  pro- 
vision of  the  constitution  relating  to  school 
taxes  is  self-executing,  except  that  the 
legislature  may,  every  two  years,  deter- 
mine what  percentage  of  the  maximum 
school  tax  shall  be  levied,  and  no  specific 
biennial  appropriation  by  the  legislature 
is  necessary  to  authorize  the  payment  of 
school  funds  for  common  school  purposes. 
Dickinson  v.  Edmondson  (Ark.)  1917C- 
913. 

94.  Classification  of  Cities.  Section  1  of 
article  18  of  the  Ohio  Constitution,  relat- 


ing to  the  classification  of  ninnicipal  corpo- 
rations, adopted  September  3,  1912,  is  not 
self-executing.  Murray  v.  State  (Ohio) 
1916D-864.  (Annotated.) 

95.  Failure  of  Part.  The  fact  that  the 
costs  cannot  be  collected,  and  that  supple- 
mental legislation  is  necessary,  does  not 
affect  the  provisions  of  the  prohibition 
amendment  to  the  Ariz.  Constitution,  which 
are  clearlv  self-executing.  Gherna  v.  State 
(Ariz.)   1916D-94. 

96.  Defined.  Constitutional  provisions 
are  "self-executing"  when  they  take  im- 
mediate effect,  and  legislation  is  not  neces- 
sary to  the  enjoyment  of  the  right  given 
or  the  enforcement  of  the  duty  imposed. 
State  V.  Duncan  (Mo.)   1916D-1. 

97.  How  Aided.  A  self-executing  pro- 
vision of  the  constitution  does  not  neces- 
sarily exhaust  legislative  power  on  the 
subject,  but  any  legislation  must  be  in 
harmony  with  the  constitution  and  further 
the  exercise  of  constitutional  right  and 
make  it  more  available.  Gherna  v.  State 
(Ariz.)    1916D-94. 

98.  Constitutional  Provision  as  Self- 
executing.  To  the  exent  of  establishing 
the  nature  of  the  use  for  which  privately 
owned  property  is  necessary  to  the  com- 
plete development  of  the  material  re- 
sources of  the  state,  the  provisions  of  said 
section  14  of  the  Idaho  constitution  are 
self-executing,  and  the  courts  of  general 
jurisdiction  are  vested  with  the  power  to 
determine,  upon  judicial  inquiry,  whether 
or  not  any  particular  use  for  which  land 
is  sought  to  be  appropriated  is  "necessary 
to  the  complete  development  of  the  ma- 
terial resources  of  the  state."  Blackwell 
LfUmber  Co.  v.  Empire  Mill  Co.  (Idaho) 
1918A-189. 

12.  GENERAL  PRIlSrCIPLES  GOVERN- 
ING DETERMINATION  AS  TO 
CONSTITUTIONALITY  OP  STAT- 
UTES. 

a.     In  General. 

99.  Effect  of  Infringement  of  Constitu- 
tion. Only  the  valid  legislative  intert  be- 
comes the  law  to  be  enforced  bv  the  courts. 
State  V.  Philips    (Fla.)    1918A-138. 

100.  Declaring  Statute  Unconstitutional. 

Where  a  court  passes  on  the  constitu- 
tionality of  a  statute,  in  the  validity  of, 
whicn  it  has  a  direct  pecuniary  interest, 
such  court  should  refuse  to  uphold  the  act, 
unless  it  is  clear,  by  reason  and  author- 
itv,  that  the  law  is  constitutional.  Mc- 
Coy V.  Handlin  (S.  Dak.)  1917A-1046. 

101.  Power  to  Declare  Statute  In/alid. 
While  the  federal  supremo  court  has  the 
authority  to  make  the  final  determination 
of  the  question  of  the  constitutionality  of 
an  act  of  Congress,  the  state  courts  may, 
where  the  enforcement  of  a  state  statute 


192 


DIGEST. 

1916C— 1918B. 


depends  upon  the  constitutionality  of  a 
federal  law,  determine  the  question.  State 
V.  Sawyer  (Me.)   1917D-6oO. 

102.  Statute  Discussed.  Certain  consti- 
t'jtional  limitationa  of  the  scope  of  section 
580  of  the  Kan.  Civil  Code  discussed. 
Wideman  v,  Faivre  (Kan.)  1918B-1168. 

103.  Judicial  or  Political  Question. 
Whether  or  not  a  state  has  violated  the 
provision  of  U.  S.  Const,  art.  4,  §  4,  guar- 
anteeing to  every  state  in  the  Union  a 
republican  form  of  government,  is  not  a 
judicial  question,  but  is  a  political  one, 
which  is  solely  for  Congress  to  determine. 
Mountain  Timber  Co.  v.  Washington  (U. 
S.)  1917D-642. 

104.  Criterion  of  Validity.  The  consti- 
tutionality of  a  law  may  be  determined  by 
its  operative  effect,  though  on  its  face  it 
may  be  apparently  valid.  Castle  v.  Mason 
(Ohio)   1917A-164. 

1051  Erldence  as  to  Constitutionality  of 
Statute.  The  courts  cannot  hear  evidence 
touching  the  constitutionality  of  a  statute, 
but  must  determine  its  validity  from  the 
matters  appearing  on  its  face  and  matters 
of  which  the  court  can  take  judicial  notice, 
though  there  may  be  some  seeming  excep- 
tions to  this  rule.  Barker  v.  State  Fish 
Commission  (Wash.)   1917D-810. 

106.  Test  of  Reasonableness  of  Order. 
There  is  no  test  of  reasonableness  that 
will  fit  all  cases,  but  an  order  is  unreason- 
able if  contrary  to  federal  or  state  con- 
stitution or  laws,  or  if  beyond  the  power 
of  the  commission,  or  if  based  on  mistake 
of  law,  or  if  without  evidence  to  support 
it,  or  if  so  arbitrary  as  to  be  beyond  the 
exercise  of  reasonable  discretion  and  judg- 
ment. State  V.  Great  Northern  E.  Co. 
(Minn.)   1917B-1201. 

107.  Validity  of  Statute.  Courts  are 
not  at  liberty  to  declare  a  law  void  as  in 
violation  of  public  policy.  Such  policy  is 
determined  by  the  legislature,  and  the 
only  limits  upon  the  legislative  power  in 
such  determination  are  those  fixed  in  the 
state  and  federal  constitutions.  State  v. 
Taylor  (N.  Dak.)  1918A-583. 

108.  Test  of  Validity  of  Statute.  The 
only  test  of  the  validity  of  an  act  regu- 
larly passed  by  a  state  legislature  is 
whether  it  violates  any  of  the  express  or 
implied  restrictions  of  the  state  or  federal 
constitutions.  State  v.  Taylor  (N.  Dak.) 
1918A-583. 

109.  Construction  of  Constitution.  While 
the  constitution  is  often  applicable  to  con- 
ditions not  existing  when  it  was  adopted, 
nothing  may  be  read  into  the  constitution 
merely  because  so  doing  will  be  helpful  in 
dealing  with  conditions  which  exist  now, 
but  did  not  exist  when  the  constitution 
was  adopted.  Hunter  v.  Colfax  Consoli- 
dated Coal  Co.  (Iowa)  1917E-803. 


b.     Who  may  Baise  Constitutional  Ques- 
tion. 

110.  If  there  is  any  sphere  within  which 
a  statute  may  validly  operate,  it  should 
within  that  sphere  be  made  effective. 
Therefore  those  not  aggrieved  may  not 
complain  of  the  unconstitutionality  of  a 
statute.  Hunter  v.  Colfax  Consolidated 
Coal  Co.  (Iowa)  1917E-803. 

111.  Validity  of  Ordinance.  A  colored 
man,  who  purchased  a  residence  in  the 
district  of  a  municipality  set  apart  by  a 
prior  ordinance  to  white  people,  cannot 
assail  the  ordinance  as  depriving  him  of 
liberty  or  property  without  due  process  of 
law.  Hopkins  t.  Richmond  (Va.)  1917D- 
1114. 

112.  Workmen's  Compensation  Act.  The 
question  of  the  constitutionality  of  the 
compulsory  insurance  provisions  of  the 
Iowa  elective  Workmen's  Compensation 
Act  (Iowa  Laws  35th  Gen.  Assem.  c.  147), 
§  42,  will  not  be  considered  by  the  federal 
supreme  court  at  the  instance  of  an  ap- 
pealing employer  who  has  not  accepted  the 
act,  where  the  highest  state  court  construes 
such  act  as  not  compelling  an  employer  to 
insure  unless  he  has  accepted  and  thus  be- 
come subject  to  the  act.  Hawkins  r. 
Bleakly  (U.  S.)  1917D-637. 

113.  Person  not  Injured.  Persons  not 
injured  by  portions  of  a  statute  cannot 
question  its  constitutionality.  State  Pub- 
lic Utilities  Com.  v.  Chicago,  etc.  R.  Co. 
(111.)    1917C-50. 

114.  Estoppel  to  Attack  Statute.  Mo. 
Laws  1905,  p.  155,  fixing  fees  of  probate 
courts,  and  providing  for  the  payment  of 
a  part  of  the  fees  into  the  county  treas- 
ury for  the  benefit  of  the  school  fund  of 
the  county,  and  repealing  all  inconsistent 
acts  and  parts  of  acts,  repeals  Rev.  St. 
1899,  §  3240,  prescribing  the  fees  of  pro- 
bate courts,  and  a  judge  of  a  probate 
court,  elected  after  the  Act  of  1905  took 
effect,  can  only  collect  fees  pursuant  to 
the  authority  conferred  thereby,  and, 
when  he  collects  fees,  he  is  estopped  from 
asserting  the  unconstitutionality  of  the 
provision  for  the  payment  of  fees  into  the 
county  treasurv.  Greene  Countv  v.  Lvdy 
(Mo.)    1917C-274.  (Annotated.) 

115.  Estoppel  to  Attack  Statute.  A 
party  may  be  estopped  to  assert  the  un- 
constitutionality of  a  statute  in  a  suit  on 
a  bond  given  by  him  under  it,  from  which 
he  has  received  benefits.  Greene  County 
V.  Lydy  (Mo.)  1917C-274. 

116.  Who  may  Assert  Invalidity.  A 
gas-distributing  company  cannot  assert 
that  constitutional  rights  of  a  gas-produ- 
cing and  transporting  company  furnishing 
gas  to  the  former  company  upon  the  basis 
of  a  percentage  of  meter  readings  will  be 
infringed  by  a  municipal  ordinance  fixing 
the  gas  rates  which  the  distributing  com- 


CONSTITUTIONAL  LAW. 


193 


pany  may  charge.      Newark  Natural  Qaa, 
etc.  Co.  V.  Newark  (U.  S.)  1917B-1025. 

117.  Persona  not  Affected.  The  defend- 
ant cannot  attack  the  validity  of  the 
Wash.  Commission  Merchants'  Law  on 
constitutional  groilnds  not  applicable  to 
their  particular  situation.  State  v,  Bowen 
&  Co.  (Wash.)  1917B-625. 

118.  Where  plaintiffs  attacked  the  con- 
stitutionality of  a  statute  authorizing  a 
county  to  issue  bonds  for  road  purposes  on 
the  ground  that  the  bonds  cast  a  cloud 
on  their  property  and  that  of  other  tax- 
payers, plaintiffs  cannot  urge  the  statute's 
invalidity  as  to  persons  who  owned  no 
property  and  paid  only  a  poll  tax,  not 
falling  within  that  class.  Moose  v.  Board 
of  Commissioners  (N.  Car.)  1917B-1183. 

119.  A  court  will  not  listen  to  an  ob- 
jection made  to  the  constitutionality  of  an 
act  by  a  party  whose  right  it  does  not 
affect  and  who  has  therefore  no  interest 
in  defeating  it.  State  v.  Philips  (Fla.) 
1918A-138. 

120.  A  person  who  does  not  belong  to  a 
class  alleged  to  be  unlawfully:,  discrimi- 
nated against  by  a  statute,  cannot  in  judi- 
cial proceedings  be  heard  to  assail  the 
constitutionality  of  the  statute  as  it 
affects  the  class,,  State  v.  Philips  (Fla.) 
1918A-138. 

121.  One  cannot  raise  an  objection  to 
the  constitutionality  of  a  part  of  a  stat- 
ute, unless  his  rights  are  in  some  way 
injuriously  affected  thereby,  or  unless  the 
unconstitutional  feature  renders  the  en- 
tire act  void  or  renders  the  portion  com- 
plained of  inoperative.  State  v.  Philips 
(Fla,)  1918A-138, 

122.  The  constitutionality  of  a  provi- 
sion of  a  statute  cannot  be  tested  by  a 
party  whose  rights  or  duties  are  not 
affcted  by  it,  unless  the  provision  is  of 
such  a  nature  that  it  renders  invalid  a 
provision  of  the  statute  that  does  affect 
the  party's  rights  or  duties.  State  v. 
Philips  (Fla.)  1918A-138. 

123.  All  constitutional  inhibitions  against 
the  taking  of  private  property  v/ithout 
due  process  of  law  and  all  constitutional 
guaranties  of  equal  rights  and  privileges, 
are  for  the  benefit  of  those  persons  only 
whose  rights  are  affected,  and  cannot  be 
taken  advantage  of  by  any  other  persons. 
State  T.  Taylor   (N.  Dak.)   1918A-583. 

124.  One  cannot  raise  an  objection  to 
the  constitutionality  of  a  part  of  a  statute, 
unless  his  rights  are  in  some  way  injuri- 
ously affected  by  the  statute,  or  unless 
the  constitutional  feature  renders  the  en- 
tire act  void.  Ghema  v.  State  (Ariz.) 
1916D-94. 

125.  Persons  Entitled  to  Attack  Statute. 
Where  specific  performance  of  a  contract 

13. 


for  the  sale  of  real  estate  to  a  colored  per- 
son, which  provided  that  he  should  not  be 
required  to  accept  a  deed  unless  he  had  a 
right  under  the  laws  of  the  state  and  the 
city  to  occupy  the  property  as  a  residence, 
was  denied  because  of  the  existence  of  an 
ordinance  making  it  unlawful  for  any 
white  or  colored  person  to  move  into  and 
occupy  as  a  residence  any  house  upon  any 
block  upon  which  a  greater  number  of 
houses  were  occupied  by  persons  of  the 
opposite  color,  the  vendor,  though  a  white 
man,  is  entitled  to  attack  the  constitu- 
tionality of  such  ordinance  notwithstand- 
ing the  rule  that  only  persons  whose 
rights  are  directly  affected  may  attack  the 
constitutionality  of  a  law  or  ordinance,  as 
his  right  to  sell  his  property  was  di- 
rectly involved  and  necessarily  impaired. 
Buchanan  v.  Warley  (U.  S.)   1918A-1201. 

c.     Avoidance   of   Determination. 

126,  Moot  Questions.  In  an  original 
proceeding  in  the  supreme  court,  wherein 
a  law  is  assailed  as  being  unconstitutional, 
the  court  will  not  anticipate  conditions 
which  may  never  arise,  or  determine  ques- 
tions relating  to  the  validity  of  minor 
provisions  as  to  detail,  but  will  consider 
only  those  questions  which  relate  to  the 
validity  of  the  whole  act.  State  v.  Tay- 
lor (N.  Dak.)  1918A-583. 

127,  Unnecessary  Constitutional  Ques- 
tions. The  rule  that  courts  will  not  pass 
upon  the  validity  of  statutes  unless  it  is 
necessary  to  a  disposition  of  the  appeal  ia 
one  of  comity,  and  may  properly  be  de- 
parted from  in  an  exceptional  case.  Hun- 
ter V.  Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803. 

d.    Waiver  of  Objection. 

128,  Statute  Long  Acquiesced  In.    That 

a  statute  has  for  years  been  enforced  by 
the  courts,  without  its  constitutionality 
being  challenged,  may  be  considered  as  a 
recognition  of  its  constitutionality,  and 
courts  will  seldom  entertain  questions  of 
the  constitutionality  of  a  statute  recog- 
nized as  valid  in  the  adjudication  of 
rights,  and  when  the  invalidity  of  the 
statute  would  lead  to  serious  consequences. 
Worthington  t.  District  Court  (Nev.) 
1916E-1097. 

129,  Provisions  of  Statute  not  Involved 
In  Case.  The  supreme  court,  where  called 
to  determine  the  validity  of  the  provi- 
sions of  Mo,  Eev,  St,  1909,  §  10695,  only  so 
far  as  they  relate  to  the  disposition  of  a 
part  of  the  fees  collected  by  probate 
courts,  will  not  consider  the  validity  of 
the  criminal  provisions  of  the  statute. 
Greene  County  v.  Lydy  (Mo.)  1917C-274. 

e.     Construction  in  Favor  of  Validity. 

130,  The  object  expressed  by  the  lan- 
guage of  the  statute  in  question  being  one 


194 


DIGEST. 

1916C— 1918B. 


that  the  legislature  may  lawfully  accom- 
plish under  its  police  power,  the  statute 
will  not  be  declared  to  be  unconstitutionnl 
upon  the  ground  that  the  purpose  of  the 
legislature  was  to  exact  from  the  public 
utilities  a  money  tribute  in  violation  of 
constitutional  principles;  first,  because  the 
purpose  of  the  legislature  is  known  to  the 
courts  only  in  so  far  as  it  appears  in  the 
object  expressed  by  the  language  of  its 
enactment,  and,  second,  because  in  dealing 
with  the  language  of  an  enactment  the 
courts  adopt,  if  possible,  that  construction 
which  will  sustain  the  statute  as  a  valid 
act  of  legislation.  State  v.  Sutton  (N.  J.) 
1917C-91.  (Annotated.) 

131.  When  the  constitutionality  of  a 
statute  is  questioned,  it  is  the  duty  of  the 
courts,  and  also  a  rule  of  construction,  to 
adopt  such  construction  as  will  make  the 
statute  constitutional  if  its  language  will 
permit.  Victor  Chemical  Works  v.  Indus- 
trial Board  (111.)   1918B-627. 

132.  Unconstitutionality  must  be  Cflear. 
A  statute  will  not  be  declared  unconstitu- 
tional, unless  clearly  so,  and  not  merely 
because  doubts  arise  as  to  its  validity. 
(jrreene  County  v.  Lydy  (Mo.)   I917C-274. 

133.  It  is  presumed  that  the  legislature 
intended  to  enact  a  valid  law,  and,  tuere- 
fore,  when  a  statute  is  susceptible  of  two 
constructions,  one  of  which  will  render 
it  valid  and  another  which  will  render  it 
unconstitutional  and  void,  the  former  con- 
struction will  be  adopted.  State  v,  Tay- 
lor (N.  Dak.)  1918A-583. 

134.  Validity  of  Statutes  Generally. 
All  acts  of  the  legislature  are  valid,  un- 
less they  conflict  with  the  state  or  fed- 
eral Constitution.  Board  of  Trustees  v. 
Waugh  (Miss.)  1916E-522. 

135.  Burden  of  Showing  Discrimination, 
The  burden  is  on  one  who  complains  that 
he  has  been  denied  the  equal  protection 
of  the  laws  to  sustain  the  complaint. 
State  V.  Philips  (Fla.)   1918A-138. 

f.    Presumption  in  Favor  of  Validity. 

136.  There  is  a  strong  presumption  in 
favor  of  the  validity  and  constitutionality 
of  an  act  of  the  legislature.  Victor 
Chemical  Works  v.  Industrial  Board  (III.) 
1918B-627. 

There  is  a  presumption  of  validity  in 
favor  of  a  statute  or  ordinance;  but  such 
presumption,  however  strong,  is  not  con- 
clusive, though  the  legislative  action  will 
be  sustained  if  possible  under  any  rea- 
sonably supposable  state  of  facts.  New- 
Orleans  V.  Toca  (La.)   1918B-1032. 

138,  Unless  an  act  is  clearly  and  be- 
yond all  rational  doubt  in  conflict  with  the 
constitution,  it  will  not  be  so  declared;  all 
reasonable     doubts    will    be    resolved    in 


favor    of   its   constitutionality.     Laughlln 
V.  Portland  (Me.)  1916C-734. 

139.  The  legislature  is  presumed  to  act 
within  its  powers,  and  its  lawmaking  dis- 
cretion within  its  powers  is  not  subject  to 
review  by  the  courts.  State  v.  Philips 
(Fla.)  1918A-138. 

140.  It  is  presumed  that  the  lawmaking 
power  intended  a  valid,  constitutional  en- 
actment.    State  V.  Philips   (Fla.)    1918A- 

Xoo. 

141.  Any  doubt  in  favor  of  the  validity 
of  a  statute  must  be  resolved  in  favor  of 
validity.  Hopkins  v.  Richmond  (Va.) 
1917B-1114. 

142.  The  presumption  of  the  constitu- 
tionality of  a  statute  attaches  to  each 
separable  provision  thereof,  and  the  in- 
validity of  any  provision  must  be  made 
to  appear  beyond  a  reasonable  doubt, 
before  the  court  can  declare  any  provision 
invalid.  Greene  County  v.  Lydy  (Mo.) 
1917C-274. 

In  construing  a  statute  authorizing  the 
destruction  of  diseased  cattle,  it  must  be 
presumed  that  the  legislature  has  care- 
fully investigated  and  determined  that  the 
interests  of  the  public  require  such  legis- 
lation,    Durand  v.  Dyson  (111.)  1917D-8i. 

144.  All  reasonable  doubts  as  to  the 
question  whether  a  statute  authorizes  tax- 
ation for  a  purpose  not  public  should  be 
resolved  in  favor  of  the  constitutionality 
of  the  act.  Perkins  v.  Board  of  County 
Commissioners   (111.)    1917A-27. 

145.  All  presumptions  are  in  favor  of 
the  constitutionality  of  a  statute.  Per- 
kins V.  Board  of  County  Commissioners 
(111.)  1917A-27. 

146.  All  reasonable  intendments  will  be 
made  in  favor  of  a  law  not  obviously  void 
on  its  face,  and  it  will  be  presumed  that 
the  legislature  has  acted  within  constitu- 
tional limitations.  State  v.  Bunting  (Ore.) 
:9I6C-1003. 

147.  An  act  of  a  state  legislature  will 
not  be  held  unconstitutional  unless  its  un- 
constitutionality appears  practically  be- 
yond a  reasonable  doubt,  since  the  state 
constitutions  do  not  grant  powers  to  the 
representatives  of  the  people,  but  such 
representatives  by  virtue  of  the  inherent 
sovereignty  of  the  people  have  every 
power  not  withheld  by  the  state  constitu- 
tion, or  given  to  the  federal  government 
bpr  the  federal  constitution.  MaCoy  v. 
Handlin  (S.  Dak.)   1917A-1046. 

148.  All  acts  of  the  legislature  are  to  be 
upheld  by  the  court,  unless  it  is  plainly 
apparent  that  they  conflict  with  the  or- 
ganic law,  after  solving  all  doubts  jn 
favor  of  their  validitv.  Board  of  Trus» 
tees  V.  Waugh  (Miss.)' 1916 E-522. 


CONSTITUTIONAL  LAW. 


195 


149.  Every  prefiumption  ia  in  favor  of 
the  validity  of  a  statute,  and,  until  the 
contrary  is  shown  beyond  a  reasonable 
doubt,  a  statute  enacted  in  the  exercise  of 
the  police  power  will  not  be  overturned. 
State  T.  Bowen  &  Co.  (Wash.)  1917&-625. 

150.  An  act  of  the  legislature  will  not 
be  declared  unconstitutional  unices  its 
conflict  with  the  constitution  is  clear  and 
certain.  Stout  v.  State  (Okla.)  1916E- 
858. 

151.  Where  a  statute  may  be  in  viola- 
tion of  constitutional  rights  according  to 
circumstances,  the  existence  of  circum- 
stances necessary  to  support  it  will  be 
presumed;  hence  it  will  be  presumed  in 
favor  of  Vt.  Laws  1890,  No.  179,  empower- 
ing a  paper  company  to  float  logs  and 
timbers  in  a  stream,  that  the  stream  was 
in  fact  navigable,  for  otherwise  the  act 
would  be  unconstitutional.  Boutwell  v. 
Champlain  Eealty  Co.  (Vt.)  1918A-726. 

152.  While  it  is  only  an  honest  exercise 
of  the  power  that  may  do  this,  the  courts 
presume  that  the  legislature  exercises  this 
power  in  a  legitimate  way,  and  is  not  at- 
tempting thereby  to  evade  the  constitu- 
tion. Hunter  v.  Colfax  Consolidated  Coal 
Co.   (Iowa)   1917E-803. 

153.  There  is  a  legal  presumption  of  the 
validity  of  a  statute;  if  there  is  doubt  aa 
to  its  constitutionality  the  doubt  shall  be 
resolved  in  favor  of  its  validity;  the  ex- 
pediency or  inexpediency  of  the  statute  is 
not  for  the  courts;  and  the  legislature's 
power  to  enact  laws  has  no  limitation  ex- 
cept the  express  limitations  of  the  state 
and  federal  constitutions.  State  v.  Mer- 
chants' Exchange  (Mo.)   1917E-871. 

154.  In  determining  the  constitutional- 
ity of  a  statute,  any  doubt  must  be  solved 
in  favor  of  the  legislative  action,  and  the 
power  to  set  aside  a  law  is  not  to  be  re- 
sorted to  unless  the  case  be  clear,  deci- 
sive, and  unavoidable.  Hunter  v.  Colfax 
Consolidated  Coal  Co.    (Iowa)    1917E-803. 

155.  A  statute  solemnly  enacted  is  not 
to  be  overthrown  by  anything  short  of  a 
positive  conviction  of  illegality.  Hill  v. 
Rae  (Mont.)  1917E-210. 

156.  Where  there  is  a  reasonable  doubt 
as  to  the  meaning  of  a  statute  the  court 
must  adopt  the  meaning  which  will  render 
it  constitutional,  for  an  act  must  be  up- 
held by  the  court  unless  its  repugnancy  to 
the  constitution  clearly  appears  beyond 
reasonable  doubt.  Cincinnati,  etc.  B.  Co. 
V.  McCuUom  (Ind.)  ■1917E-1165. 

1  g.     Wisdom  of  Statute. 

157.  Judicial  Review  of  Statutes.  It  is 
the  function  of  the  legislative  department 
to  enact  law,  and  of  the  judicial  depart- 
ment to  construe  and  apply  it;  and  the 
courts  cannot  pass  upon  the  wisdom  or 
justice  of  statutes,  but  arfe  simply  to  as- 


certain the  intent  of  the  lawmakers  as  ex- 
pressed therein  and  to  give  effect  thereto. 
Masses  Pub.  Co.  v.  Patten  (U.  S.)  1918B- 
999. 

158.  Policy  of  Statute.  The  wisdom  of 
laws,  etc.,  is  a  matter  for  the  legislature, 
and  it  is  the  sole  duty  of  the  courts  to 
say  whether  the  act  as  passed  is  viola- 
tive of  the  state  or  federal  constitutions. 
State  V.  Senatobia  Blank  Book  and  Sta- 
tionery Co.  (Miss.)   1918B-953. 

159.  Expediency  of  Statute.  The  wis- 
dom, necessity,  or  expediency  of  legisla- 
tion are  matters  for  legislative,  and  not 
judicial,  consideration.  State  v.  Taylor 
(N,  Dak.)  1918A-583. 

160.  While  the  courts  will  not  pass  upon 
the  wisdom  of  an  act  concerning  the  exer- 
cise of  the  police  power,  they  will  pass 
upon  the  question  whether  the  act  has  a 
substantial  relation  to  the  police  power. 
People  V.  Weiner  (111.)  1917C-1065. 

161.  Policy  of  Statute.  The  court,  in 
determining  the  validity  of  a  statute,  will 
not  consider  its  policy,  wisdom,  or  expedi- 
ency, but  will  enforce  it  in  accordance 
with  the  intention  of  the  legislature,  un- 
less clearly  in  conflict  with  the  consti- 
tution. Worthington  v.  District  Court 
(Nev.)   1916E-1097. 

162.  Policy     or     Wisdom     of     Statute. 

Criticisms  against  the  wisdom,  policy,  or 
applicability  of  a  statute  are  subjects  for 
legislative  consideration,  and  not  for  the 
court  in  determining  the  constitutionality 
of  the  act.  Perkins  v.  Board  of  County 
Commissioners  (111.)  1917A-27. 

163.  Policy  or  Wisdom  of  Statute. 
Questions  of  the  wisdom,  necessity,  and 
policy  of  law  are  solely  for  the  legisla- 
ture, and  if  the  legislature  proceeds  regu- 
larly, violating  no  constitutional  restric- 
tion, questions  as  to  the  necessity  and 
policy  of  the  law  are  conclusively  deter- 
mined in  favor  of  the  statute,  if  any  state 
of  facts  could  exist  which  would  justify 
it.  State  T.  Bowen  &  Co.  (Wash.)  1917B- 
625. 

164.  Mandatory  Nature  ef  Constitution. 
Where  constitutional  provisions  are  clear, 
the  courts  should  give  effect  to  them,  re- 
gardless of  their  wisdom.  Moose  v.  Board 
of  Commissioners  (N.  Car.)  1917E-1183. 

165.  The  court,  in  determining  the  con- 
stitutionality of  the  legislative  enactment, 
may  not  concern  itself  with  the  accuracy 
or  wisdom  of  the  legislative  view.  Hill  v. 
Eae  (Mont.)  1917E-210. 

166.  A  statute  enacted  within  the  police 
power  and  appearing  on  its  face  to  be  rea- 
sonable and  just  and  appropriate  cannot 
be  adjudged  unconstitutional,  though  the 
court  should  doubt  the  wisdom  of  the  stat- 
ute; and,  before  it  can  adjudge  the  stat- 
ute unconstitutional,  it  must  be  able  to 
see  either  that  there  is  no  real  substantial 


196 


DIGEST. 

1916C— 1918B. 


evil  of  public  interest  to  be  guarded 
against  or  that  there  is  no  reasonable  re- 
lation between  the  evil  and  the  purported 
prevention  offered  by  the  statute.  People 
V,  Charles  Schweinler  Press  (N.  Y.)  1916I>- 
1059. 

167.  Expediency  of  Statute.  The  court, 
in  determining  the  validity  of  a  statute, 
cannot  consider  its  wisdom  or  policy  or 
expediency.  Gherna  t.  State  (Ariz.) 
1916D-94. 

h.    Declaring    Statute     Unconstitutional. 

168.  Duty  of  Courts  to  Declare  Nullity. 
It  is  not  only  within  the  power,  but  it  is 
the  duty,  of  the  courts  in  proper  cases  to 
declare  an  act  of  the  legislature  unconsti- 
tutional, as  the  constitution  is  the  su- 
preme law  which  all  judges  are  sworn  to 
support,  and  the  courts,  in  declaring  what 
the  law  is,  must,  in  case  of  a  conflict  be- 
tween the  constitution  and  a  statute,  sus- 
tain the  constitution.  State  v.  Knight 
(N.  Car.)  1917D-517. 

169.  Courts  should  not  declare  acts  of 
the  legislature  unconstitutional  unless  sat- 
isfied of  their  unconstitutionality  beyond  a 
reasonable  doubt.  Victor  Chemical  Works 
V.  Industrial  Board  (111.)  1918B-627. 

170.  Invalidating  Statute — Conflict  With 
Constitution.  It  is  the  duty  of  the  courts 
to  enforce  valid  provisions  of  a  statute; 
but  a  statutory  provision  that  is  clearly  in 
conflict  with  organic  law  should  not  be 
enforced.  State  v.  Philips  (Fla.)  1918A- 
138. 

171.  Validity  of  Statute— In  Harmony 
With  Law  Eflfectuating  Constitutional 
Provision.  No  effect  can  be  given  to  a 
legislative  enactment,  however  broad  its 
provisions,  further  than  to  harmonize  it 
with  existing  law  which  is  necessary  to  a 
constitutional  requirement,  and  if  a  law 
be  held  to  have  been  intended  otherwise 
the  court  must  declare  it  void  for  uncer- 
tainty or  unconstitutionality.  State  v. 
Board  of  State  Canvassers  (Wis.)  1916I>- 
159. 

172.  Power  to  Annul  Statute.  If  by 
judicial  construction  a  legislative  enact- 
ment embodies  a  purpose  which  is  uncon- 
stitutional it  must  be  condemned.  State 
V.  Board  of  State  Canvassers  (Wis.) 
1916D-159. 

173.  Section  9205,  Eev.  Codes  N.  I>ak. 
1905,  may  be  enforced  and  sustained  even 
after  eliminating  therefrom  the  provision 
which  relates  to  the  fine.  EVen  after  the 
excision  of  such  part  of  the  statute,  it 
can  be  presumed  that  the  legislature 
would  have  passed  the  act,  even  though 
it  had  realized  that  the  unconstitutional 
part  would  be  eliminated  therefrom.  State 
V.  Bickford  (N.  Dak.)   1916D-140. 

(Annotated.) 


174.  One  charged  with  selling  liquor  in 
violation  of  the  prohibition  amendment  to 
the  Ariz,  constitution  may  not  raise  the 
question  of  the  constitutionality  of  the 
provision  prohibiting  the  introduction  into 
the  state  of  intoxicating  liquor  as  an  in- 
terference with  interstate  commerce,  un- 
less that  provision,  if  invalid,  renders  the 
entire  amendment  invalid.  Gherna  v. 
State  (Ariz.)  1916D-94.  (Annotated.) 

13.  CONSTEUCTION     OP     CONSTITU- 

TION. 

175.  Constitutional  Declaration  of  Pur- 
poses. In  said  section  14  of  the  Idaho 
constitution  the  people  have  declared  the 
necessary  use  of  lands  to  the  complete  de- 
velopment of  the  material  resources  of  the 
state  to  be  a  public  use,  and  the  legisla- 
ture has  provided  a  procedure  to  subject 
such  lands  to  such  use.  Blackwell  Lum- 
ber Co.  V.  Empire  Mill  Co.  (Idaho)  1918A- 
189. 

176.  By  that  provision  of   said  section 

14,  Idaho  Const.,  to  wit,  "or  any  other  use 
necessary  to  the  complete  development  of 
the  material  resources  of  the  state  .  .  . 
is  hereby  declared  to  be  a  public  use,"  it 
was  intended  to  and  does  include  and 
cover  every  material  resource  of  the  state, 
and  it  is  for  the  court  to  determine  upon 
the  facts  of  each  case  whether  or  not  the 
case  comes  within  the  provisions  of  said 
section  of  the  constitution.  Blackwell 
Lumber  Co.  v.  Empire  Mill  Co.  (Idaho) 
1918A-189. 

177.  That  clause  of  said  section  14, 
Idaho  Const.,  to  wit,  "subject  to  the  regu- 
lation and  control  of  the  state,"  refers  to 
the  machinery  or  procedure  necessary  to 
subject  private  lands  to  a  public  use. 
Blackwell  Lumber  Co.  v.  Empire  Mill  Co. 
(Idaho)   1918A-189. 

178.  Section  2  of  article  XIII  of  the 
Ohio  constitution,  as  amended  in  Septem- 
ber, 1912,  contains  a  specific  grant  of 
power  to  the  legislature  to  provide  by  law 
for  the  regulation  of  the  sale  and  convey- 
ance of  personal  property,  and  is  a  quali- 
fication to  that  extent  of  the  guaranties 
contained  in  the  Bill  of  Rishts.  Steele, 
etc.  Co.  V.  MUler  (Ohio)  1917C-926. 

179.  The  Kan.  constitution  was  not 
framed  and  adopted  for  the  special  pro- 
tection of  those  who  violate  statutes,  but 
for  the  good  of  the  entire  citizenship,  and 
is  to  be  construed  with  due  regard  for  in- 
evitable changes  in  social  conditions  and 
the  advancement  made  in  respect  to  the 
health,  morals,  and  welfare  of  the  people. 
State  V.  Missouri  Pacific  E.  Co.  (Kan.) 
1917A-612. 

180.  Words  Taken  in  Ordinary  Sense. 
In  construing  a  state  constitution  the  lan- 
guage thereof  is  to  be  taken  in  its  gen- 
eral and  ordinary  sense,  and  when  words 


CONSTITUTIONAL  LAW. 


197 


having  "both  a  restricted  and  general 
meaning  are  used,  the  general  must  pre- 
vail, unless  the  context  clearly  indicates 
that  the  limited  sense  was  intended. 
Bronson  v.  Syverson   (Wash.)   1917r)-833. 

181.  Contemporaneous  Construction. 
Where  the  language  of  the  constitution 
and  the  intent  of  the  people  in  adopting 
it  are  clear  and  free  from  doubt  or  un- 
certainty, the  practice  of  the  general  as- 
sembly and  officers  of  the  government  in 
making  appropriations  has  no  influence  in 
determining  their  legality,  since  contem- 
poraneous •construction  is  of  value  only 
where  there  is  doubt  and  uncertainty. 
Fergus  v.  Brady  (111.)  1918B-220. 

182.  Citizens — State  and  Federal  Citi- 
zenship. Und«r  Const.  Amend.  14  (9  Fed. 
St.  Ann.  384),  providing  that  all  persons 
born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof  are 
citizens  of  the  United  States  and  of  the 
state  wherein  they  reside,  citizenship  in 
the  United  States  is  paramount  and  domi- 
nant, instead  of  being  subordinate  to  and 
derivative  from  state  citizenshjp.  Selec- 
tive Draft  Law  Cases  (U.  S.)  1918B-857. 

14.    AMENDMENT  OF  CONSTITUTION, 
a.     Adoption. 

183.  Number  of  Votes  Cast.  Under 
Const.  Miss.  1890,  §  273,  providing  that,  if 
it  shall  appear  that  a  majority  of  the  quali- 
fied electors  voting  shall  have  voted  for 
the  proposed  change,  alteration,  or  amend- 
ment, that  it  shall  be  inserted  by  the  next 
succeeding  legislature  as  a  part  of  this 
constitution,  and  not  otherwise,  amended 
returns  of  an  election  upon  a  constitu- 
tional amendment,  showing  the  number  of 
electors  appearing  at  the  polls  and  voting, 
legally  or  otherwise,  which  may  or  may 
not  have  been  counted  in  ascertaining  the 
result  of  the  election,  are  of  no  value, 
since  they  do  not  show  the  number  of 
qualified  electors  voting,  for  the  reason 
that,  though  a  qualified  voter  succeeds  in 
getting  his  name  on  the  poll  list  and  a 
ballot  in  the  box,  he  is  not  a  voter  voting 
unless  his  ballot  is  such  as  is  prescribed 
by  law  and  conforms  to  the  general  law 
regulating  elections.  State  v.  Brantley 
(Miss.)   1917E-723. 

184.  Proposal    by    Legislature— Entries. 

Under  Const.  Wash.  art.  23,  §  1,  providing 
that  constitutional  amendments  may  be 
proposed  in  either  branch  of  the  legisla- 
ture, and,  if  agreed  to  by  two-thirds  of 
the  members  of  each  branch,  shall  be  en- 
tered on  their  journals  with  the  ayes  and 
noes  thereon,  and  be  submitted  to  the  elec- 
tors for  their  approval  at  the  next  gen- 
eral election,  entries  made  on  the  journals, 
referring  to  a  proposed  amendment  in  the 
language  of  its  title,  that  being  sufficient 
as  such,  were  sufficient  without  copying 
such    proposed    amendment    in    the    jour- 


nals in  full.     Gottstein  v.  Lister  (Waah.) 
1917D-1008. 

185.  Form  of  Amendment.  Const.  Wash, 
art.  23,  §  1,  provides  that  any  amend- 
ment to  the  constitution  may  be  proposed, 
provided  that,  if  more  than  one  amend- 
ment be  submitted,  they  shall  be  submit- 
ted so  that  the  people  may  vote  for  or 
against  each  amendment  separately;  arti- 
cle 2,  §  1,  vests  the  legislative  power  in  a 
senate  and  house  of  representatives,  to  be 
called  the  legislature  of  the  state;  and  the 
seventh  amendment  approved  March  10, 
1911  (Wash.  Laws  1911,  p.  136),  purport- 
ing to  directly  amend  article  2,  §  1,  sub- 
stantially repeated  its  language,  and  quali- 
fied it  by  adding  provisions  therein  for 
the  exercise  of  legislative  powers  directly 
by  the  people  through  the  initiative  and 
referendum,  and  by  withholding  the  veto 
power  of  the  governor  from  "measures  ini- 
tiated by  or  referred  to  the  people."  It 
is  held,  on  objection,  that  the  legislative 
proposal  involved  more  than  one  amend- 
ment, and  at  least  two  separate  subjects, 
that  the  amendment  dealt  with  but  one 
subject  of  legislative  power,  the  partici- 
pation of  the  people  in  legislation  by  di- 
rect vote,  and  that  all  else  was  incidental 
thereto,  so  that  it  was  properly  submitted 
as  one  proposition.  Gottstein  v.  Lister 
(Wash.)  1917D-1008. 

186.  Number  of  Votes  Bequired.  Under 
Const.  Wash.  Amend.  7,  approved  March 
10,  1911  (Laws  1911,  p.  136),  providing 
that  initiative  measures  should  become 
effective  if  approved  by  a  majority  of 
votes  cast,  if  the  votes  cast  equaled  one- 
third  of  the  total  votes  cast  at  such  elec- 
tion, it  is  held  that  the  term  "votes  cast 
at  such  election,"  meant  the  same  as 
"number  of  voters  voting  at  such  elec- 
tion," and  that  since  the  court  judicially 
knew  that  more  than  one-third  of  the 
voters  voting  on  the  amendment  voted  for 
its  adoption,  it  was  constitutionally  adop- 
ted. Gottstein  v.  Lister  (Wash.)  1917I>- 
1008. 

187.  Judicial  Power  to  Eevlew  Proce- 
dure. The  courts  have  the  power  to  de- 
clare void  any  attempted  amendment  to 
the  constitution  which  is  not  adopted  as 
prescribed  by  the  constitution  itself,  and 
it  is  their  duty  to  do  so  when  the  want  of 
such  prerequisites  is  of  a  substantial  na- 
ture, and  such  that  the  court  can  judici- 
ally know  that  there  has  been  a  want 
thereof.  Gottstein  v.  Lister  (Wash.) 
1917D-1008. 

b.     Construction  and  Operation. 

188.  Construction  of  Constitution.  The 
court,  in  construing  a  constitutional 
amendment,  may  transpose  sentences  and 
sections,  to  aid  in  arriving  at  the  true 
construction  thereof.  Gherna  v.  State 
(Ariz.)  1916D-94. 


198 


DIGEST. 

1916C— 1918B. 


189.  Harmonizing  Parts.  The  conrt,  in 
construing  the  prohibition  amendment  to 
the  Ariz,  constitution,  must  construe  it  as 
a  whole  and,  if  possible,  give  eCfect  to  the 
whole  and  to  every  section  and  clause; 
and,  where  different  portions  thereof  seem 
to  conflict,  it  must  harmonize  them,  if 
practicable,  and  lean  in  favor  of  a  con- 
struction which  will  render  every  provi- 
sion operative.  Gherna  v.  State  (Ariz.) 
1916D-94. 

190.  A  constitutional  amendment  which 
aims  to  enlarge  the  power  of  the  legisla- 
ture or  to  remove  doubts  concerning  its 
power  should  not  be  given  too  strict  and 
literal  an  interpretation.  Western  Metal 
Supply  Co.  v.  Pillsbury  (Cal.)   1917E-390. 

CONSTITUTIONAL  QUESTION. 

Jurisdiction  of  appellate  court^  see  Appeal 
and  Error,  25. 

CONSTRUCTION. 

By-laws,  see  Beneficial  Associations,  11. 

Of  negotiable  instruments,  see  Bills  and 
Notes,  8-11. 

Broker's  contract,  strictly  construed,  see 
Brokers,  1. 

Of  charitable  gifts,  see  Charities,  12,  14. 

Of  contracts,  see  Contracts,  7-22. 

Of  building  or  working  contracts,  see  Con- 
tracts, 78,  79. 

Of  deeds,  see  Deeds,  38-75. 

Of  fire  policies,  see  Fire  Insurance,  8-22. 

Of  Bulk  Sales  Act,  see  Fraudulent  Sales 
and  Conveyances,  18. 

Of  ai'tenuptial  contracts,  see  Husband  and 
Wife,  20. 

Of  instructions,  see  Instructions,  9-11. 

Of  insurance  policies,  see  Insurance,  9-23. 

Of  judgments,  see  Judgments,  15,  16. 

Of  defamatory  language,  see  Libel  and 
Slander,  22-23. 

Of  life  policy,  see  Life  Insurance,  24. 

Ui.  Workmen's  Compensation  Acts,  see  Mas- 
ter and  Servant,  168-178. 

Of  Anti-trust  Act,  see  Monopolies,  12. 

Of  city  charter,  see  Municipal  Corpora- 
tions, 15-18. 

Of  ordinances,  see  Municipal  Corporations, 
92-99. 

Of  statutes,  see  Statutes,  47-115. 

Of  suretyship  contracts,  see  Suretyship, 
8-13. 

Of  taxation  statutes,  see  Taxation,  35-39, 
70-85. 

Of  exemption  statutes,  see  Taxation,  70-85. 

Foreign  Corporation  Tax  Act,  see  Taxa- 
tion, 154-163. 

Of  Income  Tax  Act,  see  Taxation,  194- 
199. 

Of  treaties,  see  Treaties,  1-4.  6. 

Of  forest  laws,  see  Trees  and  Timber,  2-5. 

Of  trusts,  see  Trusts  and  Trustees,  1-3. 

Of  usury  laws,  see  Usury,  3-8. 

Of  contract  to  sell  land,  see  Vendor  and 
Purchaser,  6,  7. 


Espionage  Act,  see  War,  19-25. 

Of   I^niform  Warehouse  Receipts  Act,  see 

Warehouses,  6-9. 
Of  grants  of  water  power,  see  Waters  and 

Watercourses,  6-11. 
State    inspection    laws,    see  Weights    and 

Measures,  1-3. 
Of  wills,  see  Wills,  145-228. 

CONSTRUCTIVE  NOTICE. 
Record  as  notice,  see  Recording  Acts,  6-10. 

CONSTRUCTIVE  POSSESSION. 

See  Adverse  Possession,  5-8,  23,  24. 
How  divested,  see  Adverse  Possession,  30. 

CONSTRUCTIVE   SERVICE. 
See  Process,  7-12. 

CONSULS. 
See  Ambassadors  and  Consuls. 

CONTAGIOUS  DISEASES. 
See  Health. 

CONTEMPT. 

1.  Classification  of  Contempts,  198. 

2.  Conduct  Constituting  Contempt,  198. 

a.  Obstructing  Service  of  Process,  198, 

b.  Criticism  of  Court,  199. 

c.  Newspaper  Comment,  199. 

d.  Defaming  Legislature,  199. 

3.  Power  to  Punish,  199. 

4.  Proceedings   for   Punishment,  200. 

a.  Sufficiency  of  Evidence,  20O. 

5.  Punishment,  200. 

6.  Review  of  Proceedings,  200. 

Review  of  proceedings,  see  Appeal  and 
Error,  33. 

Unauthorized  practice  of  law,  see  Attor- 
neys, 6,  7. 

Disbarment  not  contempt  proceeding,  see 
Attorneys,  53. 

Concealment  of  assets,  see  Bankruptcy, 
36. 

1.  CLASSIFICATION  OF  CONTEMPTS. 

1.  The  enumeration  in  Mont.  Rev.  Codes. 
§  7309,  of  acts  constituting  contempt  is  not 
exclusive,  for  section  8275  refers  to  other 
acts  as  constituting  contempt.  State  v. 
District  Court  (Mont.)   1918A-985. 

2.  CONDUCT     CONSTITUTING      CON- 

TEMPT. 

a.     Obstructing  Service  of  Process. 

2.  Evading  Service  of  Process.  A  wit- 
ness who,  to  evade  service  of  subpoena  to 
be  issued,  absconds  and  conceals  himself  at 
the  request  of  a  brother  of  one  indicted 
for  murder,  is  guilty  of  constructive  con- 


CONTEMPT. 


199 


tempt  of  court.     Aarons  v.  State   (Miss.) 
1916E-263.  (Annotated.) 

b.     Criticism  of  Court. 

3.  Criticism  Bespecting  Fast  Decision. 
The  purpose  to  be  subserved  by  investing 
courts  with  the  power  to  punish  contempt, 
as  is  recognized  by  Const.  Mont.  art.  8, 
§  3,  authorizing  writs  of  certiorari  in  pro- 
ceedings for  contempt  in  the  district  court, 
is  to  enable  the  courts  to  maintain  order, 
and  compel  respect  for  their  lawful  orders, 
and  enable  them  to  investigate  and  deter- 
mine causes  before  them  without  hind- 
rance, and  any  publication  tending  to  in- 
terrupt the  due  course  of  judicial  admin- 
istration may  be  punished  as  contempt, 
but  criticism  of  a  court  after  rendition  of 
a  decision,  based  on  the  decision,  is  not 
punishable  as  contempt,  but  is  within  the 
constitutional  guaranty  of  freedom  of 
speech,  guaranteed  by  article  3,  section  10. 
State  v.  District  Court  (Mont.)  1918A-985. 

e.     Newspaper  Comment. 

4.  Persons  Liable  for  Newspaper  Pub- 
lication. Hespondents,  the  publisher  and 
managing  editor  of  a  newspaper  published 
in  a  city  where  a  federal  court  was  in 
session,  and  circulated  extensively  in  the 
city  and  throughout  the  state,  permitted 
to  be  published  therein  an  article  contain- 
ing statements  relating  to  the  defendant  in 
a  criminal  case  then  on  trial,  such  as  that 
he  was  a  paroled  convict  from  the  peniten- 
tiary of  another  state,  was  said  to  have 
committed  other  crimes  described  and 
other  statements,  not  based  on  any  evi- 
dence in  the  case  nor  admissible  therein, 
but  which  were  extremely  prejudicial  to 
the  defendant.  The  article  was  read  by 
some  of  the  jurors  in  the  case,  and  made 
it  necessary  to  discharge  the  jury  and  con- 
tinue the  case.  It  is  held  that  the  court 
was  within  its  power  in  imposing  a  fine  for 
contempt  on  the  publisher  of  the  paper 
and  also  on  the  managing  editor,  although 
he  did  not  personally  see  the  article  be- 
fore its  publication,  on  the  ground  that 
he  failed  in  his  duty  to  exercise  proper 
editorial  supervision.  In  re  Independent 
Pub.  Co.  (Fed.)  1917C-1084. 

5.  Freedom  of  Press.  The  public  press 
is  not  immune  from  the  provisions  of  such 
statute  authorizing  punishment  for  con- 
tempts, but  the  freedom  of  the  press  guar- 
anteed by  the  constitution  is  subordinate 
to  the  independence  of  the  judiciary,  and 
a  newspaper  article  tendinig  to  interfere 
with  the  orderly  procedure  of  the  courts 
or  to  obstruct  the  administration  of  justice 
in  accordance  with  legal  standards  is  a 
contempt  which  is  committed  wherever  the 
newspaper  is  intended  to  and  docs  in  fact 
circulate.  In  re  Independent  Pub.  Co. 
(Fed.)  1917C-1084. 


6.  Newspaper  Publication  as  Contempt. 
Publishers  of  newspapers  have  the  right, 
but  no  higher  right  than  others,  to  pub- 
lish the  conduct  of  the  courts,  but  such 
right  is  limited  by  the  obligation  to  ob- 
serve respect  for  truth  and  fairness.  In 
re  Hayes  (Fla.)  1918B-936. 

d.    Defaming  Legislature. 

7.  The  implied  power  of  the  House  of 
Eepresentatives  to  deal  directly  by  way 
of  contempt,  without  criminal  prosecution, 
with  acts,  the  prevention  of  which  is 
necessary  to  preserve  and  to  carry  out  its 
legislative  authority,  does  not  embrace  the 
punishment,  as  for  a  contempt,  of  the  ac- 
tion of  a  federal  district  attorney  in  writ- 
ing and  publishing  a  letter  addressed  to 
the  chairman  of  a  subcommittee  of  the 
house,  containing  matter  defamatory  to  the 
house  or  the  committee,  even  conceding 
that  the  house  was  considering,  and  its 
committee  contemplating,  impeachment 
proceedings  against  that  official.  Mar- 
shall V.  Gordon  (U.  S.)  1918B-371. 

(Annotated.) 

8.     POWER  TO  PUNISH. 

8.  Acts  not  In  Pretence  of  Court.  Under 
the  provision  of  Judicial  Code,  §  268  (Act 
March  3,  1911,  c.  231,  36  Stat.  1163  [Fed. 
St.  Ann.  1912  Supp.  p.  243]),  that  the 
power  of  the  federal  courts  to  punish  con- 
tempts "shall  not  be  construed  to  extend 
to  any  cases  except  the  misbehavior  of  any 
person  in  their  presence  or  so  near  thereto 
as  to  obstruct  the  administration  of  jus- 
tice" the  physical  nearness  to  the  place 
where  the  court  is  in  session  of  the  actual 
commission  of  the  act  charged  as  a  con- 
tempt is  not  important,  but,  as  in  the  law 
of  constructive  presence  in  criminal  cases, 
the  misbehavior  is  committed  where  it 
takes  effect.  In  re  Independent  Pub.  Co. 
(Fed.)    1917C-108'4.  (Annotated.) 

9.  Power  to  Punish  as  Inherent.  The 
power  of  a  court  of  record  to  punish  for 
contempt  is  inherent  in  the  court.  State 
V.  District  Court  (Mont.)  1918A-985. 

10.  Power  of  Congress  to  Punish — Na- 
ture  and  Extent  of  Power.  The  distinc- 
tion between  legislative,  executive,  and 
judicial  powers,  recognized  by  the  federal 
constitution,  and  the  express  limitations 
in  such  constitution,  negative  any  impli- 
cation of  the  possession  of  Congress  of  the 
commingled  legislative- judicial  authority 
as  to  contempts  which  is  exert*d  in  the 
English  House  of  Commons.  Marshall  v. 
Gordon  (U.  S.)  1918B-371.       (Annotated.) 

11.  Power  to  deal  directly  by  way  of 
contempt  without  criminal  prosecution 
may  be  implied  from  the  constitutional 
grant  of  legislative  power  to  Congress  in 
so  far,  and  so  far  oidy,  as  such  authority 


200 


DIGEST. 

1916C— 1918B. 


is  necessary  to  preserve  and  to  carry  out 
the  legislative  power  granted,  Marshall 
V.  Gordon  (U.  S.)  1&18B-371. 

(Annotated,) 

12.  Punishment  for  contempt  as  punish- 
ment for  the  offense  is  not  embraced  in  the 
authority  to  deal  directly  by  way  of  con- 
tempt without  criminal  prosecution,  im- 
plied from  the  constitutional  grant  of 
legislative  power  to  Congress,  since  such 
power  rests  only  upon  the  right  of  self- 
preservation,  i.  e.,  the  right  to  prevent  acts 
which,  in  and  of  themselves,  inherently 
obstruct  or  prevent  the  discharge  of  legis- 
lative duty,  or  the  refusal  to  do  some- 
thing which  there  is  an  inherent  legislative 
power  to  compel,  in  order  that  legislative 
functions  may  be  performed.  Marshall  v. 
Gordon  (U.  S.)  1918B-371. 

(Annotated.) 

13.  Congressional  authority  to  deal  di- 
rectly by  way  of  contempt  without  crim- 
inal prosecution  with  acts  which  interfere 
with  the  preservation  of  its  legislative  au- 
thority does  not  cease  to  exist  merely  be- 
cause the  act  complained  of  may  have  been 
committed  before  the  authority  is  exerted. 
Marshall  v.  Gordon  (U.  S.)  1918B-371. 

(Annotated.) 

14.  Inherent  Power  to  Punish.  This 
court  has  the  inherent  power,  independent 
of  statutory  authority,  to  punish  as  for  a 
direct  contempt  any  person  who  during  the 
pendency  of  a  cause  before  this  court  pub- 
lishes an  article  referring  to  such  canse 
which  reflects  upon  the  efficiency  and  in- 
tegrity of  the  court.  In  re  Hayes  (Fla.) 
1918B-936. 

Note. 
Power   of   legislature   to  punish  person 
other  than  witness  for  contempt.     1918B- 
378. 

4.    PROCEEDINGS  FOB  PUNISHMENT. 
a.     Sufficiency  of  Evidence, 

15.  Eemoving  Children  from  Jurisdic- 
tion. Evidence  in  habeas  corpus  held  suf- 
ficient, if  it  was  the  same  as  that  in  the 
contempt  proceedings,  to  authorize  a  jifdg- 
ment  that  the  applicant  was  in  contempt 
for  the  violation  of  its  injunction  against 
removing  his  children  from  the  jurisdic- 
tion of  the  court.  Ex  parte  Ellerd  (Tex.) 
1916D-361. 

5.     PUNISHMENT. 

16.  Matters  Considered,  It  is  ^thin  the 
discretion  of  the  court,  in  imposing  a  fine 
for  a  criminal  contempt  which  made  it 
necessary  to  discharge  the  jury  and  grant 
a  continuance  in  a  criminal  case  then  on 
trial,  to  take  into  consideration  the  in- 
creased costs  thus  incurred  by  the  gov- 
ernment. In  re  Independent  Pub.  Co. 
(Fed,)  1917C-1084. 


17.  Imprisonment  only,  and  for  a  term 
not  exceeding  the  session  of  the  body  in 
which  the  contempt  occurred,  is  the  limit 
of  the  authority  to  deal  directly  by  way 
of  contempt  without  criminal  prosecution, 
implied  from  the  constitutional  grant  of 
legislative  power  to  Congress  in  so  far  as 
such  authority  is  necessary  to  preserve  and 
to  carry  out  the  legislative  power  granted, 
Marshall  v.  Gordon  (U.  S,)  1918B-371. 

(Annotated.) 

6,     REVIEW  OF  PROCEEDINGS, 

18.  Violation  of  Injunction,  Where  no 
appeal  was  taken  from  a  decree  for  a  per- 
manent injunction,  rendered  after  due  ser- 
vice on  defendant,  the  sufficiency  of  the 
evidence  to  sustain  that  decree  or  the 
regularity  of  the  proceedings  cannot  be 
reviewed  on  appeal  from  a  sentence  for 
contempt  except  in  so  far  as  to  determine 
the  jurisdiction  of  the  court  over  the  sub- 
ject-matter. People  V.  Clark  (111.)  1916D- 
785. 

19.  Sufficiency  of  Evidence.  A  decree 
entered  on  default,  sentencing  for  con- 
tempt of  court  for  disobedience  to  an  in- 
junction, cannot  be  reviewed  on  the 
ground  of  the  insufficiency  of  the  evidence; 
since  the  default  admits  the  facts  alleged. 
People  V.  Clark  (111.)  1916D-785. 

CONTENTS. 
Meaning,  see  Wills,  172. 

CONTEST  OF  WILL. 
.See  Wills,  114-144. 

CONTESTS. 
Of  elections,  see  Elections,  82-94. 

CONTINGENT  ESTATE. 

Failure  of  condition,  see  Estates,  2. 
Option  creates  vested  estate  when,  see  Per- 
petuities, 3. 

CONTINGENT  REMAINDER. 

See  Remainders  and  Reversions,  5,  8-10, 
14,  15,  21,  22, 

CONTINUANCE, 
See  Trial. 
Harmless    error    in    refusing,    see    Appeal 

and  Error,  333. 
Necessity    of     exception    for    review,    see 

Appeal  and  Error,  395. 
Amendment  as  ground  for,  see  Libel  and 

Slander,  112. 

CONTINUOUS  POSSESSION. 
See  Adverse  Possession,  12,  13. 


CONTRACTOR— CONTRACTS. 


201 


CONTRACTOR. 
Defined,  see  Mechanics'  Liens,  7. 

CONTBACTS. 

1.  Elements,  202. 

a.  Offer  and  Acceptance,  202. 

b.  Duress,  202. 

2.  Execution,  202. 

3.  Construction  and  Interpretation,  202. 

a.  In  General,  202. 

b.  Particular  Contracts,  203. 

4.  VaUdity,  203. 

a.  Contracts  in  Violation  of  Statute 

or  Ordinance,  203. 

b.  Contracts     Affecting     Administra- 

tion of  Justice,  204. 

c.  Contracts      Relating      to      Public 

Lands,  204. 

d.  Contracts  for  Suppression  of  Bid- 

ding, 204. 

e.  Enforcement  of  Illegal  Contracts, 

205. 

(1)  Recovery        on        Quan|:um 

Meruit,  205. 

(2)  Proof  of  Illegality,  205. 

f.  Contracts   Against   Public   Policy, 

205. 

g.  Contracts  Affecting  Elections,  206. 
h.  Contracts  Partially  Illegal,  206. 

5.  Modification  or  Merger,  206. 

6.  Performance  or  Breach,  206. 

a.  Performance,  206. 

b.  Acts  Constituting  Breach,  206. 

c.  Excuses  for  Nonperformance,  206. 

7.  Implied  Contracts,  207. 

8.  Actions,    207. 

a.  Remedies  for  Breach,  207. 

b.  Pleading,  207. 

c.  Evidence,  207. 

d.  Questions  for  Jury,  207. 

e.  Questions  of  Law  and  Fact,  208. 

f.  Damages,  208, 

9.  Building  or  Working  Contracts,  209. 

a.  Construction   of    Provisions,    209. 

b.  Perfermance  or  Breach,  209. 

c.  Bond  of  Contractor,  210. 

d.  Architect's  Certificate,  210. 

e.  Actions,  211. 

(1)  Evidence,  211. 

(2)  Damages,  211. 

(3)  Judgment,  211. 

f.  Right   to   Terminate   Contract  for 

Nonpayment,   212. 

10.  Avoidance  for  Fraud,  212. 

See  Accident  Insurance,  1,  6,  7;  Accord 
and  Satisfaction;  Agency;  AJtcratioH 
of  Instruments;  Bailment,  1-3;  Bills 
and  Notes;  Champerty  and  Mainte- 
nance; rire  Insurance;  Fraud;  Frauds, 
Statute  of;  Good  Will;  Guaranty;  In- 
dependent Contractors;  Infants;  In- 
surance; Landlord  and  Tenant;  Life 
Insurance;  Limitation  of  Actions; 
Master  and  Servant;  Municipal  Cor- 
porations, 36.  129-131;  Novation; 
Parent  and  Child,  2,  4.  6-8;  Physicians 
and  Surgeons,  14-18;  Public  Contracts; 
Public  Ofllcers,  5;  Public  Policy,  1; 
Rescission;  Cancellation  and  Reforma- 


tion; Rewards;  Sales;  Seals;  Specific 
Performance;  Suretyship;  Vendor  and 
Purchaser. 

Establishment  of  party- wall,  see  Adjoining 
Landowners,  6. 

Liability  of  principal  to  agent,  see  Agency, 
4,  5. 

Effect  of  alteration,  see  Alteration  of  In- 
struments, 8-11. 

Assignment   of     executory    contracts,   see 
Assignments,  7-10.  . 

Remedy   for   discharge    from   service,  see 
Assumpsit,  1. 

Compensation  of  attorneys,  see  Attorneys, 
17-35. 

Collection  agreement  with  bank,  see  Banks 
and  Banking,  61. 

Insurance    contracts    of    associations,  see 
Beneficial  Associations,  1-7. 

Contracts  of  brokers,  see  Brokers. 

Foreign    contract,    enforcement,   see   Con- 
flict of  Laws,  10,  12-14. 

Liberty    to    contract,    see    Constitutional 
Law,  53. 

Impairing  contract  obligations,  see  Consti- 
tutiomal  Law,  71,  72. 

Liberty    to    contract,    see   Constitutional 
Law,  81. 

Of  convicts,  see  Convicts,  1. 

Of  counties,  see  Counties,  19. 

Measure  of  damages  for  breach,  see  Dam- 
ages, 7-11. 

Written  contract,  parol  evidence,  see  Evi- 
dence, 114-131. 

Statutes  part  of  contract,  see  Fire  Insur- 
ance, 6. 

Of  married  women,  see  Husband  and  Wife, 
1^12. 

Antenuptial  contracts,  see  Husband  and 
Wife,  15-25. 

Liability  of  infants,  see  Infants,  1-17. 

Injunction  to  prevent  breach,  see  Injunc- 
tions, 10-12. 

Insurance  policies,  see  Insurance,  9-23. 

Creation  of  joint  tenancy  by  contract,  see 
Joint  Tenants,  8. 

Contract  to  pay  rent  implied  from  occu- 
pancy, see  Landlord  and  Tenant,  32. 

Of  employment,  see  Master  and  Servant, 
1-8. 

Contracts  forming  basis  for  mechanics* 
liens,  see  Mechanics'  Liens,  3-8. 

Enlistment  as  contract,  see  Militia,  14. 

Restraint  on  future  occupation,  see  Monop- 
oUes,  5,  13. 

Power  of  partner  to  bind  firm,  see  Part- 
nership, 27,  28. 

Variance  in  date,  see  Pleading,  101. 

Cancellation,  see  Rescission,  Cancellation 
and  Reformation,  13-15. 

Contracts  employing  school  teachers,  see 
Schools,  29-30. 

Set-off  of  breach  of  warranty  in  action  for 
repairs,  see  Set-off  and  Counterclaim, 
3. 

Sunday  contracts,  validity,  see  Sundays 
and  Holidays,  1-6. 

Taxation  of  contracts,  see  Taxation,  33. 


A-^vL^W  2).  £/^^^^u:haWw 


202 


DIGEST. 

1916C— 1918B. 


For  improvement  Tinder  special  assess- 
ment, see  Taxation,  126. 

Subscriber's  contract  for  telephone  ser- 
vice, see  Telegraphs  and  Telephones, 
37. 

For  use  of  railroad  right  of  way,  see 
Telegraphs  and  Telephones,  6,  7. 

Breached  contract  to  devise  as  creating 
trust,  see  Trusts  and  Trustees,  15. 

Effect  of  usury,  see  Usury,  3,  9-11. 

Effect  on  renewal  of  contract,  see  Usury, 
12-18. 

Wax  as  excusing  breach,  see  War,  18. 

Contracts  to  devise,  see  Wills,  5-7. 

Of  legatees  for  division  of  personalty,  see 
Wills,  254. 

1.     ELEMENTS, 
a.     Offer  and  Acceptance. 

1.  Effect  of  Acceptance — Consideration. 
Upon  acceptance,  the  obligations  became 
mutual,  and  the  promise  of  one  furnished 
a  consideration  for  the  promise  of  the 
other.  Davis  Laundry,  etc.  Co.  v.  Whit- 
more  (Ohio)  1917C-988. 

b.    Duress. 

2.  Who  may  Take  Advantage  of  Duress. 
To  be  available  as  a  defense  in  an  action 
upon  a  contract,  duress  must  have  been 
exercised  upon  him  or  her  who  sets  it  up 
as  a  defense  by  him  who  claims  the  bene- 
fit of  the  contract  or  by  some  one  acting 
in  his  behalf  or  with  his  knowledge. 
Travis  v.  Unkart  (N.  J.)  1917C-1031. 

3.  Definition  of  Duress.  The  definition 
of  "duress"  given  in  Ga.  Civ.  Code  1910, 
§  4116,  providing  that  "Duress  consists  in 
any  illegal  imprisonment,  or  legal  impris- 
onment used  for  an  illegal  purpose,  or 
threats  of  bodily  or  other  harm,  or  other 
means  amounting  to  or  tending  to  coerce 
the  wUl  of  another,  and  actually  inducing 
him  to  do  an  act  contrary  to  his  free 
will,"  is  suflSciently  comprehensive  to  in- 
clude any  conduct  which  overpowers  the 
will  and  coerces  or  restrains  the  perform- 
ance of  an  act  which  otherwise  would  not 
have  been  performed.  Dorsey  v.  B'ryans 
(Ga.)   1917A-172. 

4.  What  Constitutes — Threat  to  Prose- 
cute Brother.  Where  a  sister  indorsed  a 
note  executed  by  her  mother  to  plaintiff 
when  informed  by  him  that  her  brother 
had  committed  a  state's  prison  offense, 
and  that  plaintiff  would  send  him  to 
prison  if  his  notes  were  not  taken  up,  the 
sister's  contract  of  indorsement  is  void  for 
legal  duress.  Travis  v.  Unkart  (N.  J.) 
1917C-1031.  (Annotated.) 

5.  What  Constitutes — Threat  of  Aban- 
donment by  Spouse.  While  a  threat  by  a 
husband  to  abandon  his  wife  unless  she 
signs  a  note  may  in  some  instances  amount 
to  duress  which  will  relieve  her  of  liabil- 
ity on  the  note  to  a  holder  with  notice, 


yet,  where  the  circumstances  show  that 
the  wile  had  no  reasonable  apprehension 
of  the  threat  being  carried  into  execution, 
the  bare  making  of  it  will  not  be  such 
duress  as  to  render  the  note  invalid. 
Dorsey  v.  Bryans  (Ga.)  1917A-172. 

(Annotated.) 
Notes 

Validity  and  effect  of  contract  induced 
by  threats  of  criminal  prosecution  against 
friend,  or  relative  other  than  parent,  child 
or  spouse.     1917C-1033. 

Threat  of  abandonment  by  spouse  as 
duress.     1917A-174. 

Validity  and  effect  of  contract  of  pa- 
rent or  child  induced  by  threats  of  crimi- 
nal prosecution  against  other.  1917C- 
1026. 

2.     EXECUTION. 

6.  What  Constitutes  Testamentary  Act 
— ^Proxy  to  Vote  Stock-  Such  contract  is 
not  an  attempted  testamentary  disposition 
of  property,  and  so  is  not  void  because  it 
was  not  executed  with  the  formalities  re- 
quired in  wills.  Thompson  v.  J.  D.  Thomp- 
son Carnation  Co.  (111.)   1917E-591. 

Note. 
Implied  authority  to  fill  in  blanks  so  as 
to    complete    signed    instrument.     191 7£- 
518. 

3.    CONSTBUCTION    AND   INTERPRE- 
TATION. 

a.     In  General. 

7.  Effect  of  Express  Provision.  There 
can  be  no  implied  covenants  in  a  contract 
ia  relation  to  any  matter  that  is  specifi- 
cally covered  by  the  written  terms  of  the 
contract  itself.  Kachelmacher  v.  Laird 
(Ohio)  1917E-1117. 

8.  Time  of  Essence  of  Contract.  While 
under  section  876,  St.  Okla.  1890  (section 
968,  Rev.  Laws  1910),  no  particular  form 
of  expression  is  necessary  to  make  it  so, 
time  is  never  considered  of  the  essence  of 
a  contract  unless  expressly  so  provided  by 
the  terms  thereof.  Wiebener  v.  Peoples 
(Okla.)  1916E-748. 

9.  Where  the  language  of  a  contract  is 
uncertain  and  the  parties  thereto,  by  their 
subsequent  acts  and  conduct,  have  shown 
that  they  construed  it  alike  and  within 
the  purview  of  the  constructions  permit- 
ted as  possible  by  such  language,  the 
courts  will  ordinarily  follow  such  adopted 
construction  as  the  correct  one.  Wiebener 
v.  Peoples  (Okla.)   1916E?-748. 

10.  What  Constitutes  Engaging  in  Busi- 
ness. An  agreement  by  the  seller  of  a  re- 
tail grocery  business  and  the  good  will 
thereof  not  to  conduct  the  same  kind  of 
business  in  the  same  town  for  a  specified 
period  is  not  broken  by  loaning  money  to 
a  new  grocery  firm,  where  he  has  no  pecn- 


CONTRACTS. 


203 


niary  interest  in  su«h  firm,  directly  or  in- 
directly, as  member,  manager,  agent,  or 
otherwise  than  as  a  creditor.  Finch  v. 
Michael  (N.  Car.)  1916E-382. 

(Annotated.) 

11.  Presumption  as  to  Place  of  Pay- 
ment. "Where  a  contract  to  pay  money 
is  silent  as  to  the  place  of  payment,  the 
law,  in  the  absence  of  any  legitimate  in- 
ference to  the  contrary,  implies  that  pay- 
ment shall  be  made  at  the  creditor's  resi- 
dence, office,  or  place  of  business,  if  with- 
in the  state.  State  v.  Kenosha  Home  Tel. 
Co.  (Wis.)  1916E-365. 

12.  Avoiding  Oppression  or  Inequality. 
A  contract  will  not  be  construed  so  as  to 
render  it  oppressive  or  inequitable  to 
either  party  thereto,  or  so  as  to  place  one 
of  the  parties  at  the  mercy  of  the  other, 
unless  it  is  clear  that  such  was  the  mani- 
fest intention.  Little  Cahaba  Coal  Co.  vV 
Aetna  Life  Ins.  Co.   (Ala.)   1917D-863. 

13.  Construction  in  Favor  of  Validity. 
The  court  will  not,  unless  constrained  to 
do  so  by  the  terms  of  the  instrument  in 
the  light  of  the  surrounding  <;ircumstances, 
give  to  corporate  bonds  and  mortgage 
such  an  interpretation  as  would  make 
them.  void.  Morgan  v.  Dayton  Coal,  etc. 
Co.  (Tenn.)  1917E-42. 

14.  Intent  of  Parties.  A  party  writing 
a  contract  cannot  reasonably  contend  that 
he  did  not  intend  to  do  all  that  the  con- 
tract by  its  terms  obliged  him  to  do. 
Hyland  v.  Oregon  Hassam  Paving  Co. 
(Ore.)  1916E-941. 

15.  Popular  or  Technical  Meaning.  While 
legal  terms  are  ordinarily  given  their 
technical  meaning,  in  the  absence  of  any- 
thing indicating  that  they  are  used  in  a 
different  sense,  where,  upon  consideration 
of  the  whole  of  an  instrument,  it  appears 
that  they  are  employed  in  an  entirely  dif- 
ferent sense,  such  meaning  will  be  adop- 
ted, and  they  will  not  be  given  their  strict 
technical  meaning  if  this  will  defeat  the 
manifest  intention.  Saulsberry  v.  Sauls- 
berry  (Ky.)   1916E-1223. 

16.  Time  as  Essence  of  Contract.  The 
written  offer  not  having  stipulated  tho 
time  when  the  stock  should  be  delivered, 
time  did  not  become  the  essence  of  the 
contract,  but  the  seller  had  a  reasonable 
time  to  procure  the  outstanding  stock. 
Davis  Laundry,  etc.  Co.  v.  Whitmore 
(Ohio)   1917C-988. 

17.  Intent  of  Parties  Controls.  Parties 
competent  to  contract  and  free  to  do  so 
may,  in  the  exercise  of  their  judgment, 
make  their  own  contracts;  and  when  their 
intention  is  ascertained,  it  is  ordinarily 
the  duty  of  the  courts  to  carry  it  out,  if 
not  in  conflict  with  any  rule  of  law.  gooi 
morals,  or  public  policv.  Parker-Wash- 
ington Co.  V.  Chicago  (111.)  1916C-337. 

15.  Exchange  of  Property — Contract — 
Termination — Lapse   of  Reasonable   Time 


for  Completion.  Where  a  contract  for  an 
exchange  of  properties  does  not,  in  itself, 
provide  a  time  for  its  termination,  a  rea- 
sonable time  is  implied.  Littlefield  v. 
Bowen  (Wash.)  1918B-177. 

b.    Particular  Contracts. 

19.  Place  of  Support.  When  an  obliga- 
tion upon  the  part  of  the  grantee  to  sup- 
port the  grantor  is  created  by  deed  and 
there  is  no  express  direction  where  and 
how  the  support  should  be  furnished,  the 
grantor  is  entitled  to  require  it  to  be  fur- 
nished at  any  place  he  may  select  if  it  can 
be  supplied  there  without  needless  or  un- 
necessary expense.  Soper  v.  Cisco  (N.  J.) 
1918B-452. 

20.  Promise  to  Pay  "All  Debts."  A 
promise  to  pay  all  the  "debts  and  obliga- 
tions" of  another  includes  the  promise  to 
pay  its  obligation  to  account  and  pay  to 
a  cotenant  the  latter's  share  of  the  pro- 
ceeds of  ore  which  the  grantor  has  ex- 
tracted from  the  common  property  and 
sold.  Silver  King  Coalition  Mines  Co.  v. 
Silver  King  Consol.  Min.  Co.  (Fed.) 
1918B-571. 

21.  Furnishing  Materials  for  Telephone 
Line.  Where  plaintiff  contracted  with  de- 
fendant to  stake  out  a  telephone  line  and 
furnish  the  materials  for  sixteen  sections, 
defendant  to  procure  subscriptions  for 
that  number  of  sections,  or  take  them  him- 
self, plaintiff's  failure  to  deliver  the  mate- 
rials to  defendant  was  not  a  breach  of  the 
contract.  Camp  v.  Barber  (Vt.)  1917A- 
451. 

22.  Construction  of  Terms — "Assets"  of 
Corporation.  In  determining  the  assets 
of  the  corporation  in  such  case,  a  claim 
for  demurrage  apparently  due  the  corpo- 
ration was  properly  excluded,  where  it 
appeared  that  the  corporation's  agent  had 
agreed  to  save  the  party  apparently  liable 
therefor  harmless  from  any  claims  for  de- 
murrage. Miller  v.  Dilkes  (Pa.)  1917I>- 
555. 


Note. 
Amusement  contracts. 


19170-391. 


4.  VALIDITY. 
a.  Contracts  in  Violation  of  Statute  or 
Ordinance. 
23.  Sale  of  Liquor — Knowledge  of  Pur- 
pose to  Resell  Illegally.  Mere  knowledge 
on  the  paxt  of  a  seller  of  intoxicants  that 
the  buyer  intends  illegally  to  resell  the 
liquors  will  not  render  the  contract  void, 
so  as  to  bar  the  seller's  action  for  the 
purchase  price,  though  if  the  seller  partici- 
pates in  or  contributes  to  the  purchaser's 
intention  to  sell  illegally,  or  does  any  act 
to  facilitate  or  further  the  design  to  trans- 
gress the  law,  or  has  aji  interest  therein, 
the  right  to  recover  the  price  is  lost.  Paul 
•Tones  &  Co.  v.  Wilkins  (Tenn.)  1918B- 
977.  (Annotated ) 


204 


DIGEST. 

1916C— 1918B. 


24.  Violation  of  Statute.  Any  agree- 
ment involving  the  doing  of  an  act  posi- 
tively prohibited  by  common  law  or  stat- 
ute is  illegal  and  void.  Gprdon  v.  Gor- 
don's Administrator   (Ky.)    1917D-886. 

25.  Where  the  seller  of  liquors  knew 
through  its  local  agent  that  the  buyer  was 
running  a  wide-open  liquor  saloon  in  vio- 
lation of  law,  and  made  the  shipment  to 
a  transfer  company,  not  to  the  consignee, 
marked  merely  with  his  initials,  so  that 
the  public  could  not  know  to  whom  it  was 
to  be  delivered,  such  seller  cannot  recover 
the  price,  having  aided  the  buyer's  design 
to  transgress  the  law  and  circumvented 
the  legislature's  object  in  passing  acts 
(Tenn.  Ex.  Sess.)  1913,  c.  1,  requiring 
common  carriers  to  cause  all  consignees 
of  liquor  to  sign,  before  delivery,  an  aflBL- 
davit  setting  out  his  name,  etc.  Paul 
Jones  &  Co.  v.  Wilkins  (Tenn.)  1918B- 
977.  (Annotated.) 

Note. 
Validity  of  sale  of  liquors  where  seller 
knows     same     will    be    illegally     resold. 
1918B-978. 

b.    Contracts  Affecting  Administration  of 
Justice. 

26.  Validity  of  Contract  to  Procure  Par- 
don or  Parole.  A  contract  whereby  one 
agrees  to  use  his  personal  influence  with 
the  pardoning  authority  to  procure  a  par- 
don is  void  as  against  public  policy,  being 
in  contravention  of  Ky.  St.  §  1370,  de- 
nouncing as  unlawful  contracts  to  procure 
a  pardon  from  the  governor,  only  in  cases 
in  which,  the  party  whose  pardon  is  sought 
to  be  obtained  has  been  convicted  of  crime 
by  a  legally  constituted  tribunal  having 
the  constitutional  right  to  try  and  punish 
him.  Gordon  v.  Gordon's  Administrator 
(Ky.)  1917D-886.  (Annotated.) 

27.  Contract  to  Procure  or  Suppress  Evi- 
dence. A  contract  with  decedent  to  secure 
letters  in  the  possession  of  a  third  person 
so  that  they  may  be  suppressed,  and  not 
without  being  used  in  a  criminal  prosecu- 
tion against  decedent,  made  with  knowl- 
edge of  such  purpose,  is  illegal;  but,  if  the 
letters  were  to  be  secured  merely  to  pre- 
vent the  person  in  whose  possession  they 
were  from  sending  them  unlawfully  to  the 
writer's  wife,  then  the  contract  is  good. 
Josephs  V.  Briant  (Ark.)  1916E-741. 

28.  A  contract  to  procure  evidence  to 
win  decedent's  divorce  case,  or  to  secure 
the  possession  of  letters  to  prevent  their 
use  against  him  in  the  divorce  suit,  was 
void  for  illegality;  but,  if  the  procurement 
of  the  letters  by  the  claimant  was  the  only 
service  she  was  to  perform,  she  being  un- 
aware of  any  illegal  purpose  on  the  part  of 
decedent  to  suppress  the  letters,  it  is  not 
invalid.  Josephs  v.  Briant  (Ark.)  1916E- 
741. 


Note. 
Validity  of  contract  to  procure  pardon 
or  parole.     1917D-890. 

c.     Contracts  Belating  to  Public  Lands. 

29.  Withdrawal  of  Competing  Proposal 
for  Public  Land.  The  state  of  Idaho,  by 
Eev.  Codes  Idaho,  §§  1613-1634,  accepted 
the  provisions  of  the  acts  of  Congress  re- 
lating to  the  reclamation  of  desert  lands 
(Act  Aug.  18,  1894,  c.  301,  §4,  28  Stat. 
422  [U.  S.  Comp.  St.  1913,  §4685];  Act 
June  11,  1896,  c.  420,  §  1,  29  Stat.  413 
[U.  S.  Comp.  St.  1913,  §  4686] ;  Act  March 
3,  1901,  c.  853,  §3,  31  Stat.  118S  [U.  S. 
Comp.  St.  1913,  §  4687]),  established  a  com- 
plete system  for  carrying  into  effect  their 
provisions,  and  vested  in  the  state  board 
of  land  commissioners  the  selection,  man- 
agement, and  disposal  of  such  lands,  au- 
thorizing the  board  on  due  application  to 
contract  on  behalf  of  the  state  for  the  con- 
struction of  irrigation  works,  and  giving  it 
exclusive  power  to  pass  on  any  application. 
While  competitive  proposals  filed  by  two 
applicants  for  the  reclamation  of  certain 
land  were  pending,  one  applicant  orally 
agreed  with  the  other  that  he  would  with- 
draw his  bid  for  a  certain  consideration. 
A  written  contract  executed  subsequently 
in  Pennsylvania,  instead  of  providing  that 
the  applicant  should  withdraw  its  proposal, 
stipulated  that  it  should  sell  to  the  other 
applicant  its  maps,  plans,  surveys,  and  esti- 
mates and  interest  in  its  application  for 
the  sum  orally  agreed  upon.  In  accordance 
with  the  oral  agreement  the  proposal  was 
withdrawn  and  an  award  made  to  the  other 
applicant,  who  paid  a  part  of  such  sum  on 
account,  the  maps,  etc.,  being  duly  deliv- 
ered. It  is  held  that  the  written  contract, 
being  void  as  against  public  policy  and  the 
real  consideration  therefor  being  illegal, 
could  not  be  enforced  for  the  amount  re- 
maining due  under  it.  Kuhu  v.  Buhl  (Pa.) 
1917D-415. 

d.     Contracts  for  Suppression  of  Bidding. 

30.  Agreement  to  Prevent  Bidding  at  Ju- 
dicial Sale.  Plaintiff  and  three  others  were 
joint  owners  of  certain  corporate  stock 
subject  to  a  mortgage  for  the  purchase 
price  thereof.  On  foreclosure  of  the  mort- 
gage, plaintiff  was  preparing  to  bid  on  the 
stock,  when  he  was  told  by  two  of  the 
other  owners  that  the  mortgagee  had 
agreed  to  bid  in  the  stock  for  the  amount 
of  the  debt  and  transfer  it  to  the  three 
owners  on  payment  of  Die  purchase  price, 
thereby  eliminating  the  interest  of  the 
fourth  owner.  Plaintiff  thereupon  ceased 
his  efforts  to  raise  the  money  with  which 
to  compete  in  the  bidding,  and,  after  the 
sale,  discovered  that  the  real  agreement  be- 
tween the  purchaser  and  the  other  two 
owners  was,  that  the  stock  should  be  trans- 
ferred to  them,  so  that  plaintiff  was  also 


CONTRACTS. 


205 


eliminated  as  an  owner.  It  is  held  that 
the  agreement  between  the  purchaser, 
plaintiff,  and  the  two  owners  to  prevent 
competition  in  the  bidding  was  a  fraud 
upon  the  fourth  owner,  and  therefore  could 
not  be  specifically  enforced  in  equity. 
Sehmitt  t.  Franke  (Wis.)  1917D-230. 

(Annotated.) 
Note. 
Validity  of  contract  to  prevent  bidding 
at  judicial  sale.     1917D-232. 

e.    Enforcement  of  Illegal  Contracts. 
(1)     Recovery  on  Quantum  Meruit. 

31.  Where  a  contract,  classifying  the 
material  to  be  removed  by  plaintiff  in  his 
grading  and  construction  work,  is  void  be- 
cause made  on  Sunday,  plaintiff  is  entitled 
to  recover  the  reasonable  value  of  the 
work,  regardless  of  the  classification.  Gist 
V.  Johnson-Carey  Co.  (Wis.)  1916E-460. 

(2)     Proof  of  Illegality. 

32.  Parol  Evidence  to  Show  Illegality. 

Evidence  aliunde  is  admissible  to  show  the 
illegality  of  the  consideration  of  a  contract 
attacked  on  the  ground  that  it  is  violative 
of  public  policy;  it  being  the  court's  duty 
in  such  case  to  inquire  into  the  entire 
transaction  unembarrassed  by  any  techni- 
cal rules  as  to  the  admissibility  of  evidence. 
Kuhn  v.  Buhl  (Pa.)  1917D-415. 

Note. 

Admissibility  of  parol  evidence  to  show 
illegality  of  contract.     1917D-426. 

f.     Contracts  Against  Public  Policy. 

33.  Effect  of  Infringing  Public  Policy. 
A  contract  prohibited  by  public  policy  will 
be  declared  illegal,  though  no  actual  injury 
may  haf  e  resulted  to  the  public  in  the  par- 
ticular instance;  the  test  being  the  evil 
tendency  of  the  contract,  and  not  its  actual 
result.     Kuhn  v.  Buhl  (Pa.)  1917D-41o. 

34.  A  contract  whereby  a  paving  com- 
pany agreed  to  pay  plaintiff  3  per  cent  of 
the  contract  price  on  all  contracts  for 
street  improvement  work  entered  into  be- 
tween it  and  a  city,  to  be  earned  when  the 
contract  should  have  been  dulj'  signed  by 
the  company  and  the  city,  and  providing 
that  plaintiff  should  "at  all  times  do  every- 
thing in  his  power"  to  further  the  busi- 
ness of  the  company,  under  which  plaintiff 
was  to  circulate  petitions  among  property 
owners  asking  that  streets  be  paved  with 
the  company's  product,   and  obtain  signa- 

■  tures  of  20  per  cent  of  the  property  owners, 
■to  present  such  petitions  to  the  city  coun- 
cil, to  answer  and  fight  remonstrances,  and, 
by  bringing  property  owners  before  the 
street  committee  and  the  council,  t»  pro- 
cure the  passage  of  ordinances  and  reso- 
lutions authorizing  the  paving  of  streets, 
and  assessing  the  expense  on  the  adjacent 


lots,  in  effect  a  selling  or  promoting  prop- 
osition, in  view  of  the  fact  that  the  com- 
pensation was  contingent,  and  was  broad 
enough  to  cover  services  of  any  kind, 
secret  or  open,  honest  or  dishonest,  and 
the  exercise  of  personal  and  private  influ- 
ence upon  the  city  council,  and  of  the  fact 
that  such  compensation  was  probably  in- 
cluded in  the  company's  contract  price,  is 
invalid,  as  against  public  policy.  Hyland 
v.  Oregon  Hassam  Paving  Co.  (Ore.) 
1916E-941.  (Annotated.) 

35.  Contract  to  Procure  Legislation.  Any 
person  interested  in  any  proposed  legisla- 
tion before  any  legislative  body,  including 
the  common  council  or  other  lawmaking 
body  of  a  municipal  corporation,  may 
legally  employ  an  agent  or  an  attorney  to 
collect  facts  relating  thereto,  and  to  pre- 
pare a  bill,  and  to  explain  the  desired 
measure  to  the  legislative  body  or  any  com- 
mittee thereof  fairly  and  openly,  and  have 
it  introduced,  and  a  contract  to  pay  for 
such  services,  so  rendered,  is  not  a  viola- 
tion of  law  or  of  public  policy.  Hyland  v. 
Oregon  Hassam  Paving  Co.  (Ore.)  1916E- 
941.  (Annotated.) 

36.  Contract  Against  Public  Policy. 
Many  things  which  the  law  does  not  pro- 
hibit in  the  sense  of  attaching  penalties  to 
punish  their  commission  cannot  be  admit- 
ted as  the  subject  of  a  valid  contract,  as 
being  so  mischievous  in  their  nature  and 
tendency  that  to  permit  them  to  be  the 
subject-matter  of  a  contract  would  be  vio- 
lative of  "public  policy";  the  principle  de- 
claring that  no  one  can  lawfully  do  that 
which  has  a  tendency  to  be  injurious  to 
the  public  welfare.  Gordan  v.  Gordan'a 
Admr.  (Ky.)  1917D-886. 

37.  A  contract  is  against  public  policy  it 
injurious  to  some  established  public  inter- 
est, contravenes  some  public  statute,  is 
against  good  morals,  or  tends  to  interfere 
with  the  public  welfare  or  safety.  Gordon 
V.   Gordon's   Admr.    (Ky.)    1917D-886. 

38.  Ky.  St.  §  3828  requires  that  the  board 
of  prison  commissioners  base  its  action  in 
paroling  a  prisoner  upon  his  record  while 
confined,  his  record  previous  to  confine- 
ment, and  upon  his  securing,  before  parole, 
a  contract  for  employment  for  six  months. 
Section  1370  denounces  the  offense  of  as- 
sisting in  procuring  the  granting  or  refusal 
of  a  pardon  by  the  governor  for  fee  or  re- 
ward. It  is  held  that  a  contract  of  a  son 
with  his  father  whereby  the  son  agreed  to 
prepare  an  application  and  to  do  what  was 
necessary  to  secure  the  parole  of  his 
brother  from  prison  in  return  for  the 
father's  promise  to  reimburse  him  for  ex- 
penses incurred,  necessary  in  view  of  the 
requirements  of  the  paroling  statute,  was 
not  void  as  in  contravention  of  public  pol- 
icy, the  case  not  coming  within  section 
1370.  Gordon  y.  Gordon's  Admr.  (Kv.) 
1917D-886.  (Annotated.) 


206 


DIGEST. 

1916C— 1918B. 


39.  Contract  to  Control  GoveiBmental 
Action.  All  agreements  for  pecuniary  con- 
siderations to  control  the  business  opera- 
tions of  the  government  are  void  as  against 
pnblic  policy,  without  reference  as  to 
whether  improper  means  are  attempted  or 
used  in  their  execution.  Kuhn  v.  Buhl 
(Pa.)  1917D-415. 

40.  public  Policy.  A  contract  is  not 
void  as  against  public  policy  unless  it  is 
injurious  to  the  public  or  contravenes 
some  established  interest  of  society;  such 
policy  being  determined  by  the  state  con- 
stitution and  statutes,  and,  where  these 
are  silent,  by  the  decisions  of  the  courts. 
Chreste  v.  Louisville  R.  Co.  (Ky.)  1917C- 
867. 

Notes. 

"Validity  of  contract  for  contingent  com- 
pensation in  procuring  legislation.  1916E- 
948. 

Validity  of  contract  not  to  change  wilL 
1916D-1160. 

g.     Contracts  Affecting  Elections. 

41.  Influencing  County  Seat  Election. 
That  the  principal  purpose  of  a  contract 
by  one  of  two  town-site  companies  to  buy 
the  other's  land  is  to  eliminate  the  latter's 
town  as  an  aspirant  for  the  county  seat 
and  secure  influence  and  votes  at  a  county 
seat  election,  will  not  invalidate  the  con- 
tract, though  the  election  is  pending,  where 
there  is  no  stipulation  as  to  how  the  offi- 
cers of  the  vendor  shall  vote  or  use  their 
influence  or  any  provision  that  the  pur- 
chase money  shall  not  be  payable  if  the 
election  is  unfavorable  to  the  purchaser. 
Lamro  Townsite  Co.  v.  Bank  of  Dallas  (S. 
Dak.)   1917C-346.  (Annotated.) 

Note. 

Validity  of  contract  designed  to  influence 
public  election.     1917C-350. 

h.     Contracts  Partially  Illegal. 

42.. Effect  of  Partial  Invalidity.  Where 
the  consideration  is  valid  and  several;  sep- 
arable promises  are  based  upon  it,  some  of 
which  are  legal  and  others  illegal,  while 
the  illegal  promises  are  void,  the  legal  ones 
will  be  enforced.  Stratton  v.  Wilson  (Ky.) 
1918B-917.  (Annotated.) 

43.  Where  the  consideration  of  a  con- 
tract is  indivisible,  and  a  part  is  illegal, 
it  falls  as  a  whole.  Kuhn  v.  Buhl  (Pa.) 
1917D-415. 

5.     MODIFICATION"  OR  MERGER. 

44.  Oral  Extension  of  Time.  A  substan- 
tial performance  of  an  oral  agreement  for 
an  extension  of  time  for  the  completion  of 
8  building  contract  reduced  to  writing 
makes  the  oral  agreement  a  lawful  altera- 
tion of  the  written  contract.     American- 


Hawaiian  Eng.   etc.   Co.  v.  Butler   (Cal.) 
1916C-44. 


6.     PERFORMANCE  OR  BREACH, 
a.     Performance. 

45.  Necessity  of  Performance.  Where  a 
contract  for  services  is  special  and  entire, 
the  price  as  fixed  by  it  cannot  be  recov- 
ered unless  the  party  has  strictly  per- 
formed it.  McCurry  v.  Purgason  (N.  Car.) 
1918A-907. 

46.  The  seller  of  a  retail  grocery  busi- 
ness and  the  good  will  thereof  who  agreed 
not  to  conduct  the  same  kind  of  business 
in  the  same  town,  is  not  thereby  required 
to  see  that  the  purchaser  retained  all  the 
customers  of  the  old  business.  Finch  v. 
Michael  (N.  Car.)  1916E-382. 

(Annotated.) 

b.     Acts  Constituting  Breach. 

47.  The  unconditional  notice  of  cancel- 
lation, though  not  acquiesced  in  by  plain- 
tiff operated  to  relieve  defendant  from 
dt'.mages  resulting  from  the  acts  done  by 
plaintiff  in  performance  of  the  contract 
subsequent  to  notice  of  cancellation,  and 
relieved  defendant  from  freight  charges  in- 
curred by  plaintiff  after  such  notice  of  can- 
cellation. Hart-Parr  Co.  v.  Finley  (N. 
Dak.)   1917E-706.  (Annoftited.) 

48.  Anticipatory  Breach.  Before  time 
fixed  for  delivery  defendant  gave  notice  of 
cancellation  of  his  written  and  accepted 
order  of  plaintiff  for  a  traction  engine. 
Plaintiff  refused  to  permit  cancellation,  in- 
sisting upon  performance,  with  defendant 
repudiating  the  contract  and  declaring  that 
he  would  not  accept  or  pay  for  the  machine. 
Plaintiff  thereafter  tendered  it,  and,  upon 
defendant's  refusal  to  accept  it,  left  the 
engine  at  defendant's  farm  against  his  pro- 
tests and  without  his  consent.  Plaintiff 
claims  title  passed  a&  on  a  delivery,  and 
sues  for  the  purchase  price,  $2,400,  and 
freight  $104  additional.  Held,  the  doctrine 
that  there  can  be  no  anticipatory  breach 
of  an  executory  contract  of  purchase  and 
sale,  adopted  in  Stanford  v.  McGill,  6  N.  D. 
536,  is  overruled,  and  the  overwhelming 
weight  of  authority,  both  English  and 
American,  followed.  Hart-Parr  Co.  v. 
Finley  (N.  Dak.)  1917E-706. 

(Annotated.^ 

c.     Excuses  for  Nonperformance. 

49.  Conditions  Precedent.  Plaintiff,  en- 
tering into  a  contract  with  a  contracting 
company  for  excavation  work  to  be  com- 
pleted for  a  certain  price  and  by  a  certain 
date,  with  a  provision  for  liquidated  dam- 
ages, upon  which  the  contractor  gave  a 
surety  bond  conditioned  for  the  faithful 
performance  of  the  contract,  on  the  con- 
tractor's abandonment  of  the  work,  is  un- 


CONTRACTS. 


207 


der  no  duty  to  complete  it  as  a  condition 
precedent  to  his  recovery  of  damages. 
Comey  v.  United  Surety  Co.  (N.  Y.)  1917E- 
424. 

50.  Effect  of  Waiver  of  Stipulation  as  to 
Time.  Where  time  of  performance  of  a 
building  contract,  made  of  the  essence,  is 
once  waived,  another  date  for  performance 
can  only  be  fixed  by  definite  notice,  or  by 
conduct  equivalent  thereto.  American- 
Hawaiian  Eng.,  etc.  Co.  v.  Butler  (Cal.) 
1916C-44. 

51.  Time  for  Bescission.  In  a  suit  to  re- 
cover payments  under  a  contract  for  the 
sale  of  a  house  and  lot  under  which  the 
purchaser  went  into  possession  in  Novem- 
ber, 1911,  but  which  he  attempted  to  re- 
scind in.  March,  1913,  because  of  the  in- 
ability of  the  vendor  to  give  title  to  a 
narrow  strip  covered  by  the  contract,  evi- 
dence as  to  improvements  made  by  the  pur- 
chaser, the  pendency  of  a  suit  involving 
the  contract  and  its  binding  force,  and  ne- 
gotiations for  a  settlement,  held  to  make  a 
question  for  the  jury  whether  the  rescission 
was  attempted  within  a  reasonable  time. 
Brown  v.  Aitken  (Vt.)   1916D-1152. 

52.  Delay  during  the  time  parties  to  a 
contract  are  negotiating  for  a  settlement 
does  not  amount  to  a  waiver  of  the  right 
to  rescind.  Brown  v.  Aitken  (Vt.)  1916D- 
1152. 

53.  Misrepresentation  and  Concealment. 
Misrepresentations  by  bank  president  solic- 
iting a  guaranty  as  to  the  business  of  its 
debtor,  the  guarantor's  son,  and  conceal- 
ment of  the  son's  debt  to  the  bank  from 
stock  gambling  losses  equaling  the  amount 
of  the  guaranty,  are  sufficient  to  avoid  the 
contract.  American  National  Bank  t. 
DonneUan  (Cal.)  1917C-744. 

Note. 
Eight  of  purchaser  to  rescind  contract 
for  sale  for  breach  by  vendor  in  tender- 
ing less  land  than  quantity  contracted  for. 
1916D-1154. 

7.     IMPLIED  CONTRACTS. 

54.  Services  by  Member  of  Family. 
Where  maintenance  and  services  are  ren- 
dered between  relatives  living  together  as 
one  household  there  is  a  presumption  that 
they  were  intended  to  be  gratuitous.  In 
order  to  recover  therefor  the  plaintiff  must 
overcome  this  presumption  by  proving  af- 
firmatively either  an  express  contract  for 
remuneration  or  circumstances  showing  a 
mutual  understanding  or  expectation  be- 
tween the  parties  that  there  would  be  com- 
pensation. Ilolstein  v.  Benedict  (Hawaii) 
1918B-941. 

8.     ACTIONS, 
a.     Remedies  for  Breach. 
5o.  Stipulated  Remedies  for  Breach  as 
Exclusive.     Where  a  contract  provides  cer- 


tain specified  remedies  for  its  breach,  other 
remedies  are  not  excluded,  in  view  of  La. 
Rev.  Civ.  Code,  art.  1962,  providing  that 
when  a  contract  contains  general  obliga- 
tions, and  the  parties  in  order  to  avoid  a 
doubt  whether  a  particular  case  comes 
within  the  scope  of  the  agreement  have 
made  special  provisions  for  such  case,  the 
general  terms  of  the  contract  shall  not  be 
restricted  to  the  single  case  provided  for. 
Queensborough  Land  Co.  v.  Cazeau  (La.) 
1916D-1248. 

b.  Pleading. 

56.  Flea  by  Defendant  of  Change  in  Con- 
tract. In  an  action  on  a  contract,  defend- 
ant was  not  required  to  plead  evidence  to 
establish  the  contract,  but,  having  pleaded 
the  instrument  claimed  by  it  to  establish 
the  contract,  was  entitled  to  show  that 
such  instrument  was  prepared  and  assented 
to,  with  the  changes  therein,  after  the  con- 
tract relied  oh  by  plaintiff  had  been  exe- 
cuted. Divide  Canal,  etc.  Co.  t.  Tenney 
(Colo.)  1917D-346. 

57.  Becovery  on  Quantum  Meruit.  In  an 
attorney's  action  on  an  express  contract  for 
compensation,  plaintiff  cannot  recover  on 
the  quantum  meruit  without  amending  his 
pleadings.  Egan  v.  Burnight  (S.  Dak.) 
1917A-539. 

c.  Evidence. 

58.  Parol  to  Supplement  Contract.  Where 
a  telephone  rental  contract  is  silent  as  to 
the  place  of  payment  of  rentals,  but  pro- 
vides that  it  cannot  be  varied,  except  in 
writing,  signed  by  a  contract  agent  or 
higher  officer  of  the  company,  evidence  of 
an  oral  agreement  between  plaintiff  and 
defendant's  service  solicitor  that  rentals 
should  be  collected  monthly  by  collectors  at 
plaintiff's  office  is  inadmissible.  State  v. 
Kenosha  Home  Tel.  Co.  (Wis.)  1916E-365. 

(Annotated.) 

59.  Suflaciency.  That  the  telephone  num- 
ber,  used  by  the  seller  of  a  retail  grocery 
business  in  his  store  has  been  changed,  and 
the  old  number  transferred  to  a  new  grocery 
firm  to  whom  he  had  loaned  money,  does 
not  show  a  violation  of  his  agreement  not 
to  conduct  the  same  kind  of  business  in  the 
same  town.  Finch  v.  Michael  (N.  Car.) 
1916E-382,  (Annotated.) 

Note. 
Admissiblity  of  parol  evidence  to  show 
place  of  payment  under  contract  silent  in 
that  respect.     1916E-366. 

d.     Questions  for  Jnry. 

60.  Amusement  Contract — Wrongful  Dis- 
charge of  Actor — Question  for  Jury.  In  an 
action  on  a  written  contract  for  the  em- 
ployment of  a  company  of  actors  for 
wrongful  discharge  without  two  weeks'  no- 
tice provided  for,  plaintiffs'  right  of  re- 
covery is  held  to  be  for  the  jury.    Fergu- 


208 


DIGEST. 

1916C— 1918B. 


son  T.  Majestic  Amusement  Co.  (N.  Car.) 
1917C-389.  (Annotated.) 

e.     Questions  of  Law  and  Fact. 

61.  Abandonment.  As  t,o  whether  a  con- 
tract in  suit  was  abandoned  is  a  mixed 
question  of  law  and  fact;  what  constitutes 
an  abandonment  being  a  matter  of  law, 
and  whether  there  has  been  an  abandon- 
Pient,  a  question  of  fact.  McCurry  v. 
Purgason   (N.  Car.)    1918A-907. 

62.  Validity  as  Questiom  of  Law, 
Whether  a  contract  is  against  public  policy 
is  a  question  of  law  for  the  court  to  deter- 
mine from  all  the  circumstances  in  each 
case.     Kuhn  v.  Buhl  (Pa.)  1917D-415. 

f.    Damages. 

63.  Penalty  or  Damages.  A  provision  in 
a  contract  for  the  sale  of  electrical  ma- 
chinery to  be  manufactured  that  for  each 
day  of  delay  in  the  delivery  thereof  twen- 
ty-five dollars  should  be  deducted  from  the 
purchase  price  "as  liquidated  damages  and 
not  as  a  forfeit"  is  a  stipulation  for  liqui- 
dated damages  and  not  for  a  penalty. 
Canadian  General  Elec.  Co.  v.  Canadian 
Eubber  Co.  (Can.)  1916D-488. 

(Annotated.) 

64.  BecoTcry  of  Liquidated  Damages.  In 
an  action  for  the  purchase  price  of  ma- 
chinery liquidated  damages  for  delay  in 
delivery,  which  by  the  contract  are  to  be 
deducted  from  the  price,  may  be  so  de- 
ducted without  a  cross-action.  Canadian. 
General  Elec.  Co.  ▼.  Canadian  Eubber  Co. 
(Can.)    1916D-488. 

65.  Necessity  of  Proving  Actual  Damage. 
To  warrant  a  recovery  under  a  fair  and 
reasonable  provision  for  liquidated  dam- 
ages for  delay,  no  proof  of  actual  damages 
is  necessary.  Canadian  General  Elec.  Co. 
v.  Canadian  Eubber  Co.  (Can.)  1916D-488, 

66.  Contracts  Liquidating  Damages.  Con- 
tracts by  which  parties,  who  are  under  no 
compulsion,  agree  beforehand  upon  the 
amount  of  damages  which  shall  be  allowed 
for  a  breach,  are  as  lawful  as  any  others, 
unless  inhibited  by  some  rule  of  law. 
Parker-Washington  Co.  v.  Chicago  (111.) 
1916C-337. 

67.  Penalty  or  Liquidated  Damages. 
Where  the  intention  of  the  parties  to  a 
contract  is  in  doubt,  the  courts  are  inclined 
to  construe  a  sum  stipulated  for  in  case  of 
breach  as  a  penalty,  since  the  general 
theory  of  the  law  is  that  compensation 
shall  be  the  rule,  and  the  application  of 
that  rule  works  justice  between  the  par- 
ties. Parker-Washington  Co.  v.  Chicago 
(ni.)    1916C-337.  (Annotated.) 

68.  In  determining  whether  a  stipulated 
sum  to  be  paid  for  the  breach  of  a  contract 
was  intended  to  be  a  penalty  or  liquidated 
damages,  the  language  used  and  the  sub- 


ject-matter of  the  contract  will  be  consid- 
ered to  ascertain  the  intention  of  the  par- 
ties, and  generally  the  language  used  will 
control;  but  the  use  of  the  word  "liqui- 
dated" is  not  always  controlling.  Parker- 
Washington  Co.  V.  Chicago  (111.)  1916C- 
337.  (Annotated.) 

69.  If  a  provision  in  a  contract  fixing  a 
stipulated  sum  in  case  of  breach  has  refer- 
ence to  uncertain  damages,  and  it  appears 
that  serious  damage  might  have  been  in- 
curred, and  no  fraud  has  been  used  in  pro- 
curing the  contract  the  courts  cannot  in- 
terfere, and  the  stipulated  sum  furnishes 
the  measure  of  damages.  Parker-Washing- 
ton Co.  V.  Chicago  (111.)  1916C-337. 

(Annotated.) 

70.  Wliere  different  acts  to  be  performed 
under  a  contract  are  of  unequal  degrees  of 
importance,  some  resulting  in  great  dam- 
age, and  others  in  trifling  and  inconsider- 
able loss,  a  stipulated  sum  in  gross,  to  be 
paid  for  a  failure  to  perform  any  one  of 
the  acts,  will  be  construed  as  a  penalty. 
Parker-Washington  Co.  v.  Chicago  (111.) 
1916C-337.  (Annotated.) 

71.  A  stipulation  in  a  contract  with  a 
city  for  the  construction  of  a  pumping  sta- 
tion for  pumping  water  to  be  distributed  to 
certain  parts  of  the  city  for  the  use  of  the 
inhabitants  and  for  protection  against  fire, 
for  the  payment  of  $50  for  each  day  that 
completion  was  delayed  beyond  a  time 
fixed,  is  a  stipulation  for  liquidated  dam- 
ages, and  not  for  a  penalty,  as  the  con- 
tract was  made  for  the  purpose  of  preserv- 
ing the  health  and  promoting  the  conveni- 
ence and  welfare  of  citizens,  and  protect- 
ing them  and  their  property,  and  there  can 
be  no  estimate  of  the  damages,  or  compen- 
sation for  th*  inconvenience  to  the  public, 
especially  where  the  contract  recites  that 
the  damages  from  such  delay  cannot  be  cal- 
culated with  any  degree  of  certainty. 
Parker-Washington  Co.  v.  Chicago  (111.) 
1916C-337.  (Annotated.) 

72.  Liquidated  Damages.  Under  a  con- 
tract for  the  construction  of  a  pumping 
station  for  a  city,  providing  for  the  pay- 
ment of  $50  for  each  day  that  the  com- 
pletion of  the  contract  was  delayed  as 
liquic^ited  damages,  such  damages  are  re- 
coverable, though  the  pumping  station  was 
designed  to  bring  water  through  a  tunnel 
which  was  not  completed  until  after  the 
completion  of  the  pumping  station;  the 
contracts  for  the  construction  of  the  tun- 
nel having  provided  for  its  completion  nine 
months  before  the  time  fixed  for  completion 
of  the  pumping  station.  Parker-Washing- 
ton Co.  V.  Chicago  (111.)  19160-337. 

73.  Special  Damage,  One  seeking  to  re- 
cover special  damages  for  breach  of  con- 
tract must  show  that  such  damages  were 
witiiin  the  contemplation  of  both  parties  to 
the  contract;  otherwise  he  can  only  recover 
such   damages   as   in  the   usual   course   of 


CONTRACTS. 


209 


things  flow  from  the  breach.     Missouri  etc. 
E.  Co.  V.  Foote  (Okla.)  1917D-173, 

(Annotated.) 

74.  Inference  of  Damage  from  Breach  of 
Contract.  Whenever  there  is  a  breach  of 
a  contract  for  the  invasion  of  a  legal  right 
the  law^  infers  some  damage.  Finley  v. 
Atlantic  Trajisport  Co.  (N.  Y.)  1917D- 
726. 

75.  Liquidated  Damages  Distinguished 
from  Penalty.  Where  plaintiff  enters 
into  a  written  contract  with  the  defend- 
ant bank  to  tear  down  its  old  building 
and  to  erect  a  new  two-story  building, 
which  should  be  completed  by  August  15, 
1912,  and  to  pay  the  owner  $10  per  day 
as  liquidated  damages  for  delay  in  com- 
pletion, and  the  bank's  quarters  on  the 
lower  floor  are  not  completed  and  accepted 
until  December  15th,  and  the  upper  floor 
later,  during  which  delay  the  damages  to 
the  bank  are  indeterminate  and  difficult 
of  ascertainment,  though  it  is  shown  that 
the  sum  named  bears  a  fair  proportion  to 
the  damages  discussed  and  manifestly  con- 
templated by  the  parties  in  case  of  delay, 
and  to  the  damages  sustained,  the  stipula- 
tion is  one  for  liquidated  damages,  and  not 
for  a  penalty.  Nevada  County  Bank  v. 
SulUvan  (Ark.)  1917D-736. 

(Annotated.) 

76.  Duty  to  Minimize  Damages.  Though 
plaintiff  could  keep  the  contract  alive  and 
insist  upon  its  performance  up  to  the  time 
for  delivery,  and  could  incur  freight  ex- 
pense in  so  doing  after  notice  of  cancella- 
tion, its  right  to  recover  for  it  depends 
upon  defendant's  subsequent  wit]^rawal 
of  his  repudiation  and  subsequent  perform- 
ance. Hart-Parr  Co.  v.  Pinley  (N.  Dak.) 
1917E-706. 

77.  The  incurring  of  the  freight  charge 
after  notice  of  cancellation  received  is  an 
enhancement  by  plaintiff  of  its  own  dam- 
ages, and  not  recoverable,  unless  suit  can 
be  maintained  for  the  purchase  price. 
Hart-Paxr  Co.  v.  Finley  (N.  Dak.)  1917E- 
706. 

Notes. 

Eecovery  of  profits  as  damages  for 
breach  of  contract  to  sell  on  commission. 
1917B-1194. 

Measure  of  damages  for  breach  of  con- 
tract to  make  will.     1918A-854. 

Whether  stipulated  forfeiture  for  breach 
of  contract  a  penalty  or  liquidated  dam- 
ages.    1917D-739. 

9.    BUILDING     OR     WORKING     CON- 
TRACTS. 
a.    donstruction  of  Provisions. 

78.  Eight  of  Contractor  to  Instalment — 
Delay  in  Prosecuting  Work.  The  provi- 
sions in  a  building  contract,  which  author- 
ize the  owner  to  terminate  the  contract 
on  the  architect  certifying  that  the  de- 
linquencies of  the  contractor  justify  such 

14 


action,  and  which  authorize  the  owner,  on 
terminating  the  contract,  to  enter  on  the 
premises  and  complete  the  work,  and  pro- 
vide that,  in  case  of  discontinuance  of 
the  employment,  the  contractor  shall  not 
be  entitled  to  receive  any  further  pay- 
ment until  the  work  is  finished,  do  not 
affect  the  right  of  the  contractor,  under 
the  provision  for  partial  payments  as  the 
work  progresses,  to  receive  moneys  due 
him  for  work  already  done,  unless  there 
is  an  actual  discontinuance  of  the  employ- 
ment, in  which  case  he  is  not  entitled  to 
any  further  payment  until  the  work  has 
^en  completed  by  the  owner,  and  the 
architect's  certificate  of  delinquency,  au- 
thorizing a  termination  of  a  contract,  is 
conclusive  for  the  purpose  of  authorizing 
a  termination,  and  for  the  purpose,  otter 
termination,  of  authorizing  the  owner  to 
refuse  further  payments,  and  where  the 
architect  merely  certifies  to  the  failure  of 
the  contractor  to  prosecute  the  work  dili- 
gently, the  contractor  is  entitled  to  the 
partial  payment  stipulated  for  during  the 
month  preceding  the  making  of  the  certi- 
ficate. American-Hawaiian  Eng.,  etc.  Co. 
V.  Butler  (Cal.)  1916C-44. 

79.  Practical  Construction  of  Contract. 
In  a  contract  for  the  constructian  of  a 
building,  where  there  is  an  exception  in 
favor  of  the  buUder  of  "excavations  and 
foundations  complete  to  joist  line,"  which 
are  to  be  "completed"  by  the  owner,  from 
the  obligations  of  the  builder,  the  builder 
should  supply  an  iron  railing  required  by 
the  contract  to  be  placed  above  the  joist 
line  on  an  outer  retaining  wall  of  a  light 
and  air  space  outside  the  basement,  but 
he  is  not  required  to  allow  the  owner  in 
deduction  from  the  contract  price  of  con- 
struction the  cost  of  stairways  leading  to 
and  from  such  basement  and  voluntarily 
supplied  by  the  owner,  where  all  the  con- 
duct of  the  parties  during  the  work  of 
construction  shows  that  they  construed 
the  contract  as  requiring  the  owner  to 
supply  the  same.  Wiebener  v.  Peoples 
(Okla.)  1916E-748. 

Note. 
Construction  of  phrase  "damage  by  ele- 
ments" or  similar  phrase  as  used  in  con- 
tract.    1917B-296. 

b.    Performance  or  Breach. 

80.  Eecovery  for  Substantial  Perform- 
ance. A  contractor  and  builder  who  has 
in  good  faith  endeavored  to  perform  aU 
that  is  required  of  him  by  the  terms  of 
his  contract  for  the  construction  of  a 
building,  and  has  in  fact  substantially  per- 
formed the  same,  is  ordinarily  entitled  to 
sue  upon  his  contract  and  recover  the  con- 
tract price,  less  proper  deductions  there- 
from on  account  of  omissions,  deviations, 
and  defects  chargeable  to  him,  especially 
where  the  owner  occupies  and  uses  such 


210 


DIGEST. 

1916C— 1918B. 


building.     Wiebener    v.    Peoples     (Okla.) 
1916E-748. 

81.  Waiver  of  Defects.  Mere  occupancy 
and  use  of  a  building  by  the  owner  does 
not,  as  a  matter  of  law,  constitute  an  ac- 
«eptance  of  the  work  of  construction  and 
a  waiver  of  nonperformance  by  the  builder 
of  the  stipulations  in  the  contract  and 
does  not  ordinarily  justify  inference  of 
acceptance  as  a  fact.  Wiebener  v.  Peoples 
(Okla.)  1916E-748. 

82.  Mere  part  payment  by  the  owner  for 
the  construction  of  a  building,  whether 
with  or  without  knowledge  of  the  build- 
er's failure  to  perform  the  contract,  does 
not,  as  a  matter  of  law,  constitute  an  ac- 
ceptance of  the  work  of  construction  and 
a  waiver  of  such  failure  to  perform,  un- 
less, perhaps,  to  the  extent-  of  such  pay- 
ment with  such  knowledge  where  such  ac- 
ceptance and  waiver  is  consistent  with  all 
the  pertinent  facts  in  the  ijase.  "Wiebener 
V.  Peoples  (Okla.)  1916E-748. 

83.  Waiver  of  Nonperformance.  Where 
a  contract  for  the  construction  of  a  build- 
ing requires  the  same  to  be  done  to  the 
satisfaction  of  the  owner  and  reserves  to 
him  the  right  without  the  duty  of  super- 
vision and  direction,  his  acquiescence  in 
or  his  failure  to  object,  during  the  work 
of  construction,  to  minor  and  slight  omis- 
sions, deviations,  and  defects,  of  which  he 
has  knowledge,  before  the  builder  has 
abandoned  the  work  to  him  as  completed 
and  he  is  occupying  and  using  the  same, 
will  ordinarily  and  when  not  excused  be 
regarded  as  a  waiver  of  such  nonperform- 
ance. Wiebener  v.  Peoples  (Okla.)  1916E- 
748. 

c.     Bond  of  Contractor. 

84.  Contractor's  Bond  —  Iilniitation  of 
Time  for  Suit — Effect  of  Abandonment  of 
Work.  A  surety  bond  to  plaintiff  on  his 
contract  with  a  contracting  company  for 
excavation  work  to  be  done  by  a  certain 
day  and  for  a  certain  price,  with  a  provi- 
sion that  after  a  certain  date  damages 
were  to  be  liquidated  at  $10  a  day,  condi- 
tioned for  the  faithful  performance  of 
the  contract,  and  providing  that  actions 
against  it  must  be  begun  within  six 
months  after  the  completion  of  the  work 
specified  in  the  contract,  assumes  comple- 
tion of  the  work,  and  will  apply  when  the 
work  has  been  done  under  the  contract, 
but  does  not  apply  as  against  plaintiff's 
action  for  damages  for  the  contractor's 
abandonment  of  and  refusal  to  complete 
the  work.  Comey  v.  United  Surety  Co. 
(N.  Y.)  1917E-424. 

85.  Building  Contracts  —  Liability  on 
Contractor's  Bond  —  Waiver  —  New  Con- 
tract for  Completion  of  Work.  Plsiintiff, 
who  entered  into  a  contract  for  excava- 
tion work,  with  a  provision  that  for  any 
delay  after  a  fixed  date  damages  should 
be  liquidated  at  $10  per  day,  and  to  whom 


the  contractor  gave  a  surety  bond  condi- 
tioned for  the  faithful  performance  of  the 
contract,  and  who  after  the  contractor's 
abandonment  of  the  work  at  once  made 
demand  on  the  surety  and  notified  it  of 
the  contractor's  default  and  that  it  would 
Le  held  responsible  for  the  damages,  by 
entering  into  a  new  contract  with  the  con- 
tractor, assented  to  by  the  surety,  and 
providing  that  it  should  not  be  deemed 
to  waive  the  original  contract  and  under 
which  the  work  was  completed  at  an  in- 
creased cost,  does  not  extinguish  his  right 
of  action  against  the  surety  for  damages 
for  breach  of  the  first  contract.  Comey  v. 
United  Surety  Co.  (N.  Y.)  1917E-424, 

d.     Architect's   Certificate. 

86.  Conclusiveness  of  Architect's  Certifi- 
cate. A  certificate  of  an  architect  that 
the  contractor  has  failed  to  prosecute  the 
work  with  diligence,  made  pursuant  to  a 
stipulation  in  the  contract  authorizing  a 
termination  of  the  contract  on  the  archi- 
tect certifying  that  the  delinquencies  of 
the  contractor  justify  it,  is  at  most  only 
prima  facie  evidence  in  any  collateral 
matter,  and  is  not  conclusive  in  an  action 
by  the  contractor  for  the  value  of  work 
done  and  material  furnished.  American- 
Hawaiian  Eng.,  etc.  Co.  v.  Butler  (Cal.) 
1916C-44. 

87.  Architect's  Certificate  Refused. 
Where  it  was  the  custom  for  a  contractor, 
entitled  to  monthly  payments  on  certifi- 
cates of  the  architect,  to  present  each 
month  to  the  architect  an  estimate  of  the 
work  done  and  material  furnished  the  pre- 
ceding month,  and  for  the  architect  to  ex- 
amine the  work  and  certify  that  it  was 
done  to  his  satisfaction,  and  when  a 
monthly  estimate  was  presented  to  the 
architect,  the  architect  replied  that  he 
had  been  instructed  by  the  owner  not  to 
give  the  certificate,  and  the  owner  de- 
clared that  he  would  not  make  any  more 
payments,  and  there  was  no  claim  that  the 
work  for  the  preceding  month  had  not 
been  properly  done,  or  any  suggestion 
that  the  want  of  the  architect's  certificate 
was  the  ground  for  refusing  payment,  and 
the  work  for  the  month  was,  in  fact,  well 
done,  the  payment  for  the  work  becomes 
due,  though  the  architect  did  not  approve 
and  certify  to  the  work.  American- 
Hawaiian  Eng.,  etc.  Co.  v.  Butler  (Cal.) 
1916C-44. 

88.  Termination  for  Default  of  Contrac- 
tor— Requisites  of  Notice.  Where  a  build- 
ing contract  contains  provisions  author- 
izing the  owner,  on  certificate  of  the 
architect,  and  after  notice  to  the  contrac- 
tor, to  provide  labor  and  materials,  or  ter- 
minate the  contract,  the  certificate  of  the 
architect  must  substantially  comply  with 
the  contract,  and  the  notice  to  the  con- 
tractor, following  the  certificate,  must 
fully   advise   the   contractor  of   what   the 


CONTRACTS. 


211 


owner  demands.  American-Hawaiian  Eng., 
etc.  Co.  V.  Butler  (Cal.)  1916C-44. 

89.  Right  of  Owner  to  Complete  Work. 

A  building  contract  which  provides  that, 
on  the  architect  certifying  to  the  failure 
of  the  contractor  to  supply  skilled  work- 
men or  proper  material,  or  to  prosecute 
the  work  with  promptness,  the  owner  may, 
after  three  days'  notice,  provide  labor  and 
materials  and  deduct  the  cost  thereof  from 
any  money  then  or  thereafter  to  become 
due  the  contractor,  and  that,  if  the  archi- 
tect shall  certify  that  the  failure  is  suffi- 
cient grounds  for  such  action,  the  owner 
may  terminate  the  employment,  and  enter 
on  the  premises,  and  employ  persons  to 
finish  the  work,  and,  in  case  of  discontinu- 
ance of  the  employment  of  the  contractor, 
he  shall  not  receive  any  further  payment 
until  the  work  shall  be  finished,  does  not 
contemplate  a  termination  of  the  employ- 
ment of  the  contractor  for  only  a  part  of 
the  work,  but  as  to  any  part  of  the  work 
touching  which,  according  to  the  archi- 
tect's certificate,  the  contractor  is  delin- 
quent, the  owner  may  furnish  the  neces- 
sary labor  and  material  to  be  used  by  and 
charged  to  the  contractor,  but  may  not 
oust  the  contractor  from  that  part  of  the 
work  and  undertake  to  perform  it  inde- 
pendent of  him,  though,  where  the  con- 
tractor has  become  so  delinquent  as  to 
justify  a  termination,  the  owner,  on  the 
architect's  certificate  to  that  effect,  may, 
after  proper  notice,  terminate  it.  Amer- 
ican-Hawaiian Eng.,  etc.  Co.  v.  Butler 
(Cal.)  1916C-44. 

90.  Where  an  owner,  employing  a  build- 
ing contractor,  fails  to  give  lawful  notice 
to  the  contractor  of  the  termination  of 
the  contract,  as  authorized  by  the  con- 
tract, on  receiving  a  proper  architect's 
certificate,  the  owner  may  not  take  charge 
of  the  work,  or  any  part  thereof,  and  the 
contractor  may  resist  the  attempt  of  the 
owner  to  do  so.  American-Hawaiian  Eng., 
etc.  Co.  V.  Butler  (Cal.)  1916C-44. 

91.  Conclusiveness  of  Architect's  Certi- 
ficate. "Where  a  building  contract  author- 
izes the  architect  to  determine  and  certify 
the  existence  of  a  fact,  material  to  a  pro- 
ceeding under  the  contract,  the  certificate 
of  the  architect,  duly  made,  that  the  fact 
exists  is  conclusive  on  the  parties  as  to 
the  thing  to  be  done  to  which  the  fact  re- 
lates, or  as  to  which,  under  the  proceed- 
ing, it  is  to  affect  the  rights  of  the  par- 
ties, except  for  fraud  or  gross  mistake 
amounting  to  fraud.  American-Hawaiian 
Eng.,  etc.  Co.  v.  Butler  (Cal.)  1916C-44. 

e.     Actions. 
(1)     Evidence. 

92.  Lack  of  Interest  in  Nominal  Party 
— ^Burden  of  Proof.  Where  a  party  seeks 
to  avoid  an  action  on  a  contract  by  show- 
ing that  the  plaintiff  is  an  agent,  the  bur- 


den of  proving  the  fact  of  agency,  as  well 
as  the  fact  that  the  principal  was  dis- 
closed, rests  upon  the  party  seeking  to  re- 
lieve himself  from  liability.  Camp  t.  Bar- 
ber (Vt.)  1917A-451. 

93.  Time  for  Completion  of  Work — 
Waiver.  Evidence  held  to  sustain  a  find- 
ing that  an  owner,  employing  a  contractor 
to  construct  a  building,  waived  the  time 
of  performance  specified  in  the  contract, 
so  that  he  could  not  recover  damages  for 
delj^y  in  completing  the  work.  American- 
Hawaiian  Eng.,  etc.  Co.  v.  Butler  (Cal.) 
1916C-44. 

94.  Waiver  of  Invalidity.  In  an  action 
to  recover  the  balance  upon  a  grading  con- 
tract, evidence  held  to  show  that  defend- 
ant did  not  require  plaintiff  to  quit  work, 
even  if  defendant  had  the  right  to  do  so. 
Gist  V.  Johnson-Carey  Co.  (Wis.)  I916E- 
460. 

(2)  Damages. 

95.  Measure  of  Damages  for  Defective 
Performance.  Where  a  contractor  and 
builder  had  breached  his  contract  by 
minor  and  slight  omissions,  deviations, 
and  defects  in  the  construction  of  a 
building,  when  tested  by  the  terms  of  the 
contract,  the  owner's  measure  of  damages, 
under  section  2620,  St.  Okla.  1890  (sea- 
tion  2852,  Rev.  Laws  1910),  is  such  an 
amount  as  will  compensate  him  for  all  the 
detriment  proximately  caused  thereby,  or 
which,  in  the  ordinary  course  of  things, 
would  be  likely  to  result  therefrom;  but 
the  form  in  which  this  measure  is  ex- 
pressed or  the  rule  by  which  it  is  made 
may  be  changed  to  adapt  it  to  the  facta 
in  the  case  on  trial,  as  illustrated  in  the 
body  of  the  opinion;  and,  where  the  facts 
warrant  it,  it  is  not  error  to  instruct  that 
such  measure  is  the  difference  between  the 
value  of  parts  not  so  constructed  and  the 
same  parts  if  they  had  been  constructed 
as  required  by  the  contract.  Wiebener  v. 
Peoples  (Okla.)  1916E-748. 

(Annotated.) 

96.  Measure    of    Damages    for    Breach. 

The  basis  of  the  action  is  to  fasten  a  trust 
on  the  property  of  the  testator  in  favor 
of  the  plaintiff,  and  to  specifically  enforce 
such  a  trust  against  the  testator's  execu- 
tor and  the  devisee  claiming  under  the 
will  violating  the  testator's  contract  with 
the  plaintiff,  and  in  the  alternative  to  re- 
cover damages,  if  specific  performance  is 
impossible.  The  damages  are  measured  by 
the  value  of  the  property  promised  to  be 
devised,  and  not  the  value  of  the  plain- 
tiff's services  which  furnished  the  consid- 
eration of  the  contract.  Gordon  v.  Spell- 
man    (Ga.)    1918A-852.  (Annotated.) 

(3)  Judgment. 

"97.    Provision  for   Paying   Subcontrac- 
tor.    Where  an  owner,  required  to  pay  the 


212 


DIGEST. 

1916C— 1918B. 


building  contractor  monthly  as  the  work 
progressed,  refused  to  make  a  monthly 
payment  on  the  ground  that  he  had  law- 
fully terminated  the  employment,  and  the 
owner,  when  sued  by  the  contractor  for 
the  value  of  the  work  done,  did  not  rely 
on  the  existence  of  a  claim  against  the 
contractor,  in  favor  of  a  subcontractor,  as 
an  excuse  for  the  refusal  to  pay,  the 
owner  could  not  complain  of  a  judgment 
for  plaintiff  with  a  direction  that  a  sub- 
contractor's claim  should  be  paid  out  of 
the  amount  of  the  judgment.  American- 
Hawaiian  Eng.,  etc.  Co.  v.  Butler  (CaL) 
1916C-44. 

f.    Eight  to  Terminate  Contract  for  Non- 
payment. 

98.  The  rule  that  a  rescission  of  a  con- 
tract by  one  party  thereto,  without  the 
consent  of  the  adverse  party,  cannot  be 
made  except  by  one  who  is  not  in  default 
applies  where  the  obligations  on  which 
each  party  is  in  default  are  dependent 
and  concurrent,  or  where  the  rescinding 
party's  default  is  so  related  to  the  obli- 
gation in  which  the  adverse  party  has 
failed  that  it,  in  some  manner,  affects  per- 
formance, or  the  duty  of  the  latter  to  per- 
form, but  does  not  apply  to  a  building 
contractor  whose  sole  default  is  that  he 
has  not  been  diligent  in  performance;  and 
where  the  owner  refuses  to  make  a 
monthly  payment  due  under  the  contract, 
the  contractor  may  rescind.  American- 
Hawaiian  Eng.,  etc.  Co.  v.  Butler  (Cal.) 
1916C-44.  (Annotated.) 

99.  Where  an  owner,  required  to  make 
monthly  payments  to  the  contractor  as 
the  work  progressed,  wrongfully  refused 
to  make  a  monthly  payment,  it  is  a  breach 
of  contract,  and  the  contractor  can  re- 
scind and  sue  on  a  quantum  meruit  for 
the  work  done  and  materials  furnished. 
American-Hawaiian  Eng.,  etc.  Co.  v.  But- 
ler   (Cal.)    1916C-44.  (Annotated.) 

Notes. 

Bight  of  building  contractor  to  rescind 
contract  for  failure  of  owner  to  make  pay- 
ment.    1916C-54. 

Avoidance  of  building  and  loan  con- 
tract on  ground  of  fraud.     1917A-890. 

10.     AVOIDANCE  FOR  FBATJD. 

100.  Rescission  of  Contract  —  Fraud. 
"Where  one  dealing  with  an  agent  to  take 
applications  for  home  purchasing  invest- 
ment contracts  signed  without  reading  an 
application,  reciting  that  the  applicant  re- 
lied solely  on  the  terms  of  the  contract 
and  the  options  set  forth  on  the  back  of 
the  application  and  made  a  part  thereof, 
and  retained  the  contracts  without  read- 
ing them,  and  the  agent  made  no  effort 
to  prevent  a  reading  of  the  application 
and  of  the  contracts,  nor  made  any  mis- 


representations as  to  the  contents  of  the 
application,  the  applicant  is  not  entitled 
to  relief  on  the  ground  of  fraud  based  on 
statements  by  the  agent  as  to  the  contents 
of  the  contracts.  Capital  Securities  Co.  v. 
GUmer  (Ala.)  1917A-888. 

(Annotated.) 

CONTRACT  TO  DEVISE, 

When  cause  of  action  accrues,  see  Limita- 
tion of  Actions. 


CONTRIBUTION. 

Cost  of  party'  wall,  see  Adjoining  Land- 
owners, 4-5. 

Necessary  parties,  see  Parties  to  Actions, 
3. 

Between  partners,  see  Partnership,  21-24. 

By  partner  after  dissolution,  see  Partner- 
ship, 44-46. 

CONTRIBUTORY  NEGLIGENCE. 

See  Carriers  of  Passengers,  23,  51-54; 
NegUgence,  41-57,  66-68,  72-78,  82, 
118;  Railroads,  69-77,  85-87. 

Of  servant,  see  Master  and  Servant,  32-37. 

In  actions  under  Employers'  Liability  Act, 
see  Master  and  Servant,  67,  68. 

As  affecting  compensation  under  Work- 
men's Compensation  Act,  see  Master 
and  Servant,  107,  187. 

As  defense  under  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  343. 

Accident  on  right  of  way,  see  Railroads, 
85-87. 

In  street  car  accidents,  see  Street  Rail- 
ways, 34-37. 

CONVERSION. 

1.  What  Constitutes  Conversion,  21S. 

2.  Who  may  Sue,  213, 

3.  Actions,  213. 

a.  Pleading,  213. 

b.  Evidence,  213. 

c.  Instructions,  213. 

d.  Measure  of  Damages,  213. 

e.  Defenses,  214. 

f.  Waiver  of  Tort,  214. 

Independent  contract  rights  as  counter- 
claim, see  Bankruptcy,  5. 

Election  of  remedies,  see  Carriers  of 
Goods,  32. 

When  action  of  trover  accrues,  see  Limi- 
tation of  Actions,  20. 

No  set-off  of  contract  claims  not  con- 
nected, see  Set-off  and  Counterclaim, 
2. 

1.     WHAT      CONSTITUTES      CONVER- 
SION. 

1.  Taking  from  Husband  of  Owner. 
Where  plaintiff,  with  consent  of  his  wife, 
had  possession  of  a  dog  given  to  his  wife 
by  defendant,  the  act  of  defendant,  in 
either  taking  the  dog  or  refusing  to  de- 


CONVERSION. 


213 


liver  on  demand  under  an  assertion  of 
title,  was  a  conversion.  Herries  v.  Bell 
(Mass.)   1917A-423. 

2.  Eecelving  Property  from  Tortfeasor. 
Merely  receiving  property  from  one  who 
has  converted  it  and  returning  it  to  him 
before  notice  of  his  want  of  title  is  not  a 
conversion  by  the  depositary.  Holden  v. 
Farmers,  etc.  Nat.  Bank  (N.  H.)  1917E- 
23. 

2.     WHO   MAY    SUE. 

3.  Conversion  of  Dog.  Where  plaintiff, 
•with  consent  of  his  wife,  had  possession 
of  her  dog,  and  defendant  converted  the 
dog  to  his  own  use,  plaintiff  was  entitled 
as  bailee  to  recover  full  damages.  Herries 
v.  Bell  (Mass.)  1917A-423. 

4.  Where  plaintiff,  with  consent  of  his 
Yrife,  had  possession  of  her  dog,  and  de- 
fendant enticed  the  dog  away  and  detained 
it  under  a  claim  of  ownership,  plaintiff 
could  sue  for  conversion.  Herries  v.  Bell 
(Mass.)   1917A-423. 

3.    ACTIONS. 

a.  Pleading. 

5.  All  that  is  required  in  a,  declaration 
for  trover  is  that  the  property  should  be 
described  with  as  much  reasonable  cer- 
tainty as  the  nature  of  the  case  will  per- 
mit, so  that  it  may  be  identified,  and  so 
that  defendant  may  be  protected  against 
another  suit  for  the  same  cause  of  action, 
Williams  v.  Williams  (Me.)  1916D-928. 

6.  Declaration.  Trover  may  be  main- 
tained to  recover  money  deposited  by  an 
agent  with  the  consent  of  his  principafl 
and  thereafter  converted  by  the  agent, 
although  the  identical  money  cannot  be 
specified  in  the  declaration  or  thereafter 
identified.  Williams  v.  Williams  (Me.) 
1916D-928. 

b.  Evidence. 

7.  Expression  of  Conclusion.  In  an  ac- 
tion for  the  conversion  of  electrical  ma- 
chinery, sold  to  a  contractor  to  be  placed 
in  an  electric  plant  for  defendant  city, 
evidence  by  defendant's  mayor  and  coun- 
cil as  to  whether  they  would  have  con- 
sented to  the  placing  of  the  machinery  in 
the  plant,  had  they  known  that  plaintiff 
reserved  title,  is  admissible  on  whether 
the  city  had  notice  of  the  reserved  title. 
Allis-Chalmers  Co.  v.  Atlantic  (Iowa) 
1916D-910. 

c.     Instructions. 

8.  Property  Attached  to  Realty  of  Third 
Person.  In  an  action  for  the  conversion 
of  electrical  machinery  sold  to  a  contrac- 
tor to  be  placed  in  an  electric  plant,  in 
which  defendant  city  disclaimed  knowl- 
edge that  title  was  reserved  by  plaintiff 
until  full  payment,  instructions  on  plain- 
tiff's estoppel  to  assert  its  claim  against 


defendant  should  hare  distinsruished  as  to 
fixtures  placed  in  the  plant  before  notice 
to  defendant  of  the  conditions  of  plain- 
tiff's contract  of  sale  and  those  placed 
thereafter;  the  evidence  raising  the  issue 
as  to  the  time  defendant  received  notice. 
Allis-Chalmers  Co.  v.  Atlantic  (Iowa) 
1916D-910.  (Annotated.) 

d.    M^sure  of  Damages. 

9.  Conversioil  of  Corporate  Stock.  While 
the  par  value  of  stock  is  presumptively 
the  measure  of  damages  for  its  conver- 
sion, if  it  appears  that  the  corporation  has 
been  in  existence  but  a  short  time,  that 
there  have  been  no  sales  of  stock,  and 
that  the  assets  are  depleted,  an  instruc- 
tion that  the  damages  are  to  be  deter- 
mined by  the  amount  which  a  person  wish- 
ing to  buy  the  stock  would  expect  to  pay 
is  not  error.  Hawkins  v.  Mollis,  Pirie  & 
Co.    (Minn.)    1916C-640.  (Annotated.) 

10.  Loss  of  Article  Having  No  Market 
Value.  The  measure  of  damages  for  loss 
by  a  carrier  of  an  article  which  has  no 
market  value  is  the  value  of  the  article 
to  the  shipper;  and,  in  ascertaining  the 
value,  inquiry  may  be  made  into  the  con- 
stituent elements  of  the  article  and  the 
cost  to  the  shipper  of  producing  it.  St. 
Louis,  etc.  K.  Co.  v.  Dague  (Ark.)  1917B- 
577.  (Annotated.) 

11.  Value  of  Article  Having  No  Market 
Value.  A  shipper  suing  a  carrier  for  the 
loss  of  an  article  having  no  market  value, 
and  showing  that  he  was  a  mechanic,  and 
giving  a  detailed  estimate  of  the  materials 
going  into  the  article  and  the  reasonable 
cost  of  constructing  the  same,  may  recover 
the  value  of  materials  furnished  and  the 
work  done  by  others,  as  shown  by  his  un- 
contradicted testimony.  St.  Louis,  etc.  B. 
Co.  V.  Dague  (Ark.)  I917B-577. 

(Annotated.) 

12.  Conversion  of  Articles  for  Personal 
Use.  This  general  rule  is  subject  to  the 
exception  that,  where  the  property  con- 
verted by  the  defendant  to  its  use  consists 
of  articles  for  personal  use,  which  have 
been  used  by  the  owner,  and  therefore 
have  little  or  no  market  value,  the  meas- 
ure of  damages  is  the  reasonable  value  to 
the  owner  at  the  same  time  of  conversion. 
Erie  E.  Co.  v.  Steinberg  (Ohio)  1917E- 
C61. 

13.  Measure  of  Damages.  In  a  suit  for 
conversion,  where  the  facts  do  not  author- 
ize the  assessment  of  exemplary  damages, 
the  general  rule  for  the  measure  of  dam- 
ages is  the  value  of  the  property  at  the 
time  of  the  conversion.  Erie  B.  Co.  v. 
Steinberg  (Ohio)  1917E-661. 

Notes. 
Measure  of  damages  for  conversion  of, 
or    failure    to    deliver,    household    goods. 
1917B-585. 


214 


DIGEST. 

19160— 1918B. 


Measure  of  damages  for  loss  or  destmc- 
tion  of  propertj  having  no  market  value. 
1917B-579. 

Measure  of  damages  for  aonversion  of 
shares  of  stock.     1916C-641. 

e.     Defenses. 

14.  In  a  suit  to  recover  the  proceeds  of 
shares  of  stock,  which  were  deposited  with 
brokers  on  a  margin  account,  and  were 
by  their  own  employee  converted,  held, 
that  the  brokers  were  not  guilty  of  bad 
faith  in  applying  the  proceeds  of  the 
transaction  as  directed  by  the  employee. 
CarUsle  v.  Norris  (N.  Y.)  1917A-429. 

15.  Fraud  of  Owner's  Employee.  Plain- 
tiff deposited  with  stockholders  stock  cer- 
tificates to  protect  his  margin  account. 
An  employee  of  the  broker,  who  was  also 
plaintiff's  confidential  agent,  obtained  pos- 
session of  the  stock,  which  had  been  re- 
hypothecated, and  converted  it  to  his  own 
use,  collecting  the  proceeds  through  the 
brokers  as  agent.  Held  that,  where  the 
brokers,  in  crediting  the  proceeds  accord- 
ing to  the  employee's  direction,  acted  in 
good  faith,  they  were  not  liable,  though 
negligent.  CarUsle  v.  Norris  (N.  Y.) 
1917A-429. 

f.     Waiver  of  Tort. 

16.  Where  a  trespass  has  been  commit- 
ted upon  real  estate,  and  property  severed 
therefrom  and  sold  by  the  defendant  or 
converted  to  his  own  use,  the  owner  may 
waive  the  trespass  and  sue  for  the  value 
of  the  property,  and  the  law  will  imply  a 
promise  to  pav  for  it.  Wilson  v.  Shrader 
(W.  Va.)  1916D-886. 

OONVEESION    AND    EECONVEESION. 

Power  to  sell  land  implied  from  direction 
to  pay  legacies,  see  Executors  and 
Administrators,  44. 

Purchase  of  land  by  members  of  firm,  see 
Partnership,  11,  12. 

1.  Reconversion  —  How  Accomplished. 
The  beneficial  owner  of  real  estate  which 
has  been  equitably  converted  into  person- 
alty has  the  power  by  word  or  act  to  re- 
convert it  into  realty,  but  his  words  or 
acts  to  have  such  effect  must  be  unequi- 
vocal, and  clearly  indicate  the  purpose  to 
countermand  the  trust.  Chambers  v.  Pres- 
ton (Tenn.)  1918B-428. 

2.  There  can  be  no  reconversion  except 
by  unequivocal  act  or  declaration  of  the 
owner  of  the  entire  beneficial  interest, 
and  persons  under  disability  are  incapable 
of  making  such  election.  Chambers  v. 
Preston  (Tenn.)  1918B-^28. 

3.  Where  testator  by  will  converted 
realty  to  personalty,  and  one  heir  mort- 
gaged his  interest,  which  was  also  levied 
on    by    certain    creditors,    and    court    pro- 


ceedings were  had,  and  his  interest  was 
sold  and  bid  in  by  the  other  legatees,  and 
partition  was  had,  there  is  no  reconver- 
sion of  the  personalty  into  realty,  espe- 
cially where  certain  remaindermen  in  in- 
terest were  not  made  parties  to  the  par- 
tition suit.  Chambers  v.  Preston  (Tenn.) 
1918B-428. 

4.  Condemnation  of  Land  Subject  to 
Bemainder.  Where,  in  such  case,  certain 
of  testator's  realty  was  condemned  by  the 
federal  government  during  the  widow's 
lifetime  and  prior  to  the  death  of  one  of 
the  sons,  damages  paid  therefor  to  the 
trustee  are  distributable  as  realty,  not  as 
personalty.  Tatham's  Estate  (Pa.)  1917A- 
855. 

5.  Devise  to  Trustees  With  Power  of 
Sale.  For  a  testator  to  devise  his  land  to 
trustees,  with  power  to  sell  land  and  in- 
vest the  proceeds  in  personalty,  does  not 
work  an  equitable  conversion,  though  the 
sale  and  reinvestment  has  that  effect. 
Porter  v.  Union  Trust  Co.  (Ind.)  1917D- 
427. 

6.  Effect  on  Owner's  Bight  to  Becover. 
Where  title  to  property  is  changed  from 
personalty  to  realty  with  the  vendor's  con- 
sent, the  vendor's  right  of  recovery  to  pro- 
tect his  rights  in  the  property  must  be 
based  upon  its  reasonable  value,  rather 
than  upon  the  property  itself.  Allis- 
Chalmers  Co.  v.  Atlantic  (Iowa)  1916D- 
910. 

7.  Equitable  Conversion — Testamentary 
Direction  for  Future  Sale.  A  will  devi- 
sing the  use  of  land  as  a  loan  to  the  tes- 
tator's wife  to  be  sold  by  the  executors 
en  her  death  or  on  the  son's  attaining  ma- 
jority, and  the  proceeds  thereof  to  be  dis- 
tributed among  the  children,  operates  to 
convert  the  realty  into  personalty  as  of 
the  date  of  the  testator's  death.  Cham- 
bers V.  Preston  (Tenn.)   1918B-^28. 

(Annotated.) 

CONVEYANCE. 

Defined,  see  Frauds,  Statute  of,  12. 

CONVEYANCES  OF  LAND. 

Meaning,  see  Deeds,  70. 

CONVICTION. 

Form  of  sentence  for  several  counts,  see 
Sentence  and  Punishment,  10. 

CONVICTS. 

See  Pardons. 

Effect  of  imprisonment  on  homestead,  see 

Homestead,  19. 
Death    sentence,    effect    of    insanity,    see 

Sentence  and  Punishment,  7,  12. 
Place  of  imprisonment,  see  Sentence  and 

Punishment,  20. 
Impeachment    of    ex-convict    witness,    see 

Witnesses,  105. 


CORONERS-^GORPORATIONS. 


215 


1.  Capacity  to  Contract.  Under  Okla. 
statutes  a  person  convicted  of  a  felony  ia 
not  divested  of  all  rights  whatever  and 
rendered  absolutely  civiliter  mortuus,  but 
may  contract  with  an  attorney  or  other 
person  to  obtain  a  parole,  a  pardon,  or  to 
sue  for  a  writ  of  habeas  corpus,  and  this 
in  the  absence  of  an  express  statute  to 
the  contrary,  or  some  express  provision 
for  the  management  of  his  estate,  neces- 
sarily carries  with  it  the  right  to  dispose 
of  his  property  in  order  to  employ  counsel. 
Byers  v.  Sun  Savings  Bank  (Okla.)  1916D- 
222.  (Annotated.) 

2.  Service  of  Process.  Va.  Code  1904, 
§  2902,  gives  a  right  of  action  for  wrong- 
ful death,  though  the  act  amounts  to  a 
felony.  Section  4115  authorizes  the  ap- 
pointment of  a  person  to  take  charge  of 
the  estate  of  a  convict.  Section  4116  pro- 
vides that  such  committee  may  sue  or  be 
sued  in  respect  to  debts  due  to  or  by  the 
convict,  "and  any  other  of  the  convict's 
estate."  Section  4120  provides  that,  if 
any  person  so  appointed  refuse  to  act  or 
qualify,  the  court  shall  commit  the  estate 
to  the  sheriff  of  the  county  or  sergeant  of 
the  corporation,  who  shall  be  the  commit- 
tee. It  is  held  that  section  4116  author- 
izes actions  against  the  committee  on  any 
cause  of  action  existing  against  the  con- 
vict, and,  while  at  common  law  a  convict 
might  be  sued,  the  statute  covers  the 
whole  subject,  and  an  action  for  wrongful 
death  cannot  be  maintained  against  a 
convicted  murderer,  but  must  be  brought 
against  his  committee.  Merchant's  Ad- 
ministrator V.  Shry  (Va.)  1916D-1203. 

(Annotated.) 

3.  Corporal  Punisliinent.  Laws  N.  Car. 
1909,  c.  281,  §  6,  applicable  to  Wake 
county,  provides  that  convicts  sentenced 
to  hard  labor  shall  be  under  the  control  of 
the  county  commissioners,  who  shall  have 
power  to  enforce  all  needful  regulations 
for  the  successful  working  of  convicts  on 
the  highways,  and  may  authorize  the 
supervisors  in  custody  to  use  such  dis- 
cipline only  as  may  be  necessary  to  carry 
out  the  regulations  to  the  same  extent  as 
is  allowed  by  law  to  the  authorities  of 
the  penitentiary  as  to  convicts  employed 
in  the  state's  prison.  It  is  held  that,  since 
there  is  no  law  authorizing  the  authori- 
ties of  the  state's  prison  to  enforce  the 
discipline     by     flogging,     supervisors     in 

'charge  of  a  camp  of  convicts  working  on 
the  roads  in  Wake  county  are  not  author- 
ized by  mere  custom  or  otherwise  to  flog 
a  convict  under  their  charge,  to  enforce 
discipline  and  compel  him  to  work.  State 
T.  Nipper  (N.  Car.)  1916C-126. 

(Annotated.) 

Notes. 

Service  of  process  on  convict.  1916I>- 
1207. 

Right  to  inflict  corporal  punishment  on 
convict.     1916C-130. 


Contractual  capacity  of  convict.     1916IX- 
225, 


OOBONEBS. 

Bight  of  dissection,  see  Dead  Body,  5. 

CORPORATE  TRUSia 
See  Monopolies.] 

CORPORATIONS. 

1.  Nature,  Character  and  Status,  21<5. 

2.  Matters  Relating  to  Corporate  Exist- 

ence, 217. 

a.  Dissolution,  217. 

(1)  In  General,  217. 

(2)  Forfeiture  of  Charter,  217. 

(3)  Effect  of  Dissolution,  217. 

3.  Control  by  Legislature  and  Courts,  217. 

4.  Rights  and  Powers,  217. 

a.  Effect  and  Validity  of  By-laws,  217. 

b.  Purchase  of  Property,  218. 

c.  Ultra  Vires  Acts,  218. 

d.  Implied  Powers,  218. 

e.  Power  to  Contract,  218. 

5.  Duties  and  Liabilities,  218. 

a.  In  General,  218. 

b.  Criminal  Liability,  219. 
e.  Duty  to  Stockholders,  220. 

d.  Liability  for  Acts  of  Agents,  220. 

6.  Promoters,    220. 

7.  Officers  and  Agents,  226. 

a.  Appointment,  Election,  and  Quali- 

fication, 220. 

b.  Authority,  221. 

(1)  Ratification    or    Estoppel    to 

Deny  Authority,  221. 

(2)  Proof  of  Authority,  221, 

e.  Liability,  221. 

(1)  To  Corporation,  221. 

(2)  To  Third  Persons,  221. 

(3)  Relief  to  Stockholder,  222. 

d.  Particular  Officers.  222. 

(1)  President,  222. 

(2)  Directors,  222. 

e.  Compensation  for  Services,  223. 

8.  Stock  and  Stockholders,  223. 

a.  Issuance  of  Stock,  223. 

b.  Subscription  to  Stock,  223. 

(1)  In  General,  223. 

(2)  When     Subscriber     Becomes 

Stockholder,  223. 

(3)  Withdrawal    and    Avoidanee 

of  Subscription,  224. 

(4)  Conditional        Subscriptions, 

225. 

(5)  Preference    in    New    Issue, 

225. 
e.  Nature  of  Ownership,  225. 

d.  Lien  of  Preferred  Stock,  225. 

e.  Transfer  of  Stock,  226. 

f.  Stockholders'  Meetings,  226. 

(1)  Notice,  226. 

(2)  Right  to  Vote,  227. 

(3)  Voting  Trusts,  227. 

(4)  Voting  Agreements,  227. 

(5)  Proxies,  227. 


216 


DIGEST. 

19160— 1918B. 


g.  Dividenda,  228. 

h.  Bight  to  Inspect  Corporate  Books, 

228. 
L  Distribution  of  Corporate  Assets, 

229. 
j.  Liability  of  Stockholders,  229. 

(1)  In  General,  229. 

(2)  Persons  Liable,  229. 

(3)  Accrual  of  Cause  of  Action, 

230. 

(4)  Enforcement     of     Liability 

Proceedings,   230. 

(5)  Limitation  of  Actions,  231. 
k.  Stockholders'  Actions,  231. 

(1)  Bight  of  Action,  231. 

(2)  Pleading  and  Practice,  231. 

(3)  Limitation  of  Actions,  232. 
9.  Actions,  232. 

a.  Process,  232. 

10.  Insolvency  and  Eeceivem,  232. 

a.  Preferences,  232. 

b.  Distribution   of  Assets,  232. 

c.  Appointment  of  Receiver,  233. 

11.  Corporate  Mortgages  and  Bonds,  233. 

12.  Foreign  Corporations,  234. 

a.  Statutory  Regulations,  234. 

(1)  Imposition  of   License   Tax, 

234. 

(2)  Statute    Requiring  Appoint- 

ment of  Representative  to 
Accept  Service  of  Process, 
234. 

(3)  "What       Constitutes      Doing 

Business,  234. 

(4)  Effect      of      Noncompliance 

With  Statutes,  235. 

b.  Insolvency  and  Dissolution,  235. 

c.  Actions   by   and   Against   Foreign 

Corporations,  235. 

(1)  Liability  to  be  Sued,  235. 

(2)  Service  of  Process,  235. 

(3)  Limitation  of  Actions,  236. 

(4)  Pleading,  236. 

(5)  Defenses,  237. 

See  Bills  and  Notes,  9;  Building  and  Loan 
Associations;  Canals;  Carriers;  Gas; 
Insurance;  Irrigation;  Mandamus,  14, 
15;  Municipal  Corporations;  Rail- 
roads; Quo  Warranto,  5;  Religious  In- 
stitutions; Street  Railways;  Tele- 
graphs and  Telephones;  Water  Com- 
panies and  Waterworks. 

Acknowledgment  before  notary  stock- 
holder, see  Acknowledgments,  1. 

Foreign  corporation  as  nonresident,  see 
Attachment,  2. 

Stock,  attachment  of,  see  Attachment,  3,  5. 

Transfer  of  stock,  see  Conflict  of  Laws,  8. 

Foreign  corporation,  existence,  see  Com- 
flict  of  Laws,  11, 

Corporation  not  a  citizen,  see  Constitu- 
tional Law,  75. 

Inheritance  of  stock,  law  governing,  see 
Descent  and  Distribution,  4. 

Condemnation  by  de  facto  corporation, 
See  Eminent  Domain,  4. 

Bill  to  test  election  of  of^cers,  see  Equity, 
3. 

Judicial  notice  of  charter  of  public  service 
corporation,  gee  Evidence,  12. 


Books  and  records  as  evidence,  see  Evi- 
dence, 100. 

Franchise,  construction,  forfeiture,  see 
Franchises,  1,  2. 

Sale  of  stock,  writing,  see  Frauds,  Statute 
of,  8. 

Stockholder  insurance  agent  issuing  policy 
on  corporate  property,  see  Insurance, 
2. 

Joint-stock  corporations,  see  Joint  Adven- 
tures, 8-10. 

Actions  by  and  against  for  defamation, 
see  Libel  and  Slander,  3,  69,  70,  72,  73. 

Blue  Sky  Law,  see  Licenses,  33,  34. 

"Person"  includes  corporation,  see  Limita- 
tion of  Actions,  5. 

Stockholder's  action,  when  cause  accrues, 
see  Limitation  of  Actions,  29. 

Prohibition  of  foreign  corporation  estab- 
lishing monopoly,  see  Monopolies,  15. 

Social  club  not  included  in  statute,  see 
Societies  and  Clubs,  1. 

Consolidation  of  street  railway  corpora- 
tions, see  Street  Railways,  7-19. 

Injunction  by  stockholder  to  restrain  cor- 
poration from  paying  tax,  see  Taxa- 
tion, 90. 

Taxation  of  stock,  see  Taxation,  14-21,  34, 
40-47,  78-85. 

Franchise  tax,  see  Taxation,  147,  148. 

Federal  Corporation  Tax  Act,  see  Taxation, 
149. 

Foreign  Corporation  Tax  Act,  see  Taxa- 
tion, 150-170. 

Injunction  against  using  of  name  of  an- 
other, see  Trademarks  and  Trade- 
names, 3. 

Right  of  alien  enemy  stockholder  to  vote, 
see  War,  16. 

Domestic  corporation  as  alien  enemy,  see 
War,  13,  14. 

1.        NATURE,        CHARACTER        AND 

STATUS. 

1.  "Citizen"  as  Including  Corporation. 
An  order  of  the  railroad  commission  of 
Arkansas,  based  upon  a  petition  signed  by 
seventeen  corporations  and  partnerships 
and  one  natural  person,  requiring  one  rail- 
road to  establish  a  connection  with  another 
is  void,  as  not  being  signed  by  fifteen  bona 
Cde  citizens  residing  within  the  territory 
affected,  within  the  direct  terms  of  Acts  of 
Ark.  1907,  p.  357,  §  1,  since  "bona  fide  cit- 
izens," as  there  used,  means  permanent 
residents,  as  distinguished  from  mere  sO; 
journers,  and  refers  to  individuals,  to  the 
exclusion  of  corporations  and  copartner- 
ships. St.  Louis,  etc.  R.  Co.  v.  State  (Ark.) 
1917C-873.  (Annotated.) 

2.  It  being  presumed  that  the  petition 
would  not  be  signed  without  consideration 
of  its  proposed  demands,  the  word  "citi- 
zen" will  not  be  construed  to  include  cor- 
porations, in  the  absence  of  a  provision 
in  the  act  creating  a  means  by  which  the 
assent  of  a  corporation  may  be  evidenced. 
St.  Louis,  etc.  R.  Co.  v.  State  (Ark.) 
1917C-873.  (Annotated.) 


CORPORATIONS. 


M7 


3.  A  "citizen"  ordinarily  means  only  a 
natural  person,  and  will  not  be  construed 
to  include  a  corporation,  unless  the  gen- 
eral purpose  and  import  of  the  statute  in 
•which  the  term  is  found  seems  to  require 
it.  St.  Louis,  etc.  B.  Co.  v.  State  (Ark.) 
1917C-873.  (Annotated.) 

SYz.  Whether  a  corporation  is  public  or 
private  is  not  to  be  decided  from  the 
number  of  persons  engaged  in  the  enter- 
prise for  their  mutual  advantage,  but  from 
the  terms  of  its  charter  and  the  general 
law  under  which  it  is  organized.  State 
Public  Utilities  Com.  v.  Bethany  Mut.  Tel. 
Assoc.   (III.)    1917B-495.  (Annotated.) 

Notes. 

"Citizen"  as  including  corporation,  joint 
stock  company  or  partnership.  1917C- 
875. 

Corporation  not  operated  for  profit  as 
public  utility.     1916I>-899. 

2.     MATTERS     EELATING     TO     COR- 
PORATE EXISTENCE. 

&.     Dissolution. 

(1)     In  General. 

4.  De  Facto  Dissolution.  Where  a  cor- 
poration going  out  of  business  assigned  itg 
assets  to  stockholders  for  their  assumption 
of  its  debts,  no  creditor  complaining,  the 
title  of  such  stockholders  to  stock  and 
bonds  of  another  corporation,  assigned 
them  by  the  owner  in  part  payment  of  his 
indebtedness  to  the  dissolved  corporation, 
was  perfect  against  the  assignee  of  the 
judgment  creditor  of  the  assignor  of  the 
securities,  although  no  notice  of  dissolu- 
tion of  the  corporation  was  filed  with  the 
secretary  of  state  of  the  state  of  incor- 
poration, as  its  statute  required.  Husband 
V.  Linehan  (Ky.)  1917D-954. 

5.  Judicial  Power.  The  right  to  dis- 
solve a  corporation  and  wind  up  its  affairs 
for  any  cause  against  its  consent  belongs 
to  the  sovereign  state  alone,  and,  in  the 
absence  of  an  express  statute  to  that  effect, 
the  courts  have  no  power  to  dissolve  such 
corporation  at  the  instance  of  an  indi- 
vidual suitor.  Union  Savings,  etc.  Co.  v. 
District  Court  (Utah)  1917A-821. 

(2)     Forfeiture  of  Charter. 

6.  Who  may  Assert  Forfeiture.  Okla- 
homa statutes  requiring  corporations  to 
pay  a  license  tax  for  doing  business,  and 
providing  that  a  failure  shall  work  a  for- 
feiture, being  chiefly  revenue  measures,  in- 
dividuals dealing  with  an  Oklahoma  cor- 
poration cannot  question  the  validity  of 
its  existence  on  the  ground  that  it  had  not 
paid  its  tax.  Dickey  v.  Southwestern 
Surety  Ins.  Co.  (Ark.)  1917B-634. 


(3)     Effect  of  Dissolution. 

7.  Effect    on    Pending    Penal    Action. 

Kirby's  Ark.  Dig.  §§  957,  958,  authorizing 
any  corporation  to  surrender  its  charter, 
and  conferring  on  the  chancery  court  juris- 
diction to  pay  the  debts  and  distribute  the 
assets  among  the  stockholders,  give  the 
unqualified  right  to  a  corporation  to  dis- 
solve at  any  tim^,  and  a  voluntary  disso- 
lution pending  action  by  the  state  for  pen- 
alties for  violation  of  the  anti-trust  stat- 
utes abates  the  action,  in  the  absence  of 
any  provision  for  the  enforcement  of  the 
claim  against  a  dissolved  corporation;  for 
an  action  for  a  penalty  is  not  an  action 
for  a  "debt."  State  t.  Arkansas  Cotton 
Oil  Co.  (Ark.)  I9I7A-1178. 

(Annotated.) 
Notes. 

Dissolution  of  corporation  as  abating 
action  against  it  to  recover  penalty  or  for- 
feiture.    1917A-1180. 

Necessity  of  assent  of  all  stockholders 
to  consolidation  of  corporations.  1918A- 
165. 

3.  CONTROL  BY  LEGISLATURE  AND 
COURTS. 

8.  Power  to  Dissolve.  The  power  to 
wind  up  the  affairs  of  a  corporation  and 
to  dissolve  it  is  not  one  which  inheres  in 
the  courts,  but  exists  only  when  conferred 
by  statute.  Union  Savings,  etc.  Co.  v.  Dis- 
trict Court  (Utah)  1917A-821. 

4.     EIGHTS  AND  POWERS, 
a.     Effect  and  Validity  of  By-laws. 

9.  Seat  of  Insolvent  Member.  A  pro- 
vision of  the  by-laws  of  a  stock  exchange, 
authorizing  the  sale  of  a  member's  seat  on 
his  insolvency  and  distribution  of  the 
proceeds  to  members  in  payment  of  their 
claims  against  him,  before  payment  of  any- 
thing therefor  to  him  or  those  claiming 
through  him,  is  valid.  Gartner  v.  Pitts- 
burgh Stock  Exchange  (Pa.)  1916E-878. 

(Annotated.) 

10.  Bestrictions  on  Transfer  of    Stock. 

Mass.  St.  1903,  c.  437,  makes  the  first  step 
in  the  organization  of  a  corporation  the 
signing  by  the  proposed  incorporators  of  a 
written  agreement  of  association,  and  by 
section  8'  (e)  requires  it  to  state  the  re- 
strictions, if  any,  imposed  upon  the  trans- 
fer of  capital  stock,  and  then  requires  a 
first  meeting  for  the  adoption  of  by-laws 
and  the  election  of  the  directors  and  other 
oflScers,  and  articles  of  association  contain- 
ing a  copy  of  the  agreement  of  associa- 
tion; and  section  28  regulates  the  transfer 
of  stock  as  to  its  form.  The  agreement 
of  association  provided  that  none  of  the 
stock  should  be  transferred  without  the 
consent    of   three-fourths    of    the    capital 


218 


DIGEST. 

1916C— 191«B. 


stock,  and  a  by-law  required  any  stock- 
holder before  selling  stock  to  file  a  writing 
giving  the  name  of  the  proposed  purchaser, 
the  number  of  shares,  and  the  purchase 
price,  which  sale  should  not  be  made  unless 
approved  by  a  meeting  of  the  stockholders 
at  which  three-fourths  of  the  stock  shall 
vote  to  permit  the  sale.  It  is  held  that 
such  restrictions  were  within  the  legisla- 
tive intent,  becoming  a  part  of  the  corpo- 
rate being  and  entering  into  each  share  of 
stock,  and  were  not  inherently  unconscion- 
able; and  hence  that  defendants,  claiming 
to  hold  offices  as  directors  by  virtue  of 
shares  of  stock  transferred  in  violation  of 
such  restrictions,  were  not  qualified,  and. 
must  surrender  their  offices.  Longyear  v. 
Hardman  (Mass.)  1916D-1200. 

(Annotated.) 

11.  That  an  assignee  of  an  insolvent 
member  was  not  given  an  opportunity  to 
be  heard  by  the  arbitration  committee  ap- 
pointed pursuant  to  such  provision  and  the 
by-laws  of  the  exchange  did  not  entitle 
him  to  complain  of  a  sale  of  the  member's 
seat  in  accordance  with  the  committee's 
action,  or  of  the  distribution  of  the  pro- 
ceeds of  the  sale  pursuant  to  the  by-laws, 
especially  where  he  did  not  appeal  from 
the  action  of  the  committee  to  the  board 
of  appeals,  as  provided  by  the  by-laws. 
Gartner  v.  Pittsburgh  Stock  Exchange 
(Pa.)   1916E-878.  (Annotated.) 

Notes. 

Validity  of  corporate  by-law  regulating 
alienation  of  stock.     1916D-1202. 

Validity  of  rule  of  stock  exchange  with 
respect  to  seat  of  insolvent  or  defaulting 
member.     1916E-879. 

b.     Title    to   Property. 

12.  A  corporation  itself  is  a  legal  per- 
sonalty holding  the  full  title,  legal  and 
equitable,  to  all  corporate  property.  Daw- 
son T.  National  Life  Ins.  Co.  (Iowa) 
1918B-230. 

c.  Ultra  Vires  Acts. 

13.  Ultra  Vires  Contracts.  "Ultra  vires 
contracts"  include  not  only  those  entirely 
without  the  scope  and  purpose  of  the  char- 
ter privileges  and  objects,  but  also  those 
beyond  the  limitation  of  the  charter  pow- 
ers, though  within  the  purposes  contem- 
plated by  the  articles  of  incorporation. 
American  Southern  Nat.  Bank  v.  Smith 
(Ky.)  1918B-959. 

d.  Implied  Powers. 

14w  Incidental  Powers.  The  term  "inci- 
dental powers,"  within  the  rule  that  a  cor- 
poration possesses  only  those  powers  which 
its  charter  confers  upon  it,  either  expressly 
or  as  incidental  to  its  existence,  means 
such  powers  as  are  directly  and  immedi- 
ately appropriate  to  the  execution  of  the 


powers  expressly  granted  and  exist  only 
to  enable  the  corporation  to  carry  out  the 
purpose  of  its  creation.  State  v.  Missouri 
Athletic  Club  (Mo.)   1916D-931. 

15.  The  "implied  powers"  of  a  corpora- 
tion are  such  as  are  not  indispensably 
necessary  to  carry  into  effect  others  ex- 
pressly granted,  and  comprise  all  that  are 
appropriate,  convenient,  and  suitable  for 
:that  purpose,  including  as  an  incidental 
right  a  reasonable  choice  of  the  means  to 
be  employed  in  putting  into  practical  effect 
this  class  of  powers.  State  v.  Missouri 
Athletic  Club  (Mo.)   1916D-931. 

16.  Powers  essential  to  the  exercise  of 
the  powers  expressly  granted  are  neces- 
sarily implied,  and  are  as  much  granted  as 
if  expressed.  Gregg  v.  Little  Bock  Cham- 
ber of  Commerce  (Ark.)  1917C-784. 

e.     Power  to  Contract. 

17.  Chamber  of  Commerce — ^Power  to 
Contract — Subsidy  for  Steamboat  Line. 
The  Little  Rock  Chamber  of  Commerce, 
incorporated  under  Kirby's  Ark.  Dig.  §§ 
937-943,  providing  that  such  corporations 
shall  have,  for  carrying  out  their  object, 
such  powers  as  are  possessed  by  other 
corporations,  and  which  may  be  necessary 
to  their  management  and  purposes,  and. 
whose  constitution  declared  its  object  to 
be  the  upbuilding  of  the  city,  the  encour- 
aging of  its  public  improvements  and 
educational  advantages,  and  the  develop- 
ment of  its  industries,  and  whose  by-laws 
provided  for  an  industrial  committee  to 
have  exclusive  control  of  the  industrial 
fund  and  the  power  to  grant  aid  or  sub- 
sidies for  public  purposes,  does  not  exceed 
its  powers  by  granting  a  subsidy  for  the 
construction  of  boats  and  the  navigation  of 
the  river  from  the  city  to  Memphis,  with 
a  view  to  lowering  prevailing  freight 
rates.  Gregg  v.  Little  Rock  Chamber  of 
Commerce   (Ark.)    1917C-784. 

(Annotated.) 

18.  Eestriction  to  Corporate  Purpose. 
The  power  of  a  corporation  to  make  and 
take  contracts  is  restricted  to  the  pur- 
poses for  which  it  is  created,  and  cannot 
legally  be  exercised  by  it  for  other  pur- 
poses. Gregg  V.  Little  Rock  Chamber  of 
Commerce  (Ark.)  1917C-784. 

Note. 

Powers  and  liabilities  of  private  corpora- 
tion or  association  organized  to  promote 
business  interests  of  community.  1917C- 
787. 

5.     DUTIES  AND  LIABILITIES, 
a.     In   General. 

19.  Liability  of  Corporation.     That  the 

defendants  were  interlocking  corporations 
controlled  by   the   same   stockholders  and 


CORPORATIONS. 


219 


directors,  that  the  first  company  was  cre- 
ated by  the  second  company,  and  that  the 
periodical  formerly  printed  by  the  second 
company,  in  which  the  libel  appeared,  was 
transferred  to  the  first,  which  had  no  vis- 
ible property,  is  no  ground  for  maintain- 
ing a  bill  in  equity  for  the  assessment  of 
damages  suffered,  for,  if  the  first  company 
is  merely  the  mouthpiece  of  the  second, 
its  corporate  form  does  not  prevent  plain- 
tiff from  reaching  the  real  offender,  in  an, 
action  at  law.  Finnish  Temperance  Soc. 
V,  Riavooja  Pub.  Co.  (Mass.)  1916D-1087. 

20.  Liability  for  Debt  of  Predecessor. 
A  manufacturing  corporation,  without  hav- 
ing issued  any  shares  of  its  authorized 
capital  stock,  gave  a  mortgage  on  all  of 
its  property  to  secure  an  issue  of  bonds, 
with  a  provision  that  upon  default  in  the 
payment  of  interest,  the  bondholders  were 
authorized  to  take  all  the  mortgaged  prop- 
erty into  their  possession  through  the 
trustee,  and  operate  and  manage  the  busi~ 
ness  and  property  as  a  going  concern,  for 
the  purpose  of  preserving  it  as  security. 
The  company  defaulted  on  its  payments, 
and  at  the  request  of  a  majority  of  the 
bondholders  the  trustee  took  possession  of 
all,  the  property  and  business,  making  one 
of  the  principal  bondholders  its  agent,  and 
the  business  was  continued  for  more  than 
two  years  by  the  bondholders  in  the  name 
of  the  mortgagor.  Thereafter,  at  the  re- 
quest of  the  bondholders  the  trustee  fore- 
closed the  mortgage,  and  the  property  was 
sold  under  the  decree  and  purchased  by  the 
bondholders,  who  thereupon  organized  a 
new  company  as  a  holding  company  to  take 
the  title  to  the  property,  and  the  sheriff's 
deeds  were  made  conveying  all  the  prop- 
erty to  the  new  company,  none  of  the  au- 
thorized capital  stock  of  which  was  is- 
sued. No  consideration  was  paid  for  the 
purchase  of  the  property  by  the  new  com- 
pany, except  the  interest  its  incorporators 
owned  as  bondholders.  In  an  action  by 
plaintiff  to  recover  for  material  and  sup- 
plies furnished  to  the  bondholders  while  in 
possession,  and  which  were  used  for  the 
purpose  of  preserving  the  property  as 
security  for  the  bonds,  it  is  held  that  it 
would  constitute  a  fraud  on  the  rights  of 
the  plaintiff  to  permit  the  new  company 
to  acquire  the  title  to  the  property  freed 
from  such  obligations;  that  the  circum- 
stances surrounding  the  creation  of  the 
new  corporation  and  its  succession  to  the 
business  and  property  of  the  old  show 
that  there  was,  in  fact,  no  purchase,  but 
merely  a  change  in  the  capacity  in  which 
the  business  was  conducted.  The  same 
persons  who  conducted  the  business  as 
bondholders  in  possession  as  mortgagees, 
changed  from  partners  or  bondholders  to 
incorporators  of  the  new  company,  and 
therefore  plaintiff  was  entitled  to  judg- 
ment against  the  new  company.  Spadra- 
Clarksville  Coal  Co.  v.  Nicholson  <'Kan.) 
1916D-652.  (Annotated.) 


Kote. 
Liability   of     corporation    for    debts    ot 
predecessor.     1916D-658. 

b.    Criminal  Liability. 

21.  Criminal  Prosecution.  Under  S.  Dak. 
Pen.  Code,  §  15,  providing  that  all  persons 
who  commit  in  wl^ole  or  in  part  any  crime 
within  the  state  are  liable  to  punishment, 
section  822  defining  "person"  as  including 
corporations,  S.  Dak.  Code  Cr.  Proc.  §  183, 
empowering  and  requiring  the  grand  jury 
to  inquire  into  all  public  offenses  and  pre- 
sent them  by  presentment,  indictment,  or 
accusation  in  writing,  and  section  560  et 
seq.  providing  for  a  hearing  before  a 
magistrate  upon  a  presentment  against  a 
corporation  or  the  filing  of  a  complaint  or 
information  against  it,  and  providing  that 
if  the  magistrate  return  a  certificate  that 
there  is  sufficient  cause  to  believe  the  cor- 
poration guilty,  the  state's  attorney  shall 
file  an  information,  or  the  grand  jury  may 
proceed  as  in  the  case  of  a  natural  person 
held  to  answer,  a  criminal  proceeding 
against  a  corporation  may  originate  by  in- 
dictment by  the  grand  jury  in  the  first 
instance,  by  the  return  of  a  presentment 
by  the  grand  jury  and  a  hearing  before  a 
magistrate,  or  by  an  information  filed  be- 
fore a  magistrate  and  a  preliminary  exam- 
ination. State  v.  Taylor  (S.  Dak.)  1916E- 
1285. 

22.  A  corporation  may  be  indicted  and 
convicted  under  section  37  of  the  Criminal 
Code  (Act  March  4,  190&,  c.  321,  35  Stat. 
1096  [Fed.  St.  Ann.  1909  Supp.  p.  415]), 
for  conspiracy  to  commit  an  offense  against 
the  United  States  by  carrying  liquors  into 
Indian  Territory  or  introducing  liquors  into 
the  Indian  country,  although  under  section 
335  of  the  Criminal  Code  (Fed.  St.  Ann. 
1909  Supp.  p.  495)  the  offense  is  a  felony. 
Joplin  Mercantile  Co.  t.  United  States 
(Fed.)   1916C-470.  (Annotated.) 

23.  Under  N.  Car,  Eevisal  1905,  §  2831, 
subd.  6,  defining  "person"  as  extending  to 
bodies  corporate,  unless  the  context  clearly 
shows  the  contrary,  and  section  3432  pro- 
viding that,  if  any  person  shall  by  any 
false  pretense  obtain  any  money  or  other 
thing  of  value  with  intent  to  defraud,  such 
person  shall  be  guilty  of  a  felony  and  im- 
prisoned or  fined,  a  corporation  may  be 
convicted  of  obtaining  money  by  false  pre- 
tenses, as  a  corporation  may  be  convicted 
of  a  crime  requiring  an  intent,  and  the 
fact  that  it  cannot  be  imprisoned  does  not 
exempt  it  from  criminal  liability.  State 
v.  Salisbury  Ice,  etc.  Co.  (N.  Car.)  1916C- 
456.  (Annotated.) 

24.  Criminal  Liability.  A  bankrupt  cor- 
poration is  capable  of  committing  the 
offense  of  knowingly  and  fraudulently  con- 
cealing its  property  from  its  trustee  in 
violation  of  Bankr.  Act  July  1,  1898,  c. 
541,  §  29b,  30  Stat.  554  (Fed.  St.  Ann.  1912 


220 


DIGEST. 

1916C3— 1918B. 


Supp.  p.  646).     Kaufman  t.  United  States 
(Fed.)  1916C-466.  (Annotated.) 

Note. 
Criminal  liability  of  corporation  for  act 
of     misfeasance     other     than     homicide. 
1916C-459. 

c.    Dnty  to  Stockholders. 

25.  The  relation  of  a  corporation  to  its 
stockholders  is  that  of  a  trustee  of  a  direct 
trust,  as  to  which  limitations  are  inap- 
plicable until  there  is  a  clear  and  unequiv- 
ocal disavowal  of  the  trust  and  notice 
brought  to  the  cestui  que  trust.  Yeaman 
V.  Galveston  City  Co.  (Tex.)  1917E-191. 

d.     Ldability  for  Acts  of  Agents. 

26.  A  corporation  is  as  well  liable  for 
slander  by  an  agent  committed  in  the 
course  of  his  employment  as  for  a  slander 
by  an  officer  or  manager  of  the  corpora- 
tion. Fensky  v.  Maryland  Casualty  Co. 
(Mo.)  1917D-963.  (Annotated.) 

27.  Liability  for  Slander.  A  corporation 
is  liable  for  a  slander  uttered  by  its  agent 
while  acting  in  the  scope  of  his  employ- 
ment, and  in  the  actual  performance  of  the 
duties  thereof  touching  the  matter  in 
question,  though  the  corporation  had  no 
knowledge  and  did  not  ratify  the  act  of 
the  agent.  Fensky  v.  Maryland  Casualty 
Co.  (Mo.)  1917D-963.  (Annotated.) 

6.     PEOMOTETJS. 

28.  Bight  of  Promoters  to  Subscribe. 
Promoters  who  complete  subscription  by 
subscribing  for  the  balance  of  unsold 
shares,  intending  to  sell  such  shares  to 
others,  are  liable  for  the  amount  so  sub- 
scribed. Heiskell  v.  Morris  (Tenn.) 
1918B-1134. 

29.  Liability  on  Contracts  of  Promoters. 
Where  plaintiff,  one  of  three  partners  en- 
gaged in  selling  interests  in  a  tract  of  land 
on  which  they  had  an  option  and  in  organ- 
izing a  corporation  to  take  over  such  land, 
prepared  the  articles  of  incorporation  with- 
out any  promise  that  he  would  be  paid 
therefor  or  without  any  assumption  of  lia- 
bility therefor  by  the  directors,  which  ser- 
vice was  more  than  in  the  interests  of  the 
partnership  than  of  the  corporation,  he 
must  be  assumed  to  have  rendered  such 
services  in  pursuance  of  a  representation 
by  his  partners  that  the  incorporation 
would  be  without  expense  to  purchasers, 
so  that  he  cannot  recover  therefor  against 
the  corporation;  since,  while  a  corporation 
may  adopt  the  contracts  of  its  promoters, 
especially  those  necessary  to  effect  its 
creation,  promoters  cannot,  in  the  absence 
of  any  adoption  of  their  acts,  bind  the  cor- 
poration by  their  contracts  made  before  it 
was  incorporated.  Tanner  v.  Sinaloa  Land, 
etc.  Co.  (Utah)  1916C-100. 

(Annotated.) 


NotA. 

Liability  of  corporation  to  third  parties 
on  contracts  of  its  promoters.     191(jC-105. 

7.    OFFICEES  AND  AGENTS. 

a.     Appointment,  Election,  and  Qualifica- 
tion. 

30.  Eligibility  of  Officer— Stock  Trans- 
ferred to  Permit  Election.  Defendant 
held  a  certificate  for  one  share  of 
stock  issued  to  him  by  a  corporation 
upon  the  assignment  to  him  of  a  share 
of  stock  by  one  who  held  as  trustee  for 
heirs  under  a  will.  The  assignment  was 
made  under  a  provision  of  the  will  where- 
by the  trustee  was  empowered  to  transfer 
stock  to  another  person  to  enable  him  to 
act  as  director  in  the  corporation.  De- 
fendant shortly  after  its  issuance  handed 
the  stock  certificate  over  to  the  trustee, 
with  a  memorandum  wherein  he  acknowl- 
edged that  he  held  the  stock  for  the  sole 
purpose  of  being  qualified  as  a  director, 
and  declaring  the  beneficial  ownership  to 
be  in  the  heirs  under  the  trust.  Held,  that 
defendant  was  a  stockholder  within  the 
statute  requiring  directors  to  be  stockhold- 
ers, since  the  transfer  of  the  stock  and 
issuance  of  the  certificate  to  him  in  ac- 
cordance with  section  8  of  the  act  under 
which  the  corporation  was  organized  vested 
him  as  to  the  corporation,  with  legal  and 
equitable  title.  People  v.  Lihme  (111.) 
1916E-959.  (Annotated.) 

31.  The  fact  that  defendant  surrendered 
his  certificate  to  the  trustee,  together  with 
the  memorandum,  does  not  affect  his  legal 
title,  since  he  could  be  divested  thereof 
only  by  transfer  on  the  books  of  the  com- 
pany, in  accordance  with  the  express  terms 
of  Act  Feb.  18,  1857  (111.  Laws  1857,  p. 
163),  §  8,  under  which  the  corporation  was 
organized.  People  v.  Lihme  (111.)  1916E 
959.  (Annotated.) 

32.  The  fact  that  defendant  has  no 
pecuniary  interest  in  the  success  of  the 
corporation  does  not  disqualify  him  to  act 
as  director,  since  under  the  express  terms 
of  Act  Feb.  18,  1857  (Laws  111.  1857,  p. 
164),  §  14,  under  which  act  the  corporation 
was  organized,  providing  for  the  voting  of 
stock  by  fiduciaries,  and  under  the  general 
doctrine  of  the  law,  bare  legal  title  in  the 
absence  of  fraud  qualifies  the  owner  to 
act  as  director  regardless  of  the  trusts 
under  which  the  stock  may  be  held.  Peo- 
ple V.  Lihme  (111.)  1916E-959. 

(Annotated.) 

33.  Necessity  That  Director  Own  Stock. 
A  "director"  in  a  corporation  is  a  mere 
agent,  and  need  not  be  a  stockholder  aside 
from  statutory  requirements.  People  v. 
Lihme  (111.)   1916E-959. 

34.  Necessity  for  Acceptance.  Evidence 
that  one,  claimed  to  be  a  director  of  a 
bank,  had  never  performed  the  duties  of 


CORPORATIONS. 


221 


the  office;  was  re-elected  to  it  after  his 
attempted  resignation;  that  he  was  with- 
out the  state  for  over  five  years  and  took 
no  part  in  the  conduct  of  the  affairs  of 
the  bank,  although  at  one  time,  while  with- 
out the  state,  he  assisted  in  the  purchase 
of  a  farm  for  the  bank,  is  insufficient  to 
show  that  he  was  in  fact  a  director,  since, 
before  becoming  such,  it  was  necessary  for 
him  to  accept  the  office.  Zimmerman  v. 
Western,  etc.  Fire  Ins.  Co.  (Ark.)  1917D- 
513.  (Annotated.) 

Notes. 
Eligibility  of   officer   of   corporation  to 
whom  stock  is  transferred  for  purpose  of 
enabling   him   to   become   officer.     1916E- 
963. 

Acceptance  of  office  in  private  corpora- 
tion.    1917D-516. 

b.    Authority. 

(1)     Eatification     or    Estoppel    to    Deny 
Authority. 

35.  Where  the  evidence  in  an  action  to 
enforce  specific  performance  of  a  contract 
between  the  president  of  a  membership 
corporation  and  a  landowner,  for  the  pur- 
chase of  land,  fails  to  show  any  meeting 
of  the  directors  of  the  corporation  after 
the  making  of  the  contract,  or  that  they 
had  ratified  the  contract  as  individuals,  or 
that  any  of  them  had  ever  heard  of  the 
contract,  it  cannot  be  inferred  from  any 
subsequent  acts  of  the  president  that  the 
contract  had  been  ratified  by  the  directors. 
Catholic  Foreign  Mission  Soc.  v.  Oussani 
(N.  Y.)  1917A-479.  (Annotated.) 

36.  Eatification  or  acquiescence  results 
from  an  appropriation  of  the  proceeds  to 
the  beneficial  use  of  the  corporation,  or  its 
failure  for  an  unreasonable  length  of  time, 
after  knowledge  of  the  unauthorized  act, 
to  restore  the  proceeds  thereof  to  the 
source  from  which  they  were  derived,  or 
from  a  course  of  dealing  on  its  behalf, 
without  objection,  so  obvious  and  often  re- 
peated as  reasonably  to  induce  belief  in 
corporate  authorization  for  such  purpose. 
Williams  v.  S.  M.  Smith  Ins.  Agency  (W. 
Va.)   1917A-813. 

(2)     Proof  of  Authority. 

37.  Authority  of  Officer  to  Contract.    In 

an  action  for  specific  performance  of  a  land 
sale  contract  evidence  that  plaintiff  mem- 
bership corporation  had  not  contracted  be- 
cause it  had  not  acted  through  its  direct- 
ors, but  through  its  president,  who  ex- 
ceeded his  authority,  is  admissible  under 
pleadings  denying  the  contract.  Catholic 
Foreign  Mission  Soc.  v.  Oussani  (N.  Y.) 
1917A^79. 

38.  To  aid  in  determining  whether  the 
directors  of  a  membership  corporation  au- 
thorized the  president  to  contract  to  pur- 
chase land,  not  only  the  formal  resolutions 


of  the  directors,  but  everything  said  and 
done  at  their  meeting,  may  be  shown. 
Catholic  Foreign  Mission  Soc.  v.  Oussani 
(N.  Y.)   1917A-479.  (Annotated.) 

39.  Where  a  manager  had  no  authority 
to  execute  a  contract  of  guaranty  for  his 
bank,  that  fact  "is  evidence  that  a  con- 
tract signed  by  hW  as  manager  was  in- 
tended only  as  his  personal  obligation. 
Griffin  v.  Union  Savings,  etc.  Co.  (Wash.) 
I917B-267. 

40.  Manner  of  Signing.  Where  a  con- 
tract was  signed  by  one  who  described  him- 
self as  manager  of  defendant  bank,  plain- 
tiff has  the  burden  of  proving,  there  being 
nothing  else  to  show  that  defendant  was 
bound,  that  it  was  the  intention  of  the 
signer  to  bind  the  bank.  Griffin  v.  Union 
Savings,  etc.  Co.   (Wash.)   1917B-267. 

Note. 
Authority   of   officer   of   corporation   to 
enter  into   contract  for  purchase  or  sale 
of  real  estate.    1917A-i82. 

c.    Liability. 
(1)     To  Corporation. 

41.  Liability  for  Secret  Profits.  Where 
the  directors  of  a  corporation,  on  the  un- 
subscribed for  stock  becoming  greatly  en- 
hanced in  value,  appropriated  it  to  them- 
selves at  a  price  below  its  selling  value, 
of  which  the  other  stockholders  had  no 
notice,  the  profits  accruing  to  them  from 
the  transaction  constitute  a  trust  fund  be- 
longing to  stockholders  of  record  at  the 
time  of  the  sale  of  such  stock.  Hechel- 
man  t.  Geyer   (Pa.)   1917A-236. 

(Annotated.) 

42.  The  directors  of  a  corporation  are 
under  an  inherent  obligation  not  to  use 
their  position  to  advance  their  individual 
interests,  as  distinguished  from  those 
which  they  represent  in  a  fiduciary  capac- 
ity. Hechelman  v.  Geyer  (Pa.)  1917A- 
256. 

43.  Liability  of  Directors  to  Corporation. 

The  directors  of  a  corporation  are  "trus- 
tees" or  quasi  trustees  of  its  capital  and 
assets,  and,  as  such,  are  liable  for  any 
breach  of  duty  with  respect  thereto. 
Hechelman  v.  Geyer  (Pa.)   1917A-236. 

Note. 
Liability   of  corporate    director  to   cor- 
poration or  stockholder  for  secret  profits. 
1917A-238. 

(2)     To  Third  Persons. 

44.  Liability   of    Director  for    Neglect. 

An  action  under  Kirby's  Ark.  Dig.  §  863, 
providing  that  any  director  of  a  bank  or 
other  corporation,  intentionally  neglecting 
or  refusing  to  perform  the  duties  of  his 
office,  shaU  be  severally  liable  for  debts 


222 


DIGEST. 

1916C— 1918B. 


of  the  corporation  during  the  period  of  his 
neglect  or  refusal  to  perform  the  duties, 
must  be  brought  within  three  years  from 
such  refusal,  and  is  thereafter  barred. 
Zimmerman  v.  Western,  etc.  Fire  Ins.  Co. 
(Ark.)    1917D-513. 

45.  Persons  Entitled  to  Enforce.  Where 
officers  of  an  insurance  company  and  a 
bank  conspire  for  the  purchase  of  the  in- 
surance company's  stock,  and  entries  are 
made  on  the  books  of  the  bank  so  as  to 
conceal  that  fact  from  the  directors  and 
stockholders,  they  cannot  be  liable  sever- 
ally to  the  depositor  for  any  debt  of  the 
bank  so  accruing,  since  the  insurance  com- 
pany cannot  hold  directors  for  any  liabil- 
ity founded  on  the  company's  participation 
in  a  wrongful  act.  Zimmerman  v.  West- 
ern, etc.  Fire  Ins.  Co.  (Ark.)  1917D-^13. 

(3)     Belief   to   Stockholder. 

46.  Rights  of  Shareholder — ^Enjoining  Il- 
legal Act.  An  individual  shareholder  in  a 
building  and  loan  association  may  main- 
tain an  action  to  prevent  its  officers  from 
doing  some  forbidden  act,  or  from  continu- 
ing a  course  of  mismanagement  of  its 
affairs,  or  to  require  the  association  to 
obey  the  statute,  or  for  the  purpose  of  ob- 
taining a  judgment  against  the  association. 
Union  Savings,  etc.  Co.  v.  District  Court 
(Utah)    1917A-821. 

47.  Action  -for  Fraud.  Plaintiff,  the 
holder  of  shares  of  stock  in  a  life  insur- 
ance company  having  a  book  value  of 
about  $130  each,  but  which  had  sold  as 
high  as  $150,  and  who  sold  them  for 
around  $200  a  share  to  the  vice-president 
and  secretary  of  the  company,  acting 
with  the  president  and  others,  owning 
a  majority  of  its  stock,  in  transferring 
or  reinsuring  its  risks  at  a  value  giving 
them  about  $1,000  a  share,  and  certain 
payments  and  preferences  for  such  service, 
and  who  had  not  been  informed  as  to  the 
true  condition  of  the  company  or  the  value 
of  its  assets,  may  maintain  an  action 
against  such  officers  for  fraud,  and  recover 
the  full  value  of  his  stock,  without  refer- 
ence to  the  price  agreed  upon  at  the  time 
of  the  sale.  Dawson  v.  National  Life  Ins. 
Co.   (Iowa)   1918B-230.  (Annotated.) 

d.     Particular  Officers. 
(1)     President. 

48.  Giving  Note  for  Borrowed  Money. 
A  president  has  no  inherent  power  to  nego- 
tiate loans  and  issue  notes  therefor  in  the 
name  of  the  corporate  entity  of  which  he  is 
such  officer.  And,  unless  it  ratifies  such 
action  on  his  part,  or  for  an  unreasonable 
length  of  time  after  knowledge  thereof  ac- 
quiesces therein,  the  notes  so  executed  are 
not  enforceable  as  liabilities  against  the 
corporation.  Williams  v.  S.  M.  Smith  Ins. 
Agency  (W.  Va.)  1917A-813. 


49.  Authority  of  President  to  Execute 
Contract.  A  contract  pertaining  to  the 
business  of  a  corporation,  when  formally 
executed  in  its  name  by  its  president,  will, 
in  the  absence  of  proof  to  the  contrary,  be 
presumed  to  have  been  authorized  by  the 
corporation,  and  the  presumption  is  not 
necessarily  rebutted  by  mere  failure  of  the 
directors'  record  to  show  affirmatively  that 
such  authority  had  been  given.  Omaha 
Wool,  etc.  Co.  V.  Chicago  Great  Western 
B.  Co.  (Neb.)  1917A-358. 

(Annotated.) 

50.  Contract  to  Purchase  Beal  Estate. 
Neither  a  resolution  of  the  board  of  direc- 
tors of  a  membership  corporation  that  "the 
president  and  vice-president  be  empow- 
ered to  take  charge  of  the  fiscal  affairs 
until  the  by-laws  are  adopted,"  nor  a  reso- 
lution "that  the  president  has  authority  to 
sign  and  execute  all  documents,"  standing 
alone  and  unexplained,  gives  the  president 
that  authority  required  by  the  N.  Y.  Mem- 
bership Corporations  Law  (Consol.  Laws, 
0.  35),  §  13,  providing  that  no  purchase  of 
realty  shall  be  made  by  a  membership  cor- 
poration, unless  ordered  by  the  directors 
by  a  two-thirds  vote,  as  a  condition  to  his 
right  to  contract  for  the  purchase  of 
realty.  Catholic  Foreign  Mission  Soc.  v. 
Oussani  (N.  Y.)  1917A-479. 

51.  Execution  of  Deed.  A  deed  of  "Big 
Hillabee  Power  Company,"  purporting  on 
its  face  to  be  the  deed  of  the  company, 
and  reciting  that  in  witness  the  grantor 
had  set  its  hand  and  seal  and  delivered  it 
by  its  president  signed  "L.  W.  Eoberts, 
Pres't  Big  Hillabee  Power  Co.,"  was  the 
deed  of  the  company,  since  any  defect  in 
the  signature  is  such  as  a  court  of  equity 
will  not  permit  to  defeat  the  right  of  the 
grantee.  Nolen  t.  Henry  (Ala.)  1917B- 
792. 

Note. 
Presumption  that  contract  executed  by 
president  of  corporation  is  authorized  by 
corporation.     1917A-360. 

(2)     Directors. 

52.  Fiduciary  Relation  of  Director  and 
Stockholder  —  Purchase  of  Stock  by 
Director.  Any  contract  whereby  corpo- 
rate directors  acquire  profit  po  the  share- 
holder's detriment,  casts  upon  them  the 
burden  of  affirmatively  showing  that  the 
contract  was  fairly  procured  for  value,  or, 
if  for  less  than  value,  upon  full  disclos- 
ure of  all  facts  known  to  the  director  and 
unknown  to  the  shareholder.  Dawson  v. 
National  Life  Ins.  Co.  (Iowa)   1918B-230. 

(Annotated.) 

53.  Relation  to  Stockholders.  The  offi- 
cers and  directors  of  a  corporation  are 
trustees  of  the  stockholders  in  many  re- 
spects, as  in  the  transaction  of  the  busi- 
ness   and    care    of    the    property    of    the 


CORPORATIONS. 


223 


corporation.      Dawson    v.    National    Life 
Ins.  Co.  (Iowa)  1918B-230. 

Note. 

Purchase  of  stock  by  director  as  af- 
fected by  fiduciary  relation  to  stockholder. 
19I8B-241. 

e.     Compensation  for  Services. 

54.  Bight  to  Compensation  for  Extra 
Services.  Plaintiff,  while  drawing  a  sal- 
ary of  $100  per  month  as  general  man- 
ager of  a  corporation  which  he  with  others 
had  organized  to  take  over  land  on  which 
they  had  an  option,  is  not  entitled  to  com- 
pensation for  his  services  in  preparing  or 
copying  a  contract  for  use  by  the  corpora- 
tion, since  these  services  are  such  as  a 
business  manager  is  ordinarily  expected  to 
perform  for  his  company.  Tanner  v.  Sina- 
loa  Land,  etc.  Co.  (Utah)  1916C-100. 

55.  Allowed  by  Vote  of  Officer  Benefited. 
Compensation  voted  to  an  officer  of  a  cor- 
poration is  illegal,  if  the  resolution  fixing 
it  is  carried  by  his  vote,  and  such  com- 
pensation may  be  recovered.  Luthy  v. 
Ream   (111.)   1917B-368. 

8.     STOCK  AND  STOCKHOLDERS, 
a.     Issuance  of  Stock. 

56.  Issue  of  Stock  and  Bonds.  Where 
the  parties  by  their  pleadings  and  stipula- 
tions have  made  a  case  where  a  corpora- 
tion has  purchased  property  necessary  and 
proper  for  corporate  use  and  issued  there- 
for its  capital  stock  and  bonds,  a  prima 
facie  case  of  valid  payment  for  the  stock 
and  bonds  is  established.  Morgan  v.  Day- 
ton Coal,  etc.  Co.  (Tenn.)  1917E-42. 

b.    Subscription  to  Stock. 
(1)     In  General. 

57.  Subscriptions  of  corporate  stock  by 
insolvent  persons  cannot  be  counted  to 
hold  other  subscribers  for  the  amount  of 
their  subscriptions;  but,  if  such  subscriber 
was  apparently  solvent  at  the  time  he 
made  the  subscription,  no  fraud  is  perpe- 
trated upon  other  subscribers  by  the  ac- 
ceptance of  his  subscription  in  good  faith, 
though  he  afterward  proves  to  have  been 
insolvent.  Heiskell  v.  Morris  (Tenn.) 
1918B-1134.  (Annotated.) 

58.  Contract  for  Sale  of  Stock.  The 
Ideal  Laundry  Company  was  a  corporation 
capitalized  at  250  shares,  of  the  par  value 
of  $100  each,  of  which  plaintiff  owned  126 
shares,  the  balance  outstanding  in  the 
names  of  other  parties. 

The  defendant  laundry  company,  doing 
a  kindred  business  and  desiring  to  pur- 
chase all  the  shares,  executed  on  January 
11,  1910,  to  the  plaintiff  the  following 
memorandum  of  agreement:  "We  agree  to 
purchase     126    shares    of    Ideal    Laundry 


stock  for  $5,500,  and  the  balance  of  124 
share*  at  $50  per  share,  from  F.  C.  Whit- 
more.  (Signed)  The  Davis  Laundry 
Company,  per  E.  W.  Sloan.  1-11-10." 
This  memorandum  was  not  signed  by 
Whitmore.  No  time  was  fixed  for  the 
delivery  of  these  shares,  and  it  was 
verbally  agreed  that  delivery  should  be 
made  at  a  local  baiik,  and  that  the  buyer 
should  assist  in  obtaining  the  outstanding 
shares.  On  February  21,  1910,  the  seller 
had  deposited  in  the  bank  his  own  126 
shares  and  had  obtained  116  of  those  out- 
standing, at  which  time  he  notified  the 
defendant  of  this  fact,  and  that  the  re- 
maining 8  shares  would  be  delivered  in  a 
very  short  time.  On  January  31,  1910, 
the  buyer  took  possession  of  the  plant 
and  assets  of  the  Ideal  Laundry  Company 
and  operated  the  same  for  a  period  of  two 
weeks.  On  February  28,  1910,  the  seller 
had  secured  the  entire  250  shares  and  de- 
posited them  with  the  local  bank  for 
delivery,  and  so  notified  the  buyer.  On 
February  16,  1910,  the  buyer  yielded  pos- 
session and  repudiated  the  contract. 
Held:  The  written  memorandum  was  an 
offer  to  purchase  the  entire  250  shares  of 
stock,  and  stipulated  the  price  per  share. 
Davis  Laundry,  etc.  Co.  v.  Whitmore 
(Ohio)  1917C-988. 

59.  Common  or  Preferred  Stock.  Where 
a  subscription  agreement  to  form  a  cor- 
poration provides  for  the  issuance  of  pre- 
ferred and  common  stock,  and  that  the 
subscriber  is  to  designate  the  class  of 
stock  to  which  he  subscribes,  an  undesig- 
nated subscription  will  be  deemed  a  sub- 
scription to  common  stock,  unless  a  prefer- 
ence is  asked  prior  to  the  organization  of 
the  corporation,  or  is  given  by  unanimous 
consent  of  the  stockholders  after  such 
time.  National  Bank  T.  Amoss  (Ga.) 
1918A-74. 

(2)     When     Subscriber    Becomes     Stock- 
holder. 

60.  A  certificate  of  stock  in  a  corpora- 
tion is  not  the  stock  itself,  and  is  not 
necessary  to  a  subscriber's  complete  own- 
ership of  the  stock,  but  is  a  mere  muni- 
ment of  title,  evidencing  the  stockholder's 
right  of  ownership.  Yeaman  v.  Galveston 
City  Co.  (Tex.)  1917E-191. 

(Annotated.) 

61.  Resolution  Limiting  Rights.  Where 
stockholders  of  a  corporation  were  com- 
posed of  the  holders  of  certain  trust'  cer- 
tificates representing  an  interest  in  cer- 
tain town-site  land,  it  being  contemplated 
that  the  trust  certificate  should  be  ex- 
changed for  stock  in  the  corporation,  the 
rights  of  the  holders  of  such  certificates 
cannot  be  terminated  by  a  resolution  that 
such  holders  should  not  be  entitled  to 
draw  dividends  or  vote  at  stockholders' 
meetings  until  they  had  surrendered  their 
certificates    and    taken    out    renewed    eer- 


224 


DIGEST. 

1916CJ— 1918B. 


tificates,  notice  of  which  is  given  only  by 
publication  in  three  newspapers  in  states 
other  than  that  in  which  the  corporation 
was  organized.  Yeaman  v.  Galveston  City 
Co.  (Tex.)   1917E-191. 

62.  Where  a  subscriber  to  the  capital 
stock  of  a  corporation  has  paid  his  sub- 
scription or  performed  his  obligation  es- 
sential to  entitle  him  to  the  issuance  of 
his  stock,  he  is  a  full  stockholder  and 
entitled  to  all  the  rights  as  such,  regard- 
less of  whether  a  stock  certificate  was 
ever  issued  to  him.  Yeaman  v.  Galveston 
City  Co.  (Tex.)  1917E-191. 

(Annotated.) 

63.  The  owners  of  a  town  site,  in  order 
to  promote  a  sale  thereof,  conveyed  the 
land  to  trustees  to  be  disposed  of  for  their 
benefit,  the  land  being  represented  by 
1,000  shares  of  joint  stock,  for  which  cer- 
tificates were  to  be  issued  to  purchasers 
for  the  berefit  of  the  landowners.  The 
purchasers  formed  a  joint-stock  company, 
operated  by  the  trustees,  who  thereafter 
conveyed  the  land  to  the  directors  of  the 
joint-stock  company,  and,  a  corporation 
having  been  subsequently  formed  and  the 
land  conveyed  to  it,  it  was  resolved  by 
the  stockholders  of  the  joint-stock  com- 
pany that  the  holders  of  the  trust  certifi- 
cates should  be  required  to  file  and 
register  them,  receiving  in  lieu  thereof  a 
certificate  of  stock  in  the  corporation,  and 
that  such  transfer  should  be  necessary  to 
enable  the  shareholders  to  receive  divi- 
dends. The  trustees  continued  to  issue 
trust  certificates  after  the  organization 
of  the  corporation,  and  both  such  certifi- 
cates and  the  certificates  for  the  shares  in 
the  corporation  were  acceptable  in  pay- 
ment for  lots  sold  by  the  corporation.  In 
1856,  forty  shares  of  trust  certificates 
being  still  outstanding,  it  was  resolved 
that  the  holders  should  not  be  entitled  to 
draw  dividends  or  vote  thereon  until  they 
were  surrendered,  and  that  notices  of  the 
resolution  should  be  published  in  three 
newspapers  in  other  states.  The  act  of 
incorporation  provided  that  "the  stock- 
holders in  the  Galveston  City  Company  be 
and  they  are  hereby  incorporated  under 
the  same  name  and  style."  It  is  held 
that,  the  act  of  incorporation  being  for 
the  benefit  of  the  persons  interested  in 
the  joint-stock  company,  it  would  be  pre- 
sumed that  it  was  accepted  by  them,  and 
hence  the  holders  of  trust  certificates  be- 
came ipso  facto  stockholders  in  the  cor- 
poration, and  were  entitled  to  all  the 
rights  of  stockholders,  regardless  of 
whether  they  ever  surrendered  their  cer- 
tificates for  shares  in  the  company  or  not. 
Yeaman  v.  GaJveston  City  Co.  (Tex.) 
1917E-191.  (Annotated.) 

Note. 

"When  subscriber  to  stock  becomes 
stockholder.     1917E-209. 


(3)     Withdrawal  and  Avoidance  of  Sub« 
scription. 

64.  Where  subscribers  for  more  than 
two  years  took  no  steps  to  repudiate  sub- 
scriptions, but  allowed  their  names  to 
remain  on  the  corporate  books  as  share- 
holders, and  paid  one  assessment,  it  is 
held  that  they  could  not  defeat  an  action 
by  receiver  to  recover  unpaid  subscrip- 
tions on  the  ground  of  fraud.  Heiskell  v. 
Morris  (Tenn.)  1918B-1134. 

65.  Fraud  on  Subscriber  —  Waiver  by 
Delay.  The  shareholder,  whose  subscrip- 
tion is  obtained  through  fraud,  must  be 
diligent  in  discovering  the  fraud  and  re- 
pudiating the  contract,  to  avoid  his  sub- 
scription as  against  creditors  of  the 
corporation.  Heiskell  v.  Morris  (Tenn.) 
1918B-1134. 

66.  Insolvency  of  One  Subscriber.  The 
insolvency  of  a  subscriber,  as  relieving 
other  subscribers  from  obligation  to  pay 
subscriptions,  is  a  matter  of  defense,  the 
burden  of  proving  which  is  on  those  sub- 
scribers asserting  it.  Heiskell  v.  Morris 
(Tenn.)  1918B-1134.  (Annotated.) 

67.  Effect  on  Other  Subscriptions.  The 
withdrawal  of  a  subscriber  before  the 
minimum  stock  subscription  is  reached 
does  not  vitiate  the  other  subscriptions 
not  80  withdrawn.  National  Bank  v. 
Amoss    (Ga.)    1918 A-74. 

68.  Where  promoters  enter  into  a  secret 
and  collateral  agreement  with  a  person 
to  induce  him  to  subscribe  for  stock  of  a 
corporation  to  be  formed,  the  breach  of 
such  agreement  will  not  release  the  sub- 
scriber from  his  liability  to  the  corpora- 
tion. National  Bank  v.  Amoss  (Ga.) 
1918A-74. 

69.  Fraud  of  Promoter  as  Releasing 
Subscriber.  Where  a  promoter  solicited 
subscriptions  to  a  corporation  to  be 
formed,  and  presented  to  the  prospective 
subscriber  a  subscription  agreement  con- 
taining a  provision  that  the  promoter  un- 
dertook and  agreed  that  a  certain  corpora- 
tion would  sell  to  the  subscribers  certain 
property  for  a  stated  sum,  and  no  mis- 
representation of  fact  was  made,  nor  any 
trick  or  device  practiced  by  the  promoter 
to  secure  the  subscription,  in  a  suit  by  the 
corporation  and  its  officers  to  wind  up  its 
affairs,  adjust  the  liabilities  of  the  hold-., 
ers  of  stock  and  subscribers  to  stock,  and 
distribute  the  corporate  assets,  subscribers 
will  not  be  released  on  the  ground  that  " 
their  subscription  was  procured  by  alleged  _ 
fraud  of  the  promoter,  who  had  largely 
overvalued  the  property  in  the  subscrip- 
tion contract,  and  who  was  a  large  owner 
of  stock  in  the  corporation  which  owned 
the  property.  National  Bank  v.  Amoss 
(Ga.)  1918A-74. 

70.  Release  of  Subscriber.  A  snb- 
Bcriber   to   stock  in   a   corporation   to   be 


CORPORATIONS. 


225 


formed  "for  the  purpose  of  organizing  the 
Sparta  Cotton  Mill,"  where  the  subscrip- 
tion agreement  contained  no  reference  to 
the  scope,  extent,  or  nature  of  the  busi- 
ness beyond  limiting  the  capital  stock  to 
a  fixed  sum,  but  did  contain  a  provision 
that  a  named  person  would  sell  for  a 
stated  sum,  to  the  subscribers,  the  prop- 
erty of  the  Sparta  Oil  Mill,  is  not  released 
from  his  subscription  because  the  charter 
subsequently  granted  empowers  the  cor- 
poration "to  conduct  such  branch  estab- 
lishments and  business  as  are  found  to  be 
useful  to  the  main  enterprise";  the  ma'n 
enterprise,  as  stated  in  the  charter,  being 
the  manufacture  and  sale  of  cotton  goods, 
yarns,  thread  and  cloth.  National  Bank 
V.  Amoss  (Ga.)    1918A-74. 

(Annotated.) 

Notes. 

Alteration  in  charter  or  change  in  cor-, 
porate  design  as  releasing  subscriber  to 
stock.     1918A-79. 

Liability  on  stock  subscription  as  de- 
pendent upon  whole  amount  of  stock 
having  been  subscribed.     1918B-1137. 

(4)     Conditional  Subscriptions. 

71.  Effect  of  Failure  to  Subscribe  En- 
tire Amount.  Under  a  subscription  con- 
tract, making  all  subscriptions  contingent 
npon  the  whole  amount  being  subscribed, 
no  assessments  can  be  enforced  until  the 
entire  capital  stock  has  been  subscribed. 
Heiskell  v.  Morris  (Tenn.)   1918B-1134. 

(Annotated.) 

72,  A  subscription  contract,  providing 
that  all  subscriptions  are  on  ■condition 
that  the  promoters  "procure"  subscriptions 
to  the  full  amount  of  the  capital  stock,  is 
held  not  to  require  that  all  subscriptions 
be  made  by  persons  other  than  the  pro- 
moters. Heiskell  v.  Morris  (Tenn.) 
1918B-1134.  (Annotated.) 


(5)     Preference  in  New  Issue  of  Stock. 

'73.  Preferential  Eights  of  Stockholders. 
A  corporation  increasing  its  capital  stock 
may  offer  the  stock  at  par  to  its  bona  fide 
stockholders  who  appear  to  be  such  on 
the  books  of  the  corporation,  and  it  need 
not  accent  the  subscription  of  any  other 
person.  Schmidt  v.  Marconi  "Wireless  Tel. 
Co.   (N.  J.)   1918B-131.  (Annotated.) 

Note. 
Right    of   stockholder   to   preference  in 
subscribing  for  new  stock.     1918B-132. 

c.     Nature  of  Ownership. 

74.  Belation    of    Stockholders    to    Cor- 
poration.    The  stockholders  of  a  corpora- 
tion have  no  legal  title  to  property,  which 
is  owned  by  the  entity  known  as  the  cor- 
15 


poration,  but  their  shares  represent  in- 
tegral parts  of  the  whole,  and  propor- 
tional shares  of  the  dividends  declared  or 
to  be  declared,  and  of  net  assets  upon 
dissolution.  Dawson  v.  National  Life  Ins. 
Co.   (Iowa)    1918B-230. 

75.  "Stock  in  »  corporation"  is  not 
merely  property,  biit  creates  a  personal 
relation  analogous,  otherwise  than  techni- 
cally, to  a  partnership.  Longyear  v. 
Hardman  (Mass.)  1916D-1200. 

d.     Lien    of    Preferred    Stock. 

76.  The  board  of  directors  adopted  a 
resolution  to  redeem  the  preferred  stock, 
and  at  the  same  time  adopted  a  resolution 
to  set  aside  seventy-five  per  cent  of  the 
gross  earnings  from  that  time  on  for  that 
purpose,  to  be  known  as  a  preferred  stock 
fund,  to  be  apportioned  as  often  as 
twenty-five  per  cent  of  the  amount  of  the 
preferred  stock  was  accumulated.  The 
resolutions  were  adopted  only  eight  days 
before  the  receiver  was  appointed,  and 
the  board  of  directors  had  no  opportunity 
to  carry  them  out.  Held,  that  resolutions 
must  be  construed  together,  and  so  con- 
sidered they  merely  pledged  the  transfer 
of  seventy-five  per  cent  of  future  gross 
earnings  to  the  preferred  stock  fund,  to 
be  apportioned  as  stated;  the  entire  issue 
of  preferred  stock  did  not  immediately 
become  an  absolute  liability  of  the  com- 
pany; the  preferred  stockholders  contin- 
ued to  be  stockholders  and  not  creditors 
until  an  apportionment  of  the  preferred 
stock  fund  was  made;  and  the  preferred 
stockholders  then  became  creditors  only 
with  respect  to  such  apportionment.  In- 
scho  V.  Mid-Continent  iDevelopment  Co. 
(Kan.)    1917B-546.  (Annotated.) 

77.  Status  as  Stockholder  or  Creditor. 
The  capital  stock  of  the  corporation  con- 
sisted of  $100,000  common  stock  and 
$50,000  preferred  stock.  The  plaintiff 
purchased  500  shares  of  the  preferred  stock 
and  received  a  certificate  of  stock  which 
provided  there  should  be  paid  on  it  from 
net  earnings  a  fixed  yearly  dividend  from 
date  of  issuance  at  the  rate  of  seven  per 
cent  per  annum,  to  be  earned  before  divi- 
dends on  common  stock  were  declared; 
that  the  stock  should  not  be  entitled  to 
further  dividends  and  should  have  no  vot- 
ing power;  that  it  should  be  preferred  as 
to  assets  on  winding  up  the  affairs  of  the 
company;  and  that  it  should  be  redeem- 
able at  the  option  of  the  company  after 
one  year  from  date  of  issue,  at  par  with 
accrued  dividends.  Held,  the  certificate 
was  a  certificate  of  stock  and  not  a  cer- 
tificate of  indebtedness,  and  the  plaintiff 
was  a  stockholder  of  the  corporation  and 
not  a  creditor.  Inscho  r.  Mid-Continent 
Development  Co.  (Kan.)  1917B-546. 

(Annotated.) 
Note. 
Preferred    shareholder    as    creditor    or 
stockholder  of  corporation.     1917B-55S. 


226 


DIGEST. 

1916C— 1918B, 


e.     Transfer  of  Stock. 

78.  Necessity  of  Transfer  on  Corporate 
Books.  Transfer  upon  the  corporate  books 
was  not  necessary.  Tender  or  offer  to  de- 
liver the  stock  properly  indorsed  for 
transfer  by  the  owner,  either  in  blank  or 
to  the  defendant,  was  sufficient.  Davis 
Laundry,  etc.  Co.  v.  Whitmore  (Ohio) 
1917C-988. 

79.  Effect  of  Failure  to  Eecord.  That 
the  buyers  in  good  faith  of  corporate 
stock  from  a  judgment  debtor  did  not 
cause  the  certificates,  as  required  by  pro- 
visions on  their  back,  to  be  transferred 
on  the  books  of  the  corporation,  did  not 
invalidate  the  transfer,  since  the  provision 
'requiring  transfer  on  the  books  was  for 
the  benefit  of  the  corporation.  Husband 
T.  Linehan  (Ky.)  1917D-954. 

80.  The  purpose  of  Eevisal  1905,  §  1168, 
providing  that  stock  shall  be  transferable 
on  the  books  of  the  corporation  under 
regulations  prescribed  by  by-laws,  and, 
when  any  transfer  is  made  for  collateral,  it 
shall  be  so  expressed  in  the  entry  of  the 
transfer,  is  to  prevent  fraudulent  transfers 
and  to  protect  the  corporation,  but  a  holder 
of  stock  as  pledgee  has  priority  over  a  sub- 
sequent attachment,  though  the  transfer  to 
the  holder  has  not  been  entered  on  the 
corporate  books.  Bleakley  v.  Candler 
(N.  Car.)    1917A^25.  (Annotated.) 

81.  'Tly  Power."  A  "fly  power"  is  a 
written  assignment  in  blank,  whereby,  on 
being  attached  to  a  stock  certificate,  the 
stock  may  be  transferred.  Carlisle  v. 
Norris  (N.  Y.)  1917A-429. 

82.  Wliat  Law  Governs.  Where  neither 
common  law  nor  statute  of  the  state  where- 
in corporate  stock  was  sold  and  transferred 
is  pleaded  or  proved  in  a  suit  in  Kentucky 
attacking  such  transfer,  the  law  of  this 
state  determines  the  validity  of  the  trans- 
fer. Husband  v.  Linehan  (Ky.)  1917D- 
954,  (Annotated.) 

83.  The  method  of  transferring  corpo- 
rate stock  is  governed  by  the  law  of  the 
state  of  incorporation,  although  the  trans- 
fer is  made  in  another  state.  Husband  v. 
Linehan    (Ky.)   1917D-954. 

(Annotated.) 

84.  Sufficiency  to  Bebut  Corporate  Eec- 
ords.  In  proceedings  to  determine  the 
legal  directors  of  a  corporation,  the  docu- 
mentary evidence  is  held  to  be  insufficient 
to  overcome  the  showing  of  the  corporate 
records  that  a  party  was  the  owner  of 
certain  stock.  Dolbear  v.  Wilkinson 
(Cal.)   1917E-1001. 

Notes. 

Law  poveming  transfer  of  corporate 
stock.     1917D-959. 

Rights  of  unregistered  transferee  as 
against  attachment  or  execution  levied  on 
stock.     1917A-428. 


f.     Stockholders'  Meetings. 
(1)     Notice. 

85.  Effect  of  Failure  to  Give  Notice. 
The  correct  rule  is  that,  where  required 
by  statute,  the  absence  of  notice  explicitly 
naming  the  day,  time,  and  place  of  meet- 
ing invalidates  the  meeting,  unless  the 
stockholders  are  all  present  and  consent, 
and,  if  a  single  stockholder  refuses  to 
consent,  the  proceedings  will  be  void. 
People   V.  Matthiessen    (111.)    1916E-1035. 

86.  The  action  of  the  other  stockholder 
in  being  present  until  after  the  assump- 
tion of  business,  but  remaining  mute  and 
withdrawing  upon  the  failure  of  the  first 
stockholder's  remonstrance,  is  not  a  par- 
ticipation in  the  meeting  waiving  the 
right  to  legal  notice.  People  v.  Matthies- 
sen (111.)   1916E-1035.  (Annotated.) 

87.  Waiver  of  Notice.  The  action  of 
the  stockholder  in  continuing  to  remon- 
strate after  business  had  been  taken  up 
by  the  meeting  is  not  a  participation 
therein  waiving  the  right  to  legal  notice. 
People  V.  Matthiessen  (HI.)   1916E-1035. 

(Annotated.) 

88.  The  facts  that  the  stockholders  for 
20  years  had  held  meetings  by  common 
consent  without  notice,  and  that  the  two 
stockholders  being  present  at  the  meeting- 
in  question  might  have  participated,  and. 
hence  were  not  injured  by  want  of  notice, 
does  not  render  the  meeting  valid,  since 
the  notice  required  by  the  act  is  indis- 
pensable, unless  waived  either  expressly 
or  by  participation  in  the  meeting.  Peo- 
ple V.  Matthiessen  (111.)   1916E-1035. 

89.  Necessity  of  Notice.  On  quo  war- 
ranto to  require  a  defendant  to  show  by 
what  right  he  acted  as  director  in  a  cor- 
poration it  appeared,  that  the  by-laws  of 
the  corporations  provided  for  an  annual 
meeting  of  the  stockholders  to  elect 
directors  on  December  18th;  that  ever 
since  its  organization  the  stockholders  of 
the  company  by  mutual  consent  met  about 
10  A.  M.  on  that  day  without  notice  as 
required  by  Laws  111.  1857,  p.  162,  §  6, 
under  which  act  the  corporation  was 
organized;  that  at  the  meeting  so  held 
which  elected  defendant  two  stockholders 
appeared,  one  of  whom  protested  against 
the  meeting,  the  other  saying  nothing, 
and  upon  the  failure  of  the  protest  both 
withdrew.  Held,  that  defendant's  elec- 
tion was  void,  since  the  meeting  was  il- 
legal for  want  of  notice  as  required  by 
the  act.  People  v.  Matthiessen  (111.) 
1916E-1035. 

90.  Mailing  of  Notice.  In  proceedings 
to  determine  who  were  the  legal  directors 
of  a  corporation,  the  evidence  is  held  to 
be  sufficient  to  show  mailing  of  notice  of 
meeting  to  stockholders  by  the  secretary. 
Dolbear  v.  Wilkinson   (Cal.)   1917E-100L 

91.  Part  of  stockholders  of  corporation, 
attending    special    meeting    pursuant    to- 


CORPORATIONS. 


227 


notice  not  aclvising  them  that  the  election 
of  directors  would  be  taken  up,  did  not 
waive  by  attending  the  meeting,  in  which 
they  did  not  participate,  want  of  proper 
notice  to  them.  Dolbear  v.  Wilkinson 
(Cal.)    1917E-1001.  (Annotated.) 

92.  A  special  meeting  of  corporate 
stockholders,  other  than  the  annual  meet- 
ing provided  by  the  by-laws,  which  was 
held  without  notice  that  an  election  of 
directors  was  one  of  the  purposes  of  the 
meeting,  the  notice  stating  that  the  pur- 
pose was  "to  transact  such  business  as 
may  come  before  the  said  meeting,"  is 
not  authorized  to  elect  directors,  since 
stockholders  are  entitled  to  actual  notice 
of  the  time,  place,  and  business  proposed 
to  be  transacted  at  a  special  meeting. 
Dolbear  v.  Wilkinson  (Cal.)  1917E-1001. 

(Annotated.) 

93.  Contents  of  Notice.  Cal.  Civ.  Code, 
§  314,  provides  that,  if  an  election  of  cor- 
porate directors  has  not  been  held  at  the 
appointed  time,  it  may  be  held  at  some 
other  time  ordered  by  the  directors,  or  a 
meeting  may  be  called  by  stockholders,  as 
provided  in  section  310.  Section  310 
deals  with  the  removal  of  directors,  and 
provides  that  meetings  of  stockholders  for 
the  purpose  may  be  called  by  stockholders 
holding  at  least  one-half  the  votes,  and 
that  the  calls  must  be  in  writing,  ad- 
dressed to  the  secretary,  who  must  there- 
upon give  notice  of  the  time,  place,  and 
object  of  the  meeting,  and  by  whose  order 
it  is  called.  It  is  held  that  section  314,  in 
authorizing  stockholders  to  call  a  meeting 
for  the  election  of  directors  "as  provided 
in  section  310,"  incorporates,  not  only  the 
provision  prescribing  the  preliminary  step 
of  directing  a  call  to  the  secretary,  but 
also  its  required  subsequent  notice  "of 
the  time,  place,  and  object  of  the  meet- 
ing," and  a  special  meeting  for  the  elec- 
tion of  directors,  held  upon  request, 
signed  by  stockholders  holding  less  than 
half  the  votes,  and  not  stating  the  object 
of  the  meeting,  did  not  result  in  a  valid 
election.  Dolbear  t.  Wilkinson  (Cal.) 
1917E-1001.  (Annotated.) 

Notes. 
SuflSciency  as  to  contents  of  notice  of 
special   meeting  of   stockholders.     1917E- 
1004. 

Waiver  of  notice  of  stockholders'  meet- 
ing.    1916E-1038. 

(2)     Right  to  Vote. 

94.  Voting  Stock  In  Domestic  Corpora- 
tion. A  bank  domiciled  in  an  enemy 
country,  but  having  a  local  branch 
licensed  by  the  local  government  to  con- 
tinue its  business  during  a  state  of  war, 
cannot  through  that  branch  vote  stock  in 
a  local  corporation.  Robson  v.  Premier 
Oil,  etc.  Co.  (Eng.)  1917C-227. 

(Annotated.) 


(3)     Voting  Trusts. 

95.  Where  a  trust  agreement  provided 
that  the  trustee  should  have  absolute 
power  for  ten  years  of  voting  corporate 
stock,  parties  to  the  agreement  may 
repudiate  it,  and  so  may  purchasers  of 
stock  with  knowledge.  Luthy  v.  Ream 
(111.)    1917B-368.  (Annotated.) 

(4)     Voting    Agreements. 

96.  Stock  Voting  Agreement — Validity. 
A  contract,  by  which  the  owners  of  a  ma- 
jority of  the  stock  agree  to  rote  for  cer- 
tain persons  for  directors  or  to  secure  to 
themselves  the  control  and  management  of 
the  corporation,  is  not  against  public 
policy  so  long  as  no  fraud  is  committed  or 
wrong  done  to  the  other  stockholders. 
Thompson  y.  J.  D.  Thompson  Carnation 
Co.  (111.)   1917E-591.  (Annotated.) 

97.  A  stockholder  may  withdraw  from  a 
combination  to  control  the  majority  of  the 
stock  of  the  corporation,  though  it  is  ex- 
pressly stated  therein  that  the  agreement 
shall  be  irrevocable.  Luthy  v.  Ream 
(111.)  1917B-368.  (Annotated.) 

98.  It  is  legitimate  for  the  owners  of 
a  majority  of  the  stock  of  a  corporation 
to  combine  for  the  purpose  of  controlling 
it:     Luthy  V.  Ream  (111.)  1917B-368. 

(Annotated.) 

(5)     Proxies. 

99.  As  stockholders  cannot  divest  them- 
selves of  their  duty  to  participate  in  con- 
trolling the  corporation,  and  as  there  is 
no  such  thing  as  an  irrevocable  proxy  to 
vote  stock  not  coupled  with  an  interest,  a 
trust  agreement,  whereby  the  owner  of 
less  than  one  per  cent  of  the  stock  of  a 
corporation  had  absolute  power  to  vote  a 
majority  of  the  stock  as  he  saw  fit,  which 
power  was  made  irrevocable  for  ten  years, 
is  invalid  and  can  be  repudiated.  Luthy 
V.  Ream  (HI.)   1917B-368. 

(Annotated.) 

100.  Irrevocable  Proxy.  The  holders  of 
the  majority  of  the  stock  of  a  corporation 
entered  into  a  contract  to  vote  their 
shares  of  stock  for  each  other  for  direct- 
ors. The  contract  provided  that,  in  case 
of  the  absence  of  a  named  stockholder, 
his  daughter  should  have  the  power  to 
vote  the  stock  and  should  pay  to  his  other 
two  children  their  share  in  the  stock.  It 
was  further  provided  that  the  contract 
could  be  changed  only  by  the  unanimous 
written  consent  of  the  parties,  and  that  it 
was  binding  on  their  heirs,  etc.  It  is  held 
that  as  the  title  of  the  stock  passed  to 
the  daughter  on  the  stockholder's  death, 
and  as  she  had  no  power  in  his  lifetime  to 
vote  it  except  in  his  absence,  the  contract 
was  not  void  because  an  attempt  to  con- 
fer upon  daughter  an  irrevocable  proxy. 
Thompson  v.  J.  D.  Thompson  Carnation 
Co.  (111.)  1917E-591. 


228 


DIGEST. 

1916C— 1918B. 


g.     Dividends. 


101.  Duty  of  Stockholder  to  Demand. 
A  stockholder  is  under  no  obligation  to 
draw  or  demand  his  dividends  within  any 
prescribed  period;  the  declared  dividend 
being  in  the  nature  of  a  debt  on  the  part 
of  the  corporation  to  the  stockholder,  pay- 
able on  demand.  Yeaman  v.  Galveston 
City  Co.  (Tex.)  1917E-191. 

102.  From  Wiat  Funds  Payable.  At 
the  time  the  resolutions  referred  to  were 
adopted  the  board  of  directors  adopted 
a  resolution  authorizing  the  secretary 
and  treasurer  to  proceed  with  the  pay- 
ment of  preferred  dividends.  At  that 
time  there  were  about  $2,900  in  the  treas- 
ury which  were  forthwith  applied  to  the 
satisfaction  of  the  claims  of  creditors. 
Held,  the  money  was  not  net  earnings, 
and  the  duty  to  pay  creditors  was  superior 
to  the  duty  to  pay  preferred  stockholders. 
Inscho  V.  Mid-Continent  Development  Co. 
(Kan.)    1917B-546. 

103.  The  defendant  engaged  in  the  busi- 
ness of  prospecting  for  and  producing  gas 
and  oil.  It  developed  a  valuable  gas  field 
near  Muncie,  left  it  for  other  fields,  and 
then  returned  to  it  after  the  proceeds  of 
the  sale  of  its  stock  had  been  spent.  It 
then  borrowed  $11,000,  which  it  used  to 
build  a  pipe  line  to  supply  gas  to  con- 
sumers with  whom  it  had  contracts.  By 
bringing  in  new  wells  and  connecting  them 
with  the  pipe  line  it  brought  its  income  up 
to  an  average  of  $2,800  per  month,  and  re- 
ceived for  the  sale  of  gas  for  the  thirty 
days  next  preceding  the  appointment  of 
the  receiver  the  sum  of  $3,000.  It  ex- 
pended all  earnings  received  after  the 
pipe  line  was  built  in  repaying  the  money 
borrowed  to  build  the  pipe  line,  in  drill- 
ing new  wells  and  connecting  them  with 
the  pipe  line,  and  for  general  expenses. 
When  the  suit  was  commenced  it  still 
owed  about  $2,500  of  indebtedness  in- 
curred for  these  purposes,  which  was  due 
and  payable.  Held,  there  were  no  net 
earnings  out  of  which  to  pay  dividends  on 
tlie  preferred  stock.  Inscho  v.  Mid-Conti- 
nent Development  Co.   (Kan.)   1917E-546. 

h.     Right  to  Inspect  Corporate  Books. 

104.  Under  Mass.  St.  1903,  c.  437,  §  30, 
entitling  a  stockholder,  on  petition  in 
equity,  to  an  inspection  of  the  books  and 
records  of  the  corporation,  a  petitioner, 
as  incidental  to  such  right,  has  the  right 
to  be  represented  by  attorney  and  the 
right  to  make  written  memoranda  or 
copies  of  the  stock  and  transfer  books. 
Powelson  v.  Tennessee  Eastern  Electric 
Co.  (Mass.)  1917A-102.  (Annotated.) 

105.  The  fact  that  a  stockholder  and 
voting  trustee  of  a  corporation,  by  reason 
of  prior  litigation,  desires  to  change  its 
administration,  and  petitioned  under 
Mass.    St.    1903,    c.    437,  §  30,   for    an   ex- 


amination of  its  books  and  records  with 
that  object  in  view,  is  entirely  consistent 
with  an  honest  belief  that  a  change  in 
management  and  policy  will  advance  the 
interests  of  the  corporation  and  his  own 
rights  as  a  stockholder.  Powelson  v.  Ten- 
nessee Eastern  Electric  Co.  (Mass.) 
1917A-102.  (Annotated.) 

106.  Under  the  common  law,  the  right 
of  a  stockholder  to  inspect  the  books  of  a 
corporation  was  a  qualified  and  not  an 
absolute  right,  but  under  Mass.  St.  1903, 
c.  437,  §  30,  entitling  a  stockholder  to  in- 
spect stock  and  transfer  books  and  rec- 
ords, the  right,  though  narrower  in  scope, 
is  an  absolute  right.  Powelson  v.  Tennes- 
see Eastern  Electric  Co.  (Mass.)  1917A- 
102.  (Annotated.) 

107.  Under  Mass.  St.  1903,  c.  437,  §  30, 
requiring  corporations  to  keep  stock  and 
transfer  books  in  the  commonwealth  for 
the  inspection  of  its  stockholders,  aud  giv- 
ing the  courts  jurisdiction,  on  petition  of 
a  stockholder,  to  order  books,  etc.,  to  be 
produced  for  his  inspection,  a  holder  of 
common  stock  of  a  corporation,  whose  de- 
mand for  an  inspection  of  its  books  was 
refused,  and  who  became  an  intervening 
party  to  a  petition  for  inspection  by  a 
voting  trustee,  is  entitled  to  inspection. 
Powelson  v.  Tennessee  Eastern  Electric 
Co.  (Mass.)  1917A-102.  (Annotated.) 

108.  A  stockholder  is  not  entitled  to  in- 
spect the  books  and  papers  of  other  cor- 
porations not  shown  to  be  in  the  posses- 
sion of  the  corporation  of  which  he  is  a 
stockholder,  Klotz  t.  Pan-American 
Match  Co.  (Mass.)  1917D-895. 

109.  A  stockholder's  request  to  the  cor- 
poration that  he  be  permitted  to  inspect 
its  books  and  records  is  too  broad  an  1 
indefinite,  so  far  as  it  demands  an  inspec- 
tion of  all  contracts  of  subscription  ani" 
othpr  instruments  in  writing  with  th, 
various  stockholders,  the  agreement  con- 
taining the  terms  of  the  purchase  of  as- 
sets of  a  corporation  other  than  those  spe- 
cified, any  contracts  for  the  sale  of 
machinery  to  persons,  corporations,  and 
subsidiary  companies  other  than  those 
specified,  all  papers,  records,  and  other  in- 
struments showing,  referring  to,  or  relat- 
ing to  commissions  on  sales  of  stock  paid 
to  certain  persons,  or  relating  to  any 
other  commissions  to  be  paid  for  the  sale 
of  stock,  and  any  and  all  other  books, 
papers,  and  records  referring  or  in  any 
way  relating  to  the  affairs  of  the  company. 
Klotz  v.  Pan-American  Match  Co.  (Mass.) 
1917D-895. 

110.  Scope  of  Examination  by  Stock- 
holder. A  stockholder,  who  is  acting  in 
good  faith,  will  be  permitted  to  inspect 
and  make  copies  of  the  minutes  of  the 
corporation  and  of  the  directors,  the  stock 
ledger,  the  stock  certificate  books,  the 
ledger    showing    the    corporation's    assets 


COKPORATIONS. 


229 


•and  liabilities,  a  statement  of  an  auditor 
or  accountant  showing  a  complete  inven- 
tory and  all  expenditures  and  receipts, 
and  the  contracts  for  the  purchase  of  the 
property  and  assets  of  another  corpora- 
tion. Klotz  V.  Pan-American  Match  Co. 
(Mass.)   1917D-895. 

111.  A  by-law  of  a  corporation,  provid- 
ing that  the  directors  should  determine 
whether,  when,  and  under  what  conditions 
the  accounts  and  books  of  the  corpora- 
tion, except  such  as  might  by  statute  be 
specifically  open  to  inspection,  should  be 
open  to  the  inspection  of  stockholders, 
was  invalid,  and  did  not  deprive  a  stock- 
holder of  his  common-law  right  to  inspect 
the  corporate  books  and  records;  there 
being  no  provision  of  the  law  of  the  state 
where  the  corporation  was  organizotl,  or 
provision  of  its  charter,  authorizing  it  to 
bind  the  stockholders  by  such  a  by-law. 
Klotz  V.  Pan-American  Match  Co.  (Mass.) 
1917D-895.  (Annotated.) 

112.  The  courts  of  this  state  will  en- 
force the  common-law  right  of  a  stock- 
holder to  examine  the  books  of  a  foreign 
corporation,  whose  manufacturing  plant, 
principal  office,  and  books  are  in  this 
state,  and  whose  officers  reside  there;  this 
involving  no  investigation  of  the  internal 
affairs  of  the  corporation  or  order  affect- 
ing the  management  of  its  business. 
Klotz  v.  Pan-American  Match  Co.  (Mass.) 
1917D-895.  (Annotated.) 

113.  A  stockholder  will  be  permitted  to 
examine  the  books  and  accounts  of  the 
corporation,  when  he  is  seeking  informa- 
tion as  to  its  condition  in  good  faith  and 
for  the  purpose  of  protecting  his  own 
rights  or  advancing  the  interests  of  the 
corporation;  but  the  rights  of  the  corpora- 
tion, especially  in  the  protection  of  trade 
secrets  and  the  interests  of  other  stock- 
holders, will  not  be  disregarded.  Klotz  v. 
Pan-American  Match  Co.  (Mass.)  1917D- 
895.  (Annotated.) 

114.  A  stockholder  has  a  common-law 
right  to  inspect  the  books  of  a  corporation 
at  seasonable  times  and  for  proper  pur- 
poses; but  this  is  a  qualified  and  not  an 
absolute  right,  especially  as  the  remedy  in 
this  commonwealth  is  by  mandamus, 
which  is  a  discretionary  writ.  Klotz  v. 
Pan-American  Match  Co.  (Mass.)  191 7D- 
895.  (Annotated.) 

Note. 

Right  of  stockholder  to  inspect  books 
of  corporation  as  absolute  or  qualified. 
1917r)-898, 

i.     Distribution  of  Corporate  Assets. 

115.  An  incorporated  volunteer  fire  com- 
pany not  being  a  public  charity,  its  prop- 
erty, on  its  dissolution,  goes  to  its  sur- 
viving members,  and  does  not  revert  to  its 
grantors    or    escheat.      Neptune    Fire    En- 


gine, etc.  Co.  V.  Board  of  Education  (Ky.) 
1917C-789. 

116.  Eights  of  Preferred  Stockholders. 
Preferred  stock,  issued  under  charter  au- 
thority and  pursuant  to  proper  corporate 
action,  which  provides  that  in  case  of 
liquidation  or  dissolution  of  the  company, 
or  distribution  of  its  assets,  it  shall  be 
entitled  to  be  paid  in  full  at  par  and  ac- 
crued dividend  charges,  before  any  pay- 
ment is  made  on  the  common  stock,  has  a 
preference  over  common  stock  in  the  dis- 
tribution of  the  assets  of  the  corporation. 
National  Bank  v.  Amoss  (Ga.)  1918A-74. 

j.     Liability  of  Stockholders. 
(1)     In  General. 

117.  Dividends      Paid      from      Capital. 

Where  a  solvent  industrial  corporation, 
which  is  engaged  in  the  conduct  of  its 
business  as  a  going  concern,  annually  de- 
clares dividends  through  a  number  of 
years,  and  these  dividends  are  paid  out  of 
the  capital  assets  of  the  corporation,  and 
the  shareholders  receive  them  in  good 
faith  and  without  notice  that  they  are  not 
paid  from  the  net  profits  of  the  corpora- 
tion, and  afterward  the  corporation  is  ad- 
judicated a  bankrupt,  an  action  by  the 
trustees  in  bankruptcy  will  not  lie  against 
the  shareholders  to  recover  the  amount  of 
the  dividends  so  received  by  them.  Car- 
lisle V.  Ottley  (Ga.)  1917A-573. 

(Annotated.) 

118.  Change  of  Remedy.  The  legisla- 
ture has  the  power  to  modify  and  change 
a  remedy,  provided  no  substantial  right 
is  thereby  impaired;  consequently  a  share- 
holder in  a  trust  company  cannot  com- 
plain because  the  legislature  changed  the 
remedy  by  which  the  double  liability  pre- 
viously imposed  might  be  enforced.  John- 
son V.  Libby  (Me.)  1916C-681. 

(2)     Persons  Liable. 

119.  Holder  of  Stock  as  Security.  Evi- 
dence in  an  action  to  enforce  a  stock- 
holder's constitutional  liability  against 
one  who  appeared  upon  an  insolvent  local 
corporation's  stockbooks  as  a  general 
owner  of  stock,  held  to  sustain  a  finding 
that  the  failure  of  the  corporation's  rec- 
ords to  show  that  the  stock  was  issued  to 
and  held  by  defendant  as  collateral 
security  for  an  advance  made  by  a  third 
person  was  not  due  to  the  negligence  or 
fraud  of  the  corporation  but  to  his  own 
negligence,  wherefore  he  was  estopped,  as 
against  creditors,  to  deny  liability  as  a 
stockholder.  Way  v.  Barney  (Minn.) 
1916C-565.  (Annotated.) 

120.  Double  Liability  of  Stockholders. 
A  stockholder  in  a  trust  company  who 
retained  his  stock  after  enactment  of 
Me.  P.  L.  1905.  c  19,  amending  Rev.  St. 
c.  48,  §  86,  imposing  a  double  liability  on 


230 


shareholders  in  such  corporation  hy  pro- 
viding a  method  of  enforcing  the  liability, 
must  be  deemed  to  have  accepted  the  efr 
feet  of  the  amendment.  Johnson  v.  Libby 
(Me.)   191GC-681. 

121.  The  charter  of  the  Waterville  Trust 
Company  (Priv.  &  Sp.  Laws  Me.  1889, 
c.  401,  §  6)  imposed  a  double  liability  on 
stockholders,  and  a  similar  liability  was  im- 
posed by  Rev.  St.,  c.  48,  §  86,  as  amended 
by  Me.  P.  L.  1905,  c.  19.  Held,  that  one 
who  voluntarily  became  a  stockholder  in 
such  corporation  assumed  the  double  lia- 
bility imposed  by  statute  and  charter. 
Johnson  v.  Libby  (Me.)  1916C-681. 

122.  Liability  After  Transfer  of  Stock. 
A  former  stockholder  in  a  Minnesota 
corporation  cannot  resist  the  recovery 
in  an  action  brought  by  the  receiver 
in  another  jurisdiction  to  enforce  his 
liability  under  Minn.  Bev.  Laws  1905, 
§§  3184^3190,  for  the  corporate  debts  in- 
curred prior  to  the  transfer  by  him  of  his 
stock,  because  no  separate  and  distinct 
assessment  based  upon  the  debts,  antedat- 
ing such  transfer,  was  made  by  the 
Minnesota  court  when  levying  the  assess- 
ment in  conformity  with  the  statute,  but 
he  must  look  to  that  court  for  the  adjust- 
ment of  such  equities  as  he  may  haye,  the 
assessment  order  being  a  provisional  one 
representing  the  best  judgment  of  the 
court  upon  the  evidence  before  it  as  to 
the  amount  of  the  assessment  required, 
and  directing  that  all  moneys  collected 
from  the  stockholders  by  the  receiver 
shall  be  held  until  the  further  order  of 
the  court.  Selig  v.  Hamilton  (U.  S.) 
1917A-104.  (Annotated.) 

123.  All  stockholders,  past  or  present, 
who  may  be  actually  liable  for  the  corpo- 
rate debts,  are  embraced  by  the  order  made 
in  the  proceedings  under  Minn.  Rev.  Laws 
1905,  §5  3184-3190,  to  enforce  the  constitu- 
tional liability  of  stockholders  for  the  cor- 
porate debts,  where  the  receiver's  petition, 
although  setting  forth  as  existing  stock- 
holders the  persons  alleged  to  be  liable, 
and  averring  that  some  of  them  were  the 
owners  of  the  beneficial  interest,  having 
transferred  their  stock  to  avoid  liability, 
manifestly  invoked  the  jurisdiction  of  the 
court  for  the  making  of  such  assessment 
as  it  might  consider  necessary  in  order  to 
enforce  the  stockholders'  liability  as  it 
actually  existed  with  respect  to  the  cor- 
porate debts  remaining  unpaid,  and  the 
order  of  assessment  by  its  terms  purports 
to  include  "each  and  every  share  of  the 
capital  stock"  and  "the  persons  or  parties 
liable  as  stockholders."  Selig  v.  Hamilton 
(U.  S.)    1917A-104.  (Annotated.) 

124.  A  nonresident  former  stockholder 
in  a  domestic  corporation  is  not  denied 
rights  under  the  federal  constitution  by 
Minn.  Rev.  Laws  1905,  §§  3184-3190,  en- 
acted to  make  more  effective  the  constitu- 
tional liability  of  stockholders  for  the  cor- 


DIGEST. 

1916G— 1918B. 

porate  debts,  because  under  such  statute 
he  may  be  assessed  for  the  corporate  debts 
antedating  the  transfer,  in  proceedings  in 
which  he  is  represented  by  the  corpora- 
tion, and  of  which  he  is  notified  only  by 
publication  and  mailing  of  notice.  Selig 
V.  Hamilton  (U.  S.)  1917A-104. 

(Annotated.) 

125.  The  authority  of  the  Minnesota 
coucts  under  Minn.  Rev.  Laws  1905, 
§§  3184-3190,  enacted  to  make  more  effec- 
tive the  constitutional  liability  of  stock- 
holders for  the  corporate  debts,  cannot  be 
deemed  to  be  confined  to  proceedings  to 
assess  existing  stockholders,  in  view  of  the 
express  terms  of  such  law,  making  it  ap- 
plicable to  cases  of  liability  arising  upon 
shares  "at  any  time  held  or  owned  by  such 
stockholders,"  and  providing  for  the  mak- 
ing of  an  assessment  against  "all  parties 
liable  as  stockholders."  Selig  v.  Hamilton 
(U.  S.)  1917A-104.  (Annotated.) 


Notes. 

Validity  and  effect  of  statute  making 
stockholder  liable  for  corporate  debts  af- 
ter bona  fide  transfer  of  stock.  1917A- 
109. 

Liability  for  corporate  debts  or  calls  of 
person  who  holds  stock  as  collateral  secur- 
ity.    1916C-567. 

(3)     Accrual  of  Cause  of  Action. 

126.  When  Liability  Accrues.  The  lia- 
bility of  a  shareholder  in  a  trust  company 
which  by  statute  is  fixed  at  a  sum  equal 
to  the  par  value  of  the  shares,  in  addition 
to  the  amount  invested  therein,  does  not 
accrue  as  a  claim  against  the  shareholder's 
estate  until  assessed  by  a  decree  of  court 
in  liquidation.  Johnson  v.  Libby  (Me.) 
1916C-681. 

4.    Enforcement  of  Liability,  Proceedings. 

127.  Proceedings  to  Fix  Liability.  The 
determination  of  the  court  upon  the  evi- 
dence before  it  in  the  proceedings  under 
Minn.  Rev.  Laws  1905,  §§  3184-3190,  en- 
acted to  make  more  effective  the  constitu- 
tional liability  of  stockholders  for  the 
corporate  debts,  with  respect  to  the 
amount  of  the  assessment  to  be  made  upon 
former  stockholders  for  the  purpose  of 
providing  for  the  corporate  debts  incurred 
while  they  held  the  stock,  is  conclusive  in 
a  suit  brought  by  the  receiver  in  another 
jurisdiction  to  recover  the  amount  of  the 
assessment  from  a  former  stockholder 
notified  of  the  original  proceedings  only 
by  publication  and  mailing  of  notice. 
Selig  V.  Hamilton  (U.  S.)  1917A-104. 

128.  Competent  evidence  that  there  are 
corporate  debts  remaining  unpaid  which 
antedated  the  transfer  of  stock  by  a 
former  stockholder  was  furnished  in  a 
suit  against  him  to  enforce  in  a  foreign 


CORPORATIONS, 


231 


jurisdiction  his  liability  under  Minn.  Rev. 
Laws  1905,  §§  3184-3190,  for  the  corporate 
debts  incurred  prior  to  such  transfer,  by 
decrees  entered  in  the  parent  suit  in 
Minnesota,  which  determined  the  amount 
of  the  outstanding  claims  and  when  they 
arose,  and  showed  that  there  were  debts 
in  excess  of  the  amount  demanded  of  de- 
fendant, which  arose  before  his  shares 
were  transferred.  Selig  v.  Hamilton 
(U.  S.)   1917A-104.  (Annotated.) 

129.  Conclusiveness  of  Proceeding.  A 
nonresident  notified  only  by  publication 
and  mailing  of  notice  of  the  proceedings 
under  Minn.  Rev.  Laws  1905,  §§  3184- 
3190,  enacted  to  make  more  effective  the 
constitutional  liability  of  stockholders  for 
the  corporate  debts,  is  not  concluded  in 
an  action  brought  against  him  in  another 
jurisdiction  by  the  receiver  for  the  recov- 
ery of  the  amount  assessed  against  him  as 
a  stockholder  upon  any  issue  as  to  the 
transfer  of  his  stock  or  the  good  faith 
with  which  the  transfer  was  made,  but 
may  litigate  any  matter  which  bears  upon 
the  extent  or  duration  of  his  stockholding 
or  anv  other  personal  defense.  Selig  v. 
Hamilton  (U.  S.)  1917A-104. 

130.  Enforcement  Against  Estate  of 
Decedent.  The  double  liability  assumed 
by  a  purchaser  of  the  stock  of  a  trust 
company  is  contractual  in  its  nature  and 
does  not  abate  at  his  death  but  survives 
and  his  estate  is  liable  therefor.  Johnson 
V.  Libby  (Me.)  1916C-681. 

(Annotated.) 

131.  Where  a  shareholder  in  a  trust 
company  died  during  the  liquidation  of 
its  affairs,  an  assessment  against  the 
shareholders  on  their  double  liability  is 
valid  against  such  shareholder's  estate, 
without  personal  service  on  his  representa- 
tives; the  shareholder  being  represented 
in  the  proceeding  against  the  corporation. 
Johnson  v.  Libby  (Me.)   1916C-681. 

132.  Notice  to  Stockholders.  In  pro- 
ceedings for  the  liquidation  of  the  affairs 
of  a  trust  company  and  the  payment  of  its 
debts,  the  court  may  make  an  assessment 
against  the  shareholders  upon  their  double 
liability  without  personal  service  upon 
them;  the  proceeding  being  against  the 
corporation,  which  is  presumed  to  repre- 
sent them.  Johnson  v.  Libbv  (Me.) 
1916C-681. 

133.  Effect  of  Bankruptcy.  Bankruptcy 
proceedings  against  a  corporation  do  not 
stand  in  the  way  of  a  resort  to  the  method 
prescribed  by  Minn.  Rev.  Laws  1905, 
§§  3184-3190,  of  enforcing  the  constitu- 
tional liability  of  a  stockholder  for  the 
corporate  debts.  Selig  v.  Hamilton  (U.  S.) 
1917A-104. 

134.  Liability  of  Decedent's  Estate.  In 
view  of  Me.  P.  L.  1905,  c.  19,  author- 
izing the  receivers  of  a  banking  or 
trust  company  to  enforce  the  double  lia- 
bility  of   shareholders   in    an    appropriate 


action  at  law  or  in  equity  for  the  benefit 
of  creditors,  a  decree  of  the  court  assess- 
ing the  double  liability  of  the  sharehold- 
ers and  authorizing  the  receivers  to  insti- 
tute all  necessary  proceedings  in  law  or 
in  equity  to  collect  the  same  and  enforce 
the  decree  is  not  limited  in  its  scope 
solely  to  those  persons  who  were  share- 
holders at  the  time  of  the  receiver- 
ship but  includes  shareholders  who  have 
died  subsequent  to  the  receivership  and 
authorizes  an  action  against  their  estates. 
Johnson  v.  Libby  (Me.)  1916C-681. 

5.     LIMITATION  OP  ACTIONS. 

135.  Me.  Rev.  St.,  c.  89,  §§  16,  17,  18, 
respectively,  provide  that,  when  an  action 
on  a  contract  or  covenant  does  not  accrue 
within  the  18  months  provided  for  the 
presentation  of  claims  against  an  estate, 
the  claimant  may  file  his  demand  within 
that  time  in  the  probate  office,  and  there- 
upon the  judge  shall  direct  that  sufficient 
assets  shall  be  retained  by  the  adminis- 
trator, and  that,  when  such  claim  has  not 
been  filed  in  the  probate  office  within  said 
18  months,  the  claimant  may  hare  arem- 
edy  against  the  heirs  or  devisees  of  the 
estate  within  one  year  after  it  becomes 
due  and  not  against  the  executor  or  ad- 
ministrator. Held  that,  where  the  lia- 
bility of  a  deceased  shareholder  in  a  trust 
company  on  account  of  an  assessment 
against  shareholders  did  not  accrue  until 
the  decree  of  the  court  which  was  ren- 
dered more  than  18  months  after  the  time 
for  the  presentation  of  claims,  an  action 
to  enforce  such  liability  might  within  the 
year  be  maintained  against  her  heirs. 
Johnson  v.  Libby  (Me.)  19160-681. 

136.  The  three  years'  limitation  pre- 
scribed by  N.  Y.  Code  Civ.  Proc,  §  394, 
for  actions  against  a  director  or  stock- 
holder of  a  moneyed  corporation  or  bank- 
ing association  to  recover  a  penalty  or 
forfeiture  imposed,  or  to  enforce  a  lia- 
bility created  by  common  law  or  by  stat- 
ute, does  not  govern  a  suit  to  enforce  the 
liability  of  a  stockholder  in  a  foreign 
mercantile  corporation.  Selig  v.  Hamilton 
(U.  S.)  1917A-104. 

k.     Stockholders'  Actions. 
(1)     Right  of  Action. 

137.  Transfer  of  Stock  on  Books.  Even 
against  domestic  corporations,  mandamus 
is  not  a  proper  remedy  to  compel  a  trans- 
fer of  shares.  Travis  v.  Knox  Terpezone 
Co.   (N.  Y.)   1917A-387. 

(2)     Pleading   and  Practice. 

138.  Venue  of  Action.  A  suit  in  equity 
of  the  character  just  mentioned  may  be 
brought  in  the  county  of  the  residence  of 
any  one  of  the  defendants.  In  such  a  case 
the  jurisdiction  will  include  also  a  defend- 
ant who  resides  in  another  county  of  this 
state.     Carlisle  v.  Ottley  (Ga.)  1917A-573. 


232 


DIGEST. 

19160— 1918B. 


139.  Joinder  of  Defendants.  Where  an 
industrial  corporation  has  been  adjudged 
a  bankrupt  and  trustees  have  been  ap- 
pointed, shareholders  who  received  divi- 
dends from  the  corporation  before  the 
adjudication  of  bankruptcy,  which  were 
paid  out  of  the  capital  assets  of  the  cor- 
poration, may,  under  the  Ga.  Civil  Code 
(1910),  §  2251,  be  joined  in  one  action  in- 
stituted by  the  trustees  to  recover  the 
amount  of  the  dividends  so  paid.  Carlisle 
V.  Ottley  (Ga.)  1917A-573. 

(3)  Limitation  of  Actions. 

140.  Plaintiff's  ancestor,  as  the  holder  of 
certain  trust  certificates,  became  a  stock- 
holder in  defendant  corporation  in  May, 
1840,  and  on  February  24,  1841.  He  died 
in  1853,  leaving  nothing  to  indicate  his 
ownership  of  the  stock,  and  the  certificates 
originally  issued  to  him  had  long  been  lost. 
The  corporation,  prior  to  July,  1909,  had 
done  nothing  affirmatively  adverse  to  such 
rights,  and  plaintiffs,  who  were  the  heirs 
of  the  original  owner,  had  no  knowledge 
until  August,  1909,  of  his  ownership,  or 
that  any  certificates  of  any  character  had 
ever  been  issued  as  evidence  of  their  an- 
cestor's shares  in  the  company.  It  is  held 
that  a  suit  instituted  by  them  November 
17,  1909,  to  enforce  their  rights  under  such 
certificates  was  not  barred  by  limitations 
or  laches.  Yeaman  v.  Galveston  City  Co. 
(Tex.)  1917E^191. 

141.  Action  by  Stockholder  for  Account- 
ing. The  four-year  statute  of  limitations 
is  applicable  to  a  suit  to  enforce  plaintiff's 
right*  as  a  stockholder  in  a  corporation 
and  for  an  accounting.  Yeaman  v.  Gal- 
veston City  Co.  (Tex.)  1917E-191. 

9.     ACTIONS. 
a.  Process. 

142.  Mode  of  Acquiring  Jurisdiction  of 
Corporation.  Under  S.  Dak.  Code  Cr.  Proc. 
§  643,  providing  that  the  procedure,  prac- 
tice, and  pleadings  in  criminal  actions,  or 
in  matters  of  a  criminal  nature  not  spe- 
cifically provided  for  in  that  Code,  shall 
be  in  accordance  with  the  procedure,  prac- 
tice, and  pleadings  of  the  common  law, 
though  there  is  no  special  statutory  pro- 
vision for  process  against  a  corporation 
upon  an  indictment  either  with  or  without 
preliminary  examination,  nor  upon  an  in- 
formation filed  by  the  state's  attorney, 
a  summons  issued  by  the  trial  court  is  a 
valid  and  appropriate  process,  and  gives 
that  court  jurisdiction  of  the  defendant, 
espeeialljr  in  view  of  section  561,  providing 
for  the  issuance  of  a  summons  to  require 
a  corporation  to  answer  a  criminal  charge 
upon  a  preliminary  hearing  before  a 
magistrate.  State  v.  Taylor  (S.  Dak.) 
1916E-1285.  (Annotated.) 

143.  Automobile  Dealer  as  Agent  of 
Manufacturer.     Under  a  contract  between 


a  toreign  corporation  manufacturing  auto- 
mobiles, and  a  local  automobile  sales  part- 
nership, by  which  the  former  sold  cars  and 
parts  to  the  partnership,  retaining  title 
till  payment,  and  requiring  reports  of  sales, 
allotting  certain  territory,  paying  part  of 
advertising  expense,  and  agreeing  to  re- 
purchase unsold  goods  on  termination  of 
the  contract,  the  partnership  to  make  all 
sales  to  consumers,  the  partnership  is  not 
an  agent  of  the  corporation,  and  service 
of  process  on  a  partner  was  of  no  force. 
Barnes  v.  Maxwell  Motor  Sales  Corp. 
(Ky.)    1917E-578.  (Annotated.) 

Note. 
Method  or  process  by  which  court  may 
acquire  jurisdiction  on  defendant  corpora- 
tion in  criminal  case.     1916E-1289. 

10.    INSOLVENCY  AND  RECEIVERS, 
a.     Preferences. 

144.  The  Hay-Pauncefote  Treaty  (31 
Stat.  1939;  7  Fed.  St.  Ann.  615),  art.  2, 
providing  that  the  citizens  or  subjects  of 
each  of  the  contracting  parties  have  full 
power  to  dispose  of  their  personal  prop- 
erty within  the  territories  of  the  other, 
by  testament,  donation,  or  otherwise,  does 
not  affect  the  validity  or  application  of 
Tenn.  Acts  1877.  c.  31,  §  5,  giving  resi- 
dent creditors  of  an  insolvent  foreign 
corporation  a  preference  over  nonresidents. 
Morgan  v.  Dayton  Coal,  etc  Co.  (Tenn.) 
1917E-42. 

145.  Validity  of  Statute  Preferring  Resi- 
dents. Tenn.  Acts  1877,  c.  31,  §  5,  pro- 
viding that,  on  insolvency  of  a  foreign 
corporation  carrying  on  business  in  the 
state,  resident  creditors  have  a  priority 
over  simple  contract  creditors  of  any 
other  country,  is  valid  to  the  extent  that 
corporations  of  another  state  will  be 
deferred  thereunder  to  resident  creditors. 
Morgan  v.  Dayton  Coal,  etc.  Co.  (Tenn.) 
1917E-42. 

b.     Distribution   of   Assets. 

146.  Eights  of  Creditors.  Where  all  the 
assets  of  a  corporation  are  turned  over  to 
another  corporation  without  provision  for 
payment  of  the  debts  of  the  former  cor- 
poration, the  creditors  thereof  may  follow 
the  assets  into  the  hands  of  the  latter 
corporation  and  charge  its  stockholders, 
who  have  received  the  stock  in  considera- 
tion of  the  transfer  of  their  stock  in  the 
former  corporation,  as  trustee  for  the 
creditors  of  the  former  corporation,  be- 
cause its  assets  are  in  equity  a  fund  for 
the  payment  of  debts.  Barber  v.  Morgan 
(Conn.)    1916E-102. 

147.  Eecognition  of  Corporate  Con- 
tracts. Where  property  is  purchased  by  a 
recently  formed  corporation,  which  fails 
to  become  a  going  concern,  and  there  is 
no  fraud  in   the   sale   and  purchase,   and 


CORPORATIONS. 


233 


the  property  is  thereafter  sold  by  order 
of  the  court  in  a  pending  proceeding  to 
liquidate  and  distribute  the  corporate 
assets,  the  holders  of  the  purchase  money 
obligation  will  not  be  denied  payments 
from  the  proceeds  of  this  and  other  cor- 
porate property,  solely  on  proof  that  the 
property  was  worth"  less  than  the  agreed 
price.  National  Bank  v.  Amoss  (Ga.) 
1918A-74. 

c»    Appointment  of  Eeceiver. 

148.  Grounds — Mismanagement.  The  ma- 
jority of  the  stockholders  of  a  corporation 
have  the  right  to  control  the  corporation, 
and  the  majority  of  the  board  of  directors 
have  the  right  to  determine  its  policies 
and  manage  and  direct  its  affairs  so  long 
as  they  act  in  good  faith  and  within  the 
limitations  of  the  law.  The  appointment 
of  a  receiver  for  a  solvent,  going  concern 
is  a  last  resort  remedy,  and  should  not  be 
employed  to  correct  improper  conduct  when 
other  adequate  remedy  is  available.  Bad- 
judsment  and  ill  success  in  previous  ven- 
tures, completed  or  not  being  actively 
prosecuted,  current  transactions  merely  un- 
wise and  not  so  reckless  or,  extravagant 
as  to  amount  to  breach  of  trust,  irregu- 
larities and  misconduct  which  are  not  so 
culpable  as  to  jeopardize  the  interests  of 
the  corporation  and  the  rights  of  stock- 
holders, and  dissensions  among  directors, 
so  long  as  a  majority  of  them  control,  do 
not  warrant  the  appointment  of  a  receiver. 
In  no  case  should  a  court  take  the  prop- 
erty and  business  of  a  solvent,  going  cor- 
poration out  of  the  hands  of  the  board  of 
directors  and  into  its  own  hands  by  the 
appointment  of  a  receiver  at  the  suit  of 
a  minority  stockholder  unless  the  right  of 
the  plaintiff  be  free  from  reasonable  doubt 
and  the  danger  of  loss  or  injury  be  clearly 
proved.  Inseho  v.  Mid-Continent  Develop- 
ment Co.    (Kan.)    1917B-546. 

11.     CORPORATE     MORTGAGES     AND 
BONDS. 

149.  Validity  of  Bonds.  The  bonds  and 
mortgage  of  a  corporation  may  be  attacked 
on  the  grounds  that  they  are  invalid  as 
conveying  consumable  property  or  reserv- 
ing other  benefits  to  the  mortgagor,  who 
is  permitted  to  continue  in  possession,  by 
subsequent  creditors.  Morgan  v.  Davton 
Coal,  etc.  Co.   (Tenn.)   1917E-42. 

150.  Eights  of  Bona  Fid©  Purchaser. 
Bonds  of  a  corporation,  payable  to  a  cer- 
tain bank  or  other  registered  holder  for 
the  time  being,  and  providing  in  case  of 
a  registered  transfer  that  the  principal 
and  interest  will  be  paid  without  regard 
to  any  equity  between  the  company  and 
the  original  or  any  intermediate  holder, 
whether  technically  negotiable  or  not,  are 
free  from  equitable  defenses  in  the  hands 
of  an  innocent  holder,  ^lorcran  v.  Day- 
ton  Coal,   etc.   Co.    (Tenn.)    1917E-42. 


151.  Condemnation  of  Public  Utility— 
Duty  as  to  Lienholders.  In  a  proceeding 
by  a  municipality  to  acquire  a  public 
utility  under  the  public  utilities  statute 
(St.  Wis.  1915,  §  1797ml,  subd.  5,  and  sec- 
tions 1797m76  to -1797m85),  it  was  the 
municipality's  duty  to  see  that  the  amount 
of  bonds  outstanding  under  a  trust  deed 
on  the  public  utility  of  which  the  city  had 
notice  was  applied  to  the  claims  of  the 
bondholders,  either  by  payment  of  the 
money  into  court  for  distribution,  or  by 
securing  consent  of  the  bondholders  to  pay 
it  to  the  trustee,  or,  in  the  event  that 
they  would  not  consent  to  such  payment,  to 
wait  until  they  asserted  their  rights  in 
the  fund,  but  it  could  not  discharge  its 
obligation  in  this  respect  by  turning  over 
the  award  to  the  public  utility  corporation 
itself,  which  was  then  insolvent.  Connell 
V.   Kaukauna   (Wis.)    1918A-247. 

152.  What  Constitutes  Default  in  Inter- 
est. Under  a  corporation's  trust  deed,  au- 
thorizing the  trustee  to  declare  the  prin- 
cipal of  the  bonds  due  for  default  in  pay- 
ment of  interest,  where  the  trustee  ad- 
vanced the  money  with  which  to  pay  the 
interest  due,  there  is  no  default,  authoriz- 
ing it  to  declare  the  bonds  due,  although 
it  advanced  the  interest  to  conceal  from 
its  customers  its  own  fraud  in  selling  them 
the  bonds.  Connell  v.  Kaukauna  (Wis.) 
1918A-247. 

153.  Reservations — ^Effect  on  Validity. 
Where  the  property  described  on  the 
face  of  a  corporate  mortgage  is  not  of  such 
nature  as  to  make  it  fraudulent  and  void, 
it  cannot  be  attacked  by  subsequent  credi- 
tors on  the  ground  that  the  general  con- 
veying clause  includes  property  not  proper 
to  be  mortgaged,  the  possession  and  use 
of  which  is  reserved  to  the  mortgagor. 
Morgan  v.  Dayton  Coal,  etc.  Co.  (Tenn.) 
1917E-42. 

154.  Receiving  Payment  for  Bondholders. 
Under  a  corporation's  trust  deed,  authoriz- 
ing the  trustee  to  declare  the  bonds  due  in 
certain  contingencies,  the  trustee  has  no 
authority  to  receive  payment  for  the  bond- 
holders merely  because  it  is  trustee,  and 
before  the  bonds  are  due  according  to  the 
trust  deed,  notwithstanding  the  bonds  and 
interest  coupons  are  made  payable  at  the 
office  of  the  trustee;  and  money  deposited 
with  the  trustee  for  that  purpose  remains 
the  property  of  the  payor,  and,  if  lost, 
the  loss  is  that  of  the  payor.  Connell  v. 
Kaukauna    (Wis.)    1918A-247. 

155.  Power  of  Trustee  for  Bondholders. 
The  authority  of  the  trustee  under  a  cor- 
poration's trust  deed  to  act  for  the  bond- 
holders, as  in  accepting  payment  of  bonds, 
is  prescribed  and  limited  by  the  terms  of 
the  trust  deed.  Connell  v.  Kaukauna 
(Wis.)    1918A-247. 

156.  Power  to  Act  for  Lienholder. 
Where  the  trustee  under  a  corporation's 
trust  deed  represents  certain  bondholders 


234 


DIGEST. 

1916C— 1918B. 


as  general  agent  for  investment  purposes, 
with  power  to  accept  payment  on  outstand- 
ing securities,  to  substitute  one  security 
for  another,  and  generally  to  control  the 
investment  of  the  funds  of  such  clients,  it 
has  authority  to  accept  payment  of  the 
bonds  of  such  clients  under  the  trust  deed, 
although  such  bonds  are  not  due.  Con- 
nell   V.  Kaukauna  (Wis.)    1918A-247. 

157.  Consent  of  Stockholders.  Notwith- 
standing Colo.  Eev.  St.  1908,  §  865,  pro- 
viding that  the  directors  of  a  manufactur- 
ing corporation  shall  have  no  power  to 
mortgage  the  corporation's  plant  until  the 
question  shall  have  been  submitted  to  the 
stockholders,  and  the  majority  of  all  the 
shares  of  stock  shall  have  been  voted  in 
favor  of  the  proposition,  a  mortgage  given 
by  the  directors  of  a  manufacturing  cor- 
poration, without  the  consent  of  the  stock- 
holders, is  not  void  but  voidable  only  at 
the  suit  of  the  stockholders.  Dillon  v. 
Myers  (Colo.)  1916C-1032.        (Annotated.) 

158.  Effect  of  Failure  to  Obtain  Consent 
of  Stockholders.  A  subsequent  judgment 
creditor  of  a  manufacturing  corporation 
cannot  question  the  validity  of  a  prior 
mortgage  given  by  the  directors  of  the 
corporation  without  the  concurrence  of 
the  stockholders,  where  the  stockholders, 
who  could  have  questioned  the  mortgage, 
did  not  attack  it;  the  transaction  having 
been  in  good  faith  at  least  on  the  part 
of  the  mortgagee,  and  the  corporation 
having  received  the  proceeds  of  the  loan. 
Dillon  V.  Myers  (Colo.)  1916C-1032. 

(Annotated.) 

159.  Ultra  Vires  Mortgage.  A  corporate 
mortgage,  though  ultra  vires,  will  be  en- 
forced where  the  corporation  received  the 
proceeds,  and  the  mortgagee  entered  into 
the  contract  which  was  fully  executed,  in 
good  faith.  Dillon  v.  Myers  (Colo.) 
1916C-1032. 

Note. 
Eight  of  creditor  to  object  to  mortgage 
of  property  of  corporation   made   without 
required   consent  of  stockholders.     1916C- 
1039. 

12.     FOEEIGN  COBPOEATIONS. 

a     Statutory  Eegulations. 
(1)     Imposition  of  License  Tax. 

160.  The  taxes  imposed  by  Cal.  Pol. 
Code,  1 409,  requiring  the  secretary  of 
state  to  charge  and  collect  fees  for  filing 
articles  of  incorporation,  graduated  on  the 
amount  of  the  capital  stock,  and  by  Cal. 
St.  1905,  p.  493,  imposing  an  annual  license 
tax  on  foreign  corporations  doing  business 
in  the  state,  are  excise  taxes,  demanded 
as  a  privilege  for  the  right  to  do  a 
domestic  business,  and  not  taxes  based  on 
the  capital  stock  but  merely  measured 
thereby,  and  the  imposition  of  the  taxes 


on  a  foreign  corporation  selling  its  mer- 
chandise in  the  state,  though  manufactured 
elsewhere,  is  not  an  interference  with  in- 
terstate commerce.  Albert  Pick  &  Co.  v. 
Jordan  (Cal.)  1916C-1237. 

(Annotated.) 
Note. 
Imposition    of    license    tax    or    fee    on 
foreign  corporation.     1916C-1248. 

(2)  Statute  Eequiring  Appointment  of 
Eepresentative  to  Accept  Service  of 
Process. 

161.  Designation  of  Agent.  The  permis- 
sion granted  by  the  state  to  a  nonresident 
corporation  to  exercise  its  franchise  in  the 
state  is  a  sufficient  consideration  for  its 
agreement,  pursuant  to  the  requirements 
of  Burns'  Ind.  Ann.  St.  1908,  §§  4086,  4089, 
for  service  of  process  to  be  made  on  it  by 
service  on  an  agent.  Meixell  v.  American 
Motor  Car  Sales  Co.  (Ind.)   1916D-375. 

162.  Construction  of  Statute.  Burns' 
Ind.  Ann.  St.  1908.  §§  4086,  4089,  relative 
to  a  foreign  corporation's  appointing  an 
agency  to  receive  service  of  process  as  a 
condition  of  doing  business  in  the  state, 
being  a  remedial  statute,  will  be  construed 
to  include  cases  within  the  reason  for  its 
enactment,  even  though  outside  the  letter 
of  the  statute.  Meixell  v.  American  Motor 
Car  Sales  Co.  (Ind.)  1916D-375. 

Note. 
Liability  to  suit  within  state  of  foreign 
corporation  which  has  revoked  designation 
of  agent  for  service  of  process  and  has 
ceased  to  do  business  within  state.  1916D- 
378. 

(3)     What  Constitutes  Doing  Business. 

163.  A  contract  between  a  foreign  cor- 
poration manufacturing  Standard  patterns, 
and  a  resident  of  the  state,  which  recites 
that  the  corporation  grants  to  the  resident 
an  agency  for  the  sale  of  the  patterns  in  a 
city  for  a  specified  term,  and  from  year 
to  year  thereafter,  until  termination  of 
the  agreement,  and  which  binds  the  corpo- 
ration to  sell  and  deliver,  f.  o.  b.  at  points 
outside  of  the  state,  the  patterns  to  the 
resident  at  a  specified  discount  from  retail 
prices  and  advertising  matter  at  prices 
fixed,  and  to  allow  the  resident  to  return 
semiannually  discarded  patterns  on  terms 
specified,  does  not  contemplate  the  carry- 
ing on  by  the  corporation  of  intrastate 
commerce,  but  the  corporation,  in  perform- 
ing its  part  of  the  contract,  is  engaged  in 
interstate  commerce,  and  may  sue  on  the 
contract  without  complying  with  Mich. 
Pub.  Acts  1901,  No.  206,  as  amended  by 
Pub.  Acts  1903,  No.  34,  regulating  the 
right  of  foreign  corporations  to  carry  on 
business  in  the  state.  Standard  Fashion 
Co.  V.  Cummings  (Mich.)  1916E-413. 

(Annotated.) 


CORPORATIONS. 


235 


(4)     Effect  of  Noncompliance  With  Stat- 
utes. 

164.  Effect  on  Corporate  Mortgage. 
That  a  foreign  corporation  was  not  au- 
thorized to  do  business  in  the  state,  not 
having  filed  its  charter  with  the  secretary 
of  state  as  required  by  statute,  does  not 
render  a  mortgage  and  debentures  of  the 
corporation  void.  Morgan  v.  Dayton  Coal, 
etc,  Co.  (Tenn.)   1917E-42. 

b.     Insolvency. 

165.  Authority  of  Court  to  Dissolve. 
The  courts  of  the  forum  have  no  authority 
to  dissolve  or  wind  up  a  foreign  corpora- 
tion; their  powers  being  limited  to  taking 
charge  of  the  property  within  the  jurisdic- 
tion of  the  court  and  enforcing  the  rights 
of  creditors  there.  Dickey  v.  Southwest- 
ern Surety  Ins.  Co.  (Ark.)  1917B-634. 

(Annotated.) 

e.    Actions  by   and  Against  Foreign  Cor- 
porations. 

(1)     Liability  to  be   Sued. 

166.  Requisites  of  Jurisdiction.  Three 
conditions  are  necessary  to  give  a  court 
jurisdiction  in  personam  over  a  foreign 
corporation:  First,  it  must  appear  that  the 
corporation  was  carrying  on  business  in 
the  state;  second,  that  the  business  was 
transacted  by  some  agent  of  the  corpora- 
tion in  the  state;  third,  the  existence  of 
some  local  law  making  such  corporation 
amenable  to  suit.  W.  J.  Armstrong  Co.  v. 
New  York  Central,  etc.  E.  Co.  (Minn.) 
1916E-335. 

167.  Refusal  to  Make  Transfer — Reme- 
dies of  Assignee  of  Stock.  An  assignee 
and  holder  »of  a  certificate  of  stock  of  a 
foreign  corporation,  by  its  express  terms 
transferable,  when  surrendered,  upon  the 
books  of  the  corporation,  on  its  surrender 
and  on  the  refusal  of  its  registered  transfer 
agent  and  its  other  officers  may  sue  in 
equity  to  compel  such  officers  to  make  the 
transfer  and  to  issue  a  new  certificate, 
may  sue  the  corporation  for  its  value 
either  in  trover  or  assumpsit,  may  assert 
his  ownership  of  the  certificate  and  sue 
for  the  dividends  declared  upon  it,  or  may 
sue  to  compel  specific  performance  of  the 
contract  expressed  therein.  Travis  v. 
Knox  Terpezone  Co.  (N.  Y.)   1917A-3S7. 

168.  Interference  With  Internal  Affairs. 
The  courts  of  this  state  will  not  annul  the 
election  of  directors  by  the  stockholders 
of  a  corporation  chartered  in  another  state. 
Travis  v.  Knox  Terpezone  Co.  (N.  Y.) 
1917A-387.  (Annotated.) 

169.  Compelling  Transfer  by  Foreign 
Corporation.  The  courts  of  this  state  have 
jurisdiction  to  give  relief  against  the 
transfer  agent  and  other  officers  of  a 
foreign  corporation  having  their  place  of 
business  in  the  state,  who  refuse  to  trans- 


fer its  certificate  of  stock  on  the  corporate 
books,  where  no  considerations  of  con- 
venience, efficiency,  or  justice  point  to  the 
courts  of  the  corporate  domicil  as  the  ap- 
propriate tribunal,  since  the  remedy  merely 
enforces  a  contract  between  the  corpora- 
tion and  its  member,  and  his  right  to 
dividends,  and  protects  his  ownership  of 
a  certificate  already  issued,  and  does  not 
interfere  with  the  internal  affairs  of  the 
corporation,  nor  amount  to  the  exercise 
of  any  power  of  visitation,  nor  to  the 
redress  of  any  public  wrong.  Travis  v. 
Knox  Terpezone  Co.  (N.  Y.)   1917A-387. 

(Annotated.) 

(2)  Service  of  Process. 

170.  A  foreign  corporation  keeping  and 
maintaining  agents  in  this  state  for  pro- 
curing business  for  its  benefit  and  profit 
may  be  required  to  answer  in  this  state 
to  a  citizen  thereof  for  a  breach  of  con- 
tract or  duty  arising  out  of  business  so 
procured,  and  an  agent  engaged  in  pro- 
curing such  business  may  be  declared  the 
representative  of  the  corporation  for  the 
purpose  of  bringing  it  into  court,  W,  J. 
Armstrong  Co.  v.  New  York  Central,  etc. 
R.  Co.  (Minn.)  1916E-335, 

(Annotated.) 

171.  Service  on  Designated  Agent.  Un- 
der N.  Y.  General  Corporation  Law,  §  15 
(Consol.  Laws,  c.  23,  McKinney's  Consol. 
Laws,  Book  22,  p.  96),  providing  that  a 
foreign  corporation  which  has  not  obtained 
a  certificate  to  do  business  from  the  secre- 
tary of  state  may  not  maintain  an  action 
in  the  courts  of  New  York  upon  any  con- 
tract made  in  the  state,  and  section  16, 
providing  the  condition  to  obtaining  such 
a  certificate,  that  the  corporation  file  a 
stipulation  with  the  secretary  of  state, 
designating  a  person  upon  whom  process 
may  be  served  within  the  state,  where 
the  agent  so  designated  by  a  Pennsylvania 
corporation  was  served  with  summons  in 
an  action  against  such  corporation  for 
breach  of  its  contract  to  compensate  plain- 
tiff for  injuries  received  in  its  employ  in 
Pennsylvania,  where  the  contract  was 
made,  such  service  is  valid,  since  the 
designation  of  an  agent  within  the  state 
bv  a  foreign  corporation  for  service  of 
process  constitutes  a  contract  by  the  cor- 
poration with  the  state,  made  in  return  for 
the  extension  of  the  privilege  to  sue  in 
the  court,  and  the  designated  agent  is 
such  to  accept  service,  though  the  cause 
of  action  is  without  relation  to  the  busi- 
ness transacted  in  the  state.  Bagdon  v. 
Philadelphia,  etc.  Coal,  etc.  Co.  (N.  Y.) 
1918A-389.  (Annotated.) 

172.  Agent  of  Associated  Corporations. 

Summons  was  served  on  a  foreign  railroad 
corporation  by  leaving  a  copy  with  a  soli- 
citing freight  agent  employed  by  defend- 
ant and  other  corporations  operating  con- 
necting   lines    and    associated    under    the 


236 


name  of  New  York  Central  Fast  Freight 
Lines.  Under  that  name  defendant  and  its 
connecting  lines  solicit  freight  systema- 
tically throughout  the  state  of  Minnesota 
for  transportation  out  of  the  state.  They 
transport  freight  solicited  under  a  single 
through  tariff.  They  maintain  offices  in  the 
state  for  the  purpose  of  such  solicitation. 
This  cause  of  action  arose  out  of  a  ship- 
ment of  freight  from  a  point  in  Minnesota 
to  New  York  City  which  was  solicited  in 
this  manner.  The  statutes  of  the  state  au- 
thorize service  of  a  summons  on  a  foreign 
corporation  by  service  upon  an  agent  in 
the  state  for  the  solicitation  of  freight 
traffic  over  its  lines  outside  the  state.  It 
is  held  that  the  soliciting  agent  of  the  as- 
sociated corporation  was  the  agent  of  each 
of  them.  W.  J.  Armstrong  Co.  v.  New 
York  Central,  etc.  E.  Co.  (Minn.)  1916E- 

173.  Without  invoking  this  principle,  the 
state  may  designate  the  agent  upon  whom 
service  of  summons  may  be  made,  but  the 
agent  must  be  one  sustaining  such  relation 
to  the  corporation  that  such  service  con- 
stitutes due  process  of  law.  W.  J.  Arm- 
strong Co.  V.  New  York  Central,  etc.  R. 
Co.  (Minn.)  1916E-335.  (Annotated.) 

174.  Service  of  Process  on  Agent.  The 
rule  that  process  may  be  served  on  a 
special  agent  of  a  foreign  corporation  tak- 
ing orders  within  the  state  and  sending 
them  to  the  company  for  approval,  though 
the  business  is  entirely  interstate,  does  not 
apply  where  the  salesman  is  an  independ- 
ent contractor.  Barnes  v.  Maxwell  Motor 
Sales  Corp.   (Ky.)    1917E-578. 

175.  Eevocation  of  Agent's  Authority. 
Where  a  foreign  corporation,  on  commen- 
cing business  within  the  state,  appoints  an 
agency  to  receive  service  of  process,  in 
compliance  with  Burns'  Ind.  Ann.  St.  1908, 
§§4086,  4089,  it  cannot,  by  filing  an  at- 
tempted revocation  with  the  Secretary  of 
State,  revoke  such  agency  upon  discontinu- 
ing business  in,  and  removing  its  property 
from,  the  state,  so  as  to  invalidate  subse- 
quent service  upon  its  agent  during  his 
temporary  presence  in  the  state  after  re- 
moval therefrom,  though  such  agent  is 
neither  an  officer  nor  a  stockholder  of  the 
corporation  and  has  no  connection  there- 
with, where  the  cause  of  action  is  one  aris- 
ing out  of  a  contract  made  in  the  state 
with  the  corporation,  while  it  was  engaged 
in  the  exercise  of  its  franchise  and  the 
transaction  of  business  in  the  state;  the 
corporation's  agreement  with  the  state  as 
to  an  agency  for  service  of  process  being  a 
power  coupled  with  an  interest  and  irrev- 
ocaole  so  long  as  an  interest  in  the  sub- 
ject of  the  power  continues.  Meixell  v. 
American  Motor  Car  Sales  Co.  (Ind.) 
1916D-375.  (Annotated.) 

176.  Service  on  Corporate  Officer — Officer 
not  at  Domicil.     The  president  of  a  foreign 


DIGEST. 

1916C— 1918B. 

corporation  may  be  in  the  state,  without 
bringing  the  corporation  itself  within  the 
.iurisdiction  for  the  purpose  of  service  of 
process  upon  him,  since  he  must  be  here 
officially,  representing  the  corporation  in 
its  business.  Bagdon  v.  Philadelphia,  etc. 
Coal  Co.  (N.  Y.)  1918A-389. 

177.  Agents  for  Service  of  Process — Des- 
ignation by  Statute.  Where  a  state  by 
statute  designates  an  agent  of  a  particular 
character  as  an  agent  upon  whom  process 
may  be  served,  the  corporation  by  sending 
such  an  agent  into  the  state  assents  to  the 
statute  and  clothes  the  agent  with  author- 
ity to  receive  service  in  its  behalf.  W.  J. 
Armstrong  Co.  v.  New  York  Central,  etc. 
E.  Co.  (Minn.)  1916E-335. 

(Annotated.) 


Notes. 

Right  to  serve  process  on  public  official 
or  designated  agent  of  foreign  corporation 
in  action  arising  out  of  transaction  in  an- 
other state.     1918A-392. 

Validity  of  statute  designating  particu- 
lar kind  of  agent  of  foreign  corporation  on 
whom  process  may  be  served.     1916E-339. 

(3)     Limitation   of   Actions. 

178.  Eight  to  Plead  Limitations.  Under 
N.  Y.  Code  Civ.  Proc,  §  401,  providing 
that,  if  when  a  cause  of  action  accrues 
against  a  person  he  is  without  the  state, 
the  action  may  be  commenced  within  the 
time  limited  therefor  after  his  return  to 
the  state,  and  that  it  shall  not  apply  while 
designations  made  by  foreign  corporations 
as  prescribed  by  section  432,  subd.  2,  re- 
ir.ain  in  force,  considering  the  exception  as 
at  the  time  of  its  adoption  when  it  referred 
to  personal  service  of  a  summons  by  de- 
livery to  persons  designated  to  accept  ser- 
vice for  foreign  corporations,  whether  li- 
censed to  do  business  in  the  state  or  not, 
a  foreign  surety  company  which  could  not 
bring  itself  within  the  exception  because 
not  within  the  scope  of  the  N.  Y.  General 
Corporation  Law,  but  which  had  a  repre- 
sentative for  the  service  of  process  under 
the  law,  and  which  was  engaged  in  perma- 
nent business  in  the  state,  was  to  be  treated 
as  a  domestic  corporation,  and  hence  had 
the  right  to  make  the  defense  that  an  ac- 
tion against  it  was  not  begun  in  time. 
Comey  v.  United  Surety  Co.  (N.  Y.)  1917E- 
424.  (Annotated.) 

(4)     Pleading. 

179.  Failure  to  Comply  with  Statute. 
Where  an  action  by  a  foreign  corporation 
was  begun  in  justice  court,  and  the  circuit 
court  on  appeal  stated  that  the  corporation 
had  not  filed  any  copy  of  its  articles  of  in- 
corporation, as  required  by  statute,  the  su- 
preme court,  on  writ  of  error  to  review  a 
judgment  for  defendant,  will  determine  the 
right  of  the  corporation  to  maintain  the  ac- 
tion, though  not  complying  with  the  stat- 


CORRECTION— COSTS. 


237 


ute,  though  the  defense  of  noncompliance 
was  not  affirmatively  pleaded.  Standard 
Fashion  Co.  v.  Cummings  (Mich.)  1916E- 
413. 

(5)     Defenses. 

180.  Eight  to  Plead  Statute  of  Limita- 
tions. A  foreign  corporation,  transacting 
business  in  Florida,  which  maintains  an 
agent  in  such  state,  upon  whom  process 
may  be  served  in  accordance  with  the  pro- 
visions of  paragraph  5  of  section  1406  of 
the  General  Statutes  of  Florida,  and  against 
which  a  personal  judgment  may  be  ren- 
dered, is  entitled  to  plead  the  statute  of 
limitations  in  an  action  instituted  against 
such  corporation.  Roess  v.  Malsby  Co. 
(Fla.)   1917C-1022.  (Annotated.) 

CORRECTION. 
Of  general  verdict,  see  Verdicts,  11. 

CORRECTION  OF  JUDGMENT. 

See  Judgments,  51,  52. 

CORRECTION  OF  RECORD. 

Appealability,  see  Appeal  and  Error,  30. 

CORROBORATION. 

See  Bastardy,  4,  6,  13. 

Ot  confession,  see  Confession,  5,  7. 

Of  accomplice,  see  Criminal  Law,  68,  72, 

89. 
Of  witness,  see  Witnesses,  112. 

CORRUPT  PRACTICES  ACTS. 

See  Elections,  93,  94. 

Division  of  salary,  see  Bribery,  1. 

COSTS. 

1.  Who  Entitled  to  Costs. 

2.  Who  Liable  for  Costs. 

3.  What  Recoverable  as  Costs. 

See  Courts,  38. 

On  appeal,  see  Appeal  and  Error,  485,  486. 

Liability  of  petitioning  creditors,  see 
Bankruptcy,  26. 

Appeal  bond  for  costs,  see  Bankruptcy,  29. 

Self -executing  constitutional  provision,  see 
Constitutional  Law,  95. 

In  condemnation  proceedings,  see  Eminent 
Domain,  97-100. 

In  actions  against  executors  and  adminis- 
trators, see  Executors  and  Administra- 
tors, 88,  89. 

Imprisonment  for  nonpayment,  see  Impris- 
onment for  Debt  in  Civil  Cases,  1. 

Attorney's  fees  on  foreclosure,  see  Mechan- 
ics' Liens,  2. 

On  foreclosure  of  mechanics'  liens,  see  Me- 
chanics' Liens,  61-64. 

Fee  of  prosecuting  attorney,  see  Prosecut- 
ing Attorneys,  1. 

On  will  contest,  see  Wills,  138,  139. 


1.     WHO  E-NTITLED  TO  COSTS. 

1.  Right  of  Attorney  to  Costs  Allowed 
Client.  Costs  and  allowances  in  an  action 
or  proceeding  are  made  to  a  prevailing 
party  as  an  indemnity  for  his  expenses  not 
covered  by  the  ordinary  costs  taxable  un- 
der the  code,  and  belong  to  the  party,  and 
not  to  the  attorney.  Matter  of  HoweJl 
(N.  Y.)   1917A-527. 

2.     WHO  LIABLE  FOR  COSTS. 

2.  Liability  for  Costs.  Where  a  pur- 
chaser of  a  stock  of  goods  in  bulk  denied 
his  liability  to  the  seller's  creditors  under 
the  bulk  sales  act,  but  he  was  adjudged  to 
hold  the  goods  for  their  benefit  as  a  re- 
ceiver, all  costs  of  the  proceedings  are  prop- 
erly awarded  against  the  purchaser.  Stu- 
art V.  Elk  Horn  Bank,  etc.  Co.  (Ark.) 
1918A-268. 

3.  In  Habeas  Corpus  Proceeding — Liabil- 
ity of  Public  Officer.  An  officer  against 
whom  a  writ  of  habeas  corpus  is  sued  out 
is  not  liable  for  costs,  nor  can  he  be  mulcted 
in  damages,  even  if  the  restraint  was 
wrongful.  Addis  v.  Applegate  (Iowa) 
1917E-332. 

4.  Prevailing  Party— Election  Contest. 
Where  two  candidates  for  alderman  have 
received  an  equal  number  of  votes  and  one 
has  been  declared  elected  and  is  in  posses- 
sion of  the  office,  he  is  the  prevailing  party 
in  a  suit  to  oust  him,  under  Rev.  St.  Me. 
c.  6,  §  74,  which  provides  that  the  prevail- 
ing party  shall  recover  costs.  Murray  v. 
Waite  (Me.)   1918A-1128. 

5.  Liability  to  Full  Costs.  Where  the 
defendant  in  a  suit  for  an  accounting  had 
refused  to  pay  any  portion  of  plaintiff's 
claim  and  pliaintiff  recovered,  defendant 
cannot  complain  that  the  entire  costs  were 
imposed  on  him.  Miller  v.  Dilkes  f  Pa  ) 
1917D-555. 

6.  Liability  of  Intervener.  A  subtenant 
who  intervenes  in  a  suit  between  landlord 
and  tenant  is  liable  for  the  costs  of  his 
intervention,  but  the  supreme  court  has 
jurisdiction  to  relieve  the  subtenant  of 
costs  of  seizure  where  the  sum  due  by  the 
subtenant  is  too  insignificant  for  consid- 
eration. Schwartz  v.  Dennis  (La.")  1917D- 
94.  ' 

7.  Award  Against  Successful  Party. 
Where  the  suit  by  a  member  of  a  frater- 
nal association  to  enjoin  the  collection  of 
increased  assessments  to  meet  death  claims 
was  novel  and  of  general  interest,  costs 
should  be  borne  by  the  insurer,  though  it 
was  successful  on  appeal,  particularly 
where  its  brief  and  abstract  were  unneces- 
sarily long.  Thomas  v.  Knights  of  Macca- 
bees  (Wash.)   1917B-SC4. 

3.     WHAT    RECOVERABLE   AS    COSTS. 

8.  Requirement  of  Jury  Fees — Validity. 
Wis,  Civil  Court  Act  (Laws  1909,  c.  549) 


238 


DIGEST. 

1916C— 1918B. 


§  19,  requiring  a  party  desiring  a  jury  trial 
in  the  civil  court  of  Milwaukee  to  pay  a 
fee  of  $12,  which  is  to  be  taxed  as  costs 
if  successful  in  the  action,  is  not  in  viola- 
tion of  Const,  art.  1,  §  5,  declaring  that  the 
right  to  jury  trial  shall  remain  inviolate, 
particularly  as  jury  fees  were  required  in 
territorial  days.  Reliance  Auto  Eepair  Co. 
T.  Nugent  (Wis.)  1917B-307. 

(Annotated.) 

9.  Provision  in  Lease  for  Attorney's  Fee 
— Amount  Allowed.  Under  a  lease  provid- 
ing that,  if  the  lessor  prevailed  in  any  suit 
for  violation  of  any  covenant  of  the  lease, 
the  lessee  should  be  liable  to  a  reasonable 
attorney  fee  in  each  suit  not  exceeding  $75, 
the  lessor,  entitled  to  recover  rent  from  the 
lessee  after  a  sublease,  is  entitled  to  an 
attorney's  fee  of  $75  in  each  of  three  suits 
for  instalments  of  rent,  consolidated  in  one 
suit.  Samuels  v.  Ottinger  (Cal.)  1916E- 
830. 

10.  Expenses  of  Proceeding  Before  Com- 
missioner. In  a  divorce  ease,  where  de- 
fendant was  examined  before  a  commis- 
sioner, expenses  actually  incurred  by  the 
commissioner  in  such  proceeding  may  be 
properly  taxed  against  defendant  as  costs. 
Heicke  v.  Heicke   (Wis.)   1918B-497. 

Note. 
Constitutionality    of    statutes    requiring 
prepayment  or  taxation  as  costs  of  jury 
fees.     1918B-308. 

COTENANCTT. 
See  Tenancy  in  Common. 

COTTON. 

Implied  warranty  of  loundness,  see  Sales, 
27,  28. 

COUNTERCLAIM. 
See  Set-off  and  Cotinterclaim. 

COUNTIES. 

1.  Definition  and  Classification,  238. 

2.  Inclusion  of  Territory,  239. 

3.  Fiscal  Management,  239. 

4.  Powers,  240. 

5.  Contracts,   240. 

6.  Officers  and  County  Boards,  240. 

a.  Board  of  Supervisors,  240. 

b.  County  Commissioners,  240. 

7.  Actions,  240. 

See   Municipal   Corporations;   Public   OB.- 

cers;  Towns. 
Liability  for  injury  to  child  on  dock,  see 

Negligence,  6,  7,  9. 
County  loan  act,  title  of  act,  see  Statutes, 

11. 
Refund  of  taxes  erroneously  collected,  see 

Taxation,  109. 
Special  assessment  of  county  property  by 

city,  see  Taxation,  123. 


Taxpayer's  suit  to  recover  money  illegally 

expended,  see  Taxation,  202. 
Pablication  of  ordinance  in  german  paper 

insufficient,  see  Trees  and  Timber,  2. 
Rights  of  public  on  docks  and  wharves,  see 

Trespass,  I. 

1.     DEFINITION      AND      CLASSIFICA- 
TION: 

1.  So  much  of  Mo.  Rev.  St.  1909,  §  11745, 
as  requires  a  majority  of  all  the  votes 
cast  at  an  election  against  township  organ- 
ization before  a  county  shall  be  declared 
to  be  under  the  general  law  is  in  conflict 
with  Const,  art.  9,  §  9,  providing  that,  if  a 
majority  of  all  the  votes  cast  on  the  ques- 
tion shall  be  against  township  organiza- 
tion, it  shall  cease  in  the  county.  State  v. 
Duncan.   (Mo.)   19r6D-l. 

2.  Organization-    So  much  of  Mo.  Rev. 

St.  1909,  §  11745,  as  prescribes  for  a  given 
county  after  it  has  voted  out  township  or- 
ganization, a  government  differing  from 
that  of  a  county  which  has  never  adopted 
township  organization  is  invalid.  State  v. 
Duncan  (Mo.)  1916D-1. 

3.  That  part  of  Mo.  Rev.  St.  1909,  §  11745, 
which  provides  that,  on  a  proper  petition, 
the  county  court  shall  resubmit,  the  ques- 
tion of  township  organization  in  like  man- 
ner as  is  provided  in  article  1  of  the  chap- 
ter, is  valid  notwithstanding  the  invalidity 
of  other  parts  of  the  section;  for  the  valid 
part,  when  considered  in  connection  With 
sections  11653,  11654,  providing  for  the  sub- 
mission to  the  voters  of  the  question  of 
township  organization  and  the  canvass  of 
the  vote  and  in  connection  with  Const,  art. 
9,  §  9,  providing  that,  if  a  majority  of  the 
votes  cast  on  the  question  shall  be  against 
township  organization,  it  shall  cease  in  the 
county,  and  laws  relating  to  counties  not 
having  township  organization  shall  take 
effect,  presents  a  workable  scheme  for  the 
submission  to  the  voters  of  the  question  of 
the  continuance  of  township  organization, 
and,  where  a  proper  petition  for  the  sub- 
mission of  the  question  is  presented,  and 
an  order  for  election  is  made,  and  a  ma- 
jority of  the  votes  cast  on  the  question  is 
against  township  organization,  the  town- 
ship organization  ceases.  State  v.  Dun- 
can  (Mo.)   1916D-1.  (Annotated.) 

4.  Statute  Invalid.  Const,  art.  9,  §  9, 
providing  that,  when  township  organiza- 
tion is  voted  out,  all  laws  in  force  in  rela- 
tion to  counties  not  having  township  or- 
ganization shall  take  effect  in  the  county, 
renders  invalid  so  much  of  Mo.  Rev.  St. 
1G09,  §  11745,  as  provides  for  the  appoint- 
ment of  officers,  and  appointments  must  be 
made  by  the  Governor  as  authorized  by  sec- 
tion 5828.     State  v.  Duncan  (Mo.)  1916D-1. 

5.  Failure  to  Classify  Counties  by  Popu- 
lation. Mo.  Const,  art.  9,  §  12,  authorizing 
the  legislature,  by  a  law  uniform  in  opera- 


COUNTIES. 


239 


tion,  to  provide  for  and  regulate  the  fees 
of  county  officers,  and  permitting  the  classi- 
fication of  counties  by  population,  when 
considered  in  connection  with  section  13, 
providing  that  the  fees  of  no  executive  or 
ministerial  officer  of  any  county  or  muni- 
cipality shall  exceed  $10,000  annually,  and 
requiring  every  such  officer  to  make  return 
quarterly  to  the  county  court  of  all  fees 
received  by  him,  does  not  render  invalid 
Mo.  Eev.  St.  1909,  §  10695,  fixing  fees  for 
probate  courts,  and  requiring  payment  of  a 
part  of  the  fees  into  the  county  treasury, 
for  the  legislature  is  not  required,  but 
merely  permitted,  to  classify  counties  by 
population,  and  because  the  provision  for 
the  payment  of  the  fees  into  the  county 
treasury  does  not  relate  to  the  regulation 
of  fees,  but  to  their  retention.  Greene 
County  V.  Lydy  (Mo.)  1917C-274. 

2.     INCLUSION  OF  TEERITORT. 

6.  Persons  Entitled  to  Vote  on  Question. 

Under  Mo.  Const.  1895,  art.  7,  §§  1,  2,  pro- 
viding for  the  establishment  of  new  coun- 
ties by  election  by  the  qualified  electors, 
within  the  proposed  area,  all  qualified  elec- 
tors within  the  territory  to  be  included  in 
the  new  county  are  entitled  to  vote  on  that 
question,  and  the  legislature  cannot  deny 
that  right  by  failing  to  provide  a  means 
of  voting  for  such  electors  in  a  statute  de- 
signed to  carry  out  the  constitutional  pro- 
vision. Callison  v.  Peoples  (S.  Car.) 
1917E-469. 

3.     FISCAL   MANAGEMENT. 

7.  Computation  of  Indebtedness — Inter- 
est on  Obligations.  Under  Ala.  Const. 
1901,  §  224,  providing  that  no  county  shall 
become  indebted  in  an  amount,  including 
present  indebtedness,  greater  than  three 
and  one-half  per  cent  of  the  assessed  value, 
the  words  "become  indebted"  contemplate 
that,  in  calculating  the  amount  of  indebt- 
edness, the  face  value  of  the  county's  obli- 
gation and  accrued  interest  thereon  must  be 
included,  but  not  interest  not  yet  due. 
O'Rear  v.  Sartain  (AJa.)  1918B-593. 

(Annotated.) 

8.  Unissued  Bonds,  Under  Ala.  Const. 
1901,  §  224,  limiting  the  amount  to  which 
a  county  may  be  indebted  to  three  and 
one-half  per  cent  of  the  assessed  valuation 
of  the  property,  road  bonds  not  issued  can- 
not be  counted  as  a  present  indebtedness. 
O'Rear  v.  Sartain  (Ala.)  1918B-o93. 

9.  Time  as  of  Which  Indebtedness  is 
Computed.  In  determining  whether  a 
county  has  exceeded  its  debt  limit,  the 
validity  of  a  contemplated  issue  of  bonds 
depends  on  the  condition  of  the  indebted- 
ness at  the  time  of  issuance,  and  not  upon 
its  condition  at  the  time  of  the  election 
authorizing  the  same.  O'Rear  v.  Sartain 
(Ala.)   191SB-593. 


10.  Debt  Limit— Effect  of  Exceeding 
Limit— Validity  of  Tax  for  Payment 
Ala.  Const.  1901,  §  224,  provides  that  no 
county  shall  become  indebted  in  an 
amount,  including  present  indebtedness, 
greater  than  three  and  one-half  per  cent 
of  the  assessed  value  of  the  property 
therein.  Section  215  provides  that  no 
county  shall  levy  a  greater  rate  of  taxa- 
tion in  any  one  year  than  one-half  of  one 
per  cent.  It  is  held  that  section  215  con- 
fers no  right  to  levy  taxes  to  pay  an  in- 
debtedness incurred  in  excess  of  the  limi- 
tation fixed  by  section  224.  O'Rear  v. 
Sartain  (Ala.)  1918B-593. 

11.  Bonds — Sale  Below  Face  Value. 
Under  N.  Car.  Pub.  Loc.  Laws  1915,  c.  27, 
authorizing  the  sale  of  road  bonds  by 
Alexander  county,  and  providing  that 
none  of  the  bonds  authorized  shall  be  dis- 
posed of  for  a  less  price  than  their  face 
value,  a  sale  of  the  bonds  which  drew  five 
per  cent  interest  in  part  for  cash  and  in 
part  for  time  certificates  of  deposit  run- 
ning from  three  to  eighteen  months,  with 
interest  at  two  per  cent,  is  unauthorized, 
for  when  the  difference  in  interest  is  con- 
sidered it  would  reduce  the  purchase  price 
to  less  than  the  face  or  "par  value"  of  the 
bonds,  which  means  a  value  equal  to  the 
face  of  the  bonds  and  accrued  interest  to 
date  of  sale.  Moose  v.  Board  of  Commis- 
sioners (N.  Car.)  1917E-1183. 

12.  Issuance  of  Bonds.  Bonds  to  be 
issued  for  constructing  county  roads  are 
for  "necessary  expenses."  Moose  v.  B^ard 
of  Commissioners  (N.  Car.)  1917E'-1183. 

13.  Notes  Issued  by  Commissioners. 
County  commissioners  having  no  power  to 
issue  negotiable  notes,  notes  issued  by 
them  will  be  regarded  as  non-negotiable. 
First  National  Bank  v.  Nye  County  (Nev.) 
1917C-1195. 

14.  Issue  of  Negotiable  Notes.  County 
commissioners  cannot  issue  "negotiable 
notes  unless  power  is  given  expressly  or 
by  clear  implication.  First  National  BacJi. 
v.  Nye  County  (Nev.)  1917C-1195. 

15.  Under  Nev.  Act  March  13,  1903 
(Laws  1903,  c.  78),  §§  6,  7  (Rev.  Laws, 
§§  3831,  3832),  authorizing  county  comnis- 
sioners,  in  case  of  great  necessity  or  emer- 
gency, to  make  a  temporary  loan,  and  re- 
quiring them  at  the  next  tax  levy  to  levy 
an  extra  tax  to  pay  it,  no  power  to  exe- 
cute a  negotiable  note  to  secure  the  pay- 
ment can  be  implied.  First  National  Bank 
V.  Nye  County  (Nev.)  1917C-1195. 

16.  Giving  negotiable  notes  for  tempo- 
rary loans  made  by  county  commission- 
ers in  case  of  great  necessity  or  emer- 
gency, to  be  paid  for  from  the  next  tax 
levy,  under  authority  of  Nev.  Act  March 
13,  1903  (Laws  1903,  c.  78),  §§  6,  7  (Rev. 
Laws,  §§  3831,  3832),  is  not  within  Act 
March  8,  1865  (Laws  1864-65,  c.  80),  §  8, 
Bubd.  13,  empowering  county  commission- 


240 


DIGEST. 

1916C— 1918B. 


ers  to  do  things  "strictly  necessary"  to 
the  full  discharge  of  their  powers.  First 
National  Bank  v.  Nye  County  (Nev.) 
1917C-1195. 

17.  Loan  to  County.  A  county  having 
had  the  benefit  of  money  obtained  by 
county  commissioners  on  a  temporary  loan 
under  Nev.  Act  March  13,  1903  (Laws 
1903,  c.  78),  §  6,  is  estopped  to  assert  that 
there  did  not  exist  a  case  of  great  neces- 
sity or  emergency  authorizing  the  commis- 
sioners making  the  loan.  First  National 
Bank  v.  Nye  County  (Nev.)  1917C-1195. 

4.     POWEBS. 

18.  Donation  to  State  Education.  Priv. 
Acts  Tenn.  1915,  c.  1,  authorizing  Knox 
county  to  issue  bonds  and  therewith  buy 
lands,  title  to  be  conveyed  to  the  state  for 
the  use  of  the  state  university,  for  educa- 
tional, experimental,  and  agricultural  pur- 
poses, does  not  contravene  Const,  art.  2, 
§  29,  prohibiting  a  county  or  municipality, 
unless  authorized  by  its  electors,  from  giv- 
ing or  loaning  its  credit  to  or  in  aid  of 
any  person,  company,  association,  or  cor- 
poration, or  from  becoming  a  stockholder 
with  others  in  any  company,  association, 
or  corporation;  the  mischief  sought  to  be 
prevented  being  a  business  partnership 
between  a  municipality  or  county  and  in- 
dividuals or  private  corporations  or  asso- 
ciations. Heiskell  v.  Knox  County  (Tenn.) 
1916E-1281. 

*  5.     CONTRACTS. 

19.  Ratification  of  Unauthorized  Con- 
tract. A  county  may  ratify  an  unauthor- 
ized contract  made  in  its  behalf,  if  it  is 
one  which  the  county  could  have  made  in 
the  first  instance.  Leathern  v.  Jackson 
County  (Ark.)  1917D-438. 

6.     OFFICERS  AND  COUNTY  BOARDS, 
a.     Board  of  Supervisors. 

20.  In  such  case,  the  power  of  the  county 
court  to  audit  the  accounts  of  the  county 
is  not  taken  away  by  the  grant  of  similar 
powers  to  the  circuit  court,  made  under 
Kirby's  Ark.  Dig.  §§  625-640,  passed  sub- 
sequent to  the  enactment  of  the  acts  dele- 
gating the  power  to  the  county  court; 
there  being  no  such  inherent  power  in  the 
circuit  court  as  vested  under  the  constitu- 
tion in  the  county  court,  and  such  sections 
being  designed  to  aid  the  circuit  court  in 
the  enforcement  of  the  criminal  laws  of 
the  state.  Leathem  v.  Jackson  County 
(Ark.)   1917D-438.  (Annotated.) 

21.  Power  of  Board.  Ky.  Const,  art.  7, 
§  28,  gives  county  courts  exclusive  origi- 
nal jurisdiction  in  regard  to  disbursement 


of  money  for  county  purposes,  and  in 
every  other  case  necessary  to  internal  im- 
provement and  local  concerns  of  the  coun- 
ties. Kirby's  Ky.  Dig.  §  1375,  invests 
county  courts  with  original  jurisdiction  to 
audit,  settle,  and  direct  payment  of  all  de- 
mands against  the  county,  and  in  all  other 
cases  necessary  to  the  internal  improve- 
ment and  local  concerns  of  the  counties. 
Section  7162  requires  all  collectors,  sher- 
iffs, clerks,  constables,  and  other  persons 
chargeable  with  moneys,  to  make  settle- 
ment with  the  county  court.  Section  7167 
provides  for  adjustment  by  the  county 
court  of  accounts  of  delinquent  officers. 
Section  7171  empowers  the  county  court 
to  re-examine,  settle,  and  adjust  prior  set- 
tlements on  showing  of  cause,  and  section 
7174  provides  for  adjustment  at  any  time 
within  two  years.  Sections  1162  and  1163 
provide  for  settlement  by  the  county 
treasurer  with  the  county  court.  A  county 
judge  contracted  with  the  claimants  as  ex- 
pert accountants  to  examine  the  books  of 
certain  officers  of  the  county.  It  is  held 
that  the  county  court,  being  charged  with 
the  auditing  and  settlement  of  accounts, 
could  employ  expert  accountants,  and 
therefore  could  ratify  a  contract  which  it 
could  have  made  in  the  first  instance;  such 
employment  not  being  an  illegal  delega- 
tion of  the  power  to  audit,  but  necessary 
owing  to  the  character  of  the  work  to  be 
done.  Leathem  v.  Jackson  County  (Ark.) 
1917D-438.  (Annotated.) 

b.     County  Commissioners. 

22.  Liability  of  Commissioners.  Though 
county  commissioners  condemn  a  strip  of 
land  for  widening  a  road,  if  they,  in  doing 
the  work  of  widening  unnecessarily  in- 
jure land  outside  that  condemned  they  are 
liable  therefor.  Pettit  v.  County  Commis- 
sioners (Md.)  1916C-35. 

7.     ACTIONS. 

23.  Claims  Against  Comity — Neceaslty 
of  Presentation — Notes.  The  orders  of 
county  commissioners  authorizing  issuance 
of  notes,  and  their  subsequent  issuance 
thereof,  constitute  them  approved  liqui- 
dated demands  against  the  county,  which 
therefore  need  not  be  presented  to  the 
board  for  allowance  before  action  thereon, 
and  this  though  they  be  not  necrotiable. 
First  National  Bank  v.  Nye  County  (Nev.) 
1917C-1195. 

COUNTS. 

Of   indictment,   see   Indictments   and   In- 
formations, 9,  14. 
Joinder,  see  Pleading,  8. 
Separate  answer,  see  Pleading,  22. 


'     COURTS. 


241 


COURTS. 

1.  Organization,  241. 

2.  Jurisdiction,  241. 

a.  In  General,  241. 

b.  Manner  of  Questioning,  241. 

c.  Local  and  Transitory  Actions,  241. 

d.  Federal   Courts,   242. 

e.  Particular  State  Courts,  242. 

(1)  Arizona,   242. 

(2)  Connecticut,  243. 

(3)  Idaho,  243. 

(4)  Massachusetts,  243. 

(5)  North  Dakota,  243. 

f.  Conflicting     Jurisdiction     of     Civil 

and  Military  Courts,  243. 

g.  Courts-martial,   243. 

3.  Place  of  Holding,  243. 

4.  Decisions  as  Precedents,  243. 

a.  Decisions     of     Federal     Courts    i» 

State  Tribunals,  243. 

b.  SDecisions   of  State  Courts  in  Fed- 

eral  Tribunals,   244. 

c.  Decisions  of  Courts  of  Other  States, 

244. 

d.  Advisory  Opinions,  244. 

e.  Obiter  Dicta,   244. 

5.  Records,    244. 

6.  Fees,   245. 

See  Removal  of  Causes. 

Jurisdiction  in  admiralty  see  Admiralty, 
1-3. 

Jurisdiction  of  orphan's  court,  see  Adop- 
tion of  Children,  3. 

Power  to  disbar,  see  Attorneys,  45,  49. 

Disbarment  in  U.  S.  supreme  court,  see 
Attorneys,  54. 

Effect  of  disbarment  in  other  courts,  see 
Attorneys,  66. 

Power  in  construing  constitution,  see  Con- 
stitutional I,aw,  10-13,  99-109,  168- 
174,  187-190. 

Power  to  punish  for  contempt,  see  Con- 
tempt,  3,   8-14. 

Powers  in  divorce  matters,  see  Divorce,  4. 

Judicial  supervision  of  sewers,  see  Drains 
and  Sewers,  1. 

Review  of  military  jurisdiction,  see 
Habeas  Corpus,  1. 

.Jurisdiction,  see  Habeas  Corpus,  8. 

Power  to  exclude  person  from  jury  ser- 
vice, see  Jury,  13. 

Private  communication  with  jury,  see 
Jury,  31. 

Applicability  of  lis  pendens  to  federal 
courts,  see  Lis  Pendens,  2. 

.Juvenile  courts,  see  Infants,  26-38. 

Compensation  board  not  a  court,  see  Mas- 
ter and  Serrant,  117. 

Jurisdiction  over  breach  of  peace  by  mili- 
tiaman, see  Militia,  3  5-19. 

Jurisdiction  to  issue  prohibition,  see  Pro- 
hibition, 5. 

Prize  courts,  see  War,  5,  6. 

Jurisdiction  of  probate  of  wills,  see  Wills, 
114-120. 

1.     ORGANIZATION". 

1.  Courts-martial.     The  provisions  of  the 
state  constitution,  establishing  the  judici- 
16 


ary  department  of  the  state  government 
and  vesting  the  judicial  power  of  the  state 
in  certain  named  and  designated  courts, 
do  not  preclude  the  exercise,  by  the  gen- 
eral assembly,  of  <tbe  power  granted  by 
other  provisions  of  the  constitution  to 
establish,  as  an  instrumentality  of  the 
executive  department,  a  "well-regulated 
militia,"  declared  by  the  constitution  to 
be  necessary  "to  the  security  of  a  free 
state,"  to  provide  by  law  how  such  militia 
shall  be  organized  and  trained,  and  inci- 
dentally to  authorize  the  creation  of 
courts-martial  as  one  of  the  ancient  and 
recognized  methods  by  which  such  instru- 
mentality may  be  regulated  and  disci- 
plined.    State  V.  Long  (La.)*  1917B-240. 

2.     JURISDICTION, 
a.    In  General. 

2.  Extraterritorial  Jurisdiction.  A  state 
possesses  exclusive  jurisdiction  over  per- 
sons and  property  within  its  territory,  but 
it  cannot  exercise  jurisdiction  over  per- 
sons and  property  without  its  territory, 
and,  to  render  jurisdiction  of  a  state  court 
effectual,  it  is  necessary  that  the  thing  in 
controversy  or  the  parties  interested  may 
be  subjected  to  the  process  of  the  court; 
and,  where  a  nonresident  has  property  in 
a  state,  his  property  is  subject  to  valid 
claims  existing  against  him  there,  but  be- 
yond this  due  process  of  law  requires 
appearance  on  personal  service  before  he 
can  be  personally  bound  by  any  judgment. 
Flexner  v.  Farson  (111.)  1916D-810. 

3.  Action  to  Recover  Penalty.  Actions 
against  a  national  bank  for  knowingly 
charging  and  receiving  an  usurious  rate 
of  interest  may  be  maintained  in  any 
state,  county,  or  municipal  court  having 
jurisdiction  in  similar  cases  in  the  county 
or  city  in  which  such  bank  is  located. 
Farmers'  National  Bank  v.  McCoy  (Okla.) 
1916D-1243.  (Annotated.) 

Note. 

Jurisdiction  of  action  against  national 
bank  to  recover  penalty  for  taking  usuri- 
ous interest.     1916D-1246. 

b.     Manner  of  Questioning. 

4.  Jurisdiction  of  Criminal  Case.  The 
court  is  not  deprived  of  jurisdiction  be- 
cause the  information  states  only  legal 
conclusions,  as  it  may  be  cured  by  amend- 
ment, and  a  defendant  is  not  entitled  to 
habeas  corpus  on  that  ground.  Bopp  v. 
Clark  (Iowa)   1916E-417. 

c.     Local  and  Transitory  Actions. 

5.  Action  Partly  Within  Jurisdiction. 
Where  a  complaint  alleged  the  destruc- 
tion of  a  milling  plant  situated  without 
the  state  and  the  personal  property  in  and 
about  said  building  or  on  the  premises, 
although  the  plaintiff  did  not  have  a  cause 


242 


DIGEST. 

1916C— 1918B. 


of  action  in  this  state  for  the  trespass  to 
real  estate  which  occurred  prior  to  the  en- 
actment of  N.  Y.  Code  Civ.  Proc.  §  982a, 
providing  for  actions  for  damage  to  real 
estate  without  the  state,  the  action  could 
be  maintained  to  the  extent  that  it  was 
■brought  for  damage  to  personalty.  Jaco- 
bus T.  Colgate  (N.  Y.)  1917E-369. 

6.  Injury  to  Eealty  Outside  State — Ef- 
fect of  Statute.  N.  Y.  Code  Civ.  Proc. 
§  982a,  enacted  in  1913,  providing  that  an 
action  may  be  maintained  in  this  state  to 
recover  damages  for  injuries  to  real  es- 
tate without  the  state  whenever  such  ac- 
tion could  be  maintained  in  relation  to 
personal  property  without  the  state,  is  not 
retroactive,  as  it  does  not  merely  change 
the  procedure  for  the  enforcement  of  the 
right,  but  creates  a  new  cause  of  action 
and  supplies  a  remedy  by  which  a  right 
for  the  first  time  becomes  enforceable, 
and  statutes  are  to  be  construed  as  pros- 
pective unless  there  is  a  clear  expression 
of  the  legislative  purpose  to  justify  a 
retroactive  application.  Jacobus  v.  Col- 
gate (N.  Y.)  1917E-369.  (Annotated.) 

7.  Under  N.  Y.  Code  Civ.  Proc.  §  982a, 
providing  that  an  action  may  be  main- 
tained in  this  state  for  damages  for  in- 
juries to  real  estate  without  the  state,  the 
words  "whenever  such  an  action  could  be 
maintained  in  relation  to  personal  prop- 
erty without  the  state"  have  no  bearing 
upon  the  period  of  limitation,  but  mean 
that  the  jurisdiction  shall  be  the  same 
whether  the  subject-matter  is  real  estate 
or  personalty.  Jacobus  v.  Colgate  (N.  Y.) 
1917Ef-369.  (Annotated.) 

d.     Federal  Courts. 

8.  Federal  jurisdiction,  having  been  in- 
voked upon  substantial  grounds  of  federal 
law,  extends  to  the  determination  of  all 
questions  involved  in  the  case,  whether 
resting  upon  state  or  federal  law.  Louis- 
ville, etc.  E.  Co.  V.  Greene  (U.  S.)  1917E- 
97. 

9.  Though  nominal  damages  were  recov- 
erable for  the  attorneys'  failure  to  do  any- 
thing whatever,  the  declaration  neverthe- 
less failed  to  show  that  the  amount  in- 
volved gave  a  federal  court  jurisdiction, 
since,  where  the  pleadings  show  that  there 
cannot  legally  be  a  judgment  for  an 
amount  necessary  to  give  jurisdiction, 
jurisdiction  cannot  attach,  though  the 
damages  are  laid  in  the  declaration  at  a 
larger  sum.  Marvland  Casualty  Companv 
V.  Price  (Fed.)   1917B-50. 

(Annotated.) 

10.  The  jurisdiction  of  a  federal  dis- 
trict court  in  a  suit  presenting  a  federal 
question,  and  that  of  the  federal  supreme 
/ourt  on  appeal,  extends  to  the  determina- 
tion of  all  questions  involved  in  the  case, 
including  questions  of  state  law,  irrespec- 
tive of  the  disposition  that  may  be  made 


of  the  federal  question,  or  whether  it  be 
found  necessary  to  decide  it  at  all. 
Greene  v.  Louisville,  etc.  R.  Co.  (U.  S.) 
1917E-88. 

11.  Federal  Question.  A  federal  dis- 
trict court  has  jurisdiction,  irrespective 
of  the  citizenship  of  the  parties,  of  the 
controversy  presented  by  bills  which  seek 
to  enjoin  state  officers  from  taking  steps 
looking  to  the  enforcement  of  state  and 
local  taxes  upon  the  intangible  property 
of  a  public  service  corporation,  assessed 
under  state  authority,  upon  the  ground 
that  the  action  of  those  officers  in  mak- 
ing the  assessments,  and  their  threatened 
action  in  respect  of  carrying  them  into 
effect,  constitute  action  by  the  state 
which,  if  carried  out,  will  violate  U.  S. 
Const.  14th  Amend,  as  denying  the  equal 
protection  of  the  laws.  Greene  v.  Louis- 
ville, etc.  B.  Co.  (U.  S.)  1917E-88. 

e.    Particular  State  Courts. 
(1)     Arizona. 

12.  Offense  Under  Liquor  Law.  Under 
Ariz.  Civ.  Code  1913,  par.  340,  conferring 
on  the  superior  courts  original  jurisdiction 
in  all  cases  in  which  jurisdiction  is  not 
vested  by  law  in  some  other  court,  and 
paragraph  385  giving  jurisdiction  to  jus- 
tices of  the  peace  of  criminal  cases  other 
than  felonies,  where  the  punishment  is  a 
fine  not  exceeding  $300,  or  imprisonment 
in  the  county  jail  not  exceeding  six 
months,  or  both,  the  offense  created  by 
the  prohibition  amendment  to  the  consti- 
tution, making  a  person,  selling,  manufac- 
turing, or  introducing  into  the  state  in- 
toxicating liquor,  guilty  of  a  misdemeanor 
punishable  by  imprisonment  for  not  less 
than  10  days  nor  more  than  2  years  and 
by  a  fine  not  less  than  $25  and  costs  nor 
more  than  $300  and  costs,  is  within  the 
jurisdiction  of  the  superior  court.  Gherna 
V.  State  (Ariz.)  1916D-94. 

13.  Exclnsiye  or  Concurrent.  Ariz. 
Const,  art.  6,  §  9,  provides  that  the  num- 
ber of  justices  of  the  peace,  shall  be  pro- 
vided by  law,  and  that  their  jurisdiction 
shall  not  trench  on  that  of  any  court  of 
record,  except  that  they  shall  have  con- 
current jurisdiction  with  the  superior 
court  where  the  amount  of  damage  claimed 
does  not  exceed  two  hundred  dollars. 
Article  6,  §  6,  provides  that  the  superior 
court  shall  have  original  jurisdiction  in  all 
cases  in  which  the  demand  or  the  value 
of  the  property  amounts  to  $200  exclusive 
of  interest  and  costs.  The  state  sued  a 
corporation  in  the  superior  court  to  re- 
cover penalties  aggregating  $1,500  for  15 
violations  of  Laws  Ariz.  1912,  c.  50,  for- 
bidding any  corporation  operating  an  elec- 
tric light  or  power  plant  to  permit  any 
employee  about  its  plant  to  be  on  duty 
more  than  eight  hours  a  day.  Held,  that 
the  superior  court  had  jurisdiction,  al- 
though the  individual  penalty  assessed  for 


COURTS. 


243 


each  violation  was  within  tlie  jurisdic- 
tional limit  of  justice  courts,  since  to  ex- 
clude the  jurisdiction  of  the  superior  jourt 
the  grant  of  jurisdiction  to  another  ccurt 
must  be  exclusive  and  not  merely  concur- 
rent. Miami  Copper  Co.  v.  State  (Ariz.) 
1916E-494. 

(2)     Connecticut. 

14.  Enforcement    of   Foreign    Contract. 

Courts  of  Connecticut  can  enforce  only 
such  foreign  contracts  as  are  enforceable 
in  the  jurisdiction  of  their  origin.  Douth- 
wright  V.  Champlin  (Conn.)   1917E-512. 

(3)     Idaho. 

15.  Jurisdiction  of  Probate  Court.     The 

jurisdiction  of  the  probate  court  is  limited 
and  defined  by  section  21,  art.  5,  of  the 
Idaho  constitution  to  matters  of  probate, 
settlement  of  estates  of  deceased  persons, 
and  appointment  of  guardians;  also,  juris- 
diction to  hear  and  determine  civil  cases 
wherein  the  debt  or  damage  claimed  does 
not  exceed  the  sum  of  $500,  exclusive  of 
interest,  and  concurrent  jurisdiction  with 
justices  of  the  peace  in  criminal  cases. 
State  v.  Dunlap  (Idaho)   1918A-346. 

16.  Since  no  proceeding  is  pending  to 
probate  the  estate  of  the  late  E.  H.  Harri- 
man,  and  since  he  does  not  appear  to  have 
left  an  estate  in  Idaho  subject  to  settle- 
ment under  our  laws,  and  since  the  pro- 
eeeding  commenced  in  the  probate  court 
does  not  involve  the  appointment  of  a 
guardian,  nor  in  any  particular  come  with- 
in the  prescribed  limits  of  the  jurisdic- 
tion of  the  probate  court  as  defined  by 
section  21,  art.  5,  of  the  constitution,  that 

•  court  is  without  jurisdiction  to  entertain 
such  proceeding,  or  to  enter  the  judgment 
desired  by  plaintiff.  State  V.  Ihinlap 
(Idaho)  1918A-546. 

(4)  Massachusetts. 

17.  Jurisdiction  Over  Commissioners. 
As  Mass.  St.  1911,  c.  439,  §  3,  relating  to 
assessment  of  damages  for  the  erection  of 
a  bridge  makes  ample  provision  for  meet- 
ing expenditures  incurred  under  the  act, 
the  supreme  judicial  court,  which  was  em- 
powered to  appoint  commissioners  to  as- 
sess damages,  has  exclusive  jurisdiction 
over  such  officials.  Brackett  v.  Common- 
wealth  (Mass.)    1918B-863. 

(5)  North  Dakota. 

18.  Prerogative  Jurisdiction  of  Supreme 
Court.  The  prerogative  jurisdiction  of 
the  supreme  court  may  be  exercised  only 
in  cases  wherein  the  questions  involved 
are  publici  juris,  and  the  sovereignty  of 
the  state,  or  its  franchises  or  prerogatives, 
or  the  liberties  of  its  people,  are  affected; 
and  this  jurisdiction  cannot  be  exercised 
to  vindicate  or  protect  mere  private  rights 


regardless  of  their  importance.     State  v. 
Taylor  (N.  Dak.)  1918A-583. 

f.     Conflicting  Jurisdiction   of   Civil   and 
Military  Courts. 

19.  In  habeas  corpus  to  determine  juris- 
diction of  state  courts,  as  opposed  to  mili- 
tary courts,  to  try  offenses  by  members  of 
the  military,  the  fact  that  an  arrest  is 
under  a  city  ordinance  is  immaterial,  if 
the  ordinance  is  valid.  In  re  Wulzen 
(Fed.)   1917A-274. 

g.     Courts-martial. 

20.  Status  of  Courts-martlaL  While 
"courts-martial"  discharge  judicial  func- 
tions, and  are  in  a  sense  courts,  they  are 
not  within  the  meaning  of  article  84  of 
the  La.  constitution,  declaring  that  the 
judicial  power  of  the  state  shall  be  vested 
in  certain  named  courts.  State  v.  Long 
(La.)  1917B-240. 

3.    PLACE  OF  HOLDING. 

21.  Theater.  It  is  not  proper  to  ad- 
journ a  criminal  trial  for  a  capital  offense 
from  the  regular  courtroom  to  the  stage 
of  a  public  theater,  without  sufficient 
cause  for  so  doing,  the  theater  itself  being 
filled  with  people,  and  under  some  circum- 
stances may  be  so  prejudicial  to  defendant 
as  to  require  a  reversal.  Eoberts  v.  State 
(Neb.)   1917E-1040.  (Annotated.) 

Note. 

Power  of  court  to  try  case  at  place 
other  than  courthouse  or  courtroom. 
1917E-1050. 

4.     DECISIONS  AS  PRECEDENTS. 

a.  Decisions    of    Federal    Courts   in    State 
Tribunals. 

22.  The  question  whether  the  workmen's 
compensation  act  abolishes  all  other  ac- 
tions by  an  employee  injured  while  un- 
loading a  ship  in  the  navigable  waters  of 
Puget  Sound  is  a  wholly  state  question  as 
to  the  right  to  maintain  a  common-law 
action,  and  therefore  the  decision  of  the 
federal  district  court  in  another  case  as 
to  the  interpretation  of  the  act  is  not  con- 
trolling upon  the  state  court.  Shaugh- 
nessy  v.  Northland  Steamship  Co.  (Wash.) 
1918B-6o5. 

23.  A  state  court  in  deciding  a  federal 
question  must  conform  to  the  latest  de- 
cision of  the  federal  supreme  court  there- 
on, though  it  necessitates  the  reversal  of 
its  own  prior  decisions.  Albert  Pick  & 
Co.  V.  Jordan  (Cal.)   1916C-1237. 

24.  Binding  Effect  on  State  Court.  De- 
cisions of  federal  courts  arising  on  ques- 
tions depending  upon  acts  of  Congress  are 
entitled  to  weight  in  the  state  court,  if 
not  controlling.  Marinette  v.  Goodrich 
Transit  Co.  (Wis.)   1917B-935. 


244 


DIGEST. 

1916C— 1918B. 


25.  The  decisions  of  the  supreme  court 
of  the  United  States,  respecting  the 
powers  delegated  to  the  general  govern- 
ment and  those  reserved  to  the  state  gov- 
ernments, constitute  tho  "supreme  law," 
and  are  controlling  on  the  state  courts. 
Van  Winkle  v.  State  (Del.)  1916D-104. 

b.     Decisions  of  State  Courts  in  Federal 
Tribunals. 

26.  Constraction  of  Municipal  Charter. 
The  decision  of  the  highest  court  of  a 
state  that  a  certain  municipal  ordinance, 
challenged  as  repugnant  to  the  federal 
constitution,  is  within  the  scope  of  the 
powers  conferred  by  the  state  legislature 
upon  a  municipality,  is  conclusive  upon 
the  federal  supreme  court  on  writ  of  error 
to  the  state  court.  Thomas  Cusack  Co.  v. 
Chicago  (U.  S.)  1917C-594. 

27.  Method  of  Valuation.  Federal  courts 
will  follow  the  decision  of  the  highest  state 
court  of  Kentucky  that  Ky.  Stat.  §§  4077- 
4081,  governing  the  valuation  of  the  in- 
tangible property  of  an  interstate  railway 
company  for  tax  purposes,  properly  con- 
strued, require  first  an  apportionment  to 
Kentucky  of  the  proper  share  of  the  entire 
value  of  the  capital  stock,  having  regard  to 
the  relation  of  state  mileage  to  system 
mileage,  followed  by  a  deduction  from  the 
state's  proportion  of  the  capital  stock  value 
of  the  assessed  value  of  the  company's  tan- 
gible property  within  the  state,  rather 
than  a  deduction  of  the  total  tangible 
property  in  and  out  of  the  state  from  the 
total  capital  stock  value  before  apportion- 
ment to  the  state.  Louisville,  etc.  R.  Co. 
v.  Greene   (U.  S.)   1917E-97. 

(Annotated.) 

28.  Binding  Effect  on  Federal  Supreme 
Court.  The  decision  of  the  highest  court 
of  a  state  that  a  municipal  ordinance 
which  is  asserted  to  violate  the  federal 
constitution  is  within  the  city's  charter 
powers,  and  is  not  forbidden  by  the  state 
constitution,  is  conclusive  upon  the  fed- 
eral supreme  court  on  writ  of  error  to 
the  state  court.  Hadaeheck  v.  Sebastian 
(U.  S.)  1917B-927. 

29.  Scope  of  State  Statute.  The  appli- 
cation of  the  provisions  of  N.  Y.  Consol. 
Laws,  c.  31,  §  14,  against  the  employment 
of  aliens  on  public  works  to  contracts  for 
the  construction  of  subways  in  New  York 
city,  and  the  extent  to  which  they  affect 
the  corporate  rights  of  the  city  or  of  the 
subway  contractors,  are  local  questions 
not  open  for  review  in  the  federal  su- 
preme court  on  writ  of  error  to  a  state 
court.  Heim  v.  McCall  (U.  S.)  1917B- 
287. 

30.  Territorial  Judgment.  The  federal 
supreme  court  will  ordinarily  defer  to  the 
rulings  of  the  local  courts  with  respect  to 
the  validity  under  the  Hawaiian  laws  of  a 


judgment  of  the  Hawaiian  courts.  Kapio- 
lani  Estate  v.  Ateherley  (U.  S.)  1916Er- 
142. 

31.  Federal  Court  Following  State  Deci- 
sion. In  a  suit  in  a  federal  court  in- 
volving the  title  to  real  property,  if  the 
question  is  balanced  with  doubt,  the  court 
will  incline  to  an  agreement  with  a  deci- 
sion of  the  highest  court  of  the  state 
bearing  upon  it,  although  it  may  not  be 
such  as  to  create  a  rule  of  property. 
Holden  v.  Circleville  Light,  etc.  Co.  (Fed.) 
1916D-443. 

c.     Decisions   of   Courts  of   Other   States. 

32.  Jurisdiction  of  Probate  Court  — 
Ljfect  of  Lack  of  Jurisdiction,  The  pro- 
bate court  of  another  state  is  a  court  of 
limited  jurisdiction;  and,  unless  it  had 
jurisdiction,  its  proceedings,  admitting  a 
will  to  probate,  are  void  and  derive  no 
benefit  from  the  "full  faith  and  credit" 
provision  of  the  constitution.  Matter  of 
Horton  (N.  Y.)  1918A-611. 

33.  Full  Faith  and  Credit  Clause.  The 
full  faith  and  credit  clause  of  the  federal 
constitution  and  the  acts  of  Congress 
thereunder  apply  only  when  the  court 
rendering  a  judgment  had  jurisdiction 
of  the  parties  and  of  the  subject-mat- 
ter and  do  not  preclude  an  inquiry  into 
the  jurisdiction  of  the  court,  when  an 
action  is  brought  in  the  courts  of  a 
sister  state  on  the  judgment.  Flexner  t. 
Farson  (111.)  1916I>-810. 

34.  Following  Other  Jurisdictions.  The 
courts  of  a  state  may  refuse  to  follow  even 
a  consensus  of  authority  in  all  other 
states,  or  a  well-recognized  rule  of  com- 
mon law,  on  the  ground  that  it  is  not 
suited  to  the  genius  of  the  rtate  or  is 
opposed  to  its  public  policy;  the  public 
policy  of  a  state  being  shown  by  its  stat- 
utes and  decisions.  Northcut  v.  Church 
(Tenn.)  1918B-545. 

d.     Advisory  Opinions, 

35.  An  advisory  opinion  given  by  the 
justices  of  the  supreme  court  to  the  legis- 
lature is  not  the  exercise  of  a  judicial 
function,  and  has  not  the  quality  of  judi- 
cial authority.  Laughlin  t.  PorUand 
(Me.)  1916C-734. 

e.     Obiter  Dicta. 

36.  Expressions  of  the  court  in  an  opin- 
ion, which  go  beyond  the  case,  are  to  be 
respected,  but  should  not  control  the  judg- 
ment in  a  subsequent  suit  when  the  point 
is  presented  for  decision.  McCoy  v.  Hand- 
lin  (S.  Dak.)  1917A-1046. 

5.     RECORDS. 

37.  Correction  of  Record.  On  applica- 
tion to  the  lower  court  to  have  the  rec- 
ord in  that  court  corrected  so  as  to  prop- 


COVENANT— CREDITORS'  BILLS. 


245 


erly  state  what  occurred,  the  court  below 
if  satisfied  from  its  own  knowledge,  or 
from  the  eridence  adduced,  that  the 
clerk's  docket  entries  were  erroneous  or 
incomplete,  had  the  power  and  duty  to 
have  them  corrected.  Button  v.  State 
(Md.)  1916C-89. 

6.     FEES. 

38.  Payment  of  Fees  into  County  Treas- 
ury. The  proviso  in  Mo.  Rev.  St.  1909, 
5  10695,  for  the  payment  into  the  county 
treasury  of  a  part  of  the  fees  collected  by 
judges  of  probate  courts,  is  not  unconsti- 
tutional as  a  sale  of  justice  prohibited  by 
Const,  art.  2,  §  10.  Greene  County  v.  Lydy 
(Mo.)  1917C-274. 

COVENANT. 

Assignability,  see  Assignments,  10. 
Measure  of  damages  for  breach,  see  Damr 

ages,  16. 
Eunning  with  the  land,  see  Deeds,  76. 
Of  title,  see  Deeds,  77-81. 
In  leases,  see  Iiandlord  and  Tenant,  4-7, 

38. 
Renewal   by  holding  over,   see   Landlord 

and  Tenant,  49. 
For  perpetual  renewal,  see  Landlord  and 

Tenant,  50-52. 

CREDIBLE. 

Meaning,  see  Wills,  23. 

CREDIBLE  WITNESS. 

Defined,  see  Wills,  25. 

CREDIBILITY  OF  WITNESSES. 

See  Witnesses,  89-95. 
Cross-examination   to   discredit,   see   Wit- 
nesses, 75-81. 

CREDIT  INSURANCE. 
See  Insurance,  50-56. 

CREDITOR  AND  DEBTOR. 

Privileged    communications    between,    see 
Libel  and  Slander,  59. 

CREDITORS'  BILLS. 

1.  Right  to  Maintain. 

2.  Jurisdiction. 

3.  Property  Subject. 

Ten  years  to  judgment  upheld,  see  Laches. 
4. 

1.     RIGHT  TO  MAINTAIN. 

1.  Exhausting  Remedy  at  Law.  A  cred- 
itor may  resort  to  a  creditor's  suit  without 
exhausting  his  ordinary  remedy  at  law. 
Fidelitv  Mortgage  Bond  Co.  v.  Morris 
(Ala.)  '1917C-952. 


2.  Purpose  in  Issue  of  Bonds.  Where  a 
creditors'  bill  against  a  mining  corpora- 
tion alleged  that  bonds,  which  purported 
to  be  for  the  purpose  of  taking  up  out- 
standing indebtedaess,  were  in  fact  issued 
to  protect  the  company  in  the  event  of 
any  calamity,  such  as  an  explosion  in  the 
mines,  proof  that  the  holders  of  the  cor- 
porate stock  undertook,  by  various  re- 
organizations, to  exchange  their  stoek 
holdings  for  bonds  of  the  defendant  com- 
pany forms  no  basis  of  a  decree  for  com- 
plainants. Morgan  t.  Dayton  Coal,  etc. 
Co.   (Tenn.)   1917E-42. 

3.  Requisites  of  Bill.  Where  the  com- 
plainants in  a  creditors'  bill  attack  the 
validity  of  a  mortgage  and  bonds  given 
by  defendant  corporation,  the  bill  should 
set  out  facts  relied  upon  to  establish  fraud 
in  the  transaction,  and  mere  general  state- 
ments will  not  suffice.  Morgan  v.  Dayton 
Coal,  etc.  Co.  (Tenn.)  1917E-42. 

2.    JURISDICTION. 

4.  Waiver  by  Failure  to  Demur.  In  a 
creditor's  bill  to  enforce  his  claim,  brought 
on  the  theory  of  defendant's  violation  of 
the  Bulk  Sales  Act,  defendant,  by  failing 
to  demur  to  the  bill  of  complainant,  or  to 
claim  the  right  of  demurrer  in  his  answer 
on  jurisdictional  grounds,  and  by  answer- 
ing to  the  bill  on  the  merits,  and  by  tak- 
ing proofs  thereon,  waives  the  question  of 
jurisdiction,  on  the  ground  that  the  claim 
had  not  been  reduced  to  judgment.  Coffey 
V.  McGahey  (Mich.)   1916C-923. 

5.  Bankruptcy — Effect  of  Proceeding — 
Pending  Creditors'  Bill.  The  commence- 
ment of  a  bankruptcy  proceeding  against 
a  corporation,  in  which  there  has  been  no 
adjudication  of  bankruptcy  and  no  re- 
ceiver appointed,  is  insufficient  to  deprive 
the  state  court  of  jurisdiction  of  a  gen- 
eral creditors'  bill  against  the  corporation. 
Morgan  v.  Dayton  Coal,  etc.  Co.  (Tenn.) 
1917E-42. 

6.  The  objection  to  jurisdiction  of  the 
state  courts  of  a  general  creditors'  bill  be- 
cause of  commencement  of  bankruptcy 
proceedings  against  the  defendant  should 
be  presented  in  the  trial  court,  and,  if 
overruled,  an  appeal  taken  from  the  de- 
cision. Morgan  v.  Dayton  Coal,  etc  .Co. 
(Tenn.)    1917E-42. 

3.     PROPERTY  SUBJECT. 

7.  Action  to  Subject  Spendthrift  Trust — 
Necessary  Parties.  In  suit  by  the  judg- 
ment creditor  of  the  bfiueficiary  of  an  in- 
valid spendthrift  trust  to  compel  a  cor- 
poration to  transfer  to  him  stock  in  it, 
the  corpus  of  the  trust,  which  had  been 
sold  to  him  on  execution  sale,  a  party  who 
had  an  interest  in  the  trust  by  its  terms 
to  the  extent  of  a  debt  owed  her  by  the 


246 


DIGEST. 

19160— 1918B. 


beneficiary,  though,  a  proper  party,  is  not 
a  necessary  party,  since  whether  the  cred- 
itor took  the  stock  absolutely,  by  transfer 
on  the  books,  or  otherwise,  he  would  take 
it  subject  to  the  interest  of  the  party  in- 
terested in  the  trust;  she  not  being  made 
a  party  to  the  suit.  McColgan  v.  Walter 
Magee  (Cal.)   1917D-1050. 

CBIME. 
See  Criminal  Law. 
Defined,  see  Criminal  Law,  7. 
Words  imputing  crime,  see  Libel  and  Slan- 
der, 24,  25. 

CRIMINAL  CONSPEBACY. 
See  Conspiracy,  1-12. 

CRIMINAL  CONVERSATION. 

See  Husband  and  Wife,  65-74. 

CRIMINAL  LAW. 

1.  Criminal  Statutes,  247. 

a.  Stay  of  Operation  of  Statute,  247. 

2.  Jurisdiction  of  Offensei,  247.  ^ 

3.  Elements  of  Crime,  247. 

4.  Parties  to  Crime,  248. 

5.  Preliminary   Complaint   and  Examina- 

tion, 248. 

6.  Demurrer  to  Indictment,  249. 

7.  Eights  of  Accused,  249. 

a.  Right  to  Preliminary  Examination, 

249. 

b.  Time  to  Prepare  for  Trial,  249. 
e.  Right  to  Public  Trial,  249. 

d.  Right  to  be  Present  at  Trial,  250. 

e.  Right    to    Inspect     Evidence    and 

Know  Names  of  Witnesses,  250. 

f.  Arraignment  and  Plea,  250. 

g.  Right  to  Confront  Witnesses,  250. 
h.  Right  to  be  Heard  by  Counsel,  250, 

8'.  Right  of  Private  Counsel  to  Prosecute, 

251. 
9,  Election  Between  Counts,  251. 

10.  Reception  of  Evidence,  251. 

11.  Admissibility   and  SuflBciency  of  Evi- 

dence,  251. 

a.  In    General,    251. 

b.  Identity  of  Accused,  251. 

c.  Character    or    Reputation,    252. 

d.  Testimony  at  Former  Trial  or  on 

Preliminary  Hearing,  252. 

e.  Proof   of  Other  Crimes,   252. 

f.  Conduct  of  Accused,  252. 

•  g.  Sufficiency  of  Evidence,  253. 
h.  Testimonv  of  Accomplice,  253. 
i.  Alibi.  253. 

12.  Instructions,  253. 

a.  In    General,   253. 

b.  Reasonable  Doubt,  254. 

c.  Presumption  of  Innocence,  254. 

■  d.  Failure  of  Accused  to  Testify,  254. 

e.  Corroboration  of   Accomplice,  254. 

f.  Credibility    of    Accused,    254. 

g.  Circumstantial  Evidence,   255. 
h.  Capacity  of  Accused,  255. 

i.  Testimony  of  Accomplice.  255. 
j.  Good  Character  of  Accused,  255. 


13.  Conduct  and  Remarks  of  Judge,  255. 

14.  Fairness  of  Trial,  256. 

See  Admissions  and  Declarations;  Argu- 
ment and  Conduct  of  Counsel;  Bail; 
Burglary;  Confessions;  Conspiracy; 
Contempt;  Embezzlement;  Escape;  Ex- 
tradition; False  Imprisonment;  False 
Pretenses;  Fines;  Forgery;  Former 
Jeopardy;  Gaming;  Homicide;  Indict- 
ments and  Informations;  Jury,  7,  17- 
19,  21,  22,  24-27,  30,  32-34.  38.  40; 
Larceny;  Prostitution;  Perjury;  Rape; 
Recelviag  Stolen  Goods;  Robbery;  Se- 
duction; Sentence  and  Punishment; 
Sodomy;  Threats;  Verdict;  Witnesses. 

Stay  of  civil  action  pending  prosecution, 
see  Actions  and  Proceedings,  14. 

Admissions  of  co-conspirator,  see  Admis- 
sions and  Declarations,  12. 

Errors  available  without  exception  in  cap- 
ital cases,  see  Appeal  and  Error,  353. 

Appealability  of  decision  on  motion  to 
strike  judgment  see  Appeal  and  Error, 
38. 

Right  of  accused  to  sit  by  counsel,  see 
Appeal  and  Error,  211. 

Harmless  error  not  ground  for  reversal, 
see  Appeal  and  Error,  216. 

Disbarment  proceeding  not  criminal,  see 
Attorneys,  50. 

Crimes  of  auto  drivers,  see  Automobiles, 
63-67. 

Crimes  against  bankruptcy  law,  see  Bank- 
ruptcy, 30-36. 

Common  law,  adoption,  see  Common  Law, 
4,  5. 

Right  of  accused  to  public  trial,  see  Con- 
stitutional Law,  49-51. 

Liability  of  corporations  for  crime,  see 
CorporatlOKS,  21-24. 

Attempt  distinguished  from  preparation, 
see  False  Pretenses,  8. 

Entrapment  as  defense,  see  False  Pre- 
tenses, 11. 

Swearing  jury  before  and  after  arraign- 
ment, see  Former  Jeopardy,  3. 

Plea  of  jeopardy,  see  Pormer  Jeopardy, 
9-12. 

Taking  jury  to  revival  meeting,  see  Homi- 
cide, 14,  15. 

Presumptions  in  homicide,  see  Homicide, 
16. 

Admissibility  of  evidence,  see  Homicide, 
17. 

Weight  and  sufficiency  of  evidence,  see 
Homicide,  49-59. 

Instructions,  see  Homicide,  60-72. 

Character  of  proceedings  in  juvenile 
courts,  see  Infants,  29. 

Restraining  enforcement  of  statute,  see 
Injunctions,  13-21. 

Restraining  criminal  prosecution,  see  In- 
junctions, 32-34. 

Restraining  criminal  acts,  see  Injunctions, 
35. 

Responsibility  of  insane  persons,  see  In- 
sanity, 19-24. 


CRIMINAL  LAW. 


247 


Prosecutions  under  liquor  laws,  see  In- 
toxicating Liquors,  88-109. 

Conviction  as  bar  to  civil  action,  see  Judg- 
ments, 72. 

Conspiracy  to  rafse  prices,  see  Monopolies, 
8. 

Violations  of  ordinances,  see  Municipal 
Corporations,  101-105. 

Parties,  see  Robbery,  3. 

Offenses  against  Sunday  laws,  see  Sundays 
and  Holidays,  10. 

Direction  of  conviction,  see  Verdicts,  27. 

1.     CRIMINAL  STATUTE®. 
a.     Stay  of  Operation  of  Statute. 

1.  Held,  the  rule  announced  being  eon- 
fined  strictly  to  a  criminal  case,  that  to 
convict  a  defendant  for  an  offense  com- 
mitted after  a  decision  of  the  court  hold- 
ing a  criminal  statute  not  applicable  to 
the  facts,  and  before  its  reversal  in  a  sub- 
sequent decision,  would  be  to  violate  the 
constitutional  provisions  against  the  in- 
fliction of  cruel  and  unusual  punishments. 
State  V.  Longino   (Miss.)   1916E-371. 

(Annotated.) 

2.  Effect  of  Decision  Subsequently  Over- 
ruled. Miss.  Code  1906,  §  1169,  provides 
that  it  shall  be  a  criminal  offense  for  the 
president,  cashier,  teller,  etc.,  conducting 
the  business  of  receiving  on  deposit  money, 
etc.,  to  receive  any  deposit  while  knowing 
the  institution  is  insolvent.  The  statute 
was  judicially  declared  not  to  apply  to 
certain  acts,  but  subsequently  the  ruling 
of  the  court  was  reversed  and  such  acts 
held  a  criminal  offense  under  the  statute. 
Between  the  two  decisions  defendants  com- 
mitted such  acts.  Held,  that  a  holding  by 
the  court  whether  a  criminal  statute  is,  or 
is  not,  applicable  to  a  particular  state  of 
facts  is  within  the  spirit  of  the  constitu- 
tional prohibition  against  the  passage  of 
ex  post  facto  laws,  the  decision  of  a  court 
in  construing  a  statute  being  as  much  a 
part  of  the  law  of  the  land  as  a  legis- 
lative enactment,  unlike  their  decisions  re- 
lating to  the  common  law,  which  are  mere 
evidence  of  the  law,  and  that  no  convic- 
tion may  be  had  under  the  statute  in  ques- 
tion for  violation  committed  between  the 
first  and  second  decisions  of  the  court. 
State  v.  Longino  (Miss.)  1916E-371. 

(Annotated.) 
Note. 
Criminality  of  act   committed   after   de- 
cision holding  statute  inapplicable  and  be- 
fore reversal  of  decision.     1916E-373. 

2.  JURISDICTION   OF   OFFENSES. 

3.  Offense  Committed  Partly  In  One 
State  and  Partly  in  Another.  Under  the 
provision  of  N.  Y.  Penal  Law  (Consol. 
Laws,  c.  40),  §  1930,  that  a  person  who 
commits  within  the  state  any  crime,  in 
whole  or  in  part,  is  liable  to  punishment 


within  the  state,  it  is  not  necessary  to 
jurisdiction  of  the  New  York  courts  over 
a  prosecution  for  obtaining  money  by  false 
pretenses,  based  on  acts  committed  partly 
in  another  state,  that  the  transaction 
should  constitute  a  crime  under  the  law 
of  the  foreign  state  where  part  of  the  acts 
are  committed;  it  being  sufficient  that  the 
transaction  would  be  a  crime  under  the 
law  of  New  Ybrk  if  committed  entirely 
within  this  state.  People  v.  Zayas  (N.  Y.) 
1917E^309.  (Annotated.) 

4,  Concurrent  Jurisdiction  of  Boundary 
Waters — Offenses — Identity  of  Prohibition. 
Where  defendant  was  convicted  of  fishing 
for  salmon  in  the  Columbia  river  without 
a  license,  under  Ore.  L.  O.  L.  §  5298,  de- 
nouncing such  an  offense  committed  in  any 
of  the  waters  of  the  state,  and  where  the 
statutory  provisions  of  the  state  of  Wash- 
ington, on  the  same  point,  in  the  exercise 
of  its  concurrent  jurisdiction  with  Oregon 
over  the  Columbia  river,  contain  prac- 
tically the  same  provisions,  the  emphasis 
being  upon  the  fact  of  fishing  without  a 
license,  conviction  here  is  proper  under 
the  federal  rule  that,  in  cases  of  concur- 
rent jurisdiction,  the  statutory  provisions 
of  the  two  states  must  be  practically  iden- 
tical to  have  a  conviction  in  either.  State 
V.  Catholic  (Ore.)  1917B-913, 

(Annotated.) 

Note. 

Jurisdiction  to  try  prisoner  forcibly  or 
unlawfully  brought  within  jurisdiction. 
1917D-229. 


3.     ELEMENTS  OF  CRIME. 

5.  Criminal  Law  —  Distinction  Between 
Felony  and  Misdemeanor.  Under  Md. 
Code  Pub.  Gen.  Laws  1904,  art.  27,  §  17, 
providing  the  punishment  for  an  assault 
with  intent  to  rape,  such  offense  is  a  mis- 
demeanor, though  punishable,  in  the  dis- 
cretion of  the  court,  with  death  or  im- 
prisonment in  the  penitentiary  for  20 
years,  and  not  a  "felony,"  since  the  fact 
that  a  crime  is  punishable  in  the  peniten- 
tiary or  is  infamous  does  not  make  it  a 
felony,  and  is  not  even  an  "infamous 
crime,"  which  depends  on  the  character 
of  the  crime,  and  not  upon  the  nature  of 
the  punishment;  and  hence  it  is  not  neces- 
sary that  accused  shall  be  arraigned.  Dut- 
ton  V.  State  (Md.)  1916C-89. 

6.  Under  Ariz.  Pen.  Code  1913,  §§  16,  17, 
dividing  crimes  into  felonies  and  mis- 
demeanors, defining  a  felony  as  a  crime 
punishable  by  death  or  imprisonment  in 
the  state  prison,  and  every  other  crime  as 
a  misdemeanor,  the  place  of  punishment 
fixes  the  grade  of  the  crime,  and  the  im- 
prisonment for  a  misdemeanor  must  be 
in  the  county  jail,  and,  the  prohibition 
amendment  declaring  a  violation  thereof,  a 
misdemeanor  fixes  the  county  jail  as  the 


248 


DIGEST. 

1916C— 1918B. 


place   of  imprisonment.     Gherna  ▼.  State 
(Ariz.)   1916D-94. 

7.  What  Constitutes  Crime.  The  hiring 
of  a  school  teacher  at  les3  than  the  mini- 
mum wage,  in  violation  of  Iowa  Acts  35th 
Gen.  Assem.  c.  249,  section  4  of  which  pro- 
vides that  any  school  officer  violating  the 
act  shall  be  fined  from  $25  to  $100,  is  a 
"crime"  within  Code,  §  5092,  defining  a 
"crime"  as  an  act  committed  in  violation 
of  a  public  law  forbidding  it,  and  is  triable 
as  a  "misdemeanor"  under  Code,  §§  5093, 
5094,  declaring  a  "felony"  to  be  a  public 
offense  punishable  by  imprisonment  in  the 
penitentiary,  and  every  other  public  of- 
fense a  "misdemeanor,"  and  section  4905, 
further  defining  a  "misdemeanor"  as  the 
doing  of  any  act  prohibited  by  a  statute 
which  provides  no  penalty,  it  not  being 
essential  that  the  statute  declare  that  its 
violation  shall  be  a  crime  and  the  col- 
lection of  the  fine  by  civil  action  being 
impossible  until  the  amount  is  determined 
in  a  criminal  prosecution,  section  5095  for- 
bidding punishment  for  a  public  offense 
except  upon  legal  conviction.  Bopp  v. 
Clark  (Iowa)   1916E-417. 

8.  Intent — When  EssentiaL  Under  the 
rule  that,  when  an  act  forbidden  by  law 
is  intentionally  done,  the  intent  to  do  the 
act  is  the  criminal  intent  which  makes 
the  offense,  the  intent  of  milk  dealers  en- 
tering into  an  unlawful  combination  to 
raise  the  price  is  immaterial  in  determin- 
ing their  guilt  of  a  common-law  conspiracy 
to  raise  the  price.  State  v.  Craft  (N.  Car.) 
1917B-1013. 

9.  Enticem^it  as  Defease.  In  a  prose- 
cution for  conspiring  to  demand  money 
wherewith  corruptly  to  influence  a  city 
council,  the  defense  generally  available, 
where  infringement  of  a  property  right  is 
charged,  that  defendants  were  enticed  to 
the  commission  of  the  crime,  thus  nega- 
tiving want  of  consent,  an  essential  ele- 
ment, is  not  applicable,  since  the  public, 
the  injured  party,  had  not  consented. 
Hummelshime  v.  State  (Md.)   1917E-1072. 

Notes. 

Eesponsibility  of  deaf  and  dumb  persons 
for  crime.     1917B-240. 

Inducement  to  commit  offense  with  view 
to  proseciition  therefor  as  defense  to  such 
prosecution.     1916C-730. 

4.     PARTIES  TO  CRIME. 

10.  Principal  in  Second  Degree.  Under 
Cr.  Code  (Act  March  4,  1909,  c.  321,  35 
Stat.  1152  [Fed.  St.  Ann.  1909  Supp.  p. 
495]),  §332,  providing  that  all  aiders  or 
abettors  of  any  crime  are  principals,  where 
defendant  was  charged  with  knowingly  and 
fraudulently  aiding  and  abetting  a  bank- 
rupt corporation,  of  which  he  was  presi- 
dent and  general  manager,  to  conceal  its 


assets  from  its  trustee,  it  is  not  necessary 
that  the  corporation  should  be  first  con- 
victed before  the  conviction  of  accused. 
Kaufman  v.  United  States  (Fed.)  1916C- 
466. 

5.     PRELIMINARY    COMPLAINT    AND 
EXAMINATION. 

11.  Waiver  of  Examination.  Utak 
Const,  art.  1,  §  13,  provides  that  offenses 
heretofore  required  to  be  prosecuted  by 
indictment  shall  be  prosecuted  by  informa- 
tion after  examination  and  commitment 
by  a  magistrate,  unless  the  examination 
be  waived  by  accused,  with  the  consent  of 
the  state.  Utah  Comp.  Laws  1907,  §  4670, 
which  was  in  force  before  the  adoption  of 
the  constitution,  provides  that  the  testi- 
mony of  each  witness  in  cases  of  homicide 
must  be  reduced  to  writing  as  a  deposition 
by  the  magistrate,  or  under  his  direction. 
Held  that,  where  accused  with  the  consent 
of  the  state  waived  the  preliminary  exam- 
ination, he  must  be  held  to  have  waived 
the  necessity  of  the  magistrate's  hearing 
any  testimony  as  to  the  charge  against 
him,  so  that  there  was  no  testimony  to  be 
heard  or  reduced  to  writing.  State  t. 
Mewhinney  (Utah)  1916C-537. 

12.  Presumption  Supporting  Acts  of 
Magistrate.  In  the  absence  of  any  show- 
ing to  the  contrary,  it  mart  be  presumed 
that  the  examining  magistrate  performed 
the  duty,  imposed  on  him  by  statute,  to 
warn*  one  accused  of  crime  of  his  right  to 
the  assistance  of  an  attorney.  State  v. 
Mewhinney  (Utah)  1916C-537. 

13.  Ordering  New  Complaint  Filed. 
Where  on  a  preliminary  examination  it  de- 
velops that  the  crime  charged  in  the  com- 
Tilaint  has  not  been  committed,  but  that 
some  other  crime  has  probably  been  com- 
mitted, the  magistrate  may  direct  the 
county  attorney  to  prepare  a  new  com- 
plaint and  direct  the  rearrest  of  accused 
and  give  him  opportunity  to  either  waive 
or  insist  on  an  examination  on  the  new 
charge.     State  v.  Pay   (Utah)    1917E-173. 

14.  Preliminary  Complaint.  The  com- 
plaint need  not  state  the  offense  charged 
in  technical  language,  nor  in  such  specific 
terms  as  is  required  in  an  information,  and 
is  sufficient  where  the  jurisdictional  facts 
appear  and  the  crime  is  stated  in  ordinary 
language.     State  v.  Pay  (Utah)  1917E-173. 

15.  Preliminary  Examination.  Under 
Utah  Const,  art.  1,  §  13,  providing  for  the 
prosecution  of  offenses  by  information 
after  examination  and  commitment  by  a 
magistrate,  and  Utah  Comp.  Laws  1907, 
§§  4604,  4610,  4615,  defining  a  criminal  com- 
plaint and  prescribing  its  requisite,  and 
sections  4657  and  4665,  authorizing  the 
issuance  of  a  warrant  and  requiring  the 
magistrate  to  read  to  accused  the  com- 
plaint before  proceeding  with   the  exam- 


CRIMINAL  LAW. 


249 


ination,  and  sections  4675  and  4692,  declar- 
ing where  it  appears  from  the  examination 
that  a  public  offense  has  been  committed, 
and  that  there  is  sufBcient  cause  to  be- 
lieve accused  guilty,  the  magistrate  must 
hold  him  for  trial,  and  that  where  one  has 
been  examined  and  committed  the  district 
attorney  must  file  an  information  charging 
the  offense  for  which  accused  is  held  to 
answer,  or  any  other  offense  disclosed  by 
the  testimony,  whether  charged  in  the  com- 
plaint or  not,  a  criminal  prosecution  must 
be  begun  by  a  complaint  containing  the 
statutory  requisite,  and  accused  can  only 
be  held  for  trial  after  a  preliminary  exam- 
ination for  the  crime  charged  in  the  com- 
plaint or  one  included  therein.  State  v. 
Pay  (Utah)  1917E-173. 

e.     DEMURRER  TO  INDICTMENT. 

16.  Questions  Baised  by  Demurrer.  By 
direct  provision  of  Iowa  Code,  §  5328,  de- 
murrer can  present  only  the  questions 
whether  the  indictment  substantially  con- 
forms to  code  requirements,  and  whether  it 
pleads  facts  constituting  a  legal  defense  to 
the  prosecution.  State  t.  McAninch 
(Iowa)   1918A-559. 

17.  Objection   on  Ground  of  Duplicity. 

Duplicity  in  an  indictment  is  not  reached 
by  demurrer.  State  t.  McAninch  (Iowa) 
1918A-55&. 

7.     EIGHTS  OF  ACCUSED. 
a.     Right  to  Preliminary  Examination. 

18.  The  right  of  accused  to  a  pre- 
liminary examination  is  a  substantial  one 
and  refers  to  the  charge  stated  in  the 
complaint.  State  v.  Pay  (Utah)  1917E- 
173. 

19.  Accused  may  waive  his  right  to  a 
preliminary  examination.  State  v.  Pay 
(Utah)  1917E-173.  (Annotated.) 

20.  Notwithstanding  Laws  Wis.  1905,  c. 
63,  amending  Laws  of  1899,  c.  218,  so  as  to 
give  the  district  court  concurrent  jurisdic- 
tion with  the  municipal  court  of  offenses 
arising  within  the  county  of  Milwaukee 
the  punishment  of  which  does  not  exceed 
one  year's  imprisonment  or  a  fine  of  $500, 
or  both,  no  preliminary  examination  is  re- 
quired for  minor  offenses,  where  the  exam- 
ining magistrate  has  jurisdiction  to  try  de- 
fendant for  the  offense  charged.  State  ▼. 
Solomon  (Wis.)   1916E-309. 

(Annotated.) 

21.  The  right  to  a  preliminary  examina- 
tion is  entirely  statutory;  the  procef'ding 
being  unknown  at  common  law.  State  v. 
Solomon  (Wis.)  1916E-309. 

(Annotated.) 

22.  St.  Wis.  1911,  §  4781  et  seq.  giving 
to  persons  charged  with  offenses  not  triable 
before  a  justice  of  the  peace,  the  right  to  a 


preliminary  examination,  do  not  give  such 
right  to  one  charged  with  an  offense,  the 
exclusive  jurisdiction  to  try  which  was 
given  to  the  district  court  by  Laws  1899, 
c,  218,  §  5,  and  the  exclusive  jurisdiction 
to  hold  a  preliminary  examination  for 
whien  was  given  to  the  same  court  by 
Laws  190-5,  c.  63,  since  the  statutory  scheme 
for  preliminary  examinations  contemplates 
that  they  be  held  in  a  separate  court  from 
the  one  which  has  jurisdiction  to  try  the 
ease.     State  v.  Solomon  (Wis.)  1916E-309. 

(Annotated.) 
Notes. 

Right  of  accused  person  to  preliminary 
examination.     1916E-312. 

Waiver  of  preliminary  examination  by 
accused  person.     1917E-179. 

b.     Time  to  Prepare  for  Trial. 

23.  Fixing  Date  of  Trial.  The  part  of 
an  order  transferring  a  criminal  case  from 
one  district  court  to  another  which  assigns 
the  cause  for  trial  on  a  designated  future 
date,  though  not  binding  on  the  district 
court  to  which  the  case  is  transferred,  is 
not  prejudicial  to  accused  who  thereby  ob- 
tained notice  that  the  cause  will  likely  be 
called  for  trial  on  the  date  fixed,  and  he 
cannot  complaint  because  the  trial  pro- 
ceeded on  that  date  without  showing  that 
he  did  not  have  time  in  which  to  prepare 
his  defense.  State  T.  Giudice  (Iowa) 
1917C-1160. 

24.  Information  and  Trial  at  Same  Term. 
Comp.  Laws  N.  Dak.  1913,  §  10628,  provides 
that,  during  each  term  of  the  district  court 
at  which  a  grand  jury  has  not  been  sum- 
moned, the  state's  attorney  shall  file  in- 
formation against  all  persons  accused  of 
having  committed  a  crime  or  public  offense, 
and  authorizes  the  filing  of  such  an  infor- 
mation and  the  trial  of  the  defendant  at 
such  term,  even  though  the  preliminary  ex- 
amination was  held  during  such  term  of 
the  court,  provided  that  a  reasonable  time 
and  opportunity  is  afforded  for  the  prep- 
aration of  his  defense.  State  r.  Kilmer 
(N.  Dak.)  1917E-116. 

c.     Right   to  Public  Trial. 

25.  Exclusion  of  Public.  In  determining 
whether  any  part  of  the  public  shall  be  ex- 
cluded from  the  trial  of  a  criminal  case 
the  trial  court  is  allowed  some  discretion, 
and  no  exclusion  should  be  permitted  which 
might  injuriously  and  improperly  affect  the 
prisoner,  and  under  no  circumstances  should 
a  trial  be  so  conducted  as  to  have  the  ap- 
pearance of  a  star  chamber  proceeding;  and 
hence  the  trial  of  a  charge  of  assault  with 
intent  to  rape,  held  by  the  court  in  the 
petit  jury  room  instead  of  the  courtroom, 
and  with  the  consent  of  defendant's  attor- 
ney, where  it  docs  not  appear  that  any  one 
whom  defendant  or  his  attorney  desired  to 


250 


DIGEST. 

19160— 1918B. 


be  present  was  excluded,  is  not  a  depriva- 
tion of  defendant's  rights.  Dutton  v.  State 
(Md.)  1916C-89. 

26.  In  a  criminal  prosecution,  the  court 
made  an  order  that  on  account  of  the  na- 
ture of  the  case  the  bailififs  should  not  ad- 
mit any  members  of  the  public  who  were 
not  already  in  the  courtroom,  and  that  per- 
sons then  in  the  courtroom  could  not  leave 
and  return.  The  court  excepted  newspaper 
men  andk  attorneys.  It  is  held  that  the 
court  could  not,  under  Mont.  Const,  art.  3, 
§  16,  exclude  all  members  of  the  public  on 
account  of  the  nature  of  the  case.  State 
V.  Keeler  (Mont.)   1917E-619. 

(Annotated.) 

27.  Wiat  Constitutes.  The  statute  re- 
quires criminal  trials  to  be  held  in  the 
courtroom  provided  by  the  county  board. 
Neb.  Rev.  St.  1913,  §  1162.  The  law  re- 
quires that  trials  be  public,  but  this  re- 
quirement is  satisfied  by  admitting  those 
who  could  conveniently  be  accommodated 
in  the  courtroom,  where  the  law  requires 
such  trials  to  be  held,  without  interrupting 
the  calm  and  orderly  course  of  justice. 
Roberts  v.  State  (Neb.)  1917E-1040. 

28.  Public  Trials  Under  Mont.  Const, 
art.  3,  §  16,  declaring  that  in  all  criminal 
prosecutions  accused  shall  have  the  right 
to  a  public  trial,  there  is  a  presumption  of 
prejudice  where  accused  shows  that  he  was 
denied  a  public  trial.  State  v.  Keeler 
(Mont.)   1917E-619.  (Annotated.) 

Note. 
Right  of  criminal  court  to  exclude  per- 
sons from  courtroom.     1917E-625. 


d-     Right  to  be  Present  at  Trial. 

29.  Proceedings  In  Absence  of  Accused. 
In  a  prosecution  for  libel,  the  action  of 
the  court,  during  one  of  the  adjournments 
of  the  trial  and  in  the  absence  of  defend- 
ant, in  addressing  all  of  the  jurors  in  at- 
tendance upon  the  court  touching  a  matter 
foreign  to  defendant's  case,  was  not  error. 
State  V.  Haflfer  (Wash.)  1917E-229. 

e.     Right  to  Inspect  Evidence  and  Know 
Names  of  Witnesses. 

30.  Witness  not  Indorsed  on  Informa- 
tion. A  witness  whose  name  is  not  in- 
dorsed on  the  information  may  be  exam- 
ined on  behalf  of  the  state  in  a  criminal 
prosecution,  where  it  is  shown  that  the 
attorney  for  the  defendant  was  given  due 
notice  of  the  state's  intention  to  call  such 
witness,  and  when,  prior  to  the  filing  of 
the  information,  the  prosecution,  though  it 
was  aware  that  such  witness  had  some 
knowledge  of  the  occurrence,  had  no  knowl- 
edge that  his  testimony  would  be  in  any 
way  material  to  the  issues.  State  t.  Kil- 
mer (N.  Dak.)   1917E-116. 


f.     Arraignment  and  Plea. 

31.  Necessity  of  Presence  of  Counsel. 
Where  defendant's  counsel  was  granted 
ten  minutes  to  confer  with  witnesses,  and 
could  not  be  found  at  the  expiration  of 
twenty-five  minutes,  whereupon  the  court 
proceeded  to  arraign  the  defendant,  who 
was  present,  and  whose  counsel  returned 
during  the  reading  of  the  indictment  and 
entered  a  plea  of  not  guilty,  the  absence 
of  counsel  does  not  render  the  arraignment 
erroneous.  Mason  r.  State  (Tex.)  1917D- 
1094. 

32.  Waiver.  Failure  to  arraign  a  de- 
fendant formally  is  not  a  fatal  objection, 
where  such  defendant  was  present  in  court 
and  testified  as  a  witness  upon  his  trial 
in  his  own  behalf,  and  was  represented  by 
counsel,  and  no  objection  is  interposed  to 
proceeding  with  the  trial  without  such  ar- 
raignment. State  V.  Klasner  (N.  Mex.) 
1917D-824.  (Annotated.) 

Note. 

Waiver  of  arraignment  in  criminal  case. 
1917D-829. 

g.     Right  to  Confront  Witnesses. 

33.  Private    Examination    of    Witness. 

Under  Md.  Declaration  of  Rights,  art.  21, 
providing  that  in  all  criminal  prosecutions 
every  one  has  the  right  to  be  confronted 
with  the  witnesses  against  him,  the  exam- 
ination of  the  prosecutrix  in  a  trial  for  as- 
sault with  intent  to  rape  by  the  court  out 
of  the  presence  of  the  defendant,  except 
as  he  was  called  to  the  door  for  identifi- 
cation, is  a  deprivation  of  right  and  re- 
versible error.  Dutton  v.  State  (Md.) 
1916C-89. 

34.  Confrontation  of  Witnesses.  The 
constitutional  right  of  confrontation  is 
satisfied  when  the  advantage  of  seeing  the 
witness  face  to  face  and  the  opportunity 
to  cross-examine  him  has  once  been  ac- 
corded the  accused.  Territory  v.  Curran 
(Hawaii)   1918A-234. 

h.    Right  to  be  Heard  by  Counsel. 

35.  Bight  to  Appear  by  Counsel  at  In- 
quest. A  coroner's  inquest  is  merely  a 
preliminary  investigation  and  not  a  trial 
involving  the  merits,  and  a  suspected  per- 
son has  no  right  to  appear  by  counsel  and 
cross-examine  the  witnesses,  as  the  only 
object  of  such  a  course  would  be  to  prevent 
a  full'  investigation,  in  so  far  as  it  might 
tend  to  incriminate  him,  thus  defeating  the 
purpose  of  the  inquest.  State  t.  GriflSn 
(S.  Car.)   1916D-392.  (Annotated.) 

36.  Waiver  of  Rights.  The  transcript  of 
the  proceedings  before  an  examining  mag- 
istrate, affirmatively  showing  that  the  de- 
fendant "waived  the  service  of  an  attor- 
ney," shows  that  defendant  was  apprised 


CRIMINAL  LAW. 


251 


of   his    right    to   such    services.     State   t. 
Mewhinney  (Utah)  1916C-537. 

Notes. 
Eight    of    accused   or    suspected    person 
to  appear  by  counsel  at  coroner's  inquest. 
1916D-394. 

Eight  of  accused  to  consult  with  or  sit 
by  counsel  during  trial.     1916D-204. 

8.     EIGHT  OF  PEIVATE  COUNSEL  TO 
PEOSECUTE. 

37.  Right  of  Private  Counsel  to  Assist 
Prosecution.  A  member  of  the  bar  pri- 
vately employed  by  citizens  interested  in 
the  suppression  of  crime  may,  with  the  con- 
sent of  the  state  attorney  and  the  court, 
be  permitted  to  participate  in  the  prose- 
cution of  a  criminal  cause  in  the  circuit 
courts  of  this  state,  as  assistant  to  the 
state  attorney.  Bobinson  v.  State  (Ma.) 
1917D-O06.  (Annotated.) 

Note. 
Eight  of  private  counsel  to  assist  prose- 
cution in  criminal  case.     1917D-512. 

9.     ELECTION  BETWEEN  COUNTS. 

38.  Eequirlng  Election.  Although  it  may 
be  the  general  rule  in  the  case  of  a  felony 
that  the  court  will  permit  the  prosecution 
to  give  evidence  of  only  one  felonious 
transaction,  it  is  also  the  rule  that  when 
it  appears  on  the  opening  of  the  case  and 
during  the  trial  that  there  is  no  more  than 
one  criminal  transaction  involved,  and  the 
joinder  of  the  different  counts  is  meant 
only  to  meet  the  various  aspects  in  which 
the  evidence  may  present  itself,  the  court 
will  not  restrict  the  prosecuting  oflScer  to 
particular  counts,  and  will  suffer  a  general 
verdict  to  be  taken  on  the  whole.  State 
v.  Bickford  (N.  Dak.)  1916D-140. 

10.     EECEPTION  OF  EVIDENCE. 

39.  Order  of  Proof.  The  order  of  proof 
upon  the  trial  of  a  cause  is  largely  within 
the  control  of  the  trial  judge,  and  his  dis- 
cretion must  largely  control.  State  v. 
Bickford   (N.  Dak.)   1916D-140. 

40.  The  order  in  which  evidence  will  be 
introduced  is  in  the  discretion  of  the  trial 
judge.  People  v.  Becker  (Kan.)  1917A- 
60l>. 

11.     ADMISSIBILITY       AND        SUFFI- 
CIENCY OF  EVIDENCE. 

(a)     In  General. 

41.  That  Witness  not  Called  was  in  Pay 
of  District  Attorney.  Defendant  cannot 
complain  that  he  was  not  allowed  to  show 
that  a  witness  for  the  state  on  the  first 
trial,  who  denied  his  testimony  on  motion 
for  new  trial,  and  who  did  not  testify  at 
the  second  trial,  but  who  immediately 
prior    to    the    last    trial    was    within     the 


jurisdiction  of  the  court,  was  in  the  pay 
and  under  the  control  of  the  district  at- 
torney. People  v.  Becker  (Kan.)  1917A- 
600. 

42.  Order  of  Proof.  It  is  not  error  to 
admit  ^cts  and  declarations  of  conspirators 
in  evidence  before  all  proof  as  to  con- 
spiracy is  in;  the  court  charging  that  the 
evidence  was  only  admissible  in  case  con- 
spiracy was  shown.  People  t.  Becker 
(Kan.)    1917A-600. 

43.  Statement  of  Prosecuting  Attorney. 
In  a  criminal  prosecution,  evidence  that 
the  state's  attorney,  after  first  hearing  the 
prosecuting  witness'  story,  stated  that 
there  was  no  ground  upon  which  to  arrest 
the  defendant,  is  irrelevant,  and  should 
not  be  permitted  to  go  to  the  jury.  Big- 
gins V.  State  (Md.)  1916E-1117. 

44.  Negative  Evidence.  Such  evidence 
is  incompetent,  because  purely  negative  in 
character,  and  designed  merely  to  show 
that  the  detective  had  been  unable  to  dis- 
cover evidence  of  the  defendant's  guilt. 
People  V.  Eoach  (N.  Y.)   1917A-410. 

45.  Corroborative  Eivldence.  Evidence 
that  tracks  were  found  leading  to  the  place 
where  the  cow  was  killed  is  also  admissible 
as  tending  to  corroborate  the  testimony  of 
the  prosecuting  witness.  Lee  v.  State 
(Ariz.)    1917B-131. 

46.  Admission  of  Guilt  by  Third  Person. 
Evidence  of  declaration  of  third  person, 
tending  to  show  he  committed  the  homi- 
cide, is  inadmissible.  State  v.  Farnam 
(Ore.)  1918A-318. 

b.    Identity  of  Accused. 

47.  Identification  of  Accused  Sufficient. 

In  trial  for  assault  with  intent  to  rob, 
evidence  by  the  assaulted  party  that  while 
he  was  driving  home,  about  eleven  o'clock 
at  night,  accused  climbed  on  the  back  of 
his  wagon  and  pulled  him  back,  turning 
over  the  seat,  and  snatched  out  of  his 
pocket  a  pocket-book  containing  money, 
and  that  he  looked  accused  square  in  the 
face  and  recognized  him  in  moonlight,  al- 
though combated  by  evidence  of  accused 
that  the  assaulted  party  was  under  the 
influence  of  liquor,  was  sufficient  to  sup- 
port verdict  based  on  identification  of 
accused.  Gordon  v.  State  (Ark.)  1918A- 
419. 

48'.  As  to  Identity  of  Accused.  The 
identity  of  one  charged  with  crime  may  be 
established  by  natural  and  reasonable  in- 
ferences deducible  from  proven  facts,  and 
may  rest  wholly  on  circumstantial  evi- 
dence.    In  re  Hilton  (Utah)  1918A-271. 

Notes. 

Finger  prints.     1917A-417. 

Admissibility  in  criminal  case  of  evi- 
dence obtained  by  requiring  defendant  to 
furnish  shoe  to  compare  with  footprint. 
1917D-237. 


252 


DIGEST. 

1916C— 1918B. 


c.     Character  or  Reputation. 


49.  Good  Character  of  Accused.  In  a 
prosecution  for  receiving  the  earnings  of 
a  common  prostitute,  testimony  that  ac- 
cused, a  police  officer,  enjoyed  a  good  repu- 
tation for  being  a  faithful  officer  is  prop- 
erly excluded,  not  being  material  to  the 
offense  charged.  State  v.  Schuman 
(Wash.)  1918A-633. 

50.  Where  the  reputation  for  truth  and 
veracity  of  one  accused  of  crime  was  not 
questioned  by  the  state  and  the  crime 
did  not  involve  his  reputation  for  truth  he 
cannot  introduce  evidence  thereof.  State 
V.  Schuman  (Wash.)  1918A-633. 

d.     Testimony  at  Former  Trial  or  on  Pre- 
liminary Hearing, 

51.  Testimony  at  Former  Trial.  Ore. 
L.  O.  L.  §  1533,  makes  the  rules  of  evi- 
dence in  criminal  cases  the  same  as  in 
civil  cases,  except  as  otherwise  specially 
provided.  Section  727  authorizes  the  tes- 
timony of  a  witness  deceased  or  out  of 
the  state  or  unable  to  testify,  given  in 
a  former  action,  suit,  or  proceeding  be- 
tween the  same  parties,  relating  to  the 
same  matter,  to  be  received.  Const,  art. 
1,  §  11,  guarantees  the  accused  the  right 
to  meet  the  witnesses  face  to  face.  Held, 
that  testimony  of  witnesses  out  of  the 
«tate  given  at  a  former  trial  in  a  prosecu- 

'tion  for  larceny,  the  witnesses  then  being 
ffu;e  to  face  with  accused,  is  admissible,  so 
far  as  relevant,  in  a  subsequent  prosecu- 
tion of  the  same  defendant  for  polygamy. 
State  v.  Von  Klein  (Ore.)  1916C-1054. 

52.  The  rule  excluding  the  testimony 
given  by  a  witness  at  a  former  trial,  if 
the  deposition  could  have  been  taken,  is 
more  strict  in  criminal  than  in  civil  cases. 
Levi  ▼.  State  (Ind.)  1917A-654. 

(Annotated.) 

53.  The  showing  that  witnesses  who 
testified  at  a  former  trial  of  a  criminal 
ease  were  nonresidents  at  that  time  and 
had  been  ever  since,  that  the  prosecuting 
attorney  knew  where  they  were  residing, 
but  the  only  effort  made  to  procure  their 
attendance  was  the  issuance  of  subpoenas, 
that  the  deposition  of  one  of  the  witnesses 
was  taken  with  the  defendant's  consent, 
but  no  effort  was  made  to  procure  the 
deposition  of  the  others,  and  no  showing 
was  made  that  the  testimony  of  such  wit- 
nesses was  necessary,  or  that  it  could  not 
be  readily  procured  through  other  wit- 
nesses, was  not  a  sufficient  showing  to 
authorize  the  court,  in  the  exercise  of  its 
discretion,  to  admit  the  former  testimony 
of  such  witnesses.  Levi  v.  State  (Ind.) 
1917A-654.  (Annotated.) 

54.  Testimony  given  at  a  former  trial 
is  admissible  at  a  subsequent  trial  of  a 
criminal  case  only  when  necessary  to  pre- 


vent the  miscarriage  of  justice.    Levi  v. 
State  (Ind.)  1917A-634.  (Annotated.) 

55.  Admissibility  of  Former  Testimony 
of  Absent  Witness.  Const,  art.  1,  §  12, 
giving  an  accused  the  right  to  be  con- 
fronted with  witnesses  against  him,  is  not 
violated  by  the  admission  of  testimony  of 
witnesses  taken  at  the  preliminary  hear- 
ing, who  were  shown  to  have  been  absent 
from  the  state  at  the  time  of  the  trial. 
State  v.  Inlow  (Utah)  1917A-741. 

56.  The  absence  from  the  jurisdiction 
of  a  witness  for  the  prosecution,  though 
only  temporary,  is  a  ground  for  the  admis- 
sion of  his  testimony  given  at  a  former 
trial  of  the  case  when  the  defendant  has 
opposed  a  postponement  of  the  case  and 
insisted  upon  an  immediate  trial.  Terri- 
tory T.  Curran  (Hawaii)   1918A-234. 

(Annotated.) 

57.  The  party  offering  the  testimony  of 
witnesses  who  testified  at  a  former  trial 
of  a  criminal  case  has  the  burden  of  show- 
ing affirmatively  all  the  facts  necessary  to 
bring  the  evidence  within  the  exception 
to  the  rule  of  exclusion.  Levi  v.  State 
(Ind.)    1917A-654.  (Annotated.) 


6.    Proof  of  Other  Crimes. 

58.  As  Incident  to  Belevant  Evidence. 
In  a  prosecution  for  polygamy,  where  a 
witness,  having  referred  to  the  plural  wife 
as  Mrs.  L.,  stated  that  she  was  known  also 
as  E.  N.,  the  que '-on  whether  she  was 
the  same  E.  N.  who  had  complained 
against  the  defendant  charging  him  with 
the  larceny  of  $3,300  worth  of  diamonds 
is  admissible  for  the  purpose  of  identifi- 
cation and  is  not  objectionable  as  tending 
to  show  another  offense.  State  v.  Von 
Klein  (Ore.)  1916C-1054. 

59.  Proof  of  Other  Offenses.  In  a  prose- 
cution for  extortion  by  threatening  to  ac- 
cuse another  of  the  larceny  of  a  cow, 
where  the  theory  of  the  prosecution  was 
that  defendant  compelled  the  prosecuting 
witness  to  kill  a  cow  belonging  to  another 
so  that  defendant  and  his  confederates 
could  accuse  him  of  the  crime,  and  then 
extorted  money  from  him  to  forego  mak- 
ing the  accusation,  evidence  that  the  de- 
fendant pointed  a  gun  at  the  witness,  and 
thereby  forced  him  to  kill  the  cow,  is  ad- 
missible as  part  of  the  transaction,  al- 
though it  tends  to  show  the  commission 
of  another  crime  by  defendant.  Lee  v. 
State  (Ariz.)  1917B-131. 


f.     Conduct  of  Accused. 

60.  Folly  of  Acts  Attributed  to  Accused. 
A  jury  is  not  bound  to  hold  that  a  speci- 
fied event  has  not  occurred  because  its 
occurrence  involves  unwise  or  foolish  or 


CRIMINAL  LAW. 


253 


blundering  conduct  on  the  part  of  the  ac- 
cused person.  People  v.  Becker  (Kan.) 
1917A-600. 

61.  Conduct  of  Accused  After  Offense. 
Where  accused  was  informed  shortly  after 
the  infliction  of  fatal  wounds  of  dece- 
dent's death  and  of  the  fact  that  decedent 
had  written  accused's  name,  and  that  ac- 
cused stated  that  he  would  go  to  a  certain 
place,  evidence  that  accused  dressed  in  a 
hurry  is  competent  as  showing  his  conduct 
immediately  after  the  offense.  State  v. 
Giudiee   (Iowa)   1917C-1160. 

62.  Befusal  to  Come  to  State  Without 
Sec[uisition.  In  a  prosecution  for  larceny 
of  a  cow,  admission  of  evidence  that  de- 
fendant refused  to  come  to  the  state  with- 
out requisition  and  was  arrested  and 
confined  in  another  state  pending  requisi- 
tion is  error,  since  it  was  his  right  so  to 
do,  and  would  not  show  guilt  or  guilty 
conscience.  Harris  v.  State  (Wyo.) 
1917A-1201. 

63.  In  a  prosecution  for  larceny  of  a 
cow,  exclusion  of  defendant's  explanation 
of  his  refusal  to  come  to  the  state  with- 
out requisition,  after  admission  of  evi- 
dence showing  such  refusal  and  his  arrest 
on  account  thereof,  is  error.  Harris  v. 
State   (Wyo.)    1917A-1201. 

64.  Appearance  and  Manner  of  Accused. 
In  a  prosecution  for  homicide,  testimony 
by  a  witness  that  the  defendant  stated  to 
him  the  evening  after  the  homicide,  and 
before  his  arrest,  that  he  had  not  been  in 
the  city  where  the  homicide  occurred,  and 
that  while  he  was  talking  defendant  was 
nervous  and  excited  and  had  a  haggard 
anpearance,  which  was  unusual  for  him,  is 
admissible.  Mason  v.  State  (Tex.)  1917D- 
1094. 

g.     SuflSciency  of  Evidence. 

65.  Degree  of  Proof.  In  a  prosecution 
for  crime,  the  defendant's  guilt  must  be 
proved  bevond  a  reasonable  doubt.  State 
V.  Tetrault  (N.  H.)   1918B-425. 

66.  Verdict  Sustained.  The  remaining 
assignments  of  error  are  without  substan- 
tial merit.  The  verdict  is  supported  by 
the  evidence.  Bird  v.  State  (Ga.)  19160- 
205. 

67.  Proof  of  Motive.  Proof  of  the  ex- 
istence of  a  particular  motive  is  not  essen- 
tial to  establish  the  guilt  of  a  person  ac- 
cused of  crime.  People  t.  Becker  (N.  Y.) 
1917A-600. 

68.  Corroboration  of  Accomplice.  Un- 
der Kan.  Code  Cr.  Proc.  §  399,  providing 
that  a  conviction  cannot  be  had  on  the 
testimony  of  an  accompHce  unless  corrob- 
orated by  other  evidence  tending  to  con- 
nect the  defendant  with  the  commission 
of  the  crime,  it  is  not  required  that  the 
whole  case  shall  be  proved  outside  the 
testimony  of  accomplices,  but  the  law  is 


complied  with  if  there  is  some  evidence 
fairly  tending  to  connect  defendant  with 
the  commission  of  the  crime,,  so  that  his 
conviction  will  not  rest  entirely  on  the 
evidence!  of  the  accomplices.  People  t. 
Becker /(Kan.)  1917A-600. 

69.  Penalties.  A  request  for  an  instruc- 
tion that  the  crime  alleged  in  the  petition 
must  be  proved  beyond  a  reasonable  doubt 
is  properly  refused.  All  that  is  required  of 
the  state  in  civil  actions  for  the  recovery 
of  a  penalty  under  section  4191,  Comp. 
Laws  Okla.  1909  (Rev.  Laws  1910,  secj. 
3619),  is  to  prove  the  crime  by  a  pre- 
ponderance of  .the  evidence.  Hanimett  v 
State  (Okla.)    1916D-1148. 

70.  Degree  of  Proof.  To  justify  a  re*- 
dict  of  guilty,  it  is  not  sufficient  that  the 
evidence  create  a  suspicion  or  probability 
of  guilt;  it  must  exclude  every  reason- 
able hypothesis,  except  that  of  guiU. 
Wooden  v.  Commonwealth  (Va.)  1917I>-^ 
1032. 

71.  Evidence  Sufficient.  The  evideno« 
sustains  the  verdict.  State  t.  Ward 
(Minn.)   1916C-674. 

h.     Testimony    of   Accomplice. 

72.  Necessity  of  Corroboration.  A  per- 
son may  be  convicted  upon  the  unsup- 
ported testimony  of  an  accomplice,  thou^ 
the  jury  should  be  cautious,  in  so  convict- 
ing.    State  v.  Shaft  (N.  Car.)  1916C-627. 

73.  On  a  criminal  trial,  the  testimony 
of  an  accomplice  is  competent.  State  v. 
Shaft  (N.  Car.)  1916C-627. 

i.    Alibi. 

74.  Evidence  in  a  trial  for  homicide 
held  to  make  the  defense  of  alibi  a  ques- 
tion for  the  jury.  People  v.  Eoach  (N.  Y.S 
1917A-410. 


12.    INSTEUCTIONS. 
a.     In  General. 

75.  Requests-  Covered  by  General 
Charge.  The  requests  to  charge  the  jury 
were  substantially  covered  by  the  general 
charge  of  the  court,  and  it  was  not  error 
to  decline  them.  Bird  v.  State  (Ga  ) 
1916C-205. 

76.  As  to  Duty  of  Jurors  to  Consult  and 
Deliberate.  In  a  prosecution  for  larceny 
an  instruction  that  it  is  the  duty  of  each 
juryman  to  give  careful  consideration  to 
the  views  his  fellow  jurymen  present  upon 
the  testimony,  that  he  should  not  shut  his 
ears,  and  stubbornly  stand  upon  the  posi- 
tion he  first  takes,  and  that  it  should  be 
the  object  of  all  jurors  to  arrive  at  a  com- 
mon conclusion,  and  to  deliberate  together 
with  calmness,  and  that  it  was  their  duty 
to  agree  upon  a  verdict,  if  that  was  possi- 
ble, is  not  erroneous,  though  it  failed  to 


254 


DIGEST. 

1916C— 1918B. 


state  that  the  verdict  should  be  that  of 
each  juror,  and  should  be  considered  with 
candor.  Harris  v.  State  (N.  Y.)  1917A- 
1201. 

77.  Refusal  of  Request  —  Charge  Sub- 
stantially Given.  It  is  not  error  to  refuse 
a  requested  charge  substantiallj  covered 
by  a  charge  given.  Longmire  v.  State 
(Tex.)    1917A-726. 

78.  Urging  Jury  to  Agree.  For  the 
court  in  a  murder  case  to  say  in  its  charge 
that,  unless  the  jury  do  its  duty  all  labor 
expended  would  be  lost,  and  that  counsel 
and  court  have  tried  to  perform  their 
duty,  and  let  it  not  be  said  that  the  jury 
neglected  to  perform  theirs,  and  that  he 
hoped  they  would  endeavor  to  arrive  at  a 
conclusion,  and  that  it  would  be  based  on 
evidence  and  in  accord  with  their  con- 
science, is  not  error.  People  t.  Becker 
(Kan.)   1917A-600. 

79.  Test  of  Fairness.  That  the  appel- 
late court,  on  reading  the  entire  charge 
in  a  murder  case,  is  unable  to  determine 
whether  the  trial  court  thought  defendant 
guilty  or  innocent,  is  a  sufficient  test  of 
its  fairness.  People  v.  Becker  (Kan.) 
1917A-600. 

80.  Applicability  to  Evidence.  An  in- 
struction is  not  erroneous  because  it  is 
based  on  one  of  the  possible  interpreta- 
tions of  an  ambiguous  document  in  evi- 
dence, particularly  where  there  is  other 
evidence  which  unequivocally  bears  that 
interpretation.  Partridge  v.  United 
States  (D.  C.)    1917D-622. 

81.  Failure  of  Prosecution  to  Call  Wit- 
ness. In  a  trial  for  murder  defendant's 
requested  charge  that  since  the  exact  time 
when  deceased  was  killed  was  material, 
the  state's  failure  to  call  his  son,  who  had 
lived  with  him,  required  the  inference 
that  his  testimony,  if  given,  would  have 
shown  beyond  a  reasonable  doubt  that 
deceased  was  killed  before  10  P.  M.  of  the 
day  on  which  he  was  murdered,  is  too 
broad  to  justify  the  court  in  charging  it. 
People  V.' Roach  (N.  Y.)   1917A-410. 

82.  Defining  Unrelated  Crime.  In  a 
prosecution  for  extortion  by  a  threat  to 
accuse  another  of  a  crime  as  defined  by 
Ariz.  Pen.  Code  1913,  §  513,  subd.  2,  it  is 
error  for  the  court  to  read  to  the  jury 
subdivisions  1,  3,  and  4  of  that  section 
defining  extortion  by  other  threats.  Lee 
V.   State    (Ariz.)    1917B-131. 

83.  Malicious  Mischief.  There  was  no 
error  in  rulings  in  the  admission  or  rejec- 
tion of  evidence,  or  in  failing  to  give  a 
requested  instruction.  State  V.  Ward 
(Minn.)    1916C-674. 

b.     Reasonable    Doubt. 

84.  Definition  of  Reasonable  Doubt. 
An  instruction  that  a  reasonable  doubt  in 


the  jury  box  is  exactly  the  same  kind  of 
reasonable  doubt  that  an  honest  man 
meets  up  with  in  human  life  is  not  error. 
State  V.  Pitt  (N.  Car.)  19160-422. 

85.  Application  to  Particular  Issue. 
Where  the  court  applies  the  doctrine  of 
reasonable  doubt  to  the  whole  case  and 
gives  an  approved  charge  on  circumstan- 
tial evidence,  it  is  not  necessary  to  apply 
the  law  of  reasonable  doubt  to  each  fact 
in  the  chain  of  circumstances.  Mason  t. 
State  (Tex.)  1917D-1094. 

86.  As  to  Degree  of  Offense.  A  charge 
that  the  jury  could  not  convict  of  the  high- 
est offense  charged,  and  to  acquit  of  that 
crime,  unless  satisfied  beyond  a  reasonable 
doubt  that  accused  was  guilty  of  that 
crime,  with  a  similar  charge  as  to  each  of 
the  included  offenses,  concluding  with  a 
charge  to  acquit  accused  if  they  found 
none  of  the  offenses  proved  beyond  a  rea- 
sonable doubt,  sufficiently  charges  that,  if 
there  was  a  reasonable  doubt  as  to  guilt 
of  one  of  the  offenses  included,  it  should 
be  dropped,  and  the  next  in  order  inquired 
into.     State  v.  Ashbury  (Iowa)  1918A-856. 

c.     Presumption  of  Innocence. 

87.  Effect  of  Proof  of  Good  Character. 
The  defendant  is  presumed  innocent,  even 
where  evidence  of  his  good  character  is 
not  offered,  though  evidence  of  good  char- 
acter, when  considered  in  connection  with 
all  the  other  evidence,  may  create  in  the 
minds  of  the  jurors  a  reasonable  doubt, 
when  without  such  evidence  none  would 
exist.  People  ▼.  Roach  (N.  Y.)  1917A- 
410. 

d.  Failure  of  Accused  to  Testify. 
•88.  Comment  on  Scope  of  Testimony  of 
Accused.  An  accused  who  takes  the  stand 
in  his  own  behalf  and  voluntarily  testifies 
for  himself  may  not  stop  short  in  his 
testimony  by  omitting  and  failing  to  ex- 
plain incriminating  circumstances  and 
events  already  in  evidence  in  which  he 
participated,  and  concerning  which  he  is 
fully  informed,  without  subjecting  his 
silence  to  the  inferences  naturally  to  be 
drawn  from  it,  and  justifying  comment  by 
the  court  in  his  charge  to  the  effect  that 
the  jury  may  take  this  omission  into  con- 
sideration in  reaching  a  verdict.  Camin- 
etti  V.  United  States  (U.  S.)  1917B-1168. 

e.     Corroboration  of  Accomplice. 

89.  Where  the  trial  judge  is  satisfied 
that  there  is  some  evidence  corroborative 
of  the  testimony  of  an  accomplice,  then  it 
is  for  the  jury  to  determine  whether  the 
corroboration  is  sufficient  to  show  guilt. 
People  v.  Becker  (Kan.)  1917A-600. 

f.    Credibility  of  Accused. 

90.  Singling  Out  Testimony.  While  an 
instruction  upon  the  weight  and  credibil- 


CRIMINAL  LAW. 


255 


ity  to  be  given  testimony  may  be  ab- 
stractly correct,  it  is  error  to  single  out 
some  particular  witness  or  evidence  for 
its  application.  State  v.  Ashbury  (Iowa) 
1918A-856. 

g.     Circumstantial  Evidence. 

91.  Where  one  charged  with  burglary 
admits  the  entry  and  the  subsequent  lar- 
ceny, but  denies  that  he  intended  to  com- 
mit larceny  at  the  time  of  the  entry,  it  is 
not  necessary  for  the  court  to  charge  that, 
in  order  to  convict  where  the  only  evi- 
dence of  intent  is  circumstantial,  the  cir- 
cumstances must  be  such  as  to  exclude 
every  reasonable  hypothesis  except  that 
of  guilt.  State  v.  Lapoint  (Vt.)  1916C- 
318. 

92.  As  to  Circumstantial  Evidence.  On 
a  criminal  trial,  the  modification  of  an  in- 
struction that,  where  the  state  relies  upon 
circumstances  to  establish  defendants' 
guilt,  it  must  prove  each  individual  cir- 
cumstance so  relied  on  to  the  satisfaction 
of  the  jury  to  a  moral  certainty  or  beyond 
a  reasonable  doubt,  or  that  the  jury  must 
disregard  any  such  circumstances  from 
further  consideration,  by  adding  that  the 
force  of  all  circumstances  is  with  the  jury, 
is  not  erroneous;  the  modification  not  be- 
ing confusing  or  misleading  but  empha- 
sizing the  proposition  that  the  force  and 
effect  of  the  testimony  is  to  be  determined 
bv  the  jury.  State  v.  Griffin  (S.  Car.) 
1916D-392. 

h.     Capacity  of  Accused. 

93.  Capacity  to  Commit  Crime.  It  is 
not  error  for  the  court  to  refuse  to  hold 
that  a  deaf  mute  was  incapable  of  com- 
mitting a  murder.  Belcher  v.  Common- 
wealth (Ky.)  1917B-238.  (Annotated.) 

94.  Whether  a  deaf  mute  was  mentally 
incapable  of  committing  a  murder  is,  on 
conflicting  evidence,  a  question  peculiarly 
for  the  jury.  Belqher  v.  Commonwealth 
(Ky.)  1917B-238.  (Annotated.) 

i.     Testimony  of  Accomplice. 

95.  Failure  to  Give  Cautionary  Instruc- 
tions. A  conviction  under  the  U.  S.  White 
Slave  Traffic  Act  of  June  25,  1910  (36 
Stat,  at  L.  825,  c.  395,  Fed.  St.  Ann. 
1912  Supp.  p.  419),  making  criminal  the 
transportation  or  the  causing  to  be  trans- 
ported, or  the  obtaining,  aiding,  or  assist- 
ing in  the  transportation  in  interstate 
commerce  of  women  or  girls  for  the  pur- 
pose of  prostitution,  debauchery,  or  other 
im.moral  purposes,  will  not  be  reversed  be- 
cause of  the  refusal  of  the  trial  court  to 
instruct  the  jury  that  the  testimony  of  the 
women  was  that  of  accomplices,  and  was 
to  be  received  with  great  caution,  and  to 
be  believed  only  when  corroborated  by 
other  testimonv.  Caminetti  v.  United 
States  (U.  S.)   1917B-1168. 


j.     Good  Character  of  Accused. 

96.  In  an  instruction,  that  when  a  per- 
son is  charged  with  the  commission  of  a 
crime  the  law  presumes  that  he  is  a  man 
of  /average"  character  and  that  the  fail- 
ure to  call  witnesses  to  prove  his  general 
good  character  raises  no  presumption 
against  it,  the  use  of  the  word  "average" 
in  place  of  the  usual  adjective  "good"  is 
not  prejudicial.  State  v.  Mewhinney 
(Utah)   1916C-537. 

97.  As  to  Effect  of  Proof  of  Otood  Char- 
acter. In  a  trial  for  murder,  the  refusal 
to  charge  for  defendant  that  his  unques- 
tioned good  character  is  presumptively 
evidence  of  his  innocence  is  not  error, 
when  considered  in  connection  with  a 
charge  that  evidence  of  his  good  character 
in  itself  may  be  sufficient  to  create  a 
reasonable  doubt,  and  that  he  is  presump- 
tively innocent  until  the  proof  shows 
otherwise.  People  v.  Boach  (N.  Y.) 
1917A-410. 


13.     CONDUCT     AND     EEMAEKS     OF 
JUDGE. 

98.  The  judge  making  an  order  to  keep 
the  jury  together  during  a  murder  trial 
should  assume  the  responsibility  of  the  or- 
der, and  not  indicate  that  the  order  is 
made  at  the  instance  of  the  state  or  ac- 
cused. State  V.  Giudice  (Iowa)  1917C- 
1160. 

99.  Limiting  Time  for  Argument.    It  is 

within  the  discretion  of  the  trial  court  to 
limit  the  time  for  argument  in  a  criminal 
case.  Samuels  v.  United  States  (Fed.) 
1917A-711.  (Annotated.) 

100.  Comment  on  Evidence.  Where  the 
only  evidence  that  the  prosecuting  wit- 
nesses used  drugs  was  hearsay,  the  court's 
remark  in  excluding  medical  testimony  of 
the  effect  of  the  use  of  drugs  upon  the 
mind,  that  there  was  no  testimony  that 
any  one  of  the  witnesses  was  an  habitual 
user  of  drugs,  is  not  objectionable  as  a 
comment  upon  the  evidence.  State  v. 
Schuman  (Wash.)   1918A-633. 

101.  Eebuke  to  Witness.  Where  the 
judge,  following  a  question  to  a  witness, 
stated  that  it  looked  like  a  man  who  had 
been  justice  of  the  peace  ought  to  have 
sense  enough  to  answer  the  questions 
asked,  the  statement  being  a  reprimand 
addressed  solely  to  the  witness  and  not 
to  the  jury,  and  having  no  bearing  upon 
his  credibility,  is  within  the  court's  proper, 
function.  Patterson  v.  State  (Ala.) 
1916C-968. 

102.  Comment  on  Evidence.  A  remark 
by  the  trial  judge  in  overruling  an  objec- 
tion to  a  certain  question,  that  it  was  a 
part  of  the  res  gestae,  is  not  a  comment  on 
the  weight  of  the  testimony.  Mason  v. 
State  (Tex.)   1917D-1094. 


256. 


DIGEST. 

1916C— 1918B. 


103.  Bestraining  Misconduct  of  Counsel. 
A  bill  of  exceptions  complaining  of  the 
action  of  the  court  in  refusing  to  permit 
defendant's  attorney  to  state  reasons  for 
objection  to  testimony  and  upon  his  insist- 
ing, ordering  him  to  sit  down  and  there- 
after/ordering the  sheriff  to  sit  him  down, 
presents  no  error,  where  the  bill  shows 
that  the  same  objections  had  been  made 
to  the  testimony  of  other  witnesses  for 
reasons  then  stated,  and  the  court  quali- 
fied the  bill  by  adding  that  the  counsel 
gave  him  considerable  trouble  -and  would 
not  stop  talking  when  commanded  to  do 
so.     Mason  v.  State  (Tex.)   1917D-1094. 

104.  A  refusal  to  require  that  the  dis- 
trict attorney  occupy  a  place  on  the  floor 
of  the  courtroom  where  other  counsel  sat, 
instead  of  sitting  in  the  space  between  the 
bench  and  the  bar,  according  to  an  estab- 
lished custom,  was  not  error.  Common- 
wealth V.  Boyd  (Pa.)  1916D-201. 

105.  Questioning  Accused  Before  Sen- 
tence. When  the  prisoner  is  asked  if  he 
has  anything  to  say  before  sentence  is 
passed  the  proper  practice  is  to  note  suck 
inquiry  in  the  record.  Dutton  v.  State 
(Md.)   19180-^9.  (Annotated.) 

Note. 
Effect  of  failure  to  ask  convicted  per- 
son   if    he    has    anything    to    say    before 
sentence.     1916C-95. 


CEOPS. 


Parol  reservation,  see  Frauds,  Statute  of, 
10. 

Sale  by  parol,  see  Frauds,  Statute  of,  10, 
11. 

Tenant's  right  as  against  landlord's  ven- 
dee, see  Landlord  and  Tenant,  53. 

1.  Injury  to  Crop — Measure  of  Dam- 
ages. In  an  action  for  loss  of  growing 
crops  caused  by  defendant's  cutting  off 
plaintiff's  water  supply,  the  measure  of 
damages  is  the  reasonable  value  of  the 
crops  when  the  damage  occurred,  not  the 
rental  value  of  the  land.  North  Sterling 
Irrigation  District  v.  Dickman  (Colo.) 
1916D-973. 

2.  Sale  Apart  from  Soil.  The  title  to 
growing  crops  passes  to  the  purchaser  be- 
fore severance  from  the  soil,  being  an  ex- 
ception to  the  rule  that  a  chattel  sold, 
which  is  annexed  to  the  soil,  would  remain 
a  part  of  the  realty  until  after  severance 
Wetkopsky  v.  New  Haven  Gas  Light  Co. 
(Conn.)   1916D-968. 

CBOSS-BILL. 
See  Equity,  15,  16;  Quieting  Title,  10,  11. 

CEOSS-EEBOES. 
See  Appeal  and  Error,  79-81. 


14.     FAIENESS  OP  TBIAI/. 

106.  Prejudicial  Influences.  A  murder 
trial  is  not  rendered  unfair  or  staged  in 
a  hostile  atmosphere  because  before  trial 
newspaper  articles  appeared  accusing  de- 
fendant's brother  with  tampering  with 
witnesses,  and  defendant's  counsel  moved 
for  postponement  and  to  punish  the  dis- 
trict attorney  for  contempt,  as  having 
been  the  author  of  them,  which  motions 
were  denied,  as  without  evidence  to  sup- 
port them,  or  because  a  newspaper,  during 
the  selection  of  the  jury,  published  an  ar- 
ticle claimed  to  be  the  opening  address 
of  the  prosecuting  attorney,  for  which  the 
newspaper  was  fined,  all  of  which  pro- 
ceedings were  had  in  chambers,  and  no 
objections  being  made  to  the  jurors  as 
selected.  People  v.  Becker  (Kan.)  1917A- 
600. 

107.  Latitude  Allowed  Parties.  Defend- 
ant is  not  denied  a  fair  trial  because  in 
exceptional  instances  greater  latitude  was 
allowed  the  district  attorney  on  cross- 
examination  of  witnesses  than  was  al- 
lowed defendant's  counsel.  People  v. 
Becker  (Kan.)  1917A-600. 

CEIMTNAL  LIBEL. 
See  Libel  and  Slander,  165-167. 

CEIMINAL   NEGLIGENCE. 
See  Automobiles,  63. 


CEOSS-EXAMINATION. 
Of  witness,  see  Witnesses,  61-81. 

CEOSSINGS. 
See  Automobiles,  16,  IS,  21,  51. 

CEUEL  Ain>  UNUSUAL  PUNISHMENT. 
See  Sentence  and  Punishment,  4,  13-17. 

CEUELTT. 
See  Divorce,  34-37. 

CUETESY. 

Sale  of  curtesy  interest,  effect  on  title,  see 
Judicial  Sales,  5. 

CUSTODY  OF  JUBT, 
See  Jury,  29-35. 

CUSTOM. 
See  Usages  and  Customs. 

CY  PEES. 
See  Charities,  9. 

DAMAGED  GOODS. 

Consignee's    duty   to    accept,   see   Carriers 
of  Goods,  2. 


DAIMAGES. 


257 


DAMAGES. 

1.  Exemplary   Damages,  257. 

2.  Mitigation  of  Damages,  257. 

3.  Measure  and  Elements  of  Damages,  857. 

a.  In  General,  257. 

b.  In  Actions  for  Breach  of  Contract, 

258. 

c.  In   Actions  for    Personal    Injuries, 

258. 

d.  In  Actions  for  Injuries  to  Property, 

258. 

e.  In  Actions  for  Breach  of  Covenant, 

259. 

4.  Pleading,    259. 

5.  Evidence,  259. 

a.  Admissibility,  259. 

b.  Sufficiency,  259. 

c.  Burden  of  Proof,  259. 

6.  Instructions,  259. 

7.  Verdict,  259. 

a.  Excessive  Damages,  259. 

(1)  Review  in   General,  259. 

(2)  Power  of  Court  to  Order  Re- 

mittitur, 260. 

(3)  What  are  Excessive  Damages, 

(a)  Personal  Injuries,  260. 

(b)  Death  by  Wrongful  Act, 

260. 

(c)  Afisault,  260. 

(d)  Libel  and  Slander,  260. 

(e)  Alienation  of  Affections, 

261. 

(f)  Action     Against     Tele- 

graph Company,  261. 

(g)  False         Imprisonment, 

261. 
(h)  Rape,  261. 
(i)  Malpractice,  261. 
(j)  Criminal    Conversation, 

262. 
(k)  Malicious     Prosecution, 

262. 

See  Assault,  14-17;  Automobiles,  52-56; 
Contracts,  63-77,  95,  96;  Conversion, 
9-13;  Crops,  1;  Death  by  Wrongful 
Act,  45-53;  Ejectment,  4;  False  Im- 
prisonment, 5-10;  Malicious  Prosecu- 
tion, 29-35;  Replevin,  5-11;  Specific 
Performance,  10,  11;  Trespass,  10-12. 

Duty  of  adjoining  dwner  to  minimize 
damages,  see  Adjoining  Landowners, 
10. 

Damafros  in  action  by  adjoining  owner,  lee 
Adjoining  Itand owners,  1^17. 

Harmless  error  in  admitting  evidence,  see 
Appeal  and  Error,  240. 

In  breach  of  promise  suits,  see  Breacll  of 
Promise  of  Marriage,  15-17. 

In  actions  against  carriers,  see  Carriers  of 
Goods,  41-45. 

Measure  of  damages  for  breach  of  cove- 
nant, see  Deeds,  85. 

Compensation  in  condemnation,  see  Emi- 
nent Domain,  29-55. 

Penalty  for  failure  to  pay  loss,  see  Fire 
Insurance,  46. 

In    action    for    criminal    conversation,    see 
Husband  and  V/ife,  67. 
17 


For  wrongful  eviction,  see  Landlord  and 

Tenant,  42,  43. 
Effect  of  malice,   see  Libel  and  Slander, 

8,  9,  13-15,  136,  151. 
Noipinal  damages,  see  Libel  and  Slander, 

115. 
Punitive  damages,  see  Libel  and  Slander, . 

8,  9,  162. 
Excessive  damages,  see  Libel  and  Slander,! 

155.  ! 

Mitigation,  see  Libel  and  Slander,  157-160. 
In  proceedings  under  Employers'  Liability 

Act,  see  Master  and  Servant,  93,  94. 
Measure   of    damages   for   tort   committed 

outside  state,  see  Master  and  Servant, 

370. 
In  action  against  cotenant  for  mining,  see 

Mines  and  Minerals,  8. 
Treble  damages  for  injury  under  Sherman 

Act,  see  Monopolies,  27. 
In  malpractice  action,  see  Physicians  and 

Surgeons,  43. 
Special  damages  how  pleaded,  see  Plead- 
ing, 9. 
Pleading  to  warrant  exemplary  damages, 

see  Pleading,  10. 
Measure  for  breach  of  warranty,  sea  Sales, 

37,  38,  42,  44,  47. 
Measure  of  damages  for  collision,  see  Ships 

and  Shipping,  1,  3. 
Right    of    abutting    owner   on    change    of 

grade,  see  Streets  and  Highways,  11, 

13,  14. 
In  action  for  delay  of  telegram,  see  Tele- 
graphs and  Telephones,  35. 
For  vendor's  breach,  see  Vendor  and  Pur- 
chaser,  15. 

1.     EXEMPLARY  DAMAGES. 

1.  Exemplary  Damages.  Exemplary 
damages  cannot  be  recovered  in  an  action 
for  the  breach  of  a  contract  by  a  physician 
to  attend  a  patient.  Hood  v.  Moffett 
(Miss.)  1917E-410.  (Annotated.) 

2.  Elements  Considered — ^Wealth  of  De- 
fendant. Where,  under  the  pleadings  of  a 
case,  exemplary  damages  may  be  allowed, 
the  pecuniary  ability  of  the  defendant  is 
a  proper  matter  for  the  consideration  of 
the  jury.  Dwyer  v.  Libert  (Idaho)  1918B- 
973. 

Note. 

Exemplary  damages  in  action  on  con- 
tract other  than  contract  to  marry. 
1917E-412. 

2.     MITIGATION  OF  DAMAGES. 

3.  Sick  Benefits  as  Offset.  An  instruc- 
tion, in  an  action  prosecuted  by  an  admin- 
istrator of  a  decedent  sustaining  a  per- 
sonal injury,  that  in  assessing  the  damages 
defendant  was  entitled  to  credit  for  any 
amount  decedent  might  have  received  by 
way  of  sick  benefits  on  account  of  his  in- 
juries was  properly  refused,  because  al- 
lowing a  credit  to  defendant  for  sick  bene- 
fits, though  he  had  not  contributed  there- 
to. Cincinnati,  etc.  R.  Co.  v.  McCullom 
(Ind.)    1917E-1165. 


258 


3. 


MEASURE     AND 

DAMAGES, 
a.     In  General. 

4.  Loss  of  Earning  Capacity.  One  re- 
ceiving personal  injuries  because  of  an- 
other's negligence  is  entitled  to  damages 
for  any  disability  he  has  sustained,  includ- 
ing loss  of  earning  capacity.  Miller  v. 
Delaware  River  Trans.  Co.  (N.  J.)  1&16C- 
165. 

5.  Where  disability  to  labor,  etc.,  is 
clearly  proved  in  a  personal  injury  action, 
the  jury  may  award  a  reasonable  sum 
therefor,  irrespective  of  whether  the  in- 
jured person  is  shown  to  have  any  definite 
income.  Miller  v,  Delaware  River  Trans. 
Co.  (N.  J.)  1916C-165. 

6.  Personal  Injury.  The  damages  re- 
coverable in  actions  for  personal  injuries 
are  for  all  the  legal  and  natural  conse- 
quences proximately  resulting  from  the 
negligence  alleged,  though  the  particular 
form  or  nature  of  the  results  were  not 
contemplated  or  foreseen.  Eang  v.  Cooney- 
Eckstein  Co.   (Fla.)   1916C-163. 


b.     In  Actions  for  Breach  of  Contract. 

7.  Loss  of  Profits.     Recovery  may  be  had 

for  loss  of  profits  occasioned  by  breach 
of  contract,  where  the  business  of  which 
plaintiff  was  deprived  was  contemplated 
or  can  reasonably  be  presumed  to  have 
been  contemplated  by  parties  when  the 
contract  was  made,  and  it  is  reasonably 
certain  that  gain  or  profit  would  have  been 
derived  therefrom,  although  the  amount  of 
such  gain  may  be  uncertain.  McGinnis  v. 
Studebaker  Corporation  (Ore.)  1917B- 
1190. 

8.  Humiliation  from  Eviction.  A  strik- 
ing employee,  evicted  from  a  house  occu- 
pied by  him  as  part  compensation  for  his 
services,  is  not  entitled  to  damages  for 
the  mortification,  humiliation,  and  injured 
feelings  caused  by  having  his  household 
effects  put  into  the  street  in  the  presence 
of  onlookers,  where  it  appears  that  most 
of  the  onlookers  were  strikers  or  sympa- 
thizers with  the  strikers  and  with  plain- 
tiff. Lane  v.  Au  Sable  Electric  Co.  (Mich.) 
1916C-1108. 

9.  Loss  of  Profits.  Where  plaintiff 
agrees  to  perform  certain  work  for  defend- 
ant and  is  prevented  from  doing  so  by  de- 
fendant's failure,  he  is  entitled  to  recover 
the  profits  which  the  evidence  makes  it 
reasonably  certain  that  he  would  have 
made  if  the  defendant  had  carried  out  his 
contract.  Streudle  v.  Leroy  (Ark.)  1917D- 
618. 

10.  Market  Value — What  Constitutes. 
Where  a  manufacturer  and  wholesaler  lo- 
cated in  one  city  sells  goods  to  a  retailer 
located  in  another,  the  market  value  at  the 
former  city,  plus  the  cost  of  transporta- 
tion to  the  buyer,  is  presumptively  the 
market  value  at  the  retailer's  city.     Her- 


DIGEST. 

1916C— 1918B. 
ELEMENTS     OF      man  &  Ben  Marks  v.  Haas  (Iowa)  1917D- 


543. 

11.  Mental  Anguish.  Where  a  physician 
breached  a  contract  to  treat  a  patient  and 
physical  pain  resulted,  damages  may  be 
recovered  for  mental  anguish  accompany- 
ing it.  Hood  V.  Moffett  (Miss.)  1917E- 
410. 

c.     In   Actions  for  Personal  Injuries. 

12.  Pain  and  Suffering.  Plaintiff,  in  an 
action  for  injury  from  being  struck  on  the 
fcot  by  a  flying  lump  of  coal  from  de- 
fendant's tender,  making  an  operation 
necessary  and  which  would  confine  him  to 
his  bed  for  several  weeks,  may  recover 
for  suffering  which  resulted  or  will  rea- 
sonably result  in  the  future  from  the  in- 
jury. St.  Louis,  etc.  R.  Co.  v.  Armbrust 
(Ark.)    1917D-537. 

13.  Consideration  of  Life  Expectancy. 
In  an  action  for  damages  from  the  loss  of 
an  eye,  the  court  charged  that,  if  the  jury 
were  reasonably  satisfied  from  the  evi- 
dence that  plaintiff  was  permanently  in- 
jured then  he  was  entitled  to  recover  "such 
a  sum  as  the  evidence  reasonably  satisfies 
you  his  earning  capacity  has  been  de- 
creased, as  placed  at  interest  at  8%  per 
annum  will  by  taking  a  part  of  the  prin- 
cipal and  all  of  the  interest  each  year,  at 
the  end  of  his  life  expectancy  as  shown 
by  the  American  Experience  Tables  of 
Mortality  that  have  been  introduced  in 
evidence,  leave  nothing."  It  is  held  that 
this  was  error,  as  the  rule  that  the  court 
was  attempting  to  state  is  applicable  only 
to  cases  of  death,  and  the  measure  of  dam- 
ages for  a  permanent  injury  not  resulting 
in  death  is  compensation  for  the  disabling 
effect  of  the  injury,  past  and  prospective, 
including  damages  for  loss  of  time  and 
the  incapacity  to  do  as  profitable  labor 
as  before  the  injury,  as  well  as  the  mental 
and  physical  suffering.  Louisville,  etc.  R. 
Co.  V.  Carter  (Ala.)   1917E-292. 

14.  Effect  of  Previous  Partial  Disability. 
In  an  action  for  injuries  to  plaintiff's  left 
eye,  evidence  as  to  the  condition  of  his 
right  eye  subsequent  to  the  injury  was  ad- 
missible, since,  if  his  right  eye  was  dis- 
eased or  defective,  the  consequences  to 
follow  from  the  complete  loss  of  his  left 
eye  would  be  more  grave  and  damnifying, 
while,  if  the  diseased  or  defective  condi- 
tion of  the  right  eye  was  aggravated  by 
the  injury  to  and  loss  of  the  left  eye,  this 
is  a  proper  fact  for  the  jury's  considera- 
tion in  ascertaining  the  damages.  Louis- 
ville, etc.  R.  Co.  V.  Carter  (Ala.)  1917E- 
292. 

d.     In  Actions  for  Injuries  to  Property. 

13.  Injury  to  Land  by  Seepage.  The 
measure  of  damages  to  land  caused  by 
seepage  is  the  difference  between  the  value 
of  the  land  before  and  after  the  injury,  not 
the  reasonable  cost  of  draining  the  land, 


DAMAGES. 


259 


though  evidence  of  such  cost  is  admissible 
as  an  aid  in  determining  the  value  of  the 
land  after  the  seepage.  North  Sterling 
Irrigation  District  v.  Dickman  (Colo.) 
1916D-973. 

Note. 
Bight  to  recover  damages  for  loss  of  use 
in  case  of  injury  to  article  used  for  pleas- 
ure.    1917A-127. 

6.     In  Actions  for  Breach  of  Covenant. 

16.  Loss  of  profits,  when  they  can  be 
ascertained,  is  a  proper  measure  of  dam- 
ages where  by  the  act  of  a  lessor  the  ten- 
ant is  deprived  of  the  use  and  occupation 
of  the  premises  covered  by  the  lease. 
Stewart  v.  Murphy  (Kan.)  1917C-612. 

4.  PLEADING. 

17.  Impotency.  In  an  action  for  per- 
sonal injuries  under  a  petition  alleging  that 
plaintiff's  body  was  severely  and  perma- 
nently wounded,  bruised,  etc.;  that  the 
bones,  flesh,  and  ligaments  of  his  hips,  pel- 
vis, legs,  and  ankle  were  broken,  bruised, 
etc.;  that  he  suffered  great  bodily  and 
mental  pain  and  anguish  as  a  result  there- 
of; that  he  was  disabled  and  prevented 
from  attending  to  his  business  affairs,  or 
doing  anything  towards  gaining  a  liveli- 
hood; and  that  he  was  permanently  in- 
jured and  crippled  for  life  and  had  suffered 
and  would  continue  to  suffer  great  bodily 
pain,  annoyance,  inconvenience,  and  ex- 
pense— evidence  is  not  admissible  that  the 
injuries  resulted  in  impotency,  as  the  peti- 
tion neither  alleged  such  injury  nor  con- 
tained an  allegation  of  a  general  nature 
embracing  it  within  its  terms,  and,  where 
conditions  or  diseases  will  not  necessarily 
result  from  the  injuries,  they  must  be 
pleaded.  Hall  v.  Manufacturers'  Coal,  etc. 
Co.  (Mo.)  1916C-375.  (Annotated.) 

Note. 
Necessity    that    impotency    be    pleaded 
specially    in    action   for   personal  injuries. 
1916C-383. 

5.  EVIDENCE, 
a.     Admissibility. 

18.  Mortality  Tables.  In  an  action  for 
a  personal  injury  consisting  of  the  loss  of 
an  eye,  mortality  tables  were  admissible 
in  connection  with  evidence  tending  to 
show  decreased  earning  capacity  on  the 
question  of  probable  life  expectancy;  the 
injury  being  permanent.  Louisville,  etc. 
B.  Co.  V.  Carter  (Ala.)   1917E-292. 

19.  Damage  to  Other  Property.  Where 
plaintiff  had  become  the  owner  of  two  con- 
tiguous tracts  before  the  drying  up  of  the 
spring  on  one  of  them  by  mining,  evidence 
of  damages  to  the  other  tract  resulting 
from  such  injury  was  competent  uDon  the 
issue  of  damages.  Stonegap  Colliery  Co. 
V.  Hamilton  (Va.)  1917E-60. 


b.     Sufficiency. 

20.  Value  of  Lost  Time.  A  jury  should 
be  given'  some  substantial  evidence  upon 
questions  that  are  not  matters  of  common 
knowledge,  and  physicians'  charges  and  the 
value  of  lost  time  are  not  such  matters. 
Florida  East  Coast  R.  Co.  v.  Carter  (Fla  ) 
1916E-1299. 

c.     Burden  of  Proof. 

21.  In  an  action  for  damages,  the  burden 
is  upon  the  plaintiff  to  prove  by  a  pre- 
ponderance of  the  evidence  each  element 
of  damage  sustained.  If  it  appears  that 
the  verdict  includes  an  item  of  damage  not 
so  proved,  a  remittitur  will  be  required. 
Kriss  v.  Union  Pacific  R.  Co.  (Neb.)  1918A- 
1122. 

22.  Cause  of  injury.  In  an  action  for 
personal  injuries,  plaintiff,  to  sustain  the 
burden  resting  upon  him,  must  introduce 
testimony  making  it  more  probable  that 
the  conditions  on  account  of  which  a  re- 
covery is  sought  were  caused  by  the  acci- 
dent than  that  they  were  due  to  some  other 
cause.  Blair  v.  Seitner  Dry  Goods  Co. 
(Mich.)   1916C-8S2. 

6.     INSTRUCTIONS. 

23.  In  an  action  for  damages  for  per- 
sonal injuries,  it  is  error  to  instruct  that 
the  jury  may  award  such  damages  as  they 
think  plaintiff  is  entitled  to  recover;  the 
correct  rule  of  recovery  being  such  an 
amount,  if  anything,  as  is  established  by 
a  preponderance  of  the  evidence.  Rugen- 
stein  V.  Ottenheimer  (Ore.)   1917E-953. 

24.  An  instruction  on  the  measure  of 
damages,  erroneous  because  not  telling  the 
jury  that  their  finding  must  be  based  on 
evidence,  is  not  prejudicial  error,  as  the 
oath  of  the  juror  is  sufficient  to  compel  him 
to  conform  his  finding  to  the  evidence. 
Weigel  V.  McCloskey  (Ark.)  1916C-503. 

25.  Requiring  Verdict  to  be  Based  on 
Evidence.  An  instruction  on  the  measure 
of  damages,  which  does  not  tell  the  jury 
that  their  finding  must  be  based  on  the  evi- 
dence, is  erroneous.  Weigel  v.  McCloskey 
(Ark.)    1916C-503. 

7.     VERDICT, 
a.     Excessive   Damages. 
(1)     Review  in   General. 

26.  As  such  instruction  gives  a  totally 
inapplicable  measure  or  rule  of  damages, 
and  necessarily  implies  that  plaintiff's  life 
expectancy  was  as  shown  by  the  mortality 
tables,  whereas  those  tables  are  only  evi- 
dence to  be  considered  in  ascertaining  the 
probable  life  expectancy,  it  is  prejudicial  to 
the  defendant's  substantial  rights.  Louis- 
ville, etc.  R.  Co.  V.  Carter  (Ala.)  1917E- 
292. 


260 


DIGEST. 

1916G— 1918B. 


27.  Instznctlon  Allowing  Harmless.  The 
giving  of  instructions  authorizing  the  al- 
lowance of  punitive  damages  is  not  preju- 
dicial where  the  verdict  shows  that  only 
actual  damages  were  awarded.  Corry  v. 
Sylvia  Y  Cia  (Ala.)  1917E-1052. 

(2)     Power  of  Court  to  Order  Bemittitnr. 

28.  EzcessiveneBs  of  Damages.  It  is 
held  that  the  verdict  of  the  jury  and  judg- 
ment of  the  court  awarding  plaintiff  the 
sum  of  $12,000  was  excessive  in  view  of 
all  the  facts  and  circumstances  in  evidence, 
tind  that  said  verdict  and  judgment  be 
reduced  to  $8,640;  or  that  upon  failure  of 
plaintiff  to  accept  such  modified  judgment, 
the  judgment  be  reversed  in  toto,  and  a 
new  trial  granted.  McAlinden  v.  St. 
Marie's  Hospital  Association  (Idaho) 
1918A-380.  (Annotated.) 

(3)     What  are  Excessive  Damages, 
(a)     Personal  Injuries. 

29.  Internal  Injury  and  Loss  of  Leg.  In 
view  of  the  conflict  in  medical  testimony  ^ 
as  to  the  permanency  of  the  injuries  of 
a  servant  54  years  of  age,  whose  injuries 
consisted  of  paralysis  of  one  leg  and  in- 
ternal injuries,  it  is  held  that  an  award 
of  $5,000  could  not  be  determined  exces- 
sive. Kemsnidcr  v.  Union  Savings,  etc. 
Co.  (Wash.)   1917D-40. 

30.  Verdict  not  Excessive.  A  verdict  of 
$5,000  for  an  injury  to  plaintiff's  foot, 
causing  intense  pain,  and  which  in  the  four 
months  between  the  injury  and  the  trial 
had  but  little  improved,  necessitating  an 
operation  which  might  result  in  a  com- 
plete recovery,  though  it  would  leave  the 
foot  permanently  weaker,  so  that  plain- 
tiff, who  had  been  earning  $1.50  a  day,  has 
been  unable  to  work  since,  is  not  excessive. 
St.  Louis,  etc.  R.  Co.  v.  Armbrust  (Ark.) 
1917i)-537. 

31.  A  verdict  for  $3,202  for  injuries  to 
a  child  is  not  excessive,  where  his  left 
hand  was  so  injured  that  it  was  necessary 
to  sunputate  the  little  finger,  and  where 
the  hand  became  stiff  and  lacked  the  power 
of  gripping,  and  where  it  is  doubtful 
whether  the  hand  will  ever  be  as  strong 
as  a  normal  hand.  Gregg  v.  King  County 
(Wash.)   1916C-135. 

32.  A  verdict  awarding  $27,000  to  a  rail- 
road engineer  thirty-two  years  old  for 
injuries  permanently  incapacitating  him 
from  labor  will  not  be  set  aside  as  exces- 
sive. Canadian  Pacific  Ry.  v.  Jackson 
(Can.)  1916C-912.  (Annotated.) 

33.  Eight  thousand  seven  hundred  dol- 
lars is  not  an  excessive  recovery  for 
personal  injury  to  a  locomotive  fireman 
twenty-eight  years  old,  who  earned  $125 
a  month  when  injured,  where  his  sktoll 
was  fractured,  he  was  wholly  incapacitated 


for  labor  for  a  year,  and  his  injury  ap- 
pears to  be  permanent,  at  least  unless  re- 
lief can  be  secured  by  an  operation.  Row- 
lands T.  Chicago,  etc.  B.  Co.  (Wis.)  1916E- 
714. 

(b)     Death  by  Wrongful  Act. 

84.  A  verdict  of  $20,000  against  a  rail- 
road for  the  wrongful  killing  of  a  man, 
twenty-eight  years  of  age,  in  robust  health, 
and  earning  $100  a  month,  who  left  a 
widow  and  three  children,  aged,  respec- 
tively, six  years,  two  years,  and  six 
months,  is  not  excessive.  Illinois  Central 
B.  Co.  V.  Causey  (Mist.)  1917A-1281, 

35.  When  from  the  evidence  the  proba- 
bilities of  financial  support  from  the  son, 
had  he  lived,  could  not  exceed  $4,000,  a 
verdict  for  $6,000  should  be  reduced  to  the 
former  sum.  Denver  v.  Atchison,  etc.  B, 
Co.  (Kan.)   1917A-1007. 

36.  A  verdict  for  $18,000  for  the  wrong- 
ful death  of  a  street  car  passenger,  who 
was  married  and  left  three  girls  of  tender 
age,  and  a  husband,  and  who  was  an  ac- 
countant and  aided  her  husband  in  figuring 
on  contracts  in  his  business,  and  was  work- 
ing to  help  maintain  the  home,  is  not 
excessive.  Froeming  v.  Stockton  Electric 
B.  Co.  (Cal.)  1918B-408. 

37.  In  an  action  for  death,  when  struck 
by  an  automobile,  of  a  child  eight  years 
old,  of  ordinary  brightness,  having  an  ex- 
pectancy of  life  over  forty-nine  years,  ver- 
dict of  $3,300  is  not  excessive.  Ciawford 
V.  McElhinney  (Iowa)  1917E-221. 

38.  An  award  of  $8,000  in  favor  of  the 
administrator  of  a  deceased  boiler  maker, 
who  was  earning  from  $56  to  $108  per 
month  at  the  time  defendant's  negligence 
caused  his  death,  is  not  excessive,  even 
though  he  was  not  a  man  of  robust  health; 
it  appearing  that  he  was  not  incapacitated 
at  the  time  of  the  fatality.  Nicoll  v. 
Sweet   (Iowa)   1916C-661. 

39.  Where  deceased,  who  was  in  fair 
health  and  spent  most  of  his  evenings 
with  his  family,  was  forty-nine  years  old, 
and  had  an  expectancy  of  about  nineteen 
years,  and  earned  from  $20  to  $25  a  week, 
an  award  of  $4,000  damages  for  his  df^ath 
is  not  excessive.  Richardson  ▼.  Sioux 
City  (Iowa)    1918A-618. 

(c)     Assault. 

40.  Assanlt.  A  recovery  of  $3,990  for 
assault  and  battery,  and  of  $1,300  for  ma- 
licious prosecution,  held  not  excessive. 
Bursow  v.  Doerr  (Neb.)  1916C-24S. 

(Annotated.) 

(d)     Libol  and  Slander. 

41.  Damages  not  Excessive.     Where  de 
fendant,   being  sent   for  by  his   father  to 


DAMAGES. 


261 


get  some  medicine,  sent  back  word  for 
him  to  make  "that  damned  bitch  that  sits 
dressed  up  by  him  all  the  time  go,"  mean- 
ing plaintiff,  defendant's  stepmother,  and 
afterwards,  in  their  presence,  said  he 
meant  what  he  said,  a  verdict  of  $3,000  is 
not  so  grossly  excessire  as  to  shock  th« 
moral  sense  or  to  indicate  that  the  jury 
were  actuated  by  prejudice,  so  as  to  au- 
thorise the  court  to  set  it  asids  on  that 
ground,  or  to  require  plaintiff  to  take  a 
less  amount  as  a  condition  of  not  grant- 
ing a  new  trial.  Boyd  v.  Boyd  (Va.) 
1916D-1173.  (Annotated.) 

42.  Verdict  for  $1,000  to  one  of  whom 
defendant  stated  on  three  occasions  that 
he  was  a  thief  and  should  be  arrested  is 
held  not  to  be  excessive.  '  Vies  v.  Calli- 
gan   (Wash.)   1918A-819. 

Note. 

What  is  excessive  verdict  in  action  for 
libel  or  slander.     1916D-1175. 

(e)     Alienation   of   Affections. 

43.  A  verdict  of  $2700  damages  for 
alienation  of  the  affections  of  the  plain- 
tiff's husband  reviewed  and  held  not  to  be 
excessive.  Weber  v.  Weber  (Ark.)  1916C- 
743.  (Annotated.) 

(f)  Action  Against  Telegraph  Company. 

44.  Mental  Anguish — Damages  Exces- 
sive. Where  a  telegraph  company  negli- 
gently delayed  the  transmission  of  a 
message  informing  plaintiff  that  his  father- 
in-law,  whom  he  had  not  seen  for  over 
seven  years,  with  whom  he  had  had  inti- 
mate relations,  had  died,  and  the  delay 
prevented  plaintiff  from  reaching  the 
place  of  death  in  time  for  the  funeral,  an 
award  of  $250  damages  is  excessive  by 
$200,  where  the  body,  which  was  not  em- 
balmed, would  have  been  decomposed  had 
the  funeral  been  delayed  to  await  plain- 
tiff's coming,  and  the  only  service  plaintiff 
could  have  rendered  would  have  been  to 
follow  the  remains  of  his  father-in-law  to 
the  grave.  Western  Union  Tel.  Co.  v. 
Blake  (Ark.)  1916C-521.  (Annotated.) 

(g)     False   Imprisonment. 

45.  Excessivcness.  Where  a  warden, 
having  charge  of  convict  labor  hired  out 
to  a  contractor,  refused  to  release  a  con- 
vict on  the  delivery  of  a  pardon  to  him 
on  the  mistaken  assumption  that  only  the 
contractor  had  such  authority,  and  the 
convict  was  detained  4  or  5  hours  and  was 
compelled  to  work  2^  hours  after  receipt 
of  the  pardon,  but  no  indignities  were 
offered  him,  a  verdict  of  $1,000  for  the 
false  imprisonment  is  excessive,  and  a  ver- 
dict for  $25  would  be  aflSrmed.  Weigel  v, 
McCloskey  (Ark.)  1916C-503. 

(Annotated.) 


46.  A  /verdict  of  $4,000  for  alleged 
wrongfur  ejection  of  plaintiff  from  de- 
fendant's train,  and  his  arrest  and  de- 
tention for  an  honr,  without  a  showing 
of  any  physical  force  or  brutal  treat- 
ment or  physical  injury,  even  if  plain- 
tiff was  not  drunk  or  disorderly,  as  al- 
leged, is  in  excess  of  what  will  justly 
compensate  him  for  the  suffering  endured. 
Cincinnati,  etc.  E.  Co.  v.  Cundiff  (Ky.) 
1916C-513.  (Annotated.) 

47.  Damages  not  Excessive.  Nor  can  we 
judicially  say  the  verdict  and  judgment 
for  plaintiff  for  $200  was  excessive.  How- 
ell T.  Wysor  (W.  Va.)  1916C-519. 

(Annotated.) 

(h)     Sape. 

48.  Damages  not  Excessive.  Verdict  for 
plaintiff  for  $5,000  in  a  civil  action  for 
rape  is  not  excessivet  Jensen  v.  Lawrence 
(Wash.)  1917E-133.  (Annotated.) 

(i)     Malpractice. 

49.  Where  a  physician  wrongfully  diag- 
nosed plaintiff's  trouble  as  cystic  tumors, 
instead  of  pregnancy,  and  when  she  was 
operated  upon  none  were  found,  and  she 
suffered  much  shock  and  underwent  pain 
during  her  confinement,  an  award  of  $500 
is  not  excessive.  Just  v.  Littlefield 
(Wash.)   1917D-705. 

50.  The  damages  awarded  are  not  ex- 
cessive. Viita  v.  Fleming  (Minn.)  1917E- 
678. 

51.  Verdict  not  ExcessiTe.  Where  a  sur- 
geon, in  treating  a  fractured  collar  bone, 
did  not  exercise  the  degree  of  care  which 
the  law  requires,  resulting  in  the  fragments 
overlapping  and  causing  a  deformity  and 
condition  which  rendered  the  plainfiff  a 
cripple  and  necessitated  an  operation  by 
another  surgeon,  who  made  an  ineisibn 
down  to  the  bone,  refractured  it  by  the 
use  of  instruments,  made  a  hole  in  each 
fragment,  and  inserted  a  wire  to  hold  the 
bones  in  place  and  prevent  overlapping 
until  a  new  union  was  effected,  in  view  ef 
the  pain  and  suffering,  expense,  and  loss 
of  time  necessarily  entaijed,  a  verdict  for 
$1,000  is  not  excessive  and  does  not  indi- 
cate that  the  jury  was  influenced  by  bias 
or  prejudice.  Craghead  t.  McCullough 
(Colo.)  1916C-1075.  (Annotated.) 

52.  Verdict  Excessive.  A  verdict  of 
$7,3&'5  for  malpractice  is  not  seasonably 
setting  a  fracture  of  a  femur  held  exces- 
sive to  the  extent  of  $2,000.  Cranford  v. 
O'Shea  (Wash.)   1916C-1081. 

(Annotated.) 

Note. 

What  is  excessive  or  inadequate  verdict 
in  action  against  physician  for  malprac- 
tice.    1916C-1078. 


262 


(j)     Criminal  Conversation. 

53.  Damages  not  Excessive.  In  an  ac- 
tion for  crimiual  conversation,  a  verdict 
for  $3,500  did  not  show  an  abuse  of  the 
jury's  discretion  as  to  awarding  punitive 
or  exemplary  damages.  Jowett  v.  Wallace 
(Me.)   1917A-754. 


DIGEST. 

1916C— 1918B. 

York,  the  common  law  duty  of  the  steam- 
ship company  was  to  carry  the  body  to 
New  York  and  to  deliver  it  to  the  next  of 
kin  for  burial,  and  for  breach  of  such  duty 
a  son  has  a  cause  ,of  action.  Finley  v. 
Atlantic  Transport  Co.  (N.  Y.)  1917D- 
726. 


(k)     Malicious  Prosecution. 

54.  Ezcessiveness  of  Piinitive  Damages. 
"Where,  in  a  malicious  prosecution  suit,  $25 
compensatory  damages  and  $1,000  punitive 
damages  were  assessed,  it  is  held  the  dis- 
parity between  the  two  kinds  of  damages 
was  too  great,  and  the  punitive  damages 
should  be  reduced  to  $200.  Gordon  v.  Mc- 
Learn  (Ark.)   1918A-482. 

55.  Recovery  mot  Excessive,  Where 
plaintiff  and  her  husband  were  arrested  for 
larceny,  and_  the  hearing  was  held  in  a 
country  precinct  80  miles  from  the  county 
seat  where  plaintiffs'  attorneys  resided, 
and  without  railroad  connection,  an  attor- 
ney's fee  of  $250  will  not  be  held  unrea- 
sonable, though  there  is  no  testimony  to 
show  its  reasonableness.  Mcintosh  v. 
Wales  (Wyo.)  1916C-273.         (Annotated.) 

DAMNUM  ABSQUE  INJUEIA. 

Damage  to  riparian  land  by  floating  logs, 
see  Trees  and  Timber,  23. 


DANGEROUS  EMPLOYMENT  ACT. 

Liability   of    owner     to     contractor's   em- 
ployee, see  Independent  Comtractors,  5. 


Duty  to 
20. 


DARK  PASSAGE. 

light,  see  Landlord  and  Tenant, 


DATS. 

Meaning,  see  Time,  2. 

DEAD  BODY. 

See     Cemeteries;      Coroners;     Death     by 

Wrongful  Act. 
Burial  insurance',  see  Insurance,  59. 

1.  Property  Right  in  Dead  Body.     A  son 

has  a  legal  right  to  the  possession  of  the 
dead  body  of  his  father,  and  any  unlawful 
interference  with  that  right  is  an  action- 
able wrong.  Finley  v.  Atlantic  Transport 
Co.   (N.  Y.)    1917D-726.  (Annotated.) 

2.  There  is  no  right  of  property  in  a 
dead  body  in  the  ordinary  commercial  use 
of  the  term.  Finley  v.  Atlantic  Transport 
Co.  (N.  Y.)  1917D-726.  (Annotated.) 

3.  Unnecessary  Burial  at  Sea.  Where  a 
steamship  passenger  died,  and  the  body 
was  embalmed  and  put  in  such  condition 
that  it  could  have  been  carried  to  New 


4.  Duty  to  Bury.  At  common  law  it  is 
the  duty  of  an  individual  under  whose 
roof  a  poor  person  dies  to  <:arry  the  body 
decently  covered  to  the  place  of  burial, 
and  the  body  cannot  be  cast  out  so  as  to 
expose  it  to  violation  or  offend  the  feel- 
ings or  injure  the  health  of  the  living. 
Finley  v.  Atlantic  Transport  Co.  (N.  Y.) 
1917D-726. 

5.  Right  of  Dissection.  Under  Penal 
Law  (Consol.  Laws,  c.  40),  §  2211,  as  to 
burial  of  dead  bodies,  right  of  dissection 
exists  only  when  a  coroner  is  authorized 
by  law  to  hold  an  inquest,  or  when  the 
next  of  kin  authorizes  dissection  to  learn 
the  cause  of  death.  Finley  v.  Atlantic 
Transport  Co.  (N.  Y.)   1917D-726. 

6.  Demand  for  Excessive  Fare.  A 
brother-in-law  of  decedent  took  charge  at 
the  request  of  decedent's  husband,  of  the 
arrangements  to  transport  decedent's  body 
and  he  purchased  a  ticket  for  the  corpse. 
The  undertaker  obtained  a  check  therefor 
from  the  station  baggage  agent,  and  the 
corpse  was  received  by  the  carrier  for 
transportation  so  checked.  The  ticket  col- 
lector wrongfully  demanded  fare  from  the 
brother-in-law  for  the  corpse,  and  also 
exacted  excessive  fare.  It  is  held  that 
the  brother-in-law  had  sufficient  legal 
rights  to  justify  a  recovery  of  actual  and 
punitive  damages  caused  by  the  wrongful 
act  of  the  ticket  collector.  Osteen  v. 
Southern  K.  Co.  (S.  Car.)  1917C-505. 

(Annotated.) 

7.  Title  to  Lot.  In  a  proceeding  for  the 
exhumation  of  a  dead  body,  heard  on  affi- 
davits, the  title  to  a  cemetery  lot  wherein 
the  burial  occurred  cannot  be  determined. 
State  V.  Clifford  (Wash.)   1916D-329. 

8.  Where  a  stepdaughter  who  held  title 
to  a  cemetery  lot  did  not  object  immedi- 
ately upon  the  interment  therein  of  the 
body  of  her  stepfather  according  to  the 
directions  of  the  surviving  widow,  it  will 
not  be  ordered  exhumed  upon  objection 
of  the  stepdaughter  two  years  later,  made 
to  procure  an  examination  of  the  body  to 
show  that  because  of  impotency  certain 
persons  were  not  deceased's  children,  even 
though  deceased  had  expressed  a  wish  to 
be  interred  in  anotner  place.  State  v. 
Clifford    (Wash.)     1916D-329. 

/  (Annotated.) 

9.  Under  Rem.  &  Bal.  Code,  §  1345,  pro- 
viding that  every  illegitimate  child  shall 
be  considered  as  an  heir  to  the  person  who 
shall  in  writing  before  witnesses  have  ac- 
knowledged himself  to  be  the  father,  a 
husbandj  who  in  an  action  against  his  wife 


DEADLY  WEAPON— DEATH. 


263 


for  divorce  on  the  ground  of  adultery 
alleged  in  his  complaint  and  testified  that 
some  of  the  children  of  the  marriage  were 
his  own,  made  such  children  his  heirs,  and 
hence  the  husband's  body  should  not  be 
ordered  exhumed  to  show  that  such  chil- 
dren were  not  his  heirs  because  he  was 
impotent.  State  v.  Clifford  (Wash.) 
1916D-329.  (Annotated.) 

10.  Power  to  Order  Exhumation.     Where 

the  paternity  of  children  is  in  issue,  the 
body  of  the  supposed  father  should  not, 
more  than  two  years  after  burial,  be  or- 
dered exhumed  for  examination  to  deter- 
mine his  capacity,  where  it  is  questionable 
whether  the  examination  would  reveal 
anything,  and  the  showing  as  to  whether 
he  was  castrated  is  conflicting.  State  v. 
Clifford  (Wash.)  1916D-329. 

(Annotated.) 

11.  Action  for  Injury — Parties.     A  son 

suing  a  steamship  company  which  buried 
his  deceased  father's  body  at  sea  for  men- 
tal anguish  and  personal  damage  need  not 
,ioin  his  brothers  and  sisters  as  plaintiffs. 
Finley  v.  Atlantic  Transport  Co.  (N.  Y.) 
1917D-726. 

Note. 

Power  of  court  to  order  exhumation  of 
dead  body  for  evidentiary  purposes. 
1916D-331. 

DEADLY  WEAPON". 

See  Weapons,  3. 


DEAD  PEBSON. 

Defamation  of  dead,  see  liibel  and  Slan- 
der, 34. 

DEALEB. 

Meaning,  see  Interstate  Commerce,  4. 
Meaning,  see  Licenses,  25. 


DEATH. 

See  Homicide. 

Abatement  of  actions,  see  Actions  and 
Proceedings,  16-18. 

Dying  declarations,  see  Admissiona  and 
Declarations,  21-24. 

Termination  of  agency,  see  Agency,  3. 

Property  of  deceased  alien,  see  Ambas- 
sadors and  Consuls,  2,  4-7. 

Dissolution  of  attachment  by  death,  see 
Attachment,  8,  10,  11. 

Terminates  agreement  to  marry,  see 
Breach  of  Promise  of  Marriage,  4. 

Revocation  of  dedication  by,  see  Dedica- 
tion, 23. 

Monument  not  a  funeral  expense,  see 
Executors  and  Administrators,  26. 

Of  spouse,  effect  on  homestead,  see  Home- 
stead, 20,  21. 

Liability  of  husband  for  wife's  funeral, 
see  Husband  and  Wife,  46,  47. 


Of  joint  /tenant,   survivorship,   see   Joint 

Tenaiits,  1,  2,  4. 
Cause  of  death,  see  Life  Insurance,  38,  40. 
Proof  of  death,  see  Life  Insurance,  43-44. 
As  abating  will  contest,  see  Wills,  121. 
Testimony  as  to  transactions  with  person 

since  deceased,  see  Witnesses,  35-46. 

1.  Time  of  Death  Presumed  from  Ab- 
sence. In  such  case,  the  presumption  is 
that  the  absentee  died  during  the  first 
seven  years  of  his  unexplained  absence. 
There  is  no  presumption  that  his  death 
occurred  at  any  particular  time  during 
said  period.  McLaughlin  v.  Sovereign 
Camp  (Neb.)   1917A-79.  (Annotated.) 

2.  Presumption  from  Absence.  "A  pre- 
sumption of  death  arises  from  the  con- 
tinued and  unexplained  absence  of  a  per- 
son from  his  home  or  place  of  residence 
for  seven  years,  where  nothing  has  been 
heard  from  or  concerning  him  during  that 
time  by  those  who,  were  he  living,  would 
naturally  hear  from  him,"  Holdrege  v. 
Livingston,  79  Neb.  238.  McLaughlin  v. 
Sovereign  Camp  (Neb.)  1917A-79. 

3.  Grant  of  Letters  of  Administration  as 
Evidence  of  Death.  Acts  33d  Gen.  Assem. 
c.  200,  provides  that,  when  a  resident  of 
this  state  owning  property,  or  any  person 
who  may  have  been  a  resident  and  ac- 
quired property  rights  within  the  state, 
absents  himself  from  his  usual  place  of 
residence  and  conceals  his  whereabouts 
from  his  family  without  known  cause  for 
a  period  of  seven  years,  or  where  any  such 
person  has  gone  to  parts  unknown  for  a 
period  of  ten  years,  a  petition  may  be  filed 
in  the  district  court  setting  forth  the 
facts  by  any  person  entitled  to  administer 
upon  such  absentee's  estate  if  he  were 
known  to  be  dead,  setting  forth  the 
names  of  the  persons  who  would  be  his 
legal  heirs  if  he  were  dead,  so  far  .as 
known,  and  praying  for  the  issuance  of 
letters  of  administration  upon  the  estate, 
which  may  be  issued.  In  an  actioA 
against  a  fraternal  benefit  insurance  or- 
ganization by  the  beneficiary  of  a  death 
benefit  certificate,  plaintiff  introduced  as 
evidence  of  her  husband's  death  letters  of 
administration  upon  his  estate  issued  to 
her  by  the  district  court  under  chapter 
200,  on  account  of  insured's  continued  ab- 
sence. It  is  held  that  such  letters  of  ad- 
ministration upon  the  absentee's  estate 
were  not  admissible,  since  they  were  with- 
out probative  value  as  to  his  death;  the 
statute  providing  for  the  administration 
of  absentees'  estates,  and  not  for  those  of 
decedents.  Werner  v.  Fraternal  Bankers' 
Reserve  Soc.  (Iowa)   1918A-100o. 

(Annotated.) 

4.  Presumption  of  Death  from  Absence. 
The  unexplained  absence  from  home  for 
seven  years  of  a  person  raises  the  pre- 
sumption of  his  death.  Werner  v.  Fra- 
ternal Bankers'  Reserve  Soe.  (Iowa) 
1918A-1005. 


264 


DIGEST. 

19160— 1918B. 


Notes. 

Grant  of  letters  testamentary  or  of  ad- 
ministration as  evidence  of  deatii.  1918A- 
1011. 

Time  of  death  within  rule  as  to  pre- 
sumption of  death  from  absence.  1917A- 
82. 

DEATH  BY  WBONGFXTI.  ACT. 

1.  Origin  and  Nature  of  Bight  of  Aotion, 

264. 

2.  Suit  in  Foreign  Jurisdiction,  SM, 

3.  Limitation  of  Actions,  265. 

4.  Who  may  Sue,  265, 

a.  Illegitimate  Belatives,  265. 

b.  Nonresident  Aliens,  265. 

5.  Actions,  265. 

a.  Form  of  Action,  265. 

b.  Defenses,  266. 

c.  Evidence,  266. 

d.  Instructions,  267. 

e.  Questions  for  Jury,  26S. 

6.  Measure  of  Damages,  268. 

a.  Generally,  268. 

b.  For  Death  of  Child,  268. 

c.  For  Death  of  Husband.  268. 

d.  For  Death  of  Parent,  269. 

See  Automobiles,  39-51,  46,  47-49:   OlTll 

Damage  Acts,  1-6. 
Eepresentation  of  deceased  alien  by  con- 
sul, see  Ambassadors  and  Consols,  4-7. 
Harmless  error  in  excluding  evidence,  see 

Appeal  and  Error,  272. 
Fxcessiveness   of  damages,  see  Damages, 

34-39, 
Liability  under  Employers'  Liability  Act, 

see  Master  and  Servant,  73. 
Failure  to  furcish  fire-escapes,  see  Fires, 

5. 
Fraudulent   release  of  claim,  gee  Belease 

and  Discharge,  5. 
No  recovery  for  pension  of  deceased,  see 

Ships  ajid  Shipping,  3. 

L     ORIGIN  AND  NATURE  OH'  KlGHT 
OF  ACTION. 

1.  Nature  of  Klght  to  EecoTer.  A  right 
to  recover  for  the  death  of  another  is 
statutory.  McLaughlin  v.  United  Rail- 
roads (Cal.)   1916D-337. 

2.  The  right  of  action  for  wrongful 
death  given  by  Shannon's  Code,  §  4025  et 
sec,  is  that  which  the  deceased  would  have 
had  if  he  had  lived,  and  the  recovery  is  in 
right  of  the  deceased.  Sharp  v.  Cincinnati, 
etc,  B.  Co,   (Tonn.)   1917C-1212. 

3.  An  action  under  the  Homicide  Act 
(Code  1907,  §  2486),  authorizing  actions  for 
damages  for  any  wrongful  act,  omission,  or 
negligence  causing  the  death  of  another,  it 
a  civil,  not  a  penal  or  quasi  criminal,  ac- 
tion, though  the  damages  are  punitive, 
Wat«on  V.  Adams  (Ala.)    1916E-565. 

4.  In  action  for  wrongful  death  by 
negligence  under  Code  Civ.  Proc.  SS  1902- 


1905,  the  executor  or  administrator  of  de- 
cedent is  a  mere  nominal  party  without 
any  interest  in  the  damages,  holding  them, 
when  recovered,  as  trustee  or  agent  for 
the  beneficiaries;  the  claim  of  the  benefi- 
ciaries being  of  the  same  character  as 
claims  for  injuries  to  the  property  of 
claimants,  Hamilton  v.  Erie  R.  Co.  (N.  Y.) 
1918A-928. 

5.  The  cause  of  action  for  death  from 
negligence  created  by  Code  Civ.  Proc. 
§5  1902-1905,  is  original  and  not  derivative, 
and  is  not  a  part  of  the  estate  of  decedent, 
but  damages  are  allowed,  not  for  inury  to 
his  estate,  but  for  an  injury,  through  loss 
of  him,  to  the  estate  of  the  beneficiaries. 
Hamilton  v,  Erie  R.  Co.  (N.  Y.)  1918A- 
928. 

6.  Defenses — Release  by  Injured  Person. 
Laws  1909,  c.  301,  §  1,  declares  that,  when- 
ever the  death  of  a  person  shall  be  caused 
by  wrongful  act,  neglect,  or  default  such 
as  would  have  entitled  the  party  to  main- 
tain an  action  and  recover  damages,  then 
the  corporation  or  person  who  would  have 
been  liable  if  death  had  not  ensued  shall 
be  liable  in  an  action  for  damages  not- 
withstanding the  death  of  the  person  in- 
jured. Section  3  provides  that  every  such 
action  shall  be  for  the  exclusive  benefit 
of  the  wife,  or  husband,  or  children,  or,  if 
there  be  neither  of  them,  then  for  the 
parents  and  next  of  kin  of  the  person 
whose  death  shall  be  so  caused.  It  is  held 
that,  where  a  husband  who  was  injured 
executed  a  release  to  the  wrongdoer  be- 
fore his  death,  an  action  might  be  main- 
tained for  the  benefit  of  the  dependent 
vrife,  children,  or  next  of  kin,  for  the  stat- 
ute creates  a  wholly  new  "cause  of  ac- 
tion," which  consists  of  a  right  belonging 
to  one  person  and  some  wrongful  act  or 
omission  by  another  by  which  the  right 
has  been  violated,  and  the  provision  with 
respect  to  the  right  of  the  Injured  person 
to  maintain  an  action  merely  requires  that 
the  wrong  in  the  first  instance  should  ffive 
rise  to  a  cause  of  action.  Rowe  v.  Rich- 
ards (S.  Dak.)  1918A-294, 

(Annotated.) 

Notes. 
Death  of  human  being  as  element  of  re- 
covery in  civil  action  between  third  per- 
sons,    1917B-886, 

2.     SUIT  IN  FOREIGN  JURISDICTION. 

7.  An  administrator  may  be  appointed 
to  bring  an  action  for  wrongful  death 
wherever  the  defendant  may  be  founds 
though  the  decedent  was  a  nonresident 
and  left  no  assets  in  the  state  other  than 
such  right  of  action,  and  though  he  sus- 
tained the  injuries  causing  his  death  in 
another  state,  as  the  right  of  action  itself 
is  property  and  is  transitory,  and  exists 
wherever    the    defendant    may    be    found. 


DEATH  BY  WRONGFUL  ACT. 


265 


Howard  v.  Nashville,  etc.  R.  Co.   (Tenn.) 
1917A-844.  (Annotated.) 

8.  What  Law  Governs.  A  right  of  ac- 
tion for  wrongful  death  is  governed  by 
the  laws  of  the  state  where  the  injury 
occurred.  Sharpe  v.  Cincinnati,  etc.  B. 
Co.  (Tenn.)  1917C-1212. 

9.  A  right  of  action  for  wrongful  death 
is  transitory  and  may  be  enforced  against 
the  defendant  wherever  he  may  be  found, 
provided  it  is  not  contrary  to  the  policy 
of  the  forum  and  is  allowed  by  the  state 
wherein  the  injury  occurred,  except  in 
those  cases  controlled  by  federal  statutes. 
Howard  v.  Nashville,  etc.  B.  Co.  (Tenn.) 
1917A-844. 


3.     LIMITATION  OF  ACTIONS. 

10.  In  an  action  against  a  railroad  for 
death  of  its  employee,  a  change  from  the 
widow  as  party  plaintiff  to  the  adminis- 
trator as  such  was  no  change  of  the  cause 
of  action  within  the  statute  of  limitations, 
though  the  purpose  of  the  amendment  was 
to  bring  the  case  within  the  Federal  Em- 
ployers' Liability  Act  (Fed.  St.- Ann.  1909 
Supp.  584)  under  which  the  widow  cannot 
recover.  Nashville,  etc.  By.  v.  Anderson 
(Tenn.)  1917D-902.  (Annotated.) 

11.  Amendment  Omitting  Eeference  to 
State  Statute.  In  a  widow's  action 
against  a  railroad  for  death  of  its  em- 
ployee, where  plaintiff's  original  pleadings 
referred  to  the  Georgia  statutes,  the 
amendment  of  such  pleadings  to  omit  all 
reference  to  such  statute  and  to  show 
that  decedent  was  employed  in  interstate 
commerce  when  killed,  defendant's  plea 
having  shown  such  fact  originally,  upon 
substitution  of  decedent's  administrator 
ab  plaintiff  under  the  Federal  Employers' 
Liability  Act,  was  not  a  change  of  cause  of 
action  within  the  statute  of  limitations, 
since  the  reference  to  the  Georgia  statute 
could  be  disregarded  as  surplusage.  Nash- 
ville, etc.  Ry.  v.  Anderson  (Tenn.)  1917D- 
902. 

12.  Effect  of  Bar  of  Action  for  Injury. 
Since  a  right  of  action  for  injuries  be- 
longs to  the  injured  person,  terminates  at 
his  death,  and  depends  on  the  common 
law,  while  the  right  to  damages  for  -wrong- 
ful death  resulting  from  such  injuries  be- 
longs exclusively  to  the  administrator  and 
is  a  creature  of  statute,  limitations  having 
run  against  an  action  for  injuries  to  de- 
cedent is  no  bar  to  the  administrator's 
right  to  recover  for  wrongful  death. 
Causey  v.  Seaboard  Air  Line  R.  Co. 
(N.   Car.)    191GC-707.  (Annotated.) 

13.  Necessity  That  Plaintiff  Plead  Com- 
pliance With  Statute  of  Limitations.  Un- 
der Code  Civ.  Proc.  §  1902,  providing  that 
the  executor  or  administrator  of  a  deee- 
ient  who  has  left  surviving  husband,  wife, 


or  next  of  kin  may  maintain  an  action 
to  recover  damages  for  a  wrongful  act, 
resulting  in  death  of  such  decedent,  and 
providing  that  "such  an  action  must  b© 
commenced  within  two  years"  after  the 
decedent's  death,  it  is  not  necessary  that 
it  appeal  from  the  face  of  the  complaint 
that  action  was  commenced  within  two 
years.  Sharrow  v.  Inland  Lines  (N.  Y.) 
1916D-1236.  (Annotated.) 

Notes. 

Pleading  statute  of  limitations  in  ac- 
tion for  death  by  wrongful  act.  1916D- 
1241. 

Commencement  of  running  of  statute  of 
limitations  against  action  for  death  bj 
wrongful  act.     1916C-713. 

4.     WHO  MAY  SUB. 
&.    Illegitimate  Relatives. 

14.  Mother  of  Illegitimate  CHiild.  Un- 
der our  statute  the  mother  of  an  illegiti- 
mate minor  child,  and  the  mother  alone, 
has  the  right  to  sue  for  and  recover  dam- 
ages for  the  death  of  such  child  by  the 
wrongful  act,  negligence,  carelessness,  or 
default  of  another.  Hadley  t.  Tallahas- 
see (Fla.)   1916C-719.  (Annotated.) 

Notes. 

Right  of  persons  other  than  parent  to 
recover  for  death  of  illegitimate  child. 
1916E-454. 

Right  of  parent  to  recover  for  death  of 
illegitimate  child.     1916C-720. 

b.     Nonresident  Aliens. 

15.  Bights  of  Alien  Beneficiary.  The 
alienage  of  the  beneficiaries  of  the  cause 
of  action  for  death  by  negligence,  given 
by  Code  Civ.  Proc.  §§  1902-1905,  does  not 
affect  their  rights.  Hamilton  t.  Erie  B. 
Co.  (N.  Y.)  1918A-928. 

5.     ACTIONS, 
a.    Form  of  Action. 

16.  Trial  on  Wrong  Theory  —  Effect. 
Where  the  trial  of  an  action  for  death  of 
a  passenger,  flung  overboard  by  the  lurch- 
ing of  a  steamship,  proceeds  on  the  theory 
that  the  case  was  governed  by  St.  1907, 
c.  375,  imposing  a  penalty  for  negligently 
causing  the  death  of  a  human  being  in  in- 
stances where  no  other  remedy  is  given, 
there  is  a  mistrial,  since  such  statute  has 
no  application  to  death  of  a  passenger 
caused  by  the  negligence  of  a  common  car- 
rier, a  matter  regulated  by  Rev.  Laws, 
c,  70,  §  6,  providing  a  statutory  penalty 
for  death  caused  by  the  negligence  of 
common  carriers,  the  rule  of  damages  and 
grounds  of  liability  established  by  the  two 
acts  being  different.  Hanley  v.  Eastern 
Steamship  Corp.  (Mass.)  1917D-1034. 


266 


DIGEST. 

1916C— 1918B. 


b.     Defenses. 


17.  Settlement  by  Administrator  of  Ac- 
tion for  Injuries.  Where  the  plaintiff  dies 
during  the  pendency  of  an  action  for  per- 
sonal injury,  and  a  revivor  is  had  in  the 
name  of  an  administrator,  who  accepts  a 
payment  in  full  satisfaction  of  all  claims, 
no  further  recovery  can  be  had  for  the 
benefit  of  the  next  of  kin,  upon  the  theory 
that  the  death  was  due  to  the  injury  which 
was  the  basis  of  the  original  action. 
Berner  v.  Whittelsey  Mercantile  Co. 
(Kan.)   1916D-350.  (Annotated.) 

18.  Antecedent  Disease.  Where  plain- 
tiff's intestate  died  of  traumatic  pneu- 
monia, caused  by  being  struck  by  a  fall- 
ing cornice  of  defendant's  building,  the 
fact  that  deceased  was  predisposed  to 
disease  will  not  excuse  defendant  from 
liability  for  negligence.  Nicoll  v.  Sweet 
(Iowa)  1916C-661. 

c.    Evidence. 

19.  Admissibility  of  Coroner's  Verdict. 
In  an  action  for  the  death  of  a  person 
struck  by  defendant's  automobile  truck,  a 
verdict  of  a  coroner's  jury,  in  which  it 
was  stated  that  in  the  opinion  of  the 
jurors  the  driver  of  the  truck  was  blame- 
less, is  properly  admitted,  as  the  finding 
of  a  coroner's  jury  is  admissible  in  evi- 
dence, and  the  question  whether  the  driver 
was  blameless  was  an  essential  matter  be- 
fore the  jury  for  its  investigation,  and 
properly  included  in  its  verdict.  Devine 
v.  Brunswick-Balke-Collender  Co.  (111.) 
1917B-887.  (Annotated.) 

20.  Cause  of  Death.  In  an  action  for 
death  by  wrongful  act  the  burden  is  on 
the  plaintiff  to  show  that  the  death  of  his 
intestate  was  proximately  caused  by  the 
injuries  received  through  the  defendant's 
negligence  and  not  by  a  pre-existing 
disease.  Carmody  v.  Capital  "Traction  Co. 
(D.  C.)  1916D-706. 

21.  Property  Left  by  Deceased.  While, 
in  an  action  for  the  death  of  one  who  left 
a  widow,  but  no  children,  it  would  be  im- 
proper to  show  what  property  she  received 
from  him,  admission  of  evidence  of  the 
amount  of  property  he  left,  it  not  appear- 
ing what  disposition  of  it  he  made  by  his 
will,  or  what  debts  he  left,  cannot  be  said 
to  have  been  prejudicial  to  defendant. 
Mahlstedt  v.  Ideal  Lighting  Co.  (111.) 
1917D-209. 

22.  The  common-law  rule  that  a  wife  is 
not  competent  to  testify  to  any  fact  or 
transaction,  knowledge  of  which  was  ob- 
tained by  means  of  the  marriage  relation, 
does  not  prevent  her  after  his  death  tes- 
tifying in  behalf  of  his  estate  to  facts  re- 
lating to  him  coming  to  her  knowledge 
independently  of  him,  and  not  because  of 
any  confidential  relation  between  them. 
Mahlstedt  v.  Ideal  Lighting  Co.  (111.) 
1917D-209,  (Annotated.) 


23.  Complaints  of  Suffering.  In  an  ac- 
tion for  wrongful  death,  while  the  admin- 
istrator is  not  entitled  to  recover  for  de- 
ceased's conscious  suffering,  evidence  of 
complaints  made  by  deceased  of  pain  and 
suffering  soon  after  the  injury  is  admis- 
sible as  bearing  on  the  extent  and  location 
of  his  injuries.  Nicoll  v.  Sweet  (Iowa) 
1916C-661. 

24.  Damages  Held  Excessive.  In  a 
parent's  action  for  loss  of  services,  etc., 
of  a  minor  son,  killed  in  defendant's  em- 
ployment, evidence  held  not  to  sustain  a 
finding  that  the  boy's  probable  earnings, 
less  the  expense  of  maintenance,  etc.,  to- 
gether with  the  amount  allowed  for  fune- 
ral expenses,  would  amount  to  more  than 
$1,000,  so  that  the  judgment  would  be  re- 
duced to  that  amount.  Carnego  v.  Cres- 
cent Coal  Co.  (Iowa)  1916D-794. 

25.  Sufficiency.  Evidence  that  a  certain 
sum  was  paid  as  the  funeral  expenses  of  a 
minor  son  did  not  authorize  the  submission 
of  the  reasonable  expenses  of  the  funeral 
to  the  jury,  in  a  father's  action  for  loss  of 
services,  etc.,  in  absence  of  other  evidence 
as  to  the  reasonable  cost  of  the  burial. 
Carnego  v.  Crescent  Coal  Co.  (Iowa) 
1916D-794.  (Annotated.) 

26.  Inheritance  from  Deceased.  In  an 
action  by  children  for  the  negligent  death 
of  a  parent,  evidence  of  the  property  re- 
ceived by  them  in  the  distribution  of  the 
estate  of  the  deceased  parent  is  not  ad- 
missible. McLaughlin  v.  United  Railroads 
(Cal.)    1916D-337.  (Annotated) 

27.  Evidence  of  Domestic  Relations  of 
Deceased.  In  an  action  for  wrongful 
death,  evidence  of  the  number  of  children 
of  deceased  is  admissible,  just  as  the  fact 
of  his  marriage,  to  show  an  incentive  to 
thrift  and  accumulation.  Nicoll  v.  Sweet 
(Iowa)   1916C-661.  (Annotated.) 

28.  Payment  of  Funeral  Expenses.  In 
a  parent's  action  for  loss  of  services 
of  a  minor  child  killed  by  defendant's 
negligence,  evidence  that  a  witness  paid 
a  certain  sum  for  the  minor's  funeral 
expenses  on  behalf  of  the  boy's  father, 
who  gave  the  witness  the  money  was  ad- 
missible as  tending  to  show  that  funeral 
expenses  had  been  incurred,  though  not 
sufficient  to  show  the  reasonableness  of 
such  expenses.  Carnego  v.  Crescent  Coal 
Co.  (Iowa)   1916r)-794. 

29.  Nature  of  Injury  Received.  A  de- 
scription of  the  injuries  received  by  a 
child  killed  by  a  street  car  is  properly 
admitted,  it  tending  to  show  they  were 
received  in  the  manner  claimed  by  plain- 
tiff, defendant  claiming  they  were  re- 
ceived in  another  manner.  Wende  v. 
Chicago  City  R.  Co.  (111.)   1918A-222. 

30.  What  Testimony  is  Negative.  Where, 
in  an  action  against  a  railroad  company 
for  the  wrongful  death  of  a  Pullman  car 
employee  engaged  in  repairing  cars,  due 
to  the  shifting  of  a  car  without  warning 


DEATH  BY  WRONGFUL  ACT. 


267 


to  him,  the  witnesses  who  testified  that  no 
warning  was  given  while  deceased  was 
where  he  could  have  heard  it  had  special 
opportunities,  by  reason  of  their  being  en- 
gaged in  the  railroad  yard  in  occupations 
similar  in  the  matter  of  danger,  to  hear 
and  remember  such  warning  if  it  had  been 
given,  their  testimony  was  not  purely 
negative  in  character.  Philadelphia,  etc. 
R.  Co.  V.  Gatta  (Del.)  1916E-1227. 

31.  Mortality  Tables.  Though  the  Am- 
erican experience  mortality  tables  are 
made  up  from  selected  lives,  such  tables 
are  admissible  in  an  action  for  wrongful 
death  of  one  who  it  appeared  had  previ- 
ously been  a  sufiferer  with  asthma,  since 
they  show  only  the  probable  continuance 
of  life,  and  do  not  show  the  continuance 
of  earning  power.  Fifield's  Administra- 
trix V.  Rochester   (Vt.)    1918A-1016. 

(Annotated.) 

32.  Affection  for  Children.  Though  the 
action  is  only  for  the  pecuniary  loss  sus- 
tained by  deceased's  children  from  his 
death,  evidence  that  he  taught  his  little 
girl  her  Sunday  school  lessons,  and  wanted 
her  to  go  to  Sunday  school,  and  made  her 
practice  her  music  lessons,  is  admissible 
to  show  he  had  an  affection  for  his  chil- 
dren, took  an  interest  in  their  welfare, 
and  on  that  account  would  be  likely  to 
contribute  in  the  future  to  their  support. 
Chicago,  etc.  R.  Co.  v.  Gunn  (Ark.)  1916E- 
648.  (Annotated.) 

Notes. 

Admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  habits  or 
physical  condition  of  deceased.  1916E- 
652. 

Admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  property  in- 
herited by  plaintiff  from  deceased.  1916D- 
340. 

Admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  domestic  re- 
lations of  deceased.     1916C-671. 

Admissibility  of  coroner's  verdict  as  evi- 
dence in  subsequent  proceedings.  1917B- 
892. 

Admissibility,  in  action  for  death  by 
wrongful  act,  of  mortality  tables  to  show 
probable  duration  of  life.     1918A-1021. 

d.     Instructions. 

33.  Instructions  as  to  Measure  of  Dam- 
ages. Where,  in  an  action  for  negligent 
death,  the  court  fairly  instructs  the  jury 
on  the  measure  of  compensation,  refusal 
to  charge  that  the  pecuniary  value  of  the 
life  of  decedent  to  plaintiffs  is  the  value 
in  money  of  the  life  of  decedent  to  plain- 
tiffs at  the  time  of  her  death  is  properly 
refused.  McLaughlin  v.  United  Railroads 
(Cal.)   1916D-337. 

34.  An  instruction  in  an  action  by  chil- 
dren for  the  negligent  death  of  a  parent 
that   the   pecuniary  value   of   the   life   of 


decedent  to  the  children  is  the  value  in 
money  of  the  life  of  decedent  to  them  is 
properly  refused  because  misleading  for 
failing  to  define  the  term  "value  in 
money."  McLaughlin  v.  United  Railroad 
(Cal.)   1916D-337. 

35.  Inability  to  Obtain  Insurance.    In  an 

action  for  wrongful  death,  evidence  that 
deceased  could  not  obtain  life  insurance 
because  of  his  health  is  admissible  as  a 
circumstance  bearing  on  the  value  of  his 
life,  though  not  of  great  importance. 
Nicoll  V.  Sweet  (Iowa)  1916C-661. 

36.  In  an  action  for  wrongful  death, 
where  the  court  admitted  evidence  of  the 
number  and  ages  of  decedent's  children, 
an  instruction  that  the  amount  of  dam- 
ages could  not  be  increased  by  reason  of 
decedent's  having  left  children,  and  that 
the  evidence  was  admitted  only  upon  the 
question  of  incentive  to  industry,  is  not 
contradictory  or  misleading.  Nicoll  v. 
Sweet   (Iowa)    1916C-661. 

(Annotated.) 

37.  Negligence.  Where,  in  an  action  for 
the  death  of  a  person  struck  by  an  auto- 
mobile truck,  a  verdict  of  the  coroner's 
jury,  exonerating  the  driver  of  the  truck, 
is  admitted  in  evidence,  it  is  error  to 
charge  that  this  verdict  was  not  conclusive, 
but  that  the  jury  should  consider  it  in  de- 
termining whether  or  not  the  driver  was 
guilty  of  the  negligence  charged  in  the 
declaration,  since,  while  the  verdict  was 
competent  evidence,  its  weight  was  for  the 
jury,  and  the  court  had  no  right  to  invade 
the  province  of  the  jury  and  tell  them,  or 
attempt  to  tell  them,  what  weight  should 
be  attached  thereto,  and  the  instruction 
was  equivalent  to  a  statement  that  the 
court  regarded  such  verdict  as  very  strong 
evidence.  Devine  v.  Brunswick-Balke-Col- 
lender  Co.   (111.)   1917B-887. 

(Annotated.) 

38.  Such  instruction  is  also  objection- 
able, as  it  was  no  more  the  duty  of  the 
jury  to  consider  such  verdict  than  to  con- 
sider any  other  competent  evidence,  and 
their  attention  should  not  have  been  par- 
ticularly directed  to  such  verdict.  Devine 
V.  Brunswick-Balke-CoUender  Co.  (Ul.) 
1917B-8S7.  (Annotated.) 

39.  Damages.  In  an  action  for  the 
death  of  a  minor,  an  instruction  that  in 
assessing  damages  the  jury  were  not  con- 
fined to  the  pecuniary  value  of  the  ser- 
vices of  the  minor  to  the  next  of  kin  until 
she  had  reached  majority,  but  might  con- 
sider the  pecuniary  benefit  which  the  next 
of  kin  might  have  received  from  the  minor 
had  she  not  been  killed  at  any  age,  while 
not  proper  as  a  rule  for  measuring  dam- 
ages, is  not  erroneous,  because  it  merely 
informed  the  jury  they  were  not  merely 
confined  to  the  pecuniary  value  of  the 
minor's  services  until  she  reached  major- 
ity. Lichtenstein  v.  L.  Fish  Furniture  Co. 
(ill.)  1918A-1087. 


268 


DIGEST. 

1916C— 1918B. 


40.  Action  for  Death  of  Cliild  Falling 
Into  Pool.  In  au  action  for  death  of  a 
child,  caused  by  falling  into  a  drain  into 
which  was  discharged  hot  water  from  the 
boilers  of  a  cotton  mill,  an  instruction  that 
it  was  not  necessary  to  prove  that  the 
pool  of  water  was  not  of  itself  attractive 
to  children  is  properly  refused  as  argu- 
mentative. Thompson  v.  Alexander  City 
Cotton  Mills  Co.  (Ala.)  1917A-721. 

41.  In  an  action  for  death  of  a  child 
from  falling  into  a  drain,  into  which  the 
kot  water  from  mill  boilers  was  dis- 
charged, an  instruction  that  the  necessity 
for  having  the  blow-oflf  pipe  in  the  opera- 
tion of  the  mill  was  not  an  excuse  for 
negligence  in  not  having  the  place  of  dis- 
charge properly  guarded  is  properly  re- 
fused as  abstract  and  misleading,  where 
there  was  no  attempt  to  show  that  such 
necessity  of  a  blow-off  pipe  was  an  excuse 
for  negligence,  and  there  was  no  showing 
that  the  place  of  discharge,  as  distin- 
guished from  other  places  in  the  drain, 
was  guarded  or  not.  Thompson  v.  Alex- 
ander City  Cotton  Mills  Co.  (Ala.)  1917A- 
721. 

42.  In  an  action  for  death  of  a  child 
from  falling  into  a  drain  into  which  the 
hot  water  from  mill  boilers  was  dis- 
charged, a  charge  that  plaintiff  was  not 
required  to  prove  the  nature  of  children, 
as  the  jury  is  presumed  to  know  such 
nature  as  well  as  witnesses,  is  properly 
refused  as  argumentative.  Thompson  ▼. 
Alexander  City  Cotton  Mills  Co.  (Ala.) 
1917A-721. 

43.  In  an  action  for  death  of  a  child 
from  falling  into  a  drain  into  which  the 
hot  water  from  mill  boilers  was  dis- 
charged, an  instruction  that  it  was  not 
necessary  that  plaintiff  prove  that  defend- 
ant actually  knew  that  any  child  ever 
actually  went  or  played  in  any  part  of  the 
open  space  in  which  the  drain  was  situ- 
ated, nor  that  defendant  actually  knew 
that  such  open  place  was  attractive  to 
children,  is  properly  refused  as  mislead- 
ing. Thompson  v.  Alexander  City  Cotton 
MUls  Co.  (Ala.)  1917A-721. 

e.     Questions  for  Jury. 

44.  Dependents.  In  an  action  under 
the  Federal  Employers'  Liability  Act  (Act 
April  22,  1908,  c.  149,  35  Stat.  65  [Fed. 
St.  Ann.  1909  Supp.  p.  584]),  for  the  death 
of  an  employee,  for  the  benefit  of  his 
brothers  and  sister,  evidence  that  the 
brothers  and  the  sister  are  of  tender  age 
and  without  estate  makes  a  question  for 
the  jury  as  to  whether  they  are  depend- 
ent upon  deceased.  Kenney  v.  Seaboard 
Air  Line  R.  Co.  (N.  Car.)  19i6E-450. 

6,     MEASURE  OF  DAMAGES, 
a.     Generally. 

45.  There  is  no  fixed  rule  for  the  jury 
to  follow  in  awarding  damages  for  wrong- 


ful deatb,  except  that  all  the  elements 
which  enter  into  the  value  of  a  human  life 
as  they  appear  from  the  evidence  should 
be  considered  by  the  jury  in  the  exercise 
of  their  discretion  in  making  the  award. 
Korab  v.  Chicago,  etc.  R.  Co.  (Iowa) 
1916E-637. 

46.  The  measure  of  damages  for  wrong- 
ful death  is  the  value  of  decedent's  life  to 
his  Estate,  had  he  not  perished.  NicoU  t. 
Sweet  (Iowa)   1916C-661. 

b.     For  Death  of  Child. 

47.  A  parent  suing  for  loss  of  services 
of  a  minor  employee  killed  by  defendant's 
negligence  was  entitled  to  recover  the 
present  worth  of  his  son's  probable  earn- 
ings up  to  the  time  he  would  have  become 
of  age,  less  the  probable  cost  of  clothing, 
maintenance,  etc.  Carnego  T.  Crescent 
Coal  Co.  (Iowa)  1916D-794. 

48.  The  word  "expenses"  as  used  in 
Code,  §  3471,  permitting  a  father  to  main- 
tain an  action  for  the  actual  loss  of  ser- 
vices and  for  expenses  resulting  from  the 
injury  or  death  of  a  minor  child,  includes 
expenses  for  a  suitable  burial.  Carnego  ▼. 
Crescent  Coal  Co.  (Iowa)  1916D-794. 

49.  Recovery  by  Parent — Funeral  Ex- 
penses. At  common  law  it  was  a  father's 
duty  to  defray  the  necessary  burial  ex- 
penses of  his  child,  and  if  the  child  died 
from  injuries  after  surviving  for  a  time, 
the  parent  could  recover  for  the  loss  of 
his  services  up  to  his  death,  together  with 
expenses  for  a  suitable  burial.  Carnego 
V.  Crescent  Coal  Co.  (Iowa)  1916D-794. 

50.  Damages — ^Instructions  —  Capitaliz- 
ing Income.  In  a  mother's  action  for  the 
wrongful  death  of  her  son,  the  court  in- 
structed the  jury  to  allow  the  capital  sum 
which  would  represent  the  money  which 
plaintiff  had  a  reasonable  expectation  of 
receiving  from  decedent  during  the  term 
of  her  natural  life,  and  then  capitalize 
that  in  a  fixed  sum  and  let  that  be  the 
verdict.  It  is  held  that  the  word  "capital- 
ize" as  so  used  meant  to  convert  a 
periodical  payment  into  a  sum  in  hand, 
and,  the  jury  being  presumed  to  have  so 
understood  it,  the  instruction  was  correct. 
Brown  v.  Erie  R.  Co.  (N.  J.)  1917C-496. 

e.     For  Death  of  Husband. 

51.  Earnings  in  Unlawful  Occupation. 
In  an  action  for  the  death  of  a  hackman, 
where,  though  he  pandered  to  immorality, 
there  is  no  evidence  that  he  received  any 
compensation,  the  refusal  of  requests  that 
damages  for  his  death  could  not  be 
assessed  on  the  basis  of  his  immoral 
profits  is  not  error,  where  the  court  lim- 
ited the  jury  in  awarding  damages  to  a 
consideration  of  his  legitimate  earnings. 
Richardson  v.  Sioux  City  (Iowa)  191SA- 
618. 


DEBT— DEDICATION. 


269 


d.     For  Death  of  Parent. 

52.  Under  Code  Civ.  Proc.  §  377,  author- 
izing the  jury  to  give  such  damages  for 
death  as  under  the  circumstances  may  b« 
just  eorapensation,  damages  for  grief  and 
wounded  feelings  cannot  be  awarded,  nor 
can  the  suffering  by  decedent  in  conse- 
quence of  receiving  the  fatal  injuries  bt 
considered,  but  the  law  seeks  only  to 
compensate  in  terms  of  money  for  the 
loss,  and,  where  children  sue  for  the  death 
of  a  parent,  they  may  recover  their  rea- 
sonable expectation  of  financial  benefit 
from  the  continued  existence  of  the 
parent,  including  in  this  estimate  the  loss 
of  the  nurture,  instruction,  training,  and 
care  of  which  the  children  have  been  de- 
prived. McLaughlin  v.  United  Kailroads 
(Cal.)   1916D-337. 

53.  Federal    Employers'    Liability   Act. 

In  an  action  under  the  Federal  Employers' 
Liability  Act  CAct  April  22,  1908,  c.  149, 
35  Stat.  65  [Fed.  St.  Ann.  1909  Supp. 
p.  584]),  the  widow  and  minor  child  of 
decedent  being  beneficiaries,  the  measure 
of  damages  is  such  sum  as  the  widow 
might  reasonably  have  expected  to  re- 
ceive from  her  husband  for  support,  and 
Buch  sum  as  such  child  would  have  ex- 
pected for  support  during  minority,  plus 
compensation  for  the  loss  of  care,  counsel, 
training,  and  education  which,  under  the 
evidence,  it  might  have  reasonably  re- 
ceived from  the  parent.  Nashville,  etc 
Ey.  V.  Anderson  (Tenn.)  1917D-902. 

DEBT. 

Assignment  for  collection  outside  juris- 
diction, see  Assignments,  3-6. 

Debt  as  provable  claim,  effect  on  counter- 
claim, see  Bankruptcy,  4,  5. 

Proof  of  nonexistence,  see  Evidence,  35. 

Of  executors  and  administrators,  as  assets, 
see  Executors  and  Administrators,  16, 
17. 

Tort  judgment  as  "debt,"  see  Imprison- 
ment for  Debt  in  Civil  Cases,  2. 

Definition,  see  Mortgages  and  Deeds  of 
Trust,  20. 

Meaning,  see  Municipal  Corporations,  114. 

DEBT  LIMIT. 

See  Banks  and  Banking,  59,  60;  Counties, 

8-10. 
In     cities,     sec    Municipal     Corporations, 

111-119. 


Insurable    interest    of   creditor,    see    Life 
Insurance,  2. 

DECEASED  PERSON. 

Defamation  of  dead,  see  Libel  and  Slan- 
der,  34. 

DECEIT. 

See  False  Pretenses;  Fraud. 
Assignability  of  cause  of  action,  see  As- 
signments,  12-14. 


DECISION. 

Decisions  as  precedents,  see  Courts,  22-36. 
Without  judgment,  as  res  adjudicata,  gee 
Judgments,  64,  65. 

DECLARATION. 
See  Pleading,  4r-6. 

DECLARATION  OF  HOMESTEAD. 

Sufiiciency,  see  Homestead,  3, 

DECLARATIONS. 

See  Admissions  and  Declarations;  Dying 

Declarations. 
Declarations  of  injured  workman,  admissi'- 

bility  in  proceeding  under  Workmen's 

Compensation    Act,    see    Mastei    and 

Servant,  297. 

DECOY  LETTERS. 

See  Postoffice,  10. 

DECREE  OF  DISTRIBUTION. 
See  Executors  and  Administrators,  61. 

DECREES. 

See  Judgments. 

Sufficiency   of   exceptions   for  review,  see 
Appeal  and  Error,  433. 

DEDICATION. 

1.  In  General,  269. 

2.  What  Constitutes,  270. 

a.  Intent  of  Owner,  270. 

b.  Acceptance,  270. 

e.  Evidence  of  Dedication,  271. 

3.  Revocation,  271. 

4.  Right  to  Assert  Dedication,  272. 


DEBTOR  AND   CREDITOR. 

See    Accord    and    Satisfaction;    Accounts 

and     Accounting;     Fraudulent     Sales 

and  Conveyances. 
Bank  creditor  of  depositor,  see  Banks  and 

Banking,  26,  27. 
Priviloijed    communications    between,    see 

Libel  and  Slander,  49,  50,  59. 


1.     IN  GENEEAL. 

1.  Wliat  Constitutes  —  Sale  With  Refer- 
ence to  Map.  A  vendor  may  be  estopped 
to  deny  dedication  of  land  to  the  public 
use  as  a  highway  when  he  has  sold  prop- 
erty abutting  thereon  to  individuals  on 
the  faith  of  a  recorded  map.  Eltinge  v. 
Santos  (Cal.)  1917A-1143. 


270 


DIGEST. 

1916C— 1918B. 


2.  Who  may  Dedicate.  A  dedication  or 
gift  of  land  for  a  public  use  can  be  made 
only  by  the  owner.  A  purchaser  of  land 
encumbered  with  a  security  deed,  in  pos- 
session under  a  bond  for  title,  as  against 
his  vendor  and  encumbrancer,  has  no  such 
power.  But  where  such  purchaser  makes 
an  express  ofiFer  to  dedicate  for  a  public 
use,  as  against  his  grantee  and  the  public 
he  will  be  estopped  from  denying  that  he 
is  without  power  to  dedicate  because  of 
the  incompleteness  of  Ms  title.  Hoole  t. 
Attorney  General,  22  Ala.  190.  Jacobs' 
Pharmacy  Co.  v.  Luckie  (Ga.)  1917A- 
J105. 

3.  Estoppel  to  Deny  Dedication.  Where 
the  grantee  of  lands  from  an  owner,  who 
by  exhibiting  a  plat  .to  intending  pur- 
chasers had  dedicated  highways  marked 
thereon,  could  have  ascertained  the  fact 
by  white  stakes  driven  in  the  ground,  to 
mark  the  borders  of  the  highways,  so  as 
to  induce  an  inquiry  as  to  the  source, 
nature,  and  extent  of  the  easements,  such 
grantee  is  estopped  to  deny  that  the  origi- 
nal owner  had  made  a  parol  dedication 
binding  upon  it,  although  it  secured  title 
for  valuable  consideration  by  mesne  con- 
veyances. Nicholas  v.  Title,  etc.  Co. 
(Ore.)  1917A-1149. 

2.     WHAT   CONSTITUTES, 
a.     Intent  of  Owner. 

4.  How  Made.  Dedication  is  an  appro- 
priation of  land  to  a  public  use  by  the 
owner,  and  accepted  for  such  use  by  or  on 
behalf  of  the  public,  and  may  be  express, 
by  deed  or  explicit  oral  or  written  declara- 
tion, or  some  other  explicit  manifestation 
of  purpose,  or  it  may  be  implied  by  some 
act  or  course  of  conduct  from  which  a 
reasonable  inference  of  the  intent  may  be 
drawn,  or  which  is  inconsistent  with  any 
other  theory.  Harris  v.  St.  Helens  (Ore.) 
1916D-1073. 

5.  Intent  Essential   to   Dedication.     To 

constitute  a  dedication,  the  owner  must 
intend  to  devote  his  property  to  a  public 
use,  and  this  intention  must  be  clearly 
and  unequivocally  manifested  by  his  acts. 
Harris  v.  St.  Helens  (Ore.)  1916D-1073. 

b.     Acceptance. 

6.  An  express  acceptance  may  be  shown 
by  some  order,  resolution,  or  action  of  the 
public  authorities  made  and  entered  of 
record.  While  an  implied  acceptance  of  a 
dedication  may  be  inferred  from  the  acts 
of  the  public  authorities  in  treating  the 
land  offered  as  public  propertv.  Chicago, 
etc.  R.  Co.  Chicago   (HI.)   1917A-1146. 

7.  Levy  of  Tax  as  Refusal  to  Accept. 
Where  there  has  been  no  acceptance, 
formal  or  otherwise,  by  the  city  or  by  the 
public,  of  land  dedicated  for  public   use. 


the  levy  and  collpction  of  taxes  and  spe- 
cial assessments  shows  an  intention  not 
to  accept  the  dedication.  Hanford  v. 
Seattle  (Wash.)   1917B-195. 

8.  Implied  Acceptance  of  Dedication. 
A  formal  acceptance  of  a  dedication  of  a 
street  is  unnecessary,  since  approval  by 
the  municipality  will  be  implied.  Nicho- 
las V.  Title,  etc.  Co.  (Ore.)  I917A-1149. 

9.  Wliat  Constitutes  Acceptance.    Where 

a  city  ordinance  purported  to  dedicate  to 
the  public  certain  property  for  use  as  a 
park,  and  thereafter  museums  were 
erected  on  a  part  thereof  and  used  by  the 
public,  and  other  portions  were  either 
leased  to  tenants  or  used  as  a  public  dump- 
ing ground,  and  were  not  opened  for  park 
purposes,  there  is  no  acceptance  of  the 
dedication  of  these  other  portions.  Board 
of  Trustees  of  Phila.  Museums  v.  Trustees 
of  Univ.  of  Pa.  (Pa.)  1917D-449. 

10.  Necessity  of  Acceptance.  A  "dedica- 
tion" is  the  joint  effect  of  the  offer  by  the 
owner  to  dedicate  and  acceptance  by  the 
public,  and  there  can  be  no  dedication 
without  the  participation  of  both,  though 
the  dedicator  is  a  municipality;  and  hence 
the  passage  of  a  city  ordinance,  setting 
apart  land  for  public  uses,  being  a  mere 
offer  to  dedicate,  becomes  binding  only  by 
acceptance  and  use  by  the  public  for  the 
purposes  stated.  Board  of  Trustees  of 
Phila.  Museums  v.  Trustees  of  Univ.  of 
Pa.   (Pa.)    1917D-449.  (Annotated.) 

11.  Presumption  as  to  Acceptance. 
Where  the  streets  and  alleys  of  a  sudivi- 
sion  are  dedicated  to  the  public,  an  ac- 
ceptance of  the  principal  streets  by  the 
municipality  raises  a  presumption  that  the 
others  have  been  accepted,  but  this  pre- 
sumption cannot  prevail,  where  the  ac- 
ceptance, except  as  shown  by  the  filing  of 
a  map  showing  all  the  streets,  was  limited 
to  the  streets  in  part  of  a  subdivision,  and 
defendants  held  open  and  notorious  posses- 
sion of  others  for  at  least  thirty  years. 
Chicago,  etc.  R.  Co.  v.  Chicago  (HI.) 
1917A-1146. 

12.  Proof.  The  mere  filing  of  a  plat 
showing  the  existence  of  streets  which  the 
owner  had  once  offered  to  dedicate  will 
not,  where  nothing  else  was  done  by  the 
munieipalitv.  show  an  acceptance.  Chicago, 
etc.  R.  Co.'v.  Chicago  (111.)   1917A-1146. 

13.  Dedication  Complete  when.  A  com- 
mon-law dedication  is  complete  only  upon 
acceptance.  Chicago,  etc.  R.  Co.  v.  Chi- 
cago  (111.)  1917A-1146. 

14.  Acceptance  by  Public.  Where  an 
owner  offers  to  dedicate  land  to  the  public 
use  as  a  park  or  street,  the  public  may  ac- 
cent the  offer  bv  use  or  bv  formal  action. 
Eltinge  v.  Santos  (Cal.)   1917A-1143. 

15.  Acceptance  by  Municipality.  Ex- 
cept  where   a  municipality  may   not  have 


DEDICATION. 


271 


charter  powers  to  accept  a  dedication,  an. 
acceptance  by  its  duly  authorized  oflScers 
may  be  express,  by  deed,  or  other  matter 
of  record,  or,  unless  prohibited  by  a  stat- 
ute or  ordinance,  the  acceptance  may  be 
implied  from  acts  showing  that  the  muni- 
cipality has  assumed  control  and  posses- 
sion of  the  property.  Harris  v,  St.  Helens 
(Ore.)  1916D-1073. 

Note. 
Necessity  for  acceptance  where  land  is 
dedicated   to   public   use   by   municipality. 
1917D-452. 


and  blocks  with  a  strip  allowing  the  river 
front  marked  "Strand,  Reserved  for 
W^rves,"  does  not  constitute  a  dedica- 
tion of  the  land  so  marked.  Harris  v.  St. 
Helens   (Ore.)   1916D-1073. 

(Annotated.) 

Notes. 

Reservation  of  land  on  map  or  plat  for 
specified  purpose  as  dedication  thereof  to 
public.      1916D-1079. 

Dedication  of  park  or  square  by  selling 
lots  according  to  map  or  plat.     1917B-197. 


c.     Evidence  of  Dedication. 

16.  In  a  suit  to  determine  an  adverse  in- 
terest in  realty,  evidence  held  sufficient 
to  show  an  intention  on  the  part  of  the 
owner  of  lots,  selling  them  through  an 
agent,  to  make  a  parol  dedication  to  the 
public,  as  indicated  upon  a  printed  plat 
shown  purchasers,  of  parts  of  certain 
streets  bordering  on  certain  blocks  as 
highways  sixty  feet  in  width.  Nicholas  v. 
Title,  etc.  Co.  (Ore.)   1917A-1149. 

17.  By  Parol.  To  establish  a  parol  dedi- 
cation, evidence  must  be  adduced  tending 
to  substantiate  a  clear  intention  to  devote 
some  particularly  described  land  to  a  pub- 
lic use.  Nicholas  v.  Title,  etc.  Co.  (Ore.) 
1917A-1149. 

18.  Sale  of  Lots  With  Reference  to  Plat. 
A  sale  of  lots,  according  to  a  plat  and  the 
execution  of  deeds  therefor  by  the  owner 
of  the  plat,  constitutes  a  ratification  of 
such  plat  as  filed.  Hanford  v.  Seattle 
(Wash.)    1917B-195.  (Annotated.) 

19.  Estoppel  to  Deny.  In  a  suit  to 
determine  an  adverse  interest  in  realty, 
where  plaintiff  was  seeking  to  establish 
that  certain  streets  on  which  his  lots 
abutted  were  sixty  feet  in  width,  and  be- 
fore delivery  of  his  deed  the  original  pur- 
chaser from  the  owner,  who  dedicated  the 
ways,  had  examined  the  block,  stepped 
the  width  of  the  highways  bordering 
them,  found  them  to  be  sixty  feet,  and 
saw  them  marked  out  with  white  stakes 
similar  to  one  received  in  evidence,  his  at- 
toDtion  being  then  attracted  to  the  post, 
the  admission  in  evidence  of  testimony  re- 
lating to  the  stakes,  as  marking  the  lines 
of  one  of  the  streets,  is  proper.  Nicholas 
V.  Title,  etc.  Co.   (Ore.)   1917A-1149. 

20.  "Reserved."  Under  Ore.  L.  0.  L., 
§  718,  providing  that  the  terms  of  a  writ- 
ing are  presumed  prima  facie  to  have  been 
used  in  their  primary  and  sjeneral  accepta- 
tion, where  a  rlat  filing  for  record  has  a 
strip  marked  "Reserved  for  Wharves."  the 
word  "Reserved"  means  kept  for  future 
use;  retained;  kept  back.  Harris  v.  St. 
Helens   (Ore.)    1916D-1073. 

21.  Reservation  on  Plat.  The  filing  for 
record  of  a  plat  of  land  divided  into  lots 


3.     REVOCATION. 

22.  Revocation  of  Dedication.  Where 
the  owner  of  land  filed  a  map  showing  an 
intention  to  dedicate  a  strip  as  a  public 
way,  and  his  successor  in  title  thereafter 
filed  another  map  evincing  an  intention  to 
withdraw  the  first  owner's  offer  of  dedica- 
tion, there  having  been  no  acceptance  of 
the  offer  by  the  public  between  the  filing 
of  the  first  map  and  the  revocation  of  the 
offer  by  the  second,  the  original  owner's 
successor  in  title  can  so  revoke  the  offer 
of  dedication.  Eltinge  v.  Santos  (Cal.) 
1917A-1143.  (Annotated.) 

23.  Death  of  Dedicator.  The  death  of  a 
dedicator  of  public  streets  impliedly  re- 
vokes his  offer  of  dedication.  Chicago, 
etc.  R.  Co.  V.  Chicago  (111.)    1917A-1146. 

(Annotated.) 

24.  Right  to  Revoke  Dedication.  Where 
an  owner  of  an  interest  in  land  agrees  to 
donate  to  a  county  a  strip  for  the  purpose 
of  widening  a  public  highway,  subject  to 
other  property  owners  along  the  highway 
giving  the  necessary  land  to  widen  it  to 
a  certain  extent,  and  where  it  appears 
that  some  of  the  abutters  refuse  to  donate, 
and  others  because  of  their  minority,  are 
unable  to  make  a  dedication,  the  land- 
owner making  the  proposed  dedication 
may  formally  withdraw  the  same,  not- 
withstanding on  the  day  previous  to  his 
withdrawal,  the  county  authorities  have 
passed  a  resolution  accepting  all  donations 
made  before  that  time.  Jacobs'  Pharmacy 
Co.  T.  Luckie  (Ga.)   1917A-1105. 

(Annotated.) 

25.  Where  the  owner  of  land  surveys  it 
into  lots,  blocks,  and  streets,  and  prepares 
a  map  thereof,  showing  streets  of  certain 
width,  which  he  exhibits  to  intending  pur- 
chasers, who  bought  before  he  changed  his 
mind  as  to  the  width  of  the  streets,  and 
superseded  the  map  which  he  had  exhibited 
by  a  recorded  plat  differing  therefrom  as 
to  the  width  of  the  streets,  he  irrevocably 
dedicates  to  the  public  the  highways  as 
shown  by  the  map,  without  acceptance  by 
any  corporate  authority,  as  such  circum- 
stances create  an  estoppel  in  pais.  Nicho- 
las V.  Title,  etc.  Co.   (Ore.)   1917A-1149. 

(Annotated.) 


272 


DIGEST. 

1916C— 1918B. 


26.  How  Keroked.  A  dedication  by  plat 
of  lands  for  public  purposes  may  be  re- 
voked before  acceptance  by  conveying  the 
land  as  private  property.  Hanford  t. 
Seattle   (Wash.)   1917B-195. 

27.  Where  plat  and  deed  of  dedication 
contain  no  evidence  of  intent  of  plattor 
to  donate  a  block  known  as  "East  Park," 
for  public  purposes  or  for  any  specific  use, 
and  where  no  public  use  was  made  of 
land,  and  taxes  and  special  assessments 
were  collected,  and  the  land  was  trans- 
ferred by  deed  as  private  property,  it  is 
held,  under  Wash.  Code  1881,  §§  2332, 
2339,  there  was  nothing  more  than  an  am- 
biguous dedication  of  such  tract  which 
had  been  revoked,  so  that  city  could  not 
claim  land  as  public  park  (citing  Words 
and  Phrases).  Hanford  t.  Seattle 
(Wash.)   1917B-195.  (Annotated.) 

Note. 
Kerocability   of   dedication   of  land  to 
public  use.     1917A-1109. 

4.     Right  to  Assert  Dedication. 

28.  Bar  by  Limitations.  Where  the 
successor  in  title  of  the  original  owner  of 
lands,  who,  before  selling,  plats  them  so 
as  to  dedicate  highways  to  the  public, 
does  not  improve  or  encroach  on  such 
highways,  the  statute  of  limitations  never 
begins  to  run  against  the  right  of  the  suc- 
cessor in  title  of  an  original  purchaser 
from  the  original  owner  to  insist  on  the 
maintenance  of  the  highways,  since  the 
grantees  of  a  dedicator  may  extinguish 
the  right  of  the  public  in  a  street  only  by 
an  unlawful  encroachment  thereon  for  a 
term  equal  to  the  period  of  the  statute  of 
limitations,  which  purpresture  raises  an 
estoppel.  Nicholas  v.  'Htle,  etc.  Co.  (Ore.) 
1917A-1U9. 

DEEDS. 
1.  Requisites,  272. 

a.  In  General,  272. 

b.  Execution,  272. 
c    Delivery,  273. 

(1)  In  General,  273. 

(2)  Delivery    to    Third    Penon, 

273. 

(3)  Evidence  of  Delirery,  273. 
d.  Acceptance,  271. 

S.  Time  of  Taking  Effect,  274. 
8.  Validity,  274. 

a.  Omission  of  Grantor's  Name,  274. 

b.  Name  of  Grantee,  274. 

c.  Consideration,  274. 

d.  Undue  Influence  and  Fraud,  274. 

e.  Mental  Incapacity,  "275. 

f.  Conveyance  in  Fee  to  Take  Effect 

in  Future,  275. 

g.  Conveyance  of  Expectancy,  275. 
h.  Restrictive  Conditions,  £75. 

i.  Nonexistent  Grantee,  276. 
4.  Construction,  276. 

a.  In   General,  276. 

b.  Doubtful     or     Uncertain     Descrip- 

tion, 27(). 

c.  Conditions,  277. 


d.  Exceptions  and  Reservations,  277. 

e.  Inconsistent  Provisions  or  Recitals, 

278. 

f.  Estate  or  Interest  Conveyed,  278. 

g.  Evidence   in   Aid    of    Construction, 

279. 

5.  CoTenants  Running  With  Land  in  Gen- 

eral. 279. 

6.  Covenants  of  Title,  279. 

a.  Warranty,  279. 

b.  Against  Incumbrances,  279. 

(1)  What  Constitutes  Breach,  279. 

(2)  Measure     of     Damages     for 

Breach,  280. 

7.  Recitals,  280. 

S«e  Chattel  Mortgages;  Escrow;  Estates; 
Us  Pendens;  Mortgages;  Quieting 
Title;  Recording  Acts;  Remainders; 
Rescission,  Cancellation  and  Reforma- 
tion; Vendor  and  Purchaser. 

Presumption  of  execution  from  acknowl- 
edgment, see  Acknowledgments,  3. 

Proof  of  delivery,  see  Admissions  and 
Declarations,  8. 

Of  homestead,  execution  by  wife,  see 
Homestead,  11. 

Liability  of  wife  on  covenants,  see  Hus- 
band and  Wife,  45. 

Life  tenant's  attempt  to  convey  fee,  ef- 
fect, see  Life  Estates,  4. 

Conveyances  of  mining  interests,  see 
Mines  and  Mining,  2,  3. 

Deed  intended  as  mortgage,  see  Mortgages 
and  Deeds  of  Trust,  6-12. 

Rale  against  perpetuities,  see  Perpetuities, 
8. 

Record  as  notice,  see  Recording  Acts,  9, 
10,   H,  13. 

Reformation,  see  Rescission,  Cancellation 
and  Reformation,  3,  5,  6. 

Cancellation,  see  Rescission,  Cancellation 
and  Reformation,  12. 

Tax  deeds,  see  Taxation,  111-115. 

Interpretation  according  to  local  meaning, 
see  Usages  and  Customs,  2. 

Building  restrictions,  see  Vendor  and  Pur- 
chaser,   22-26. 

1.     REQUISITES. 

a.  In  General. 

1.  Operative  Words  of  Conveyance. 
Operative  words  manifesting  intent  to 
transfer  the  property  are  absolutely  essen- 
tial to  the  conveyance  of  title.  The  in- 
tent must  be  disclosed  by  the  words  of 
the  deed  not  the  mere  acts  of  the  parties. 
FreudenbcTger  Oil  Co.  v.  Simmons  (W. 
Va.)    1918A-873. 

2.  Requisites  of  Deed.  The  requisites 
of  a  deed  are  persons  able  to  contract  for 
the  purposes  intended  by  the  deed  which 
must  contain  a  grantor  and  a  grantee  and 
describe  a  thing  granted,  and  the  parties 
must  be  sufRriently  described  or  the  deed 
is  void.  Duffield  v.  Duffield  (111.)  1916I>- 
859. 

b.  Execution. 

3.  "Execution"  of  Deed  as  Including  De- 
livery.    "Execution,"  as  applied  to  %  deed, 


DEEDS. 


278 


includes    effective    deliyery.    Williami    T. 
Kidd   (Cal.)    1916E-703. 


c. 
(1) 


Delivery. 
In  General. 


4.  Delivery  of  Deed  Defined.     Delivery 

of  a  deed  is  the  act,  however  evidenced, 
by  which  the  deed  takes  eCfect  and  title 
thereby  passes,  Williams  v.  Klidd  (Cal.) 
19ieE-703. 

5.  Intent  to  Transfer  Present  Title.  A 
deed,  to  transfer  real  property,  must  be 
delivered  by  the  grantor  with  intent  to 
transfer  title,  and  the  test  under  which 
delivery  is  to  be  determined  is  in  ascer- 
taining whether,  in  parting  with  the  pos- 
session of  tho  deed,  the  grantor  intended 
to  divest  himself  of  title;  if  he  did  there 
was  an  effective  delivery,  and,  if  not, 
there  was  no  delivery.  Williams  v.  Kidd 
(Cal.)   1916E-703. 

6.  Dped  Taken  by  Violence.  Where  a 
vendor  and  a  purchaser  met  to  complete 
a  sale  of  land,  and  the  purchaser  laid  the 
money  down  and  reached  for  the  deed, 
whereupon  the  vendor  knocked  him  down 
and  took  both  the  deed  and  money,  it  is 
held  that  there  was  no  valid  delivery  of 
the  deed.  Coe  v.  Wormell  (Wash.)  1917C- 
679. 

7.  Delivery  Held  Sufficient.  The  facts 
concerning  the  delivery  of  a  deed  con- 
sidered, and  held  sufficient  to  constitute 
a  valid  delivery.  Witherg  v.  Barnes 
(Kan.)    1917B-55. 

(2)     Delivery  to  Third  Person. 

8.  The  mere  fact  that  a  deed  was  signed 
and  acknowledged  by  the  grantor  and  at 
the  same  time  handed  to  the  husband  of 
the  grantee,  with  directions  to  the  hus- 
band to  keep  the  deed  and  give  it  to  the 
grantee  when  the  grantor  was  dead,  and 
that  the  husband  did  so,  w^as  not  alone 
conclusive  evidence  of  a  delivery  with  in- 
tent to  vest  in  the  grantee  a  present  title. 
Williams  v.  Kidd   (Cal.)   1916E-703. 

9.  Deposit  for  Delivery  After  Grantor's 
Death.  A  grantor  may  place  his  deed  in 
the  hands  of  a  third  person  for  delivery 
to  the  grantee  on  the  death  of  the  grantor, 
and  such  a  delivery  is  effectual  to  pass  a 
present  title  if  the  intention  of  the 
grantor  is  to  make  the  dejivery  absolute. 
Williams  v.  Kidd  (Cal.)  1916E-703. 

10.  Where  a  deed  is  deposited  by  the 
grantor  with  a  third  person,  to  be  handed 
to  the  grantee  on  the  death  of  the 
grantor,  there  is  no  delivery  unless  accom- 
panied by  an  intention  of  the  grantor 
that  title  shall  immediately  pass  to  the 
grantee,  and  where  the  deed  is  handed  to 
the  third  person  without  any  intention  of 
e  present  transfer  of  title,  but,  on  the 
contrary,  with  an  intention  of  the  grantor 

.     18 


to  reserve  the  right  of  dominion  over  the 
deed/^d  the  right  to  revoke  or  recall  it, 
there  is  no  effective  delivery,  and  where 
the  grantor,  when  depositing  the  deed,  in- 
tends that  it  shall  only  be  delivered  to  the 
grantee  after  the  death  of  the  grantor, 
and  title  shall  vest  only  on  delivery  te 
the  grantee,  the  deed  is  inoperative  as  aa 
attempt  by  the  grantor  to  make  a  testa- 
mentary disposition.  Williams  v.  Kidd 
(Cal.)   1916E-703. 

11.  Where  a  deed  was  delivered  by 
the  grantor  to  a  third  person  to  deliver 
to  the  giantee  on  the  grantor's  death,  the 
grantee,  producing  the  deed,  established  a 
prima  facie  case  of  delivery,  which  was 
overcome  by  proof  of  the  fact  that  the 
grantee  had  no  knowledge  of  the  existence 
of  the  deed,  and  did  not  come  into  posses- 
sion of  it  until  after  the  death  of  the 
grantor.  Williams  v.  Kidd  (Cal.)  1916E- 
703. 

(3)     Evidence  of  Delivery. 

12.  Where  the  issue  was  whether  a  gran- 
tor had  ever  parted  with  title,  acts,  con- 
duct, and  declarations  of  the  grantor  with 
reference  to  the  property  after  the  execu- 
tion of  a  deed  thereof  were  admissible  on 
the  issue  of  intent  to  deliver  the  deed. 
Williams  v.  Kidd   (Cal.)   1916E-703. 

(Annotated.) 

13.  Where  a  grantor  delivered  the  deed 
to  the  husband  of  the  grantee,  with  in- 
structions to  deliver  the  same  to  the  gran- 
tee on  the  grantor's  death,  and  the  issue 
was  whether  the  delivery  was  effective  to 
pass  a  present  title,  the  fact  that  tiie  hus- 
band made  no  mention  of  the  deed  to  the 
grantee  until  after  the  death  of  the  gran- 
tor, though  no  secrecy  was  enjoined  on 
him  by  the  grantor,  could  be  considered 
to  show  that  there  was  no  delivery  of  the 
deed  with  intent  to  pass  a  present  title, 
and  that  the  husband  knew  it.  Williams 
V.  Kidd  (Cal.)  1916E-703. 

14.  Where  a  grantor  delivered  the  deed 
to  the  notary  who  took  the  acknowledg- 
ment, with  instructions  to  deliver  to  the 
grantee  on  the  grantor's  death,  and  the 
deed  was  part  of  a  plan  by  the  grantor  to 
dispose  of  all  his  property,  a  separate  deed 
being  contemplated  for  each  piece  of  prop- 
erty, but  the  plan  was  never  fully  carried 
out,  the  fact  that  the  notary  knew  that 
the  plan  was  abandoned  and  that  he  made 
no  entry  of  the  deed  in  Lis  notarial  record 
as  required  by  Pol.  Code,  §  794,  could  be 
considered  in  determining  the  question  of 
effective  delivery  of  the  deed.  Williams  v. 
Kidd   (Cal.)   1916E-703. 

15.  The  failure  of  a  third  person  to 
whom  a  deed  had  been  delivered  by  the 
grantor,  with  instruf^tions  to  deliver  to  the 
grantee  on  the  grantor's  death,  to  call  the 
grantor's  attention  to  the  fact  that  he 
could  not  make  a  sale  of  part  of  the  prop- 


274 


DIGEST. 

1916C— 1918B. 


erty  covered  by  the  deed,  a?  contemplated 
by  the  grantor,  could  be  considered  in  de- 
termining whether  the  delivery  was  eflFoct- 
ire  to  pass  title.  Williama  v.  Kidd  (Cal.) 
1916E-703. 

16.  Evidence  held  to  sustain  a  finding 
that  a  deed  was  not  delivered  by  the  gran- 
tor with  intent  to  transfer  a  present  title. 
Williams  v.  Kidd  (Cal.)  1916E-703. 

Note. 
Admissibility  of  declaration  of  grantor 
after  conveyance  as  to  delivery  of  deed. 
1916E-713. 

d.     Acceptance. 

17.  Refusal  by  One  Grantee  to  Accept. 
The  provision  for  the  son  is  not  so  com- 
plicated with  the  other  gifts  specified  in 
the  deed  that  the  failure  of  one  destroys 
them  all.  Miller  v.  Miller  (Kan.)  1917 A- 
918. 

2.     TIME  OF  TAKING  EFFECT. 

18.  Bights  of  Senior  Grantee.  The 
senior  grant  vests  the  legal  title  in  the 
holder  and  is  always  the  paramount  title, 
unless  it  has  been  lost  by  the  adverse  pos- 
session of  another  or  he  has  renounced  his 
title;  and  the  law  vests  the  possession  of 
land  in  the  paramount  title  holder,  and  a 
senior  grantee  is  by  operation  of  law  in 
the  constructive  possession  of  the  land, 
where  it  is  not  in  the  actual  possession  of 
another.  Tennis  Coal  Co.  v.  Sackett  (Ky.) 
1917E-629. 

18^.  Presumption  as  to  Date.  Prima 
facie,  the  date  of  a  deed  is  the  day  of  its 
execution,  notwithstanding  it  was  acknowl- 
edged at  a  later  date.  Dulin  v.  Ohio 
River  R.  Co.  (W.  Va.)  1916D-1183. 

19.  Taking  Effect  After  Grantor's  Death. 
A  deed  duly  acknowledged,  delivered,  aud 
recorded,  which  recites  that  the  grantor, 
in  consideration  of  a  nominal  sum  paid  in 
cash,  and  of  love  and  affection,  grants, 
bargains,  sells,  and  conveys  to  the  grantee 
specified  real  estate,  "this  deed  not  to 
take  until  after  my  death,"  conveys  the 
title  to  the  grantee  subject  to  a  life  es- 
tate of  the  grantor,  and  is  not  testament- 
ary in  character.  Phillips  v.  Phillips 
(Ala.)    1916D-994.  (Annotated.) 

Note. 

Construction  of  instrument  in  form  ot 
deed  to  become  effective  upon  death  of 
grantor.     1916D-996. 

3.     VALIDITY, 
a.     Omission  of  Grantor's  Name. 

20.  Grantor  not    Named  in  Body.     An 

option  to  purchase  land  owned  by  a  hus- 
band and  wife  jointly,  apparently  made 
by  the  husband  alone,  but  signed  by  the 


wife,  is  valid  and  binds  the  wife's  interest. 
Agar  V.  Streeter  (Mich.)   1916E-518. 

(Annotated.) 
Note. 
Effect    of    omission    of    grantor's    name 
from  body  of  deed.     1916E-521. 

b.     Name   of  Grantee. 

21.  Deed  to  Grantee  mot  in  Existence. 
The  grantee  named  in  a  deed  must  be  a 
person,  natural  or  artificial,  capable  of 
taking  title  at  the  time  of  the  convevance. 
Duffield  v.  Duffield  (111.)   1916D-859'. 

(Annotated.) 

22.  A  deed  to  heirs  of  a  living  person, 
without  specifying  their  names,  describes 
no  one  as  grantee,  and  is  void,  for  a  living 
person  has  no  heirs.  DuflBeld  v.  Duffield 
(111.)   1916D-859.  (Annotated.) 

c.     Consideration. 

23.  Future  Support.  A  deed  for  lands 
made  by  a  grantor,  in  consideration  of 
"support  during  her  natural  life"  therein 
recited,  is  not  a  gift,  but  is  founded  upon 
a  valuable  consideration,  and  when  made 
by  one  having  the  mental  capacity  to  make 
it,  and  without  fraud,  duress  or  undue  in- 
fluence, will  be  sustained.  Soper  v.  Cisco 
(N.  J.)   1918B-452. 

d.     Undue  Influence  and  Fraud. 

24.  The  rule  that  undue  influence  is  not 
to  be  presumed  from  the  mere  relation 
of  parent  and  child,  in  case  of  a  convey- 
ance from  a  parent  to  a  child,  does  not 
conflict  with  the  broad  rule  that  where  par- 
ties stand  in  confidential  relation  to  each 
other  a  conveyance  from  the  weaker  to" 
the  dominant  party  is  presumed  to  result 
from  undue  influence,  and  therefore,  where 
facts  are  shown,  other  than  the  mere  rela- 
tion of  parent  and  child,  establishing  be- 
tween the  parties  a  confidential  relation  in 
which  the  child  is  the  dominant  party,  a 
conveyance  from  the  parent  to  the  child  is 
presumed  to  be  tainted  with  undue  influ- 
ence, and  the  burden  is  upon  the  child 
to  show  the  bona  fides  of  the  transaction. 
Soper  V.  Cisco  (N.  J.)   1918B-452. 

(Annotated.) 

25.  A  mother,  seventy-seven  years  of 
age,  in  the  full  possession  of  her  mental 
faculties  and  in  good  physical  health,  made 
a  deed  for  her  homestead  property  to  her 
daughter,  forty-five  years  of  age,  who  had 
been  her  chief  support  for  fifteen  years 
prior  thereto.  The  consifleration  for  the 
deed  was  $300  and  "support  during  her 
natural  life"  therein  expressed.  It  was 
drawn  by  and  acknowledged  before  a  com- 
petent lawyer,  with  whom  the  mother  con- 
ferred privately,  and  was  recorded  imme- 
diately. The  property  was  then  worth 
about  $5,000,  but  of  small  rental  value  and 


DEEDS. 


275 


not  readily  marketable.  The  bargain  was 
made  at  the  solicitation  of  the  mother, 
the  daughter  being  reluctant.  No  effort 
was  made  to  keep  the  transaction  secret. 
Before  and  at  the  time  of  making  the  deed 
and  until  eleven  years  thereafter,  when 
failing  mental  facilities  rendered  some 
restraint  necessary,  the  mother  had  per- 
fect liberty  of  action  and  freely  saw  such 
of  her. other  children  as  she  wished  to  see 
and  who  wished  to  see  her.  Her  daughter 
supported  the  mother  satisfactorily  at  the 
homestead  for  sixteen  years  after  the  deed 
was  made,  when  the  mother,  without  any 
fault  of  the  daughter,  went  away  and  re- 
fused to  return.  Held,  that  the  bargain 
was  a  natural  and  provident  one  for  the 
mother  to  make  and  was  not  the  product 
of  undue  influence,  and  will  not  be  set 
aside  for  failure  to  show  that  the  mother 
had  "independent  advice."  Soper  v.  Cisco 
(N.  J.)   1918B-452.  (Annotated.) 

Note. 

Presumption  and  burden  of  proof  of  un- 
due influence  in  case  of  conveyance  inter 
vivos  by  parent  to  child.     1918B-457. 

e.     Mental  Incapacity. 

26.  Capacity  of  Grantor — Test.  The  test 
of  mental  capacity  to  make  a  deed  is  that 
a  person  shall  have  ability  to  understand 
the  nature  and  effect  of  the  act  in  which 
he  is  engaged  and  the  business  he  is  trans- 
acting.    Soper  V.  Cisco  (N.  J.)  1918B-452. 

f.     Conveyance  in  Fee  to  Take  Effect  in 
Future. 

27.  Limitation  of  Future  Estate.  A 
grantor  has  power  to  limit  a  future  estate 
bv  his  deed.  Duffield  v.  Duffield  (111.) 
1916D-859. 

g.     Conveyance  of  Expectancy. 

28.  A  deed  which  on  its  face  purports 
to  convey  a  bare  contingency  or  possibil- 
ity, and  in  which  there  is  nothing  to  show 
a  present  right  in  the  vendor  to  sell  a 
future  benefit,  is  void. 

(a)  A  covenant  of  warranty  in  such  deed 
will  not  inure  to  the  benefit  of  the  vendee, 
or  his  heirs,  so  as  to  subject  after-acquired 
property  of  the  vendor  to  such  covenant. 
Daiiey  v.  Springfield  (Ga.)  1917D-943. 

(Annotated.) 

29.  Accordingly,  where  a  vendor  for  a 
named  consideration  conveyed  to  a  vendee 
"all  the  present  rights  in  or  title  to  all 
interests  that"  the  vendor  "may  become 
possessed  of  either  by  inheritance  or  by 
deed  from"  the  mother  of  the  vendor,  in 
certain  city  lots  which  the  mother  "now 
owns"  in  a  certain  city,  and  any  interest 
he  "may  in  the  future  become  possessed 
of  in  any  other  city  property,  .  .  .  either 
b}   deed  or  inheritance  from"  the  mother, 


this  was  an  attempt  to  convey  a  mere 
naked  possibility  without  any  present  in- 
terest, and  was  void. 

(a)  Where  in  such  case  an  action  was 
brought  by  the  widow  of  the  vendee,  who 
was  his  sole  heir,  in  her  own  right  (there 
being  no  debts  against  the  estate),  to  re- 
cover an  interest  in  certain  realty  belong- 
ing to  and  the  proceeds  of  certain  othe' 
property  derived  from  the  mother's  estate, 
after  her  death,  a  demurrer  to  such  peti- 
tion was  properly  sustained.  Daiiey  v. 
Springfield  (Ga.)  1917D-943. 

(Annotated.) 

h.     Restrictive  Conditions. 

30.  Bestralnt  on  Alienation^— Validity. 
A  restraint  on  the  alienation  of  an  equi- 
table life  estate,  although  in  form  of  a 
covenant  rather  than  condition,  is  invalid. 
Lee  v.  Gates  (N.  Car.)  1917A-514. 

31.  Public  Policy.  A  covenant  which  is 
against  public  policy  is  not  enforceable. 
Lee  V.  Gates  (N.  Car.)  1917A-514. 

32.  A  condition  in  a  deed,  for  the  benefit 
of  the  grantor  and  its  other  grantees,  that 
the  grantee  shall  not  sell  to  a  negro,  is  not 
against  the  public  policy  of  the  state,  as 
creating  a  tenure  of  property  unknown 
to  the  law,  in  view  of  La.  Rev.  Civ.  Code, 
arts.  490,  491,  709,  1764,  and  2013,  giving 
the  fullest  liberty  to  contract  and  dispose 
of  one's  property.  Queensborough  Land 
Co.  V.  Cazeau  (La.)  1916D-1248. 

(Annotated.) 

33.  Condition  Against  Sale  to  Negro.  A 
condition  in  a  deed,  for  the  benefit  of  the 
grantor  and  its  other  grantees,  that  the 
grantee  shall  not  sell  to  a  negro,  does  not 
violate  Const.  U.  S.  Amend.  14;  since,  so 
far  as  prohibiting  discrimination  against 
the  negro  race,  it  applies  only  to  state 
legislation,  and  not  to  contracts  of  indi- 
viduals. Queensborough  Land  Co.  ▼.  Ca- 
zeau (La.)   1916D-1248.  (Annotated.) 

34.  Restraint  of  Marriage — ^Validity  of 
Condition  in  Deed.  A  condition  subse- 
quent in  general  restraint  of  marriage,  con- 
tained in  a  deed  to  land,  will  be  disre- 
garded as  invalid,  and  marriage  will  work 
no  forfeiture.  Gard  v.  Mason  (N.  Car.) 
1917D-281.  (Annotated.) 

35.  Validity  of  Condition  Against  Sale 
of  Liquor.  A  townsite  company,  the  stock- 
holders of  which  owned  a  controlling  in- 
terest in  another  corporation,  engaged  in 
mining  adjacent  to  the  townsite  to  induce 
workmen  and  employees  of  the  coal  com- 
pany to  make  their  homes  in  the  proposed 
town,  constructed  houses  thereon  to  be  sold 
to  such  employees,  and  for  that  purpose 
procured  a  loan  from  a  brewing  company 
secured  by  a  deed  of  trust  on  all  the  town- 
site  property  except  two  certain  blocks  and 
two  lots  in  other  blocks,  and  as  a  part  of 
the  transaction,  and  to  effectuate  a  scheme 


276 


DIGEST. 

19160— 1918B. 


to  restrict  and  limit  the  traffic  in  intoxi- 
cating liquors,  agreed  to  convey  such  lots 
to  the  brewing  company,  and  to  insert,  in 
all  other  deeds  conveying  lots,  a  condition 
that  intoxicating  liquors  should  never  be 
sold  on  the  premises  except  by  druggists 
for  medicinal  purposes.  It  is  held  that 
such  condition  in  conveyances  of  lots  did 
not  contravene  public  policy,  and  was  valid 
and  enforceable,  as  it  was  not  intended  to 
exclude  absolutely  the  sale  of  intoxicating 
liquors,  or  to  prevent  competition  therein 
in  a  broad  and  general  sense,  or  in  any 
way  to  control  prires  to  the  detriment  ot 
the  public,  especially  as  the  business  of 
selling  intoxicating  liquor  at  retail  has 
never  been  a  matter  of  common  right  nor 
a  lawful  trade  except  under  such  author- 
ity as  is  specially  conferred  by  ths  sov- 
ereignty.    Fusha  V.  Dacona  Town  Site  Co 


(Colo.)  1917C-108. 


(Annotated.) 


36.  Every  owner  of  real  estate  in  fee 
simple  has  the  legal  right  to  dispose  of  it 
either  absolutely  or  conditionally  and  to 
regulate  the  manner  in  which  it  shall  be 
used  and  occupied  as  he  may  deem  just  and 
proper,  providing  the  conditions  and  re- 
strictions imposed  are  not  violative  of  the 
public  good  or  subversive  of  the  public  in- 
terests, and,  if  conditions  in  a  deed  are 
made  in  good  faith  for  a  valuable  consid- 
eration and  do  not  stipulate  for  anything 
malum  in  se  or  malum  prohibitum,  they 
do  not  contravene  public  policy  and  should 
be  enforced.  Fusha  v.  Dacona  Town  Site 
Co.   (Colo.)    1917C-108. 

Notes. 

Validity  of  condition  in  deed  in  restraint 
of  marriage.     1917D-282. 

Validity  of  partial  or  limited  restraint 
on  alienation  of  fee  simple  estate.  1916D- 
1254. 

Validity  of  condition  in  deed  prohibiting 
sale  of  liquor  on  land  granted.     1917C-110. 

Building  restriction  on  restrictive  agree- 
ment as  binding  public  or  public  service 
corporation.     1918B-591. 

i.     Nonexistent  Grantee. 

37.  Where  a  deed  purports  to  grant  a 
present  estate  in  possession  to  a  certain 
grantee  or  grantees,  and  the  grantee  or 
any  of  the  grantees  are  not  in  being  when 
the  deed  is  executed,  no  title  passes  to  him 
or  them,  and  heirs  or  heirs  of  the  body  of 
a  living  person  are  within  the  rule.  Duf- 
field  V.  Duffield  (lU.)  1916D-859. 

(Annotated.) 
Note. 
Validity  and  effect  of  deed  or  grant  of 
present  estate  to  grantee  not  in  existence. 
1916I>-864. 

4.     CONSTRUCTION, 
a.     In  general. 

38.  The  intention  of  parties  to  a  doed 
must  be  gathered  from  the  language  used, 


which,  in  case  of  doubt,  must  be  taken 
most  strongly  against  the  grantor.  Bridge- 
water  Milling  Co.  v.  Fredericksburg  Power 
Co.  (Va.)  1916I>-1027. 

39.  Grantors  are  presumed  to  intend 
what  the  words  in  their  deeds  import,  and 
the  same  license  of  construction  permitted 
in  the  case  of  wills  is  not  allowed  in  the 
construction  of  deeds.  DufBeld  v.  Duffield 
(111.)    1916D-859. 

40.  A  deed  between  a  grantor  and  a  per- 
son named  and  described  as  a  sou  of  the 
grantor,  and  the  heirs  of  his  body,  as  gran- 
tee, and  which  declared  that  the  grantor, 
in  consideration  of  love  and  affection  and 
the  conditions  stated,  conditionally  granted 
and  conveyed  to  "the  said  grantee"  de- 
scribed real  estate  on  conditions  specified, 
granted  a  present  estate  in  possession  to 
the  grantee  named  and  to  the  heirs  having 
no  existence,  and  the  deed  vested  the  title 
in  the  grantee  named.  Duffield  v.  Duffield 
(111.)  1916D-859.  (Annotated.) 

41.  "Natural  Heirs."  The  term  "natural 
heirs,"  in  a  deed  to  one  and  her  natural 
heirs,  with  no  context  to  explain  it,  is 
to  be  given  its  legal  and  technical  mean- 
ing, as  it  cannot  be  assumed  the  word 
"natural"  was  surplusage.  Maynard  v. 
Henderson  (Ark.)  1917A-1157. 

(Annotated.) 

42.  The  term  "natural  heirs,"  in  a  deed 
to  one  and  to  her  natural  heirs,  is  not  to 
be  construed  as  meaning  heirs  generally, 
but  as  heirs  of  the  body.  Maynard  v. 
Henderson  (Ark.)  1917A-1157. 

(Annotated.) 

43.  Intention  of  Parties.  In  construing 
a  deed,  regard  must  be  had  to  the  situation 
of  the  parties,  the  subject-matter  of  the 
agreement,  and  the  object  which  the  par- 
ties had  in  view  at  the  time  and  intended 
to  accomplish.  Bridgewater  Milling  Corp. 
V.  Fredericksburg  Power  Co.  (Va.)  1916D- 
1027. 

44.  Construction  of  Clauses  Together. 
The  function  or  officQ  of  the  reddendum  in 
a  deed  is  primary  and  it  is  equal,  in  dig- 
nity and  virtue,  to  the  premises.  To  as- 
certain the  intent  of  the  grantor  and  the 
effect  of  the  deed,  both  must  be  read  to- 
gether and  permitted  to  operate.  Freud- 
enberger  Oil  Co.  t.  Simmons  (W.  Va.) 
1918A-873. 

b.     Doubtful  or  Uncertain  Description. 

45.  Meaning  of  "More  or  Less."  Where 
a  farm  is  sold,  described  to  contain  104 
acres  more  or  less,  except  28.50  acres  more 
or  less  sold  to  a  railroad,  a  shortage  of 
about  three  acres  in  the  property  passing 
to  the  purchaser  is  covered  by  the  words 
"more  or  less,"  as  such  words  are  intended 
to  cover  a  reasonable  excess  or  deficit. 
Frey  v.  Etzel   (Wis.)   1917D-153. 

^Annotated.) 

46.  Uncertainty  of  Description.  The  law 
leans  against  the  destruction  of  a  deed  for 


DEEDS. 


277 


uncertainty  of  description,  and  will  con- 
strue, where  it  can  be  done  consistently 
with  the  rules,  so  as  to  effect,  and  not  to 
defeat,  the  intention  of  the  parties.  Nolen 
V.  Henry  (Ala.)  19ll7B-792. 

47.  A  grantor,  owning  a  large  body  of 
surrounding  land,  conveyed  ten  acres,  to 
be  laid  off  so  as  to  include  a  certain  shoal 
on  the  creek,  which  in  fact  was  in  section 
15;  the  deed  describing  it  as  being  in 
sections  16  and  22,  to  be  laid  off  so  as  to 
include  that  certain  shoal,  the  land  to  be 
surveyed  and  platted,  and  a  certified  plat 
to  become  a  part  of  deed  to  complete  a 
description,  in  view  of  the  recording  of 
the  plat  referred  to  therein,  is  an  uncer- 
tain description,  which  may  be  aided  by 
parol  proof,  and  which  comes  within  the 
maxim,  "Id  certam  est,  quod  certum  reddi 
potest."  Nolen  v.  Henry  (Ala.)  1917B- 
792. 

Note. 

Construction  of  term  "more  or  less"  in 
deed  of  realty.     1917D-155. 

c.     Conditions. 

48.  Construction    Against     Restriction. 

Where  the  right  to  enforce  a  restriction 
contained  in  the  conveyance  as  to  the  use 
of  the  property  conveyed  is  doubtful,  all 
doubt  should  be  resolved  in  favor  of  the 
free  use  thereof  for  lawful  purposes  by 
the  owner  of  the  fee.  Hunt  v.  Held 
(Ohio)    1916C-1061. 

49.  Condition  Against  Sale  to  Negro.    A 

condition  in  a  deed,  for  the  benefit  of  the 
grantor  and  its  other  grantees,  that  the 
grantee  shall  not  sell  to  a  negro,  is  a  con- 
dition subsequent,  or  a  resolutory  condi- 
tion, the  accomplishment  of  which  has  the 
effect  of  restoring  matters  to  the  situation 
in  which  they  were  before  the  contract  was 
entered  into.  (La.  Eev.  Civ.  Code,  art. 
2045.)  Queensborough  Land  Co.  v.  Cazeau 
(La.)  1916D-1248. 

50.  Covenant  to  Use  for  Residence  Pur- 
poses. A  clause  in  a  conveyance  restrict- 
ing the  use  of  the  property  conveyed  "for 
residence  purposes  only"  does  not  prohibit 
the  erection  of  a  double  or  two-family 
house  on  the  premises.  Hunt  v.  Held 
(Ohio)    19ieC-1051.  (Annotated.) 

51.  The  word  "residence,"  as  used  in  a 
covenant  restricting  the  use  of  property  to 
residence  purposes  is  equivalent  to  "resi- 
dential" in  contradistinction  to  "business," 
and  has  reference  to  the  use  or  mode  of 
occupancy  to  which  the  property  may  be 
put.  A  building  used  as  a  place  of  abode, 
and  in  which  no  business  is  carried  on,  is 
used  for  "residence  purposes,"  whether  oc- 
cupied by  one  family  or  a  number  of  fami- 
lies.    Hunt  V.  Held   (Ohio)    1916C-1051. 

(Annotated.) 

52.  Invalid  Condition.  Invalid  condi- 
tions or  provisions  against  alienation  in.  a 


deed  do  not   defeat   the  estate  to   which 
they  are  annexed;  but  it  stands,  and  the 
'  invalid    conditions    are    rejected.     Lee    v. 
Gates  (N.  Car.)  19I7A-514. 

53.  Estoppel— To  Urge  Invalidity  of  Be- 

straint  on  Alienation.  A  void  restraint  on 
alienation  in  a  deed  cannot  be  enforced 
on  ground  of  estoppel  against  persons  sign- 
ing the  deed.  Lee  v.  Oates  (N.  Car.) 
1917A-514. 

d.    Exceptions  and  Reservations. 

54.  Bights  of  Grantor  of  lUillroad  Bight 
of  Way.  Where  the  owner  of  a  body  of 
land,  through  which  a  private  road  is 
maintj^ined  by  him  as  a  way  necessary  for 
ingress  and  egress  between  his  residence 
and  his  farm  and  timbered  lands  located 
thereon,  sells  a  strip  of  land  through  his 
tract  to  a  railroad  company  for  the  pur- 
pose of  locating  a  railroad  thereon  in  such 
way  as  to  intersect  with  the  private  road, 
and  executes  to  the  purchaser  a  formal 
deed,  whereby  he  conveys  the  bargained 
land  to  the  purchaser  in  fee  simple,  with 
a  general  warranty  of  title,  and  recites 
in  the  deed  that  the  land  is  conveyed 
"absolutely  and  without  reservation,"  there 
is  no  implied  reservation  of  a  right  to  con- 
tinue the  use  of  the  road  at  the  point  of 
intersection  with  the  land  so  granted;  and 
under  authority  of  the  deed,  the  grantee, 
in  so  far  as  it  might  affect  the  grantor, 
can  close  the  road.  Carlton  v.  Seaboard 
Air-Line  By.  (Ga.)  1917A-497. 

(Annotated.) 

55.,  Bepngnancy.  An  exception  of  sever- 
able matter,  expressed  in  sufficient  terms 
and  placed  immediately  after  the  haben- 
dum in  a  deed,  is  not  repugnant  in  the 
legal  sense  of  the  term  to  the  granting 
clause,  and  is  valid.  Freudenberger  Oil 
Co.  V.  Simmons  (W.  Va.)  1918A-873. 

58.  The  space  or  position  in  a  deed 
usually  accorded  to  the  reddendum  may 
be  used  for  a  clause  excepting  a  sever- 
able thing  from  the  premises  or  grant- 
ing clause  of  the  deed,  and  an  excep- 
tion so  made  is  not  repugnant  to  the 
grant,  unless  it  is  in  irreconcilable  con- 
flict therewith.  Freudenberger  Oil  Co.  v. 
Simmons   (W.  Va.)   1918A-873. 

57.  Effect  of  Exception.  An  exception 
eliminates  from  the  operation  of  the 
terms  of  the  granting  clause  so  much  of 
what  would  otherwise  pass  by  them  as  is 
embraced  in  the  terms  of  the  exception, 
and  the  deed,  as  a  whole  passes  what  is 
embraced  in  the  terms  of  the  grant  less 
what  is  included  in  the  exception.  Freud- 
enberger Oil  Co.  V.  Simmons  (W.  Va.) 
1918A-873. 

58.  Exception  of  Minerals.  An  excep- 
tion of  the  minerals  in  a  tract  of  land, 
granted  in  general  terms,  by  the  premises 
of   the   deed,   made  by  a  clause  in  space 


278 


DIGEST 

1916C— 1918B. 


usually  occupied  by  the  reddendum,  is 
valid.  Freudenberger  Oil  Co.  v.  Simmons 
(W.  Va.)   1918A-873. 

59.  The  following  terms  in  such  a  deed: 
"Excepting  therein  all  coal  or  other  min- 
erals or  mineral  waters  which  are  to  be 
held  in  common  by  all  the  heirs"  of  the 
grantor,  suflBciently  manifest  intent  to  ex- 
cept the  minerals  in  the  land  from  the 
operation  of  the  deed.  Freudenberger 
Oil  Co.  V.  Simmons  (W.  Va.)   1918A-873. 

60.  Distinction  Between  Exception  and 
Reservation.  A  reservation  in  a  deed  of 
proper  subject-matter  of  an  exception  is. 
in  law,  an  exception,  though  incapable  of 
operation  as  a  reservation,  since  it  ex- 
presses unequivocal  intent  not  to  part 
with  the  thing  reserved.  Freudenberger 
Oil  Co.  V.  Simmons  (W.  Va.)   1918A-873. 

(Annotated.) 

61.  Exception  —  Abortive  Attempt  to 
Nullify.  An  abortive  attempt,  in  a  deed 
in  which  an  exception  is  made,  to  grant 
the  subject-matter  of  the  exception, 
neither  negatives  the  intent  to  except  nor 
invalidates  the  exception.  Freudenberger 
Oil  Co.  V.  Simmons  (W.  Va.)  1918A-873. 

Note. 
Distinction      between      exception      and 
reservation  in  deed.     1918A-877. 

e.     Inconsistent  Provisions  or  Becitals. 

62.  Construction  —  Estate  Limited  by 
Habendum  Clause.  Though  the  granting 
clause  of  a  deed  is  "grants,  bargains,  sells, 
and  conveys  the  lands,"  which  under 
Kirby's  Ark.  Dig.  §  731,  imports  a  con- 
veyance of  a  fee  simple,  "unless  limited 
by  express  words  of  such  deed,"  the  fol- 
lowing provision:  "It  is  understood  that 
said  property  is  to  be  used  as  a  game  and 
fish  preserve  only  and  the  conveyors  .  .  . 
reserve  .  .  .  the  right  to  cut  and  remove 
all  timber  .  .  .  and  it  is  a  condition  .  .  . 
should  [the  grantee]  abandon  the  prop- 
erty .  .  .  said  lands  shall  revert  to  [the 
grantors]  or  its  successors,"  not  constitut- 
ing, strictly  speaking,  an  habendum  clause, 
but  clauses  descriptive  of  the  interest  con- 
veyed and  of  the  purpose  of  the  convey- 
ance, limits  the  conveyance  to  the  privi- 
lege of  hunting  and  fishing;  there  being 
no  such  repugnancy  between  the  granting 
clause  and  the  succeeding  clauses  as  neces- 
sitates a  choice  between  conflicting  provi- 
sions.    Stokes  V.  State  (Ark.)   1917D-657. 

(Annotated.) 

63.  Inconsistency  of  Granting  and 
Habendum  Clauses.  While,  if  a  deed 
clearly  and  by  apt  terms  grants  a  title  in 
fee  simple,  any  limitation  thereof  in  the 
habendum  clause  repugnant  to  or  incon- 
sistent with  the  estate  so  created  is  void, 
yet,  in  determining  the  intent  the  whole 
deed  is  to  be  looked  to,  and  the  granting 
clause,    being    merely    "sell    and    convey 


.  .  .  undivided  one-third  interest,"  and  in- 
tention to  create  a  joint  tenancy  with 
right  of  survivorship  clearly  appearing 
from  the  deed  in  its  entirety,  it  is  to  be 
given  that  effect.  Wood  v.  Logue  (Iowa) 
1917B-116. 

f.     Estate  or  Interest  Conveyed. 

64.  It  is  also  immaterial  that  the  strip 
of  land  described  in  the  map  as  a  street 
was  never  used  by  any  owner  of  the  ad- 
joining lands.  Eltinge  v.  Santos  (Cal.) 
1917A-1143. 

65.  In  such  case  it  is  immaterial  that 
for  many  years  a  warehouse  was  main- 
tained on  a  buyer's  land,  and  that  such 
warehouse  had  no  opening  toward  the 
street.  Eltinge  v.  Santos  (Cal.)  1917A- 
1143. 

66.  Sale  With  Reference  to  Map  — 
Eights  of  Purchaser.  Where  the  vendor 
of  land  passed  the  deeds  thereto  before  a 
certain  map  was  recorded,  the  descriptions 
of  the  deeds  referring  to  the  map  and 
recognizing  that  a  street  existed  as  delin- 
eated on  such  map  as  being  adjacent  to 
the  property  sold,  the  subsequent  recorda- 
tion of  the  map  binds  the  vendor  and  his 
successors,  so  far  as  the  private  buyers 
are  concerned,  to  accord  to  them  a  right  of 
way  over  the  land  described  as  a  street. 
Eltinge  v.  Santos  (Cal.)   1917A-1143. 

67.  Estate  Created.  The  nature  and 
quantity  of  interests  granted  by  a  deed 
may  be  ascertained  by  the  instrument  it- 
self and  must  be  determined  as  a  matter 
of  law,  and  the  intent  is  that  which  is 
apparent  and  manifest  in  the  deed  itself. 
Duffield  V.  Duffield  (111.)  1916D-859. 

68.  Limitation  Clauses.  In  construing 
a  deed  the  portions  defining  and  limiting 
the  estate  granted  are  the  granting  clause 
and  habendum.  DuflSeld  v.  DuffieW  (111.) 
1916D-859. 

69.  Deed  to  One  and  Bodily  Heirs.  A 
deed  to  one  and  her  bodily  heirs  creates 
a  fee  tail  at  common  law,  by  Kirby's  Ark. 
Dig.  §  735,  turned  into  a  life  estate  in  the 
first  taker,  with  remainder  in  fee  in  her 
children.  Maynard  v.  Henderson  (Ark.) 
1917A-1157. 

70.  What  Estates  may  be  Created.  As 
used  in  Gen.  Stats.  Kan.  18RS.  c.  22,  §  3. 
providing  that  conveyance  of  land,  or  of 
any  other  estate  or  interest  therein,  may 
be  made  by  deeds,  the  words  "conveyances 
of  land"  mean  the  land  itself  in  fee  sim- 
ple, and  "any  other  estate  or  interest 
therein"  includes  estates  of  freehold  and 
less  than  freehold,  of  inheritance  and  not 
of  inheritance,  absolute  and  limited,  pres- 
ent and  future,  vested  and  contingent,  and 
any  other  kind  a  grantor  may  choose  to 
invent  consistent  with  public  policy.  Mil- 
ler V.  Miller   (Kan.)   1917A-918. 

71.  Appurtenances.  A  grant  of  a  lot 
abutting  on  a  city  street  vests  title  to  a 


DEEDS. 


279 


coal  vault  under  and  an  opening  in  a 
pavement,  though  in  terms  not  expressly 
including  either  of  them.  Such  title  is, 
however,  subject  to  t)le  easement  of  the 
public  for  street  purposes.  Hill  v.  Norton 
(W.  Va.)   1917D-489. 

72.  Quitclaim  by  Judgment  Creditor. 
The  holder  of  a  judgment  has  no  estate 
or  interest  in  land  subject  to  the  judgment 
lien,  but  only  a  right  to  have  it  applied 
to  the  satisfaction  of  his  debt,  and  hence 
an  instrument  executed  by  him  quitclaim- 
ing a  part  of  the  land  to  a  purchaser  from 
the  judgment  debtor  merely  releases  and 
exonerates  such  land  from  the  judgment 
lien.  Brown  v.  Harding  (N.  Car.)  1917C- 
548. 

Note. 

Construction  of  habendum  clause  in 
deed  in  connection  with  premises.  1917D- 
661. 

g.     Evidence  in  Aid  of  Construction. 

73.  Where  plaintiff,  in  a  suit  to  estab- 
lish ownership  of  various  tracts  of  land 
and  to  the  coal  and  minerals  thereunder, 
substantially  shows  that  the  lands  sued  for 
were  within  his  grant  and  not  included  in 
any  prior  grants  or  exclusions,  the  burden 
shifts  to  the  defendant  to  show  that  the 
lands  were  included  in  an  exclusion  or 
prior  grant.  Tennis  Coal  Co.  v.  Sackett 
(Ky.)    1917E-629. 

74.  Grant  of  Lands  —  Inclusion  of  Par- 
ticular Tract.  In  such  suit  the  evidence 
is  held  to  show  that  such  tracts  were  not 
embraced  in  any  of  the  exceptions  in  the 
patent  to  the  original  patentee  or  in 
plaintiff's  deed  from  the  devisees  under 
his  will.  Tennis  Coal  Co.  v.  Sackett  (Ky.) 
1917E-629. 

75.  Impeachment  by  Parol.  The  inten- 
tion of  the  grantor  is  to  be  ascertained 
from  the  language  employed  in  the  deed. 
In  case  of  doubt,  interpretation  may  be 
aided  by  evidence  of  the  situation  and  cir- 
cumstances of  the  grantor  and  his  relation 
to  the  grantees  at  the  time  the  deed  would 
take  effect  if  valid,  but  it  cannot  be  im- 
peached by  testimony  of  the  grantor  that 
he  did  not  intend  anybody  should  have 
the  land  if  his  son  refused  to  take.  Miller 
V.  Miller  (Kan.)   1917A-918. 

5.  COVENANTS   RUNNING   WITH 
LAND  IN  GENERAL. 

76.  A  condition,  in  a  deed  for  the  bene- 
fit of  the  grantor  and  its  other  grantees, 
that  the  grantee  shall  not  sell  to  a  negro, 
expressly  declaring  that  it  runs  with  the 
land,  creates  a  real,  as  distinguished  from 
a  personal,  obligation,  and  is  valid  under 
La.  Rev.  Civ.  Code,  art.  1901,  giving  the 
effect  of  laws  to  agreements  legally  en- 
tered into,  and  articles  11  and  12  prohibit- 
ing contracts  against  law  and  good  morals. 


Queensborough  Land  Co.  v.  Cazeau  (La.) 
1916D-1248.  (Annotated.) 

6.     COVENANTS  OP  TITLE, 
a.     Warranty. 

77.  After  Acquired  Title.  A  deed  by  an 
expectant  heir  conveying  with  general 
warranty  all  of  his  interest  in  the  real 
estate  of  his  mother,  though  in  effect  a 
quitclaim  deed,  is  sufficient  to  estop  the 
grantor  with  respect  to  a  title  subse- 
quently acquired  by  descent,  as  a  quit- 
claim deed  is  sufficient  to  convey  an  absol- 
ute fee-simple  title.  Blackwell  v.  Harrel- 
son   (S.  Car.)   1916E-1263. 

78.  Conclusiveness  Against  Covenantor 
of  Judgment  Against  Covenantee.  Notice 
of  the  suit  and  opportunity  to  defend  it 
must  be  given  to  the  warrantor  of  a  title, 
or  a  judgment  against  the  title  in  a  suit 
against  his  grantee  will  not  be  available 
against  him,  if  available  at  all,  in  favor  of 
the  successful  assailant  of  the  title.  Kapi- 
olani  Estate  v.  Atcherley  (U.  S.)  1916E- 
142.  (Annotated.) 

79.  What  Constitutes  Breach  of  War- 
ranty. Language  of  the  deeds  in  question 
in  this  case  examined,  and  held  not  a 
recognition  of  a  highway  right  over  the 
locus  in  quo.  McAndrews,  etc.  Co.  v. 
Camden  National  Bank  (N.  J.)  1917C-146. 

(Annotated.) 

80.  Whether  the  existence  of  an  ac- 
tual traveled  highway  across  an  open 
tract  of  land  conveyed  without  mention 
thereof  is  a  breach  of  a  general  covenant 
of  warranty  —  quaere.  McAndrews,  etc. 
Co.  V.  Camden  National  Bank  (N.  J.) 
1917C-146.  (Annotated.) 

81.  When  there  is  no  open  highway 
across  land  conveyed,  and  no  indication  on 
the  ground  of  such  highway  to  apprise 
the  grantee  of  its  physical  existence,  and 
no  subjection  of  the  land  to  highway  uses 
recognized  in  the  title  •  deeds  by  express 
mention  or  reference  to  other  documents, 
a  prior  dedication  to  public  use,  afterward 
accepted  by  the  public  and  enforced  by 
judgment,  will  support  a  suit  for  breach 
of  warranty.  McAndrews,  etc.  Co.  v.  Cam- 
den National  Bank  (N.  J.)   1917C-146. 

(Annotated.) 

Kota. 

Necessity  of  notice  to  covenantor  of 
good  title  to  defend  eviction  proceeding 
in  order  to  conclude  him  in  action  on 
covenant.     1916E-148. 

b.     Against  Incumbrances. 
(1)     What   Constitutes  Breach. 

82.  Railroad  Eight  of  Way  as  Breach  of 
Covenant.  Railroad  tracks  in  existence 
and  o[)eration  across  a  tract  of  land,  when 
conveyed  by  deed  containing  a  covenant 


260 


DIGEST. 

1916C— 1918B. 


of  warranty  and  against  inenmbrauees,  are 
incumbrances,  where  the  grantee,  though 
inspecting  the  premises  before  purchase, 
was  misled  by  the  grantor  into  believing 
that  the  railroads  were  paying  rent  for  the 
right  of  way.  Schwartz  v.  Black  (Tenn.) 
1916C-1195.  (Annotated.) 

83.  Easement  to  Take  Ice.  A  covenant 
that  the  grantor  was  well  seised  of  the 
premises  as  of  a  good,  sure,  perfect,  absol- 
ute, and  indefeasible  estate  of  inheritance, 
atod  that  the  same  are  free  from  all  incum- 
brances which  the  grantor  will  forever 
warrant  and  defend,  is  breached  by  a 
reservation  of  the  right  to  harvest  ice 
formed  on  a  pond  within  the  land,  which 
also  required  party  in  possession  to  main- 
tain the  water  at  a  certain  height;  for  the 
title  to  ice  formed  on  ponds  and  streams 
belongs  to  the  owner  of  the  bed.  Gadow 
V.  Hunholz  (Wis.)   1917D-91. 

84.  A  landowner  covenanted  that  the 
premises  were  free  from  incumbrances,  but 
his  title  was  subject  to  the  right  of  others 
to  harvest  ice  from  a  pond  thereon.  The 
owner  of  the  ice  right  refused  to  dispose  of 
it  to  the  grantee,  but  the  grantee  was  not 
called  upon  to  keep  the  water  up  to  a  cer- 
tain level,  as  the  reservation  required.  It 
is  held  that,  though  the  covenant  was 
breached  when  the  deed  was  made,  the 
right  reserved  was  in  the  nature  of  an 
"easement"  or  a  "profit  a  prendre,"  which 
is  the  right  to  take  the  soil  or  a  product 
thereof,  and  hence  there  was  a  construc- 
tive eviction  entitling  the  grantee  imme- 
diately to  recover  the  amount  of  his  dam- 
ages.   Gadow  T.  Hunholx  (Wis.)  1917D-91. 

(Annotated.) 

Note. 

Nature  and  effect  of  grant  of  right  to 
take  ice  from  another's  premises.  1917I>- 
93. 

(2)     Measure  of  Damagei  for  Breach. 

85.  Easement  Benefiting  Land.  Where, 
in  a  suit  by  a  grantee  for  breach  of  gen- 
eral covenant  of  warranty  and  against  in- 
cumbrances, because  of  railroad  tracks 
and  rights  of  way  over  the  land,  the  evi- 
dence shows  that  the  railroads  are  bene- 
ficial to  the  premises,  the  grantee  cannot 
recover  substantial  damages.  Schwartz  t. 
Black  (Tenn.)  1916C-1195. 

7.    EECITALS. 

86.  Impeaching  Eecital  in  Deed.  Where 
a  deed  V»y  a  husband  for  the  benefit  of  his 
wife  recited  a  valuable  consideration,  the 
burden  of  showing  that  the  deed  was  exe- 
cuted in  consideration  of  marriage  rests 
on  the  husband  suing  for  the  restoration 
of  the  property  after  divorce  of  the  par- 
ties. Anheier  v.  De  Ijong  (Ky.)  1917A- 
1239. 


87.  Contradiction  by  Parol.  Ky.  Civ. 
Code  Prac.  §  425,  requiring  a  judgment  of 
divorce  to  contain  an  order  restoring  any 
property  which  either  spouse  obtained 
from  the  other  during  marriage  in  con- 
sideration thereof,  where  a  divorced  hus- 
band seeks  to  recover  property  conveyed 
to  the  wife  directly  or  indirectly  in  con- 
sideration of  the  marriage,  the  recital  in 
the  deed  of  a  valuable  consideration  may 
be  contradicted  by  parol,  even  in  the  ab- 
sence of  any  fraud  or  mistake.  Anheier 
T.  D©  Long  (Ky.)  1917A-1239. 

DEEDS  OF  TEUST. 
See  Mortgages. 

DEEB. 

Right  to  kill  within  inclosure,  see  Ani- 
mals, 21. 

Killing  deer  in  defense  of  property,  see 
Animals,  22. 

DE  FACTO  OFFICERS. 

See  Public  Officers,  30,  35,  58-«0. 

DEFAMATION. 
See  Libel  and  Slander. 

r 

DEFAULT. 

See  Pleading,  106. 

DEFAULT  JUDGMENTS. 
See  Judgments,  AA-^Q. 

DEFENDANTS. 
See  Parties  to  Actions. 

DEFINITENESS. 

As  essential  to  remedy,  see  Specific  Per- 
formance, 2. 

DEFINITIONS. 
See  Words  and  Phrases. 

DEFRAUDING  CREDITOES. 
See  Fraudulent  Sales  and  Conveyances. 


DELAY. 


See  Ladies. 


DEL  CEEDERE  AGENTS. 
See  Agency,  9. 

DELEGATION         OF         LEGISLATIVE 
POWEE. 

See  Labor  Laws,  26;  Public  Service  Com- 
missions, 19. 


DELEGATION  OF  POWER— DEPOSITIONS. 


281 


DELEGATION  OF  POWER. 

Judicial  power,  see  Constitutional  Law,  13. 
Legislative  power,  see  Obustitutioiial  Law, 
89. 

DELIVERY. 

See  Escrow,  1-12. 

Of  deed,  proof,  see  Admissions  and  Decla- 
rations, 9. 

Of  negotiable  paper,  see  Bills  and  Notes, 
17-19. 

Of  deeds,  see  Deeds,  4-16. 

Bar  of  statute  removed  hj,  see  Frauds, 
Statute  of,  6,  9. 

Of  gifts,  see  Gifts,  4,  5,  12,  13. 

Meaning,  see  Intoxicating  Llc[Uors,  81. 

As  essential  to  pardon,  see  Pardons,  1. 

Of  surety  bond,  see  Suretyship,  7. 

DELAY. 

In  telegram,  see  Telegraphs  and  Tele- 
phones, 27,  28. 


DELUSION. 

Defined,  see  Insanity,  24. 
Defined,  see  Wills,  62. 


DEMAND. 

Prerequisite  to  action  for  forfeiture,  see 
Forfeitures,  1. 


DEMAND  AND  PRESENTMENT. 

See  Bills  and  Notes,  31,  32. 

DEMURRAGE. 

State  regulation  of,  see  Carriers  of  Goods, 
20. 

DEMURRER. 

See  Equity,  20;  Pleading,  38-62. 

Ruling  on  held  harmless  error,  see  Appeal 

and  Error,  223-227. 
To  indictment,  gee  Criminal  Law,  16. 

DEMURRER  TO  EVIDENOB. 
See  Trial,  51. 

DEPARTURE. 
See  Pleading,  98. 

DEPENDENTS. 

Who  are  under  Employers'  Liability  A«t, 
see  Master  and  Servant,  74,  75. 

Who  are,  under  Workmen's  Compensation 
Act,  see  Master  and  Servant,  265-269. 


DEPOSITARIES. 


See  Escrow. 


DEPOSITIONS. 

1.  Bight  to  Take,  281. 

2.  Necessity  and  Suuieiency  of  Notice,  2S1. 

3.  Admissibility  in  Evidence,  2&2. 
Review,  see  Appeal  and  Error,  105. 
Deposition   at  former  trial,  admissibility, 

see  Evidence,  84. 

1.     BIGHT   TO   TAKE. 

1.  Proof  of  Incapacity  of  Testator.    An 

action  will  not  lie  to  perpetuate  testi- 
mony as  to  the  alleged  incompetent  men- 
tal condition  of  one  who  has  executed  a 
will  and  who  is  still  living.  Pond  T. 
Faust  (Wash.)  1918A-736. 

2.  Necessity  and  SufKciency  of  Notice. 
A  notice  to  take  deposition  of  a  wit- 
ness about  to  go  out  of  the  commonwealth 
and  not  to  return  in  time  for  trial,  di- 
rected to  "James  C.  McClellan,"  while  the 
party's  name  was  "James  C.  McLellan," 
and  seasonably  served,  is  suiHeient,  though 
subsequent  notice,  not  seasonably  served, 
correctly  gave  the  name  of  the  party. 
McLellan  v.  Fuller  (Mass.)  1917B-1. 

3.  Under  Ala.  Code  1907,  5  4032,  as 
amended  by  Acts  1911,  p.  487,  providing, 
relative  to  depositions,  that  when  the  tes- 
timony is  desired  under  section  4030, 
Bubd.  3,  authorizing  the  taking  of  deposi- 
tions when  the  witness  resides  more  than 
100  miles  from  the  place  of  trial  or  is 
absent  from  the  state,  the  testimony  may, 
unless  the  opposite  party  makes  the  affi- 
davit therein  prescribed,  be  taken  by 
interrogatories,  that  the  moving  party 
may  file  interrogatories,  of  which  and 
of  the  residence  of  the  witness  and  of 
the  commissioner  to  be  appointed  he  must 
give  the  opposite  party  notice,  and  that, 
if  thereupon  such  opposite  party  shall 
make  afiBdavit  that  in  his  belief  it  is 
material  that  the  testimony  of  such  wit- 
ness be  taken  orally,  the  clerk  shall 
issue  a  commission  to  take  such  testi- 
mony by  oral  examination,  provided,  how- 
ever, that  in  all  cases  in  which  testi- 
mony is  to  be  taken  by  interrogatories  the 
party  against  whom  the  testimony  is  pro- 
posed to  be  taken  shall,  within  the  time 
allowed  to  file  cross-interrogatories,  have 
the  right  to  demand  reasonable  notice  of 
the  time  and  place  of  taking  the  testi- 
mony and  to  attend  such  examination  and 
cross-examine  the  witnesses  orally  in  all 
cases  where  depositions  are  taken  on  com- 
missions from  the  law  courts,  the  party 
against  whom  it  is  proposed  to  take  the 
testimony  within  the  time  for  filing  eross- 
interrogatories  has  a  right  to  demand  rea- 
sonable notice  of  the  time  and  place  of 
taking  the  testimony,  and  to  attend  and 
cross-examine  the  witnesses  orally,  though 
the  meaning  of  the  statute  is  somewhat 
obscure.  Barfield  v.  South  Highlands  In- 
firmary (Ala.)  1916C-1097. 

4.  Necessity  of  Naming  Witness.  The 
notice   directing   the  commission   to    take 


282 


DIGEST. 

1916C— 1918B. 


the  depositions  of  persons  named  "and 
others,"  depositions  taken  of  others  than 
those  named  are  admissible.  In  re  Raw- 
lings'  Will   (N.  Car.)    1918A-948. 

(Annotated.) 

Note. 
Necessity  and  suflSciency  of  naming  of 
witness    in    notice    of    taking    deposition. 
1918A-950. 

3.     ADMISSIBILITY  IN  EVIDETNCE. 

5.  Depositions  Taken  Before  Death. 
Such  statute  does  not  render  inadmissible 
a  deposition  of  the  surviving  party  to  a 
transaction  taken  before  the  death  of  the 
other  party,  though  it  is  offered  in  evi- 
dence after  such  death.  Beaston  t,  Port- 
land Trust,  etc.  Bank  (Wash.)   1917B-483. 

(Anntitatcd.) 

6.  Bight  of  Adverse  Party  to  Use.  When 
a  party  takes  a  deposition  and  files  it,  but 
declines  to  read  it,  his  adversary  may 
read  it,  but  he  must  introduce  the  whole. 
Jonas  V.  South  Covington,  etc.  B.  Co. 
(Ky.)   1916E-965.  (Annotated.) 

DEPOSITS. 
See  Banks  and  Banking,  13-22,  24-56. 

DEPOTS. 

See  Carriers  of  Passengers;  Bailroads. 

DESCENT  AND  DISTBIBUTION. 

1.  Nature  and  Right  of  Succession,  282. 

2.  Property  Subject  to  Succession,  282. 

3.  Who  may  Inherit,   282. 

a.  Illegitimate  Children,  282. 

b.  Inheritance   Through   Illegitimates, 

282. 

4.  Actions  Concerning  Property  of  Intes- 

tates, 283. 

5.  Assignment  of  Prospective  Inheritance, 

283. 

See  Advancements;  Dower;  Escheat;  Exe- 
cutors and  Administrators;  Wills. 

Inheritance  from  foster  parent,  see  Adop- 
tion of  Children,  5,  6. 

Inheritance  from  adopted  child,  see  Adop- 
tion of  Children,  7-9. 

Inheritance  by  aliens,  see  Aliens,  5-7. 

Distribution  to  heirs,  legatees  and  credit- 
ors, see  Executors  and  Administrators, 
57-61. 

1.     NATURE  AND  RIGHT  OF  SUCCES- 
SION. 

1.  Time  of  Ascertainment.  The  son  has 
no  heirs  at  all  while  living.  Who  the  heirs 
of  his  body  may  be  cannot  be  ascertained 
until  his  death,  and  children  now  in  being 
take  nothing  under  the  deed  unless  they 
outlive  their  father.  Miller  v.  Miller 
(Kan.)   1917A-918. 

2.  Nature  of  Right  to  Inherit  or  Take 
by  WilL     The  right  to  inherit  or  to  take 


by  will  and  the  right  to  devise  and  to  be- 
queath are  not  natural  and  inalienable 
rights,  nor  are  they  guaranteed  by  the 
state  or  federal  constitutions.  Moody  v. 
Hagen  (N.  Dak.)   1918A-933. 

(Annotated.) 
Note. 
Right  to   take   property   by  inheritance 
or  will  as  natural  right  protected  by  con- 
stitution.    1918A-939. 

2.     PROPERTY   SUBJECT  TO   SUCCES- 
SION. 

3.  Survival  of  Actions.  In  such  case,  if 
the  injury  occurred  during  the  lifetime  of 
plaintiff's  devisor,  the  right  of  action  does 
not  descend  to  plaintiff  as  the  devisee, 
but  survives  to  the  devisor's  personal  rep- 
resentatives. Louisville,  etc.  R.  Co.  v. 
Jackson  (Ark.)  1918A-604. 

4.  Situs  of  Corporate  Stock.  Shares  of 
stock  in  a  corporation  are  personal  prop- 
erty, and  descend  according  to  the  laws  of 
the  state  which  was  the  domicil  of  the 
owner  at  the  time  of  his  death,  and  the 
certificates  of  shares  of  corporate  stock, 
which  constitute  evidence  of  ownership, 
are  transferred  according  to  the  laws  of 
the  state  wherein  the  corporation  was  or- 
ganized. State  V.  Dunlap  (Idaho)  1918A~ 
546.  (Annotated.) 

3.     WHO    MAY    INHERIT, 
a.     niegitimate  Children. 

5.  As  used  in  Kan.  Gen.  St.  1909,  S  2956, 
providing  that  illegitimate  children  shall 
inherit  from  the  father  whenever  they 
have  been  recognized  by  him  as  his  chil- 
dren, but  such  recognition  must  have  been 
general  and  notorious,  or  else  in  writing, 
"general"  means  "extensive,"  though  not 
"universal"  and  "notorious"  is  synonymous 
with  "open."  Record  v.  Ellis  (Kan.) 
1917C-822.  (Annotatv-d.) 

6.  From  or  Through  Mother.  It  is  the 
law  in  Connecticut  that  a  child  born  out 
of  wedlock  is  the  child  of  its  mother,  cap- 
able of  inheriting  from  her  and  through 
her.     Moore  v.  Saiton  (Conn.)  1917C-534. 

7.  Inheritance  from  Father.  The  testi- 
mony examined  and  found  not  to  support 
a  finding  of  general  and  notorious  recogni- 
tion by  the  father  of  the  plaintiff's  son- 
ship  as  required  by  the  statute  (Kan.  Gen. 
Stat.  1909,  §  2956),  in  order  to  entitle  him 
to  inherit  from  the  father.  Record  ▼. 
Elis   (Kan.)    1917C-822.  (Annotated.) 

Note. 
Right  .of    illegitimate    child    to    inherit 
from  or  through  father.     1917C-826. 

b.     Inheritance  Through  Ulegitimates. 

8.  Construction  of  Statute.  Under  S. 
Car.  Civ.  Code  1912,  §  3562,  which  was  en- 


DESCRIPTION— DETAINER. 


283 


acted  in  1906,  and  which  provides  that 
any  illegitimate  child  whose  mother  shall 
die  intestate  shall,  so  far  as  her  property 
is  concerned,  be  an  heir  at  law  as  to  such 
property,  the  children  of  an  illegitimate 
child  who  died  prior  to  1906  are  heirs  of 
their  grandmother,  the  mother  of  the  ille- 
gitimate child,  who  died  subsequent  to 
1906;  as  the  act  is  remedial,  and  so  con- 
strued is  not  retrosoective,  since  it  looks 
forward  to  the  time  when  the  distribution 
of  the  intestate's  estate  is  to  be  made, 
especially  in  view  of  section  3555,  provid- 
ing that  the  lineal  descendants  of  an  "es- 
tate" (intestate)  shall  represent  their  re- 
spective parents  and  take  among  them  the 
sh^re  or  shares  to  which  their  parents 
would  have  been  entitled  had  such  parents 
survived  the  intestate,  and,  moreover,  the 
legislature  in  using  the  technical  term 
"heir  at  law"  must  have  intended  to  in- 
vest the  illegitimate  children  with  inheri- 
table blood  such  as  other  heirs  at  law  pos- 
sess. Trout  v.  Burnette  (S.  Car.)  1916E- 
911.  (Annotated.) 

Note. 

Law  governing  status  of  person  as  legi- 
timate or  illegitimate.     1917C-537. 

4.  ACTIONS  CONCERNING  PROPERTY 

or  INTESTATES. 

9.  Liability  of  Heirs  for  Debts — En- 
forcement— Laches.  On  a  bill  to  charge 
the  lands  of  a  decedent  in  the  hands  of 
the  heirs  with  a  sum  alleged  to  be  the 
property  of  his  surviving  children  to  which 
they  became  entitled  upon  his  death  as 
part  of  their  mother's  estate,  it  appeared 
that  complainants'  mother  on  her  death  in 
1895,  intestate,  was  seized  in  fee-simple  of 
an  improved  lot,  that  the  property  vested 
in  her  children  as  tenants  in  common,  sub- 
ject to  the  life  estate  of  their  surviving 
father,  that  the  surviving  husband  and 
children  immediately  sold  the  lot,  that  the 
father  gave  two-thirds  of  the  proceeds  to 
the  children  and  retained  the  other  third 
for  his  own  use  during  his  lifetime,  though 
he  was  entitled  to  the  use  of  the  whole 
proceeds  for  life,  and  the  father  and  the 
children  treated  the  property  as  his  for 
18  years  until  his  death.  It  is  held  that 
as  courts  of  equity  do  not  countenance 
laches  or  long  delays  and  refuse  to  inter- 
fere in  favor  of  a  party  guilty  of  laches  or 
unreasonable  acquiescence  in  the  assertion 
of  stale  demands,  the  bill  was  properly 
dismissed.  Henderson  v.  Harper  (Md.) 
1917C-93.  (Annotated.) 

5.  ASSIGNMENT    OF    PROSPECTIVE 

INHERITANCE. 

10.  Release   of   Expectancy  to  Answer. 

Where,  as  he  may,  the  prospective  heir  of 
a  living  person  releases  his  expectancy  to 
the  ancestor,  a  court  of  equity  will  enforce 
the  contract  for  the  benefit  of  the  other 


heirs.     Donough  v.  Garland   (111.)   1916E- 
1238. 

11.  Assignment  of  Expectancy  to  Stran- 
ger. Where  the  prospective  heir  of  a  liv- 
ing person  assigns  or  transfers  his  expec- 
tancy, the  transaction  operates  as  a  con- 
tract by  the  assignor  to  convey  the  legal 
estate  or  interest  when  it  vests  in  him, 
which  will  be  enforced  in  equity  when  the 
expectancy  has  become  a  vested  interest. 
Donough  V.  Garland  (111.)  1916E-1238. 

(Annotated.) 

12.  Release  to  Ancestor.  The  release  to 
a  living  ancestor  by  his  prospective  heir 
of  such  heir's  expectancy  is  not  within  the 
terms  of  the  statute  of  descent  (Hurd's 
Rev.  St.  111.  1913,  c.  39,  §§4,  8),  relating 
to  advancements  received  by  a  child  or 
lineal  descendant  toward  his  share  of  the 
estate.  Donough  v.  Garland  (111.)  1916E- 
1238. 

13.  Where  an  heir  presumptiTe  releases 
his  expectancy  as  such  to  his  ancestor,  the 
release  operates  to  extinguish  his  right  of 
inheritance;  the  line  of  inheritance  is 
ended  by  the  release,  which  is  binding  not 
only  upon  the  heir,  but  upon  those  taking 
as  heirs  in  his  place.  Donough  v.  Garland 
(111.)    1916E-1238, 

14.  Assignment  of  Expectancy  to  Stran- 
ger, Where  an  heir  presumptive  assigns 
his  expectancy  as  such  to  a  third  person, 
instead  of  releasing  it  to  his  ancestor,  his 
right  of  inheritance  is  not  extinguished, 
but  the  assignment  will  be  enforced  as  a 
contract  to  convey  the  legal  interest  when 
it  ceases  to  be  an  expectancy  and  be- 
comes a  vested  estate,  and  the  assignee 
acquires  a  right  to  the  estate  only  if  it 
ever  vests  in  the  heir.  Donough  t.  Gar- 
land (111.)  1916E-1238.  (Annotated.) 

Note. 

"Validity  of  transfer  of  expectancy  in 
estate  made  bv  heir  or  beneficiary  to 
stranger,     1916E-1241. 

DESCRIPTION, 

In  contract  to  sell  land,  aee  Vendor  and 
Purchaser,  5. 

DESERTION. 
See  Divorce,  9-14,  37-43, 

DESIRE. 

Meaning,  see  Wills,   192,  194,  195, 

DESTRUCTION. 

Of  will  as  revival  of  former  one,  see  Wills, 
113. 

DETAINER, 
See  Forcible  Entry  and  Detainer. 


284 


DIGEST. 


1916C- 
DETECTIVE3. 
See  Licenses,  23, 

Sheriff's  duty  as  to  deteetires,  see  Sheriffs 
and  Constables,  7. 

Communicatione    with   employer  a«  privi- 
leged, see  Witnesses,  33^. 

DETENTION. 
See  False  Imprisonment. 


-1918B. 


DISCHARGE. 


DETINUE. 


See  KepleYln. 


DEVISES. 
See  Wills. 

Contract  to  devise,  see  Specific  Performr 
aace,  5,  6,  9. 

DIAGNOSIS. 

Liability    for    error,    see    Physicians   and 
Surgeons,  21. 

DIARY. 
As  •videnee,  see  Evidence,  103,  104. 

DICTA. 
As  precedente,  see  Stare  Decisis,  10. 

DICTAPHONE. 

Admissiblitj  of  evidence  procured  by,  see 
Homicide,  35. 

DILIGENCE. 

Dismissal  for  want  of,  see  Dismissal  and 
Nonsuit,  4-9. 

Sufficiency  of  showing  diligence  to  secure 
evidence,  see  New  Trl^  22-24,  33,  34. 

DIPLOMATIC    OFFICERS. 
See  Ambassadors  and  Consuls. 

DIRECT    ATTACK. 
On  judgment,  see  Judgment,  80. 

DIRECTINa  VERDICT. 

See  Verdicts,  14-35. 

DIRECTORS. 

Powers  and  duties,  see  Corporations,  52, 
53. 

DISAFFIRMANCE. 
Of  contract  by  minor,  see  Infants,  8-14. 

DISBARMENT    OP    ATTORNEYa 
See  Attorneys,  4i-68. 


See  Release  and  Discharge. 

Of  bankrupt,  see  Bankruptcy,  24,  25. 

As  consideration,  gee  Bills  and  Notes,  12. 

Of  negotiable  paper,  see  Bills  and  Notes, 
35-37. 

Of  servant,  see  Master  and  Servant,  3-5,  8. 

Of  surety,  see  Suretyship,  15-19. 

E'ffect  of  release  of  cosurety,  see  Surety- 
ship, 25. 

DISCIPLINE. 
Punishment  of  convicts,  see  ConvictB,  3. 

DISCLAIMER. 

General  powers  no  authority  for,  tee  At- 
torneys, 8, 

DISCONTINUANCE. 
See  Dismissal  and  Nonsuit. 

DISCOUNT. 
Provision  for,  effect  on  negotiability,  ses 
Bills  and  Notes,  21. 

DISCOVERY. 

Order  to  produce  books  not  reviewable, 
see  Certiorari,  3. 

1.  Showing  of  Materiality.  Though,  un- 
der Iowa  Code,  §  4654,  providing  that  the 
district  court  may  in  its  discretion  re- 
quire the  production  of  any  papers  or 
books  which  are  material  to  the  just  de- 
termination of  any  cause  pending  before 
it.  the  application  for  such  order  must 
affirmatively  show  that  the  evidence  is 
material,  yet  an  express  averment  is  not 
necessary,  and  where,  in  an  action  for 
libel  plaintiff  applied  for  an  order  to  re- 
quire defendant  newspaper  to  produce  its 
circulation  lists,  and  the  petition  eet  out 
in  detail  what  was  expected  to  be  proved 
by  such  evidence,  it  is  sufficient  as  show- 
ing the  materiality  of  the  evidence.  Dal- 
ton  V.  Calhoun  County  District  Court 
(Iowa)    1916D-695. 

2.  Production  of  Newspaper  Circulatioii 
Books.  An  order  of  the  court,  in  an  ac- 
tion for  libel,  requiring  defendant  therein 
to  produce  as  evidence  its  circulation 
books,  is  not  an  unreasonable  sesrch  and 
seizure  in  violation  of  Ihe  constitution. 
Dalton  v.  Calhoun  County  District  Court 
(Iowa)   1916D-695. 

3.  Privilege — Transcript  of  Court  Pro- 
ceedings. A  transcript  of  shorthand  notes 
of  a  proceeding  in  court  which  the  attor- 
ney of  a  stranger  thereto  procured  to  be 
taken  for  his  inforniation  in  anticipated 
litigation  is  not  privileged  from  inspec- 
tion. Lambert  v.  Home  (Eng.)  1916C- 
872.  (Annotated.) 

4.  Production  of  Document.  In  an  ac- 
tion   against    a   newspaper   for    libel,    the 


DISCRETIONARY  ACTS— DISMISSAL  AND  NONSUIT.        285 


circulation  books  of  the  oewspaper  are 
material  evidence  showing  the  extent  of 
the  injury,  and  the  fact  that  defendant  in 
its  answer  admitted  the  circulation  as 
broadly  as  charged  does  not  render  it 
immaterial,  since  plaintiff,  notwithstand- 
ing the  admissions,  has  the  right  to  in- 
troduce the  evidence.  Dalton  v.  Calhoun 
County  District  Court   (Iowa)   1916D-695. 

(Annotated.) 
Notes. 

Transcript  of  court  proceedings  as  prir- 
ileged   from   inspection.     1916C-876. 

Effect  on  right  to  production  of  docu- 
ment of  admission  by  opposing  party  am  to 
its   contents.     1916D-698. 

DISCRETIONAEY  ACTa 
Not  compellable,  see  Mandamus^  Sw 

DISCTRETION  OF  COURT. 

Permitting  reading  law  to  jury,  see  Arga- 
ment  and  Conduct  of  Counsel,  27. 

In  disbarment  proceedings,  see  Attorneys, 
48,  52. 

In  ruling  on  challenges,  see  Jury,  27,  28. 

On  motion  for  new  trial,  see  New  Trial, 
1,   22,  25,  40,  42,  43. 

Phvsieial  examination  of  plaintiff,  se© 
Physical  Examination,  2. 

Amendment  without  terms,  see  Pleading, 
70. 

In  imposing  sentence,  see  Sentence  and 
Punishment,  17-19. 

As  to  continuance,  see  Trial,  1. 

As  to  exhibitions  before  jury,  see  Trial, 
57,  58. 

As  to  qualification  of  experts,  ses  Wit- 
nesses, 11. 

DISEASE. 

See  Healtb. 

As  defense,  see  Breach  of  Promise  of  Mar- 
riage, 1,  5-8. 

Workmen's  Compensation  Act  as  applying 
to,  see  Master  and  Servant,  110,  193- 
198,  200. 

As  affecting  testamentary  capacity,  see 
Wills,  83,  86. 

DISHWASHEB. 

As  within  Workmen's  Compensation  Act, 
see  Master  and  Servant,  226. 

DISMISSAL  AND  NONSUIT. 

See  Equity,  21-25. 

Of  appeal,  see  Appeal  and  Error,  82-88. 

Eight  of  client  to  dismiss,  see  Attorneys, 
15. 

Of  condemnation  proceedings,  gee  Eminent 
Domain,  92-96. 

Sufficiency  as  termination  of  suit,  see 
Malicious  Prosecution,  5,  6. 

Discontinuance  of  special  assessment  pro- 
ceedings, see  Taxation,  138. 

Of  taxpayer's  suit,  see  Taxation,  203. 


1.  Motion  to  Dismiss  Properly  Denied. 

Certain  motions  to  dismiss,  made  at  the 
close  of  plaintiff's  case  and  again  at  the 
close  of  all  the  testimony,  held  properly 
denied.  Price  v.  Minnesota,  etc.  B.  Co. 
(Minn.)   1916C-267. 

2.  Failure  of  ProQf.  Where  the  testi- 
mony for  plaintiff,  in  a  personal  injury 
case,  leaves  the  cause  of  the  accident  to 
mere  speculation,  a  nonsuit  should  be  en- 
tered. Holmberg  v.  Jacobs  (Ore.)  1917D- 
496. 

3.  Taking  Case  from  Jury — Insuflclency 
of  Evidence.  The  court  should  not  take  a 
case  from  the  jury  upon  a  motion  for  a 
nonsuit  or  upon  a  motion  to  direct  the 
jury  to  return  a  verdict  for  defendant,  un- 
less it  appears  that  the  evidence  in  plain- 
tiff's behalf,  upon  the  most  favorable  con- 
struction that  the  jury  would  be  at  liberty 
to  give,  would  not  warrant  a  verdict  for 
plaintiff.  McAlinden  v.  St.  Maries  Hos- 
pital Assoc.   (Idaho)   1918A-380. 

4.  Dismissal  for  Want  of  Prosecution. 
The  fact  that  one  of  defendant's  coun- 
sel died  within  the  five  year  period  and 
tho  other  ceased  to  act  will  not  excuse 
plaintiff  from  bringing  the  action  to  trial 
within  that  time,  as  he  could  have  re- 
quired defendant  to  appoint  another  attor- 
ney, or  appear  in  person.  Larkin  v.  Su- 
perior Court   (Cal.)   1917D-670. 

5.  After  defendant's  answer,  plaintiff's 
attorney  died,  and  defendant  served  no 
notice  on  plaintiff  in  accordance  with  Cal. 
Code  Civ.  Proc,  §  286.  declaring  that  when 
an  attorney  dies  or  ceases  to  act  a  party 
to  an  action  for  whom  he  was  acting  must, 
before  any  further  proceedings  are  had 
against  him,  be  required  by  the  adverse 
party  by  written  notice  to  appoint  an- 
other attorney  or  appear  in  person.  Sec- 
tion 583  provides  that  if  an  action  is  not 
brought  to  trial  within  five  years  after 
answer  it  shall  be  dismissed.  It  is  held 
that  the  defendant's  failure  to  file  notice 
demanding  the  appointment  of  an  attor- 
ney for  the  plaintiff  did  not  preclude  him 
from  claiming  a  dismissal  for  plaintiff's 
failure  to  bring  the  case  to  trial  within 
five  years.  Larkin  t.  Superior  Court 
(Cal.)   1917D-670. 

6.  That  the  original  defendant  adminis- 
trator died  within  the  five-year  period 
alter  answer  in  which  actions  must,  un- 
der Cal.  Code  Civ.  Proc.  §  583,  be  brought 
to  trial,  and  no  other  administrator  was 
appointed  until  after  the  expiration  of 
that  period,  will  not  excuse  plaintiff's  fail- 
ure to  bring  the  action  to  trial  and  so 
preclude  dismissal.  Larkin  v.  Superior 
Court  (Cal.)    1917D-670. 

7.  Where  the  answer  was  filed  June  30, 
1909,  and  the  minutes  of  the  court  showed 
that  on  November  27th,  the  date  set  for 
trial,  the  parties  appeared  in  court  and 
through  their  counsel  stipulated  that  trial 
should  be  fixed  for  April  11,  I9I0,  and  the 


286 


DIGEST. 

1916C— 1918B. 


court  80  orderecl,  that  on  April  11,  1910, 
the  case  was  continued  until  June  29th, 
and  on  June  29th  the  case  was  again  con- 
tinued until  September  19th,  but  there  was 
no  record  entry  of  independent  stipulation 
in  writing  providing  that  time  of  trial 
should  be  extended  beyond  the  five-year 
limit,  the  action  must  be  dismissed  under 
Cal.  Code  Civ,  Proc.  §  583,  declaring  that 
an  action  not  brought  to  trial  within  five 
years  after  answer  shall  be  dismissed,  un- 
less extended  by  written  stipulation  of  the 
parties.  Larkin  v.  Superior  Court  (Cal.) 
1917D-670. 

8.  Under  such  statute,  a  stipulation  by 
counsel  of  the  respective  parties  for  an 
extension  of  the  time  of  trial  is  a  stipula- 
tion of  the  parties.  Larkin  v.  Superior 
Court   (Cal.)    1917I>-670. 

9.  Delay  in  Bringing  Action  to  Trial. 
Cal.  Code  Civ.  Proc.  §  583,  declaring  that 
any  action  shall  be  dismissed  by  the  court 
in  which  it  shall  have  been  commenced,  or 
to  which  it  may  be  transferred  on  motion 
of  defendant  after  due  notice  to  plaintiff, 
unless  it  is  brought  to  trial  within  five 
years  after  defendant  has  filed  his  answer, 
except  where  the  parties  have  stipulated 
in  writing  that  the  time  may  be  extended, 
is  mandatory.  Larkin  v.  Superior  Court 
(Cal.)  1917D-670. 

DISOBEDIENCE. 

Of  servant  effect  under  Workmen's  Com- 
pensation Act,  see  Master  and  Ser- 
vant,  199,  207. 

DISOBDEBLY  CONDUCT. 
See  Breach  of  Peace. 

DISOBDEBLY  HOUSESw 

See  Prostitution. 

Policy  on  bawdy  house,  validity,  see  Pire 

Insurance,   1. 
Injunction   to  abate,  eec  Injunctions,  29. 

1.  "Blind  Tiger."  A  disorderly  "blind 
tiger"  is  a  disorderly  "tippling-house." 
Calhoun  v.  Bell  (La.)  1916D-1165. 

2.  Illegal  Sale  of  Intoxicants.  A  saloon 
run  in  violation  of  law  is  a  "disorderly 
house,"  which  is  defined  as  any  place 
where  illegal  practices  are  habitually  car- 
ried on;  and  hence  a  saloon  open,  equip- 
ped, and  ready  for  business  is  a  threat  to 
breach  the  peace,  if  not  in  itself  a  breach 
of  the  peace.  State  v.  Reichman  (Tenn.) 
1918B-889. 

3.  Owners  of  Premises — ^Liability  for 
Use  for  Prostitution — Tenement  House 
Act.  The  N.  Y.  Tenement  House  Law,  as 
amended  by  Laws  1913,  c.  598,  forbidding 
the  use  of  any  part  of  a  tenement  for  pur- 
pose of  prostitution,  though  construed  to 
inflict  a  penalty  independently  of  knowl- 
edge on  the  part  of  the  owner  as  to  the 


use,  is  a  valid  act.     Tenement  House  De- 
partment V.  McDevitt  (N.  Y.)   1917A-455. 

4.  The  knowledge  of  the  owner  of  the 
use  of  a  tenement  is  not  essential  to  a  re- 
covery of  the  penalty  under  the  N.  Y. 
Tenement  House  Law,  as  amended  by 
Laws  1913,  c.  598,  forbidding  that  a  tene- 
ment be  used  for  prostitution.  Tenement 
House  Department  v.  McDevitt  (N.  Y.) 
1917A-455.  (Annotated.) 

5.  Under  N.  Y.  Tenement  House  Law 
(Consol.  Laws,  c.  61)  §§  109,  124,  as 
amended  by  Laws  1913,  c.  598,  giving 
right  of  action  for  penalty  if  any  tene- 
ment house  or  any  part  thereof  shall  be 
used  for  a  purpose  of  prostitution,  an  act 
on  a  single  day,  followed  by  the  eviction 
of  the  occupants,  is  insufiicient  to  show 
the  use  forbidden  by  the  statute.  To 
make  the  owner  liable,  it  must  appear  that 
the  building  has  been  "used"  for  the  pur- 
pose of  prostitution,  and  this  imports,  not 
an  isolated  act  of  vice,  but  some  measure, 
even  though  brief,  of  continuity  and  per- 
manence. To  say  that  a  building  is  used 
for  such  a  purpose  means,  in  substance, 
that  it  is  kept  or  maintained  for  such  a 
purpose.  Tenement  House  Department  ▼. 
McDevitt  (N.  Y.)   1917A-455. 

(Annotated.) 

6.  Instructions — Definition  of  House  of 
HI  Fame.  The  refusal  of  an  instruction 
defining  a  house  of  ill  fame  as  a  place  in- 
habited by  more  than  one  woman  actually 
engaged  in  prostitution,  and  the  giving 
of  an  instruction  defining  it  aa  a  house 
visited  by  persons  of  both  sexes  for  the 
purpose  of.  having  unlawful  indiscriminate 
eexual  intercourse,  is  not  error.  State  v. 
Gardner   (Iowa)   1917D-239. 

Note. 

Validity  and  construction  of  statute 
making  owner  of  premises  liable  for  use 
thereof  for  purpose  of  prostitution. 
1917A-459. 

DISSECTION. 
Bight  of,  see  Dead  Body,  5. 

DISSOLUTION. 

See  Building  and  Loan  Associations,  6-12. 
Of  attachment,  see  Attachment,  8-13. 
Of  foreign   corporation,  see   Corporations, 

Ifio. 

DISSOLUTION  OF  COBPOBATIONS. 

See  Corporations,  4,  5,  7,  8,  165. 

DISSOLUTION  OF  PABTNEBSHIP. 

By  retirement  of  partner,  see  Partnership, 

40. 
By  death  of  partner,  see  Partnership,  41. 
Rights  of  partners,  see  Partnership,  42. 
By  suit  in  equity,  see  Partnership,  43-46. 


DISTINGUISHING  MARKS— DIVORCE. 


287 


DISTINGUISHING  MARKS. 
On  ballot,  see  Elections,  37-73. 

DISTRIBUTION  OF  ASSETS. 

See  Corporations,   115,   116,   146,  147. 

DISTRIBUTION  OF  PROPERTY. 

See  Descent  and  Distribution. 

DISTRICT   ATTORNEYS. 
See  Prosecuting  Attorneys. 

DISTRICT  SCHOOLS. 
See  Schools. 

DISTURBING   PEACE. 
See  Breach  of  Peace. 


DITCHES. 


See  Irrigation. 


DIVERSION. 
Of  city  funds,  see  Municipal  CorporatlonB. 
107. 

DIVERSION  OF  WATER. 

Bights  of  riparian  owner,  see  Waten  and 
Watercourse*,  14-16. 

DIVIDENDS. 

See  Corporations,  101-103. 

DIVISION  FENCEa 
See  Boundaries;  Fences. 

DIVORCE. 

1.  Jurisdiction,  287. 

2.  Grounds  for  Divorce,  288. 

a.  In  General,  288. 

b.  Desertion,  288. 

3.  Defenses,  289. 

a.  Condonation,  289. 

b.  Connivance,  289. 

c.  Recrimination,  289. 

d.  Refusal  of  Reconciliation,  290. 

e.  Separation  Agreement,  290. 

4.  Pleading,  290. 

a.  Answer,  290. 

b.  Cross-bill,  290. 

5.  Evidence,  290. 

a.  Cruelty,  290. 

b.  Desertion,  290. 

c.  Condonation,  291. 

6.  Counsel  Fees,  291. 

7.  Decree,   291. 

a.  In  General,  291. 

b.  Eflfect,  291. 

c.  Remarriage,  292. 

8.  Custody  of  Children,  292. 

9.  Vacating  or  Setting  Aside  Decree,  292. 

10.  Independent  Action  to   Recover  Prop- 

erty. 292. 

11.  Extraterritorial  Effect  of  Foreign  Di- 

vorce,  292. 


See  Alimony  and  Suit  Money. 

Unreasonable  contract  for  fees,  see  Attor- 
neys, 27. 

Special  legislation,  see  Constitutional  Law, 
88. 

Proceedings  before  commissioner,  see 
Costs,  10. 

As  bar  to  dower,  see  Dower,  13. 

Antenuptial  agreement  contemplating  di- 
vorce, validity,  see  Husband  and 
Wife,  17,  24,  25. 

liability  of  husband  for  wife's  attorney's 
fees,  see  Husband  and  Wife,  38,  41, 
42. 

Effect  of  divorce  on  insurance,  see  Life 
Insurance,  10-12. 

Remarriage,  validity,  see  Marriage,  4,  5. 

Effect  on  mortgage  of  mortgagor's  divorce, 
see  Mortgages  and  Deeds  of  Trust,  18. 

Right  of  divorced  mother  to  sue,  see 
Seduction,  2,  3. 

Title  of  divorce  statute,  see  Statutes,  9. 

Retrospective  operation  of  statute,  see 
Statutes,  75. 

1.     JURISDICTION. 

1.  Statute    Requiring    Residence.      The 

constitutional  prohibition  against  the  im- 
pairment of  obligation  of  contracts  does 
not  apply  to  divorces,  which  are  under  the 
control  of  the  legislature,  and  the  provi- 
sion of  Act  Feb.  20,  1913  (Laws  Nev. 
1913,  c.  10),  amending  section  22  of  the 
marriage  and  divorce  act  of  1861  (Laws 
1861,  c.  33),  as  amended  in  1875  (Laws 
1875,  c.  22),  by  declaring  that  when,  at 
the  time  a  cause  for  divorce-  accrues,  the 
parties  are  not  both  residents,  the  court 
cannot  have  jurisdiction,  unless  either 
party  has  been  a  bona  fide  resident  for  not 
less  than  one  year,  does  not  impair  the 
obligation  of  contracts,  though  it  be  con- 
strued as  relating  to  a  cause  for  divorce. 
Worthington  v.  District  Court  (Nev.) 
1916E-1097.  (Annotated.) 

2.  Acts  Feb.  20,  1913  (Laws  Nev.  1913, 
c.  10),  amending  section  22  of  the  mar- 
riage and  divorce  act  of  1861  (Laws  1861, 
c.  33),  as  amended  in  1875  (Laws  1875, 
e.  22),  by  declaring  that  when,  at  the 
time  a  cause  for  divorce  accrues,  the  par- 
ties shall  not  have  been  bona  fide  resi- 
dents, the  court  shall  not  grant  a  divorce, 
unless  either  party  shall  have  been  a  bona 
fide  resident  for  not  less  than  a  year,  pro- 
vides for  a  classification  of  nonresidents 
at  the  time  of  the  accrual  of  a  cause  of 
action  for  divorce,  and  the  classification 
is  reasonable,  and  does  not  conflict  with 
the  Fourteenth  Amendment  to  the  federal 
constitution  guaranteeing  the  equal  pro- 
tection of  the  laws.  Worthington  v.  Dis- 
trict Court   (Nev.)   1916E-1097. 

(Annotated.) 

3.  Requirement  as  to  Residence.  The 
provision  in  Act  Feb.  20,  1913  (Laws  Nev. 
1913.  c.  10),  amending  section  22  of  the 
marriage  and  divorce  act  of  1S61   (Laws 


288 


1881,  e.  33),  as  amended  in  1875  (Laws 
1875,  c.  22),  by  declaring  that  when,  at 
the  time  of  the  accrual  of  a  cause  for  di- 
vorce, the  parties  shall  not  both  be  bona 
fide  residents  of  the  state,  no  court  shall 
grant  divorce,  unless  either  party  shall 
have  been  a  bona  fide  resident  for  not  less 
than  one  year  next  preceding  the  com- 
mencement of  the  action,  is  of  general 
uniform  operation  throughout  the  state, 
and  applies  the  same  in  every  part  of  the 
state,  and  to  all  persons  under  similar  cir- 
cumstances, and  is  not  a  local  or  special 
law  within  Const,  art.  4,  §  20,  prohibiting 
any  local  or  special  law  granting  a  divorce. 
Worthington  v.  Kstrict  Court  (Nev.) 
1916E^1097.  (Annotated.) 

4.  Power  of  Court.  The  courts  have  no 
inherent  power  to  grant  a  divorce;  but 
such  power  must  be  conferred  by  statute. 
Worthington  v.  District  Court  (Nev.) 
1916E-1097. 

5.  Besidence   Essential   to   Jurisdiction. 

The  courts  of  a  state  have  no  jurisdic- 
tion to  grant  a  divorce,  unless  at  least  od« 
of  the  parties  has  a  domicil  in  the  state, 
and  the  appearance  of  a  nonresident  de- 
lendant  will  not  invest  the  court  with 
jurisdiction  of  a  suit  brought  by  a  person 
who  has  no  bona  fide  domicil  in  the  state. 
Worthington  v.  District  Court  (Nev.) 
1916E-1097. 

6.  Statute  Bequiring  Besidence.  A  stat- 
ute of  a  state  which  provides  that  where, 
at  the  time  of  the  accrual  of  a  cause  for 
divorce,  the  parties  shall  not  be  both  bona 
fide  residents,  no  court  thall  grant  a  di- 
vorce, unless  either  party  shall  have  been  a 
bona  fide  resident  for  not  less  than  one  year 
next  preceding  the  bringing  of  the  action, 
does  not  violate  Const.  U.  S.  art.  4,  §  2, 
guaranteeing  to  citizens  of  each  state  all 
privileges  and  immunities  of  citizens  in 
the  several  states;  there  being  a  distinc- 
tion between  the  citizenship  and  residence 
and  the  rights  of  citizens  and  residents, 
and  the  constitution  guaranteeing  no 
rights  to  citizens  as  to  divorce.  Wor- 
thington V.  District  Court  (Nev.)  1916E- 
1097.  (Annotated.) 

7.  Bight  to  Change  of  Venue.  S.  Dak. 
Code  Civ.  Proc.  §  101,  requiring  actions  to 
be  tried  in  the  county  of  defendant's  resi- 
dence, and  section  102,  authorizin?  the 
court  to  change  the  place  of  trial  when  the 
action  is  brought  in  the  wrong  county, 
apply  to  actions  for  divorce  where  the  de- 
fendant resides  in  a  different  county  from 
that  of  plaintiff,  notwithstanding  the  pro- 
visions of  Laws  1907,  c.  132.  §  1,  that  the 
plaintiff  in  an  action  for  divorce  must 
have  been  a  resident  for  three  months  of 
the  county  where  the  action  is  commenced. 
Hockett  T.  Hockett  (S.  Dak.)   1917A-938. 

(Annotated.) 

Notes. 

Change  of  venue  in  divorce  action. 
1917A-940. 


DIGEST. 

19160— 1918B. 

Validity  of  statute  requiring  certain 
period  of  residence  within  state  as  pre- 
requisite to  divorce.     1916E-1110. 


2.     GEOUNDS  FOR  DIVORCE, 
a.     In   General. 

8.  Bight  to  Divorce  Statutory.  The 
right  to  a  divorce  is  not  a  guaranteed  priv- 
ilege of  the  citizens,  and  the  right  to  di- 
vorce is  limited  to  the  causes  and  subject 
to  the  requirements  prescribed  by  state 
statute.  Worthington  v.  District  Court 
(Nev.)  1916E-1097. 

b.     Desertion. 

9.  Conduct  of  Husband's  Belatives. 
Where  husband  without  necessity  refused 
to  provide  a  separate  home  for  his  wife,  or 
to  furnish  a  home  with  her,  except  at  the 
home  of  his  parents,  where  she  refused 
to  live,  but  was  willing  to  live  with  him 
under  any  other  reasonable  conditions,  her 
refusal  is  not  "desertion"  sufficient  to 
justify  a  divorce.  Mar&hak  v.  Marshak 
(Ark.)     1916E-206.  (Annotated.) 

10.  What  Constitutes  Desertion.  There 
may  be  a  separation  of  husband  and  wife 
without  desertion,  and  desertion  of  a  wife 
by  her  husband  without  separation.  Tip- 
ton v.  Tipton  (Iowa)    1916C-360. 

11.  Separation  Pursuant  to  Antenuptial 
Agreement.  Abnormal  conditions  in  the 
marital  relation  instituted  by  mutual 
agreement  between  husband  and  wife  will 
afford  neither  party  ground  for  judicial 
action  against  the  other,  as  where  the 
wife  lived  with  her  people  apart  from  the 
husband  from  the  time  of  the  marriage, 
except  for  his  occasional  visits,  but  such 
abnormal  conditions  are  to  be  considered 
in  determining,  if  there  existed  a  marital 
relation  for  the  husband  to  sever  by  de 
sertion  and  in  determining  if  his  conduct 
constituted  a  desertion.  Tipton  v.  Tioton 
(Iowa)     1916C-360.  (Annotated.) 

12.  Where  the  wife  lived  with  her  par- 
ents from  the  time  of  marriage,  receiving 
visits  from  her  husband  several  times 
weekly,  and  visiting  occasionally  at  his 
parents'  home,  where  he  lived,  there  is  a 
marital  relation  that  might  be  severed  by 
the  husband  by  desertion.  Tipton  v.  Tip- 
ton (Iowa)    1916C-360. 

13.  Want  of  Beasonable  Excuse.  It  is 
not  alone  sufiicient  to  justify  a  divorce 
that  there  was  a  desertion;  but  the  deser- 
tion must  have  been  without  reasonable 
excuse.  Tipton  v.  Tipton  (Iowa)  1916C- 
360. 

14.  Desertion  upon  Agreement.  An  ac- 
tion for  divorce  for  abandonment  or 
desertion  occurring  after  a  separation 
aj^eement  cannot  be  maintained.  Canning 
vl  Canning  (Vt.)  1916C-344. 

(Annotated.) 


DIVORCE. 


289 


8.     DEFENSES. 

a.  Condonation. 

15.  What  Constitutes.  The  wife's  adul- 
tery in  keeping  an  assignation  house  and 
offering  herself  therein,  is  completely  con- 
doned hy  cohabitation  for  ten  years,  when 
the  husband  knows  of  and  assists  her  in 
operating  the  house.  Klekamp  v.  Klekamp 
(111.)    1918A-663.  (Annotated.) 

16.  Breacli  of  Condition  of  Condonation. 
A  wife's  petition  for  divorce  on  the 
ground  of  cruelty,  wherein  the  defense  is 
condonation  by  cohabitation  pending  the 
proceeding,  but  where  it  is  found  that  the 
condition  of  the  condonation  had  been 
broken  by  renewed  acts  of  cruelty,  is  not 
thereby  abated,  but  the  petitioner  may 
rightfully  proceed  and  obtain  a  dirorce 
thereunder.  Egidi  v.  Egidi  (E.  I.)  1918A- 
648.  (Annotated.) 

17.  "Condonation"  is  the  forgiveness, 
express  or  implied,  by  one  of  the  married 
parties  of  an  offense  which  he  knows 
the  other  has  committed  against  the  mar- 
riage, on  the  condition  of  being  con- 
tinually afterwards  treated  by  the  other 
with  conjugal  kindness,  and  that  there 
shall  be  no  just  cause  for  complaint  in 
the  future  resulting  in  the  rule  that, 
while  the  condition  remains  unbroken, 
there  can  be  no  divorce,  but  that  a  breach 
of  it  revives  the  original  remedy.  Egidi 
V.   Egidi    (R.   I.)    1918A-648. 

(Annotated.) 

18.  While  cohabitation  while  a  divorce 
proceeding  is  pending  is  ordinarily  a  con- 
donation, and  a  bar  to  the  relief  prayed 
for,  yet  when  the  charge  is  cruelty,  much 
less  cruel  treatment  than  would  be  neces- 
•arv  for  a  good  ground  for  divorce,  will 
suffice  to  avoid  the  defense  of  condo- 
nation, and  the  wife,  owing  to  her  helpless- 
ness, is  more  indulgently  considered  as  to 
cordonation  than  the  husband,  and  if  the 
condition  of  condonation  in  such  case  is 
broken  by  a  renewal  of  the  acts  of  cru- 
e'"^'-  the  o^irr'nal  right  to  relief  remains. 
Egidi  V.  Egidi  (R.  I.)  1918A-648. 

(Annotated.) 
Note. 

Conr?onat?oTi  as  defense  in  action  for 
divorce.     1918A-651. 

b.  Connivance. 

19.  Offer  to  Return  After  Lapse  of 
Statutory  Period.  Where  the  right  of  a 
wife  to  a  divorce  for  desertion  continued 
for  the  statutory  period  is  made  out,  no 
court  ha?  power  to  deny  her  relief,  when 
she  insists  upon  divorce  merely  because 
her  husband  promipes  to  return  to  the 
mari«^al  relation.  Tipton  t;  Tipton  (Iowa) 
1916C-360. 

20.  Where  defendant  husband,  in  a  di- 
vorce suit,  requested  his  wife,  then  living 

19 


with  her  parents,  to  go  to  housekeeping, 
and  she  wrote  asking  him  not  to  think  of 
it  until  spring,  because  of  her  condition, 
defendant's  contention  is  unsound  that 
this  was  an  agfreement  to  remain  separated 
until  spring,  so  that  plaintiff  cannot  suc- 
ceed in  her  attempt  to  prove  a  desertion 
begun  by  such  separation.  Tipton  v.  Tip- 
ton (Iowa)   1916C-360. 

21.  Effect  of  Separation  Agreement.  A 
husband's  assent  to  his  wife's  separation 
from  him  exonerates  her  from  the  charge 
of  desertion  and  bars  his  suit  for  divorce, 
founded  upon  such  charge.  McCoy  v.  Mc- 
Coy   (W.    Va.)    1916C-367. 

(Annotated.) 

22.  Adultery.  The  recriminatory  charge 
of  adullery  cannot  be  urged  by  one  who 
has  connived  at  the  offense.  Klekamp  t. 
Klekamp   (HI.)   1918A-663. 


e.    Becrimination. 

23.  The  doctrine  of  "recrimination"  in 
divorce  cases,  whereby  one  spouse,  guilty 
of  offenses  against  the  married  status, 
will  be  denied  divorce  notwithstanding  an 
offense  of  the  other,  does  not  necessitate 
that  the  spouses  be  guilty  of  the  same 
offenses,  but  a  wife,  seeking  a  divorce 
on  account  of  the  inhuman  and  cruel 
treatment  of  her  husband,  will  not  be 
denied  a  divorce  where  she  was  gnilty 
of  no  offense  against  th»  married  status, 
though  her  conduct  was  not,  in  all  re- 
spects, what  it  should  have^been.  Heicke 
V.  Heicke   (Wis.)    1918B-497. 

24.  A  husband  guilty  of  adultery  may 
not  obtain  a  divorce  for  his  wife's  deser- 
tion and  abandonment,  though  the  statu- 
tory period  of  desertion  elapsed  before  the 
adultery,  and  though  the  wife's  desertion 
was  the  inciting  cause  of  the  crime.  Green 
V.  Green  (Md.)  1917A-175.       (Annotated.) 

25.  Want  of  affection  of  a  wife  for  her 
husband,  giving  rise  to  a  dislike  of  him, 
that  leads  her  to  refuse  reconciliation 
after  a  separation  or  desertion,  or  that 
makes  such  a  separation  or  desertion  prac- 
tically with  her  consent,  will  excuse  the 
husband-  for  deserting  her  only  when  his 
own  evil  conduct  has  not  caused  the  dis- 
like.    Tipton  V.  Tipton  (Iowa)  1916C-360. 

26.  In  a  suit  for  divorce,  evidence  held 
insufficient  to  show  that  plaintiff  wife  was 
guilty  of  misconduct  sufficient  to  bar  her 
of  relief  and  justify  later  u'isconduct  of 
her  husband,  having  refused  to  keep  hoiise 
with  him.  Tipton  v.  Tipton  (Iowa)  1916C- 
360. 

Note. 
Right  of  recrimination  in  divorce  action 
as  affected  by  comparative  gravity  of  of- 
fenses.    1917A-177. 


290 


DIGEST. 

1916C— 1918B. 


d.     Refusal   of  Beeonciliation. 

27.  Where  the  defendant  deserted  his 
wife,  her  refusal  of  reconciliation,  due  to 
his  own  evil  conduct,  is  not  a  ground  to 
deny  plaintiff  wife  relief,  nor  available  as 
defense.  Tipton  v.  Tipton  (Iowa)  1916C- 
360. 

6.     Separation   Agfreement. 

28.  A  valid  separation  agreement  does 
not  bar  the  husband's  petition  for  divorce 
from  bed  and  board  on  the  ground  of  the 
wife's  adultery  unknown  to  him  when 
he  entered  into  such  agreement,  nor,  in 
the  absence  of  an  express  stipulation 
against  a  suit  for  divorce  for  pre-existing 
causes  then  known  to  the  other  party, 
prevent  either  party  from  maintaining  an 
action  for  divorce,  either  absolute  or  lim- 
ited, whether  the  cause  therefor  occurred 
before  or  after  such  agreement.  Canning 
▼.  Canning  (Vt.)  1916C-344. 

(Annotated.) 

29.  Separation    Agreement    as    Bar.     A 

eeparation  agreement  reciting  that  it  was 
made  because  the  marital  relations  of  the 
parties  were  not  pleasant,  and  providing 
that  the  husband  should  pay  the  wife  $6 
a  week  during  his  life,  and  in  case  of 
his  death  for  four  years,  by  which  the 
husband  waived  all  right  to  the  wife's 
property,  and  the  wife  released  all  her  in- 
terest in  her  husband's  real  estate,  and 
agreed  to  contract  no  bills  on  his  credit, 
cannot  be  construed  as  an  agreement  not 
to  sue  for  separation  for  a  pre-existing 
cause  unknown  to  the  innocent  party. 
Canning  v.  Canning  (Vt.)   1916C-344. 

(Annotated.) 

30.  A  husband's  petition  for  divorce, 
after  entering  into  a  separation  agree- 
ment, is  not  dependent  upon  a  rescission 
of  such  agreement,  which,  if  valid,  may, 
notwithstanding  the  divorce,  be  effective 
80  far  as  it  stipulates  for  the  wife's  sup- 
port. Canning  v.  Canning  (Vt.)  1916C- 
344.  (Annotated.'! 

31.  Articles  of  separation  may  be  taken, 
in  connection  with  lapse  of  time  and  other 
circumstances,  as  evidence  that  a  party 
thereto,  petitioning  for  divorce,  is  not 
acting  in  good  faith,  so  as  to  be  entitled 
to  the  favorable  consideration  of  the  court. 
Canning  v.  Canning  (Vt.)  1916C-344. 

(Annotated.) 
Note. 
Separation  .afrreement  as  bar  to   action 
for  divorce.     1916C-347. 

4.     PLEADING, 
a.     Answer. 

32.  Condonation.  The  defense  of  con- 
donation to  charges  of  cruelty  and  habit- 
ual drunkenness,  to  be  available,  should 
be  pleaded  or  set  up  in  the  answer,  and 
failure  to  do  so  warrants  the  court  to  re- 


fuse  to    allow   the    defense.     Klekamp  t. 
Klekamp    (111.)     1918A-663. 

(Annotated.) 
b.     Cross-bill. 

33.  Cross-Petition  as  Admission.  In  a 
divorce  suit,  allegations  in  the  dismissed 
cross-petition  of  the  defendant  may  be 
taken  against  him  as  admissions.  Tipton 
T.  Tipton  (Iowa)  1916C-360. 

6.     EVIDENCE, 
a.     Cruelty. 

34.  Habits  of  Spouse.  That  complain- 
ant's husband  was  untidy  in  his  habits, 
walked  through  the  house  with  muddy 
feet,  spat  on  the  stove  and  occasionally 
indulged  in  a  game  of  cards  for  small 
stakes  at  a  place  which  formerly  had  been 
a  saloon,  is  not  "extreme  cruelty"  under 
the  statute.  Cunningham  t.  Cunningham 
(Mich.)    1918B^78.  (Annotated.) 

35.  What  Conduct  Constitutes.  That  a 
husband  was  guilty  of  neglect  and  abuse 
which  ultimately  would  affect  his  wife's 
health,  leaving  her  without  medical  atten- 
tion when  in  a  delicate  condition,  and  re- 
fusing to  speak  to  her  for  long  periods 
of  time,  constitutes  cruel  and  inhuman 
treatment  within  the  statute,  although  the 
wife's  health  had  not  at  the  time  she 
sought  a  divorce  become  impaired.  Heicke 
V.    Heicke    (Wis.)    1918B-497. 

(Annotated.) 

36.  Sufficiency  of  Evidence.  The  evi- 
dence is  held  to  sustain  finding  of  chancel- 
lor that  husband  was  guilty  of  cruel  and 
inhuman  treatment.  Klekamp  v.  Kle- 
kamp (111.)   1918A-663. 

Note. 
Habits  or  course  of  conduct  of  spouse 
as  cruelty  warranting  divorce.    1918B— 480. 

b.     Desertion. 

37.  Refusal  of  Reconciliation.  Evidence 
held  sufficient  to  show  that  plaintiff's  re- 
fusal to  live  with  her  husband,  after  his 
desertion  of  her,  was  caused  solely  by  his 
own  conduct.  "Tipton  v.  Tipton  (Iowa) 
1916C-360. 

38.  In  a  suit  for  divorce  for  desertion, 
where  plaintiff  wife  asked  her  husband 
to  postpone  going  to  housekeeping  until 
spring,  on  account  of  her  illness,  to  which 
he  made  no  response,  he  cannot  claim  that 
between  the  time  of  the  request  and  the 
spring  he  lived  apart  from  his  wife  on 
agreement  to  resume  cohabitation,  and 
therefore  there  could  have  been  no  inten- 
tion to  desert  her  until  after  the  spring. 
Tipton  V.  Tipton  (Iowa)  1916C-360. 

39.  Evidence  in  divorce  held  to  show 
that  a  desertion  of  plaintiff  wife  by  her 
husband  was  without  reasonable  excuse  on 


DIVORCE. 


his  part.     Tipton  v.  Tipton  (Iowa)  1916C- 
360. 

40.  Conduct  of  Wife  not  Justifying.  In 
a  suit  for  divorce,  evidence  held  insuffi- 
cient to  show  that  plaintiff  wife  was 
guilty  of  misconduct  sufficient  to  bar  her 
of  relief  and  justify  later  misconduct  of 
her  husband,  as  having  refused  to  live 
with  him  at  the  home  of  his  parents,  Tip- 
ton V.  Tipton  (Iowa)  1916C-360. 

41.  What  is  a  desertion  of  one  spouse  by 
another  is  a  question  of  fact.  Tipton  v. 
Tipton   (Iowa)   1916C-360. 

42.  Evidence  of  Desertion  Sufficient. 
Evidence  held  sufficient,  in  a  suit  for 
divorce,  to  show  that  defendant  had  sev- 
ered the  marital  relation  by  desertion, 
with  an  intent  to  do  so,  and  had  con- 
tinued his  action  for  the  statutory  period 
prerequisite  to  the  granting  of  divorce 
for  such  cause.  Tipton  v.  Tipton  (Iowa) 
I916C-360. 

43.  Where  husband  and  wife  never  lived 
together  in  the  same  house,  to  establish  a 
desertion  by  the  husband  there  must  be  a 
radical  change  in  such  peculiar  marital  re- 
lation as  had  existed  between  the  parties. 
Tipton  V.  Tipton  (Iowa)  1916C-360. 

c.     Condonation. 

44.  In  a  suit  for  divorce  on  the  ground 
of  the  husband's  crueltj',  defended  on  the 
ground  of  condonation  by  cohabitation 
pending  the  suit,  the  evidence  by  the  wife 
is  held  to  sustain  the  burden  of  showing 
a  breach  of  the  condition  by  renewed  acts 
of  cruelty.  Egidi  v.  Egidi  (R.  I.)  I918A- 
648.  (Annotated.) 

45.  The  evidence  is  held  to  be  insuffi- 
cient to  establish  defense  of  condonation. 
Klekamp  v.  Klekamp  (111.)  1918A-663. 

(Annotated.) 

46.  Proof  of  Condonation.  The  defense 
of  condonation  is  affirmative,  and  the  de- 
fendant carries  the  burden  of  establish- 
ing it  by  a  preponderance  of  the  evidence. 
Klekamp  v.  Klekamp  (111.)  1918A-663. 

(Annotated.) 

47.  Knowledge  of  Offense.  A  separation 
agreement  entered  into  by  the  husband, 
without  knowledge  of  the  wife's  pre-exist- 
ing adultery,  cannot  be  held  to  have  con- 
doned the  pre-existing  cause  for  divorce, 
since,  without  knowledge,  there  can  be  no 
condonation.  Canning  v.  Canning  (Vt.) 
1916C-344.  (Annotated.) 

6.     COUNSETL  FEES. 

48.  Whether  an  allowance  should  be 
made  to  the  wife  for  alimony  pendente 
lite  and  for  solicitor's  fees  rests  largely  in 
the  discretion  of  the  court,  but  an  abuse 
of  the  discretion  is  subject  to  review. 
Klekamp  v.  Klekamp  (111.)   1918A-663. 


49.  Propriety  of  Allowance.  Where  the 
evidence  discloses  that  the  wife  is  finan- 
cially more  able  to  pay  her  counsel  fees 
than  the  husband,  she  should  not  be 
allowed  such  fees,  either  in  the  trial  court 
or  on  appeal.  Klekamp  v.  Klekamp  (111.) 
1918A-663. 

50.  Attorneys'  fees  are  treated  as  part 
of  the  expenses  incident  to  a  divorce  case, 
and  are  generally  allowed  the  wife, 
whether  complainant  or  defendant,  both 
upon  the  successful  termination  of  her* 
suit  for  divorce,  as  well  as  for  services 
pendente  lite.  Winslow  v.  Winslow  (Tenn.) 
1917A-245. 

51.  Allowance  of  Attorneys'  Fees.  At- 
torneys for  the  wife  in  her  successful  suit 
for  absolute  divorce  against  her  husband 
were  entitled  to  a  fee  of  $5,000  from  the 
husband,  though  they  could  have  procured 
a  divorce  upon  the  ground  of  abandon- 
ment alone  with  very  little  trouble,  but  in 
fact  charged  cruel  and  inhuman  treatment 
and  infidelity  as  well.  Winslow  V.  Win- 
slow  (Tenn.)   1917A-245. 

7.     DECRETB. 
s.    In  General. 

52.  Description  of  Properiy.  In  allow- 
ance of  property,  on  divorce,  description 
of  property  as  that  "known  as  No.  506  H. 
Ave."  is  sufficient,  though  a  different  de- 
scription is  erroneously  given  in  another 
part  of  the  record;  the  husband  admitting 
the  address  to  be  correct.  Klekamp  v. 
Klekamp  (111.)  1918A-663. 

53.  From  What  Date — Judgment  Re- 
duced ou  Appeal.  The  allowance  of  inter- 
est on  a  decree  for  the  division  of  the  con- 
jugal property  from  the  date  of  a  divorce 
decree  in  the  wife's  favor  is  within  the 
discretion  of  the  court,  notwithstanding 
the  success  of  the  husband  in  reducing  the 
amount  on  appeal,  where  that  was  the  date 
at  which,  but  for  the  delays  of  the  law, 
the  wife  would  have  received  her  dues, 
the  husband  having  had  the  use  of  the 
money  in  the  meantime.  De  La  Rama  v. 
De  La  Rama  (U.  S.)  1917C-411. 

(Annotated.) 

b.     Effect. 

54.  When  a  married  woman  becomes  dis- 
covert by  death  or  divorce,  any  restraint 
previously  existing  on  her  alienation  of 
her  prooertv  becomes  inoperative.  Lee  v. 
Gates  (N.  Car.)  1917A-514. 

55.  Restoration  of  Properi;y.  A  judg- 
ment of  divorce  operates  to  restore  to  the 
divorced  parties  the  title  to  such  property 
as  either  may  have  obtained  from  or 
through  the  other  during  marriage  in  con- 
sideration or  by  reason  thereof,  whether 
the  return  of  the  property  is  ordered  by 
the  judgment  or  in  a  subsequent  proceed- 
ing, and,  if  no  order  of  restoration  or  only 


292 


DIGEST. 

1916C— 1918B. 


a  formal  order  is  made  when  the  divorce 
is  granted,  any  question  thereafter  aris- 
ing as  to  what  property  shall  be  restored 
may  be  settled  by  subsequent  proceedings. 
Schauberger  v.  Morel's  Administrator 
(Ky.)  1917C-265. 

Note. 
Bight  of  divorced  person  to  bring  inde- 
pendent action  against  former  spouse  for 
restoration  of  property.     1917A-1243. 

e.     Bemarriage. 

56.  Effect  of  Bemarrl&ge — Cnstody  of 
Child.  Where  the  parents  of  an  infant 
were  divorced  in  1903,  and  the  mother  was 
awarded  the  custody,  the  remarriage  of 
the  parents  in  1906  annulled  the  judg- 
ment of  divorce  and  restored  the  parents 
to  their  rights  over  the  child  as  if  they 
had  never  been  divorced.  Cain  v.  Garner 
(Ky.)   1918B-824. 

57.  Estoppel  to  Attack  Divorce.  Where 
the  wife,  knowing  that  her  husband  had 
obtained  a  divorce  decree  in  Nevada, 
married  another  and  lived  with  the  new 
husband  for  several  years,  she  was  pre- 
cluded from  setting  up  that  the  Nevada 
decree  was  invalid  because  obtained  on  a 
fraudulent  residence  established  in  that 
state  and  from  claiming  marital  rights 
against  her  former  husband,  though  at  the 
time  of  her  remarriage  she  did  not  know 
of  the  alleged  invalidity  of  the  decree. 
Bruguiero  v.  Bruguiere  (Cal.)    1917E-122. 

(Annotated.) 
Note. 
Estoppel  by  remarriag*  to  attack  decree 
of  divorce.     1917E-125. 

8.     CUSTODY  OF  CHILDEEN. 

58.  Certainty  of  Order.  Where  a  di- 
vorce decree,  in  giving  the  custody  of  the 
children  to  the  father's  mother,  specifies 
that  neither  the  pl«intiff  nor  the  defend- 
ant shall  remove  them  from  the  jurisdic- 
tion of  the  court  "without  the  agreement 
of  the  parties,"  the  parties  who  must 
agree  are  the  parents  of  the  children  and 
the  decree  is  not  so  uncertain  as  to  be 
unenforceable.  Ex  parte  Ellerd  (Tex.) 
I916D-361. 

59.  Eight  to  Visit  Children,  In  order 
that  the  mother  may  have  an  opportunity 
to  see  the  children,  the  court  may  require 
them  to  be  kept  in  a  certain  place  within 
its  jurisdiction.  Ex  parte  Ellerd  (Tex.) 
iei6D-361. 

60.  In  such  a  case  the  court  can,  by  its 
order,  grant  the  mother  of  the  children 
the  right  to  visit  them  at  all  reasonable 
times.     Ex  parte  Ellerd  (Tex.)  1916D-361. 

61.  Award  to  Person  Other  Than  Parent. 
Under  Tex.  Const,  art.  5,  §  8,  giving  the 
district  court  original  jurisdiction  and  gen- 
eral control  over  all  minors,  and  Tex.  Rov. 
Civ.  St.  1911,  art.  4641,  giving  the  district 


court  power  to  give  the  custody  of  the 
children,  to  either  the  father  or  mother, 
the  court  in  granting  a  divorce  has  au- 
thority to  award  the  custody  of  the  chil- 
dren to  the  father's  mother.  Ex  parte 
EUerd,(Tex.)  1916D-361. 

9.  VACATING     OR     SITTTING     ASIDE 

DECREE. 

62.  Effect  of  Vacation.  An  order  vaca- 
ting a  decree  of  divorce  relates  back  to 
the  date  of  the  decree  itself,  so  that  the 
libelant,  who  had  obtained  the  decree,  re- 
mains a  married  woman,  subject  to  the 
restrictions  of  coverture  as  to  her  prop- 
erty after  the  decree  and  before  its  vaca- 
tion.    Gato  T.  Christian  (Me.)  1917A-592. 

63.  The  supreme  judicial  court,  after 
granting  a  divorce  to  libelant,  is  author- 
ized to  vacate  it  either  of  its  own  inherent 
power  or  on  libelee's  motion  for  a  new 
trial  made  at  the  same  term,  when,  by  rea- 
son of  libelant's  death  in  the  meantime 
there  was  no  party  upon  whom  notice 
could  have  been  served,  if  required,  and 
when  convinced  that  libelee  without  negli- 
gence on  his  part,  and  through  some  over- 
sight or  mistake  on  the  part  of  his  at- 
torney or  the  court,  had  not  had  his  day 
in  court.  Gato  v.  Christian  (Me.)  1917A- 
592.  (Annotated.) 

64.  After  Death  of  Party.  An  order 
setting  aside  a  decree  of  divorce  for  libel- 
ant and  granting  a  new  trial,  in  an  action 
involving  property  rights,  was  valid,  not- 
withstanding the  fact  that  libelant,  the 
wife,  had  died  in  the  meantime.  Gato  v. 
Christian  (Me.)  1917A-592. 

(Annotated.) 
Note. 

Volantary  dismissal  of  bill  for  divorce. 
1917A-1197. 

10.  INDEPENDENT  ACTION  TO  RE- 

COVER PROPERTY. 

65.  Independent  Action  for  Restoration 
of  Property.  Where  a  judgment  of  di- 
vorce does  not  contain,  as  provided  by 
Ky.  Civ.  Code  Prac.  §  425,  an  order  restor- 
ing any  property  which  either  spouse  ob- 
tained during  marriage  in  consideration  or 
by  reason  thereof,  an  independent  action 
lies  by  the  party  seeking  the  restoration 
of  the  property  given,  granted,  or  con- 
veyed in  consideration  of  the  marriage. 
Anheier  v.  De  Long  (Ky.)  1917A-1239. 

(Annotated.) 

11.  EXTRATERRITORIAL  EFFECT  OF 

FOREIGN  DIVORCE. 

66.  Where  the  husband  leaves  the  matri- 
monial doriiicil  in  California  and  obtains 
a  divorce  decree  in  Nevada  on  substituted 
service  only,  such  decree  i?  not  binding  on 
the  California  courts,  though  he  estab- 
lished a  bona  fide  residence  in  Nevada. 
Bruguiere  v.  Bruguiere   (Cal.)   1917E-122. 


DIZZINESS— DOWER. 


293 


67.  Where  one  spouse  goes  into  a  state 
other  than  that  of  the  matrimonial  domicil 
and  there  obtains  a  divorce  under  a  resi- 
dence simulated  for  that  purpose,  and  not 
in  good  faith,  the  judgment  is  not  binding 
on  courts  of  other  states  and  may  be  held 
void  in  any  other  itate  on  proof  of  the 
fraudulent  residence  and  of  the  fact  that 
the  divorce  was  obtained  by  substituted 
service  only.  Bruguiere  T.  Bruguiera 
(Cal.)  1917E-122. 

DIZZINESS. 

As  accident  within  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  198. 

DOCTOES. 

See  Pbysl  clans  and  Surgeons. 

DOCUMEIfTABY  EVIDENOa 
See  Evidence,  82-109. 

DOGS. 

Licenses,  see  Animabl,  10. 
City   regulation,   see   Municipal   Corpora- 
tiona,  72. 

DOING  BUSINESS. 
Foreign     corporations    withiH     Stat*,     8«e 
Corporations,  163. 

DOMICIL. 

1.  Nature  and  Acquisition  of  Domicil. 

2.  Change  of  Domicil. 

3.  Evidence  of  Domicil. 

1.     NATURE    AND    ACQUISITION    OP 
DOMICIL. 

1.  What  Constitutes — Intention  as  Es- 
sential. For  a  person  to  gain  a  residence 
in  a  town,  it  is  essential  that  he  go  there 
with  the  intention  of  remaining  and  mak- 
ing it  his  home  for  some  definite  time. 
Bartlett  v.  New  Boston  (N.  H.)  1917B- 
777. 

2.  Effect  of  Temporary  Absence.  Every 
person  can  fix  his  own  residence,  provided 
he  makes  it  reasonably  p'ermanent  by  in- 
tending to  return  thereto  when  the  tem- 
porary work  is  finished.  Siebold  t.  Wahl 
(Wis.)  1917C-400. 

2.     CHANGE  OF  DOMICIL. 

3.  Necessity  of  Loss  of  Original.     The 

general  rule  is  that  a  man  must  have  a 
habitation  or  domicil  somewhere,  and  that 
he  can  have  but  one  at  the  same  time  for 
one  and  the  same  purpose,  and  that  in 
order  to  lose  one  he  must  acquire  another. 
Siobold  V.  Wahl  (Wis.)  1917CHtOO. 

3.     EVIDENCE  OF  DOMICIL. 

4.  Conclusiveness  of  Statement  of  Party. 
Although    intention   is    an   important    ele- 


ment of  the  status  of  an  elector,  his  own 
statement  as  to  any  such  intent  cannot, 
of  itself,  be  controlling  in  respect  to  his 
residence  for  voting  purposes.  Siebold  ▼. 
Wahl  (Wis.)  1917C-400. 


S«e  Gifts. 


DONATIONa 


DOWBB. 

1.  Nature  of  Dower,  293. 

2.  Barring  and  Defeating  Dower,  293. 

a.  Release  by  Wife,  263. 

b.  Estoppel,    294. 
e.  Divorce,  294. 

3.  Widow's  Election,  294. 
Antenuptial     contract     releasing     dower, 

validity,  see  Husband  and  Wife,  15. 

1.     NATURE  OP  DOWER. 

1.  Statutory  Provision.  Under  the  laws 
of  this  state  the  wife's  statutory  dower 
rights  in  her  husband's  property  are  not 
only  superior  to  the  husband's  will,  but 
those  statutory  dower  rights  are  more  lib- 
eral to  the  widow  than  were  the  common- 
law  dower  rights.  Herzog  v.  Trust  Co. 
(Fla.)  1917A-201. 

2.      BARRING        AND        DEFEATING 
DOWER. 

a,     Relea«e  by  Wife. 

2.  Release  by  Postnuptial  Contract.    HI. 

Dower  Act  (Kurd's  Rev.  St.  1813,  c.  -6.) 
S  9,  providing  that  if  before  marriage,  but 
without  the  wife's  consent,  or  if  after 
marriage,  land  shall  be  given  or  assured 
for  the  jointure  of  a  wife  or  husband  in 
lieu  of  dower  such  wife  or  husband  may 
elect  whether  to  take  such  jointure  or  to 
be  endowed  as  provided  in  that  act,  but 
shall  not  be  entitled  to  both,  had  no  appli- 
cation to  a  postnuptial  agreement  by 
which  the  husband  and  wife  each  released 
his  or  her  dower  and  other  rights  in  the 
other's  property,  as  there  was  no  other 
property  for  the  wife  to  accept  i"&  lieu  of 
her  dower  rights,  and  nothing  calling  for 
an  election,  and  her  renunciation  oi  the 
agreement  had  no  effect.  Edwards  v. 
Edwards  (HI.)   1917A-64. 

3.  Eight  to  Release.  Under  Kurd's  Rev. 
HI.  St.  1913,  c.  68,  §  6,  providing  that,  con- 
tracts may  be  made  and  lia.bilities  in- 
curred by  a  wife,  and  that  they  may  be 
enforced  against  her  to  the  same  extent 
and  in  the  same  manner  as  if  she  were 
unmarried,  a  wife,  in  consideration  of  her 
husband's  release  of  his  dower  and  other 
rights  in  her  property,  may  by  a  post- 
nuptial agreement  release  her  rights  in  his 
property,  and  such  an  agreement^  in  the 
absence  of  fraud,  misrepresentation,  or 
concealment,  will  bar  and  extinguish  her 
dower  rights.  Edwards  v.  Edwards  (Ili-) 
1917A-64.  (Annotated.) 


294 


DIGEST. 

1916C— 1918B. 


4.  Agreement  With  Husband.  Ky.  St. 
§  2136,  provides  that  a  conveyance  or  de- 
vise of  property  by  way  of  jointure  may 
bar  the  wife's  interest  in  the  estate  of  her 
husband,  but  if  made  before  marriage 
without  her  consent,  or  during  her  infancy 
OP  after  marriage,  she  may,  after  her  hus- 
band's death,  waive  the  jointure  by  writ- 
ten relinquishment  and  demand  her  dower. 
Section  2128,  subsequently  enacted,  pro- 
vides that  a  married  woman  may  take  and 
dispose  of  property,  and  contract  and  sue 
and  be  sued  as  a  single  woman.  Held, 
that  the  last  section  by  implication  re- 
pealed so  much  of  section  2136  as  allows 
a  married  woman  to  relinquish  in  all  cases 
a  jointure  given  her  after  marriage,  and 
hence  a  contract  between  a  married  woman 
and  her  husband,  whereby  she  agreed  to 
receive  certain  property  in  lieu  of  her 
dower  and  distributive  rights,  if  otherwise 
valid,  cannot,  at  the  option  of  the  wife, 
be  set  aside  on  the  husband's  death.  Bed- 
wine's  Executor  v.  Redwine  (Ky.)  1917A- 
58.  (Annotated.) 

5.  Where  a  husband  induced  his  wife  to 
enter  into  an  agreement  to  accept  in  lieu 
of  her  dower  and  distributive  rights  a 
small  share  in  his  estate,  the  amount  of 
which  the  husband  had  understated,  the 
jointure  agreement  is  invalid,  there  being 
no  consideration  to  support  it,  as  the  join- 
ture was  less  than  the  wife's  statutory 
share.  Redwine's  Executor  v.  Redwine 
(Ky.)  1917A-58.  (Annotated.) 

6.  A  jointure  contract  between  a  hus- 
band and  wife,  entered  into  while  they 
were  sojourning  in  a  foreign  state,  is  gov- 
erned by  the  laws  of  their  domicil,  where 
the  husband's  property  was  located  therein 
and  it  was  intended  by  the  parties  that 
the  contract  should  be  performed  in  the 
state  of  their  domicil  upon  their  return. 
Redwine's  Executor  v.  Redwine  (Ky.) 
1917A-58.  (Annotated.) 

7.  To  Stranger.  A  wife  cannot  convey 
to  a  stranger  her  inchoate  right  of  dower 
in  property  of  her  living  husband.  Hill  v. 
Boland  (Md.)  1917A-46. 

8.  Release  by  Contract  With  Husband. 
At  common  law  a  wife  can  make  no  con- 
tract with  her  husband  to  bar  her  dower 
right,  but  a  fair  and  reasonable  contract 
settling  the  property  rights,  of  which  the 
wife  had  received  the  benefit,  will  be  en- 
forced in  equity.  Hill  v.  Boland  (Md.) 
1917A-46.  (Annotated.) 

9.  Where  an  agreement  between  a  hus- 
band and  wife  consisted  of  two  parts,  one 
for  living  separately  and  the  other  a  con- 
tract by  which  the  wife,  for  a  valuable 
consideration,  released  her  dower  rights, 
the  latter  part  can  be  enforced  if  the  par- 
ties continue  to  live  together,  and  is  not 
void  even  if  the  contract  for  separation 
was  against  public  policy.  Hill  v.  Boland 
(Md.)  1917A-46.  (Annotated.) 


10.  Under  Md.  Code  Pub.  Civ.  Laws,  art. 
45,  §  12,  authorizing  a  married  woman,  by 
deed  of  herself  and  husband  or  by  her 
separate  deed,  to  release  her  dower  right, 
and  section  20,  authorizing  her  to  contract 
with  her  husband,  a  contract,  executed 
with  all  the  formalities  required  of  a  deed, 
by  which  a  married  woman,  for  a  valu- 
able consideration,  released  to  her  hus- 
band her  dower  rights,  whether  construed 
as  a  deed  under  section  12  or  as  a  con- 
tract under  section  20,  is  valid.  Hill  v. 
Boland  (Md.)  1917A-46.  (Annotated.) 

11.  Bar  by  Antenuptial  Agreement.  At 
common  law  an  antenuptial  agreement  was 
not  enough  to  bar  dower;  resort  being  had 
to  equity  for  enforcement.  Schnepfe  v. 
Schnepfe  (Md.)  1916D-988. 

(Annotated.) 
Note. 

Right  of  married  woman  to  release 
dower  by  express  contract  with  husband. 
1917A-48. 

b.    Estoppel. 

12.  That  the  husband's  property  was 
principally  choses  in  action,  capable  of 
manual  delivery,  and  that  in  case  the  wife 
had  not  accepted  his  proposal  he  would 
have  given  away  the  property  absolutely 
before  his  death,  which  was  imminent, 
does  not  estop  the  wife  from  attacking 
the  jointure  contract  for  want  of  consid- 
eration. Redwine's  Executor  v.  Redwine 
(Ky.)    1917A-58.  (Annotated.) 

c.     Divorce. 

13.  Divorce  aa  Bar.  A  divorce  granted 
the  wife  will  not  deprive  her  of  dower  or 
of  her  share  in  her  husband's  personalty. 
Schnepfe  v.  Schnepfe  (Md.)  1916D-988. 

3.     WIDOW'S  ELECTION. 

14.  Eight  to  Elect  Between  Will  and 
Dower.  Under  the  direct  provisions  of 
Ky.  St.  §  1404,  a  widow  may  renounce  the 
share,  if  any,  in  her  husband's  estate  given 
to  her  by  his  will,  and  may  claim  her 
dower  and  distributive  share.  Redwine's 
Executor  v.  Redwine   (Ky.)   1917A-58. 

DRAINS  AND  SEWERS. 

1.  Judicial  Supervision. 

2.  Costs  and  Local  Assessments^ 

3.  Extension. 

Special   assessment  for  sewer,   see  Taxa- 
tion, 117. 

1.     JUDICIAL  SUPERVISION. 

1.  Enlargement  of  Sewer.  In  a  suit  by 
a  city  against  an  adjoining  village,  in- 
volving mutual  duties  in  relation  to  a 
drainage  and  sewer  system,  a  decree  in 
favor  of  the  city,  declaring  the  conditions 
intolerable,  owing  to  inadequate  drainage 


DROIT  DE  DETRACTION— DWELLING. 


295 


for  which  both  were  responsible  and  which 
amounted  to  a  public  nuisance,  and  order- 
ing such  nuisance  abated  by  increased 
capacity  of  the  jointly  maintained  system, 
Is  affirmed  by  a  divided  court.  Detroit  v. 
Highland  Park  (Mich.)  1917^-297. 

(Annotated.) 
Note. 
Power  of  court  to  compel  municipality 
to    remove,    construct    or    enlarge    sewer. 
1917E-308. 

2.     COSTS  AND  LOCAL  ASSESSMENTS. 

2.  Local  Assessments.  "Where  officers 
without  authority  attempt  to  make  an 
assessment  for  benefits  for  the  construc- 
tion of  a  sewer,  a  subsequent  assessment 
made  by  officers  duly  authorized  is  not  a 
reassessment.  Auburn  v.  Paul  (Me.) 
1917E-136. 

3.  Notice  of  Assessment.  Abutting  prop- 
erty on  which  a  sewerage  assessment  was 
made  was  assessed  to  the  owner's  husband. 
It  had  been  carried  on  the  tax  records  in 
his  name  for  upwards  of  13  years,  and 
taxes  paid  him  on  bills  rendered  without 
objection  or  inquiry  by  her.  In  proceed- 
ings relating  to  the  sewer  he  was  notified 
with  others  and  took  part  in  conferences 
relating  thereto.  The  owner  and  her  hus- 
band resided  together  on  the  property  as- 
sessed, and  she  was  advised  of  such  pro- 
ceedings, and  knew  that  he  was  present, 
and  the  bill  for  the  amount  of  the  assess- 
ment sent  to  him  was  filed  with  her  com- 
plaint for  an  injunction.  It  is  held  that 
under  the  circumstances  disclosed  in  the 
case,  heard  on  bill  and  answer,  she  could 
not  be  granted  relief  on  the  ground  that 
the  assessment  was  not  made  in  her  name, 
or  notice  sent  to  her.  Lyon  v.  Hyatts- 
ville  (Md.)  1916E-765. 

4.  Time  for  Making  Assessment.  Me. 
Rev.  St.  c.  21,  providing  for  assessments 
for  benefits  for  the  construction  of  sewers, 
does  not  fix  the  time  within  which  the  as- 
sessing officers  must  act,  and  the  court 
cannot  limit  the  time,  and  the  officers  in 
office  when  the  sewer  was  completed  have 
not  the  exclusive  authority  to  make  the 
assessment.  Auburn  v.  Paul  (Me.)  1917E- 
136.  (Annotated.) 

5.  Special  Assessment — Sewer  Extension 
— Paralleling  Old  Sewer.  It  is  not  ground 
for  objection  to  an  assessment  for  a  sewer 
that  it  is  constructed  parallel  with  an  old 
sewer  for  a  certain  distance,  where  the 
duplicate  sewer  is  not  in  front  of  the 
property  assessed  and  does  not  affect  it, 
and  no  attempt  is  made  to  assess  prop- 
erty for  the  cost  of  duplication,  which  was 
necessary  to  get  a  proper  grade  and  avoid 
expense  of  deepening  the  old  sewer  in  ex- 
tending the  system.  Lyon  v.  Hyattsville 
(Md.)   1916E-765. 

6.  Necessity  of  Benefit  to  Property 
Owner.     It  is  not  ground  for  objection  to 


an  assessment  for  a  sewer  that  the  abut- 
ting property  owner  is  not  benefited  by  its 
construction,  Lyon  v.  Hyattsville  (Md.) 
1916E-765. 

7.  Front  Foot  Rule.  Assessment  of  the 
cost  of  a  sewer  on  abutting  property  ac- 
cording to  the  frontage  of  each  parcel  is 
not  a  taking  of  property  without  due 
process  of  law,  contrary  to  Const.  U.  S. 
Amend.  14.  Lyon  v.  Hyattsville  (Md.) 
1916E-765.  (Annotated.) 

3.     EXTENSION. 

8.  Power  to  Extend  System.  Hyatts- 
ville charter  (Laws  Md.  1904,  c.  125)  au- 
thorizes construction  and  maintenance  of 
a  sewerage  system  for  the  town,  and  the 
amendment  thereto  by  Laws  1908,  c.  79, 
§  15,  authorizes  extension  of  sewers  as  its 
interest  demands  from  time  to  time.  Held, 
that  the  power  to  extend  sewers  there- 
under applied  to  the  system,  and  was  not 
confined  to  extending  from  the  point  at 
which  they  ended  sewers  constructed  un- 
der the  charter  of  1904.  Lyon  v.  Hyatts- 
viUe  (Md.)  1916E-765. 

DBOIT  DE  DETBACTION. 

Meaning,  see  Taxation,  172. 

DRUGLESS  PRACTITIONERS. 
Regulation   of,   see   Physicians   and   Sur- 
geons, 6,  7. 

DRUGS  AND  DRUGGISTS. 

Use  of  drug  to  produce  miscarriage,  see 
Abortion,  1. 

Regulation  of  opium,  see  Food,  20. 

Distinction  between  medicine  and  intoxi- 
cating liquor,  see  Intoxicating  Iilquors, 
9. 

Addiction  to  use  of  drugs  to  impeach  wit- 
ness, see  Witnesses,  111. 

DRUI^EENNESS. 
See  Intoxicating  Liquors. 

DUAIi  AU.EGIANCE. 

See  Aliens,  2. 

DUE  PROCESS. 

Constitutional  guarantee  of,  see  Constitu- 
tional Law,  37,  45-61,  111. 

DURESS. 

See  Chattel  Mortgages,  4;  Contracts,  S-5. 

Definition,  see  Contracts,  3. 

Sufficiency  for  cancellation  of  deed,  see 
Rescission,  Cancellation  and  Reforma- 
tion, 17. 

DWELLING. 

Defined,  see  Accident  Insurance,  3. 
JustifiaM?   killing  in   defense,  see  Homi- 
cide,  2. 


296 

DWELLING  HOUSE. 
Ifeaning,  see  Electdons,  3. 


DIGEST. 
19160— 1918B. 


DYING  DECLARATIONS. 
See  Admissions  and  Declarations,  21-24. 

EAENING  CAPACITT. 

Injury  not  impairing,  compensation  under 
Workmen's  Compensation  Act,  ••• 
Master  and  Servant,  283. 

EARTH  CLOSETS. 
City    regulation,    see    Municipal    Coxpora- 
tions,  74-78. 

EASEMENTS. 

1.  Nature  and  Acquisition. 

2.  Extinguishment. 

3.  Bights  and  Liabilities  of  Parties. 

See  Adverse  Possession,  13,  28. 

Party  wall,  see  Adjoining  Landowners,  2. 

Condemnation  of,  gee  Eminent  Domain,  17, 

24-26. 
Right  of  way  over  homestead,  conveyance, 

see  Homestead. 
Prevention    of    interference,    see    Injanc- 

tions,  7. 
Creation  by  prescription,  see  Prescription, 

1-4. 
Of   public    in    highway,   see   Streets   and 

Highway!,  26-36. 
Valuation  for  taxation,  see  Taxation,  63. 
As  subject  to  tax  lien  on  servient  estate, 

see  Taxation,  87. 
For  wires  and  poles,  see  Telegraphs  and 

Telephones,  6-10. 

1.    NATITBE  AND  ACQUISmON. 

1.  Easement  to  Take  Water  from  Well. 
An  easement  to  take  water  from  another's 
w*sll  is  an  incorporeal  hereditament  which 
may  be  created  by  grant  or  prescription. 
Rollins  V.  Blackden   (Me.)    1917A-875. 

(Annotated.) 

2.  Interruirtion  of  User.  Where  defend- 
ant's predecessor  in  title,  who  first  asserted 
an  easement  on  plaintiflTs  property,  de- 
sisted in  his  exercise  of  the  privilege  upon 
demand  of  plaintiflf  and  notice  by  her  at- 
torney, there  was  an  interruption  of  the 
use  which  prevented  acquisition  of  an  ease- 
ment by  prescription.  Rollins  v.  Black- 
den (Me.)   1917A-870. 

3.  Extent  of  Easement.  The  right  of 
a  person  to  use  a  way  established  over  the 
land  of  another  by  their  common  devisor 
extends  only  to  the  land  to  which  the 
dominant  estate  is  appurtenant.  Ball  v. 
Allen  (Mass.)   1917A-1248. 

(Annotated.) 

2.     EXTINGUISHMENT. 

4.  Nonuser.  Mere  nonuser  and  lapse  of 
time  do  not  constitute  abandonment  of  an 


easement,  bnt  abandonment  may  be  in- 
ferred from  circumstances  or  presumed 
from  long-continued  neglect,  and  lapse  of 
time  and  nonuser  are  competent  evidence 
of  an  intent  to  abandon,  and  entitled  to 
great  weight  when  considered  with  other 
circumstances.  New  York,  etc.  E.  Co.  v. 
Cella  (Conn.)  1917D-591.         (Annotated.) 

5.  In  an  action  by  a  railroad  company 
to  recover  possession  of  land  condemned 
in  1833,  the  evidence  is  held  to  be  suffi- 
cient, in  connection  with  the  company's 
long-continued  neglect,  to  assert  any  claim 
to  the  party  to  support  a  finding  "that  it 
had  abandoned  its  rights.  New  York,  etc. 
B.  Co.  V.  Cella  (Conn.)  1917D-591. 

(Annotated.) 

6.  Tax  Sale.  The  foreclosure  af  a  tax 
lien  and  a  sale  of  the  premises  pursuant 
to  Greater  New  York  Charter  (Laws  1901. 
e,  466,  §§  1035-1039,  as  amended  bv  Laws 
1908,  c.  490,  and  Laws  1911,  c.  65)' do  not 
extinguish  private  easements  of  light,  air, 
and  access  of  adjoining  owners  over  the 
land  sold,  which  were  excluded  from  an 
assessment  on  the  land,  since  that  would 
be  a  taking  of  property  without  due  pro- 
cess of  law.  Tax  Lien  Co.  v.  Schultze 
(N.  Y.)  1916C-636.  (Annotated.) 

7.  Forfeiture  for  Misuser.  A  right  of 
way  is  not  forfeited  by  a  use  not  contem- 
plated by  the  grant,  unless  such  use  can- 
not be  separated  from  that  allowed  by  the 
grant;  so  that  an  obstruction  thereof  by 
owner  of  the  easement,  which  could  be 
easily  separated  from  its  lawful  use  while 
it  will  be  enjoined,  does  not  work  a  for- 
feiture. O'Banion  v.  Cnnningham  (Ky.) 
1917A-1017.  (Annotated.) 

8.  Party  Walls.  Where  one  has  ac- 
quired an  easement  of  support  in  a  party 
wall,  its  accidental  destruction  determines 
the  easement,  and  extinguishes  all  rights 
arising  thereunder.  Commercial  National 
Bank  v.  Eccles  (Utah)   1916C-368. 

(Annotated.) 

Notes. 

Termination  of  right  to  maintenance  of 
party  wall.     1916C-374. 

Forfeiture  of  easement  for  misuse. 
1917A-1018. 

Sale  of  land  for  taxes  as  extinguishing 
private  easement.     1916C-638. 

Forfeiture  of  easement  of  right  of  way 
by  nonuse.     1917D-595. 

3,     BIGHTS  AND  LIABILITIES  OF  PAR- 
TIES. 

9.  Burden  of  Proof.  The  party  assert- 
ing an  easement  by  prescription  has  the 
burden  of  proof,  and  he  fails  if  the  proof 
be  left  doubtful.  Rollins  v.  Blackden 
(Me.)   1917-875. 

10.  Taking  Water  from  Well.  Where 
plaintiff's    grantor    conveyed    to    another 


EDUCATION— EJECTION. 


297 


the  right  to  draw  water  from  a  well  lo- 
cated on  his  land,  with  the  reservation  that 
should  the  land  become  the  property  of  an- 
other all  rights  of  taking  water  should  be 
subject  to  the  rights  of  the  owner  of  the 
land  to  take  water  for  any  purpose  neces- 
sary for  the  land  or  buildings  thereon,  and 
the  property  was  thereafter  conveyed  to 
plaintiff,  who  took  with  notice  of  the  grant 
of  the  easement,  plaintiff  cannot  complain 
that  the  grantee  of  the  easement  took 
water  from  the  well,  where  such  taking  did 
not  deprive  her  of  any  water  necessary  for 
her  land  or  buildings  thereon.  Rollins  v. 
Blackden  (Me.)  1917A-875. 

(Annotated.) 

11.  Evidence — Hostility  of  User.  Where 
defendant's  predecessor  in  title  who  first 
asserted  the  easement  on  plaintiff's  land 
claimed  his  right  through  the  permission 
of  the  selectmen  of  the  town,  such  evi- 
dence is  admissible  to  show  that  the  use 
of  the  easement  was  adverse.  Rollins  ▼. 
Blackden  (Me.)  1917A-875. 

12.  While  a  conveyance  of  property  occu- 
pied by  an  adverse  holder  will  not  stop  the 
running  of  limitations,  a  conveyance  of 
land  in  which  another  asserted  an  ease- 
ment, where  the  rights  were  not  excepted, 
showed  that  the  owner  did  not  acquiesce 
in  the  assertion  of  the  easement.  Rollins 
T.   Blackden    (Me.)    1917A-875. 

13.  Persons  Entitled  to  Enjoyment. 
That  a  person  is  the  record  owner  in  fee 
of  only  six  undivided  sevenths  of  the 
dominant  estate  does  not  impair  her  right 
to  the  use  of  a  way  established  by  the 
will  of  a  common  devisor  across  the 
servient  estate;  the  way  being  appur- 
tenant to  the  whole  tract  comprising  the 
dominant  estate  and  to  every  part  into 
which  it  may  be  divided.  Ball  t.  Allen 
(Mass.)   1917A-1248. 

14.  Obstruction  of  Eaaement.  Where 
an  owner  of  a  servient  estate  forbade 
plaintiff,  the  owner  of  the  dominant  es- 
tate, to  pass  over  a  right  of  way  shown 
to  have  been  established  by  their  com- 
mon devisor,  plaintiff  is  entitled  to 
equitable  relief.  Ball  t.  Allen  (Mass.) 
1917A-1248. 

15.  Eights  of  Servient  Owner.  Where 
a  right  of  way  is  established  by  a  com- 
mon devisor  as  an  outlet,  the  owner  of 
the  servient  estate  may  fence  the  sides 
of  the  way,  and,  when  necessary  for  his 
own  protection  in  the  pasturage  of  cattle 
and  the  use  and  enjoyment  of  his  prop- 
erty, may  erect  at  his  own  expense  gates 
or  bars  across  the  way  at  the  two  en- 
trances thereof,  provided  they  are  not 
such  as  to  interfere  unreasonably  with 
the  privilege  of  passage.  Ball  v.  Allen 
(Mass.)   1917A-1248. 

16.  Where  an  owner  of  a  servient  es- 
tate within  twenty  years  had  replaced 
with    bars    a    gate    maintained    for    more 


than  th«  prescriptive  period,  thus  making 
the  use  of  the  way  more  onerous  than 
did  the  ufie  of  the  gate,  he  can  be  com- 
pelled by  the  dominant  owner  to  remove 
the  bars  and  restore  the  gate.  Ball  v. 
Allen    (Mass.)    1917A-1248. 

17.  Where  an  owner  of  a  servient  estate 
placed  bars  across  a  way  established  over 
his  land  and  maintained  the  same  for 
more  than  twenty  consecutive  years,  he 
cannot  be  compelled  to  remove  same  at 
the  suit  of  the  owner  of  the  dominant 
estate.  Ball  v.  Allen  (Mass.)  1917A- 
1248. 

18.  Extent  of  Bight.  Defendant,  own- 
ing lands  to  which  a  passway  over 
land  to  which  plaintiff  had  legal  title  was 
appurtenant,  and  who  had  also  acquired 
by  quitclaim  deed  the  right  to  use  the 
passway,  acquired  a  mere  easement  over 
plaintiff's  land.  O'Banion  v.  Cunning- 
ham (Ky.)  1917A-1017. 

19.  Plaintiff,  by  purchase,  acquired  an 
easement  for  the  support  of  its  building 
to  the  height  of  three  stories  in  a  wall 
five  stories  high,  standing  wholly  on  de- 
fendant's land.  Defendant's  building 
was  thereafter  entirely  destroyed  by  fire, 
leaving  the  wall  standing  and  furnishing 
the  same  support  to  plaintiff's  building  as 
it  did  before,  but  not  sufficiently  strong 
to  support  the  kind  of  building  which 
defendant  intended  to  erect  on  the  sam* 
site.  Commercial  National  Bank  v.  Ec- 
cles    (Utal^)    1916C-368. 

20.  "Where  defendant  had  the  right  to 
take  from  a  well  on  plaintiff's  land  any 
surplus  water  not  needed  by  plaintiff, 
proof  that  plaintiff  notified  defendant  not 
to  take  any  water  and  that  she  needed  it 
all  will  not  establish  that  all  of  the  water 
from  the  well  was  needed  for  plaintiff's 
land.  Rollins  v.  Blackden  (Me.)  1917A- 
875.  (Annotated.) 

Notes. 

Restriction  of  easement  to  use  con- 
nected with  dominant  estate.  1917A- 
1250. 

Prescriptive  right  of  individual  to  take 
water  from  another's  well  or  ipring. 
1917A-881. 

EDUCATION. 
See   Schools. 

EGGS. 

Regulating    sale    of    imported    eggs,    lee 
Food,  18. 

EIGHT-HOUB   DAT. 
See  Labor  I^avrs,  10,  14-16. 

EJECTION. 
From   train,   see   Carriers   of  Paasengers, 

50. 
Eight  to  expel  trespasser  from  property, 

see   Trespass,  2,  3. 


298 


DIGEST. 

19160— 1918B. 


EJECTMENT. 


1.  Who  may  Maintain. 

2.  Against  Whom  Action  Lies. 

3.  Damages. 

4.  Judgment. 

5.  New  Trial  as  Matter  of  Right. 
Bemedy  for  peaceable  detention,  see  For- 
cible Entry  and  Detainer,  1. 

1.     WHO    MAY    MAINTAIN. 

1.  Land  Claimed  Under  Adoption  Con- 
tract.  Where  a  party  relying  on  a  con- 
tract of  adoption  claims  the  real  estate 
of  a  decedent,  her  remedy  is  by  eject- 
ment and  not  by  an  ejectment  bill,  which 
cannot  be  entertained  in  a  court  of 
equity.  Benson  v.  Nicholas  (Pa.)  1916I>- 
1109. 

2.  Estoppel  to  Sue.  A  landowner  who 
sees  a  railroad  company  constructing  its 
railroad  through  his  land,  and  makes  no 
objection  until  it  is  completed,  is  es- 
topped to  sue  in  ejectment,  or  enjoin  the 
operation  of  the  road.  Dulin  v.  Ohio 
River  B.  Co.   (W.  Va.)    1916D-1183. 

3.  Seizure    of    Property    by    Railroad. 

Ejectment  lies  to  recover  land  taken  by 
a  railroad  company  for  its  railroad  tracks, 
without  the  knowledge,  or  against  the 
protest,  of  the  owner.  Dulin  v.  Ohio 
River  B.  Co.    (W.  Va.)    1916D-1183. 

3.     DAMAGES. 

4.  Damages  for  Detention.  A  landlord 
can  recover  in  ejectment  against  the  as- 
signee of  his  tenant  damages  for  the  de- 
tention of  the  premises  pending  the  ac- 
tion, if  it  is  delayed  by  the  defense;  and, 
though  the  rent  cannot  be  recovered  as 
rent,  it  may,  in  a  proper  case,  be  consid- 
ered as  fixing  the  amount  of  such  dam- 
ages.    Gibbs  V.   Didier    (Md.)    1916E-833. 

4.     JUDGMENT. 

5.  Judgment  as  Res  Judicata.  A  judg- 
ment in  ejectment,  in  which  damages  for 
the  detention  were  claimed,  is  conclusive 
against  the  landlord's  right  to  recover 
such  damages,  though  the  court  errone- 
ously refused  to  allow  the  claim,  the 
landlord's  remedy  being  by  appeal  to  re- 
verse the  erroneous  judgment.  Gibbs  v. 
Didier   (Md.)   1916E-833. 

6.  Res  Judicata  as  to  Rent.  Md.  Code 
Pub.  Civ.  Laws,  art.  75,  §  73,  provides  that, 
when  there  is  one-half  year's  rent  in  ar- 
rears and  the  landlord  has  the  right  to 
re-enter  for  the  nonpayment,  he  may, 
without  formal  notice  of  re-entry,  serve  a 
copy  of  a  declaration  in  ejectment 
for  the  recovery  of  the  premises.  Section 
71  of  the  same  article  provides  what  a 
declaration  in  ejectment  shall  contain, 
the  effect  of  the  plea  of  not  guilty,  and 
that  the  plaintiff  shall  also  recover  as 
damages  in  that  action  the  mesne  profits 
and  damages  sustained  by  him  and  caused 


by  the  ejectment  and  detention  of  the 
premises  up  to  the  time  of  the  determina- 
tion of  the  case.  The  provision  allowing 
recovery  of  mesne  profits  was  added  in 
1872  after  the  enactnipnt  of  what  is  now 
section  73.  Held,  that  the  action  in 
ejectment  referred  to  in  section  73  was 
the  one  provided  for  by  section  71,  includ- 
ing the  right  to  mesne  profits  and  damages, 
and  a  judgment  in  such  action,  awarding 
only  nominal  damages  to  a  landlord  who 
recovered  possession  of  the  premises  from 
the  assignee  of  the  tenant,  is  res  judicata 
as  to  the  landlord's  right  to  recover  rent 
and  taxes  from  the  assignee,  the  nonpay- 
ment of  which  was  alleged  as  damages  in 
his  declaration  in  ejectment.  Gibbs  T. 
Didier  (Md.)  1916E-833. 

5.     NEW      TRIAL      AS     MATTEB     OP 
RIGHT. 

7.  Default  of  defendants  in  ejectment, 
in  not  filing  an  undertaking  and  paying 
costs  within  the  year  provided  by  statute 
as  to  new  trial,  having  occurred  through 
the  mistake  of  counsel  in  taking  an  order 
for  new  trial  providing  for  such  filing  and 
payment  within  a  time  extending  beyond 
the  year,  may  be  relieved  against  in  the 
discretion  of  the  couH.  Guaranteed  In- 
vestment Co.  y.  Van  Metre  (Wis.)  1916E- 
554.  (Annotated.) 

8.  The  court  can,  even  after  expiration 
of  the  year  given  by  statute  for  filing 
undertaking  and  paying  costs  for  a  sec- 
ond trial  in  ejectment,  extend  the  time 
therefor.  Guaranteed  Investment  Co.  v. 
Van  Metre    (Wis.)    1916E-554. 

(Annotated.) 

9.  Defendant  in  ejectment  does  not 
waive  his  right  to  a  second  trial  by  ac- 
cepting a  quitclaim  to  the  tracts  ad- 
judged to  him;  there  having  been,  in  the 
negotiations  leading  up  to  it,  no  refer- 
ence to  those  adjudged  to  plaintiff. 
Guaranteed  Investment  Co.  ▼.  Van  Metre 
(Wis.)     1916E-554.  (Annotated.) 

10.  Statutory  Bight  In  Ejectment. 
Statutory  right  to  a  second  trial  in  eject- 
ment is  not  waived  by  a  stipulation  at  the 
trial,  on  which  judgment  was  entered, 
that  plaintiff's  tax  titles  were  good  as  to 
certain  of  the  tracts  and  invalid  as  to 
the  remainder;  it  being  oral,  and  there- 
fore, under  Wis.  circuit  court  rule  5,  §  3 
(108  N.  W.  x),  not  obligatory  on  another 
trial.  Guaranteed  Investment  Co.  v. 
Van  Metre    (Wis.)   1916E-554. 

(Annotated.) 
Note. 
Statutory  right   to   new   trial  in    eject- 
ment.    1916E-556. 

EJUSDEM  GEjraRIS. 
See  Monopolies,  11;  Mortgages  and  Deeds 

of  Trust,   17;   Statutes,  79. 
Application  in  construing  wills,  see  Wills, 

171-174. 


ELECTION— ELECTIONS. 


299 


ELECTION. 

■^"idows,  election  of  dower,  see  Dower,  14. 
To  take  under  will,  see  Wills,  251. 

ELECTION    OF    REMEDIES. 

See  Mandamus,  1,  2;  Keleaae  and  Dis- 
charge,   6;    Sales,    64. 

Waiver  of  tort,  action  on  contract,  see 
Conversion,   16. 

Election  between  state  and  Federal  Em- 
ployers' Liability  Act,  see  Master 
and  Servant,   76-80. 

Under  Workmen's  Compensation  Act,  see 
Master  and  Servaot,  184-188. 

Election  between  Workmen's  Compensa- 
tion Act  and  action  against  third 
party,  see  Master  and  ^rvant,  208, 
210. 

ELECTIONS. 

1.  Constitutionality    of    Preferential    Sys- 

tem, 299. 

2.  Qualification  of  Voter,  299. 

a.  In  General,  299. 

b.  Residence,   299. 

c.  Registration,  300. 

d.  Payment   of  Poll  Tax,  300. 

3.  Conduct  of  Elections,  300. 

a.  Secrecy  of  Ballot  and  Freedom  in 

Voting,  300. 

b.  Officers  Conducting  Election,  301. 

c.  Time  for  Holding,  301. 

d.  Place  of  Holding,  301. 

e.  Ballots,  302. 

f.  Counting  and  Canvassing  Vote,  302. 

(1)  Officers  and  Duties,  302. 

(2)  What      Ballots      Should      be 

Counted,   303. 

(3)  Conclusiveness     of     Returns, 

306. 

(4)  Tie  Vote,  306. 

(5)  Effect     of     Irregularities     in 

Election  or  Ballots,  306. 

4.  Election  Contests,  307. 

a.  .Jurisdiction,    307. 

b.  Pleading,  307.  , 

c.  Evidence,   307. 

d.  Findings,  307. 

5.  Corrupt  Practices  Acts,  308. 

See  Counties,  1-6;  Initiative  and  Refer- 
endum; Judges,  1;  Local  Option. 

Constitutional  amendment,  see  Constitu- 
tional Law,   183,  186. 

Contest,  see  Costs,  4. 

Illegality  of  contracts  relating  to,  see 
Contracts,  41. 

Of  cornorate  officers,  see  Corporations,  94- 
100. 

Judicial  notice  of  number  of  voters,  see 
Evidence,  7. 

Judgment  on  conviction  of  voting  twice, 
see  Judarments,  17. 

City  bond  issue  election,  see  Municipal 
Corporations,  110. 

Rights  of  minority  candidate  on  failure 
of  successful  candidate  to  qualify,  see 
Public  Officers,  «4. 

For  bond  issue  under  Forest  Preserve  Act, 
see  Trees  and  Timber,  2-12. 


1.     CONSTITUTIONALITY      OF      PRE- 
FERENTIAL  SYSTEM. 

1.  Preferential  Voting.  The  preferen- 
tial system  of  voting  provided  by  the  Du- 
luth  charter,  whereby  first  choice,  second 
choice  and  additional  choice  votes  are  per- 
mitted, and  are  counted  in  a  manner 
therein  provided,  is  unconstitutional  as  in 
contravention  of  article  7,  section  1  and 
section  6  of  the  Minn,  constitution. 
Brown  v.  Smallwood    (Minn.)    1917C-474. 

(Annotated.) 
Note. 
Validity    and    construction    of    statute 
providing  for  preferential  system  of  vot- 
ing.    1917C-482. 

2.  QUALIFICATION  OF  VOTERS. 

a.     In    General. 

2.  Right  to  Vote — Nature  of  Right. 
Under  N.  C.  Const,  art.  6,  §  1,  providing 
that  every  male  person  possessing  speci- 
fied qualifications  shall  be  entitled  to  vote 
at  any  election,  a  woman  is  not  a  voter,  as 
the  right  to  vote  is  not  a  natural  right, 
but  one  conferred  by  law,  which  can  be 
exercised  only  by  those  upon  whom  it  is 
conferred.  State  v.  Knight  (N.  Car.) 
1917D-517. 

3.  Army  Officer.  An  army  officer  living 
with  his  wife  in  quarters  assigned  to  them 
in  military  barracks  is  an  occupant  of  a 
"dwelling  house"  and  as  such  entitled 
to  vote,  though  his  use  of  the  premises  is 
subject  to  regulation  by  his  military  supe- 
riors and  his  quarters  are  subject  to 
change  by  them.  Steele  v.  Dowling  (Ore.) 
1917B-480.  (Annotated.) 

Note. 

Right  to  vote  of  soldier  or  sailor  in. 
actual  service.     1917B-485. 

b.     Residence. 

4.  Student  at  College.  Attendance  at 
an  institution  of  learning  for  the  sole  pur- 
pose of  acquiring  an  education  is  not,  of 
itself,  sufficient  to  establish  the  student 
as  an  elector;  but  in  such  case  much 
weight  is  to  be  laid  upon  the  fact  as  to 
whether  or  not  he  is  emancipated  from 
his  family,  so  far  as  looking  to  them  for 
a  home,  or  at  least  to  which  to  return,  or 
for  means  of  support  Siebold  v.  Wahl 
(Wis.)    1917C-400.  (Annotated.) 

5.  Student  at  College.  Under  "Wis.  St. 
1915,  §  6.51,  prescribing  the  rules  for  de- 
termining the  qualification  of  electors,  and 
providing  by  subsection  2  that  that  place 
shall  be  held  to  be  the  residence  in  which 
one's  habitation  is  fixed  without  any 
present  intention  of  removing  therefrom 
and  to  which  whenever  he  is  absent  he  in- 
tends to  return,  by  subsection  3  that  one 
shall  not  lose  his  residence  by  leaving 
homo  and  going  into  another  country,  etc., 
of  the  state  for  temporary  purposes,  with 


300 


DIGEST. 

1916C— 1918B. 


an  intention  of  returning,  by  Bobsection  4 
that  one  shall  not  gain  a  residence  in  any 
town,  etc.,  to  which  be  comes  for  tem- 
porary purposes  only,  and  by  subsection  9 
that  the  mere  intention  to  acquire  a  new 
residence  without  removal,  or  removal 
without  intention,  shall  avail  nothing,  a 
student  of  the  University  of  Wisconsin, 
registered  from  a  place  in  a  state  where 
his  parents  resided  and  to  which  he  re- 
turns as  opportunity,  vacations,  etc.,  per- 
mit, who  is  partly  dependent  upon  hi« 
home  for  a  support,  and  who  after 
graduation  does  not  know  where  ~he  will 
go,  that  depending  upon  opportunities, 
and  who  does  not  have  in  mind  any  busi- 
ness opening  in  Madison  which  he  intends 
to  accept  after  graduation,  is  in  Madison 
for  a  "temporary  purpose"  only,  and  has 
no  home  there,  and  hence  no  right  to  vote 
at  a  primary  election  therein.  Siebold 
V.  Wahl  <Wis.)   1917C-400. 

(Annotated.) 

6.  Eesldence  in  Ward.  Where  a  voter 
i^i  an  aldermanic  election  has  never  re- 
sided in  the  ward,  but  his  name  had  been 
a,dded  to  the  voting  list  upon  a  certificate 
of  the  board  of  registration,  his  vote  is 
properly  rejected  under  Me.  Rev.  9t.  c.  5, 
§  4,  providing  that  a  person  shall  vote 
only  in  the  ward  of  the  city  in  which  he 
had  his  residence  on  the  first  day  of  April 
preceding.  Murray  t.  Waite  (Me.) 
1918A-1128. 

Note. 

Residence  at  school  or  public  institu- 
tion as  aifecting  right  to  vote,  1917C- 
403. 

C.     REGISTRATION. 

T.  As  need  in  the  Nev.  election  laws  of 
1918  (St.  1913,  c.  284,  subc.  3,  §  18),  pro- 
viding that  an  elector  shall  not  be  entitled 
to  vote  at  a  primary  election  "unless  he 
has  heretofore  designated  to  the  registry 
agent  his  politics,"  the  word  "heretofore" 
relates  to  the  time  in  which  an  elector 
may  lawfully  be  registered  for  the  pri- 
mary election.  State  v.  Keith  (Nev.) 
1917A-1276. 

8.  Party  Affiliation,  Under  the  Nev. 
election  laws  of  1913  (St.  1913,  c.  284, 
subc.  3^  §  18),  relating  to  primary  elec- 
tions, and  subc.  2,  §§  4,  5,  relating  to 
registration,  where  an  elector  has  regis- 
tered, but  has  failed  to  indicate  his  poli- 
tics or  party  designation,  he  may  prior  to 
the  time  fixed  for  closing  registration  ap- 
ply to  the  registry  agent  and  have  an 
entry  made  on  the  registry  of  his  politics 
or  party  designation  so  as  to  entitle  him 
to  vote  at  a  primary  election.  State  v. 
Keith    (Nev.)    1917A-1276. 

9.  Change  of  Registration  by  Voter. 
Under  the  Nev.  election  laws  of  1913  (St. 
1913,  c.  284,  subc.  3,  §  18),  relating  to 
primary  elections,  and  subc.  2,  §§4,  5, 
relating    to    registration,    an    elector    who 


has  registered,  so  as  to  be  entitled  to  vote 
at  a  primary  election,  by  designating  his 
political  party  and  having  same  entered 
on  the  registry,  cannot  subsequently  re- 
quire the  registry  agent  to  change  such 
designation.  State  v.  Keith  (Nev.) 
1917A-1276.  (Annotated.) 

10.  Vote  by  Person  not  Registered. 
The  provisions  of  section  38  of  the  Du- 
luth  city  charter  requiring  an  unregis- 
tered voter  desiring  to  vote  at  a  municipal 
election  to  deliver  an  aflSdavit  of  his  qual- 
ifications to  the  judges  of  election  is 
directory;  and  a  failure  to  observe  such 
requirement  does  not  avoid  the  election. 
Clayton  t.  Prince   (Minn.)    1916E-407. 

(Annotated.) 
Notes. 
Change  by  voter  of  enrollment  or  reg- 
istration.    1917A-1278. 

Effect  of  failure  to  comply  with  reg- 
istration laws  on  validity  of  votes  cast  at 
election.     1916E-408. 

d.     Payment   of   Poll    Tax. 

11.  Right  to  Vote.  Under  N.  C.  Const, 
art.  6,  §  4,  declaring  that  before  any  per- 
son shall  be  entitled  to  vote  he  shall  have 
paid  his  poll  tax  as  prescribed  by  article 
5,  §  1,  the  payment  of  the  poll  tax  not  ex- 
ceeding $2  prescribed  by  that  article,  en- 
titles an  elector  to  vote,  though  he  may 
iiot  have  paid  a  poll  tax  levied  by  a 
county  for  a  special  purpose.  Morse  v. 
Board  of  Commissioners  (N.  Car.)  1917E- 
1183. 

8.     CONDUCT   OF   ELECTIONS. 

a.     Secrecy    of    Ballot    and    Freedom    in 
Voting. 

12.  Where  there  was  no  disturbance  or 
any  reason  to  anticipate  a  disturbance  in 
so-called  "closed  camps"  upon  the  prop- 
erty of  coaK  companies,  the  denial  of  the 
right  of  peaceable  assemblage  for  the  pur- 
pose of  influencing  the  election  in  pre- 
cincts coincident  with  such  camps  is  an 
inexcusable  and  corrupt  violation  of  the 
natural  and  inalienable  rights  of  citizens; 
the  right  of  peaceable  assemblage  for 
lawful  purposes  being  one  of  the  attri- 
butes of  citizenship  under  a  free  govern- 
ment. Neelley  v.  Farr  (Colo.)  1918A- 
23.  (Annotated.) 

13.  It  is  the  essence  of  free  elections 
that  the  right  of  suffrage  be  untrammeled 
and  unfettered,  and  that  the  ballot  repre- 
sent and  express  the  elector's  own  intelli- 
gent judgment  and  conscience,  and  there 
can  be  no  "free  election"  unless  there  is 
freedom  of  opinion.  An  election  to  be 
free  must  be  without  coercion  of  any  de- 
scription or  any  deterrent  from  the  elec- 
tor's exercise  of  his  free  will  by  means  of 
any  intimidation  or  influence  whatever, 
although  there  is  no  violence  or  physical 


ELECTIONS. 


301 


coercion.    Neelley  v.  Farr  (Colo.)  1918A- 
23.  (Annotated.) 

14.  Bejection  of  Entire  Vote.  Though 
Ky.  St.  §  1596a,  subsec.  12,  provides  that 
if  it  shall  appear  from  an  inspection  of 
the  whole  record  that  there  has  been  such 
fraud,  intimidation,  bribery,  or  violence 
in  the  conduct  of  an  election  that  neither 
contestant  nor  contestee  can  be  adjudged 
to  have  been  fairly  elected,  the  circuit 
court  may  adjudge  that  there  has  been 
no  election,  and  though  it  is  the  disposi- 
tion of  courts  to  uphold  the  validity  of 
elections  where  they  can  reasonably  do  so, 
if  the  record  presents  a  state  of  case  pre- 
venting the  court  from  arriving  at  a  rea- 
sonably accurate  conclusion,  it  will  de- 
clare that  no  election  was  held,  even  in 
the  absence  of  evidence  that  fraud,  in- 
timidation, bribery,  or  violence  was  prac- 
ticed.    Johnson  v.  Little  (Ky.)  1918A-70. 

(Annotated.) 

b.     Officers  Conducting  Election. 

15.  Acts  of  De  Facto  Judges.  "Where 
election  judges  were  good  de  facto  officers, 
the  result  is  not  invalidated  because  they 
were  not  all  residents  of  the  precincts 
where  the  ballots  were  cast.  People  t. 
Graham    (111.)    1916C-391. 

16;  Appointment  of  IJnflt  Judges. 
Where,  prior  to  an  election  relative  to  a 
change  in  location  of  a  county  seat,  the 
election  commissioners  appointed  election 
judges  who  did  not  possess  the  requisite 
qualifications  and  who  were  all  strong 
partisans  of  a  particular  location,  such 
conduct  of  the  election  commissioners, 
though  a  manifest  impropriety  tending  to 
show  a  spirit  of  unfairness,  will  not  in- 
validate the  election.  Webb  t.  BowdeB 
(Ark.)   1918A-60. 

17.  Appointment  and  Eemoval.  Under 
Kirby's  Ark.  Dig.  §§  2764,  2765,  2799,  2800, 
relative  to  the  appointment  of  judges  of 
election  by  the  election  commissioners  of 
a  county,  and  prescribing  their  qualifica- 
tions, the  removal  of  old  election  judges 
by  the  commissioners  prior  to  an  election 
relative  to  a  change  in  the  location  of  a 
county  seat  and  the  appointment  of  new 
judges  favorable  to  the  change  is  within 
the  authority  of  the  commissioners.  Webb 
V.  Bowden  (Ark.)   1918A-60. 

18.  Election   OfBcers  Illegally  Selected. 

If  the  officers  of  an  election  to  elect  a 
school  district  trustee  who  conducted  the 
election  in  the  schoolhouse  are  not  legally 
selected,  the  election  is  void.  Johnson  v. 
Little  (Ky.)  1918A-70. 

c.     Time  for  Holding. 

19.  Time  of  Closing  Polls.  The  provi- 
sion of  the  statute  fixing  the  time  for 
opening  and  closing  the  polls  at  an  elec- 
tion is  directory  and  not  mandatory.  In 
re  Chagrin  Falls  (Ohio)  1916E-1004. 


20.  Validity  of  Votes  Received  After 
Closing  Time.  An  election  will  not  be  in- 
validated by  reason  of  the  fact  that  the 
election  officers,  instead  of  closing  the 
polls  at  5:30  P.  M.  as  directed  by  statute, 
kept  the  same  open  until  6  o'clock  P.  M., 
where  there  was  no  fraud  or  collusion  and 
where  there  were  no  illegal  votes  cast 
after  the  time  fixed  by  statute  for  closing 
sufficient  to  change  the  result  of  the  elec- 
tion. In  re  Chagrin  Falls  (Ohio)  1916B- 
1004.  (Annotated.) 

d.    Place  of  Holding. 

21.  Election  Districts  In  Municipality, 
ni.  Cities  and  Villages  Act,  art.  4,  §  3 
(Hurd's  Rev.  St.  1913,  c.  24,  §  50),  declares 
that  all  persons  entitled  to  vote  at  any 
general  election  for  state  officers  within 
any  city  or  village,  having  resided  therein 
30  days,  may  vote  at  any  election  for  city 
or  village  officers.  Section  4  (section  51) 
authorizes  the  council  to  divide  the  city 
into  wards  and  provides  for  the  election 
of  one  alderman  from  each  ward.  Sec- 
tion 9  (section  56)  requires  the  council  to 
designate  the  place  in  which  elections 
shall  be  held,  while  section  10  (section  57) 
provides  that  the  manner  of  conducting 
elections  and  voting  thereat  shall  be  the 
same  as  in  case  of  the  election  of  county 
officers.  HI.  Const,  art.  7,  §  1,  declares 
that  every  person  having  resided  within 
the  state  one  year,  in  the  county  90  days, 
and  in  the  election  district  30  days  shall 
be  entitled  to  vote,  while  General  Election 
Law,  §  65  (Hurd's  Rev.  St.  1913,  c.  4fi), 
follows  the  wording  of  the  constitution. 
It  is  held  that,  as  the  words  "precinct" 
and  "district"  are  frequently  used  inter- 
changeably, ward  lines  must  be  considered 
in  forming  election  districts  within  a  city, 
for  otherwise  it  would  be  impossible  to 
elect  aldermen.  People  ▼.  Graham  (IlL) 
1916E-391. 

22.  Election  at  Single  Polling  Place. 
By  ordinance  it  was  provided  that  the  bal- 
lot box  for  elections  in  a  city  divided  into 
three  wards  should  contain  three  compart- 
ments, one  for  each  ward,  and  that  the 
ballots  of  the  voters  of  the  several  wards 
should  be  deposited  in  the  proper  com- 
partment. The  whole  city  was  treated  as 
one  precinct,  the  only  voting  place  being 
within  the  Third  ward,  but  only  across 
the  street  from  the  other  two  wards.  It 
is  held,  that  as  the  statutes  and  constitu- 
tion, while  contemplating  the  ward  lines 
should  be  taken  into  consideration  in  fijs- 
ing  the  boundaries  of  the  election  pre- 
cincts, did  not  expressly  provide  that 
voters  must  cast  their  ballot  in  the  ward 
or  precinct  in  which  they  resided,  they 
will  be  construed  as  directory  instead  of 
mandatory  or  essential,  and  hence  the 
election  is  not  void  where  it  did  not  ap- 
pear that  any  voters  were  prevented  from 
exercising  their  rights.  People  v.  Graham 
(111.)   1916C-391.  (Annotated.) 


302 


DIGEST. 

1916C— 1918B. 


23.  Arrangement  of  Voting  Boom. 
Where  in  an  election  contest  it  appeared 
that  in  violation  of  Pa.  Act  June  10,  1893 
(P.  L.  428)  §  19,  two  separate  rooms  were 
employed  for  holding  the  election,  one 
being  occupied  by  the  election  board  and 
containing  the  ballot  box  and  the  other 
containing  the  booths,  and  that,  instead 
of  a  guard  rail,  a  rope  was  employed 
which  did  not  exclude  from  the  space  re- 
served for  voters  all  but  the  election  board 
and  the  persons  actually  engaged  in  vot- 
ing, and  that  votes  cast  for  an  office  other 
than  that  contested  had  been  purchased, 
the  court  should  have  declared  that  all 
votes  cast  under  such  circumstances  were 
invalid,  though  no  actual  fraud  was  shown 
as  to  the  vote  for  the  office  in  contest. 
Cramer's  Election  Case  (Pa.)   1916E-914. 

(Annotated.) 

24.  The  provisions  of  Pa.  Act  June  10, 
1893  (P.  L.  428)  §  19,  relating  to  the  ar- 
rangement of  the  rooms  in  which  elections 
are  held,  being  mandatory,  a  disregard  of 
same  without  excuse  invalidates  the  bal- 
lots cast  and  requires  that  the  returns 
from  wards  wherein  such  violations  oc- 
curred be  excluded  in  the  general  count, 
Cramer's  Election  Case  (Pa.)  1916E-914. 

(Annotated.) 

25.  Failure  to  Provide  Polling  Places. 
Where  in  an  election  to  decide  the  crea- 
tion of  a  new  county,  under  S.  Car.  Const. 
1895,  art.  7,  §§  1,  2,  the  portions  of  all 
the  townships  to  be  included,  except  one, 
have  no  polling  places,  the  exclusion  of 
the  qualified  voter  therein  from  voting  is 
illegal.  Callison  v.  Peoples  (S.  Car.) 
1917E-469. 

Note. 
Effect  on  election  of  failure  to  comply 
with  statute  as  to  arrangement  of  voting 
rooms  or  booths.     1916E-917. 

e.     Ballots. 

26.  Unnecessary  Words  on  Paster.  At 
an  election  for  town  selectman  for  three 
years  and  other  town  officers  for  one  year, 
where  votes  were  cast  for  a  person  not 
named  on  the  ballot  for  selectman  by 
means  of  pasters,  the  words  "three  years" 
on  the  paster  after  his  name  correctly 
state  the  term  of  office  required  by  the 
official  ballot,  and  of  themselves  do  not 
disclose  the  voter's  identity.  Ray  v. 
Registrars   (Mass.)    1918A-1158. 

27.  Form  of  Ballot.  Vallejo  City  Char- 
ter, §  15,  subd.  17,  provides  that  on  the 
ballot  the  offices  to  be  filled  ''shall  be  ar- 
ranged in  separate  columns  in  the  follow- 
ing order:  .  .  .  For  commissioner  (if  any) 
vote  for  (giving  number)."  Subdivision 
21  of  that  section  provides  that,  in  case 
there  are  two  or  more  persons  to  be 
elected  to  any  office,  as  that  of  commis- 
sioner, the  candidates  equal  in  number  to 
the   number   to    be   elected  receiving    the 


highest  number  of  votes  for  such  office 
shall  be  declared  elected.  Section  6, 
subd.  1,  makes  the  law  of  the  state  ap- 
plicable to  the  elections  of  the  city  and 
to  the  canvass  of  the  returns.  Cal.  Pol. 
Code,  §  1211,  subd.  2,  declares  that  in  can- 
vassing the  votes,  if  it  is  impossible  to 
determine  the  voters'  choice  for  any  office 
to  be  filled,  the  ballot  shall  not  be  counted 
for  such  office,  and  section  1197,  subd.  8, 
provides  that,  if  any  two  or  more  officers 
arp  to  be  elected  for  the  same  office  for 
different  terms,  the  term  for  which  each 
candidate  for  such  office  is  nominated 
shall  be  printed  on  the  ballot.  At  a  spe- 
cial election  held  on  petition  for  the  recall 
of  two  commissioners  whose  terms  expired 
at  different  times,  the  names  of  the  two 
commissioners  and  of  the  two  opposing 
candidates  were  printed  on  the  ballot 
without  any  designation  as  to  the  term 
for  which  any  of  them  were  nominated. 
Held,  that  the  state  law  should  govern 
in  such  a  case;  since  otherwise  it  was  im- 
possible to  tell  which  commissioner  the 
voters  desired  to  have  removed  or  for 
how  long  they  desired  to  have  the  oppos- 
ing candidates  serve,  and  the  ballots  were 
void  for  uncertainty  and  could  not  be 
counted.  Wilson  v.  Blake  (Cal.)  1916D- 
205.  (Annotated.) 

28.  The  various  revisions  of  the  election 
laws  impliedly  recognize  the  use  of  pas- 
ters. Ray  V.  Registrars  (Mass.)  1918A- 
1158. 

f.    Counting  and  Canvassing  Vote. 
(1)     Officers  and  Duties. 

29.  Canvassing  Board  Confined  to  Ee- 
tnm.  Under  sec.  94e,  Wis.  Stats.  1913, 
the  state  board  of  canvassers  must  make 
its  decision  from  the  county  returns  men- 
tioned in  sub.  1,  sec.  87,  and  from  such 
returns  only.  The  statute  contemplates 
but  one  return  and  that  to  be  an  entirety. 
State  V.  Board  of  State  Canvassers  (Wis.) 
1916D-159. 

30.  Time  for  Eetum.  The  statute  re- 
quiring the  state  canvassing  board  to  com- 
plete its  work  within  a  specified  time  is 
directory,  to  the  extent  that  it  may  con- 
tinue to  a  finality  after  expiration  of  the 
time,  but  it  has  no  discretion  to  delay  by 
adjournments  or  for  anything  but  proceed- 
ings to  compel  transmission  of  the  county 
returns,  and,  in  case  of  delays  otherwise, 
it  may  be  coerced  by  the  mandamus 
remedy.  State  v.  Board  of  State  Can- 
vassers  (Wis.)   1916D-159. 

31.  Form  of  Return.  The  statute  re- 
quires the  entire  result  of  the  county  can- 
vass to  be  covered  by  a  single  decision 
and  the  result,  as  to  the  state  officers,  to 
be  included  in  a  single  return.  State  v. 
Board  of  State  Canvassers  (Wis.)  1916I>- 
159. 

32.  Time  to  Complete  Canvass  and  De- 
clare Result.     Such  legislative   plan   con- 


ELECTIONS. 


templates  a  fixed  limit  of  time  for  a 
county  clerk  to  complete  the  canvass  of 
election  district  returns,  to  decide  upon 
the  result,  to  issue  certificates  of  election 
to  county  ofScers  found  elected,  and  to 
make  returns  of  the  result  of  the  election 
as  to  state  oflScers  to  the  secretary  of 
state.  State  v.  Board  of  State  Canvassers 
(Wis.)  1916D-159. 

33.  Validity  of  Statute.  If  the  legisla- 
tive purpose  was  as  indicated  in  sec.  86 
Wis.  Stats.  1913,  in  its  letter  so  far  as  it, 
if  executed,  would  prevent  a  county  can- 
vass and  the  state  canvass  from  being 
completed  within  the  time  fixed  by  stat- 
ute, it  is  unconstitutional.  State  v.  Board 
of  State  Canvassers  (Wis.)  1916D-159. 

34.  Time  of  Return.  Sec.  86,  Stats.  Wis. 
1913,  cannot  be  given  such  effect  as  to 
prevent  making  the  county  canvasses  and 
state  canvass  within  the  time  required  by 
law,  as  that  would  be  liable  to  prevent 
newly  elected  officers  from  taking  their 
respective  oflSces.on  the  first  Monday  of 
the  political  year.  State  v.  Board  of  State 
Canvassers   (Wis.)    1916D-159. 

35.  Scope  of  Statute  Bequinng  Betum. 

Sec.  86,  Stats.  Wis.  1913,  cannot  be  re- 
strained so  as  to  affect  some  oflScers  and 
not  others;  it  includes  all  so  plainly  as 
to  preclude  any  different  meaning  being 
adopted  by  construction.  State  v.  Board 
•f  State  Canvassers  (Wis.)   1916D-159. 

36.  Time  for  Return.  The  statute  re- 
quires the  secretary  of  state  and  state 
canvassing  board  to  obtain  possession  of 
the  county  results  by  the  time  fixed  by 
statute  for  commencement  of  continuous 
work  of  making  the  state  canvass,  to  com- 
plete it,  file  the  decision  and  issue  certifi- 
cates of  election  in  the  time  limited  by 
statute.  State  v.  Board  of  State  Can- 
vassers (Wis.)  1916D-159. 

(2)     What  Ballots  Should  be  Counted. 

37.  Use  of  Pasters.  Mass.  St.  1913, 
c.  835,  §  292,  as  amended  by  St.  1914, 
c.  435,  provides  that  the  voter  shall  pre- 
pare his  ballot  by  making  a  cross  in  the 
square  at  the  right  of  the  name  of  each 
candidate  for  whom  he  intends  to  vote,  or 
by  inserting  the  name  of  such  candidate 
in  the  space  provided  therefor  and  mak- 
ing a  cross  in  the  square  at  the  right. 
Section  259  provides  that  a  blank  space 
shall  be  left  at  the  end  of  the  list  of 
candidates  for  each  different  oflRce,  in 
which  the  voter  "may"  insert  the  name  of 
any  person  not  printed  on  the  ballot  for 
whom  he  desires  to  vote.  A  number  of 
votes  were  cast  for  a  person  whose  name 
did  not  appear  on  the  ballot  by  means  of 
pasters,  and  in  some  cases  the  pasters,  in- 
stead of  being  placed  in  the  blank  space 
at  the  end  of  the  list  of  candidates,  were 
placed  over   the   name   of   another   candi- 


date for  the  office;  a  cross  being  made  in 
the  square  opposite  the  paster.  It  is  held 
that  the  ballots,  though  irregular,  were 
properly  counted;  the  paster  not  in  itself 
being  a  "distinguishing  mark,"  and  the 
statute  not  expressly  prohibiting  the  voter 
from  placing  the  paster  over  the  name  of 
another  candidate.  Ray  v.  Registrars 
(Mass.)   1918A-1158. 

38.  Place  of  Mark.  That  a  cross-mark 
was  placed  to  the  left  of  a  blank  space  on 
a  ballot  does  not  prevent  the  counting  of 
the  ballot  for  a  candidate  before  whose 
name  a  cross  mark  was  properly  placed, 
where  it  does  not  appear  that  the  ballot 
was  so  marked  for  the  fraudulent  and  cor- 
rupt purposes  of  distinguishing  it.  Thomp- 
son V.  Redington  (Ohio)   1918A-1161. 

39.  Marking  of  Ballot.  Under  Ohio 
Gen.  Code,  §  5070,  par.  9,  providing  that 
no  ballot  shall  be  rejected  for  any  tech- 
nical error  which  does  not  make  it  im- 
possible to  determine  the  voter's  choice, 
the  fact  that  the  word,  "Yes,"  instead  of 
the  proper  mark,  appeared  in  the  space  to 
the  left  of  a  name,  did  not  require  that 
the  ballot  be  rejected,  where  there  was  no 
question  as  to  the  intention  of  the  voter 
or  evidence  of  any  fraudulent  or  corrupt 
purpose  to  distinguish  the  ballot.  Thomp- 
son v.  Redington   (Ohio)   1918A-1161. 

(Annotated.) 

40.  Form  of  Cross.  Under  Mo.  Laws 
1911,  c.  71,  providing  that  no  ballot  shall 
be  rejected  as  defective  because  of  marks 
other  than  those  authorized  by  law  having 
been  placed  upon  it  by  the  voter,  unless 
with  a  fraudulent  intent,  and  that  no  bal- 
lot shall  be  rejected  because  of  any  irregu- 
larity in  the  form  of  the  cross  in  the 
square  at  the  head  of  the  party  column, 
unless  such  irregularity  is  intentional  and 
fraudulent,  such  fraudulent  intent  must 
appear  aflSrmatively.  Murray  v.  Waite 
(Me.)   1918A-1128.  (Annotated.) 

41.  Use  of  Stickers.  A  ballot,  in  an 
aldermanic  election,  having  a  cross  in  the 
party  square,  but  on  which  the  sticker  for 
alderman  is  not  placed  over  the  candi- 
date's name  so  that  both  names  plainly 
appear,  is  void.  Murray  v.  Waite  (Me.) 
1918A-1128. 

42.  A  ballot  in  an  aldermanic  election, 
having  a  cross  in  the  party  square,  and  be- 
low, a  small  cross  beneath  the  residence  of 
the  mayor  and  a  mark  resembling  a  T 
opposite  the  name  of  the  candidate  for 
ward  clerk,  is  not  invalid  as  bearing  a 
distinguishing  mark.  Murray  v.  Waite 
(Me.)    1918A-1128.  (Annotated.) 

43.  Mark  in  Addition  to  Cross.  A  bal- 
lot in  an  aldermanic  election,  the  party 
square  of  which  contains  a  cross  around 
which  is  drawn  a  circle,  is  void.  Murray 
V.  Waite  (Me.)  1918A-1128. 

(Annotated.) 


304 


DIGEST. 

19160— 1918B. 


44.  A  ballot  having  a  cross  in  the  partj 
square,  the  lines  of  which  are  broad  and 
dull,  is  properly  counted.  Murray  t. 
Waite  (Me.)  1918A-1128. 

(Annotated.) 

45.  Form  of  Cross.  A  ballot  in  an  alder- 
manic  election,  the  cross  in  the  party 
square  of  which  is  composed  of  practically 
parallel  lines  with  the  ends  closed,  is 
properly  counted,  under  Me.  Laws  1911, 
c.  71,  providing  that  no  ballot  shall  be 
rejected  because  of  any  irregularity  in 
the  form  of  the  cross  in  the  square,  unless 
BQch  irregularity  it  intentional  and 
fraudulent.  Murray  t.  Waite  (Me.) 
1918A-1128.  (Annotated.) 

46.  Mutilated  Ballot — ^What  CcnstitutM. 
A  ballot,  in  an  aldermanic  election,  having 
a  cross  with  an  extra  line  entering  into  it 
and  a  break  in  the  paper  caused  by  an  at- 
tempted erasure,  is  not  a  "mutilated  bal- 
lot," which  is  one  where  the  name  of  the 
candidate  is  cut  out.  Murray  v.  Waite 
(Me.)  1918A-1128. 

47.  Distinguishing  -  Marks.  A  ballot  in 
an  aldermanic  election,  having  a  cross  in 
the  party  square  and  another  beneath  it 
across  the  party  designation,  is  not  void 
as  bearing  a  distinguishing  mark.  Mur- 
ray v.  Waite   (Me.)    1918A-1128. 

(Annotated.) 

48.  Use  of  Stickers.  A  ballot  in  an 
aldermanic  election,  which  has  a  pross  in 
the  party  square  and  two  stickers  with 
the  same  name  placed  nearly  ever  the 
name  of  the  same  candidate  for  alderman, 
is  not  invalid.  Murray  v.  Waite  (Me.) 
1918A-1128. 

49.  A  ballot,  in  an  aldermanic  election, 
having  a  cross  in  the  party  square  and 
below  the  cross  in  the  same  square  a 
■ticker  bearing  the  name  of  that  party 
candidate  for  mayor,  is  not  invalid  as 
bearing  a  "distinguishing  mark."  Murray 
V.  Waite  (Me.)  1918A-1128. 

(Annotated.) 

50.  Sufficiency  of  Mark.  A  ballot  which 
has  a  cross  in  the  party  square,  and  then 
a  pencil  mark  drawn  vertically  through 
every  name  in  the  party  column  beneath, 
must  be  rejected,  since  the  voter's  inten- 
tion cannot  be  determined.  Murray  r. 
Waite  (Me.)  1918 A-1 128. 

(Annotated.) 

51.  Form  of  Paster.  Mass.  St.  1913, 
e.  835,  §  261,  provides  as  to  official  ballots 
that  the  names  of  all  candidates  other 
than  laudidates  for  presidential  electors 
shall  be  in  capital  letters  of  a  certain  size. 
Section  280  provides  that  pasters  on  the 
official  ballot  shall  be  subject  to  all  of  the 
restrictions  imposed  by  section  261  as  to 
the  size  of  the  type.  Section  292  requires 
the  voter  to  make  a  cross  in  the  square 
at  the  right  of  the  name  of  each  candi- 
date  voted  for,  or  to  insert  the  name  of 


the  candidate  voted  for  in  the  space  pro- 
vided therefor.  It  is  held  that  the  fact 
that  pasters  did  not  conform  to  section 
261  as  to  the  size  of  the  type  did  not  ren- 
der the  ballots  illegal;  the  statute  being 
directory,  especially  as,  had  the  voter 
written  or  printed  the  name  of  the  candi- 
date, instead  of  using  a  paster,  the  ballot 
would  have  been  counted,  though  the  size 
of  the  letters  used  did  not  conform  to  the 
statute.  Bay  v.  Eegistrars  (Mass.)  1918A- 
1158. 

52.  Effect  of  Irregularities  in  Kind  of 
Mark.  If  the  intention  of  a  voter  cap  be 
fairly  determined  from  his  ballot,  effect 
should  be  given  to  that  intent,  and  the 
vote  counted  in  accordance  therewith,  and 
ballots  which  fairly  and  unmistakably 
express  the  voter's  purpose  are  to  be 
counted,  although  the  marking  thereof  is 
irregular,  if  it  is  not  prohibited  by  stat- 
ute. Eay  V.  Eegistrars  (Mass.)  1918.A- 
1158.  (Annotated.) 

53.  Where  a  voter  places  a  cross  in  a 
party  circle  and  three  ciosses  opposite  the 
name  of  a  candidate  for  representative, 
the  ballot  should  be  counted;  it  being  the 
voter's  evident  intention  to  cumulate  his 
vote  for  that  representative,  and  not  to 
identify  the  ballot.  Hodgson  y.  Knob- 
lauch (HI.)  1917E-653. 

54.  Where  a  voter  puts  a  cross  in  the 
square  for  representative  and  a  figure  1 
outside  of  the  square,  the  ballot  should 
not  be  rejected;  he  evidently  intending 
to  show  that  he  intended  to  cast  only  one 
vote  for  that  representative.  Hodgson  t. 
Knoblauch  (111.)  1917E-653. 

55.  Atteaii>t  to  Cumulate  Votes.  Where 
a  voter  makes  a  cross  in  the  square  for 
each  of  two  candidates  for  representative 
and  an  additional  cross  outside  the  square 
for  one  of  them,  the  ballot  should  not  be 
rejected,  as  the  voter  twas  apparently 
trying  to  cast  two  votes  for  one  of  the 
candidates.  Hodgson  r.  Knoblauch  (111.) 
1917E-653. 

56.  Unauthorized  Marks.  Where  a 
voter,  in  apparently  making  an  erasure, 
makes  a  hole  in  the  paper  in  the  square 
opposite  a  candidate's  name,  and  there- 
upon extends  the  top  and  bottom  lines  of 
the  square,  making  three  sides  of  a  square, 
and  makes  a  cross  in  that  space,  the  bal- 
lot is  properly  counted;  there  being  no 
distinguishing  mark  nor  anything  but  an 
honest  attempt  to  vote  for  that  candidate. 
Hodgson  V.  Knoblauch    (111.)   1917E-653. 

57.  A  ballet  marked  with  a,  pen,  on 
which  there  are  ink  blots  in  the  squares 
in  front  of  the  names  of  two  opposing 
candidates,  is  properly  not  counted  for 
either  candidate;  there  being  nothing 
resembling  a  cross  in  either  square.  Hodg- 
son T.  Knoblauch   (111.)   1917E-653. 


ELECTIONS. 


306 


58.  A  ballot  on  which  are  two  parallel 
marks  opposite  the  name  of  the  candidate 
for  a  particular  office  should  be  counted; 
such  marks  apparently  being  an  ineffectual 
attempt  to  vote  for  that  candidate  and 
not  distinguishing  marks.  Hodgson  t. 
Knoblauch  (111.)   1917E-653. 

59.  Ballots  on  which  are  diagonal  marks 
in  certain  squares,  indicating  that  the 
voters  commenced  to  make  crosses  in 
such  squares  but  changed  their  minds, 
should  be  counted  for  candidates  other- 
wise indicated  as  the  voters'  choice;  such 
marks  not  constituting  "distinguishing 
marks."  Hodgson  v.  Knoblauch  (111.) 
1917E-653. 

60.  A  ballot  on  which  is  a  cross  in  the 
Republican  circle,  and  no  other  mark,  ex- 
cept a  hole  in  the  square  opposite  the 
name  of  a  candidate  on  the  Democratic 
ticket,  should  be  counted  for  such  candi- 
date's opponent  on  the  Republican  ticket. 
Hodgson  V.  Knoblauch  (111.)  1917E-653. 

,  61.  Where  lines  in  the  squares  opposite 
the  names  of  certain  candidates  are 
brought  together  practically  at  right 
angles,  so  that  they  intersect,  but  one 
line  does  not  cross  the  other,  the  ballot 
is  properly  counted  for  such  candidates. 
Hodgson  V.  Knoblauch  (111.)  1917E-653. 

62.  Effect  of  Mark  Opposite  Blank  Line. 
Where  there  is  no  candidate  for  the  office 
of  county  treasurer  on  the  ProgressiTC 
ticket,  a  cross  in  the  square  opposite  the 
blank  space  in  that  column  does  not  neu- 
tralize a  cross  in  the  square  opposite  the 
name  of  a  candidate  for  that  office  in 
another  column,  and  the  ballot  is  properly 
counted  for  such  candidate.  Hodgson  y. 
Knoblauch  (111.)  1917E-^53. 

(Annotated.) 

63.  Sufficiency  of  Mark.  A  ballot,  none 
of  the  marks  on  which  bear  any  resem- 
blance to  a  cross,  is  properly  rejected. 
Hodgson  T.  Knoblauch   (111.)    i917E-653. 

64.  A  ballot  upon  which  a  voter  has 
written  something  looking  like  a  figure  3 
after  the  name  of  one  of  the  candidates 
for  representative  is  properly  counted;  the 
voter  evidently  intending  to  cumulate  his 
vote  and  not  to  make  a  distinguishing 
mark.  Hodgson  v.  Knoblauch  (111.) 
1917E-653. 

65.  Attempt  to  Cumulate  Votes.  A  bal- 
lot having  a  cross  in  the  square  opposite 
the  name  of  the  candidate  for  county 
clerk,  followed  by  the  figure  3,  is  properly 
rejected;  it  not  coming  within  the  rule  as 
to  the  writing  of  such  a  figure  by  a  voter 
under  the  mistaken  belief  that  he  can 
cumulate  his  vote.  Hodgson  v.  Knoblauch 
(111.)   1917E-«53. 

66.  Tom  Ballot.  Though  a  voter  may 
tear  off  a  part  of  the  ballot  in  such  a  way 

20 


as  to  identify  it,  where  the  tearing  off  of  a 
corner  of  the  ballot  is  apparently  acci- 
dental and  can  identify  the  ballot  only  by 
a  careful  matching  of  the  piece  torn  off, 
the  ballot  is  properly  counted,  Hodgson 
V.    Knoblauch    (111.)    1917E-653. 

67.  Void  Ballot.  A  ballot  having  a  cross 
in  each  of  the  squares  in  one  party  column 
and  numerous  vertical  lines  drawn  through 
the  squares  and  names  of  candidates  in 
other  columns  is  properly  rejected;  the 
marks  being  effective  in  identifying  the 
ballot  and  not  being  made  by  the  voter  in 
an  attempt  to  indicate  his  choice,  Hodg- 
son V.  Knoblauch  (111.)  1917E-653. 

68.  Where  there  appears  on  a  ballot  a 
cross  in  the  square  before  the  name  of  a 
Progressive  candidate  and  something  in 
the  nature  of  a  square  which  has  been 
made  in  the  Republican  circle  and  rubbed 
out,  the  ballot  is  properly  rejected  in  re- 
counting the  votes  for  a  Republican  can- 
didate. Hodgson  V.  Knoblauch  (111.) 
1917E-653. 

69.  Where,  in  the  square  opposite  the 
name  of  a  candidate  for  representative, 
there  was  a  horizontal  mark  from  which 
three  vertical  marks  extended  downward, 
the  ballot  is  properly  rejected;  it  not 
being  probable,  though  possible,  that  the 
voter  was  attempting  to  cumulate  his  vote. 
Hodgson  V.  Knoblauch  (111.)  1917E-653. 

70.  Effect  of  Mark  Outside  Voting 
Square.  That  a  cross  opposite  the  name 
of  a  candidate  was  outside  the  square  op- 
posite his  name  merely  nullifies  the  bal- 
lot as  to  him;  it  not  being  a  "distinguish- 
ing mark."  Hodgson  r,  Knoblauch  (111.) 
1917E-653.  (Annotated.) 

71.  While  any  one  of  an  infinite  variety 
of  marks  may  constitute  a  distinguishing 
mark,  marks  which  are  so  connected  with 
an  apparently  honest  effort  of  the  voter 
to  indicate  his  choice  of  candidates  that 
they  are  evidently  not  made  for  the  pur- 
pose of  identifying  the  ballot  should  not 
be  regarded  as  distinguishing  marks  and 
do  not  require  that  the  ballot  be  rejected. 
Hodgson  V.  Knoblauch   (111.)   1917E-G53. 

72.  Distinguishing  Marks  on  Ballot. 
Ballots  bearing  any  distinguishing  mark 
cannot  be  counted.  Hodgson  v.  Knob- 
lauch   (111.)    1917E-653. 

73.  Necessity  of  Compliance  With  Stat- 
ute. Ballots  cannot  be  counted  unless  the 
mandatory  requirements  of  the  law  are 
complied  with  by  voters  in  indicating 
their  choice  of  candidates.  Hodgson  v. 
Knoblauch  (HI.)   1917E-653. 

Notes. 

Validity  of  ballot  with  respect  to  place 
of  mark  for  candidate.     1917E-657. 

Validity  of  ballot  with  respect  to  kind 
of  mark  for  candidate.     1918A-1131. 


306 


DIGEST. 

19160— 1918B. 


(3)     Conclusiveness  of  Returns. 

74.  Canvass  of  Vote — Review  of  Find- 
ing of  Canvassers.  A  finding  of  fact  by 
the  state  board  of  canvassers  is  not  con- 
clusive where  there  is  no  evidence  to  sup- 
port the  finding,  or  it  is  against  the  neces- 
sary inference  from  the  facts,  since  the 
statute  making  the  findings  of  the  board 
conclusive  presupposes  that  they  must  be 
supported  by  some  evidence.  Callison  v. 
Peeples  (S.  Car.)   1917E-469. 

(4)     Tie  Vote. 

75.  Eight  of  Candidate  Beceiving  Cer- 
tificate of  Election.  Where  two  candi- 
dates for  alderman  received  an  equal  num- 
ber of  votes  and  one  of  them  has  received 
a  certificate  of  election,  the  other  candi- 
date cannot  maintain  a  proceeding  to  oust 
the  one  awarded  such  certificate.  Murray 
V.  Waite  (Me.)  1918A-1128. 

(5)     Effect   of   Irregularities   in   Election 
or  Ballots. 

76.  Irregnlarities  in  Conduct  of  Election 
— Rejection  of  Entire  Vote.  Where  there 
were  irregularities  on  the  part  of  the  elec- 
tion oflScers,  resulting  in  illegal  votes,  but 
the  conduct  of  the  officers  did  not  evidence 
a  wilful  and  deliberate  fraud  upon  the  bal- 
lot, the  returns  will  be  purged,  but  the 
election  will  not  be  invalidated.  Webb  v. 
Bowden  (Ark.)  1918A-60. 

(Annotated.) 

77.  Ecjection  of  Entire  Vote.  Coal 
companies  connived  with  certain  county 
officers,  including  the  board  of  county 
commissioners,  to  secure  the  creation  of 
election  precincts  bounded  so  as  to  include 
their  private  property  only,  and  with  lines 
marked  by  their  own  fences  or  guarded  by 
their  own  armed  men,  which  had  been 
known  as  "closed  camps,"  within  which 
were  only  their  own  employees,  and  ex- 
cluded the  public  from  entrance  to  such 
election  precincts,  labeled  them  as  private 
property,  and  warned  the  public  that  en- 
trance constituted  trespass,  denied  the 
right  of  free  public  assemblage  within 
such  precincts,  the  right  of  free  and  open 
discussion  of  public  questions,  and  the 
right  to  circulate  election  literature  or  to 
distribute  cards  of  candidates  within  such 
precincts.  They  secured  the  election  of 
their  own  employees  exclusively  as  judges 
and  clerks  of  election,  made  the  registra- 
tion list  from  their  own  pay  rolls,  and 
kept  them  in  their  private  places  of  busi- 
ness and  in  charge  of  their  employees,  and 
prohibited  all  public  investigation  within 
such  precincts  as  to  the  qualifications  of 
the  persons  so  registered  as  electors  of  the 
precincts.  Through  their  employees  as 
election  officers,  they  assisted  non-English 
speaking  persons  to  vote  by  marking  their 
ballot  for  them  in   violation   of  law,  and 


provided  such  persons  with  a  fraudulent 
device  to  enable  them  to  vote  without  be- 
ing able  to  read  either  the  i:ame  of  the 
candidate  or  the  party  ticket,  and  in  some 
instances  forced  and  intimidated  their 
employees.  On  the  day  of  the  election 
they  forced  a  contestor's  watchers  and 
challengers  for  one  precinct  to  secure  a 
detail  of  federal  soldiers  to  escort  them 
into  the  precinct  and  to  the  polls,  and  by 
such  location  of  precincts  required  many 
voters  to  go  eighteen  or  twenty  miles  to 
vote.  The  returned  votes  from  such  pre- 
cincts gave  the  contestees  a  majority, 
while  the  votes  in  the  entire  county,  out- 
side of  those  of  such  precincts,  gave  the 
contestors  a  majority.  It  is  held  that  the 
conduct  of  the  election  in  such  precinct 
was  such  as  to  invalidate  the  entire  poll 
therein  or  in  a  sufficient  number  of  them 
to  change  the  result  of  the  election  in  the 
entire  county.  Neelley  v.  Farr  (Colo.) 
1918A-23.  (Annotated.) 

78.  There  is  a  distinction  in  the  nature 
of  things  between  particular  illegal  votes 
which  may  be  proven  and  exactly  com-i 
puted  and  which  ought  to  be  excluded 
wherever  cast,  and  the  effects  of  fraudu- 
lent combinations,  coercion,  and  intimida- 
tion; and,  where  fraud  and  irregularities 
occur  in  the  conduct  of  an  election  to  such 
an  extent  that  it  is  impossible  for  the 
contest  tribunal  to  separate  with  reason- 
able certainty  the  legal  from  the  illegal 
votes,  the  precincts  wherein  the  fraud  oc- 
curs should  be  excluded  even  though  such 
exclusion  changes  the  result  of  the  election 
in  the  entire  county.  Neelley  v.  Farr 
(Colo.)    1918A-23.  (Annotated.) 

79.  In  such  case,  where  it  appeared  that 
the  state  and  federal  troops  Lad  brought 
order  out  of  strike  conditions,  and  that 
there  was  no  reasonable  apprehension  of 
further  disorder,  and  that  the  success  of 
the  contestees  was  considered  by  the  coal 
companies  vital  to  their  interest,  it  is  held 
that  the  defense  of  industrial  necessity 
did  not  justify  the  conduct  of  the  coal 
companies  during  the  election,  since,  after 
the  camps  on  its  private  property  had 
been  dedicated  to  a  public  use  by  the 
establishment  of  voting  precincts,  they 
abandoned  the  private  or  exclusive  control 
to  which  they  might  otherwise  have  been 
entitled.  Neelley  v.  Farr  (Colo.)  1918A- 
23.  (Annotated.) 

80.  Where  a  number  of  voters  were 
illegally  prevented  from  voting,  and  it  is 
not  known  how  they  would  have  voted, 
but  there  are  enough  votes  to  have 
changed  the  result  had  they  voted  against 
it,  the  election  will  be  vacated,  since, 
where  the  irregularity  or  illegality  of  an 
election  is  such  as  to  place  it  in  doubt,  the 
election  must  be  set  aside.  Callison  v. 
Peeples  (S.  Car.)   1917E-469. 

(Annotated.) 


ELECTIONS. 


307 


81.  Wrongful  Exclusion  of  Votes.  The^ 
fact  that  certain  persons  have  been  ille- 
gally prevented  from  voting  will  not  viti- 
ate the  election,  if  by  counting  such  votes 
as  having  been  cast  against  the  result  ob- 
tained there  still  remains  a  sufficient 
majoritv  to  establish  such  result.  Calli- 
8on  V.  Peeples  (S.  Car.)   1917E-469. 

(Annotated.) 
Notes. 
Effect  on  election  of  wrongfully  depriv- 
ing electors  of  right  to  vote.     1917E-475. 

Rejection  of  entire  vote  of  election  dis- 
trict for  irregularity  affecting  indeter* 
minable  number  of  votes.     1918A-41. 

4.     ELECTION  CONTESTS. 
a.     Jurisdiction. 

82.  Legislative  Power.  Under  the  pro- 
visions of  section  21  of  article  2  of  the 
Ohio  constitution,  the  general  assembly 
has  the  power  to  determine  before  what 
authority  and  in  what  manner  a  trial  of 
contested  elections  shall  be  conducted.  In 
the  exercise  of  this  power  it  may  in  its 
discretion  confer  jurisdiction  upon  any  of 
the  courts  of  this  state  to  hear  and  deter- 
mine election  contests.  Thompson  v.  Eed- 
ingion  (Ohio)  1918A-1161. 

b.  Pleading. 

83.  Petition    on    Contest.      Where    the 

petition  in  an  election  contest  specifically 
sets  forth  the  several  grounds  of  contest 
and  alleges  that  contestor  was  duly  and 
legally  elected  to  the  office  in  controversy, 
and  from  the  facts  alleged  it  necessarily 
followed  that  contestor  claimed  that  the 
irregularities  complained  of  prevented  a 
fair  count  of  the  ballots  and  caused  a 
wrong  result  to  be  declared,  it  is  not  de- 
fective for  failure  to  allege  that  such  ir- 
regularities changed  the  result  of  the^  elec- 
tion, or  that  but  for  such  irregularities, 
the  canvass  of  the  vote  would  have  shown 
the  election  of  contestor.  Thompson  v. 
Redington  (Ohio)  1918A-1161. 

84.  Amendment  of  Pleadings.  In  an 
election  contest,  where  the  circuit  court 
permitted  amended  answer  to  be  filed  more 
than  twenty  days  after  the  service  of  the 
summons,  setting  up  not  a  counter  contest, 
but  only  perfecting  a  ground  alleged  in 
time,  but  defectively,  there  was  no  viola- 
tion of  the  rule  forbidding  the  filing  of 
amendments  setting  up  new  grounds  of 
contest  or  counter  contest  after  the  time 
provided  for  the  filing  of  such  pleadings. 
Johnson  v.  Little  (Ky.)  1918A-70. 

c.  Evidence. 

85.  Contestants  are  not  relieved  of  the 
burden  of  proving  the  allegations  of  their 
petition  that  the  election  returns  were 
fraudulent  and  void,  though  the  proof 
connects    contestees,    election    commission- 


ers, with  a  theft  of  the  poll  books.    Webb 
V.  Cowden  (Ark.)  1918A-60. 

86.  Though  election  commissioners  of  a 
county  were  parties  to  a  theft  by  which 
the  loss  of  poll  books  of  a  county  seat 
election  was  brought  about,  the  fact  does 
not  justify  the  circuit  court,  in  suit  to 
contest  the  election,  in  ignoring  the  official 
returns  made  by  the  judges  of  election. 
Webb  V.  Bowden  (Ark.)  1918A-60. 

87.  Loss  of  Poll  Books.  On  the  contest 
of  a  county  seat  election,  the  evidence  is 
held  to  be  insufficient  to  warrant  a  finding 
that  the  election  commissioners  were  re- 
sponsible for  the  loss  of  the  poll  books  of 
the  election.  Webb  v.  Bowden  (Ark.) 
1918A-60. 

88.  Sufficiency  of  ETldence.  The  con- 
testants' affirmative  evidence  is  held  to  be 
sufficient  to  impeach  the  integrity  of  the 
official  returns  from  a  township,  where 
more  votes  were  cast  for  the  removal  of 
the  county  seat  than  were  shown  on  the 
printed  list  of  those  who  had  paid  their 
poll  taxes  and  were  entitled  to  vote. 
Webb  V.  Bowden  (Ark.)  1918A-60. 

89.  Judicial  Notice.  It  is  a  matter  of 
common  knowledge  that  at  general  elec- 
tions, where  there  are  candidates  of  oppos- 
ing parties,  and  especially  in  presidential 
years,  the  interest  of  the  electorate  is 
stirred,  so  that  they  are  usually  brought 
to  the  polls  in  full  voting  strength.  Webb 
V.  Bowden  (Ark.)  191"8A-60. 

90.  Presumption  that  Voter  was  Quali- 
fied. Where  it  appears  that  a  person 
registered,  or  that  his  vote  was  accepted 
by  the  election  officer,  there  is  a  presump- 
tion, in  the  absence  of  proof  to  the  con- 
trary, that  such  person  was  a  qualified 
voter.     Webb  v.  Bowden  (Ark.)  1918A-60. 

91.  Burden  of  Proof.  On  the  contest  of 
a  county  seat  election,  where  more  votes 
were  cast  in  a  township  for  removal  of 
the  county  seat  than  were  shown  on  the 
printed  list  of  those  who  had  paid  their 
poll  taxes  and  were  entitled  to  vote,  the 
contestants  adducing  proof  making  it 
probable  that  the  excessive  votes  did  not 
occur  in  any  legitimate  way,  the  contes- 
tees, election  commissioners,  have  the  bur- 
den to  show  that  the  excessive  votes  were 
those  of  qualified  electors,  since  the  pre- 
sumption of  the  regularity  and  correctness 
of  the  official  action  of  the  election  officers 
is  overcome  when  there  is  direct  and  un- 
disputed proof  of  facts  tending  to  impeach 
the  returns  and  to  show  that  prima  facie 
evidence  of  correctness  is  not  true.  Webb 
V.  Bowden  (Ark.)  1918 A-60. 

(Annotated.) 

d.     f'indings. 

92.  Whether  by  some  prearrangement  or 
understanding  words  written  on  the  ballot 
were  intended  to  disclose  the  voter's  iden- 


306 


DIGEST. 

19160— 1918B. 


tity  was  a  question  of  fact,  upon  which 
the  finding  of  a  single  justice  in  a  man- 
damus proceeding  is  conclusive.  Bay  r. 
Registrars  (Mass.)   1918A-1158. 

5.  CORRUPT  PRACTICES  ACTS. 

93.  Procedure.  The  statute  (Conip. 
Laws  N.  Dak.  §  942)  providing  the  form 
of  procedure  in  proceedings  to  contest  the 
right  of  a  person  declared  to  be  nominated 
or  elected  to  office  is  applicable  to  pro- 
ceedings to  deprive  a  person  of  office  un- 
der the  corrupt  practice  act,  and  the  latter 
act  is  therefore  not  invalid  because  it  pre- 
scribes no  procedure.  Diehl  t.  Totten  (N. 
Dak.)  1918A-884. 

94.  Illegal  Voting.  Adoption  or  rejec- 
tion of  a  street  car  franchise  is  a  "public 
proposition,"  within  Mo.  Eev.  St.  1909, 
§§  6155,  6177,  making  it  a  crime  to  vote 
more  than  once  at  an  election  in  a  city  to 
pass  on  such  a  proposition.  In  re  Siegel 
(Mo.)   1917C-684. 

ELECTRIC  KAILWAY& 
See  Street  Railways. 


ELECTRICITY. 

1.  Regulation  of  Electric  Companies. 

2.  Liability  of  Electric  Companies  for  Li- 

juries. 

a.  Care  Required  in  GeneraL 

b.  Injury  to  Children. 

c.  Actions  for  Injuries. 

(1)  AmissibHity  of  Evidence. 

(2)  Questions  for  Jury. 

(3)  Instructions. 

3.  Centrol  of  Public  Service  Commission. 

Municipal  electric  lighting  plant,  see 
Municipal  Corporations,  38,  171. 

City  regulation  of  electricians,  see  Munici- 
pal Corporations,  80,  81. 

Separation  of  telegraph  and  traction 
wires,  see  Railroads,  31-35. 

1.     REGULATION  OF  ELECTRIC  COM- 
PAT^ES. 

1.  Power  of  Public  Service  Commission 
to  Regulate.  A  public  service  commis- 
sioner may  require  a  street  railway  com- 
pany to  prevent  an  escape  of  electricity 
from  its  rails  whereby  water  pipes  are  in- 
jured by  electrolysis.  Winnipeg  Electric 
R.  Co.  V.  Winnipeg  (Man.)  1916E-181. 

(Annotated.) 

2.  The  power  to  require  a  street  railway 
company  to  prevent  the  escape  of  elec- 
tricity from  its  rails  is  not  affected  by  the 
fact  that  it  has  charter  authority  to  break 
the  surface  of  the  street  and  lay  its  rails 
or  by  the  fact  that  it  is  free  from  negli- 
gence. Winnipeg  Electric  R.  Co.  v.  Winni- 
peg (Man.)   1916E-181.  (Annotated.) 

3.  Poles  and  Wires  in  Street.  The  city 
of  Pittsburgh  has  power  to  compel  the  re- 


moval of  poles  and  overhead  wires  from 
its  streets,  provided  the  power  is  exer- 
cised in  a  reasonable  manner.  Duquesne 
Light  Co.  V.  Pittsburgh  (Pa.)  1917E-534. 

(Annotated.) 

4.  Where  the  overhead  wires  of  defend- 
ant carry  electricity  of  such  high  voltage 
as  to  be  dangerous  to  any  one  coming  in 
contact  with  them,  and  they  amount  to  an 
obstruction  and  constitute  a  source  of  ad- 
ditional danger  in  fighting  fires,  both  to 
the  firemen  and  to  the  public,  an  ordinance 
requiring  them  to  be  removed  and  placed 
in  underground  conduits  is  within  the 
power  of  the  city.  Duquesne  Light  Co.  v. 
Pittsburgh   (Pa.)   1917E-534. 

(Annotated.) 

5.  In  a  suit  to  enjoin  enforcement  of  a 
municipal  ordinance  requiring  public  ser- 
vice corporations  to  remove  poles  and 
overhead  wires  from  certain  streets,  the 
refusal  of  findings  as  to  the  annual  income 
of  plaintiff  from  subscribers  in  the  terri- 
tory served  by  plaintiff's  lines  on  the 
streets  named  is  not  error  where  the  court 
makes  a  finding  that  the  annual  income 
from  the  subscribers  in  the  territory  in- 
volved, taken  in  connection  with  the  in- 
come from  the  city  for  arc  lamps,  will  be 
sufficient  to  reimburse  plaintiff  for  the  an- 
nual cost  of  maintenance  of  an  under- 
ground system  and  give  a  profit  to  plain- 
tiff. Duquesne  Light  Co.  v.  Pittsburgh 
(Pa.)   1917E-534.  (Annotated.) 

8.  In  a  suit  to  restrain  enforcement  of 
an  ordinance  requiring  removal  of  poles 
and  overhead  wires  from  certain  streets. 
an  instruction  that  plaintiff  had  a  vested 
right  to  construct  and  maintain  its  poles 
and  wires  on  the  streets  of  the  city,  not 
including  any  statement  that  the  right 
was  subject  to  reasonable  control  by  the 
city  authorities,  is  properly  refused.  Du- 
quesne Light  Co.  V.  Pittsburgh  (Pa.) 
1917E-534.  (Annotated.) 

7.  In  a  suit  to  enjoin  enforcement  of  an 
ordinance  requiring  poles  and  overhead 
wires  to  be  removed  and  placed  under- 
ground, the  refusal  of  a  request  for  the 
statement  of  a  conclusion  of  law  that  the 
city  had  no  right  to  require  plaintiff  to 
place  its  wires  underground  is  not  error 
where  there  was  no  suggestion  that  plain- 
tiff intended  to  discontinue  business  in  the 
section  of  the  city  named  in  the  ordinance. 
Duquesne  Light  Co.  v.  Pittsburgh  (Pa.'^ 
1917E-534.  (Annotated.) 

8.  An  ordinance  requiring  public  service 
corporations  furnishing  electric  light,  heat, 
or  power  or  operating  telegraph  or  tele- 
phone lines  to  construct  conduits  and  com- 
plete the  same  before  the  completion  of 
improvements  on  certain  streets  and  to  re- 
move overhead  poles  or  wires  and  place 
the  same  underground,  and  providing  that 
where  the  city  had  any  of  its  lines  on 
such  poles  the  companies  owning  the  poles 


ELECTRICITY. 


should  first  remove  their  own  wires  and 
place  them  underground,  and  when  that 
was  done  the  city  should  remove  its  lines 
or  wires,  is  not  limited  in  its  operation  to 
poles  which  were  used  by  the  city  for 
carrying  its  wires,  but  applies  to  all  poles 
and  overhead  wires  on  the  streets  named. 
Duquesne  Light  Co.  v,  Pittsburgh  (Pa.) 
19I7E-534.  (Annotated.) 

9.  Eevocatlon  of  Rights  in  Streets.  Or- 
dinance 161  of  the  city  of  Vandalia,  111., 
requiring  removal  of  poles  and  wires  from 
streets  and  not  authorizing  placing  them 
underground  or  elsewhere,  is,  as  against  a 
telegraph  company  operating  a  line  of 
poles  and  wires  in  such  streets  under  pre- 
vious accepted  ordinance,  invalid,  because 
unreasonable.  Vandalia  v.  Postal  Tele- 
graph-Cable Co.  (111.)  1917E-523. 

(Annotated.) 

Note. 

Revocation  or  expiration  of  right  of 
electric  company  to  maintain  poles  wid 
wires  in   street.     1917E-525. 


b.     Injury  to  Children. 

13.  Duty  as  to  Wires.  Defendant  per- 
mitted children  and  others  living  in  the 
neighborhood  of  its  car  barns  to  pursue  a 
path  over  its  premises  leading  past  a  pole 
sustaining  its  electric  wires.  Its  servant 
in  charge  of  the  premises  had  been  warned 
that  electricity  was  escaping  from  the 
wires  into  the  pole,  but  with  such  knowl- 
edge took  no  steps  either  to  prevent  such 
escape  or  prevent  people  from  using  the 
path.  Plaintiff,  a  child  of  ten,  while  using 
the  path,  came  in  contact  with  certain 
hay  wire  charged  with  electricity  from  the 
pole,  and  was  injured  by  an  electric  shock. 
Held,  that  defendant's  negligence  was  such 
as  could  be  found  to  bo  wanton  and  reck- 
less, so  as  to  justify  a  recovery  by  plain- 
tiff as  a  lic€fnsee.  Romana  v.  Boston  Ele- 
vated B.  Co.  (Mass.)  1917A-893. 

(Annotated.) 
Note. 

Duty  and  liability  of  one  maintaining 
electric  wires  in  reference  to  children. 
1917A-895. 


2.     LIABILITY     OF    ELECTRIC     COM- 
PANIES FOR  INJURIES. 

a.     Care  Required  in  breneral. 

10.  Liability  for  Introducing  Excessive 
Current.  Though  the  inside  wiring  and 
appliances  of  a  user  of  an  electric  current 
were  defective,  the  company  is  liable  for 
sending  into  the  building  a  dangerous  cur- 
rent which  would  have  worked  injury  not- 
withstanding the  defects.  Smith's  Admx. 
V.  Middlesboro  Electric  Co.  (Ky.)  1917A- 
1164. 

11.  Liability  as  to  Condition  of  Inside 
Wiring.  Where  an  electric  light  company 
did  not  know  of  defects  in  the  wires  and 
apparatus  within  the  building  of  one  of 
its  patrons,  it  was  under  no  duty  to  in- 
spect for  such  defects.  Smith's  Admx.  v. 
Middlesboro  Electric  Co.  (Ky.)  1917A- 
1164.  (Annotated.) 

12.  While  an  electric  light  company  is 
not  an  insurer  of  the  safety  of  its  patrons, 
nor  of  people,  who  come  in  contact  with 
its  wires  and  apparatus,  it  is  bound  to 
exercise  the  highest  degree  of  care  and 
skill  in  the  installation,  construction,  and 
operation  of  its  plant,  as  well  as  in  the 
inspection  of  its  wires  and  other  appa- 
ratus, and  must  use  the  necessary  devices 
to  control  its  current  and  prevent  the  pass- 
ing of  dangerous  currents  of  electricity 
into  the  houses  of  its  patrons.  Smith's 
Admx.  v.  Middlesboro  Electric  Co.  (Ky.) 
1917A-1164. 

Notes. 

Liability  of  electric  light  company  for 
injuries  resulting  from  condition  of  inside 
wiring  or  apparatus.     1917A-1175. 

State  or  municioal  regulation  of  elec- 
tricians.    1916E-694. 


e.    Actions  for  Injuries. 
(1)     Admissibility  of  Evidence. 

14.  Competency  of  Expert.  An  em- 
balmer  who  had  seen  the  bodies  of  two 
persons  who  had  been  electrocuted  is  not 
competent  to  testify  as  an  expert  that  de- 
ceased met  his  death  from  electrocution. 
Smith's  Admx.  v.  Middlesboro  Electric  Co. 
(Ky.)   1917A-1164. 

15.  Where  plaintiff's  intestate,  who  was 
a  patron  of  defendant  electric  company, 
received  a  fatal  shock  through  an  electric 
light  wire,  testimony  that  shortly  after 
the  accident  the  witness  saw  a  man  climb 
the  electric  light  pole  in  front  of  the  store 
where  deceased  met  his  death  is  inadmis- 
sible; the  witness  being  unable  to  identify 
positively  the  person  as  connected  with 
defendant.  Smith's  Admx.  v.  Middlesboro 
Electric  Co.  (Ky.)  1917A-1164. 

16.  A  witness  who  shows  himself  to  be 
familiar  with  electricity,  and  who  at- 
tempted to  pull  plaintiff's  intestate  away 
from  the  electric  light  cord  where  de- 
ceased received  the  fatal  shock,  may  tes- 
tify that  he  also  received  a  shock  of  from 
110  to  250  volts;  it  appearing  that  the  cur- 
rent passed  through  deceased  and  into  the 
witness.  Smith's  Admx.  v.  Middlesboro 
Electric  Co.  (Ky.)   1917A-1164. 

17.  In  such  case  the  witness  may  tes- 
tify that  after  deceased  had  been  re- 
moved, the  cord,  which  reached  the  floor, 
ignited  it.  Smith's  Admx.  v.  Middlesboro 
Electric  Co.  (Ky.)  1917A-1164. 

18.  Injury  from  Inside  Wiring.  Where 
plaintiff's  intestate  received  a  fatal  shock 
from  an  electric  light  cord,  the  question 
whether  there  would  have  been  any  trouble 
had    the    cord   been    tied   instead   of   sus- 


310 


DIGEST. 

1916C— 1918B. 


pended  ffom  the  ceiling  is  not,  where  the 
witness  had  been  testifying  he  was  unable 
to  pull  deceased  away  from  the  cord,  in- 
admissible. Smith's  Admx.  v.  Middles- 
boro  Electric  Co.  (Ky.)  1917A-1164. 

19.  Expert  Eyldence.  It  was  plaintiff's 
claim  that  a  defect  in  a  transformer 
allowed  an  unusual  current  into  the  build- 
ing, and  that  in  using  electric  lights  de- 
ceased met  his  death.  The  transformer 
was  tested  by  an  expert.  Held,  that  other 
experts  could  testify  whether  the  test  ad- 
ministered showed  that  the  transformer 
was  not  defective.  Smith's  Admx.  v.  Mid- 
dlesboro  Electric  Co.  (Ky.)  1917A-1164. 

20.  Subsequent  Tests  of  Apparatus.  In 
an  action  for  death  by  electrocution, 
where  plaintiff  contended  that  the  trans- 
former was  defective,  evidence  of  tests 
made  by  an  expert  some  months  after  the 
accident  is  admissiole;  there  being  a  show- 
ing that  the  transformer  had  not  been  re- 
paired, and  that  any  defect  therein  would 
not  be  righted  of  itself.  Smith's  Admx.  v. 
Middlesboro  Electric  Co.  (Ky.)  1917A- 
1164. 

21.  Opinion  Evidence.  In  such  action 
the  testimony  of  decedent's  former  em- 
ployer that  decedent  had  installed  trans- 
formers and  worked  on  electrical  apparatus, 
and  that  he  knew  that  the  secondary  side 
of  the  transformers  was  a  2,250  volt  sys- 
tem, and  that  the  primary  side  was  of  a 
higher  voltage,  because  he  had  known  of 
deceased's  installing  transformers  and  con- 
necting of  same,  which  were  marked  to 
show  the  voltage  for  which  they  were  to 
be  connected  up,  is  necessarily  the  result 
of  reasoning,  and  inadmissible  as  being 
merely  the  opinion  of  the  witness.  Mc- 
Carthy's Admr.  v.  Northfield  (Vt.)  1918A- 
943.  (Annotated.) 

(2)     Questions  for  Jury. 

22.  Conducting  Excessive  Current  into 
Building — Defective  Wiring — Presumption 
of  Negligence.  Where  it  appears  that  a 
high  tension  wire  was  in  close  proximity 
to  a  low  tension  wire  used  for  the  light- 
ing of  buildings,  that  the  transformer  by 
which  the  current  was  stepped  down  was 
not  grounded,  and  that  the  buidings  were 
not  equipped  with  cut-offs,  the  fact  that 
a  high  tension  current  is  carried  into  a 
building  by  a  branch  of  a  tree  blowing 
over  the  wires,  causing  the  destruction  of 
the  building,  makes  a  case  for  the  ,iury  as 
to  the  liability  of  the  electric  company. 
Vandry  v.  Quebec  R.,  etc.  Co.  (Can.) 
1917C-843.  (Annotated.) 

23.  Failure  to  Inspect.  In  an  action  for 
electrocution  of  plaintiff's  intestate,  the 
question  whether  the  defendant  company 
was  negligent  in  not  inspecting  the  wir- 
ing or  in  failing  to  turn  off  its  current 
from    the    building,    held    for    the    jury. 


Smith's  Admx.  v.  Middlesboro  Electric  Co. 
(Ky.)  1917A-1164. 

(3)     Instructions. 

24.  Definition  of  Negligence.  In  an  ac- 
tion for  the  electrocution  of  plaintiff's  in- 
testate, an  instruction,  defining  negligence 
and  ordinary  care  as  applied  to  the  con- 
tributory negligence  of  the  intestate,  is 
not  error,  where  the  jury  was  charged  that 
defendant  was  bound  to  exercise  the  high- 
est degree  of  care.  Smith's  Admx.  v. 
Middlesboro  Electric  Co.  (Ky.)  1917A- 
1164. 

3.     CONTROL     OF     PUBLIC     SERVICE 
COMMISSION. 

25.  Vt.  Acts  1908,  No.  116,  §  13,  provid- 
ing that  whenever  it  is  necessary  to  meet 
the  service  requirements  of  a  public  ser- 
vice corporation,  such  as  a  lightrbg  com- 
pany, that  it  should  cross  another's  land 
with  wires,  etc.,  and  it  cannot  agree  with 
the  owner  as  to  questions  of  necessity  or 
compensation,  it  may  petition  the  Public 
Service  Commission,  which  shall,  upon  due 
notice  to  all  parties  in  interest,  determine 
such  questions  and  render  a  judgment, 
which  shall  be  final,  except  as  an  appeal 
is  allowed  to  the  supreme  court,  is  not 
unconstitutional  for  empowering  the  com- 
mission to  render  "judgment"  on  the 
ground  that  it  is  an  administrative  body; 
the  word  being  used  in  a  comprehensive 
sense  which  will  include  the  findings  and 
determination  of  such  a  body.  George  t. 
Consolidated  Lighting  Co.  (Vt.)  1916C-416. 

(Annotated.) 

26.  Certificate  of  Necessity — Extension 
of  Electrical  Plant.  It  is  provided  by  sec- 
tion 48a  of  said  Idaho  Laws  1913,  *c.  61. 
that  no  electrical  corporation  shall  "hence- 
forth" begin  the  construction  of  an  elec- 
trical plant,  etc.,  without  having  first  ob- 
tained a  certificate  of  convenience  and 
necessity  from  the  commission;  and  a  pub- 
lic utility  corporation  cannot  slip  in  be- 
tween the  passage  and  approval  of  such 
act  and  its  going  into  effect  and  procure 
an  ordinance  that  would  deprive  the  state 
of  its  right  to  regulate  it  in  its  operations 
under  the  police  power  of  the  state,  espe- 
cially where  such  corporation  had  not 
begun  actual  construction  work,  and  was 
not  prosecuting  such  work  in  good  faith 
and  uninterruptedly  and  with  reasonable 
diligence  in  proportion  to  the  magnitude 
of  the  undertaking,  as  provided  by  section 
48b  of  said  act;  for  under  the  facts  of  this 
case  the  plaintiffs  had  not  begun  actual 
construction  work  on  their  system  on 
either  of  said  cities.  Idaho  Power  etc.  Co. 
V.  Blomquist  (Idaho)  1916E-282. 

27.  It  was  not  the  intention  of  the  legis- 
lature, under  the  provisions  of  section  48b, 
Idaho  Laws  1913,  c.  61,  to  permit  such  cor- 
porations to  extend  their  lines  into  tern- 


ELEVATORS— EMANCIPATION. 


811 


tory  already  occupied  by  a  similar  utility 
corporation,  without  first  securing  a  cer- 
tificate of  convenience  and  necessity  from 
said  commission.  Idaho  Power,  etc.  Co.  v. 
Blomquist   (Idaho)   1916E-282. 

28.  The  last  proviso  of  section  48a, 
Idaho  Laws  1913,  c.  61,  provides  that 
power  companies  may,  without  such  cer- 
tificate, increase  the  capacity  of  existing 
plants,  or  develop  new  generating  plants 
and  market  the  product  thereof.  That 
proviso  must  not  be  so  construed  as  to 
nullify  the  clear  object  and  purpose  of 
said  act.  If  construed  to  give  such  cor- 
porations the  power  to  establish  new 
plants  and  lines  and  enter  into  new  fields 
for  the  sale  of  their  products,  then  the 
main  object  and  purpose  of  said  act  would 
be  nullified  and  defeated;  and  if  that  pro- 
viso be  construed  in  that  way,  it  must  be 
held  as  nugatory,  and  be  disregarded. 
Idaho  Power,  etc.  Co.  v.  Blomquist  (Idaho) 
1916E-282. 

29.  The  contract  right  given  to  a  pub- 
lic utility  corporation  by  ordinance  of  a 
city  does  not  come  within  the  contract 
clause  of  the  constitution  of  the  United 
States,  in  that  it  can  in  no  manner  be 
affected  by  the  police  power  of  the  state; 
and  when  a  corporation  acquires  a  fran- 
chise for  the  purpose  of  carrying  on  a  cor- 
porate Dusiness  within  a  city,  it  is  ac- 
cepted subject  to  the  police  power.  Idaho 
Power,  etc.  Co.  v.  Blomquist  (Idaho) 
1916E-282. 

30.  Under  the  law,  the  standard  by 
which  rates,  service,  etc.,  must  be  fixed 
clearly  contemplates  reasonable  rates,  ser- 
vice, etc.,  which  is  a  legislative  matter, 
and  cannot  be  delegated;  but  the  author- 
ity to  determine  what  is  a  reasonable  rate 
is  purely  administrative,  and  can  be  dele- 
gated and  was  delegated  to  the  commis- 
sion in  our  public  utilities  act  (Idaho 
Laws  1913,  c.  61),  and  the  several  acts  au- 
thorized to  be  performed  by  the  commis- 
sion may  be  reviewed  by  this  court  on  a 
writ  of  certiorari  or  review,  as  provided 
by  section  63a  of  said  act,  and  under  the 
provisions  of  that  section  all  orders  made 
by  the  commission  may  be  reviewed  by 
this  court,  and  this  court  has  the  author- 
ity to  determine  whether  such  orders  are 
unlawful.  Idaho  Power,  etc.  Co.  v.  Blom- 
quist (Idaho)   1916E-282. 

31.  Necessity  for  Extension  of  Public 
Utility — Power  of  Public  Service  Commis- 
sion. Under  the  state's  police  power,  the 
legislature  has  authority  to  authorize  said 
utilities  commission  to  determine  whether 
a  duplication  of  an  electrical  plant  is  re- 
quired in  a  town  or  city  for  the  conveni- 
ence and  necessity  of  the  inhabitants. 
Idaho  Power,  etc.  Go.  v.  Blomquist  (Idaho) 
1916E-282.  (Annotated.) 


Note. 

Power  of  public  service  commission  to 
prevent  maintenance  of  electric  wires  in 
close  proximity.     1918B-847. 

ELEVATORS. 

Elevator  not   a   vehicle,  see  Master  and 

Servant,  173. 
Injury  by  fall  into  shaft,  see  Negligence, 

118. 

1.  Change  of  Ownership.  Change  in 
ownership  of  an  office  building,  at  least 
where  practically  nominal,  as  from  indi- 
viduals to  a  corporation  in  which  they  are 
the  principal  stockholders,  between  the 
time  a  passenger  elevator  was  installed 
therein  and  the  time  it  broke,  cannot 
affect  the  question  of  liability  of  the 
owner  at  the  time  of  the  accident  to  a 
passenger  injured,  for  negligence  of  the 
manufacturer  in  not  making  a  proper  test 
of  the  part  which  broke.  Dibbert  v.  Metro- 
politan Investment  Co.  (Wis.)  1916E'-924. 

2.  Owner  as  Carrier  of  Passengers.    The 

owner  of  an  elevator  in  an  office  building 
is,  to  all  intents  and  purposes,  a  common 
carrier,  and  his  liability  to  those  right- 
fully using  it  is  that  of  common  carrier 
to  passengers.  Dibbert  v.  Metropolitan 
Investment  Co.  (Wis.)  1916E-924. 

3.  Possibility  of  Discovery.  Evidence, 
in  a  passenger's  action  for  injury  from 
fall  of  an  elevator,  held  sufficient  for  a 
finding  that  application  of  a  known  test 
for  tensile  strength  would  have  disclosed 
a  latent  defect  in  a  bolt,  breaking  of  which 
caused  the  accident.  Dibbert  v.  Metro- 
politan Investment  Co.  (Wis.)   1916E-924. 

4.  Appliance  Purchased  from  Manufac- 
turer. A  carrier,  the  owner  of  an  ele- 
vator in  an  office  building,  is  responsible 
to  a  passenger,  injured  by  fall  of  the  ele- 
vator because  of  a  latent  defect,  for  negli- 
gence of  the  manufacturer  in  not  making 
a  proper  test  therefor,  which  would  have 
disclosed  it.  Dibbert  v.  Metropolitan  In- 
vestment Co.  (Wis.)  1916E-924. 

(Annotated.) 

5.  That  an  elevator  in  an  office  building 
had  been  in  use  20  years  before  it  broke, 
injuring  a  passenger,  through  a  latent  de- 
fect existing  when  it  was  installed,  does 
not  affect  the  question  of  negligence,  and 
liability  of  the  elevator  owner  therefor,  of 
the  manufacturer  in  not  making  a  test 
wnich  would  have  disclosed  it.  Dibbert 
V.  Metropolitan  Investment  Co.  (Wis.) 
1916E-924.  (Annotated.) 

ELOIGNMENT. 
Of  encumbered  goods,  see  Liens,  3,  5. 

EMANCIPATION. 
See  Parent  and  Child,  4. 


312 


DIGEST. 

1916C5— 1918B. 


EMBEZZIjEMENT. 


1.  Definition  and  Elements  of  Offense. 

2.  Trial. 

a.  Jndietment  and  Information. 

b.  Evidence. 

(1)  Admissibilitj. 

(2)  Sufficiency. 

3.  Effect  of  Restoration. 

Fine  or   compensation,  see  Sctntence  and 

Punishment,  6. 
Form  of  verdict,  see  Verdicts,  8. 

1.     DEFINITION   AND  ELEMENTS  OF 
OFFENSE. 

1.  The  crime  of  embezzlement  may  be 
committed  by  a  fraudulent  failure  to  ac- 
count for  funds,  as  well  as  by  physical  con- 
fiscation. State  V.  Bickford  (N.  Dak.) 
1916D-140. 

2.  It  is  the  desigpo  and  policy  of  section 
12876,  Ohio  General  Code  and  kindred 
statutes  to  prevent  public  officers  and 
agents  from  using  public  funds  in  their 
possession  or  under  their  control,  in  any 
manner  or  for  any  purpose  not  expressly 
authorized  by  law.  State  v.  Baxter  (Ohio) 
1916C-60.  (Annotated.) 

2.     TRIAL. 

a.     Indictment  and  Information. 

8.  Section  9205,  N.  Dak.  Rev.  Codes 
1905,  describes  but  one  general  crime  of 
embezzlement,  which  may  be  committed 
in  different  ways,  and  the  same  may  be 
charged  in  different  counts  alleging  the 
various  ways  by  which  the  same  was  ac- 
complished. State  V.  Bickford  (N.  Dak.) 
1916D-140. 

4.  Duplicity.  An  indictment  charging 
defendant,  the  cashier  of  a  bank,  with  em- 
bezzling money  belonging  to  the  bank,  at 
divers  times,  "beginning  with  the  said 
27th  April.  1906,  and  ending  with  the  said 
day  of  July,  1909,"  stating  the  aggre- 
gate amount  of  such  various  sums,  charges 
but  a  single  act  of  embezzlement,  and  does 
not  contravene  section  5,  c.  158,  W.  Va. 
Code  1913.  State  v.  Wetzel  (W.  Va.) 
1918A-1074. 

5.  By  Executor.  An  indictment  char- 
ging that  defendant,  acting  as  an  executor 
of  a  person  named,  and  having  in  his  pos- 
session certain  moneys  belonging  to  the 
estate,  feloniously  withheld  and  appropri- 
ated them  to  his  own  use,  is  sufficient. 
People  V.  Gibson  (N.  Y.)  1918B-o09. 

b.     Evidence. 
(1)     Admissibility. 

6.  Other  Crimes.  In  a  trial  for  embez- 
zlement, it  is  proper  to  admit  evidence 
tending  to  prove  that  defendant,  the  cash- 
ier of  a  bank,  forged  certain  notes  for  the 
purpose  of  falsifying  the  bank's  accounts. 


Such  evidence  is  admissible  on  the  ques- 
tion of  intent  to  embezzle.  State  v.  Wet- 
«el  (W.  Va.)  1918A-1074. 

7.  By  Executor — ^Revocation  of  Letters. 
In  a  prosecution  for  larceny  of  estate 
moneys  by  the  executor,  the  papers  on 
which  his  letters  were  revoked  should  not 
have  been  received  over  his  ob.iection. 
People  T.  Gibson  (N.  Y.)  1918B-509. 

(2)     Sufficiency. 

8.  Variance  as  to  Amount.  It  is  not 
necessary  that  the  exact  sum  embezzled 
should  be  alleged,  nor  is  it  necessary  to 
prove  the  exact  sum  as  charged.  State  ▼. 
Bickford  (N.  Dak.)   1916D-140. 

9.  Aggregation  of  Items.  Where  the 
evidence  shows  a  cumulation  of  pecula- 
tions, the  aggregate  misappropriation  may 
be  treated  as  one  crime,  and  all  the  pecu- 
lations as  parts  of  the  one  offense,  and  the 
aggregate  shortage  proven  may  be  more 
or  less  than  the  sum  stated  in  the  infor- 
mation. State  V.  Bickford  (N.  Dak.) 
1916D-140. 

10.  Evidence  Sufficient.  Evidence  ex- 
amined and  held  sufficient  to  justify  a 
conviction  of  the  crime  of  embezzlement, 
under  sections  9204,  9205,  N.  Dak.  Rev. 
Codes  1905.  State  v.  Bickford  (N.  Dak.) 
1916D-140. 

3.     EFFECT   OF  RESTORATION. 

11.  Effect  of  Restoration.  The  crime  of 
embezzlement  by  a  public  officer  does  not 
merely  consist  in  failing  to  turn  over  all 
moneys  to  the  state  at  the  time  of  the  re- 
linquishment of  his  office,  but  in  having 
fraudulently  converted  money  or  securi- 
ties while  in  that  office.  The  mere  fact, 
therefore,  that  a  friend  may  come  to  one's 
rescue,  and  furnish  money  sufficient  to 
make  good  a  shortage  on  a  final  account- 
ing, does  not  in  any  way  negative  the  fact 
that,  prior  to  such  final  accounting,  money 
has  been  fraudulently  converted, — that  is 
to  say,  embezzled.  State  v.  Bickford 
(N.  Dak.)   1916D-140. 

12.  Restoration  as  Defense.  The  ac- 
cused was  state  superintendent  of  banks. 
He  took  $37,000,  of  the  funds  that  came 
into  his  custody  by  virtue  of  his  office,  to 
New  York  City,  and  used  the  money  there 
to  redeem  his  collateral  securities  which 
he  had  pledged  for  his  private  debt.  Some 
weeks  later,  before  he  was  called  to  ac- 
count for  the  money  and  before  he  was 
indicted  for  its  unlawful  conversion  to  his 
own  use,  he  negotiated  the  securities 
which  he  had  thus  obtained,  for  money 
with  which  he  restored  to  the  funds  the 
$37,000,  with  which  he  paid  his  debt  in 
New  York.  Held,  this  was  embezzlement, 
in  violation  of  section  12876,  Ohio  General 
Code.     State  v.  Baxter  (Ohio)  1916C-60. 

(Annotated.) 


EMINENT  DOMAIN. 


313 


13.  The  fact  that  he  returned  money  of 
equal  amount  to  the  trust  fund,  before  his 
secret  appropriation  of  it  became  known, 
was  no  defense.  State  v.  Baxter  (Ohio) 
1916C-60.  (Annotated.) 

Note. 

Restoration  of  property  or  settlement  or 
oflfer  to  settle  with  owner  as  defense  to 
prosecution  for  embezzlement  or  larceny. 
1916C-66.     • 

EMINENT  DOMAIN. 

1.  In  General,  313. 

2.  Who  may  Exercise  Power,  313. 

a.  De  Facto  Corporation,  313. 

3.  Uses  for  Which  Property  may  be  Taken, 

313. 

a.  In  General,  313. 

b.  Water  Supply,  314. 

c.  Temporary  Highway,  314. 

d.  New  Public  Use,  314. 

4.  Property    Which    may    be    Taken    and 

Title  Acquired,  315. 

5.  What  Constitutes  Taking  of  Property, 

316. 

6.  Compensation,  316. 

a.  In  General,  316. 

b.  Measure  and  Elements  of  Compen- 

sation, 316. 

(1)  In  General,  316. 

(2)  Where    Land    is    Taken    for 

Railroad,  317. 

(3)  Improvements  by  Condemnor, 

317. 

(4)  Benefits,  317. 

(5)  Fixtures,  317. 

(6)  Damages  to  Personalty.  317. 

(7)  Loss  of  Profits,  318. 

c.  Who  Entitled  to  Compensation,  318. 

d.  Action  for  Compensation,  318. 

e.  Waiver  of  Compensation,  318. 

7.  Condemnation  Proceedings,  319. 

a.  In  General,  319. 

b.  Notice  to  Owner,  319. 

«.  Eerort  of  Commissioners,  319. 
a.  Pleadine,  320. 

e.  Evidence,  321. 

f.  Instructions,  322. 

g.  Discontinuance  of  Proceedings,  322. 
h.  Costs,  323. 

i.  Judgment  on  Award,  323. 
j.  Enforcement  of  Award,  323. 
k.  Review  of  Proceedings,  323. 

8.  Reversion  of  Condemned  Land,  325. 

9.  Proceedings  Before  Public  Service  Com- 

missions. 325. 

Claim  for  improvements  on  land  aban- 
doned by  condemnor,  see  Improve-, 
ments,  1. 

Proceeds  of  award  as  covered  by  mortgage 
of  land,  see  Mortgages  and  Dee<&  of 
Trust,  15. 

1.     IN  GENERAL. ' 

1.  Nature  of  Eight.  "Eminent  domain" 
is  a  right  inherent  in  all  sovereignties; 
it  is  the  right  of  a  nation  or  the  state,  or 
of  those  to  whom  the  power  has  been  fully 
delegated,    to    condemn    private    property 


for  public  nse  and  to  appropriate  the 
ownership  or  possession  of  such  property 
for  such  use  upon  paying  due  compensa- 
tion to  be  ascertained  according  to  law. 
Western  Union  Tel.  Co.  v.  Louisville,  etc. 
R.  Co.  (111.)  1917B-670. 
^  2.  Where  it  is  provided  in  the  constitu- 
tion in  express  terms  for  what  purposes 
the  right  of  eminent  domain  may  be  exer- 
cised, and  public  uses  are  defined  therein, 
such  provision  is  the  expression  of  the 
sovereign  will,  and  grants  the  right  as 
etteetually  as  if  expressed  in  a  legislative 
act,  and  can  be  enforced  when  such  grant 
is  supplemented  by  an  act  of  the  legisla- 
ture providing  the  procedure  for  the  exer- 
cise of  such  right.  Backwell  Lumber  Co. 
T.  Empire  Mill  Co.  (Idaho)  1918A-189. 

3.  Relation  of  Parties.  "Condemnation" 
is  an  enforced  sale,  and  the  condemnor 
■tands  toward  the  owner  aa  buyer  toward 
seller.  Jackson  t.  State  (N.  Y.)  1916C- 
779. 

Note. 

Conditional  condemnation  of  property. 
1917C-631. 

2.     WHO  MAY  EXERCISE  POv^TEE. 
a.    De  Facto  Corporation. 

4.  That  a  telegraph  company  has  been 
organized  in  an  unlawful  manner  or  for 
an  unlawful  purpose  cannot  be  considered 
in  a  proceeding  by  it  to  condemn  land  for 
a  right  of  way.  Western  Union  Tel.  Co. 
v.  Louisville,  etc.  R.  Co.  (HI.)  1917B-670. 

3.     USES     FOR      WHICH     PROPERTY 
MAY  BE  TAKEN. 

a.    In  General. 

5.  Origin    and    Scope    of    Power.    The 

only  application  of  the  doctrine  of  emi- 
nent domain  at  common  law  was  the  exer- 
cise by  the  sovereign  of  the  prerogative 
right  to  take  and  enter  upon  lands  in  the 
defense  of  the  realm.  George  v.  Consoli- 
dated Lighting  Co.  (Vt.)  1916C-416. 

6.  Effect  of  Constitutional  Declaration 
of  Purposes.  Section  14  of  article  1  of  the 
Idaho  state  constitution  declares  for  what 
purposes  the  power  of  eminent  domain 
may  be  exercised,  and  the  legislature  can- 
not make  the  provisions  of  that  section 
any  more  effective  by  enacting  them  into 
statute  law.  Blackwell  Lumber  Co.  v. 
Empire  Mill  Co.  (Idaho)   1918A-189. 

7.  Development  of  Resources  of  State. 
Under  the  provisions  of  said  art.  1,  Idaho 
Const,  section  14,  the  right  of  eminent 
domain  is  permitted  on  the  theory  of  a 
public  use  for  the  "complete  development 
of  the  material  resources  of  the  state," 
even  where  the  public  may  have  no  direct 
interest  in  the  exercise  of  the  right  of 
eminent  domain,  and  the  main  end  of 
which  is  private  gain,  and  where  the  bene- 
fit to  the  people  at  large  could  result  in- 
directly and  incidentally  only  from  the  in- 


314 


DIGEST. 

19160— 1918B. 


crease  of  wealth  and  the  development  of 
those  material  resources.  Blaekwell  Lum- 
ber Co.  V.  Empire  Mill  Co.  (Idaho)  1918A- 
189. 

b.     Water  Supply. 

8.  Power  to  Condemn  Water.  A  rail- 
road company,  chartered  under  the  general 
railroad  laws  of  the  state,  cannot,  in  the 
exercise  of  its  right  of  eminent  domain, 
condemn  for  corporate  purposes  the  waters 
of  a  stream  over  which  it  has  constructed 
its  roadbed  on  a  right  of  way  acquired  by 
condemnation;  such  right  not  being  con- 
ferred, either  by  Pa.  Act  Feb.  19,  1849 
(P.  L.  79),  or  by  Act  April  9,  1856  (P.  L. 
288.)  Connellsville,  etc.  R.  Co.  v.  Markle- 
ton  Hotel  Co.  (Pa.)  1916E-1213. 

(Annotated.) 

c.     Temporary  Highway. 

9.  Temporary  Logging  Boad.  It  is  held 
that,  where  a  temporary  logging  road  is 
necessary  to  the  complete  development  of 
the  material  resources  of  the  state,  the 
necessary  use  of  land  for  a  right  of  way 
is  a  "public  use,"  and  may  be  acquired  as 
provided  by  the  statute.  Blackwell  Lum- 
ber Co.  V.  Empire  Mill  Co.  (Idaho)  1918A- 
189.  (Annotated.) 

d.    New  Public  Use. 

10.  Conflicting  Locations.  In  condem- 
nation proceedings  where  a  telegraph  com- 
pany and  a  railway  company  sought  to 
locate  a  line  over  the  same  ground,  the 
one  who  first  located  the  line  had  the  pref- 
erence. "Western  Union  Tel.  Co.  v.  Louis- 
ville, etc.  R.  Co.  (HI.)  1917B-670. 

11.  Prior  Public  Use.  In  a  proceeding 
by  a  telegraph  company  to  condemn  an 
easement  for  its  lines  along  the  right  of 
way  of  a  railroad  company,  under  Hurd's 
111.  Rev.  St.  1913,  c.  134,  conferring  the 
right  of  eminent  domain  upon  telegraph 
companies,  the  railroad  company  cannot 
contend  that  petitioner  is  seeking  to  con- 
demn property  already  occupied  and  sub- 
jected to  the  same  use,  where  the  only 
prior  use  for  telegraph  purposes  consisted 
of  a  single  wire  strung  on  poles  not  owned 
by  the  railroad  company  and  supplied  by 
current  not  furnished  by  it;  the  space 
occupied  by  the  wire  not  being  involved. 
Western  Union  Tel.  Co.  t.  Louisville,  etc. 
R.  Co.  (111.)  1917B-670. 

12.  Condemnation  by  Telegraph  Com- 
pany— Taking  of  Railroad  Right  of  Way 
— Inconsistency  of  Use.  Under  Burns' 
Ind.  Ann.  St.  1914,  §  929,  regulating  the 
matters  of  entry,  survey,  effort  to  pur- 
chase, and  title  taken  in  the  exercise  of 
the  power  of  eminent  domain,  and  section 
5770  providing  that  telegraph  companies 
may  acquire  such  rights  of  way  as  may  be 
necessary  for  their  purposes  under  the 
writ  of  assessment  of  damages,  the  right 
of   a   telegraph    company   to   condemn   by 


writ  of  assessment  a  right  of  way  for 
poles  and  wires  along  defendant  railroad's 
right  of  way  depends  upon  the  degree  of 
interference  which  such  poles  and  wires 
will  cause  in  the  railroad  use,  since,  al- 
though lands  once  condemned  to  public 
use  cannot  be  subsequently  condemned  for 
a  second  public  use  inconsistent  with  the 
former,  which  would  destroy  it,  unless 
there  is  a  statute  expressly  conferring 
such  right,  nevertheless,  under  a  right  to 
condemn  conferred  by  general  statute,  a 
second  appropriation  of  land  already  de- 
voted to  public  use  may  be  had  where  the 
subsequent  use  will  not  be  too  inconsistent 
with  the  former,  so  that  the  interference 
therewith  may  be  compensated  in  dam- 
ages; Western  Union  "Tel.  Co.  v.  Louis- 
ville, etc.  R.  Co.  (Ina.)  1917B-705. 

(Annotated.) 

13.  Ala.  Code  1907,  §  3867,  providing 
that  property  already  devoted  to  public 
use  shall  not  be  taken  for  a  different  char- 
acter of  use,  unless  an  actual  necessity  for 
the  specific  land  or  portion  thereof  shall 
be  alleged  and  proven,  does  not  authorize 
a  telegraph  company  to  condemn  an  ease- 
ment for  its  lines  along  the  unused  por- 
tion of  a  railroad  right  of  way,  merely 
because  it  is  more  convenient  to  do  so,  or 
because  the  easement  can  be  secured  at 
less  cost,  since  "actual,"  as  used  in  the 
statute,  means  real,  as  distinguished  from 
apparent,  constructive,  or  imputed,  and 
"specific"  means  tending  to  specify,  or  to 
make  particular,  definite,  limited  or  pre- 
cise. Louisville,  etc.  R.  Co.  v.  Western 
Union  Tel.  Co.  (Ala.)  .1917B-696. 

(Annotated.) 

14.  Ala.  Const.  1901,  §  23,  providing 
that  the  exercise  of  the  right  of  eminent 
domain  shall  never  be  abridged  or  so  con- 
strued as  to  prevent  the  legislature  from 
taking  the  property  of  corporations  and 
subjecting  them  to  public  use  in  the  same 
manner  as  the  property  of  individuals, 
does  not  prevent  the  legislature  from 
exempting  property  already  devoted  to 
public  use  from  condemnation  except  in 
cases  of  actual  necessity,  as  it  did  by  Ala. 
Code  1907,  §  3867.  Louisville,  etc.  R.  Co. 
V.  Western  Union  TeL  Co.  (Ala.)  1917B- 
696.  (Annotated.) 

15.  Ala.  Code  1907,  §  5817,  which  granted 
rights  of  way  for  telegraph  lines  along  the 
margins  of  public  highways,  does  not,  in 
connection  with  Ala.  Const.  1901,  §  242, 
declaring  railroads  not  constructed  and 
used  exclusively  for  private  purposes  to  be 
public  highways,  give  a  telegraph  com- 
pany an  easement  along  a  railroad  right 
of  way,  since  the  constitutional  section 
was  only  intended  to  make  railroads  high- 
ways in  a  limited  sense  and  subject  them 
to  state  and  federal  control,  not  to  deprive 
them  of  their  private  ownership  of  their 
rights  of  wav.  Louisville,  etc.  R.  Co.  v. 
Western  Union  Tel.  Co.  (Ala.)  1917B-696. 

(Annotated.) 


EMINENT  DOMAIN. 


315 


16.  Taking  Railroad  Right  of  Way. 
Ala.  Code  1896,  §§  1244,  1246,  which  gave 
any  telegraph  company  the  right  to  con- 
struct its  lines  along  a  railroad  right  of 
way,  and  authorized  it  to  condemn  an  ease- 
ment for  that  purpose,  were  omitted  from 
the  Code  of  1907  and  thereby  repealed. 
An  act  approved  in  1903  (Laws  1903,  p. 
374),  now  codified  in  part  as  Code  1907, 
§  3867,  provided  that,  if  the  property 
sought  to  be  condemned  had  already  been 
devoted  to  public  use,  it  should  not  be 
taken  for  another  and  different  character 
of  public  use,  unless  an  actual  necessity 
for  the  specific  land  shall  be  shown,  and 
unless  it  be  shown  that  the  different  use 
will  not  materially  interfere  with  the  pub- 
lic use  to  which  such  property  is  already 
devoted.  It  is  held  that  these  changes  in 
the  statutes  indicated  an  intention  to  limit 
the  right  of  a  telegraph  company  to  con- 
demn an  easement  along  a  railroad  right 
of  way  to  the  cases  provided  for  by  Code 
1907,  §  3867.  Louisville,  etc.  R.  "Co.  v. 
Western  Union  Tel.  Co.  (Ala.)  1917B-696. 

(Annotated.) 

i.    PROPERTY       WHICH       MAY      BE 
TAKEN,  AND  TITLE  ACQUIRED. 

17.  In  a  proceeding  by  a  telegraph 
company  to  condemn  an  easement  for  its 
lines  over  the  right  of  way  of  a  railway 
company  after  the  termination  of  a  lease 
therefor,  a  finding  that  one  of  the  wires 
strung  during  the  life  of  the  lease  was  the 
property  of  the  railway  company,  and  that 
therefore  the  railway  operated  a  line  in 
the  identical  place  sought  to  be  condemned, 
was  erroneous,  where  under  a  contract  be- 
tween the  telegraph  company  and  the  rail- 
way company  the  former  strung  the  wire 
and  the  latter  paid  a  certain  price  for  its 
use.  Western  Union  Tel.  Co.  v.  Louisville, 
etc.  R.  Co.  (111.)   1917B-670. 

18.  Where  a  railway  company  has  thus 
by  condemnation  become  vested  with  an 
estate  in  fee  simple  absolute  in  the  land 
taken  for  public  purposes,  a  citizen,  though 
an    abutting    and    former    owner,    has    no 

f  right  to  interfere  or  oppose  such  railway 
companv  in  the  exercise  of  any  rights  ac- 
quired in  condemnation.  Hays  v.  Walnut 
Creek  Oil  Co.   (W.  Va.)    1918A-802. 

(Annotated.) 

19.  Whether  the  granting  of  such  an  es- 
tate in  fee  simple  absolute  to  a  railway 
company  or  other  public  service  corpora- 
tion is  good  public  policy,  is  a  legislative, 
not  a  judicial,  question,  and  one  with 
which  the  courts  have  nothing  to  do.  Hays 
V.  Walnut  Creek  Oil  Co.  (W.  Va.)  1918A- 
802.  (Annotated.) 

20.  By  plain  terms  of  the  statute,  sec- 
tions 18  and  22,  c.  42,  W.  Va.  Code  1891, 
and  construed  in  the  light  of  correct 
legal  princinles  and  the  weight  and  author- 
ity of  adjudged  cases;  a  railway  company 


in  this  state,  by  condemnation  and  com- 
pjiance  with  all  the  provisions  of  the  law, 
takes  an  estate  in  fee  simple  absolute  in 
the  land  taken,  including  the  oil  and  gas 
and  other  minerals  in  and  under  the  same. 
Hays  V.  Walnut  Creek  Oil  Co.  (W.  Va.) 
1918A-802.  (Annotated.) 

21.  Nature  of  Interest  Acciuired.  In  the 
exercise  of  its  power  of  eminent  domain 
the  state,  through  its  legislature,  except 
as  limited  by  the  constitution,  may  take 
or  authorize  a  public  service  corporation 
to  take,  for  public  purposes,  any  estate 
in  land  dictated  by  its  sovereign  will. 
Hays  V.  Walnut  Creek  Oil  Co.  (W.  Va.) 
1918A-802.  (Annotated.) 

22.  Electric  Lighting  Plant.  Under  the 
Wis.  public  utilities  statute  (St.  1915, 
§  1797ml,  Bubd.  5,  and  sections  1797m76  to 
1797m85),  as  to  acquisition  by  a  munici- 
pality of  a  public  utility,  etc.,  providing 
that  a  public  utility  by  acceptance  of  au 
"indeterminate  permit"  shall  be  deemed  to 
have  consented  to  a  future  "purchase"  of 
its  property  by  the  municipality  in  which 
its  property  is,  for  the  compensation  and 
under  the  terms  and  conditions  determined 
by  the  commission,  and  shall  thereby  be 
deemed  to  have  waived  the  right  of  re- 
quiring the  necessity  of  such  taking  to  be 
established  by  the  verdict  of  a  jury,  a 
proceeding  under  section  1797m79,  subd.  4, 
by  a  municipality  to  acquire  the  property 
of  an  electric  light  company  operating  un- 
der an  indeterminate  permit,  although 
termed  a  "purchase,"  is  in  the  nature  of  a 
condemnation  proceeding,  since  the  accept- 
ance by  the  utility  of  an  indeterminate 
permit  amounts  only  to  a  waiver  by  it  of  a 
verdict  of  necessity  and  a  consent  that  its 
property  may  be  acquired  as  provided  by 
the  act,  but  is  not  a  contractual  act.  Con- 
nell  V.  Kaukauna  (Wis.)  1918A-247. 

(Annotated.) 

23.  When  Title  Passes.  Until  the  report 
of  the  examiners  in  condemnation  by 
county  commissioners  under  Md.  Acts  1904, 
c.  583,  of  land  for  widening  a  road,  is 
ratified  by  the  commissioners,  as  thereby 
required,  they  do  not  acquire  title  to  or 
interest  in  the  land,  and  therefore  in  con- 
structing the  road  on  it  are  wrongdoers. 
Pettit  V.  County  Commissioners  (Md.) 
1916C-35. 

24.  Taking  Easement  in  Right  of  Way. 
Act  Cong.  July  24,  1866,  c.  230,  §§  1. 
4,  14  Stat.  221  (7  Fed.  St.  Ann.  205),  giv- 
ing telegraph  companies  a  right  to  con- 
struct lines  over  the  public  domain  and 
across  navigable  streams  upon  filing  their 
written  acceptance  of  the  act  with  the 
postmaster  general,  does  not  constitute 
such  an  assumption  by  Congress  of  all 
power  over  telegraph  lines  engaged  in  in- 
terstate commerce  as  to  prevent  condemna- 
tion under  state  law  by  a  telegraph  com- 
pany of  an  easement  for  its  lines  over  the 
right    of    way    of    a    railroad    company. 


316 


DIGEST. 

1916C5— 1918B. 


Western  Union  Tel.  Co.  r.  Louisville,  etc. 
B.  Co.  (111.)  1917B-670.  (Annotated.) 

25.  A  telegraph  company  lawfully  organ- 
ized within  the  state  is  not  prevented  from 
condemning  an  easement  for  its  lines  over 
a  right  of  way  of  a  railroad  company  or- 
ganized within  the  state,  leased  to  another 
rsilroad  company  engaged  in  interstate 
commerce,  by  Const.  U.  S.  art.  1,  §  8  (8 
Fed.  St.  Ann.  363),  giving  Congress  power 
to  regulate  commerce  among  the  states. 
Western  Union  Tel.  Co.  r.  Louisville,  etc. 
E.  Co.  (111.)  1917B-670.  (Annotated.) 

26.  A  petition  for  condemnation  filed  by 
a  telegraph  company  to  condemn  an  ease- 
ment for  its  lines  along  the  right  of  way 
of  a  railway  company  under  Hurd's  11!. 
Bev.  St.  1913,  c.  134,  §§  1-3  (Eev.  St.  1874, 
c.  134,  §§  1-3),  conferring  the  right  of  emi- 
nent domain  upon  telegraph  companies,  is 
not  in  violation  of  Const.  U.  S.  Amend.  14, 
§  1  (9  Fed.  St.  Ann.  416)  and  amendment 
5  (9  Fed.  St.  Ann.  305),  or  to  Const  art. 
2,  §  2,  prohibiting  the  taking  or  damaging 
of  private  property  without  just  compensa- 
tion, since  the  object  of  the  condemnation 
proceedings  was  to  ascertain  legally  the 
compensation  to  which  the  railroad  com- 
pany would  be  entitled.  Western  Union 
Tel.  Co.  V.  Louisville,  etc.  E.  Co.  (111.) 
1917B-670.  (Annotated.) 

27.  Effect  on  Public  Service  Corporation. 
Under  Const.  N.  Y.  art.  1,  i  6,  declaring 
that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation, 
rights  based  on  restrictive  building  cove- 
nants are  property  rightg  which  cannot  be 
taken  for  a  public  use  without  just  com- 
pensation, and  which  make  direct  and 
compensational  damages  which  otherwise 
would  be  consequential  and  noncompensa- 
tional.  Flynn  v.  New  York,  etc.  E.  Co. 
(N.  Y.)  1918B-588.  (Annotated.) 

Notes. 

Power  of  telegraph  or  telephone  com- 
pany to  condemn  railroad  right  of  way 
nnder  state  statute.     1917B-689. 

Eight  of  railroad  company  to  condemn 
water  over  which  right  of  way  is  con- 
structed.    1916E-1215. 

Interest  in  land  acquired  by  condemna- 
tion as  easement  or  fee.     1918A-806. 

6.     WHAT  CONSTITUTES  TAKING  OF 
PEOPEETY. 

28.  The  exercise  of  such  sovereign 
power  as  the  laying  waste  of  one's  own 
country  to  compel  the  retreat  of  a  public 
enemy  or  the  taking  of  land  for  fortifica- 
tions, etc.,  is  not  an  application  of  the 
power  of  eminent  domain,  but  is  referable 
rather  to  the  war  power.  George  v.  Con- 
solidated   Lighting    Co.    (Vt.)    1916C-416. 


«.     COMPENSATION. 
a.     In  Qeneral. 


29.  Necessity  of  Paying  Compensation. 
The  constitution  and  statute  provide  that 
full  compensation  shall  be  paid  for  all 
lands  taken  for  a  public  use.  Blackwcll 
Lumber  Co.  v.  Empire  Mill  Co.  (Idaho) 
1918A-189. 

b.    Measure  and  Elements  of  Compensa- 
tion. 

(1)     In   General. 

30.  That  landowners'  injuries  resulting 
from  the  erection  of  a  bridge  were  not  of 
a  kind  for  which  a  common-law  action 
would  lie,  and  no  constitutional  provision 
entitled  them  to  compensation,  does  not 
preclude  the  state  from  awarding  com- 
pensation. Brackett  v.  Commonwealth 
(Mass.)   1918B-863. 

31.  Where  a  strip  through  the  middle  of 
a  farm  was  taken  to  secure  land  for  the 
storage  of  a  city  water  supply,  au  offer 
by  the  city  to  grant  the  owner  and  his 
successors  the  perpetual  right  to  water 
their  stock  in  the  stream  flowing  through 
the  land  taken  is  not  available  to  reduce 
damages;  the  continuance  of  the  privilege 
being  precarious  under  Md.  Acts  1914,  c. 
810,  vesting  power  in  the  state  board  of 
health  to  prevent  the  pollution  of  waters 
to  protect  the  public  health.  Brack  v.  Bal- 
timore (Md.)   1916B-880. 

32.  Measure  of  Compensation.  In  pro- 
ceedings to  condemn  land,  the  measure  of 
compensation  is  the  value  of  the  land  con- 
demned, together  with  a  due  allowance  of 
consequential  damages  as  to  the  remain- 
der; the  amount  allowed  for  the  property 
taken  being  based  on  its  actual  market 
value,  which  is  estimated  with  reference 
to  all  uses  for  which  the  land  is  adapted, 
such  as  suitability  for  a  reservoir,  etc. 
Brack  v.  Baltimore  (Md.)   1916E-880. 

33.  Injury  to  Land  not  Taken.  Where 
a  right  of  way  for  the  erection  and  main- 
tenance of  towers,  poles,  and  wires  for 
the  transmission  of  electricity  is  con- 
demned, the  owner  may  recover  compensa- 
tion for  actual  depreciation  in  the  value 
of  his  remaining  land,  caused  by  the  pres- 
ence of  the  right  of  way;  but  mere  fears 
of  people  from  the  presence  of  the  right 
of  way  cannot  be  made  a  basis  on  which 
to  predicate  such  depreciation  or  aflfect  the 
amount  of  the  recovery.  Alabama  Power 
Co.  V.  Keystone  Lime  Co.  (Ala.)  1917C- 
878.  (Annotated.) 

34.  Compensation  for  Value  of  Mineral 
Eights.  Where  a  power  company  con- 
demned a  right  of  way  for  the  erection 
and  maintenance  of  instrumentalities  for 
the  transmission  of  electricity,  acquired 
only  the  surface,  and  any  mineral  inter- 


EMINENT  DOMAIN. 


317 


estfl  remained  in  the  owner,  the  owner  can 
only  recover  the  value  of  the  surface 
taken,  unaffected  by  the  value  of  mineral 
interests.  Alabama  Power  Co.  v.  Keystone 
Lime  Co.   (Ala.)    1917C-878. 

35.  Taking  of  Land.  Where  land  is 
taken  under  the  right  of  eminent  domain, 
the  owner  is  entitled  to  a.etual  value  of 
the  land  taken  and  to  the  direct  and  cer- 
tain damages  resulting  to  his  other  land. 
Alabama  Power  Co.  v.  Keystone  Lime  Co. 
(Ala.)   1917C-878. 

(2)     Where  Land  is  Taken  for  Eailroad. 

36.  Taking  of  Part  of  Tract.  The  meas- 
ure of  damages  for  property  taken  or  in- 
jured under  eminent  domain,  where  part 
of  the  tract  is  taken,  is  the  fair  market 
value  of  the  part  taken,  considering  it  in 
relation  to  the  entire  tract,  together  with 
such  other  direct  damages  as  result  to  the 
remainder  of  the  tract  by  reason  of  the 
situation  in  which  it  is  left  by  the  taking 
of  the  part  iu  question,  and  by  reason  of 
such  improvements,  fencing,  etc.,  as  may 
be  rendered  necessary  by  the  taking  of 
the  part,  in  the  establishment  of  new 
means  of  egress  and  ingress,  and  otherwise 
necessary  for  the  reasonable  enjoyment  of 
the  remainder  of  the  tract;  but  such  direct 
damages  shall  not  exceed  the  difference  be- 
tween the  fair  market  value  of  the  whole 
tract  immediately  before  the  taking  and 
the  fair  market  value  of  the  remainder  im- 
mediately after  the  taking.  Music  v.  Big 
Sandy,  etc.  R.  Co.  (Ky.)  1916E'-689. 

(3)     Improvements  by  Condemnor. 

37.  It  is  not  error  to  refuse  to  make  the 
petitioner  on  a  second  condemnation  pro- 
ceeding pay  the  added  value  of  the  land 
due  to  the  improvements  placed  thereon 
by  it  after  a  judgment  confirming  the  com- 
mispi  oners'  award  of  damages,  and  after 
its  payment  of  damages  and  entry,  and 
before  that  judgment  had  been  reviewed 
and  reversed  on  writ  of  error.  New  River, 
etc.  R.  Co.  v.  Honaker  (Va.)  1917C-132. 

(Annotated.) 

38.  Where  the  judgment  confirming  the 
commissioners'  award,  and  under  which 
the  railroad  paid  damages,  entered  and 
made  improvements,  was  not  void,  but 
voidable  merely  pending  a  writ  of  error 
and  reversal,  the  action  of  the  court  below 
in  refusing  to,  on  the  filing  of  a  second 
condemnation  proceeding,  make  the  rail- 
road pay  the  added  value  of  the  land  due 
to  the  improvements  does  not  deprive  the 
owners  of  their  property  without  due  pro- 
cess of  law,  in  violation  of  Const.  U.  S. 
art.  14.  §  1.  New  River,  etc.  Co.  v.  Hon- 
ak«r  (Va.)   1917C-132.  (Annotated.) 

Note. 
Right  to  compensation  in  condemnation 
proceedings  for    improvements   placed   on 


land  by  condemnor  with  authority  or  color 
thereof.     I917C-141. 

(4)     Benefits. 

39.  Indirect  Damages  and  Benefits.  In 
arriving  at  the  damages  from  taking  land 
by  a  railroad  indirect  or  consequential 
benefits  may  not  be  deducted  from  the  di- 
rect damages,  but  if  they  exceed  the  in- 
direct or  incidental  damages  resulting 
from  a  prudent  construction  and  operation 
of  the  railroad,  they  do  not  affect  the 
amount  of  the  recovery,  but  if  the  in- 
direct or  incidental  damages  resulting 
from  a  prudent  construction  and  operation 
of  the  railroad  do  exceed  the  consequen- 
tial benefits,  there  may  be  included  in  the 
recovery  such  excess  of  incidental  damages 
over  consequential  benefits.  Music  v.  Big 
Sandy,  etc.  R.  Co.  (Ky.)   1916E-689. 

40.  Setting  Off  Benefits.  Where,  in  con- 
demnation proceedings,  the  owner  of  the 
land  taken  demands  recovery  for  injuries 
to  his  remaining  land,  the  jury  must  set 
off  the  value  of  any  benefit  that  may  ac- 
crue to  the  remaining  land  against  any 
resulting  damages.  Alabama  Power  Co.  v. 
Keystone  Lime  Co.  (Ala.)  1917C-878. 

(5)     Fixtures. 

41.  Compensation  for  Fixtures.  The 
state  condemning  a  warehouse  for  the  use 
of  a  barge  canal  may  not  reject  the  ma- 
chinery therein  attached  as  fixtures  in 
computing  compensation,  where  there  was 
nothing  in  the  notice  of  appropriation  ex- 
cepting such  fixtures.  Jackson  v.  State 
(N.  Y.)   1916C-779.  (Annotated.) 

Note. 
Value  of  fixtures  as  element  of  damages 
sustained  by  appropriation  of  property  in 
eminent  domain  proceeding.     1916C-780. 

(6)     Damages  to  Personalty. 

42.  Items  of  Recovery — Cost  of  Remov- 
ing Personalty.  A  lessee  for  years  of  a 
parcel  of  land  condemned  for  a  public  use 
is  not  entitled  to  recover  for  loss  of  profits 
in  its  business  during  removal  of  its  stock 
of  goods,  nor  for  the  expense  of  the  re- 
moval of  the  goods  and  personal  property 
as  distinguished  from  fixtures,  from  the 
location,  condemned,  to  a  new  location, 
nor  for  the  depreciation  in  value  of  such 
personal  property  and  stock  caused  by  re- 
moval and  reinstallation,  and  is  entitled 
to  be  paid  the  reasonable  market  value"  of 
its  fixtures  affixed  to  the  premises  con- 
demned; but  where  the  party  condemning 
does  not  want  the  fixtures,  and  the  leasee 
elects  to  take  them,  the  damages  which 
the  party  condemning  must  pay  as  such 
value  should  be  reduced  to  the  extent  of 
the  reasonable  market  value  of  the  fix- 
tures as  they  stood  on  the  premises  con- 
demned diminished  by  the  necessity  of  im- 


318 


DIGEST. 

1916C— 1918B. 


mediate  removal  and  reinstallation  else- 
where. St.  Louis  V.  St.  Louis,  etc.  R.  Co, 
(Mo.)  1918B-881.  (Annotated.) 

Note. 
Recovery   of  damages  in   condemnation 
proceedings   for  injury   to  personal   prop- 
erty or  expense  of  removing  it  from  prem- 
ises.    1918B-886. 

(7)     Loss  of  Profits. 

43.  In  assessing  damages  to  a  leasehold 
interest  from  the  building  of  a  bridge 
near  by,  the  profits  of  a  lessee  from  his 
business  conducted  on  the  demised  prem- 
ises are  immaterial.  Brackett  v.  Com- 
monwealth (Mass.)  1918B-863. 

(Ajinotated.) 

Note. 
Loss  of  profits  or  injury  to  business  as 
element    of    damages    in    eminent    domain 
proceedings.     1918B-869. 

e.     Who  Entitled  to  Compensation. 

44.  Holders  of  Lien  Against  Property. 
Upon  the  making  of  an  award  in  con- 
demnation proceedings  each  bondholder 
under  a  trust  deed  of  the  property  ac- 
quired becomes  entitled  to  receive  his 
pro  rata  share  of  the  award.  Connell  v. 
Kaukauna  (Wis.)   1918A-247. 

45.  Estoppel  to  Object  to  Application  of 
Award.  Where  an  award  in  condemnation 
proceedings  was  paid  to  the  trustee  under 
a  trust  deed  of  the  condemned  property 
some  months  prior  to  the  maturity  of  the 
bonds  and  without  actual  notice  to  or  au- 
thority from  the  bondholders,  the  bond- 
holders are  not  bound  to  accept  such  un- 
authorized payment  to  the  trustee  as  pay- 
ment to  them,  because  thereafter  the 
municipality  spent  a  large  amount  in  bet- 
terments after  the  bondholders  had  notice 
of  the  facts  by  reason  of  default  in  pay- 
ment of  interest  on  their  bonds.  Connell 
▼.  Kaukauna  (Wis.)   1918A-247. 

d.     Action  for  Compensation. 

46.  Instructions.  In  an  action  for  com- 
pensation for  property  condemned  by  a 
water  company,  charge  that  the  jury 
should  simply  go  on  the  land  to  view  the 
ground  and  the  location  so  that  they 
might  intelligently  understand  the  evi- 
dence which  would  be  introduced  in 
court,  and  not  for  the  purpose  of  deciding 
the  case  from  what  thej'  saw  there,  or 
from  what  they  might  hear,  and  that  they 
should  not  use  what  they  saw  in  the  shape 
of  substantive  evidence  from  which  they 
should  find  the  damages,  but  in  order  to 
understand  the  evidence,  is  proper. 
Wadsworth   v.   Manufacturers'   Water   Co. 

(Pa.)   1917E-1099. 

47.  Effect  of  Purchase  of  Property.    In 

an  action  for  compensation  for  land  con- 
demned  by   a   water   company   as   author- 


ized by  section  34  of  Pa.  Act  April  29, 
1874  (P.  L.  73),  contemplating  that  the 
company  must  try  to  agree  with  the  owner 
upon  the  purchase  price  before  resorting 
to  condemnation  proceedings,  purchases 
from  an  owner  must  be  considered  in  sub- 
sequent legal  proceedings  for  lands 
needed  for  the  same  public  improvement, 
as  though  made  in  due  course  of  the  ex- 
ercise of  the  right  of  eminent  domain, 
and  not  as  separate  private  transactions. 
Wadsworth  v.  Manufacturers'  Water  Co. 
(Pa.)   1917E-1099. 

48.  Elements  of  Value.  In  an  action 
for  compensation  for  land  condemned  by 
a  water  company  for  a  public  improve- 
ment, expert  witnesses  in  estimating  the 
market  value  of  such  land  may  consider, 
as  an  element,  its  adaptability  for  the  par- 
ticular use  for  which  it  is  being  appro- 
priated. Wadsworth  v.  Manufacturers' 
Water  Co.  (Pa.)  1917E-1099. 

49.  Price  Paid  by  Condemnor  to  Others. 

Expert  witnesses  may  not  take  into  ac- 
count the  general  rise  or  fall  common  to 
all  property  consequent  upon  the  coming 
of  the  improvement  as  suggested  by  the 
prices  which  the  company  has  been 
obliged  to  pay  to  secure  other  lands. 
Wadsworth  v.  Manufacturers'  Water  Co. 
(Pa.)   1917E-1099.  (Annotated.) 

50.  Market  Price  as  Criterion.  The 
compensation  to  which  an  owner  is  entitled 
is  what  the  property  immediately  prior 
to  the  taking  would  have  produced  to  him 
in  the  open  market,  and  not  what  it 
might  be  worth  to  the  company  taking  it. 
Wadsworth  v.  Manufacturers'  Water  Co. 
(Pa.)  1917E-1099. 

51.  Sales  by  Defendant.  Where  expert 
witnesses  testified  for  plaintiff  as  to  the 
value  of  the  land  taken,  defendant's  ob- 
jection to  their  consideration  of  "any 
sales  that  were  made  to  the  defend- 
ant company"  is  properly  overruled,  where 
there  is  no  notice  or  intimation  that 
the  sales  in  question  were  in  fact  pur- 
chases by  the  defendant  after  the  lo- 
cation of  its  reservoir  or  subsequent  to  or 
in  the  course  of  actual  condemnation  pro- 
ceedings. Wadsworth  v.  Manufacturers' 
Water  Co.   (Pa.)   1917E-1099. 

(Annotated.) 

52.  Peculiar  Adaptability  of  Property. 
Where  the  only  evidence  in  an  owner's  ac- 
tion against  a  water  company  for  land 
condemned  by  it,  including  that  of  defend- 
ant's engineer,  showed  that  the  land  was 
especially  adapted  for  dam  purposes,  it 
is  not  error  to  permit  the  jury  to  con- 
sider that  fact  in  determining  its  value 
prior  to  the  taking.  Wadsworth  v.  Manu- 
facturers' Water  Co.   (Pa.)    1917E-1099. 

e.     Waiver  of  Compensation. 

53.  Waiver  of  Rights  as  to  Award. 
A    trustee    under    a    trust    deed    in    de- 


EMINENT  DOMAIN. 


319 


manding  the  balance  of  a  condemnation 
award  for  the  property  covered  by  the 
trust  deed,  which  balance  remained  after 
satisfying  a  first  lien  from  part  of  the 
award  retained  for  that  purpose,  does  not 
thereby  elect  a  remedy  or  waive  any  other 
rights  which  he  might  assert  as  repre- 
sentative of  the  bondholders  whose  claim 
had  not  been  satisfied;  he  being  entitled 
as  trustee  to  such  balance  in  any  event. 
Connell  v.  Kaukauna  (Wis.)   1918A-247. 

54.  Estoppel  to  Assert  Damage.  In 
such  case,  as  the  value  was  fixed  by  the 
assessors  and  not  the  corporation,  neither 
payment  of  taxes  nor  failure  to  claim  an 
abatement  estopped  the  corporation  from 
asserting  damage.  Brackett  v.  Common- 
wealth (Mass.)  1918B-863, 

55.  That  a  corporation  after  a  bridge 
was  built  near  its  realty  paid  the  same 
taxes  as  before,  is  not  an  admission  that 
the  building  of  the  bridge  did  not  damage 
its  property.  Brackett  v.  Commonwealth 
(Mass.)  1918B-863. 

7.    CONDEMNATION  PEOCEEDINGS. 
a.     In   General. 

56.  Requisites  of  Proceeding.  The  ques- 
tions of  necessity  for  condemning  land 
and  due  compensation  must  ultimately  be 
determined  by  an  impartial  tribunal  pro- 
ceeding on  due  notice  to  interested  par- 
ties and  hearing  before  deciding,  but 
not  acting  unreasonably  or  arbitrarily. 
George  v.  Consolidated  Lighting  Co.  (Vt.) 
1916C-416. 

57.  Delegation  to  Commission.  The 
question  of  the  necessity  for  taking  prop- 
erty by  eminent  domain  is  a  judicial  ques- 
tion which  must  be  determined  by  a  court 
or  some  quasi  judicial  tribunal  designated 
by  statute,  and  Vt.  Acts  1908,  No.  116, 
§  13,  providing  that  whenever  it  is  neces- 
sary, to  meet  the  reasonable  require- 
ments of  service  to  the  public,  that  any 
company,  such  as  a  lip;hting  company, 
should  cross  another's  lands  with  poles 
and  wires,  and  it  cannot  agree  with  the 
owner  as  to  the  matter  of  necessity  or  of 
compensation,  it  may  petition  the  Public 
Service  Commission,  which  shall  then, 
upon  due  notice  to  all  parties  in  interest, 
determine  the  question  of  necessity  and 
compensation,  and  render  a  judgment 
which  shall  be  final  except  as  an  appeal 
to  the  Supreme  Court  is  allowed,  is  not  un- 
constitutional for  authorizing  the  com- 
mission to  determine  the  questions  of 
neeessitv  and  compensation.  George  v. 
Consolidated  Lighting  Co.  (Vt.)  1916C- 
416.  (Annotated.) 

58.  Failure  to  Agree  on  Compensation — 
Showinsr  Sufficient.  In  a  proceeding  by  a 
telegraph  company  to  condemn  an  ease- 
ment for  its  lines  over  a  railway  right  of 
way,  an  offer  by  the  telegraph  company 
for  the  use  of  the  right  of  way  and  its 


refusal  by  the  railway  company  was  a 
sufficient  showing  of  the  failure  to  agree 
on  the  compensation.  \\'estern  Union  Tel. 
Co.  v.  Louisville,  etc.  R.  Co.  (111.)  1917B- 
670. 

b.     Notice  to  Owner. 

59.  In  such  case  the  consent  of  the 
owner  that  its  property  be  taken,  evi- 
denced by  the  acceptance  of  an  indeter- 
minate permit,  is  equivalent  to  notice  to 
the  owner  and  the  taking  is  valid  within 
Wis.  Const,  art.  11,  §  2,  providing  that 
"no  municipal  corporation  shall  take  pri- 
vate property  for  public  use  against  the 
consent  of  the  owner  without  the  neces- 
sity thereof  being  first  established  by  the 
verdict  of  a  jury.  Connell  v.  Kaukauna 
(Wis.)   1918A-247. 

60.  The  public  utilities  statute  (Wis.  St 
1915,  §  17&7ml,  subd.  5,  and  sections 
1797m76  to  1797m85),  as  to  taking  by  a 
municipal  corporation  of  property  of  a 
public  utility  operating  under  an  indeter- 
minate permit,  is  valid,  although  at  the 
time  no  notice  was  thereby  required  to  be 
given  to  lienholders.  Connell  v.  Kauk- 
auna (Wis.)  1918A-247. 

61.  Notice  to  Lienholders.  Nor  is  such 
proceeding  the  less  a  proceeding  in  the 
nature  of  a  condemnation  proceeding  be- 
cause there  is  no  provision  requiring  that 
notice  shall  be  given  to  lienholders,  and 
no  such  notice  is  given,  since  such  notice 
is  unnecessary  the  proceeding  being  one 
in  rem.  Connell  v.  Kaukauna  (Wis.) 
1918A-247. 

62.  Where  in  a  proceeding  by  a  munici- 
pality to  acquire  a  public  utility  under 
the  public  utilities  statute  (Wis.  St.  1915, 
§  1797ml,  subd.  5,  and  sections  1797m76 
to  1797m85),  formal  notice  was  given  to 
the  public  utilities  company,  but  not  to 
the  trustee  under  the  trust  deed  of  the 
plant,  the  trustee  must  be  deemed  to  have 
had  actual  notice  where  the  president  and 
managing  officer  of  the  trust  company, 
which  was  trustee  and  who  was  also  the 
owner  or  in  control  of  practically  all  the 
stock  of  the  public  utilities  company,  di- 
rected prosecution  of  appeal  from  the 
commission's  order  in  the  proceeding. 
Connell    v.    Kaukauna    (^Is.)    1918A-247. 

63.  Notice  to  the  trustee  under  a  trust 
deed  binds  the  secured  bondholders  as  to 
an  award  in  condemnation  proceedings 
affecting  the  corpus  of  the  trust.  Connell 
V.  Kaukauna   (Wis.)    1918A-247. 

c.     Report  of  Commissioners. 

64.  Report  of  Commissioners — To  What 
Court  Made.  Mass.  St.  1911,  c.  439,  provid- 
ing for  proceedings  in  the  supreme  judicial 
court  for  the  assessment  of  damages  from 
the  building  of  a  bridge,  authorizes  the  fil- 
ing of  a  petition  in  the  supreme  judicial 
court  and  the  appointment  of  commission- 


320 


DIGEST. 

19160— 1918B. 


ers  to  assess  damages.  It  is  held  that  such 
commissioners  are  required  by  imperative 
inference  to  make  their  report  to  the  su- 
preme judicial  court  which  appointed 
them,  and  are  officers  of  such  court  sub- 
ject to  its  orders.  Brackett  v.  Common- 
wealth  (Mass.)   1918B-863. 

65.  Where  court  commissioners  ap- 
pointed to  assess  damages  resulting  from 
a  public  work,  exercised  the  authority 
conferred  upon  them,  their  report  will  not 
be  recommitted  for  errors,  unless  substan- 
tial justice  requires  that  course  and  some 
appreciable  change  would  be  made. 
Brackett  v.  Commonwealth  (Mass.)  191  SB- 
MS. 

66.  Form  of  Award. — Separate  State- 
ment of  Items.  A  lessee  being  entitled  to 
occupy  permanent  structures  on  the  land, 
as  sheds,  automatic  railways,  etc.,  such 
property  constituting  a  part  of  the  land 
and  not  fixtures,  commissioners  in  assess- 
ing damages  unnecessarily  separated  the 
damages  to  "leasehold  interest"  and  "loss 
of  fixtures."  Brackett  v.  Commonwealth 
(Mass.)  1918B-863. 

67.  Commissioners  appointed  to  assess 
the  damage  to  realty  from  the  building  of 
a  bridge  estimated  the  damage  to  the 
owner  which  had  leased  the  premises  sepa- 
rately from  the  damages  of  the  lessee; 
the  report  showing  the  two  estimates. 
The  commissioners  gave  the  common- 
wealth's nineteenth  request  for  a  ruling, 
providing  that  the  report  of  the  commis- 
sioners should  show  the  value  of  the  entire 
tract  of  land  immediately  before  and  im- 
mediately after  the  building  of  the  bridge, 
and  the  value  of  the  leasehold  interest  be- 
fore and  after  that  event.  It  is  held  that 
though  the  report  did  not  show  separate 
estimates  of  the  value  of  the  leasehold  in- 
terest and  of  the  reversion,  it  was  not  sub- 
ject to  objection  on  the  ground  that  all 
damages  were  included  in  the  assessment 
in  favor  of  the  lessor,  and  that  there  was 
a  duplication  by  assessing  damages  to  the 
lessee,  the  separate  statement  of  the  dam- 
ages showing  that  each  party's  interest 
and  damage  was  separately  and  definitely 
determined.  Brackett  v.  Commonwealth 
(Mass.)  1918B-863. 

d.     Pleading. 

68.  In  condemnation  proceedings  to 
take  land  for  storage  of  a  city's  water 
supply,  where  the  petition,  over  the 
owner's  objection,  was  amended  to  extend 
to  him  certain  privileges  and  reservations 
to  reduce  damages,  a  motion  ne  recipia- 
tur,  denying  the  right  of  the  city  to  so 
modify  the  petition,  assigning  that  the 
amendment  was  too  vague  and  uncertain, 
was  inconsistent  with  the  petition,  was 
offered  too  late,  and  was  not  germane  to 
the  issue,  was  suflSciently  comprehensive 
to  raise  the  question  for  review  on  appeal. 
Brack  v.  Baltimore   (Md.)   1916E-886. 


69.  Offer  of  Privilege  to  Eeduce  Dam- 
ages. In  proceedings  to  condemn  laud  to 
store  water  for  a  city,  where  a  strip  run- 
ning through  the  farm  was  condemned, 
which  would  be  flooded,  thus  dividing  the 
land  in  halves,  an  amendment  to  the  peti- 
tion obligating  the  city  to  construct  a 
road  and  bridge  across  the  flooded  area, 
and  to  give  the  owner  the  right  perpetu- 
ally to  maintain  the  same,  the  object  be- 
ing to  reduce  damages,  is  improper  over 
objection  by  the  owner;  since,  in  award- 
ing compensation,  the  jury  cannot  in 
place  of  money  require  a  property  owner 
to  accept  privileges.  Brack  t.  Baltimore 
(Md.)    1916E-880. 

70.  Bad  Faith  in  Bringing  Proceeding. 
Where  a  railroad  company  instituted  a 
condemnation  proceeding  for  the  purpose 
in  good  faith  of  constructing  its  line 
across  the  lands  in  question  to  supply  a 
public  necessity,  bad  faith  is  not  shown 
by  the  fact  that  the  petition,  without  ex- 
pressly alleging  defendant's  title  to  the 
property  in  question,  alleged  a  dispute 
between  plaintiff  and  defendant  as  to  such 
title,  and  an  adjudication  by  another 
court  that  defendant  had  acquired  title 
by  possession  under  color  of  title  and  by 
registration  of  his  title,  though  an  objec- 
tion sustaining  an  attack  on  the  petition 
for  failure  to  allege  defendant's  title  was 
sustained  by  the  court,  as  the  railroad 
company  had  a  right  to  institute  the  pro- 
ceeding, and  the  exercise  of  such  legal 
right  could  not  be  a  legal  wrong  to  de- 
fendant, and  its  motive,  in  the  absence  of 
any  legal  wrong,  was  immaterial.  Den- 
ver, etc.  B.  Co.  T.  Mills  (Colo.)  1916E- 
985. 

71.  Conditional  Condemnation.  The 
complaint  in  proceedings  to  condemn  a 
right  of  way  for  a  telegraph  line  along 
a  railroad  right  of  way  is  held  not  to  be 
an  application  for  an  unqualified  and  un- 
conditional appropriation,  at  all  events, 
subject  to  certain  righfs  to  be  excepted 
and  left  unaffected  thereby,  but  to  evince 
a  purpose  to  assert  a  right  to  condemn 
only  on  stated  conditions  and  terms,  and 
therefore  to  be  bad.  Louisville,  etc.  R. 
Co.  V.  Western  Union  Tel.  Co.  (Ind.) 
1917C-628.  (Annotated.) 

72.  Complaint  Sustained.  It  is  held 
that  the  complaint  in  a  proceeding  to  con- 
demn property  for  a  logging  load  states  a 
cause  of  action,  and  the  court  did  not  err 
in  overruling  the  demurrer.  Blackwell 
Lumber  Co.  v.  Empire  Mill  Co.  (Idaho) 
1918A-189. 

73.  Sufficiency  to  Give  Jurisdiction. 
The  defendant's  plea,  putting  in  issue  the 
allegation  of  the  petition  that  the  com- 
pany was  desirous  of  acquiring  the  fee- 
simple  estate  in  and  the  title  to  the  strip 
sought  to  be  condemned,  vests  the  court 
with  power  to  hear  the  evidence  and  de- 
cide  such    issue;    "jurisdictioa"   being   the 


EMINENT  DOMAIN. 


321 


power  to  hear  and  determine  a  cause. 
New  River,  etc.  R.  Co.  v.  Honaker  (Va.) 
1917C-132. 

74.  Amendment  of  Petition.  A  petition 
by  a  telegraph  company  for  the  con- 
demnation of  an  easement  for  its  lines 
over  the  right  of  way  of  a  railway  com- 
pany may  properly  be  amended  by  a  rtip- 
ulation  that  the  telegraph  company  will 
not  incommode  the  railway  company  in 
the  operation  of  its  line.  Western  Union 
Tel.  Co.  V.  Louisville,  etc.  E.  Co.  (111.) 
1917B-670. 

75.  Sufficiency  of  Petition,  A  tele- 
graph company's  petition  to  condemn  an 
easement  for  its  lines  over  a  railway  right 
of  way  is  sufficient  although  each  pole  is 
not  located  by  individual  description. 
Western  Union  Tel.  Co.  v.  Louisville,  etc. 
B.  Co.   (111.)   1917B-670. 

e.    Evidence. 

■  76.  Irrelevaiit  Evidence — Effect.  In  such 
case,  if  incompetent  evidence  touching 
that  point  is  injected  in  the  case,  by  the 
petitioner,  the  commonwealth  should  move 
to  have  it  stricken  out  and  not  meet  it  by 
a  further  inquiry  into  irrelevant  matters. 
Brackett  v.  Commonwealth  (Mass.)  1918B- 
863. 

77.  Evidence  Admissible  to  Show  Value 
— Tax  Returns.  Under  Mass.  St.  1903,  c. 
437,  §  48,  continued  in  St.  1909,  c.  490, 
part  3,  §  40,  and  St.  1914,  c.  196,  §  6,  de- 
claring that  tax  returns  shall  only  be  open 
to  inspection  of  the  tax  commissioner  and 
his  assistant  and  such  officers  of  the  com- 
monwealth as  may  have  occasion  to  inspect 
them  to  collect  taxes,  tax  returns  are  not 
admissible  in  a  proceeding  to  assess  the 
damages  suffered  by  a  landowner  from  the 
building  of  a  bridge  in  the  vicinity  of  his 
lands.  Brackett  v.  Commonwealth  (Mass.) 
1918B-863. 

78.  Certificate  of  Incorporation.  Certifi- 
cates of  condition  filed  by  a  corporation 
with  the  secretary  of  the  commonwealth 
containing  statements  as  to  value  of  its 
real  estate  which  it  contended  was  dam- 
aged by  the  erection  of  a  bridge,  while 
not  conclusive  admissions  as  to  value,  are 
admissible  in  determining  that  question. 
Brackett  v.  Commonwealth  (Mass.)  1918B- 
863. 

79.  Admissions  as  to  Value.  Such  cer- 
tificates are  not  admissions  binding  on  a 
lessee  of  the  ctrrporation,  as  to  injury  to 
his  leasehold.  Brackett  v.  Commonwealth 
(Mass.)   1918B-863. 

80.  Statements  by  one  who  was  the  di- 
rector, clerk,  and  auditor  of  a  corporation 
and  by  another  who  was  its  vice-president 
and  managing  director  to  a  tax  assessor 
as  to  the  value  of  corporate  real  estate, 
are  not  admissible  to  show  value  in  a  pro- 
ceeding   by    the    corporation    to    recover 

21 


damages  to  its  real  estate  resulting  from 
the  building  of  a  bridge;  it  not  being 
shown  that  such  officers  were  authorized 
to  speak  for  the  corporation  on  that  mat- 
ter. Brackett  v.  Commonwealth  (Mass.) 
1918B-863. 

81.  Adaptability  to  Particular  Use.  In 
proceedings  to  condemn  land  for  storage 
of  a  city  water  supply,  it  was  alleged 
that  plaintiff's  land,  through  which  a  strip 
was  condemned,  was  specially  adapted  for 
reservoir  purposes.  The  court  excluded 
evidence  of  special  adaptability  to  such 
use,  on  the  ground  that,  since  the  owner 
had  no  right  to  impound  the  waters  of  the 
stream  flowing  through  the  land  without 
consent  of  the  city,  as  lower  riparian  pro- 
prietor, there  was  no  actual  increase  in  the 
value  of  the  land  by  its  abstract  adapt- 
ability for  reservoir  purposes.  Held  that, 
in  the  absence  of  affirmative  showing  in 
the  record  that  the  use  of  the  land  for 
reservoir  purposes  would  necessarily  in- 
volve an  invasion  of  the  riparian  rights  of 
the  city,  and  the  offer  of  proof  being  dis- 
tinctly to  show  that  the  land  had  an  inde- 
pendent availability  for  reservoir  pur- 
poses, evidence  as  to  its  value  for  such 
use  was  improperly  excluded.  Brack  v. 
Baltimore  (Md.)  1916E-880. 

(Annotated.) 

82.  Meander  Line  as  Boundary.  In  pro- 
ceedings to  condemn  land  bordering  on  a 
navigable  stream,  evidence  of  the  govern- 
ment surveyor's  field  notes  showing  the 
meander  line  of  the  river  in  the  vicinity 
of  the  land  in  question  is  inadmissible; 
meander  lines  not  being  considered  legal 
boundaries.  Hubbell  v.  Des  Moines 
(Iowa)   1916E-592. 

83.  Photograph  of  Other  Property.    In 

proceedings  to  condemn  land  bordering  on 
a  river,  photographs  and  levels  taken  with 
reference  to  a  tract  nearly  a  mile  above 
the  land  in  question,  and  of  another  tract 
eight  or  ten  blocks  below  the  land  sought 
to  be  condemned,  are  properly  excluded 
for  remoteness.  Hubbell  v.  Des  Moines 
(Iowa)  1916E-592. 

84.  Value  of  Adjacent  Lands.  Where 
land  sought  to  be  condemned  for  railroad 
right  of  way  lay  along  a  creek,  and  the 
entire  tract  comprised  nearly  400  acres  of 
which  but  about  25  acres  was  bottom  land, 
and  the  railroad  ran  through  in  approxi- 
mately the  same  direction  as  the  creek, 
testimony  concerning  the  value  of  lands  in 
that  community  is  relevant,  and  also  tes- 
timony as  to  the  relative  value  of  the  bot- 
tom lands  apart  from  the  remainder  of 
the  tract.  Music  v.  Big  Sandy,  etc.  R.  Co. 
(Ky.)    1916E-689. 

85.  Proof  of  Offer  to  Buy  Remaining 
Land.  Where,  in  proceeding  to  condemn 
part  of  a  tract  of  land,  the  owner  testified 
that  the  market  value  of  the  tract  before 
tiie  taking  was  $21,000,  and  that  the  value 


322 


DIGEST. 

1916C— 1918B. 


of  the  remainder  after  the  taking  was 
$]  0,500,  an  offer,  made  by  a  witness  for 
the  railroad  company  while  on  the  witness 
stand,  to  pay  the  owner  $21,000  for  the 
land,  is  incompetent.  Music  v.  Big  Sandy, 
etc.  B.  Co.  (Ky.)  1916E-689. 

86.  Photograph  of  Property  Taken.    In 

proceedings  to  condemn  land  bordering  on 
a  rirer,  photographs  taken  of  the  property 
at  the  time  of  a  flood  in  the  river  are  ad- 
missible, when  oflfered  merely  to  produce 
the  conditions  and  surroundings  at  or 
about  the  time  of  the  condemnation.  Hub- 
bell  V.  Des  Moines  (Iowa)  1916E-592. 

87.  Price  Realized  for  Similar  Property. 
Evidence  of  sales  of  other  property  of  the 
same  character  similarly  located,  made 
in  the  market  a  short  time  after  the  pro- 
ceedings in  question  were  instituted,  is  in- 
admissible as  substantive  independent 
proof  of  the  value  of  the  property  in  con- 
troversy. Hubbell  ▼.  Des  Moines  (Iowa) 
1916E-592.  (Annotated.) 

88.  Taking  Bailroad  Bight  of  Way.  In 
a  proceeding  by  a  telegraph  company  to 
condemn  an  easement  for  its  lines  over  a 
railway  right  of  way,  the  evidence  is  held 
not  to  show  that  the  construction  and 
operation  of  the  telegraph  lines  would  in- 
terfere with  the  public  use  of  the  railroad. 
Western  Union  Tel.  Co.  v.  Louisville,  etc. 
E.  Co.  (111.)  1917B-670.  (Annotated.) 

Note. 

Admissibility  in  eminent  domain  pro- 
ceeding of  evidence  of  price  paid  by  an- 
other than  condemnor  for  similar  prop- 
erty,    1916E-598. 

f.    Instructions. 

89.  An  instruction  on  damages  for  tak- 
ing and  injuring  land  should  lay  down  a 
definite  rule  to  guide  the  jury  in  estimat- 
ing the  damages.  Pettit  v.  County  Com- 
missioners (Md.)   1916C-35. 

90.  Ascertainment  of  Value.  In  pro- 
ceedings to  condemn  land,  an  instruction 
that  the  term  "reasonable  market  value" 
means  the  fair  and  reasonable  value  of  the 
property  at  the  time  in  question,  and  may 
be  determined  from  the  evidence  of  facts, 
which  the  owner  will  properly  and  necessar- 
ily press  on  the  attention  of  a  buyer  with 
whom  he  is  negotiating  a  sale,  and  which 
would  naturally  influence  or  deter  a  per- 
son of  ordinary  prudence  desiring  to  pur- 
chase, the  jury  being  entitled  to  consider 
evidence  of  facts  then  existing,  and  which 
enter  into  the  value  of  the  premises  in 
public  and  general  estimation,  and  which 
may  tend  to  influence  the  minds  of  sellers 
and  buyers  in  determining  the  reasonable 
value  of  the  property  at  the  time,  is 
proper.  Hubbell  v.  Des  Moines  (Iowa) 
1916E-592. 

91.  An  instruction  that  certain  evidence 
had    been    admitted    as    to    the    price    at 


which  properties  other  than  that  in  ques- 
tion are  sold,  and  the  location  and  char- 
acter thereof,  that  such  evidence  was  ad- 
mitted only  as  bearing  on  the  value  of  the 
opinions  of  various  witnesses  in  regard  to 
the  property  in  controversy,  and  that  the 
same  should  be  limited  by  the  jury  to 
such  subject,  is  proper.  Hubbell  v.' Des 
Moines  (Iowa)   1916E-592. 

g.     Discontinuance   of    Proceedings. 

92.  Allowance  to  I.andowner.  On  the 
dismissal  of  a  condemnation  proceeding, 
even  though  the  court  had  power  to  al- 
low to  defendant  attorney's  fees,  travel- 
ing expenses,  and  other  expenses  incurred 
in  preparing  to  defend  the  proceeding,  it 
is  error  to  make  such  allowance,  in  the 
absence  of  proof  as  to  the  amount  ex- 
pended or  incurred  for  such  expenses  or 
fees,  other  than  that  the  total  was  in 
excess  of  the  amount  of  the  deposit. 
Denver,  etc.  E.  Co.  v.  Mills  (Colo.) 
I916E-980.  (Annotated.) 

93.  There  being  no  special  statutory  au- 
thorization for  an  allowance  of  costs  in 
condemnation  proceedings,  though  the  court 
may  allow  court  costs,  it  cannot  allow  at- 
torney's fees  and  other  expenses  incurred 
by  defendant.  Denver,  etc.  E.  Co.  v. 
Mills   (Colo.)    1916E-985.         (Annotated.) 

94.  Allowance  Out  of  Deposit  on  Dis- 
missal. Under  Colo.  Eev.  St.  190S,  §  2420, 
providing,  relative  to  condemnation  pro- 
ceedings, that  the  court  shall  appoint  a 
commission  to  ascertain  and  determine  the 
necessity  for  taking  the  land,  and  to  ap- 
praise and  determine  the  damages  and 
compensation  to  be  allowed,  and  that  the 
judge  or  court  shall  determine  the  amount 
the  petitioner  shall  be  required  to  pay  or 
deposit  pending  any  such  .ascertainment, 
and  section  2456,  providing  that  immedi- 
ately upon  the  filing  of  the  petition,  ac- 
companied by  the  deposit  of  the  amount 
which  the  court  or  judge  shall  determine 
to  be  compensation  proper  to  be  made,  the 
court  or  judge  shall  authorize  the  peti- 
tioner to  take  or  keep  possession  of  the 
property  during  the  pendency  of  the  pro- 
ceeding,  the  deposit  is  required  for  the 
sole  purpose  of  making  secure  the  award 
of  compensation  for  the  land  taken,  and 
the  court  has  no  authority  to  require  a 
deposit  to  be  applied  on  costs  accrued  or 
to  accrue.  Denver,  etc.  E.  Co.  v.  Mills 
(Colo.)    1916E-985. 

95.  Jurisdiction     to     Award     Damages. 

The  jurisdiction  of  the  Exchequer  Court 
in  expropriation  proceedings  extends  to 
the  award  of  damages  to  a  landowner  for 
injury  by  proceedings  which  have  been 
wholfy  abandoned.  Gibb  v.  Eex  (Can.) 
19I6D-709. 

96.  Bight  of  Landowner  to  Damages. 
On  the  total  abandonment  of  a  proceeding 


EMINENT  DOMAIN. 


323 


to  expropriate  la-od  under  the  National 
Transcontinental  Railway  Act,  the  land- 
owner is  entitled  to  recover  the  damages 
sustained  bv  the  prosecution  of  the  pro- 
ceeding.    Gibb  V.  Rex   (Can.)  1916D-709. 

(Ajinotated.) 
Note. 

Eight  of  landowner  to  damages  upon 
voluntary  discontinuance  of  eminent  do- 
main  proceedings.     IQIGD-TES. 

h.     Costs. 

97.  Costs  on  Appeal.  In  view  of  Cal. 
Const,  art.  1,  §  14,  providing  "that  pri- 
vate property  shall  not  be  taken  or  dam- 
aged for  public  use  without  just  com- 
pensation," the  owner  whose  property  is 
sought  to  be  taken  cannot  be  required  to 
pay  any  portion  of  his  reasonable  costs 
necessarily  incidental  to  the  trial  of  the 
issues  on  his  part,  or  any  part  of  the  costs 
of  the  condemning  party,  since  to  require 
him  to  do  so  would  reduce  the  just  com- 
pensation awarded  by  the  jury.  Oakland 
V.  Pacific  Coast  Lumber,  etc.  Co.  (Cal.) 
1917E-259.  (Annotated.) 

98.  Cal.  Const,  art.  1,  §  14,  provides  that 
private  property  shall  not  be  taken  or 
damaged  for  public  use  without  just  com- 
pensation. Code  Civ.  Proc.  §  1255,  apply- 
ing specially  to  eminent  domain  proceed- 
ings, provides  that  costs  may  be  allowed 
or  not,  and,  if  allowed,  may  be  appor- 
tioned between  the  parties  on  the  same 
or  adverse  sides,  in  the  discretion  of  the 
court.  It  is  held  that  the  Code  section 
is  limited  in  its  effect  by  the  constitu- 
tional provision,  and  that  the  property 
owner  cannot  be  required  to  pay  the  costs 
of  the  condemning  party  on  appeal  by  the 
latter.     Oakland  v.  Pacific  Coast  Lumber, 

.  etc.  Co.  (Cal.)   1917E-259. 

(Annotated.) 

99.  The  discretion  of  the  court  to  assess 
costs  in  eminent  domain  proceedings 
granted  by  Cal.  Code  Civ.  Proc.  §  1255, 
and  the  provision  of  section  1027  that 
the  prevailing  party  on  appeal  shall  be  en- 
titled to  his  costs  in  the  absence  of  modi- 
fication of  the  judgment,  is  not  limited, 
in  condemnation  proceedings  where  the 
appeal  is  by  the  property  owner  and  he 
is  totally  unsuccessful,  by  Const,  art.  1, 
§  14,  requiring  just  compensation  for  the 
taking  of  private  property  for  public  use, 
so  that  costs  of  the  condemning  party  on 
appeal  by  the  property  owner  may  be  as- 

-  sessed  against  the  owner.  Oakland  v.  Pa- 
cific Coast  Lumber,  etc'.  Co.  (Cal.)  1917E- 
259.  (Annotated.) 

-  100.  Ky.  St.  §  840,  provides  that  if  the 
landowner  appeals  and  fails  to  increase 
the  recovery  beyond  the  amount  "awarded 
in  the  county  court,"  he  shall  pay  the  costs 
of  the  appeal,  but  if  he  increases  recovery 
the  condemnor  pays  the  costs  and  makes 
similar  provision  as  to  appeal  by  the  con- 


demnor. Section  839  provides  that  when 
a  railroad  company  seeks  to  condemn 
lands  and  either  party  appeals  "from  the 
county  court,"  the  company,  on  payment 
of  the  damages  assessed  and  all  costs, 
may  take  possession  of  the  land.  Held, 
that  as  no  provision  was  made  as  to  costs 
in  the  county  court,  the  circuit  court,  on 
appeal  to  it  from  the  county  court,  prop- 
erly imposed  costs  in  the  county  court  on 
the  condemnor,  following  the  rule  that  in 
the  absence  of  statute  the  condemnor 
should  pay  costs.  Music  v.  Big  Sandy, 
etc.  B.  Co.  (Ky.)   1916E-689. 

(Annotated.) 
Note. 
Liability  of  landowner  for  costs  on  ap- 
peal    in      eminent     domain      proceeding. 
1917E-2'62, 

i.     Judgment   on   Award. 

101.  Collateral  Attack  on  Proceedlni^. 
County  commissioners  having  had  juris- 
diction in  condemning  land  for  the  widen- 
ing of  a  road,  the  question  of  disqualifi- 
cation of  one  of  the  examiners,  or  a  mere 
irregularity  in  that  statutory  provisions 
were  not  strictly  followed,  may  not  be 
inquired  into  collaterally;  direct  appeal 
from  the  action  of  the  commissioners  be- 
ing the  remedy.  Pettit  v.  County  Com- 
missioners   (Md.)    1916C-35. 

(Annotated.) 
Note. 

Collateral  attack  on  eminent  domain 
proceeding.     1916C-40. 

j.     Enforcement  of  Award. 

102.  Proceeding  to  Enforce  Award — 
Jurisdiction.  As  Mass.  St  1911,  c.  439, 
relating  to  compensation  for  damages 
from  the  construction  of  a  bridge  pro- 
A'ided  a  remedy  in  the  supreme  judicial 
court,  the  superior  court  has  no  juris- 
diction over  a  proceeding  to  collect  the 
award  of  commissioners  appointed  by  the 
supreme  judicial  court.  Brackett  v.  Com- 
monwealth  (Mass.)    1918B-863. 

k.     Eeview  of  Proceedings. 

103.  "Where  commissioners  appointed  by 
a  court  to  estimate  the  damage  resulting 
from  a  public  work  intended  to  proceed 
and  decide  according  to  law,  their  report 
may  be  reviewed  to  correct  errors  of  law 
as  could  an  award  of  arbitrators  or 
referees  under  similar  circumstances. 
Brackett  v.  Commonwealth  (Mass.) 
1918B-863. 

104.  A  court  appointing  commissioners 
to  estimate  damages  from  a  public  work 
has  power  to  examine  their  report  and  re- 
view it  as  to  any  errors  of  law  apparent 
on  its  face.  Brackett  v.  Commonwealth 
(Mass.)   1918B-863. 

T05.  Eeview  of  Decision  of  Commission- 
ers.    As   Mass.   St.    1911,   c.   439,  §  2,  pro- 


324 


DIGEST. 

1916C— 1918B. 


viding  that  the  decision  of  commissioners 
appointed  to  estimate  the  damage  result- 
ing from  the  erection  of  a  bridge  should 
be  final  as  to  the  amount  of  damages  and 
as  to  questions  of  fact  involved,  the  com- 
missioners' decision  is  not  final  as  to  other 
matters;  the  statute  implying  that  ordi- 
nary court  procedure  should  be  pursued  in 
other  respects  and  the  commissioners  not 
constituting  a  board  of  referees  or  arbi- 
trators to  whom  all  issues  both  of  law  and 
fact  were  submitted  irrevocably.  Brackett 
V.  Commonwealth  (Mass.)   1918B-863. 

106.  That  commissioners  appointed  to 
assess  damage  resulting  from  the  build- 
ing of  a  bridge  improperly  classified  as 
fixtures  permanent  structures  on  the  prem- 
ises which  were  leased,  and  made  separate 
awards  for  injuries  to  land  and  injuries 
to  fixtures,  does  not  require  reversal. 
Brackett  v.  Commonwealth  (Mass.)  1918B- 
863. 

107.  Prejudice  from  Exclusion  of  Evi- 
dence. In  condemnation  proceedings, 
where  the  evidence  as  to  damages  is  con- 
flicting, but  some  of  the  estimates  exceed 
the  sum  ascertained  by  the  verdict,  the 
reviewing  court  cannot  rule,  as  matter  of 
law,  that  the  allowance  is  so  obviously 
excessive  as  to  render  nonprejudicial  er- 
roneous rulings  below  excluding  evidence 
as  to  the  special  adaptability  of  the  land 
for  reservoir  purposes  as  bearing  on  the 
measure  of  damages.  Brack  v.  Baltimore 
(Md.)   1916E-880. 

108.  Finality  of  Order.  The  order  is  not 
a  conditional  order,  the  dismissal  of  the 
proceeding  not  being  upon  the  condition 
that  the  deposit  should  be  paid  to  defend- 
ant, and' the  order  for  the  payment  of  the 
money  to  defendant  not  being  conditional 
upon  the  dismissal  of  the  proceedings,  as 
the  court  definitely  reached  its  conclusion 
as  to  the  right  to  a  dismissal  before  deter- 
mining the  disposition  of  the  deposit. 
Denver,  etc.  E.  Co.  v.  Mills  (Colo.) 
1916E-985, 

109.  Where,  in  a  condemnation  pro- 
ceeding, the  court  made  an  order  grant- 
ing the  petitioner's  motion  for  leave  to 
dismiss,  but  reserving  for  further  con- 
sideration its  motion  for  the  return  of 
a  deposit  made  to  obtain  possession  of 
the  property,  and  subsequently  an  order 
was  made  granting  the  right  to  dis- 
miss, denying  the  application  for  a  re- 
fund of  the  deposit,  and  ordering  the 
payment  of  the  deposit  to  the  defendant, 
the  order  with  respect  to  the  deposit  is 
not  one  relating  merelj'  to  costs,  and  for 
that  reason  not  appealable,  as  the  dispo- 
sition of  the  deposit  is  essential  to  a 
final  disposition  of  a  condemnation  pro- 
ceeding, and  until  it  was  disposed  of  the 
rights  of  the  parties  were  not  fully  de- 
termined. Denver,  etc.  E.  Co.  v.  Mills 
(Colo.)   1916E-985. 

110.  Waiver  of  Right  to  Appeal, 
\^Tiere,  in  a  proceeding  to  condemn  land. 


the  landowner  asserts  that  the  award  of 
the  commissioners  of  estimate  and  ap- 
praisal is  insufiicient,  he  does  not,  by  ac- 
cepting the  amount  awarded,  the  report 
being  confirmed,  lose  his  right  to  appeal 
on  the  ground  of  deficiency,  but  such  ac- 
ceptance merely  limits  the  grounds  on 
which  reversal  may  be  sought.  Matter 
of  City  of  New  York  (Court  House) 
(N.  Y.)  1917D-157.  (Annotated.) 

111.  Appeal  from  Order  of  Confirma- 
tion. Where  a  landowner  appealed  from 
an  order  confirming  the  report  of  the  com- 
missioners of  estimate  and  appraisal  in  a 
condemnation  suit  and  the  appellate  divi- 
sion dismissed  the  appeal,  the  dismissal 
virtually  made  the  order  of  confirmation 
absolute,  and  as  the  proceeding  termin- 
ated in  the  final  order,  an  appeal  will  lie 
to  the  court  of  appeals,  as  an  intermediate 
court  cannot  deprive  that  court  of  juris- 
diction by  dismissing  an  appeal  leaving  a 
judgment  or  final  order  in  full  force. 
Matter  of  City  of  New  York  (Court 
House)   (N.  Y.)  1917D-157. 

112.  Condemnation  of  Railroad  Right  of 
"Way  for  Telegraph  Line.  The  evidence 
on  the  issue  whether  the  use  for  a  tele- 
graph line  for  which  a  right  of  way  along 
a  railroad  right  is  sought  to  be  con- 
demned will  materially  and  substantially 
interfere  with  the  use  of  the  right  of 
way  for  railway  purposes,  to  which  it  is 
already  devoted,  being  conflicting  and  of 
such  a  character  that  reasonable  minds 
may  draw  opposite  inferences  as  to  the 
ultimate  facts  to  be  determined  there- 
from, the  decision  thereon  of  the  trier, 
whether  court  or  jury,  cannot  be  reviewed 
on  appeal.  Louisville,  etc.  E.  Co.  v. 
Western  Union  Tel.  Co.  (Ind.)  1917C-628. 

113.  Review  of  Facts.  While  in  con- 
demnation proceedings  the  weight  of  the 
evidence  may  be  in  favor  of  the  defeated 
party,  if  there  is  any  evidence  to  sup- 
port the  verdict,  it  will  not  be  disturbed 
unless  flagrantly  against  the  weight  of 
the  evidence,  and  disparity  in  the  num- 
ber of  witnesses  will  not  justify  a  finding 
that  it  is  flagrantly  against  the  weight. 
Music  V.  Big  Sandy,  etc.  R.  Co.  (Ky.) 
1916E-«89. 

114.  Entertainment  of  Commissioners  by 
Party.  In  a  proceeding  to  condemn  land 
for  a  railroad  right  of  way  where  the 
commissioners  to  assess  damages,  were  en- 
tertained by  one  of  the  successful  parties 
during  their  investigation  their  award  will 
be  set  aside,  without  regard  to  any  actual 
influence  on  their  award.  New  Eiver,  etc. 
E.  Co.  V.  Honaker   (Va.)    1917C-132. 

115.  Effect  of  Appeal  from  Judgment. 
In  a  proceeding  to  condemn  a  railroad 
right  of  way,  where  the  company  had 
proceeded  in  conformity  with  the  statute 
(Va.  Acts  1902-04,  c.  608;  Code  1904, 
§  llOof,  subsecs.  4-13),  as  far  as  jurisdic- 
tional   matters    were  .involved,    the   judg- 


EMINENT  DOMAIN. 


325 


ment  confirmiiig  the  comissioncrs'  assess- 
meut  of  damages,  pending  a  writ  of  error 
and  before  the  judgment  was  reviewed 
and  reversed  by  the  court  of  appeals,  was 
not  void,  but  was  voidable  only,  so  that 
the  entry  after  payment  of  damages  is  an 
entry  as  of  legal  right,  and  not  an  entry 
bv  a  trespasser.  New  River,  etc.  E.  Co. 
v'  Honaker  (Va.)  1917C-132. 

1 16.  Question  not  Eaised  Below,  On  ap- 
peal from  a  decree  in  condemnation  pro- 
ceedings, the  supreme  court  is  a  court  of 
review  and  can  be  expected  to  pass  only 
on  questions  raised  in  the  court  below. 
Louisville,  etc.  R.  Co.  v.  Western  Union 
Tel.  Co.  (Ala.)  1917B-696. 

117.  Divided  Court.  The  court  is 
equally  divided  as  to  the  adequacy  of  the 
allowance  to  a  landowner  for  damage  by 
an  expropriation  proceeding  subsequently 
dismissed,  and  the  appeal  is  accordingly 
dismissed.  Gibb  v.  Rex  (Can.)  1916I>- 
709. 

8.     REVERSION    OF    CONDEMNED 
LAND. 

118.  Bight  of  Condemnor  to  Return  of 
Condemnation  Money,  Under  Iowa  Code 
1897,  §  2015,  declaring  that  where  a  rail- 
road company,  having  begun  work,  aban- 
dons it  for  eight  years,  the  right  of  way 
shall  revert  to  the  owner,  in  case  of  such 
abandonment  the  owner  need  not  return 
the  compensation  before  suing  to  quiet  his 
title.  Vandewater  v.  Chicago,  etc.  R.  Co. 
(Iowa)    1917C-1132,  (Annotated.) 

119.  Where  a  railroad  company  began 
the  construction  of  a  proposed  line,  but 
actual  work  did  not  reach  plaintiff's  land, 
which  had  been  condemned,  before  the 
abandonment,  there  was  an  actual  con- 
struction within  Code  1897,  §  2015,  declar- 
ing that  an  abandonment  for  eight  years 
shall  work  a  forfeiture.  Vandewater  v. 
Chicago,  etc.  R.  Co.  (Iowa)  1917C-1132. 

120.  Abandonment  of  Occupation  by 
Condemnor.  Iowa  Code  1897,  §  1995,  gives 
to  railway  corporations  the  right  to  take 
and  hold  real  estate  necessary  for  the  con- 
struction and  convenient  use  of  its  rail- 
way. Section  2015  declares  that  where  a 
railway,  constructed  in  whole  or  in  part, 
has  ceased  to  be  operated  for  more  than 
five  years,  or  where  the  construction  has 
commenced,  and  the  work  ceased  and  has 
not  been  resumed  for  more  than  five  years, 
or  where  any  portion  has  not  been  oper- 
ated for  four  consecutive  years,  and  the 
rails  and  rolling  stock  have  been  removed, 
it  shall  be  treated  as  abandoned,  and  that 
if  a  railway  shall  not  be  used  or  operated 
for  eight  years  or  its  construction  has 
been  commenced  and  work  thereon  has 
ceased  and  has  not  in  good  faith  been  re- 
sumed in  that  time,  the  right  of  way  shall 
revert  to  the  owner  of  the  land  from  whom 
it  was  taken.     Section  2016  provides  that, 


in  case  of  abandonment,  any  other  corpo- 
ration my  enter  upon  the  abandoned  work 
and  acquire  the  right  of  way,  but  parties 
who  have  previously  received  compensa- 
tion for  the  right  of  way  which  has  not 
been  refunded  shall  not  recover  a  second 
time.  It  is  held  that  as  the  right  of  a 
railroad  company  to  condemn  private  prop- 
erty rests  upon  the  fact  that  the  taking  is 
for  a  public  use,  the  land  taken  will,  if 
and  devoted  for  public  use,  revert  to  the 
owner  within  eight  years  after  construc- 
tion having  been  commenced,  shall  have 
ceased,  or  the  operation  of  the  road  shall 
have  ceased.  Vandewater  v.  Chicago,  etc. 
R.  Co.  (Iowa)  1917C-1132. 

Note. 
Necessity    that    landowner    return    con- 
demnation money  on  abandonment  of  oc- 
cupation by  condemnor.     1917C-1136. 

9.     PROCEEDINGS     BEFORE     PUBLIC 
SERVICE     COMMISSIONS. 

121.  Review  of  Order  of  Commission — 
Scope  of  Review.  Cal.  Const,  art.  6,  §  4, 
gives  the  supreme  court  power  to  issue 
writs  of  certiorari.  (Cal.  Code  Civ.  Proc. 
§  1068,  provides  that  the  writ  of  review 
may  be  granted  when  an  inferior  board, 
etc.,  has  exceeded  its  jurisdiction,  and 
there  is  no  appeal  or  any  adequate  rem- 
edy. Cal.  Public  Utilities  Act,  §  47,  as 
amended  in  1913,  gives  the  railroad  com- 
mission judicial  powers  in  fixing  compen- 
sation in  eminent  domain  proceedings,  and 
section  67  provides  that  the  review  shall 
extend  only  to  the  question  whether  the 
commission  has  legally  pursued  its  au- 
thority, and  excludes  from  review  ques- 
tions of  fact.  It  is  held  that,  when  a 
finding  or  conclusion  of  fact  is  based  on 
uncontradicted  evidence,  its  accuracy  is 
usually  a  mere  question  of  law  reviewable 
if  it  goes  to  the  jurisdiction.  Marin 
Water,  etc.  Co.  v.  Railroad  Commission 
(Cal.)   1917C-114. 

122.  In  such  proceeding  the  railroad 
commission,  after  such  witness  was  exam- 
ined and  cross-examined  as  to  his  knowl- 
edge on  the  subject,  he  having  viewed  and 
examined  all  the  property  carefully  and 
made  exhaustive  inquiries  regarding  the 
previous  sales  of  similar  property  in  the 
vicinity,  and  of  the  different  uses  to  which 
the  properties  in  question  were  adapted, 
does  not  exceed  its  authority  in  consider- 
ing his  testimony,  together  with  other  evi- 
dence bearing  on  the  question  of  use  and 
value.  Marin  "V^'ater.  etc.  Co.  v.  Railroad 
Commission    (Cal.)    1917C-114. 

123.  Witnesses  as  to  Value  of  Property 
Condemned — Requiring  Separate  State- 
ment of  Elements,  In  such  proceeding, 
where  it  appeared  that  the  land  belonging 
to  the  public  utility  from  which  water 
might  be  obtained  was  so  situated  that 
the  annual  rainfall  thereon  might  be  con- 


326 


DIGEST. 

1916C5— 1918B. 


veniently  coJlecte^,  stored  on  the  land, 
and  thence  distributed  to  consumers,  and 
there  was  evidence  as  to  the  average  rain- 
fall upon  such  lands,  the  quantity  which 
could  be  annually  collected  and  stored, 
and  the  selling  price,  a  witness'  method 
of  valuing  the  land  without  giving  the 
advantage  of  water  storage  a  separate 
value,  but  merely  adding  it  to  the  land 
value  and  reporting  it  all  as  one  item, 
where  the  commission  gave  additional 
value  to  the  land  on  such  ground,  the  re- 
fusal to  require  the  witness  to  state  its 
separate  value  or  to  give  it  a  separate 
value,  while  erroneous,  did  not  deprive 
the  commission  of  jurisdiction  or  make  its 
award  invalid.  Marin  Water,  etc.  Co.  v. 
Bailroad   Commission    (Cal.)    1917iC'-114. 

124.  Elementa  of  Valne — ^Availability 
for  Reservoir  Purposes.  In  such  proceed- 
ing the  claim  that  by  means  of  additional 
dams  the  amount  of  water  stored  on  the 
land  annually  could  be  greatly  increased, 
that  such  possibilities  increased  the  value 
of  the  property,  and  that  the  commission 
allowed  nothing  therefor  is  not  sustained 
by  a  record  showing  that,  while  the  com- 
mission refused  to  make  a  separate  state- 
ment of  the  value  of  such  possibilities,  it 
did  allow  a  value  for  the  potential  stor- 
age of  storm  water  on  the  land  by  giving 
the  land  a  present  additional  value  be- 
cause of  such  fact.  Marin  Water,  etc.  Co. 
V.  Railroad  Commission  (Cal.)   19170-114. 

125.  Weight  of  Evidence  —  Witness 
Called  by  Conunission.  In  such  proceed- 
ing the  valuation  of  the  property  by  the 
commission,  corresponding  with  the  values 
fixed  by  a  certain  witness  called  by  the 
commission,  who  had  been  examined  and 
cross-examined  by  the  parties,  is  proper, 
as  the  commission  was  not  bound  to  limit 
itself  to  the  testimony  of  witnesses  offered 
by  the  parties,  but  might  take  the  other 
evidence  produced  at  the  hearing.  Marin 
Water,  etc.  Co.  v.  Railroad  Commission 
(Cal.)   19170-114. 

126.  Findings  by  Commission — Failure 
to  Find  Value  of  Parcels  Separately — 
Effect.  Under  Cal.  Public  Utilities  Act, 
§  47,  as  amended  in  1913,  requiring  the 
railroad  commission  to  fix  the  compensa- 
tion to  be  paid  for  property  of  a  public 
utility  in  accordance  with  section  70, 
which  provides  that  it  shall  file  its  find- 
ings of  fact  upon  all  matters  as  to  which 
evidence  was  introduced  which  in  its  judg- 
ment had  any  bearing  on  the  value  of  the 
property,  the  commission's  failure  to  find 
separately  the  value  of  each  separate  par- 
cel of  the  property,  while  an  irregularity, 
does  not  cause  a  loss  of  jurisdiction  or 
make  the  proceeding  void,  as,  when  a  court 
of  limited  jurisdiction  has  acquired  juris- 
diction of  the  parties  and  the  subject- 
matter,  the  same  presumptions  as  to  sub- 
sequent proceedings  apply  as  with  respect 
to  courts  of  general  jurisdiction,  and  sub- 


sequent irregularities  do  not  make  its 
juiigments  void.  Marin  Water,  etc.  Co.  v. 
Railroad   Commission    (Cal.)    1917C-114. 

127.  Powers  of  Commission — Calling 
Witness  of  Own  Motion.  In  a  proceeding 
under  Cal.  Public  Utilities  Act,  §  47,  as 
amended  in  1913,  to  have  the  railroad  com- 
mission fix  the  compensation  of  lands, 
rights,  etc.,  of  a  public  utility  intended  to 
be  acquired  by  eminent  domain  by  a  pub- 
lic water  district,  the  commission,  as  a 
judicial  tribunal,  has  power  to  call  and 
examine  witnesses  in  furtherance  of  jus- 
tice and  against  the  will  of  either  party. 
Marin  Water,  etc.  Co.  v.  Railroad  Com- 
mission  (Cal.)   1917C-114. 

128.  Nature  of  Powers  of  Commission — 
In  Eminent  Domain  Proceeding.  Under 
Cal.  Public  Utilities  Act,  §  47,  as  amended 
in  1913,  authorizing  the  railroad  commis- 
sion to  fix  compensation  to  be  paid  owners 
of  public  utility  property  condemned  by  a 
municipal  water  district,  etc.,  the  commis- 
sion is  given  judicial  powers  as  its  de- 
termination in  eminent  domain  proceed- 
ings establishes  the  right  to  the  owners 
to  receive  and  the  obligation  of  the  public 
corporation  to  pay  some  fixed  compensa- 
tion for  the  property  taken;  "judicial 
power"  being  the  power  to  determine  what 
shall  be  adjudged  or  decreed  between  the 
parties  and  with  whom  is  the  right  of  the 
case;  determination  of  the  rights  of  the 
individual  under  the  existing  laws;  the  as- 
certainment of  existing  rights;  the  deter- 
mination of  controversies  between  parties; 
the  power  to  investigate,  declare,  and  en- 
force liabilities  as  they  stand  on  present 
or  past  facts  and  under  the  laws  supposed 
already  to  exist.  Marin  Water,  etc.  Co.  v. 
Bailroad  Commission  (Cal.)  19170-115. 

129.  Effect  of  Statute  Giving  Jurisdic- 
tion— Proceeding  Begun  before  Constitu- 
tional Amendment  Validating  Statute, 
Cal.  Public  Utilities  Act,  §  47  (as  amended 
in  1913,  valid  after  Const,  art.  12,  §  23a 
(adopted  November  3,  1914),  gave  the 
railroad  commission  power  to  fix  the  com- 
pensation payable  to  the  owner  of  any 
public  utility  property  taken  by  a  munici- 
pal water  district,  etc.,  in  eminent  domain 
proceedings,  and  section  70  provided  that, 
if  the  owner  whose  property  is  sought  to 
be  taken  does  not  file  an  acceptance  of  the 
compensation  fixed  by  the  commission,  the 
corporation  seeking  to  condemn  must 
commence  an  eminent  domain  proceeding, 
in  which  the  compensation  so  fixed  shall 
be  conclusive.  On  a  proceeding  in  certi- 
orari or  review  instituted  under  section 
47  as  amended  it  appeared  that  the  evi- 
dence had  been  taken  before  the  constitu- 
tion had  confirmed  the  amendment  to  that 
section,  and  that  the  matter  had  been 
submitted  and  the  commission's  decision 
made  after  such  confirmation,  and  that 
the  petitioner  had  waived  any  objection 
which  might  have  been  urged  before  such 


EMOLUMENTS— EQUITABLE    MORTGAGES. 


327 


amendment.  It  is  held  that  the  court 
would  consider  the  case  on  tbe  theory  that 
the  commission,  from  the  beginning,  was 
authorized  to  entertain  the  proceeding. 
Marin  Water,  etc.  Co,  v,  Itailroad  Com- 
mission   (Cal.)    1917C-114. 

130.  Grant  of  Jurisdiction  in  Eminent 
Domain  Proceedings — Validity.  Cal.  Const, 
art.  12,  §  23,  gives  the  railroad  commis- 
sion such  jurisdiction  to  regulate  public 
utilities,  etc.,  as  shall  be  conferred  by  the 
legislature,  and  declares  the  legislative 
power  to  confer  jurisdiction  on  the  com- 
mission plenary.  Section  22  declares  the 
authority  of  the  legislature  to  give  the 
commission  such  powers  to  be  unlimited 
by  any  provision  of  the  constitution.  Sec- 
tion 14,  art.  1,  provides  that,  when  pri- 
vate property  is  taken  for  public  use,  the 
owner's  compensation  shall  be  fixed  by 
a  jury,  unless  a  jury  is  waived.  Article 
12,  §  23a  (adopted  November  3,  1914),  de- 
clares the  commission  to  have  such  power 
to  fix  the  compensation  to  be  paid  for 
property  of  any  public  utility  acquired  by 
certain  public  corporations  as  the  legis- 
lature may  confer  upon  it,  and  that  the 
legislative  power  shall  be  plenary.  It  is 
held  that  public  utilities  act  (St.  1911,  Ex. 
sess.  p.  18),  §47,  as  amended  (St.  1913, 
p.  684),  empowering  the  commission  on 
petition  of  any  water  district  intending  to 
take  by  eminent  domain  the  property  of 
any  existing  public  utility  to  fix  the  com- 
pensation, is  valid.  Marin  Water,  etc.  Co. 
T.  Kailroad  Commission  (Cal.)   1917C-114. 

(Annotated.) 

EMOLUMENTS. 

See  Salaries. 
Meaning,  see  Judges,  4. 

EMPLOYEE. 

Meaning  within  Workmen's  Compensation 
Act,  see  Master  and  Servant,  244,  249, 
264. 

EMPLOYEES. 

"VSlio  are  within  Federal  Employers'  Liabil- 
ity Act,  see  Master  and  Servant,  51- 
65. 

EMPLOYEES. 

See  Master  and  Servant. 
Who  are  within  Employers'  Liability  Act, 
see  Master  and  Servant,  66. 


ENACTMENT  OF  STATUTES. 
See  Statutes,  21-27. 

ENGINEER. 

As  within  Federal  Employers'  Liability 
Act,  see  Master  and  Servant,  61. 

Killed  by  mine  as  within  Workmen's 
Compensatton  Act,  see  Master  and 
Servant,  224. 

ENGINE  MOVEB. 

As  within  Federal  Employers'  Liability 
Act,  see  Master  and  Servant,  54. 

ENLISTMENT. 

Of  minor,  see  Militia,  3. 
Oath,  see  Militia,  13. 

ENTICEMENT. 

See  Prostitution,  12,  13. 
As  a  defense,  see  Criminal  Law,  9. 
Single  cohabitation  insufficient  for  aliena- 
tion, see  Husband  and  Wife,  55. 

ENTITLING  PAPERS. 

Error  not  ground  for  dismissal,  see  Appeal 
and  Error,  86. 

ENTRY. 

Essential   to  adverse   possession,   see  Ad- 
verse Possession,  2-5. 
When  burglarious,  see  Burglary,  2. 

ENTRY  OF  JUDGMENT. 

See  Judgments,  12-14. 

EQUAL  PROTECTION  OF  THE  LAW. 

See  Constitutional  Law,  32,  55,  62-70. 

EQUITABLE  CONVERSION. 

See  Conversion  and  Reconversion, 

EQUITABLE  ESTATES. 

See  Estates. 


EMPLOYERS'  LIABILITY  ACTS. 
See  Master  and  Servant,  40-100. 


EQUITABLE  ESTOPPEL. 
See  Estoppel,  2-9. 


EMPLOYMENT  AGENCIES. 


EQUITABLE   INTEREST. 


Eegulation  of,  see  Constitutional  Law,  38:        i  i.*.    v        *    *   „„«  a .h-o „>,.,,»,,♦   a 
Labor  LaWs,  23;  Licenses,  17-20.        '       Attachment  of,  see  Attachment,  4. 


ENACTING  CLAUSEv 
3ce  Statutes,  21. 


EQUITABLE  MORTGAGES. 

See  Mortgages  and  Deeds  of  Trust,  4,  5. 


328 


DIGEST. 

1916C— 1918B. 


EQUITY. 


1.  Equitable  Jurisdiction,  328. 

a.  In  General,  328. 

b.  Form  and  Extent  of  Relief,  328. 

c.  Marshaling  Assets,  328. 

2.  General    Principles     of    Pleading     and 

Practice,  328. 

a.  Bill,  328. 

b.  Cross-bill,  329. 

e.  Amendments,  329. 

d.  Demurrer,   3:^0. 

e.  Dismissal  of  Bill,  330. 

f .  Submission  on  Bill  and  Answer,  330. 

g.  Finding  of  Court,  330. 
h.  Advisory  Verdict,  330. 

i.  Decree,  Form  and  Contents,  331. 
8.  Bills  of  Review,  331, 

a.  What  is  Bill  of  Review,  331. 

b.  Who  may  Maintain,  331. 

c.  Venue,  331. 

d.  Grounds,  331. 

See  Accounts  and  Accounting;  Creditors' 
Bills;  Discovery;  Injunctions;  Laches; 
Quieting  Title;  Rescission,  Cancella- 
tion and  Reformation;  Specific  Per- 
formance. 

Equitable  defenses  and  rights  in  action  at 
law,  see  Actions  and  Proceedings,  6. 

Power  of  chancery  court  to  disbar,  see 
Attorneys,  49. 

Review  of  allowance  of  claims,  see  Bank- 
ruptcy, 21,  22. 

Review  of  confirmation  of  sale,  see  Bank- 
ruptcy, 23. 

Bill  for  assessment  of  damages,  see  Cor- 
porations, 19. 

Requisites  of  bill,  see  Creditors'  Bills,  3. 

No  jurisdiction  in  ejectment,  see  Eject- 
ment, 1. 

Review  of  condemnation  proceedings,  see 
Eminent  Domain,  103-117. 

Bill  of  review,  see  Limitation  of  Actions, 
7. 

General  limitation  of  suits,  see  Limitation 
of  Actions,  14. 

Jurisdiction  of  suit  on  lost  bond,  see  Lost 
Instruments,  5. 

Who  are  indispensable  parties,  see  Parties 
to  Actions,  2. 

Effect  of  omission  of  party,  see  Parties  to 
Actions,  2. 

Issue  raised  by  bill  for  contribution,  see 
Partnership,  24. 

Jurisdiction  of  partnership  dissolution,  see 
Partnership,  43. 

Construction  of  pleadings,  see  Pleading,  2. 

Appointment  of  referee,  see  Referees. 

Administration  of  trusts,  see  Trusts  and 
Trustees,  33,  35. 

Equitable  relief  against  usury,  see  Usury, 
23. 

Suit  for  construction  of  will,  see  Wills, 
228. 

1.     EQUITABLE  JURISDICTION, 
a.     In   General. 
1.  Jurisdiction  —  Construction  of  Ante- 
nuptial  Agreement,      In    the    absence    of 


statute,  the  court  of  equity,  and  not  a 
court  of  probate,  is  the  proper  forum  for 
the  determination  of  questions  arising  un- 
der antenuptial  agreements,  unless  involv- 
ing matters  properly  cognizable  by  courts 
of  probate.  Schnepfe  v.  Schnepfe  (Md.) 
1916D-988, 

2.  Enforcement  of  Beneficial  Interest  in 
Bond,  Equity  has  jurisdiction  to  enforce 
the  bond  of  a  defaulting  cashier  according 
to  its  real  intent  and  purpose,  where  the 
bond  names  a  bank's  officers  as  obligees 
instead  of  the  bank;  equity  being  the  only 
sufficient  source  of  relief  in  such  ease. 
Clark  V,  Nickell  (W.  Va.)  1917A-1286. 

3.  Bill  in  Equity  as  Remedy.  It  is 
doubtful  if  a  bill  in  equity  lies  to  test 
the  validity  of  an  election  of  corporation 
officers.  Longyear  v.  Hardmann  (Mass.) 
1916D-1200. 

b.     Form  and  Extent  of  Relief. 

4.  Nature  of  Relief.  Upon  a  bill  stating 
facts  warranting  general  but  not  special 
relief,  though  praying  both,  the  court  may, 
upon  proof  deemed  sufficient,  grant  only 
the  general  relief,  provided  it  be  not  in- 
consistent with  that  specifically  prayed. 
Grant  v.  Swank  (W.  Va.)  1917C-286. 

5.  Power  to  Ntilllfy  Statute.  A  court 
of  equity  has  no  jurisdiction  to  declare 
void  a  legislative  act  which  does  not  con- 
travene either  state  or  federal  consti- 
tution. Durand  v.  Dyson  (111.)  1917D- 
84. 

c.     Marshaling  Assets. 

6.  Necessity  of  Common  Debtor — Injury 
to  Third  Persons.  Equity  will  not  mar- 
shal securities  except  as  against  a  common 
debtor,  and  will  never  do  so  where  it  will 
work  injustice  to  an  innocent  third  per- 
son.    Hite  V.  Reynolds  (Ky.)  1917B-619. 

2.    GENERAL  PRINCIPLES  OF  PLEAD- 
ING AND   PRACTICE. 

a.     Bill. 

7.  Decree  for  Distribution  of  Trust  Es- 
tate— Vacation  for  Fraud — Sufaciency  of 
Pleading.  Since  it  is  incumbent  on  a  trus- 
tee, in  proceedings  to  terminate  the  trust, 
to  fully  advise  the  court  as  to  all  material 
facts  "affecting  the  distribution  of  the 
estate  upon  the  determination  of  the  trust 
and  to  satisfy  himself  beyond  doubt  of  the 
persons  legally  and  equitably  entitled  to 
the  fund,  a  bill  to  set  aside  a  decree  ter- 
minating the  trust  and  distributing  the 
property,  alleging  that  complainant,  the 
husband  of  the  beneficiary  for  life,  was 
entitled  to  the  trust  fund,  but  that,  by 
fraudulent  concealment  of  the  fact  that 
the  beneficiary  died  leaving  a  husband,  he 
was  not  njade  a  party  to  the  bill,  and  it 
was  made  to  appear  to  the  court  that  the 
wife's  heirs  were   the   only  parties  in   in- 


EQUITY. 


329 


terest,  and  for  this  reason  the  property 
was  ordered  distributed  to  them,  suffi- 
ciently charged  fraud  in  procuring  the 
original  decree  to  state  a  cause  of  action 
for  equitable  relief.  Quinn  v.  Hall  (R.  I.) 
1917C-373. 

8.  Exhibits.  In  a  suit  in  equity  the 
court  may  look  to  the  exhibits  to  ascer- 
tain the  nature  of  the  cause  of  action. 
Stuckey  v.  Stephens  (Ark.)  1917A-133. 

9.  Variance    Between    Bill    and    Proof. 

The  allegations  of  a  bill  and  the  proofs 
must  correspond,  and  a  complainant,  to 
recover  at  all,  must  do  so  on  the  case 
made  by  his  bill,  and  will  not  be  per- 
mitted to  state  one  case  therein  and  make 
a  different  case  by  his  proof;  and,  even 
though  the  evidence  may  make  a  meri- 
torious case,  if  it  is  variant  from  the  case 
made  by  the  bill,  the  bill  should  be  dis- 
missed. Houlihan  v.  Morrissey  (HI.) 
1917A-364. 

10.  "Upon  a  bill  for  partition  of  real 
estate  and  for  other  relief,  which,  after 
an  answer  denying  complainants'  inter- 
est in  the  land,  was  amended  to  allege 
that  after  the  filing  of  the  original  bill 
complainants  found  the  record  of  a  quit- 
claim deed,  purporting  to  be  signed  by 
them,  conveying  all  their  interest  to  the 
answering  defendant,  that  complainants 
had  not  knowingly  executed  such  deed, 
and  that  no  consideration  was  given  there- 
for, but  that  they  signed  it  upon  the 
fraudulent  representation  that  it  was 
necessary  to  enable  the  answering  de- 
fendant to  be  appointed  administratrix  of 
the  estate  and  to  claim  that  the  three 
complainants  each  owned  an  undivided 
one-eighth  of  the  premises,  that  the  an- 
swering defendant  owned  an  undivided 
five-eighths,  with  a  prayer  that  the  deed 
be  set  aside  and  for  partition — decree  en- 
tered on  a  master's  report,  finding  that 
complainants  signed  the  deed  under  the 
belief  that  it  was  necessary  to  enable  the 
answering  defendant  to  administer  the 
estate,  and  that,  notwithstanding  it  and 
because  of  the  fiduciary  relations  existing 
between  grantors  and  grantee,  the  grant- 
ors were  entitled  to  a  one-eighth  share  in 
all  of  the  real  estate,  will  be  reversed,  be- 
cause it  rested  upon  a  different  state  of 
facts  than  that  alleged  in  the  bill.  Houli- 
han v.  Morrissey  (111.)  1917A-364. 

11.  Necessity  of  Filing  Exhibits.  Under 
general  equity  rule  No.  4,  providing  that 
no  order  or  process  shall  be  made  or  is- 
sued upon  any  bill  until  it,  together  with 
all  the  exhibits  referred  to  as  parts  there- 
of, is  actually  filed  with  the  clerk,  the 
will  of  the  deceased,  referred  to  in  a 
paragraph  of  a  bill  to  charge  his  estate, 
was  a  necessary  part  thereof,  and  should 
have  been  filed  with  the  bill.  Henderson 
V.  Harper -(Md.)    1917C-93. 

12.  Multifariousness.  In  testing  a  bill 
for  multifariousness,   the   whole  bill  must 


be  considered;  each  ease  depending  on  its 
own  merits.  Webb  v.  Butler  (Ala.) 
1916D-815. 

13.  The  trial  court  has  considerable  dis- 
cretion in  determining  whether  a  bill  is 
multifarious.  Webb  v.  Butler  (Ala.) 
1916D-815. 

14.  Ala.  Code  1907,  §  3095,  declares  that 
a  bill  is  not  multifarious  which  seeks  al- 
ternative or  inconsistent  relief  growing 
out  of  the  same  subject-matter,  or  founded 
on  the  same  transaction,  or  relating  to 
the  same  property  between  the  parties. 
Before  becoming  a  partner  in  a  banking 
venture,  one  of  defendants  transferred 
land  to  his  daughter.  The  partnership  be- 
came insolvent,  and  such  defendant  there- 
after executed  a  second  deed  to  his 
daughter;  the  first  being  defective.  Held 
that,  in  a  suit  to  compel  such  defendant 
to  pay  his  pro  rata  share  of  the  firm  debts, 
the  daughter  could  not  be  joined  as  a 
party  and  the  conveyance  to  her  ques- 
tioned, for,  while  multiplicity  of  suits 
should  be  avoided,  that  would  make  the 
bill  multifarious  as  to  the  daughter;  multi- 
fariousness being  where  a  defendant  is 
brought  in  upon  a  record,  a  large  portion 
of  which  he  has  no  connection  with,  or 
where  plaintiff  demands  several  different 
matters  of  different  natures  of  different 
defendants  by  the  same  bilL  Webb  v. 
Butler  (Ala.)  1916D-815. 

b.     Cross-bill. 

15.  Necessity  of  Cross-bill.  Defend- 
ants can  ask  for  affirmative  relief  only 
by  a  cross-bill,  and  not  by  an  amended 
answer,  on  plaintiff  amending  the  bill  to 
meet  the  requirement  that  decree  for  him 
conform  to  the  frame  and  prayer  of  the 
bill.  Hanscom  v.  Maiden  etc.  Gaslight  Co. 
(Mass.)    1917A-145. 

16.  Disregarding  Erroneous  Designation. 

Though  a  bill  be  styled  a  cross-bill,  it  will 
be  treated  for  what  it  really  is,  and  if  it 
contains  proper  matter  calling  for  the  re- 
lief prayed  for  it  will  be  treated  as  an 
original  bill.  Mankin  v.  Dickinson  (W. 
Va.)    1917D-120. 

c.     Amendments. 

17.  If,  to  meet  the  requirement  that  de- 
cree for  plaintiff  must  conform  to  the 
frame  and  prayer  of  the  bill,  plaintiff  con- 
siders it  necessary  to  set  out  further  mat- 
ter on  the  record,  he  should  ask  leave  to 
amend  the  substance  and  prayers  of  the 
bill.  Hanscom  v.  Maiden,  etc.  Gaslight  Co. 
(Mass.)    1917A-145. 

18.  Kight  to  Answer  or  Demur.  To  an 
amendment  of  the  bill  to  meet  the  require- 
ment that  decree  for  plaintiff  must  con- 
form to  the  frame  and  prayer  of  the  bill 
defendants  may  file  a  demurrer  or 
amended  answer.  Hanscom  v.  Maiden,  etc. 
Gaslight  Co.  (Mass.)  1917A-14o. 


330 


DIGEST. 

1916C— 1918B. 


19.  Bill  for  Wrong  Relief.     A  bill   to 
-enjoin    the    foreclosure    of    a    mortgage, 

seeking  merely  a  permanent  injunction, 
■which  would  not  furnish  adequate  relief 
nor  fully  work  out  the  equitable  rights  of 
the  parties,  will  be  held  in  order  that,  by 
proper  amendments  and  the  bringing  in 
of  all  parties  in  interest,  a  redemption 
might  be  had,  Gato  v.  Christian  (Me.) 
1917A-592. 

d.    Demurrer. 

20.  Waiver  of  Objection.  Where  defend- 
ant fails  to  demur  for  lack  of  equitable 
jurisdiction  of  the  subject-matter  to  a 
complaint  to  protect  an  easement,  and  also 
joins  in  an  application  for  equitable  re- 
lief, any  objection  on  that  ground  ia 
waived.  Nicholas  v.  Title,  etc.  Co.  (Ore.) 
1917A-1149. 

«.     Dismissal  of  Bill. 

21.  Effect  as  Admitting  Allegations  of 
Bill.  A  motion  to  dissolve  a  temporary 
injunction  and  dismiss  a  bill  may  be 
treated  as  a  demurrer,  admitting  all  the 
facts  in  the  bill  well  pleaded.  Durand  v. 
Dyson  (111.)   1917D-84. 

22.  Eight  of  Complainant  in  Equity  to 
Dismiss.  Under  Mich.  Comp.  Laws  1897, 
§  10268,  providing  that  the  court  may 
amend  any  pleading,  in  form  or  substance, 
in  furtherance  of  justice,  on  such  terms 
as  shall  be  just,  at  any  time  before  judg- 
ment, a  complainant  may  not  dismiss  his 
complaint  where  the  dismissal  would  pre- 
judice the  defendant  in  some  way  other 
than  the  prospect  of  being  harassed  by 
future  litigation,  and  where,  in  a  suit  to 
redeem  from  a  usurious  mortgage,  the  de- 
fendant incorporated  in  his  answer  a 
cross-bill  for  its  enforcement,  and  there- 
after sought  leave  to  dismiss  such  bill,  the 
request  was  properly  denied,  as  defendant 
would  have  been  prejudiced  thereby,  since, 
after  dismissal  of  the  cross-bill,  he  would 
have  been  entitled  to  recover  the  debt  and 
the  legal  statutory  rate  of  five  per  cent 
interest,  while,  with  the  answer  un- 
amended, no  interest  was  recoverable. 
Leach  v.  Dolese  (Mich.)   1917A-11S2. 

(Annotated.) 

23.  An  order  dismissing  a  bill  on  mo- 
tion of  complainant  before  the  entry  of 
a  final  decree  after  a  demurrer  to  the  bill 
was  sustained,  is  not  a  bar  to  a  bill  sub- 
sequently filed  alleging  the  same  facts 
and  seeking  the  same  relief,  since  com- 
plainant has  the  right  either  to  ask  leave 
to  amend  the  bill  or  to  dismiss  it  in  order 
that  he  may  thereafter  file  a  new  bill. 
Fischheimer  t.  Kupersmith  (HI.)  1917A- 
1195.  (Annotated.) 

24.  The  rule  with  reference^  to  allow- 
ing the  dismissal  of  an  equity  cause  by 
complainant  without  prejudice,  announced 


in  Tilghman  Cypress  Co.  v.  John  R.  Young 
Co.,  60  Fla.  382,  53  So.  939,  reaffirmed  and 
applied.  Mayfield  v.  Wernicke  Chemical 
Co.  (Fla.)  1917A-1193.  (Annotated.) 

25.  Dismissal  by  Court.  Under  Ore. 
L.  O.  L.  §  411,  providing  that,  whenever 
upon  the  trial  it  is  determined  that  the 
plaintiff  is  not  entitled  to  the  relief 
claimed,  or  any  part  thereof,  a  decree 
shall  be  given  dismissing  the  suit,  a 
motion  to  dismiss  a  suit  in  equity  is 
proper,  where  the  plaintiffs  have  the  bur- 
den of  proof  and  fail  to  make  a  prima 
facie  case.  Haney  v.  Parkison  (Ore.) 
1916D-1035. 

Note. 

Eight  to  voluntary  dismissal  of  bill  in 
equity.     1917A-1185. 

f.     Submission  on  Bill  and  Answer. 

26.  Wbere  a  case  is  submitted  on  bill 
and  answer,  the  answer  must  be  taken  as 
true  so  far  as  responsive  to  the  bill. 
Lyon  V.  Hyattsville  (Md.)  1916E-765. 

27.  Time  for  Taking  Testimony.  No 
abuse  of  judicial  discretion  is  shown  by  a 
circuit  judge  in  refusing  to  enlarge  the 
time  for  taking  testimony  in  a  chancery 
case,  when  th«  application  to  enlarge  was 
made  six  weeks  after  the  cause  had  been 
properly  set  down  for  hearing  on  bill,  an- 
swer and  replication,  and  no  sufficient  ex- 
planation is  made  of  the  delay  in  making 
the  application.  Mayfield  v.  Wernicke 
Chemical  Co.  (Fla.)  1917A-1193. 

28.  Effect  of  Want  of  Eeplication.  In 
the  absence  of  a  replication,  the  answer 
of  a  defendant  in  an  equity  suit  is  taken 
as  true  for  the  purposes  of  the  case,  if 
the  defendant  has  not  taken  depositions 
as  if  one  had  been  filed  and  thus  sub- 
mitted the  case  upon  its  merits.  McCoy  v. 
McCoy  (W.  Va.)    1916C-367. 

g.     Finding  of  Court. 

29.  Materiality  of  Finding  —  Action  to 
Enjoin  Deed  After  Foreclosure.  Where,  in 
an  action  to  enjoin  the  execution  and  de- 
livery of  a  sheriff's  deed  to  the  holder  of 
a  certificate  of  sale  under  a  decree  of 
foreclosurej  it  appeared  that  plaintiff  had 
no  right  in  the  premises  as  against  the 
mortgagees  or  their  assigns,  a  finding  as  to 
the  rights  of  one  to  whom  the  certificate 
of  sale  had  been  transferred  is  immf?terial 
so  far  as  plaintiff  is  concerned.  Coe  v. 
Wormell  (Wash.)   1917C-679. 

h.     Advisory  Verdict. 

30.  The  chancellor  may  submit  to  a 
jury  an  issue  of  fact  in  a  case  of  purely 
equitable  cognizance,  but  the  verdict  is 
not  binding  on  him.  Anheier  v.  De  Long 
(Ky.)  1917A-1239. 


EQUITY  OF  REDEMPTION— ESCROW. 


331 


i.     Decree,  Form  and  Contents. 

31.  Scope  of  Bill.  If  a  decree  is  justi- 
fied under  any  of  the  prayers  of  a  bill,  it 
is  good.  Schnepfe  v.  Schnepfe  (Md.) 
I916D-988. 

32.  Equity  —  Practice  —  Formulation  of 
Decree.  Proceeding  for  final  decree  is  by 
setting  down  the  case  for  final  .Jiearing 
thereon;  the  prevailing  party  prtparing 
and  submitting  a  draft  in  the  totm  de- 
sired. Hanscom  v.  Maiden,  etcv  Qdlslight 
Co.   (Mass.)   1917A-145. 

33.  Conformity  to  BilL  Decree  for 
plaintiff  must  conform  to  the  frame  and 
prayer  of  the  bill.  Hanscom  v.  Maiden, 
etc.  Gaslight  Co.   (Mass.)    1917A-145. 

34.  Relief  Granted-  Belief  may  be 
adapted  to  the  facts  and  law  existing  at 
the  time  of  entry  of  final  decree.  Hans- 
com V.  Maiden,  etc.  Gaslight  Co.  (Mass.) 
1917A-145. 

3.     BILLS  OP  EEVIEW. 
a.     What  is  Bill  of  Eeview. 

35.  Bill  in  Nature  of  Bill  of  Review. 
Where  a  bill  by  a  third  person  to  set  aside 
a  decree  for  alleged  fraud  in  failing  to 
make  complainant  a  party  to  the  suit 
stated  a  cause  of  action  appropriate  to  a 
bill  in  the  nature  of  a  bill  of  review  and 
not  to  a  strict  bill  of  review,  the  use  of 
the  word  "review"  in  the  prayer  of  the 
bUl,  and  the  fact  that  complainant  applied 
to  a  justice  for  leave  to  file  the  bill,  does 
not  require  the  court  to  consider  the  bill 
a  strict  bill  of  review.  Quinn  v.  Hall 
(R.  L)   1917C-373. 

b.     Who  may  Maintain. 

36.  Aggrieved  Person  Other  Than  Party. 
A  strict  bill  of  review  can  be  filed  only 
by  a  party  to  the  original  cause  or  by  one 
in  privity  with  such  party;  other  persons 
aggrieved  by  the  decree  sought  to  be  re- 
viewed being  required  to  proceed  by 
original  bill  in  the  nature  of  a  bill  of 
review,     Quinn  v.  Hall  (R.  I.)  1917C-373. 

c.     Venue. 

37.  Vacation  of  Decree  for  Distribution 
— Venue  of  Proceeding  to  Vacate.  Court 
&  Practice  Act  1905,  §  4  (R.  I.  Gen.  Laws 
1909,  c.  273,  §  I),  provides  that  there  shall 
be  a  superior  court  which  shall  consist  of 
a  presiding  justice  and  five  associate  jus- 
tices. Other  sections  require  the  holding 
of  sessions  of  the  court  by  a  single  justice 
in  one  or  more  places  at  the  same  time 
and  at  stated  times  in  the  different  coun- 
ties of  the  state  for  convenience  of  liti- 
gants; the  various  sessions  in  the  several 
counties  being  held  by  the  same  justices. 
It  is  held  that,  where  complainant,  in  a 
suit  in  the  nature  of  a  bill  of  review  to 
set  aside  a  decree  terminating  a  trust  and 


distributing  the  property,  was  a  nonresi- 
dent, and  the  trustee  was  a  resident  of  N. 
county,  the  bill  was  properly  filed  in  that 
county,  as  provided  by  Gen.  Laws  1909, 
c.  283,  §  2,  regardless  of  the  fact  that  the 
decree  attacked  was  rendered  and  of  rec- 
ord in  P.  county;  the  court  having  full 
jurisdiction  in  the  suit  in  N.  county  to 
nullify  such  decree  and  to  show  such  nulli- 
fication by  a  certified  copy  of  the  decree 
rendered,  filed  in  •  P.  county.  Quinn  v. 
Hall  (R.  I.)  1917C-373. 

d.    Grounds. 

38.  To  Review  Interlocutory  Decree. 
In  a  suit  to  foreclose  trust  deeds,  a  decree 
that  it  was  intended  that  the  deeds  should 
include  the  grantor's  homestead,  reform- 
ing the  description,  finding  the  amount 
due,  priority  as  between  the  deeds,  and 
appointing  a  master  to  ascertain  the 
amount  due  on  the  second  deed,  is  inter- 
locutory only,  and  a  bill  of  review  for 
newly  discovered  evidence  will  not  lie;  an 
application  in  the  suit  for  leave  to  intro- 
duce further  evidence  being  the  proper 
remedy.    Davis  v.  Hale  (Ark.)  1916D-701. 

39.  In  a  suit  to  foreclose  a  deed  of  trust 
on  a  homestead,  evidence  that  the  wife  of 
the  mortgagor  has  not  acknowledged  the 
deed  is  not  newly  discovered  matter  sufl5- 
cient  to  support  a  bill  of  review.  Davis 
V.  Hale  (Ark.)  1916D-701. 

EQUITY   OF    REDEMPTION. 
See  Mortgages  and  Deeds  of  Trust,  23. 

ERASURE. 
See  Alteration  of  Instruments,  12. 

ERROR. 
See  Appeal  and  Error. 

ERROR  OF  JUDGMENT. 

Physician    not   liable   for,  see   Physicians 
and  Surgeons,  26. 

ERRORS  OF  LAW. 

Not   considered  on  motion  for  new  tritl, 
see  New  Trial,  4. 

ESCROW. 

1.  "Second  Delivery."  The  legal  deliv- 
ery by  the  depositary  of  a  deed  placed  in 
escrow  is  teehnicallv  known  as  the  "second 
delivery."  Thornhxll  v.  Olson  (N.  Dak.) 
1917E-427. 

2.  Unauthorized  Delivery  by  Escrow 
Holder.  One  Havlicheck  and  wife  en- 
tered into  a  written  contract  of  sale  of  400 
acres  of  land,  near  Minot,  to  plaintiffs'. 
Eighty  acres  of  Illinois  land  was  to  be  ac- 


332 


DIGEST. 

1916C— 1918B. 


cepted  in  part  payment.  The  contract 
provided  for  inspection  of  the  Illinois 
land.  It  was  reported  to  be  satisfactory. 
H.  and  wife  then  executed  to  Thornhill 
their  warranty  deed  to  the  400  acres  and 
a  bill  of  sale  of  the  personal  property 
thereon,  pursuant  to  the  contract.  Plain- 
tiffs executed  their  deed  to  the  Illinois 
land.  All  deeds,  bill  of  sale,  and  the  pre- 
liminary contract  of  sale,  accompanied  by 
a  written  escrow  agreement,  were  de- 
posited in  the  Second  National  Bank  of 
Minot.  This  bank  received  as  depositary 
in  escrow  all  of  the  deeds  to  be  delivered 
according  to  the  conditions  of  the  written 
escrow  agreement,  which  provided  that 
the  deeds  were  "to  be  delivered  to  the 
parties  who  are  entitled  to  same  upon  per- 
formance of  the  agreements  set  forth"  in 
the  preliminary  agreement  of  purchase 
and  sale  of  the  land.  The  original  sale 
agreement  stipulated  for  an  initial  pay- 
ment of  $1,  made  and  received;  that  cer- 
tain mortgages  should  be  assumed  by  the 
purchaser;  and  the  further  payment  of 
$3,000  in  cash  should  be  made  by  Thorn- 
hill  to  H.,  but  with  no  definite  time  fixed 
for  payment.  Abstracts  of  title  to  all 
land  here  and  in  Illinois  were  also  to  be 
furnished.  No  stipulation  was  made  for 
inspection  of  them.  These  papers  were 
so  deposited  in  escrow  on  April  15,  1912. 
Four  days  later  H.  and  wife  executed  and 
delivered  their  warranty  deeds,  immedi- 
ately placed  of  record,  to  the  400  acres  to 
defendant,  Olson,  as  grantee,  who,  under 
the  findings  of  the  jury,  it  must  be  as- 
sumed, bought  with  notice  of  the  escrow 
arrangement  and  the  previous  deposit  of 
the  papers  thereunder  with  the  bank.  On 
April  23d  plaintiffs  procured  title  to  the 
Elinois  tract,  which  before  that  time  they 
did  not  own,  although  they  had  attempted 
to  deed  same  by  the  invalid  deed  in  which 
the  wife  of  one  of  said  grantors  had  not 
joined,  and  which  deed  had  been  one  of 
the  instruments  deposited  in  escrow. 
May  11th  a  second  and  valid  deed  to  the 
Illinois  tract  was  deposited  with  the  bank 
to  replace  the  invalid  one,  or  to  cure  any 
defect  of  title  thereunder,  and  on  that 
day  plaintiff  served  notice  on  H.  and  wife 
to  appear  at  the  bank  at  a  certain  hour 
that  day  to  close  up  the  escrow  matter. 
They  did  not  appear.  On  April  19th 
Thornhill  served  Olson  with  a  written 
notice  of  the  escrow  arrangement,  stating 
that  "all  interest,  right,  or  title  you  ac- 
quire in  said  premises  you  take  subject 
to  the  equities  of  the  undersigned  under 
and  by  virtue  of  said  contract  for  deed." 
On  May  11th  plaintiffs,  acting  by  their 
agent,  the  Brush-McWilliams  Company, 
deposited  with  said  bank  a  cheek  drawn 
by  plaintiffs  on  an  Illinois  bank  and  in- 
dorsed by  the  Brush-McWilliam  Company, 
which  check  was  payable  to  said  bank,  as 
payee,  for  the  sum  of  $3,000.  The  bank 
thereupon  treated  the  check  as  cash,  but 


retained  it,  and  it  never  has  been  cashed. 
On  deposit  with  it  of  said  check,  the  bank 
delivered  on  May  11th  the  deed  of  H.  and 
wife,  held  by  it  in  escrow,  to  plaintiffs. 
Neither  H.  and  wife  nor  Olson  has  ever 
participated  in  the  escrow  proceedings  af- 
ter April  loth,  nor  done  any  act  to  recog- 
nize the  same,  or  toward  performance  of 
the  original  contract  of  sale,  after  the 
deposit^in  escrow  made  April  15th;  but  on 
the  coatrary  have  disregarded  the  same, 
OlsonvAering  claimed  at  all  times  to  have 
been  a  good  faith  purchaser,  without  no- 
tice of  the  escrow  proceedings.  He  has 
paid  H.  and  wife  part,  if  not  all,  of  the 
consideration  for  his  deed.  The  action, 
though  in  equity  to  quiet  title,  is  based 
upon  title  arising  under  a  valid  delivery 
by  the  bank  to  plaintiffs  of  the  deed  in 
escrow.  It  was  tried  as  a  law  action  to  a 
jury,  which  found  for  plaintiffs  for  pos- 
session and  $750  damages  for  detention 
thereof.  Findings  and  conclusions  were 
also  made  in  accordance  with  and  supple- 
mental to  the  verdict.  Defendant  appeals 
as  in  an  action  at  law  on  specifications  of 
error,  and  not  as  on  a  trial  de  novo,  and 
the  case  is  submitted  on  appeal  as  a  law 
case  on  an  appeal  from  both  an  order 
denying  a  new  trial  and  from  the  judg- 
ment. It  is  held  that  the  delivery  of  the 
deed  by  the  bank  to  plaintiffs  was  un- 
authorized, and  was  in  disregard  of  the 
escrow  agreement  in  that  it  was  delivered 
without  a  cash  payment  made  by  plaintiffs 
of  $3,000  to' said  depositary,  as  was  stipu- 
lated for  by  the  escrow  agreement  before 
a  valid  second  delivery  of  the  deed  could 
be  made.  Thornhill  v.  Olson  (N.  Dak.) 
1917E-427. 

3.  Under  the  escrow  agreement  said 
depositary  was  without  authority  to  ac- 
cept a  check  as  and  in  lieu  of  a  cash 
payment,  and  the  doctrine  of  substantial 
performance  does  not  apply  to  a  second 
delivery  of  deeds  under  a  written  escrow 
agreement.  Thornhill  v.  Olson  (N.  Dak.) 
1917E-427. 

4.  Effect  of  Unauthorized  Delivery  by 
Escrow  Holder.  The  conditions  stipulated 
for  in  an  escrow  agreement  in  writing, 
upon  which  the  second  delivery  of  the 
deed  shall  be  made,  are  conditions  prece- 
dent to  its  valid  second  delivery,  and  the 
consent  of  the  grantor  to  its  second  deliv- 
ery is  deemed  to  be  withheld  until  full 
compliance  has  been  had  with  the  escrow 
agreement.  As  a  deed  delivered  without 
consent  of  the  grantor  passes  no  title,  con- 
sent being  essential  to  its  validity,  a  deed 
delivered  by  the  depositary  in  violation  of 
the  escrow  agreement  is  no  delivery  and 
passes  no  title.  Thornhill  v.  Olson  (N. 
Dak.)    1917E-427.  (Annotated.) 

5.  The  depositary  is  the  agent  of  both 
parties,  but  neither  for  one  more  than  th© 
other,  and  is  empowered  to  aid  neither, 
and  is  merely  a  conduit  used  in  passing 


ESPIONAGE  ACT— ESTATES. 


333 


title  for  convenience  and  safety.  A  deliv- 
ery by  the  depositary  in  excess  of  its 
powers  is  a  nullity.  Thornhill  v.  Olson 
(N.  Dak.)  1917i>-427.  (Annotated.) 

6.  The  reception  by  the  bank  of  the 
check  in  lieu  of  money  did  not  amount  to 
a  loan  of  money  by  the  bank  to  the  plain- 
tiffs, and  will  not  be  treated  as  such. 
Thornhill  v.  Olson  (N.  Dak.)  1917E-427. 

(Annotated.) 

7.  The  act  of  the  depositary  in  accept- 
ing the  check  as  cash  was  not  the  act  of 
the  grantors,  but  was  void  as  in  excess  of 
authority  conferred  by  them  upon  the 
bank.  Thornhill  v.  Olson  (N.  Dak.) 
1917E-427,  (Annotated.) 

8.  The  question  involved  is  one  of  per- 
formance of  the  escrow  agreement — not  of 
the  ability  of  the  plaintiffs  to  perform 
that  agreement — as  such  ability,  without 
full  performance,  cannot  amount  to  com- 
pliance. Thornhill  v.  Olson  '(N.  Dak.) 
1917E-427.  (Annotated.) 

9.  Unauthorized  Delivery.  The  evi- 
dence is  held  to  be  sufficient  to  sustain  the 
findings  of  the  jury  that  the  note  was 
delivered  to  the  managing  officer  of  both 
the  payee  and  plaintiff  corporations,  and 
under  an  escrow  agreement,  and  that  the 
delivery  to  the  payee  by  the  holder  in 
escrow  was  made  in  disregard  of  and  con- 
trary to  and  without  compliance  with  the 
terms  of  the  escrow  agreement.  Northern 
Trust  Co.  V.  Bruegger  (N.  Dak.)  1917E- 
447. 

10.  Under  such  findings  the  instrument 
never  was  delivered  and  is  void  ab  initio, 
and  evidence  offered  by  defendant  to  es- 
tablish the  escrow  agreement  is  admis- 
sible. Northern  Trust  Co.  v.  Bruegger 
(N.  Dak.)   1917E-447.  (Annotated.) 

11.  A  delivery  so  made  constitutes  in 
law  no  delivery  of  the  instrument.  North- 
ern Trust  Co,  v.  Bruegger  (N.  Dak.) 
1917E-447.  (Annotated.) 

12.  The  maker  of  a  note  deposited  in  es- 
crow is  held  not  to  have  waived  the  con- 
ditions of  the  escrow  agreement,  nor  es- 
topped himself  from  asserting  it  as  a  de- 
fense. Northern  Trust  Co.  v.  Bruegger 
(N.  Dak.)   1917E-447.  (Annotated.) 

Note. 

Effect  on  rights  of  parties  of  unauthor- 
ized delivery  by  escrow  holder.  1917E- 
435. 

ESPIONAGE  ACT. 

See  War,  19-25. 

Nonmailable  matter,  see  Postoffice,  2, 

ESTABLISHMENT  OF  GEADE. 

See  Streets  and  Hieliways.  5-7. 


ESTATE.         , 
Meaning,  see  Executors  and  Administra- 
tors, 1. 

ESTATES. 

See  Curtesy;  Dower;  Easements;  Home- 
stead; Joint  Tenants;  Life  Estates; 
Remainders  and  Eeversions;  Tenants 
in  Common. 

Deed  of  estate  in  futuro,  see  Deeds,  27. 

Deed  of  expectancy,  see  Deeds,  28,  29. 

Assignment  of  prospective  inheritance,  se» 
Descent  and  Distribution,  10-14. 

Estates  of  lunatics,  see  Insanity,  17,  18. 

When  option  creates  a  vested  estate  and 
when  a  contingent  one,  see  Perpetui- 
ties, 3. 

1.  Abolition  of  Estates  Tail.  HI.  Con- 
veyance Act  (Hurd's  Eev.  St.  1913,  c.  30) 
§  6,  providing  that  where  by  the  common 
law  any  person  might  become  seised  in 
fee  tail  he  shall  be  deemed  to  become 
seised  for  life  only,  and  the  remainder 
shall  pass  in  fee  simple  absolute  to  the 
person  to  whom  the  estate  tail  would  on 
the  first  grantee's  death,  pass,  abolishes 
estates  in  fee  tail,  and  the  only  use  made 
of  the  rule  concerning  such  estates  is  to 
determine  whether  a  grantee  would  have 
become  seised  in  fee  tail  at  common  law, 
and,  where  a  deed  purporting  to  grant  a 
present  estate  in  possession  to  a  grantee 
named  and  the  heirs  of  his  body  did  not 
in  terms  purport  to  grant  a  future  estate, 
the  question  is  whether  it  granted  to  the 
grantee  an  estate  limited  to  a  particular 
class  of  heirs  which  would  have  been  a 
fee  tail  at  the  common  law  and  which  the 
statute  has  converted  into  an  estate  for 
life  with  remainder  to  bodily  heirs  con- 
tingent on  birth  of  issue.  Duffield  V. 
Duffield  (111.)  1916D-859. 

2.  Contingent  Estate.  Under  a  deed  to 
one  and  her  heirs,  and  if  she  dies  without 
issue  in  the  lifetime  of  her  father  then  to 
her  mother,  the  grantee's  estate  becomes 
absolute  by  her  surviving  her  father.  Lee 
v.  Oates  (N.  Car.)  1917A-514. 

3.  Merger  of  Estates.  Where  testatrix 
bequeathed  the  income  of  the  remainder 
of  her  estate  to  her  husband,  and  after 
his  death  to  her  son  in  trust,  to  share  the 
income  equally  between  them  during  their 
joint  lives,  the  survivor  to  have  the  whole 
income  during  his  life,  and,  after  the  death 
of  the  survivor,  the  property  to  be  divided 
among  testatrix's  nephews  and  nieces,  the 
fact  that  the  legal  title  vested  in  the  hus- 
band, and  on  his  death,  leaving  the  son 
surviving,  in  the  son  as  trustee,  and  also 
the  equitable  estate  for  life,  does  not 
create  a  merger  in  equity,  since  to  do  so 
would  bar  the  interests  of  the  remain- 
derman. Sherlock  v.  Thompson  (Iowa) 
1917A-1216.  (Annotated.) 

4.  Such  payment  did  not  as  a  mat- 
ter of  law  work  a  merger  of  the  inter- 
ests of  the  mortgagees  and  the  owner — 
merger    under    the    circumstances    beins^ 


334 


DIGEST. 

1916C— 1918B, 


optional  wth  the  owner.     New  v.  Smith 
(Kan.)  1917B-362. 

5.  Where  a  trust  for  life  with  remain- 
der by  way  of  shifting  use  or  conditional 
limitation  becomes  executed  as  to  the  life 
estate  uniting  the  equitable  and  legal  es- 
tate in  the  life  tenant,  and  both  the  life 
estate  and  remainders  are  conveyed  to 
one  person,  the  entire  legal  and  equitable 
estates  are  merged  in  him.  Lee  v.  Gates 
(N.  Car.)  1917A-514. 

6.  Execution  by  Statute  of  Uses  — 
Merger  of  Estates.  Where  a  trust  for  the 
separate  use  and  maintenance  of  a  mar- 
ried womaji  becomes  passive  by  the  death 
of  her  husband,  the  statute  executes  the 
use  and  unites  the  legal  and  equitable  es- 
tate in  her.  Lee  v.  Gates  (N.  Car.) 
1917A-514. 

Notes. 

Ebtate  created  by  grant  or  devise  of 
life  estate  with  absolute  power  of  dis- 
position.    1916I>-400. 

Merger  of  estates  where  life  tenant  is 
also  trustee  of  property.     1917A-12ai. 

ESTATES  TAIL. 
Abolition  of,  see  Estates,  1. 

ESTOPPEL, 

1.  In  General,  334. 

2.  Equitable  Estoppel  or  Estoppel  in  Pais, 

33-t. 

a.  In  General,  334. 

b.  Estoppel  by  Silence,  335. 

c.  Assuming     Inconsistent     Positions, 

335. 

(1)  In  General,   335. 

(2)  In  Judicial  Proceedings,  335. 

Acquiescence  in  execution  of  party  wall, 
see  Adjoining  Landowners,  3. 

Agency  by  holding  out,  see  Agency,  14,  18. 

To  object  to  alteration  of  contract,  see 
Alteration  of  Instruments,  10-12. 

To  raise  point  on  appeal,  see  Appeal  and 
Error,  434-442. 

To  set  off  tort  claim  against  judgment,  see 
Bankruptcy,  11. 

To  set  up  ultra  vires,  see  Banks  and  Bank- 
ing, 2. 

To  urge  forgery,  see  Bills  and  Notes,  53, 
54. 

Conditions  precedent  to  establishment  of 
boundary  by  estoppel,  see  Boundaries, 
2. 

To  assail  unconstitutionality,  see  Consti- 
tutional Law,  114,  115. 

To  deny  dedication,  see  Dedication,  1-3, 
28. 

To  sue,  by  acquiescence,  see  Ejectment,  2. 

To  attack  executor's  sale,  see  Executors 
and  Administrators,  45. 

To  deny  lessor's  title,  see  Landlord  and 
Tenant,  53. 

To  claim  lien,  see  Mechanics'  Liens,  32, 
35. 


Estoppel  to  object  to  nuisance,  see  Nui- 
sances, 17. 

Pleading  estoppel,  see  Pleading,  9G. 

Invocation  in  aid  of  Sunday  contract,  seo 
Sundays  and  Holidays,  5,  6. 

By  obligee  to  object  to  joint  form  of  bond, 
see  SuretysMp,  3. 

Of  taxpayer  in  recovery  back  of  illegal 
taxes,  see  Taxation,  110. 

To  set  up  usury,  see  Usury,  20. 

Of  purchaser  to  deny  vendor's  title,  see 
Vendor  and  Purcliaser,  8. 

To  probate  later  will  by  assent  to  previ- 
ous probate,  see  Wills,  142. 

1.     IN  GENERAL. 

1.  As  Establishing  Ownership  of  Line 
Hedge.  The  doctrine  of  estoppel  cannot 
be  invoked  to  settle  the  ownership  of  a 
hedge  fence  when  the  issues  of  fact  raised 
by  the  parties  are  so  determined  by  the 
evidence  and  the  findings  of  the  court  as 
to  preclude  the  operation  of  estoppel. 
Wideman  ▼.  Faivre  (Kan.)  1918B-1168. 

2.  EQUITABLE    ESTOPPEL    OB    ES- 

TOPPEL IN  PAIS. 

a.     In  General. 

2.  Delivery  of  Mortgage  by  Owner  to 
Person  of  Same  Name.  A  mortgagee  de- 
posited for  safe-keeping  the  mortgage  and 
bond  secured  thereby  with  a  nephew,  who 
bore  the  same  name  as  the  mortgagee,  and 
who  executed  in  his  own  handwriting  an 
assignment  of  the  mortgage  and  bond,  and 
obtained  from  the  assignee  a  loan,  pay- 
ment of  which  was  guaranteed  by  a  third 
person.  The  bond  and  mortgage  were  de- 
livered to  the  assignee  together  with  the 
assignment.  The  mortgagee  had  no  knowl- 
edge of  the  transaction.  The  assignee  and 
the  third  person  acted  in  good  faith. 
Held,  though  an  owner  who  intends  to  put 
the  title  in  the  name  of  another,  rather 
than  in  his  own  name,  may  lose  ownership 
by  estoppel,  the  mortgagee  was  not  es- 
topped by  any  representation  from  insist- 
ing on  his  ownership  of  the  mortgage  and 
bond.  People's  Trust  Co.  v.  Smith  (N.  Y.) 
1917A-560.  (Annotated.) 

3.  A  mortgagee  deposited  for  safe-keep- 
ing the  mortgage  and  bond  secured  there- 
by with  a  nephew  bearing  the  same  name 
as  the  mortgagee.  The  bond  and  mort- 
gage were  not  accompanied  by  any  blank 
form  of  transfer  signed  by  the  mortgagee. 
There  was  nothing  to  indicate  that  any 
transfer  was  contemplated.  The  nephew 
executed  in  his  own  handwriting  an  as- 
signment of  the  bond  and  mortgage,  and 
delivered  the  assignment,  bond,  and  mort- 
gage to  the  assignee,  who  made  a  loan  to 
him.  Held,  that  the  mortgagee  was  not 
estopped  by  negligence  from  insisting  on 
his  ownership  of  the  bond  and  mortgage, 
since  the  nephew's  act  was  a  forgery,  un- 
der Penal  Law  (N.  Y.  Consol.  Laws,  c.  40), 
§  883,   against   which   the  mortgagee    was 


ESTOPPEL  IN  PAIS— EVIDENCE 


335 


not  at  fault  for  failing  to  protect  him- 
self or  the  public;  for  to  make  out  an 
estoppel  on  the  ground  of  negligence  it 
must  b«  shown  that  the  owner  was  care- 
less as  to  some  duty  owing  to  the  person 
relying  on  the  estoppel  or  the  public. 
People's  Trust  Co.  v.  Smith  (N.  Y.)  1917A- 
560.  (Annotated.) 

4.  A  blank  indorsement  of  a  stock  cer- 
tificate signifies  that  some  person  may  fill 
in  the  blank,  and  the  owner  intrusting  to 
another  a  stock  certificate  so  indorsed, 
thereby  gives  currency  to  an  instrument 
indicating  a  contemplated  transfer,  and 
he  must  bear  the  loss  of  any  dishonesty 
of  the  agent  in  wrongfully  filling  in  the 
blank,  but  this  doctrine  does  not  apply  to 
a  mortgagee  delivering  for  safe-keeping 
only  the  mortgage  and  bond  secured  there- 
by unaccompanied  by  any  blank  form  of 
transfer  signed  by  him,  and  a  loss  occa- 
sioned by  a  forged  transfer  of  the  mort- 
gage and  bond  does  not.fa.ll  on  the  mort- 
gagee by  reason  of  this  principle.  People's 
Trust  Co.  V.  Smith  (^N.  Y.)  1917A-560. 

(Annotated.) 

5.  Defense  to  Action  at  Law.  Under 
the  federal  practice,  facts  which  might 
raise  an  equitable  estoppel  do  not  consti- 
tute a  defense  to  an  action  at  law  for  the 
recovery  of  real  estate.  Holden  v.  Circle- 
ville  Light,  etc.  Co.  (Fed.)  1916D-443. 

6.  Inducing  Belief  in  Consent.  Where  a 
party  by  conduct  has  intimated  that  he 
consents  to  an  act  which  has  been  done  or 
will  offer  no  opposition  thereto,  though  it 
could  not  have  been  lawfully  done  with- 
out his  consent,  and  he  thereby  induces 
others  to  do  that  from  which  they  other- 
wise might  have  abstained,  he  cannot 
question  the  legality  of  the  action  to  the 
prejudice  of  those  who  have  acted  on  the 
fair  inference  to  be  drawn  from  his  con- 
duct. Divide  Canal,  etc.  Co.  v.  Tennej 
(Colo.)  1917D-346. 

Note. 

Delivering  papers  or  documents  to  per- 
son of  same  name  as  working  estoppel 
against  owner.     1917A-562. 

b.     Estoppel  by  Silence. 

7.  Misleading  Silence.  One  who  by  wil- 
ful or  culpable  silence  leads  another  to 
believe  in  the  existence  of  a  state  of  facts 
in  reliance  upon  which  he  acts  to  his  preju- 
dice is  estopped  by  silence  later  to  deny 
the  existence  of  the  state  of  facta.    Eltinge 

»    v.  Santos   (Cal.)   1917A-1143. 

c.     Assuming  Inconsistent  Positions. 
(1)     In  General. 

8.  By  Partition  Agreement.  Where  C, 
one  of  the  children  of  an  owner  of  land, 
conveyed  to  R,  another  child,  all  of  his 
interest  in  the  real  estate  of  his  mother, 
and  after  the  mother's  death  all  of  the 
children   executed   a   partition   agreement 


allotting  to  each  of  the  other  children  a 
parcel  of  land  and  allotting  a  parcel  to  0. 
and  E.  together,  though  E.  was  estopped 
by  the  partition  agreement  from  claiming 
any  interest  in  the  parcels  allotted  to  the 
other  children,  she  is  not  estopped  from 
claiming  all  of  the  tract  allotted  to  her 
and  C,  and  the  partition  agreement  did 
not  reinvest  C.  with  the  title  which  passed, 
when  acquired,  under  his  deed.  Blackwell 
V.  Harrelson  (S.  Car.)  1916E-1263. 

(2)     In  Judicial  Proceedings. 
9.  Inconsistent  Positions  in  Litigation. 

The  consignee  having  in  a  prior  action, 
in  which  he  recovered  damages  of  the  car- 
rier for  injury  to  a  shipment,  taken  the 
position  that  the  goods  were  only  dam- 
aged, and  not  practically  destroyed,  and 
thereafter  taken  the  same  position  by  ac- 
tion to  recover  the  goods,  cannot  in  the 
second  action,  against  the  carrier's  claim 
for  storage  charges,  say  that  the  goods 
were  so  badly  damaged  as  to  be  worthless, 
BO  that  no  duty  rested  on  him  to  receive 
them.  Holloman  v.  Southern  E.  Co. 
(N.  Car.)  1917E-1069. 

ESTOPPEL  IN  PAIS. 
See  Estoppel,  2-9. 

EVIDENCE. 

1.  Judicial  Notice,  338. 

a.  General  Principles,  338. 

b.  Legislation,  338. 

c.  Elections,  338. 

d.  Customs,  339. 

€.  Navigability  of  Stream,  339. 

f.  Matters  Pertaining  to  Public  Ser- 

vice Corporations,  339. 

g.  Population,  339. 

h.  Mortality  Tables,  339. 
i.  Physical  Results,  339. 
j.  Governmental  Affairs,  339. 
k.  Matters    not    Judicially    Noticed, 
339. 

2.  Relevancy  and  Admissibility  in  Gen- 

eral, 339. 

a.  In  General,  339. 

b.  Proving  Value,  340. 

c.  Proof    of    Nonexistence    of    Debt, 

340. 

d.  Identity  of  Person,  340. 

3.  Hearsay  Evidence,  340. 

a.  In  General,  340. 

b.  Pedigree,  341. 

c.  Testimony  on  Former  Trial,  341. 

4.  Character  or  Eeputation,  341. 

5.  Best  and  Secondary  Evidence,  341. 

a.  In  General,  341. 

b.  Executed  Sale  of  Land,  341. 

c.  Letters,  341. 

d.  Title  to  Realty,  341. 

e.  Laying  Foundation  for  Secondary 

Evidence,  341. 

6.  Expert  and  Opinion  Evidence,  342. 

a.  Opinion  of  Witnesses  in  General, 
342. 


336 


Experts, 


b.  Expert  Evidence,  342. 

(1)  In  General,  342. 

(2)  Qualifications      of 

342. 

(3)  Subjects    of    Expert    Testi- 

mony, 342. 
C.  Nonexpert  Opinion,  343. 

(1)  In  General,  343. 

(2)  Subjects  of  Nonexpert  Opin- 

ion, 343. 

7.  Documentary  Evidence,  344. 

a.  In  General,  344. 

b.  Records    and    Public    Documents, 

344. 
e.  Private  Documents,  345. 

(1)  Entries  in   Course   of  Busi- 

ness, 345. 

(2)  Maps,  345. 

(3)  Books  not  Relating  to  Exact 

Science,  345. 

(4)  Medical  Books,  345. 

(5)  Statutes,  346. 

(6)  Mercantile  Reports,  346. 

(7)  Survey  Notes,  346. 

(8)  Corporate    Books    and    Rec- 

ords, 346. 

(9)  Letters,  346. 
10)  Diary,  346. 

(11)  Hospital  Charts,  347. 
d.  Official  Documents,  347. 

8.  Declarations  and  Admissions,  347. 

9.  Comparison  of  Typewriting,  347. 

10.  Handwriting,  347. 

11.  Photographs  as  Evidence,  347. 

12.  Parol  Evidence  to   Vary  Written  In- 

struments, 347. 

a.  Proof     of    Collateral     Agreement, 

347. 

b.  To  Explain  Ambiguity,  348. 

c.  Showing  Real  Character  of  Instru- 

ment, 348. 

d.  To    Show    Complete    Instrument, 

349. 

e.  To  Prove  Lost  Instrument,  349. 

f.  To  Show  Consideration,  349. 

g.  To  Explain  Terms,  349. 

13.  Presumptions,  349. 

a.  Intention  of  Parties,  350. 

b.  Performance  of  Public  Duty,  350. 

c.  Receipt  of  Letter,  350. 

d.  Knowledge  of  Law,  350. 

e.  Ownership,  350. 

f.  Identity   of  One   of    Same   Name, 

350. 

g.  Sobriety,    351. 

h.  Receipt  of  Telegram,  351. 
i.  Common  Law  of  Sister  State,  351. 
j.  Authority   to   Answer  Letter,   351. 

14.  Burden  of  Proof,  351. 

15.  Privileged  Communications,  351. 

16.  Weight    and    Sufficiency    of    Evidence, 

351. 

a.  In  General,  351. 

b.  Negative  Testimony,  352. 

c.  Uncontroverted  Testimony,  352, 

d.  Circumstantial  Evidence,  352. 

e.  Number  of  Witnesses,  352. 

f.  Impossibility  of  Truth,  352. 


DIGEST. 
1916C— 1918B. 

See  Adverse  Possession,  31-33;  Alteration 
of  Instruments,  lo.  16;  Animals,  5-7; 
Assault,  7,  S,  12;  Automobiles,  37-44, 
65 ;  Bastardy,  4-6 ;  Civil  Damage  Acts, 
4,  6;  Burglary,  3;  Conspiracy,  4-12, 
18-20;  Contracts,  5S,  59;  Conversion, 
7;  Damages,  18-22;  Death  by  Wrong- 
ful Act,  19;  Divorce.  .•'.4;  Embezzle- 
ment, 6-10;  False  Imprisonment,  4-6; 
raise  Pretenses,  12-18;  Fire  Insur- 
ance, 45;  Fires,  12,  13;  Independent 
Contractors,  9,  11;  Insanity,  1-15; 
Larceny,  4,  5;  Malicious  Prosecution, 
15-25;  Quieting  Title,  6-7;  Quo  War- 


ranto; Prostitution,  10.  20;  Bape, 
3-11;  Release  and  Discharge,  5;  Re- 
plevin, 14,  15;  Robbery,  5-7;  Sales, 
52-55;  Specific  Performance,  9;  Tres- 
pass, 8. 

In  abortion  case,  see  Abortion,  4-5. 

To  establish  accord  and  satisfaction,  set 
Accord  and  Satisfaction,  1,  2. 

Sufficiency  of  evidence  to  impeach  ac- 
knowledgment, see  Acknowledgments, 
4. 

Injury  by  mining,  admissibility  of  evi- 
dence, see  Adjoining  Landowners,  12, 
15. 

Proof  of  agency,  see  Admissions  and  Dec- 
larations, 5-7. 

Telephone  conversation,  identity  of 
speaker,  see  Admissions  and  Declara- 
tions, 6. 

Proof  of  agency,  see  Agency,  1,  2,  19,  20, 
28,  29. 

Judicial  notice  as  to  seed  cleaning,  see 
Agriculture,  11.  . 

Rulings  brought  up  on  appeal,  see  Appeal 
and  Error,  93. 

Weighing  evidence  on  appeal,  see  Appeal 
and  Error,  108-114. 

Harmless  error  in  admitting  testimony,  see 
Appeal  and  Error,  232-261. 

Harmless  error  in  excluding  testimony,  see 
Appeal  and  Error,  262-277. 

Record  must  show  error  in  ruling,  see 
Appeal  and  Error,  338-348. 

Necessity  of  exception  to  ruling,  see 
Appeal  and  Error,  369,  376. 

Sufficiency  of  objection  for  review,  see 
Appeal  and  Error,  396-403. 

Sufficiency  to  warrant  argument,  see  Argu- 
ment and  Conduct  of  Counsel,  5-10. 

Failure  to  produce  evidence  or  testify,  see 
Argument  and  Conduct  of  Counsel, 
11-17. 

In  action  by  attorney  for  fees,  see  Attor- 
neys, 33,  34. 

In  action  against  attorney  for  neglect,  see 
Attorneys,  74. 

In  s.uit  for  accounting  for  assets,  see 
Bankruptcy,  9. 

Concealment  of  assets,  see  Bankruptcy, 
33-35. 

In  actions  for  benefits,  see  Beneficial  Asso- 
ciations, 29-32. 

In  actions  to  enforce  negotiable  paper,  se» 
Bills  and  Notes,  68-87. 


EVIDENCE. 


337 


Parol  proof  of  boundary,  see  Boundaries, 
1. 

In  breach  of  promise  suit,  see  Breach  of 
Promise  of  Marriage,  9-13. 

In  action  for  damage  to  bridge  by  vessel, 
see  Bridges,  1-4. 

In  action  for  real  estate  commission,  se« 
Brokers,  8-11. 

Actions  against  carriers,  see  Carriers  of 
Goods,  34-37;  Carriers  of  Live  Stock, 
4-6. 

In  action  for  injury  to  passenger,  see  Car- 
riers of  Passengers,  63^70. 

Admissibility  on  constitutionality  of  stat- 
ute, see  Constitutional  Law,  105. 

Presumption  that  act  is  constitutional,  see 
Constitutional  Law,  130-157. 

In  contempt  proceedings,  see  Contempt,  15. 

Presumption,  as  to  place  of  payment,  see 
Contracts,  11. 

Contract  to  suppress  evidence,  see  Con- 
tracts, 27,  28. 

Illegality  of  contract,  see  Contracts,  32. 

In  actions  on  building  contracts,  see  Con- 
tracts, 92. 

Proof  of  corporate  authority,  see  Corpora- 
tions, 37-40. 

Admissibility  in  criminal  cases,  see  Crimi- 
nal Law,  41-63. 

Sufficiency  in  criminal  cases,  see  Criminal 
Law,  64-74. 

Proof  of  death,  see  Death,  1-4. 

Proof  ef  dedication,  see  Dedication,  16-21. 

Proof  of  delivery,  see  Deeds,  12-16. 

Evidence  to  construe  deeds,  see  Deeds, 
73—75. 

Admissibility  of  deposition,  see  Deposi- 
tions, 5,  6. 

Insufficiency  to  warrant  nonsuit,  see  Dis- 
missal and  Nonsuit,  3. 

Proof  of  easement,  see  Easements,  9,  11. 

In  election  contests,  see  Elections,  85-91. 

Admissibility  in  actions  for  injury  by 
electricity,  see  Electricity,  14-21. 

In  condemnation  proceedings,  see  Eminent 
Domain,  76-88. 

Parol  proof  of  lost  memorandum,  see 
Frauds,  Statute  of,  24. 

Sufficiency  to  show  fraud,  see  Fraudulent 
Sales"  and  Conveyances,  9-12. 

Sufficiency  to  establish  gift,  see  Gifts, 
7-10,  14. 

In  proceedings  for  appointment  of  guard- 
ian, see  Guardian  and  Ward,  8. 

Admissibility,  see  Homicide,  17. 

Weight  and  sufficiency,  see  Homicide,  49- 
59. 

In  actions  for  alienation  of  affections,  see 
Husband  and  Wife,  58-64. 

In  actions  for  criminal  conversation,  see 
Husband  and  Wife,  65,  69.  71-74. 

In  action  by  infant,  see  Infants,  23. 

Judicial  notice  as  to  election,  see  Initia- 
tive and  Referendum,  8. 

Instructions  ignoring  evidence,  see  In- 
structions, 43. 

Instructions  on  weight  and  sufficiency  of 
evidence,  see  Instructions,  46-53. 

Instructions  unsupported  by  evidence,  see 
Instructions,  54-59. 
22 


In  prosecutions  under  liquor  laws,  see  In- 
toxicating Liquors,  90-105. 

In  actions  to  fix  appropriation  rights,  see 
Irrigation,  2-5. 

In  action  for  supplies  furnished  subscrib- 
ers to  enterprise,  see  Joint  Adven- 
tures, 1-4. 

Proof  of  joint  tenancy,  see  Joint  Tenants, 
9. 

Judgment  on  evidence,  see  Judgments,  22. 

In  action  for  rent,  see  Landlord  and  Ten- 
ant, 40. 

Judicial  notice  as  to  labor  unions,  see 
Libel  and  Slander,  118. 

In  actions  for  defamation,  see  Libel  and 
Slander,  103-111,  114-139. 

Election  record  book,  admissibility,  see 
Local  Option,  2. 

Proof  of  marriage,  see  Marriage,  11. 

In  proceedings  under  Employers'  Liability 
Act,  see  Master  and  Servant,  83-89. 

In  proceedings  under  Workmen's  Compen- 
sation Act,  see  Master  and  Servant, 
284-290,  295-298,  302,  305,  331-342. 

In  foreclosure  of  mechanics'  liens,  see  Me- 
chanics' Liens,  57. 

To  prove  monopoly,  see  Monopolies,  20-22. 

Sufficiency  to  prove  deed  a  mortgage,  see 
Mortgages  and  Deeds  of  Trust,  9,  10. 

Ordinance  making  facts  prima  facie  pi-^of, 
see  Municipal  Corporations,  88. 

Burden  of  proof  in  negligence  actions,  «ee 
Negligence,  72-79. 

Sufficiency  in  negligence  actions,  '  see 
Negligence,  84-91. 

Improper  admission  of  testimony  as 
ground  for  new  trial,  see  New  Trial, 
5,  6. 

Insufficiency  to  support  verdict  as  ground 
for  new  trial,  see  New  Trial,  18. 

Newly  discovered  evidence  as  ground  for 
new  trial,  see  New  Trial,  19-25,  33,  34. 

Evidence  on  hearing  of  motion,  see  New 
Trial,  36. 

Evidence  admissible  on  second  trial,  see 
New  Trial,  39. 

Burden  on  plaintiff  to  show  undue  influ- 
ence in  parent's  gift,  see  Parent  and 
Child,  6. 

Sufficiency  to  show  application  of  pay- 
ment, see  Payment,  5. 

Admissibility  to  prove  payment  for  ship, 
see  Payment,  8-10. 

Evidence  in  malpractice  actions,  see  Phy- 
sicians and  Surgeons,  29-39. 

Proof  of  motive,  see  Polygamy,  1. 

Violation  of  postal  laws,  burden  of  proof, 
see  Postoffice,  1. 

Admissibility  of  evidence  in  trial  for 
using  mails  to  defraud,  see  Postoffice, 
4,  7-10. 

On  proceedings  to  oust  officer,  see  Public 
Officers,  55,  56. 

Proceedings  before  railroad  commission, 
see  Birilroads,  4. 

In  accidents  at  crossings,  see  Ballroads, 
71-75. 

In  civil  action  for  rape,  see  Rape,  14. 

Malice  shown  by  giving  redelivery  bond, 
see  Beplevin,  11. 


338 


•  DIGEST. 

1916C— 1918B. 


Proof  of  mistake  for  reformation,  see  Re- 
scission, Cancellation  and  Befonua- 
tion,  6,  7. 

Proof  for  cancellation,  see  Rescission,  Can- 
cellation and  Reformation,  16,  30-32. 

Action  on  warranty,  see  Sales,  35. 

Admissibility  in  action  for  seduction,  see 
Seduction,  4. 

No  vested  right  in  rules  of  evidence,  see 
Stare  Decisis,  7. 

Judicial  notice  of  current  history,  see 
Statutes,  87. 

In  actions  for  injuries  by  street  cars,  see 
Street  Railways,  38-41. 

Action  for  injury  by  defect  in  highway, 
see  Streets  and  Highways,  43. 

In  action  on  suretyship  contract,  see 
Sxiretyship,  23. 

In  action  for  delay  in  telegram,  see  Tele- 
graphs and  Telephones,  32. 

Sufficiency  to  prove  tender,  see  Tender,  1. 

Keeeption  of  evidence,  see  Trial,  15-52. 

Proof  of  trust,  see  Trusts  and  Trustees,  5, 
18-21. 

Proof  of  usury,  see  Usury,  6. 

Judicial  notice  of  state  of  war,  see  War,  1. 

Actions  against  warehousemen  for  negli- 
gence, see  Warehouses,  10,  11. 

Proof  of  execution  of  will,  see  Wills,  41- 
48. 

Proof  of  testamentary  capacity,  see  Wills, 
64-88. 

ProQf  of  undue  influence,  see  Wills,  98-101. 

In  proceedings  to  contest  will,  see  Wills, 
129,  140,  148,  144. 

Testimony  as  to  transactions  with  person 
since  deceased,  see  Witnesses,  35-46. 

1.    JUDICIAL  NOTICE. 
a.     General  Principles. 

1.  Notoriety.  The  limits  of  "judicial 
notice"  cannot  be  prescribed  with  exact- 
ness, but  notoriety  is,  generally  speaking, 
the  ultimate  test  of  facts  sought  to  be 
brought  within  the  realm  of  judicial  no- 
tice; in  general,  it  covers  matters  so  noto- 
rious that  a  production  of  evidence  would 
be  unnecessary,  matters  which  the  judicial 
function  supposes  the  judge  to  be  ac- 
quainted with  actually  or  theoretically, 
and  matters  not  strictly  included  under 
either  of  such  heads.  Gottstein  v.  Lister 
(Wash.)  1917D-1008. 

2.  Stipulations  and  Admissions.  Neither 
the  stipulations  nor  admissions  of  coun- 
sel can  bring  facts  within  the  sphere  of 
judicial  notice  which  in  law  did  not  be- 
long there.  Gottstein  v.  Lister  (Wash.) 
1917D-100S.  (Annotated.) 

b.     Legislation. 

3.  Judicial  notice  will  be  taken  of  jour- 
nals of  the  legislature  before  they  are  pub- 
lished. Heiskell  v.  Knox  Countv  (Tenn.) 
1916E-1281.  (Annotated.) 

4.  .Judicial  notice  of  legislative  journals, 
showing  the  proper  enactment  of  a  statute, 
may  be  taken  on  demurrer  to  a  bill,  char- 
ging that  a  statute  was  not  regularly  en- 


acted;   a  demurrer  not 
tions  contrary   to   facts 
to    the    court.     Heiskell 
(Tenn.)   1916E-1281. 
5.  Legislative  Journals, 


admitting  allega- 

judieially   known 

T.   Knox    County 

(Annotated.) 

The  court  takes 


judicial  notice  of  the  journals  of  the  legis- 
lature,, showing  the  steps  taken  in  the  en- 
actment of  statutes.  Heiskell  v.  Knox 
County  (Tenn.)  1916E-1281. 

(Annotated.) 

6.  Federal  Statutes.  State  courts  take 
judicial  notice  of  acts  of  Congress.  Row- 
lands V.  Chicago,  etc.  R.  Co.  (Wis.)  1916E- 
714. 

Note. 

Judicial  notice  of  contents  of  legislative 
journals  on  issue  as  to  enactment  of  stat- 
ute.    1916E-1284. 

c.     Elections. 

7.  Number  of  Voters  in  State.  The 
court  judicially  knows,  as  matter  of  com- 
mon knowledge,  that  there  are  not  900,000 
electors  in  the  state  of  W^ashington.  Gott- 
stein V.  Lister  (Wash.)  1917D-1008. 

8.  Procedure  for  Adoption  of  Constitu- 
tional Amendment.  Wash.  Const,  art.  23, 
relating  to  amendments,  provides  that  the 
legislature  shall  cause  amendments  to  be 
submitted  to  the'  people,  to  be  published 
at  least  three  months  next  preceding  the 
election  in  some  weekly  newspaper  in 
every  county  where  a  newspaper  is  pub- 
lished throughout  the  state.  In  an  action 
to  enjoin  the  governor  and  state  and 
county  officers  from  enforcing  initiative 
measure  No.  3  (Laws  Wash.  1915,  p.  2), 
it  was  contended  that  the  seventh  amend- 
ment to  the  constitution  had  not  been  law- 
fully submitted,  in  that  publication  was 
defective  because  not  published  in  several 
counties  for  the  required  period  "next  pre- 
ceding" the  election  thereon.  It  is  held 
that,  so  far  as  officially  recorded  facts 
were  concerned,  the  court  judicially  knew 
only  that  the  legislature  of  1911  proposed 
the  seventh  amendment;  that  such  pro- 
posal was  duly  evidenced  by  proper  en- 
tries on  the  senate  and  house  journals: 
that  the  act  provided  for  publication  of 
the  amendment  prior  to  the  election,  as  re- 
quired by  the  constitution;  that,  on  a  can- 
vass showing  its  adoption,  the  governor 
proclaimed  the  amendment  to  have  been 
adopted  and  to  have  become  part  of  the  . 
constitution;  that  it  could  not  judicially' 
notice  facts  touching  the  sufficiency  of  its  - 
publication  prior  to  its  adoption;  and  that, _ 
as  all  the  facts  within  its  knowledge  . 
showed  its  lawful  adoption,  it  could  not  . 
say  that  publication  was  defective,  or  that 
it  had  not  been  duly  submitted  to  the ; 
people.  Gottstein  v.  Lister  (Wash.)  1917D- 
1008.  (Annotated.) 

Note. 

.Judicial  notice  of  proceedings  for  adop- 
tion of  amendment  to  constitution.  1917I>- 
1031. 


EVIDENCE. 


339 


d.     Customs. 

9.  Business  Methods.  The  court  can 
take  judicial  notice  of  the  general  purpose 
and  method  of  doing  business  of  building 
and  loan  associations.  Union  Savings,  etc. 
Co.  y.  District  Court  (Utah)  1917A-821. 

e.     Navigability  of  Stream. 

10.  Navigable  Character  of  Stream.  The 
court  will  take  judicial  notice  that  the 
Connecticut  river  is  a  public  highway  used 
for  transporting  property  in  boats  and 
floating  logs.  B'outwell  v.  Champlain 
Kealty  Co.  (Vt.)   1918A-726. 

11..  Whether  a  state  supreme  court  in  a 
mandamus  proceeding  should  take  judicial 
notice  that  the  principal  river  of  the  state 
is  navigable  at  the  capital  of  the  state  is 
a  question  of  state  law,  and  the  federal 
supreme  court  cannot  pronounce  its  action 
in  taking  judicial  notice  thereof  errone- 
ous; there  being  no  constitutional  right  to 
a  trial  by  jury.  Wear  v.  Kansas  (U.  S.) 
1918B-586. 

f.     Matters  Pertaining  to   Public  Service 
Corporations. 

12.  Charter  of  Public  Service  Corpora- 
tion. The  court  will  not  take  judicial  no- 
tice of  the  provisions  of  the  charter  of  a 
public  service  corporation.  Western  Union 
Tel.  Co.  V.  Burlington  Traction  Co.  (Vt.) 
1918B-841. 

g.     Population. 

13.  Federal  Census.  It  is  a  matter  suffi- 
ciently notorious  to  charge  the  court  with 
judicial  knowledge  that  according  to  the 
federal  census  of  1910  approximately  one- 
third  of  the  productive  population  is  en- 
gaged in  agriculture.  Hill  v.  Rae  (Mont.) 
1917E-210. 

h.     Mortality  Tables. 

14.  Mortality  Tables.  It  is  not  error  to 
admit,  without  foundation,  a  standard 
table  of  life  expectancy,  in  an  action  for 
the  wrongful  death  of  a  street  car  pas- 
senger, since  courts  will  take  judicial  no- 
tice of  such  a  table.  Froeniing  v.  Stock- 
ton Electric  R.  Co.  (Cal.)  1918B-488. 

(Annotated.) 
Note. 
Judicial     notice     of     mortality     tables. 
1918B-415. 

i.     Physical  Results. 

15.  Properties  of  Gasoline.  The  court 
will  take  judicial  notice  of  the  dangerous 
character  and  explosive  qualities  of  gaso- 
line. Whittemore  v.  Baxter  Laundry  Co. 
(Mich.)   1916C-818. 

16.  Inflammable  Nature  of  Gas.  In  an 
employee's  action  for  injuries  from  the  ex- 
plosion of  a  gas  stove,  the  court  will  take 
judicial  notice  that  gas  used  for  fuel  is  so 
inflammable  that  the  moment  a  flame  is 
applied  it  will  immediately  ignite  with  an 


explosion,  if  present  in  any  considerable 
volume.  Holmberg  v.  Jacobs  (Ore.)  1917D- 
496. 

j.     Governmental  AflFairs. 

17.  Public  Fiscal  Affairs.  The  court 
judicially  knows  that  the  organized  mili- 
tia of  the  state,  when  traveling  on  orders 
from  the  governor,  travels  at  the  expense 
of  the  state.  State  v.  Missouri,  etc.  B. 
Co.  (Mo.)  1916E-949. 

k.     Matters  not  Judicially  Noticed. 

18.  While  the  court  will  take  judicial  no- 
tice that  the  White  river  is  one  of  the 
large  rivers  of  the  state  and  is  nontidal, 
the  question  whether  it  is  a  "boatable 
stream"  (^that  is,  one  of  common  passage 
as  a  highway)  is  one  of  fact.  Boutwell  v. 
Champlain  Realty  Co.  (Vt.)   1918A-726. 

19.  Practicability  of  Labeling  Seed. 
The  courts  do  not  judicially  know  that  in 
the  ordinary  conduct  of  business  the  re- 
quirement of  a  statute  that  agricultural 
seeds  be  labeled  with  the  locality  where 
the  seed  is  grown  is  an  impracticable  one. 
State  V.  McKay  (Tenn.)  1917E-158. 

2.     RELEVANCY     AND     ADMISSIBIL- 
ITY IN  GENERAL. 

a.     In  General. 

20.  Ruling  on  Evidence  Approved.    It  is 

held  that  the  court  did  not  err  in  refusing 
to  admit  certain  evidence.  Ruble  ▼.  Busbj 
(Idaho)  1917D-665. 

21.  Certain  rulings  of  the  trial  court  ok 
the  admission  of  evidence  held  not  erro 
neous.  Viita  v.  Fleming  (Minn.)  1917E- 
678. 

22.  The  court  did  not  err  in  its  rulings 
excluding  certain  evidence.  Norton  v. 
Duluth  Transfer  R,  Co.  (Minn.)  1916E- 
760. 

23.  Liberal  Tendency  as  to  Admissibil- 
ity of  Evidence.  The  modern  notion  of 
the  admissibility  of  evidence  is  that  it  is 
more  important  to  get  the  truth  than  to 
quibble  over  impractical  distinctions  be- 
tween facts  and  conclusions.  First  Na- 
tional Bank  v.  Robinson  (Kan.)  1916D- 
286. 

24.  Subsequent  Conditions.  Evidence  of 
condition  of  places  and  ways  a  few  days 
after  the  accident  is  admissible  in  connec- 
tion with  a  showing  that  the  situation  has 
remained  unchanged.  Marks  v.  Columbia 
County  Lumber  Co.  (Ore.)  1917A-306. 

25.  Where  evidence  is  elicited  on  cross- 
examination  from  which  an  inference  of  a 
fact  favorable  to  accused  may  be  drawn, 
subsequent  evidence  of  other  facts  show- 
ing that  the  inference  is  not  warranted  is 
competent  and  material.  People  v.  Cas- 
sidy  (N.  Y.)  191GC-1009. 


340 


DIGEST. 

1916C— 1918B. 


26.  Irrelevant  Testimony.  Testimony 
which  does  not  illustrate  any  issue  made 
by  the  pleadings  should  be  repelled. 
Peagler  t.  Davis  (Ga.)  1917A-232. 

27.  What  Evidence  is  Relevant.  Un- 
der common-law  principles,  whatever  tends 
to  prove  any  material  fact  is  relevant 
and  competent.  People  v.  Boach  (N.  Y.) 
1917A-410. 

28.  Disregard  of  Technicalities.  Rules 
of  evidence  are  established  for  the  pur- 
pose of  enabling  the  court  and  jury  to  as- 
certain the  true  facts  concerning  the  mat- 
ters in  controversy,  and  not  for  the  pur- 
pose of  hindering  and  delaying  justice,  by 
the  enforcement  of  technical  abstract 
phrases  defining  the  rules  for  the  admis- 
sibility of  evidence.  Rogers  v.  0.  K.  Bus, 
etc.  Co.  (Okla.)  1917B-581. 

Note. 
Admissibility  in  civil  case  of  evidence 
showing     that     witness     had     previously 
claimed  privilege  in  criminal  case.     1917Er- 
879. 

b.    Proving  Value. 

29.  The  same  principles  apply  to  the 
proof  offered  of  the  value  of  certain  house- 
hold goods,  clothing,  pictures,  and  other 
personal  articles  which  were  in  the  fac- 
tory when  it  burned.  Hollinger  v.  Mis- 
souri, etc.  B.  Co,  (Kan.)  1916D-S02. 

(Annotated.) 

30.  Cost.  The  case  is  the  common  one 
in  which  the  property  destroyed  was  not 
bought  and  sold  on  the  market,  had  no 
market  value,  and  consequently  could  not 
be  valued  by  that  standard.  In  such  cases 
the  real  value  is  to  be  ascertained  from 
such  data  as  may  be  available.  Cost  is  an 
element  of  such  value,  and  a  person  hav- 
ing knowledge  of  the  elements  involved 
may  testify  to  them  and  give  his  estimate 
of  value.  Hollinger  v.  Missouri,  etc.  R. 
Co.  (Kan.)  1916D-802.  (Annotated.) 

•  31.  Price  Paid.  Proof  of  what  was  paid 
for  an  article  recently  in  the  open  market 
or  when  sold  at  auction,  etc.,  is  some  evi- 
dence of  the  actual  or  reasonable  value  of 
such  article.  Carnego  v.  Crescent  Coal  Co. 
(Iowa)   1916D-794.  (Annotated.) 

32.  Detailed  Value  of  Property  Valued 
as  Whole,  Where  it  appears  that  the 
value  of  the  business,  the  property,  and 
the  good  will  has  been  agreed  upon  by  the 
contracting  parties  and  stipulated  in  a 
written  contract,  and  no  other  considera- 
tion than  that  fixed  in  the  contract  is 
shown,  and  where  it  further  appears  that 
the  written  contract  was  admitted  to  be 
the  contract  entered  into  between  the  par- 
ties in  which  the  consideration  for  such 
business,  property,  and  good  will  as  a 
whole  was  fixed,  the  trial  court  does  not 
err  in  striking  out  the  testimony  of  appel- 
lant attempting  to  fix  the  valup  of  each 


article  of  personal  property  and  the  real 
estate  separately.  Harshbarger  v.  Eby 
(Idaho)  1917C-753. 

33.  Proof  of  Value.  The  value  of  prop- 
erty cannot  be  established  by  the  amount 
at  which  it  is  listed  by  a  real  estate  broker 
for  sale.  Peagler  v.  Davis  (Ga.)  1917A- 
232. 

34.  Value  of  Land.  In  an  action  for  a 
certain  per  cent  of  the  value  of  land  as  an 
attorney's  fee,  evidence  that  the  land  was 
available  for  city  lot  purposes  is  compe- 
tent to  establish  its  market  value  at  the 
time  the  debt  accrued,  though  it  was  not 
then  being  used  for  such  purposes,  Myers 
V.  Bender  (Mont.)  1916E-245. 

Note. 
Price  paid  for  personalty  or  services  as 
evidence  of  value  thereof.     1916D-797. 


c.     Proof  of  Nonexistence  of  Debt. 

35.  Rebutting  Inference.  Where  there 
is  testimony  justifying  an  inference  that 
a  portion  of  the  amount  subsequently  bor- 
rowed by  W.  was  used  by  him  to  discharge 
the  note,  evidence  of  the  payment  of  the 
note  by  W.'s  brother,  limited  to  contradict 
the  inference,  is  admissible.  People  v. 
Cassidy  (N.  Y.)  1916C-1009. 

d.     Identity  of  Person. 

36.  Person   Referred  to  not  Identified. 

In  an  action  for  the  death  of  a  hackman, 
claimed  to  have  been  caused  by  the  negli- 
gent construction  of  a  highway,  where 
liquor  was  found  in  the  vehicle,  testimony 
by  a  woman  that  she  was  carried  to  her 
home  in  that  vicinity  about  an  hour  and 
a  half  before  by  a  hackman,  whom  she  did 
not  know,  but  judged  was  sober,  is  imma- 
terial, there  being  nothing  to  show  that 
the  two  were  the  same.  Richardson  v. 
Sioux  City  (Iowa)  1918A-618. 

3.     HEARSAY  EVIDENCE. 
a.     In  General. 

37.  In  an  action  by  the  assignee  of  a 
lease  against  the  lessor,  it  is  proper  to  re- 
fuse to  permit  plaintiff  to  testify  as  to 
statements  made  by  his  assignor  concern- 
ing the  lease;  such  being  hearsay  and  not 
binding  on  the  lessor.  Streit  v.  Wilker- 
son  (Ala.)  1917E-378. 

38.  In  an  action  against  a  decedent's  es- 
state  for  board  furnished  him.  a  question 
to  a  witness  as  to  what  decedent  had  said 
to  him  when  he  purchased  certain  goods 
at  a  store  was  properly  excluded  as  hear- 
sav.  McCurry  v.  Purgason  (N,  Car.) 
1918A-907. 

39.  Ancient  Transaction.  In  an  action 
by  a  railroad  company  to  recover  posses- 
sion of  land  condemned  by  it  in  1833,  in 


EVIDENCE. 


341 


which  defendant  claimed  that  the  com- 
pany had  abandoned  its  easement  therein, 
conveyances  of  the  land  and  distributions 
of  it  as  a  part  of  the  estates  of  deceased 
owners,  most  of  which  were  made  more 
than  thirty  years  prior  to  the  trial,  and 
none  of  which  recognized  any  title  in  the 
railroad  company,  are  admissible  to  prore 
possession  by  those  claiming  under  the 
former  owner,  since  a  party  will  be  re- 
quired, and  within  the  limits  of  sound  rea- 
soning permitted,  to  present  the  best  and 
fullest  case  within  his  power  to  offer,  and 
where  the  fact  in  question  comes  from  a 
time  beyond  living  memory  placed  at 
thirty  years,  there  is  an  exception  to  the 
rule  rejecting  hearsay  evidence  allowed  in 
cases  of  ancient  possession  and  in  favor 
of  the  admission  of  ancient  documents  in 
support  thereof.  New  York,  etc.  B,  Co.  v. 
Cella  (Conn.)   1917D-591. 

40.  Hearsay.  In  general,  hearsay  testi- 
mony is  inadmissible.  Carroll  v.  Knicker- 
bocker Ice  Co.  (N.  Y.)  1918B-540. 

b.    Pedigree. 

41.  As  to  Bace  to  Which  Person  Be- 
longs. A  witness,  who  has  not  testified  to 
general  reputation  as  to  the  parentage  of 
a  person,  whose  race  is  in  question,  cannot 
testify  as  to  who  waa  said  to  be  such  per- 
son's parent.  Medlin  v.  County  Board  of 
Education  (N.  Car.)  1916E-300. 

(Annotated.) 

c.    Testimony  on  Former  Trial. 
Note. 
Admissibility  of  evidence  given  at  for- 
mer trial  concerning  transaction  with  per- 
son since  deceased.     1917B-366. 

4.     CHARACTER  OR  REPUTATION. 

42.  Evidence  of  Reputation.  In  a  civil 
action  for  the  recovery  of  a  penalty,  evi- 
dence of  general  reputation  of  the  defend- 
ants as  law-abiding  citizens  was  inadmis- 
sible, and  the  court  properly  excluded 
such  evidence.  Hammett  v.  State  (Okla.) 
1916D-1148.  (Annotated.) 

Note. 
Admissibility  of  evidence   of   character 
or   reputation   of   defendant   in   action   to 
recover  penalty.     1916D-1151. 

5.    BEST      AND      SECONDARY      ETVI- 
DENCE. 

a.     In  General. 

43.  Contents  of  Lost  Letters.  Where  a 
suit  was  on  a  contract  embodied  in  letters 
which  were  shown  to  have  been  lost,  it  is 
proper  to  introduce  copies  in  evidence. 
Josephs  V.  Briant  (Ark.)  1916E-741. 

b.     Executed  Sale  of  Land. 

44.  Sale  in  Bankruptcy  Proceeding. 
Where  on   the  trial  of  a  claim  case  the 


wife  of  the  defendant  in  fi.  fa.,  whoso 
trustee  in  bankruptcy  was  the  claimant, 
was  permitted  to  testify,  over  objection, 
that  a  certain  lot  of  land  (on  which  she 
claimed  that  she  had  borrowed  money  and 
that  her  money  had  been  used  in  buying 
the  stock  of  goods  levied  on)  had  recently 
been  sold  by  the  trustee  in  bankruptcy, 
the  admissibility  of  such  testimony  was 
not  open  to  the  sole  objection  that  there 
was  better  evidence  of  the  sale.  Brown 
V.  Caylor  (Ga.)  1916D-745. 

45.  Maps.  Under  Ore.  L.  O.  L.  §  712, 
providing  that  there  shall  be  no  evidence 
of  the  contents  of  a  writing,  other  than 
the  writing  itself,  except  when  the  origi- 
nal is  in  the  possession  of  the  party 
against  whom  the  evidence  is  offered,  and 
he  withholds  it  upon  notice  to  produce, 
and  when  the  original  cannot  be  produced 
by  the  party  by  whom  the  evidence  is 
offered  in  a  reasonable  time  with  proper 
diligence,  and  its  absence  is  not  owing  to 
his  neglect  or  default,  in  a  suit  to  deter- 
mine an  adverse  interest  in  realty,  where 
the  width  of  streets  was  in  question,  the 
point  being  whether  the  owner  of  land, 
selling  it,  had  represented,  by  exhibiting 
a  printed  map,  that  streets  were  of  a  cer- 
tain width,  two  duplicates  of  the  printed 
map  exhibited  to  the  purchaser  of  the 
original  plat  of  the  district  are  admissible 
in  evidence  for  plaintiff,  though  he  offered 
no  testimony  to  explain  his  failure  or  in- 
ability to  produce  the  original  from  which 
the  copies  were  made,  since  copies  of 
printed  duplicates  are  admissible.  Nicho- 
las V.  Title,  etc.  Co.  (Ore.)  1917A-1149. 

c.    Letters. 

46.  Mailing  of  Letter.  Where  a  United 
States  postmaster  testified  that  a  person 
mailed  a  registered  letter  to  a  certain  ad- 
dress, if  the  witness  was  testifying  from 
personal  knowledge,  and  not  from  the  rec- 
ords, which  the  postoflfice  regulations  for- 
bade his  taking  from  the  postoffice,  the 
evidence  is  admissible.  Josephs  v.  Briant 
(Ark.)  1916E-74I. 

47.  Hearing  Letter  Bead.  A  witness 
who  heard  a  letter  read  may  testify  as  to 
its  contents,  the  letter  being  lost  and  the 
person  who  read  it  being  dead;  the  obliga- 
tion to  the  source  of  his  knowledge  of  the 
contents  going  to  the  weight  only  of  his 
testimony.  Chalvet  v.  Huston  (D.  C.) 
1916C-1180.  (Annotated.) 

d.     Title  to  Realty. 

48.  When  the  title  to  real  estate  is  di- 
rectly in  issue,  the  best  evidence  of  title 
consists  in  the  muniments  of  title  such 
as  deeds,  mortgages,  patents,  wills,  etc. 
Littlefield  v.  Bowen  .(Wash.)  1918B-177. 

e.     Laying  Foundation  for  Secondary  Evi- 
dence. 

49.  Necessity  of  Demand  for  Document. 
Since  the  defendant  in  a  criminal  prosecu- 


342 


DIGEST. 


1916C- 

tion  cannot  be  compelled  to  testify  against 
himself,  or  produce  incriminating  docu- 
ments, the  state  may  introduce  secondary 
evidence  as  to  the  contents  of  such  docu- 
ments without  previous  notice  to  produce 
the  original.  People  v.  Gibson  (X.  Y.) 
1918B-509. 

50.  Secondary  Evidence  of  Document. 
The  admission  in  evidence  of  copies  of  in- 
voices which  the  party  offering  the  copies 
claims  he  sent  to  the  adverse  party  is  erro- 
neous, where  notice  to  produce  the  origi- 
nals was  not  served  on  the  adverse  party, 
and  where  there  waa  no  examination  of 
the  adverse  party  as  to  their  existence. 
Herman  &  Ben  Marks  v.  Haas  (Iowa) 
1917D-543. 

6.    EXPERT  AND  OPINION  EVIDENCE. 
a.     Opinion  of  "Witnesses  in  General. 

51.  Scope  of  Patent — Evidence  of  Sur- 
veyor. On  the  issue  whether  a  part  of  a 
tract  was  embraced  in  a  patent  prior  to 
that  under  which  the  plaintiff  claimed,  the 
statement  of  one  of  the  surveyors  that  it 
was  his  opinion  that  it  was  so  embraced, 
but  that  he  had  not  made  any  survey  of 
the  other  patent  and  knew  nothing  of  its 
lines,  except  that  some  one  had  informed 
him  of  the  location  of  one  of  the  corners, 
does  not  constitute  any  evidence  as  to 
where  the  lines  of  the  patent,  made  sixty 
years  previously,  would  be  marked  when 
surveyed,  and  hence  is  insufficient  to  re- 
quire a  submission  to  the  jury.  Tennis 
Coal  Co.  V.  Sackett  (Ky.)  1917E-629. 

b.    Expert  Evidence. 
(1)     In  General. 

52.  Theory  of  Admission.  Experts  are 
allowed  to  testify  by  way  of  opinion  be- 
cause they  are  presumed  to  have  acquired 
more  skill  and  knowledge  and  to  be  more 
capable  of  forming  a  correct  opinion  as  to 
the  subject-matter  of  the  question  under 
discussion.  American  Bauxite  Co.  v.  Dunn 
(Ark.)  1917C-625. 

53.  Weight.  There  are  degrees,  of  ex- 
pertness  and  witnesses  who  by  experience, 
study  and  observation  know  more  about 
the  subject  in  question  than  persons  who 
have  had  no  experience  or  especial  knowl- 
edge touching  such  subject  are  competent 
to  testify  as  experts,  the  weight  of  their 
testimony  being  for  the  jury.  Denver  v. 
Atchison,  etc.  R.  Co.  (Kan.)   1917A-1007. 

54.  Testimony  by  a  handwriting  expert 
as  to  the  genuineness  of  a  disputed  sig- 
nature is  the  expression  of  an  opinion  and 
not  binding  on  the  jury,  and  its  weight 
depends  very  largely  on  the  cogency  of 
the  reasons  given  by  him  for  his  opinion. 
Palmer  v.  Blanchard  (Me.)  1917A-809. 


-1918B. 

(2)     Qualifications  of  Experts. 

55.  In  an  action  against  a  railroad  for 
death  of  a  switchman  in  service,  the  quali- 
fication of  the  fireman  of  the  switching 
crew,  to  testify  as  a  railroad  expert  as  to 
whether  it  was  the  switchman's  duty  to 
throw  a  certain  switch  about  the  time  he 
was  killed,  rests  largely  in  the  discretion 
of  the  trial  judge.  Devine  v.  Delano  (HI.) 
1918A-689. 

56.  Duty  of  Bailroad  Employee.  In  an 
action  against  a  railroad  for  death  of  its 
switchman  in  service,  the  fireman  of  the 
switching  crew  is  qualified  to  testify  that 
from  his  knowledge  of  railroading  he 
would  say  it  was  the  switchman's  duty  to 
have  thrown  a  switch  about  the  time  he 
was  killed.  De.vine  v.  Delano  (HI.)  1918A- 
689. 

(3)     Subjects  of  Expert  Testimony. 

57.  Correspondence  of  Logs  With  Stumps. 
It  is  not  error  to  receive  as  evidence  the 
opinions  of  qualified  witnesses  as  to 
whether  logs  found  in  defendant's  posses- 
sion came  from  stumps  on  the  land  of  the 
complaining  witnesses.  State  v.  Ward 
(Minn.)  1916C-674. 

58.  Weight  of  Expert  Testimony.  The 
opinions  of  experts  are  admitted  to  aid 
the  jury  to  understand  questions  which  in- 
experienced persons  are  not  likely  to  de- 
cide correctly  without  aid,  but  it  is  for 
the  jury  to  determine  what  weight  the 
opinion  of  an  expert  is  entitled  to  under 
the  circumstances  of  a  given  case.  Amer- 
ican Bauxite  Co.  v.  Dunn  (Ark.)  1917C- 
625. 

59.  As  to  Handwriting.  Opinion  evi- 
dence in  relation  to  handwriting  is  gen- 
erally viewed  with  caution  bv  the  courts. 
Baber  v.  Caples  (Ore.)  19160-^1025. 

60.  Testimony  That  Person  Appeared 
Sick.  A  graduate  and  experienced  nurse 
may  properly  testify  that  a  person  ap- 
peared to  be  very  sick,  and  it  would  seem 
that  any  witness  of  ordinary  intelligence 
might  be  allowed  to  so  testify.  Barfield 
V.  South  Highlands  Infirmarv  (Ala.) 
1916C-1097. 

61.  Possibility  of  Cure.  In  an  action 
for  malpractice,  it  is  not  error  to  permit 
experts  to  answer  questions  as  to  whether 
there  was  any  way  known  to  the  medical 
profession  by  which  a  blood  clot,  "in  cases 
of  this  sort,"  could  be  prevented,  on  the 
theory  that  such  testimony  transcended 
the  limits  of  all  possible  human  attain- 
ment. Barfield  v.  South  Highlands  Infirm- 
ary (Ala.)  1916C-1097. 

62.  Wounds  —  Possibility  of  Infliction 
With  Particular  Weapon.  A  physician 
who  reached  decedent  immediately  after 
his  death  and  who  describes  the  wounds 


EVIDENCE. 


343 


iriflieted  on  decedent,  is  properly  permit- 
ted to  testify  that  the  wounds  could  have 
been  inflicted  by  a  razor  held  by  a  man 
coming  up  from  behind  decedent  and  cut- 
ting him  from  behind.  State  v.  Giudic© 
(Iowa)    1917C-1160. 

63.  Kesult  of  Observations  Under  Micro- 
scope. A  handwriting  expert  may  testify 
as  to  the  age  of  ink,  as  indicated  by  his 
observations  under  the  microscope;  the 
testimony  of  a  witness  not  being  limited 
to  the  information  which  he  acquires  by 
his  senses,  unaided  by  any  instrument  or 
process.  Williams  v,  Williams  (Me.) 
1916D-928.  (Annotated.) 

64.  Gasoline  Explosion.  It  requiring 
peculiar  skill  and  judgment  by  those  who 
had  experience  in  such  matters  to  state 
how  the  gasoline,  by  the  explosion  of 
which  plaintiff's  testate  was  killed,  might 
have  got  into  his  cellar,  it  was  proper  to 
allow  experts  to  give  their  judgment 
thereon.  Mahlstedt  v.  Ideal  Lighting  Co. 
(111.)   1917D-209. 

65.  Opinion  Evidence  as  to  Purpose.    In 

a  prosecution  for  the  attempt  to  entice  a 
girl  to  enter  employment  of  another  for 
immoral  purposes,  opinions  as  to  the  char- 
acter of  the  place  of  employment,  based 
on  hearsay,  are  inadmissible;  such  matter 
not  being  a  subject  for  expert  testimony. 
State  v.  Eeed  (Mont.)  1917E-783. 

66.  Finger  Prints.  In  a  prosecution  for 
murder,  where  there  was  testimony  of  five 
separate  marks  upon  the  clapboards  of  the 
deceased's  house,  and  proof  that  such 
marks  were  made  in  human  blood,  the  ex- 
pert testimony  of  a  witness,  who  fully  ex- 
plained his  qualifications,  specified  the  cir- 
cumstances upon  which  he  predicated  his 
opinion,  swore  that  he  was  able  to  express 
an  opinion  with  reasonable  certainty  and 
who  was  exhaustively  and  skilfully  cross- 
examined  as  to  the  identity  of  the  defend- 
ant's finger  prints  upon  paper  with  the 
marks  on  the  clapboards,  is  competent. 
People  V.  Koach  (N.  Y.)  1917A-410. 

(Annotated.) 

c.     Nonexpert  Opinion. 
(1)     In  General. 

67.  Conclusion  of  Witness.  In  an  action 
on  a  policy  on  a  stallion,  where  the  plain- 
tiff was  allowed  to  testify  that  the  $2,000 
cash  which  he  had  paid  at  the  time  of  the 
purchase  of  the  insured  horse  and  others 
was  paid  for  that  horse,  because  the  seller 
claimed  that  a  note  was  outstanding  on 
such  horse,  and  she  had  to  have  the  cash 
to  pay  it,  such  testimony  is  not  improper 
as  calling  for  the  conclusion  of  the  witness 
as  to  how  the  money  was  applied,  since  it 
was  a  mere  relation  of  alleged  facts.  Sim- 
mons V.  National  Live  Stock  Ins.  Co. 
(Mich.)   1917D-42. 


68.  On  an  issue  as  to  whether  a  note 
of  a  married  woman  was  an  independent 
transaction  or  given  as  surety  for  her 
husband,  an  offer  to  prove  by  plaintiff's 
cashier  that,  if  plaintiff  took  the  note 
without  any  investigation  of  the  parties 
or  genuineness  of  the  signature,  it  would 
appear  that  the  transaction  was  done 
merely  for  collateral  security  as  defend- 
ant claims  and  to  get  rid  of  the  com- 
plaint of  a  bank  examiner,  is  properly 
refused  as  an  offer  to  elicit  argument 
from  the  witness  and  not  to  show  facts. 
First  National  Bank  v.  Bertoli  (Vt.) 
1917B-590. 

69.  Evidence  as  to  the  cause  of  an 
employee's  discharge  by  witnesses  who 
were  familiar  with  the  cause  was  as  to  a 
fact  and  not  a  conclusion.  Johnson  v. 
Aetna  Life  Ins.  Co.   (Wis.)   1916E-603. 

70.  It  is  error  to  allow  plaintiff  to  state 
he  would  not  have  bought  the  tract  with- 
out the  spring  at  the  price  he  paid,  if  he 
had  not  owned  the  tract  with  the  spring. 
Stonegap  Colliery  Co.  v.  Hamilton  (Va.) 
1917E-60. 

(2)     Subjects  of  Nonexpert  Opinion. 

71.  Value  of  Wearing  AppareL  The 
owner  of  wearing  apparel  may  testify  as 
to  its  value  in  an  action  to  recover  dam- 
ages for  the  loss  thereof.  Eules  of  evi- 
dence are  not  so  technical  as  to  require  ex- 
pert witnesses  to  prove  the  reasonable  or 
market  value  of  chattels  in  common  use, 
where  it  is  apparent  from  the  facts  proven 
that  the  value  of  the  articles  is  within  the 
knowledge  of  persons  of  ordinary  intelli- 
gence and  experience.  Eogers  v.  O.  K. 
Bus,  etc,  Co.  (Okla.)  1917I>-581. 

(Annotated.) 

72.  Value  of  Chattels.  It  is  the  well- 
known  and  generally  accepted  rule  that, 
when  a  witness  testifies  as  to  the  value  of 
chattels  in  common  use,  it  will  be  inferred 
that  he  means  their  market  value,  unless 
a  different  basis  of  value  is  fixed  by  the 
witness,  or  it  is  apparent  that  the  witness 
bases  his  value  on  a  different  foundation. 
Eogers  v.  O.  K.  Bus,  etc.  Co.  (Okla.) 
1917B-581. 

73.  Knowledge  from  View.  It  is  not 
error  to  permit  jurors  on  the  former 
trial  to  give  their  opinions  or  conclu- 
sions derived  from  and  based  upon  the 
knowledge  acquired  on  the  view.  State  v. 
Ward  (Minn.)  1916C-674. 

(Annotated.) 

74.  Estimate  of  Quantity.  Where,  in  an 
action  under  Iowa  Code,  §  2423,  to  recover 
payments  made  for  liquor  illegally  sold  by 
defendant  to  plaintiff,  a  witness  testified 
that  he  delivered  liquor  to  plaintiff,  but 
kept  no  account  of  the  sales  or  the  quan- 
tity, and  turned  over  to  defendant  the 
amount  each  night,  it  is  proper  to  permit 


344 


DIGEST. 

1916C— 1918B, 


the  witness  to  gire  his  opinion  as  to  the 
amount  of  liquor  delivered  to  plaintiff. 
Critanovich  v.  Bromberg  (Iowa)  1917B- 
309. 

75.  Testamentary  Capacity.  A  nonex- 
pert, though  not  a  subscribing  witness  and 
not  present  at  the  execution  of  the  will, 
may  testify  to  testatrix's  mental  condi- 
tion, if  he  has  had  adequate  opportunities 
for  observation  and  forming  an  opinion. 
In  re  Rawlings'  Will  (N.  Car.)  1918A-948. 

76.  Knowledge  of  Another.  In  an  ac- 
tion for  the  death  of  a  servant  employed 
by  defendant  in  the  operation  of  an  elec- 
tric plant,  and  whose  duty  it  was  to  turn 
the  switches,  alleging  defendant's  negli- 
gence in  the  installation  of  the  switches, 
and  that  the  accident  was  due  to  insuffi- 
cient insulation  of  the  switch  handles,  the 
inquiry  as  to  decedent's  knowledge  of  the 
voltage  of  the  current  does  not  relate  to  a 
matter  within  the  realm  of  expert  testi- 
mony, where  there  is  nothing  in  the  case 
to  show  that  it  required  any  technical 
knowledge  to  judge  accurately  of  what  de- 
ceased, in  the  circumstances  disclosed, 
must  have  known  concerning  the  voltage. 
McCarthy's  Adm'r  v.  Northfield  (Vt.) 
I918A-943.  (Annotated.) 

Note. 
Admissibility  of  direct  opinion  of  wit- 
ness    as     to     ownership     of     personalty. 
1916D-289. 

77.  Direct  Testimony  as  to  Ownership. 
A  party  claiming  title  to  a  chose  in  action 
or  other  personal  property  which  is  the 
subject  of  litigation  may  properly  be  per- 
mitted to  answer  a  question  as  to  who  is 
its  owner,  and  if  his  adversary  desires  the 
constituent  facts  on  which  such  claim  of 
ownership  is  based  he  may  elicit  them  on 
cross-examination.  First  National  Bank  v. 
Eobinson  (Kan.)  1916D-286. 

(Annotated.) 

78.  Intoxication.  Opinions  of  nonex- 
perts are  admissible  on  the  defense  of  in- 
toxication in  a  murder  case.  Common- 
wealth V.  Boyd  (Pa.)   1916I>-201. 

79.  Evidence  of  Intoxication.  It  is  not 
competent  for  witnesses  of  accused  to  tes- 
tify that  his  intoxication  rendered  him,  at 
the  time  of  the  killing,  incapable  of  un- 
derstanding that  he  was  committing  a 
crime,  since  that  is  a  conclusion  for  the 
jury.     James   v.   State    (Ala.)    1918B-119. 

80.  A  witness,  testifying  that  accused, 
relying  on  the  defense  of  intoxication,  was 
drinking  and  acted  queerly  just  before  the 
offense,  may  not  testify  that  he  considered 
accused  mentally  unbalanced  at  that  time. 
James  v.  State  (Ala.)  1918B-119. 

81.  In  a  servant's  action  for  damages 
for  personal  injury,  wherein  the  master 
claimed  that  the  injur}'  was  caused  by 
plaintiff's  fall  while  intoxicated,  the  peo- 
ple   with    whom    plaintiff    boarded,    who 


saw  him  at  the  breakfast  table  and  ob- 
served his  conduct,  might  state  that  then 
and  when  he  left  the  house  shortly  after- 
wards he  was  very  drunk,  as  whether  a 
person  is  drunk  is  a  question  which  one 
not  an  expert  may  answer,  being  some- 
thing of  common  knowledge,  and  such 
statements  amounting  in  effect,  to  a  de- 
scription of  facts,  a  characterization  of 
plaintiff's  conduct.  American  Bauxite  Co. 
v.  Dunn  (Ark.)  1917C-625. 

(Annotated.) 

Note. 

Admissibility  of  nonexpert  testimony  to 
prove  intoxication.     1917C-628. 

7.     DOCUMENTARY  EVIDEfNCE. 
a.    In  GeneraL 

82.  Evidence  In  Another  Case.  The  evi- 
dence in  an  action  of  debt,  dependent 
upon  the  same  issues  of  fact  as  those  in- 
volved in  another  action  of  assumpsit,  is 
made  part  of  the  record  in  the  latter  by 
the  following  agreement  filed  therein: 
"The  parties  hereto  agree  that  the  facts 
in  this  case  are  as  follows:  (Here  insert 
the  transcript  of  the  evidence  as  certified 
by  Henry  Garfield  Chaney,  the  official 
stenographer  of  this  court,  as  reported  in 
the  same  styled  case,  marked  Debt  No.  1, 
tried  at  the  September  term  of  this  court, 
1908.)"  Wilson  v.  Shrader  (W.  Va.) 
1916D-886. 

b.     Records  and  Public  Documents. 

83.  Where  plaintiff  passenger,  after  his 
arrest  by  defendant  railroad's  conductor 
and  ejection  from  the  train  for  being 
drunk,  pleaded  guilty  to  a  charge  of  being 
drunk  and  disorderly  in  the  city,  the  rec- 
ord of  the  conviction,  in  plaintiff's  subse- 
quent suit  against  the  road  for  his  arrest 
by  the  conductor,  is  admissible  in  evidence 
as  an  inconclusive  admission  against  plain- 
tiff's contention  in  the  suit  that  he  was 
sober  when  arrested.  Spain  v.  Oregon- 
Washington  E.  etc.  Co.  (Ore.)  1917E-1104. 

(Annotated.) 

84.  Deposition  at  Former  Trial.  In  an 
action  against  an  attorney  for  negligence 
in  the  trial  of  an  action  for  plaintiff,  suing 
an  employer  for  a  personal  injury,  a  dep- 
osition of  a  witness  testifying  at  a  former 
trial  is  admissible,  where  the  witness  in 
the  deposition  has  more  than  merely  corro- 
borated the  testimony  at  the  trial.  Mc- 
Lellan  v.  Fuller  (Mass.)  1917B-]. 

(Annotated.) 

85.  Hearing  on  Transcript  of  Former 
Evidence.  Due  process  of  law  does  not 
forbid  the  hearing  of  a  cause  upon  a  tran- 
script of  evidence  formerly  heard  in  court, 
especially  where  the  course  pursued  has 
the  assont  of  the  parties.  De  La  Rama  v. 
De  La  Rama  (U.  S.)  1917C-411. 


EVIDENCE. 


345 


86.  Certified  Copy.  A  certified  copy  of 
tlie  records  in  the  office  of  the  collector  of 
internal  revenue  relating  to  the  issuance 
of  a  liquor  license  is  admissible  in  evi- 
dence in  a  prosecution  for  maintaining  a 
liquor  nuisance  when  properly  proved,  and. 
such  record  is  properly  proved  when  there 
is  attached  thereto  a  certificate  by  the  col- 
lector of  internal  revenue  as  to  its  cor- 
rectness and  authenticity.  State  v.  Kil- 
mer (N.  Dak.)  1917E-116. 

87.  A  statement  in  a  certificate  of  the 
collector  of  internal  revenue,  which  is  at- 
tached to  a  certified  copy  of  the  record  of 
special  taxpayers  and  registers  of  his  dis- 
trict, does  not  render  the  admission  of 
such  record  reversible  error,  because  it 
states  in  substance  that  the  record  shows 
the  issuance  of  United  States  special  tax 
stamps  to  the  defendant,  when  the  record 
upon  its  face  shows  the  same  fact.  State 
V.  Kilmer  (N".  Dak.)   1917E-116. 

88.  Testimony    at    Former    Trial.     The 

statute  permitting  the  use  of  the  stenog- 
rapher's transcript  of  testimony  (Gen. 
Stat.  Kan.  1909,  §  2407)  does  not  restrict 
such  use  to  the  limitations  which  attach  to 
a  deposition  under  sections  337  and  358 
of  the  Civil  Code.  New  v.  Smith  (Kan.) 
1917B-362. 

89.  Police  Station  Blotter.  A  memo- 
randum made  by  the  officer  in  charge  of 
a  police  station,  showing  the  names  of 
persons  arrested,  the  charges  preferred, 
etc.,  is  not  admissible  as  evidence  of  the 
facts  therein  stated.  Carroll  v.  Parry 
(D.  C.)   1916E-971. 

Note, 

Admissibility  in  subsequent  civil  action 
of  judgment  of  conviction  based  on  plea  of 
guilty.     1917C-1109. 


c.    Private   Documents. 
(1)     Entries  in  Course  of  Business. 

90.  Book  not  of  Original  Entry.    In  an 

administratrix's  action  on  open  account, 
where  all  the  books  of  dece<Jent,  who  had 
kept  a  store  of  which  defendant  was  man- 
ager, had  been  destroyed  by  fire,  except 
a  ledger,  such  ledger  is  admissible  as  origi- 
nal evidence  of  the  state  of  account 
between  decedent  and  defendant,  under 
authenticating  testimony  of  decedent's 
bookkeeper  from  personal  knowledge  that 
entries  on  the  bill  book  and  cash  book 
were  correct  copies  of  the  entries  on  the 
sale  tickets  and  tickets  showing  payments 
of  salary,  not  made  by  him,  but  by  the 
clerk  who  sold  goods  or  the  cashier  who 
advanced  money,  and  that  the  entries  on 
the  bill  book  and  cash  book  were  cor- 
rectly transferred  to  the  ledger,  and  from 
thence,  when  filled,  to  that  sought  to  be 
introduced.  Givens  v.  Pierson's  Adminis- 
tratrix  (Ky.)   1917C-956.         (Annotated.) 


(2)     Mapg. 

91.  Admissibility  of  Ancient  Map.  An 
ancient  map  of  the  public  roads  of  a 
county,  purporting  to  have  been  made  by 
authority,  and  coming  from  the  proper 
custody,  is  competent  evidence  to  show  the 
existence  and  location  of  the  public  roads 
of  the  county  at  the  time  it  was  made,  and 
in  a  contest  between  coterminous  land- 
owners, where  a  road  delineated  on  the 
map  is  claimed  to  be  a  boundary,  such 
map  is  relevant,  and  is  receivable  in  evi- 
dence, when,  upon  inspection  by  the  court, 
the  map  appears  to  be  what  it  purports  to 
be  and  is  shown  to  have  been  produced 
from  the  proper  depository.  Bunger  v. 
Grimm  (Ga.)  19160-173.  (Annotated.) 

92.  Original  Map  to  Explain  Later  One. 
Where,  in  an  action  by  a  railroad  to  re- 
cover possession  of  part  of  its  right  of 
way  alleged  to.  have  been  encroached 
upon,  the  defendant  introduced  in  evi- 
dence a  plat  of  the  right  of  way  used  in 
a  previous  suit  between  the  railroad  and 
the  township,  it  is  error  to  exclude  from 
evidence  another  plat  of  the  right  of  way 

.made  earlier  by  a  real  estate  agent  of  the 
company,  dead  at  time  of  suit,  proved  to 
have  been  his  by  his  handwriting,  the  sec- 
ond plat  being  a  counter  declaration  to  the 
first  plat  introduced  by  defendant;  the 
purpose  of  the  introduction  of  such  plat 
being  to  show  the  location  of  plaintiff's 
right  of  way.  Atlantic  Coast  Line  E,  Co. 
V.  Dawes  (S.  Car.)  1917A-1272. 

Note. 

Admissibility  in  evidence  of  ancient 
map  or  survey.     1916C-176. 

(3)     Books  not  Eclating  to  Exact  Science. 

93.  Booklet  Issued  by  Manufacturer  of 
Gas  Machine.  A  booklet  issued  by  de- 
fendant relative  to  its  gasoline  lighting 
systems,  one  of  which  it  sold  to  deceased 
and  installed  in  his  house,  is,  in  an  action 
for  his  death  by  explosion  of  gasoline 
therefrom,  properly  admitted  in  evidence, 
he  having  been  seen  reading  it,  and  its 
statements  being  such  as  to  tend  to  lead 
him  to  think  that  precautionary  measures 
were  unnecessary  in  the  operation  of  the 
svstem.  Mahlstedt  .v.  Ideal  Lighting  Co. 
(iU.)   1917D-209. 

(4)     Medical  Books. 

94.  Objections  to  extracts  from  scientific 
medical  works  introduced  in  evidence  were 
properly  overruled,  though  there  was  no 
proof  that  they  were  works  of  authority 
and  standing  with  the  medical  profession, 
where  the  objections  did  not  point  out  this 
lack  of  proof,  as  the  deficiency  might  have 
been  supplied  or  the  extracts  excluded  had 
the  point  been  raised.  Barfield  v.  South 
Highlands  Infirmary   (Ala.)  1916C-1097. 


346 


DIGEST. 

19160— 1918B. 


95.  Medical  Books.  Eelevant  .extracts 
from  medical  treatises  recognized  and  ap- 
proved by  the  medical  profession  as  stand- 
ard may  be  read  to  tbe  jury  in  evidence. 
Barfield  v.  South  Highlands  Infirmary 
(Ala.)   1916C-1097. 

(5)     Statutes. 

96.  Admissibility  of  Printed  Volume. 
Under  Iowa  Code,  §  4651,  providing  that 
printed  copies  of  the  statute  law  of  other 
states,  purporting  to  have  been  published 
under  the  authority  thereof,  or  proven  to 
be  commonly  admitted  as  evidence,  shall 
be  admitted  in  the  courts  of  the  forum, 
a  copy  of  the  statutes  of  a  foreign  state 
is  inadmissible  in  evidence,  where  the 
work  itself  did  not  purport  to  be  pub- 
lished under  the  authority  of  the  state, 
and  no  proof  was  offered  to  show  that  it 
was  commonly  admitted  as  evidence  of  the 
statutes  in  the  courts  of  the  foreign  state. 
Budolph  Hardware  Co.  v.  .Price  (Iowa) 
1916D-850.  (Annotated.) 

Note. 
Admissibility  of  printed   copy  of  stat- 
utes to  prove  law  of  another  jurisdiction. 
1916D-853. 

(6)     Mercantile  Reports. 

97.  The  reports  of  mercantile  agencies, 
offered  for  the  purpose  of  proving  the 
amount  of  property  owned  by  a  person,  are 
not  admissible  in  evidence  to  prove  the 
value  of  such  property;  nor  does  their 
competency  in  this  case  appear  for  the 
purpose  of  showing  "notice,  lack  of  no- 
tice, or  motive."  Brown  v.  Caylor  (Ga.) 
1916D-745.  (Annotated.) 

Note. 

The  law  of  mercantile  agencies.  191 6D- 
747. 

(7)     Survey  Notes. 

98.  Admissibility  of  Survey.  An  unoffi- 
cial survey  is  admissible  in  evidence- when 
proved  to  have  been  correct.  Hunger  v. 
Grimm  (Ga.)  1916C-173. 

99.  Field  Book  of  Deceased  Surveyor. 
Held  book  entries  made  by  a  deceased 
surveyor  for  the  purpose  of  a  survey  on 
which  he  was  professionally  employed,  are 
admissible  in  evidence,  being  made  in  the 
discharge  of  a  professional  duty;  hence  on 
proper  foundation,  such  notes  may  be  re- 
ceived in  evidence  and  another  surveyor 
interpret  them.  Wightman  v.  Campbell 
(N.  Y.)  1917E-673.  (Annotated.) 

Note. 

Admissibility  in  evidence  of  field  book 
entries  of  deceased  surveyor.     1917E-675. 

(8)     Corporate  Books  and  Records. 

100.  As  Between  Stockholders.  A  con- 
tract for  the  sale  of  a  large  part  of  the 


stock  of  a  corporation  provided  that  the 
corporation's  indebtedness  should  be  there- 
after ascertained  and  paid  in  certain  pro- 
portions by  the  buyer  and  seller.  There- 
after the  buyer  furnished  a  statement  of 
the  corporate  indebtedness,  which  should 
be  paid  by  the  seller,  and  the  seller  dis- 
puted the  statement  and  refused  to  pay 
any  part  of  the  indebtedness  shown  by  it. 
Suit  was  thereupon  brought  by  the  buyer 
for  an  accounting  and  to  enforce  payment 
of  the  balance  found  to  be  due.  It  is  held 
that  the  corporation's  books  and  vouchers, 
showing  its  business  while  both  parties 
were  stockholders,  were  properly  admitted 
in  evidence.  Miller  v.  Dilkes  (Pa.)  1917D- 
555.  (Annotated.) 

Note. 
Admissibility  in   evidence   of  books   or 
records  of  corporation  in  action  between 
members  or  between  corporation  and  mem- 
ber.    1917D-558. 

(9)  Letters. 

101.  Letters  Written  by  Parties  After 
Suit  Begun.  Letters  written  between  hus- 
band and  wife  after  the  institution  of  a 
suit  for  divorce,  each  to  obtain  an  ad- 
vantage over  the  other  at  trial,  will  be 
accorded  no  weight.  Marshak  v.  Mar- 
shak  (Ark.)  1916E-206. 

102.  Self-serving  Letters.  A  packer  of 
corn  wrote  a  broker  of  cornpacking  pro- 
ducts offering  "10,000  cases  fancy,"  at  $1 
per  dozen  cases.  The  broker  procured  a 
purchaser  subject  to  approval  of  a  sample 
case  but  upon  receipt  of  the  sample 
case  the  purchaser  wired  the  broker  that  it 
was  not  of  fancy  quality  and  could  not  be 
used.  The  broker  wrote  the  packer  stat- 
ing the  substance  of  the  telegram.  It  is 
held  that,  in  an  action  by  the  broker  for 
commissions,  the  letter  and  telegram  were 
improperly  excluded,  since  letters  and 
telegrams  by  one  party  to  a  suit  to  the 
other  sent  in  the  general  course  of  busi- 
ness and  not  specifically  to  manufacture 
evidence,  and  which  by  the  character  of 
their  contents  are  naturally  calculated  to 
elicit  replies  and  denials,  are  admissible  in 
evidence,  though  self-serving  and  not  an- 
swered, not  as  themselves  affording  proof 
that  the  statements  therein  are  true,  but 
on  the  ground  that  silence  when  such 
statements  are  made  may  itself  be  an  ad- 
mission. Dennis  v.  Waterford  Packing 
Co.   (Me.)   1917D-788.  (Annotated.) 

Note. 
Admissibility  in  evidence  of  self-serving 
letter  or  telegram  sent  in  general  course 
of  business.     1917D-790. 

(10)  Diary. 

103.  Admissibility  of  Private  Diary. 
When  a  deceased  person,  a  stranger  to  the 
transaction,  made  entries  in  a  book  which 
are  relevant   to   the   case,   the  entries   are 


EVIDENCE. 


347 


admissible  in  evidence  only  when  made  in 
the  regular  course  of  business,  which 
means  in  the  way  of  business,  and  hence 
entries  by  a  private  person  in  a  diary  con- 
cerning the  weather  kept  only  as  a  matter 
of  custom  and  not  as  a  matter  of  business 
or  duty  are  not  admissible  after  his  death. 
Arnold  v.  Hussey  (Me.)  19^16iG'-715. 

(Annotated.) 

104.  In  an  action  for  injuries  caused  by 
a  fall  on  the  ice  in  front  of  defendant's 
building,  the  erroneous  admission  of  en- 
tries in  a  private  weather  record  kept  by 
one  now  deceased,  tending  to  show  that 
the  temperature  was  such  that  ice  could 
not  have  formed  on  the  day  in  question, 
is  prejudicial.  Arnold  v.  Hussey  (Me.) 
1916C-715.  (Annotated.) 

Notes. 

Private   diary  as   evidence.     1916C-717. 

Admissibility  of  evidence  received 
through  detectaphone  or  dictagraph. 
1916E-181. 

(11)  Hospital  Cfharta. 

105.  Admissibility  of  Hospital  Chart. 
Entries  of  plaintiff's  symptoms,  etc.,  on  a 
hospital  chart  by  various  nurses  are  not 
admissible  in  the  absence  of  evidence  that 
the  nurses  are  unobtainable.  Osborne  v. 
Grand  Trunk  K.  Co.  (Vt.)   1916C-74. 

(Annotated.) 

106.  In  an  action  against  a  surgeon  for 
malpractice  in  his  treatment  of  a  patient 
in  a  hospital,  charts  or  records  kept  by  the 
nurses  for  the  information  of  the  attend- 
ing physician  or  surgeon  axe  properly  ad- 
mitted in  evidence,  though  they  doubtless 
signified  little  to  the  jury.  Barfield  v. 
South  Highlands  Infirmary  (Ala.)  1916C- 
1097. 

107.  In  an  action  for  malpractice  on 
the  part  of  a  surgeon  in  treating  a 
patient  in  a  hospital,  it  is  not  error  to 
permit  defendant,  while  testifying  as  an 
expert  and  giving  his  opinion  on  the 
whole  course  of  treatment  administered  to 
plaintiff,  to  read  temperature  charts  kept 
hj  the  nurses  in  the  hospital,  the  authenti- 
city and  accuracy  of  which  was  fully  es- 
tablished and  undisputed,  this  being  noth- 
ing more  than  a  statement  of  some  of  the 
considerations  that  influenced  his  pro- 
fessional judgment  respecting  the  proper 
treatment  to  be  followed.  Barfield  v. 
South  Highlands  Infirmary  (Ala.)  1916C- 
1097. 

Note. 
Hospital   chart   as   evidence.     1916C-78. 

d.     Official  Documents. 

108.  Necessity  of  Showing  Appointment. 

An  administrator's  deed,  accompanied  by 
the^  order  of  the  ordinary  granting  leave 
to  sell,  is  admissible  as  a  muniment  of 
title,  without  the  production  of  the  letters 


of  administration.  Bunger  v.  Grimm 
(Ga.)  1916C-173. 

109.  An  administrator's  deed  without  an. 
order  of  sale,  or  a  sheriff's  deed  lot  ac- 
companied by  the  execution  under  which 
the  property  is  sold,  is  admissible  in  evi- 
dence as  color  of  title.  Bunger  v.  Grimm 
(Ga.)   1916C-173. 

8.  DECLAEATIONS  AND  ADMISSIONS. 
See  Admissions  and-  Declarations. 

9.  COMPAEISON    OF    TYPEWRITING. 

110.  Proof  of  Authorship  of  Typewritten 
Letters.  Where  a  contract  alleged  to  be 
embodied  in  an  illiterate  person's  letters  is 
in  issue,  testimony  as  to  how  he  spelled 
words  and  wrote  letters  on  the  typewriter, 
and  that  the  letters  in  question  were  his, 
by  persons  familiar  with  his  methods  of 
writing,  is  competent.  Josephs  v.  Briant 
(Ark.)  1916E-741. 

10.     HANDWRITING. 

111.  Text  by   Other   Writings.    On   an 

issuje  as  to  the  genuineness  of  the  alleged 
signatures  of  indorsers  to  the  notes  sued 
on,  it  is  error  to  submit  to  witnesses,  tes- 
tifying to  their  opinion  as  to  the  genuine- 
ness of  the  signatures,  on  cross-examina- 
tion, imitated  signatures  made  by  en- 
gravers in  order  to  test  the  witnesses' 
knowledge.  Fourth  National  Bank  v.  Me- 
Arthur  (N.  Car.)  1917B-1054. 

(Annotated.) 

112.  Signature   in   Court    as    Standard. 

The  signature  of  the  defendant  in  a  crim- 
inal action,  which  is  made  by  him  in  open 
court  and  without  objeotion,  is  admissible 
in  evidence  for  comparison  and  in  order 
to  prove  the  genuineness  of  other  hand- 
writing claimed  to  be  his.  State  v.  Gor- 
don (N.  Dak.)  1918A-442. 

Note. 
Testing  handwriting  witness  by  use  of 
other  writing.     1917B-1060. 

11.  PHOTOGRAPHS     AS     EVIDENCE. 

113.  Preliminary    Proof    Requisite.     On 

an  issue  as  to  the  genuineness  of  the  sig- 
natures of  alleged  indorsers  of  certain 
notes  sued  on,  enlarged  photographs  of  the 
disputed  writings  are  inadmissible  with- 
out preliminary  evidence  of  the  photo- 
grapher who  made  them  as  to  how  and 
under  what  conditions  they  were  taken,  so 
that  the  jury  might  determine  whether 
they  were  exact  reproductions.  Fourth 
National  Bank  v.  McArthur  (N.  Car.) 
1917B-1054. 

12.  PAROL      EVIDENCE      TO      VARY 

WRITTEN  INSTRUMENTS. 
a.     Proof  of   Collateral   Agreement. 

114.  Parol  to  Vary  Writing.  Where  a 
contract  of  sale  is  reduced  to  writing,  the 


348 


DIGEST. 

1916C— 1918B. 


written  instniinent  is  the  exclusive  evi- 
dence of  the  contract,  and  it  cannot  be 
varied  by  parol,  proof  tending  to  show  the 
existence  of  additional  warranties.  Pick- 
rell,  etc.  Co.  v.  Wilson  Wholesale  Co. 
(N.   Car.)    1917C-344. 

115.  Where  defendant's  special  notice, 
in  replevin  for  two  cows  under  a  chattel 
mortgage  given  to  secure  purchase  price 
of  a  horse,  set  out  misrepresentation  of 
the  property  sold,  a  warranty,  and  an  oral 
contract  that  the  sale  of  the  horse  was 
conditional  upon  his  conforming  to  the 
terms  of  the  representation  and  warranty, 
but  contained  no  direct  allegation  of  fail- 
ure of  consideration,  or  of  distinct  under- 
standing between  the  parties  that  delivery 
of  the  mortgage  was  conditional,  and  not 
absolute,  the  admission  of  testimony  of 
defendant  that  the  sale  was  conditional, 
and  not  absolute,  is  improper.  Solomon  v. 
Stewart  (Mich.)  1917A-942. 

116.  Showing  Existence  of  Bigbt  to  Re- 
scind.. In  replevin  by  a  mortgagee  for  two 
cows  under  a  mortgage  given  to  secure 
the  purchase  price  of  a  horse,  parol  evi- 
dence is  inadmissible  to  show  that  the  sale 
of  the  horse  was  subject  to  the  express 
condition  that  it  could  be  returned  if  not 
as  represented,  although  parol  evidence  is 
admissible  to  show  that  a  contract  was 
procured  by  fraud,  that  there  was  failure 
of  consideration,  or  that  the  understand- 
ing was  that  the  delivery  of  the  mortgage 
and  note,  etc.,  was  not  absolute,  but 
merely  conditional.  Solomon  v.  Stewart 
(Mich.)   1917A-942. 

117.  Parol  Evidence  to  Vary  Lease.  A 
written  lease  for  three  years  at  a  monthly 
rental  cannot  be  varied  by  parol  evidence 
that  the  lessor,  at  the  time  of  the  execu- 
tion of  the  lease,  advised  the  lessee  of  a 
pending  action  by  a  third  person  to  en- 
force the  lessor's  contract  of  sale,  and  that 
the  lessee  replied  that  he  would  take  his 
chances,  and  thereby  relieve  the  lessor 
from  liability  for  the  lessee's  eviction  by 
the  third  person,  succeeding  in  his  action; 
the  rule  that  a  written  instrument,  accom- 
panied by  a  condition  precedent  to  its 
taking  effect,  may  be  modified  by  parol 
proof  of  the  condition  not  being  applica- 
ble to  a  written  instrument  which  has  once 
taken  effect  or  to  a  contract  which  the 
statute  of  frauds  requires  to  be  in  writing. 
Wolf  V.  Megantz   (Mich.)   1916D-114(5. 

118.  The  mailing  and  contents  of  a  pos- 
tal card  from  carrier  to  consignee,  an- 
nouncing arrival  of  shipment,  may  be 
shown  by  parol,  in  an  action  by  the'  con- 
signee to  recover  the  goods  in  which  de- 
fendant claims  for  storage,  the  mailing 
and  contents  being  matters  collateral  to 
the  issue,  and  not  the  subject-matter  of 
the  litigation.  Holloman  v.  Southern  E. 
Co.   (N.  Car.)    1917E-inC9. 

nn.  Parol  to  Vary  Writin?— Scope  of 
Contract  of  Suretyship.     Where  a  wife  as 


surety  for  her  husband  signed  a  note  and 
mortgage,  she  cannot  in  an  action  on  the 
note  and  mortgage  testify  that  she  only 
intended  to  pledge  her  land  and  did  not 
intend  to  incur  further  obligation,  for  that 
would  contradict  the  terms  of  the  written 
instrument.  Koyal  v.  Southerland  (N 
Car.)    1917B-623. 

b.     To    Explain    Ambiguity. 

120.  Effect  of  Use  of  Printed  Letter- 
head. "Where  a  contract  of  guaranty  was 
written  on  a  letterhead  of  a  bank,  which 
showed  the  names  and  oflScial  capacities  of 
the  various  oflScers,  and  was  signed  by  one 
who  appended  the  word  "manager"  after 
his  signature,  but  there  was  nothing  to 
show  that  the  manager  intended  the  bank 
to  be  bound,  the  word  "manager"  must 
prima  facie  be  taken  as  mere  descriptio 
personae,  though  it  creates  sufficient  ambi- 
guity to  admit  parol  evidence  as  to  the 
intention  of  the  signer.  Griffin  v.  Union 
Savings,  etc.  Co.  (Wash.)  1917B-267. 

(Annotated.) 
Note. 
Evidentiarv  effect  of  use  of  printed  let- 
terhead or  billhead.     1917B-271. 

c.    Showing  Eeal  Character  of  Instrument. 

121.  Parol  to  Explain  Writing.  In  a  suit 
by  plaintiff  railroad  to  recover  possession  of 
a  part  of  its  right  of  way,  alleged  to  have 
been  encroached  upon  by  defendant,  where 
defendant  offere^d  in  evidence  a  plat  of 
plaintiff's  right  of  way  which  had  been 
put  in  evidence  in  a  previous  suit  between 
plaintiff  road  and  another  party,  and 
which  showed  that  the  right  of  way  by 
the  scale  of  the  plat  was  less  than  claimed 
in  suit  by  the  plaintiff  road,  the  explana- 
tion of  the  roadmaster  of  the  road,  who 
was  present  when  the  plat  was  drawn,  who 
had  procured  data  for  it,  and  who  knew 
the  purpose  for  which  it  was  made,  that 
there  had  been  no  attempt  to  draw  it  to 
scale  is  improperly  excluded  from  evi- 
dence. Atlantic  Coast  Line  R.  Co.  v. 
Dawes  (S.  Car.)  1917A-1272. 

122.  Showing  Consideration.  Under  Ky. 
St.  §  472,  providing  that  the  consideration 
of  any  writing  with  or  without  seal  may 
be  impeached  or  denied  by  pleading  veri- 
fied by  oath,  the  true  consideration  of 
a  deed  may  be  shown  though  it  contradicts 
the  writing.  Hite  v.  Eevnolds  (Ky.) 
1917B-619. 

123.  Apparently  Independent  Transac- 
tion as  Suretyship  Contract.  That  a  mar- 
ried woman  signed  a  note  to  plaintiff 
bank  which  on  its  face  was  a  contract  ap- 
parently independent  of  her  husband's  in- 
debtedness to  the  bank  does  not  preclude 
her  from  showing  the  true  intent  of  the 
transaction  and  that  she  in  fact  executed 
the  note  as  suretv  for  him.  First  Na- 
tional Bank  v.  Bertoli  (Vt.)   1917B-590. 


EVIDENCE. 


349 


d.    To  Show  Complete  Instrument. 

124.  Parol  Evidence  to  Explain  Writing 
— Writing  Incomplete.  The  correspond- 
ence soliciting  the  note  and  transmitting 
it  to  the  holder  in  escrow  discloses  that 
it  is  but  part  of  and  supplementary  to  the 
conditions  under  which  the  note  was  ex- 
ecuted and  was  to  be  delivered.  The  cor- 
respondence can  therefore  be  explained, 
and  supplemented  in  such  particulars  by 
oral  testimony.  Northern  Trust  Co.  v. 
Bruegger  (N.  Dak.)  1917E-447. 

e.     To  Prove  Lost  Instrument. 

126.  Parol  Evidence  of  Destroyed  Judi- 
cial Record.  "Where  a  judicial  record  has 
been  destroyed  by  fire,  and  the  parties  in- 
terested in  it  have  no  copy  thereof  in. 
their  possession  or  control,  its  contents 
may  be  established  by  parol  testimony, 
Williams  v.  Eichardson  (Fla.)   1916D-245. 

(Annotated.) 

127.  Loss  of  Official  Document,  '^'hile 
the  loss  and  contents  of  a  warrant  offered 
in  evidence  and  connected  with  a  legal 
proceeding  should  ordinarily  be  proved  by 
the  legal  custodian  of  such  paper,  rather 
than  by  other  witnesses,  yet  if  the  fact 
and  contents  of  such  paper  otherwise 
sufficiently  appear  from  other  parts  of  the 
record  to  which  the  paper  belongs,  admit- 
ted in  evidence,  the  admissicn  of  the  evi- 
dence of  such  other  witness  will  not  con- 
stitute reversible  error.  Howell  v.  Wysor 
(W.  Va.)  1916C-519. 

128.  Lost  Letter.  In  an  action  to  recover 
a  broker's  commission  on  a  sale  of  land, 
wherein  plaintiff  testified  that  defendants 
gave  him  a  written  agreement  of  employ- 
ment in  the  form  of  a  letter,  in  response  to 
a  cenversation  between  himself  and  defend- 
ant, and  containing  the  substance  of  and 
confirming  it,  which  writing  had  been  lost, 
plaintiff's  testimony  as  to  such  conversa- 
tion was  admissible,  as  being  merely  a 
statement  of  the  contents  of  the  writing. 
Taggart  t.  Hunter  (Ore.)  1918A-128. 

Note. 

Proof  of  parol  of  contents  of  lost  or  de- 
stroyed   judicial    record.     1916D-248. 

f.    To   Show  Consideration. 

129.  Parol  evidence  is  admissible  to 
show  the  real  consideration  of  a  contract 
reciting  a,  consideration.  Queensborough 
Land  Co.  v.  Cazeau  (La.)  1916D-1248. 

g.     To  Ebcplain  Terms. 

130.  In  an  action  for  damages  for  fail- 
ing to  deliver  cucumber  seed  bought  un- 
der a  written  contract  as  being  "Improved 
Chicago  Pickling,"  evidence  that  the  pur- 
chaser was  informed  as  to  the  kind  of  seed 
actually  furnished,  that  it  had  been  devel- 
oped from  seed  purchased  from  a  certain 


company,  and  that  he  agreed  that  it 
should  be  labeled,  "Improved  Chicago 
Pickling,"  is  improperly  excluded;  it  be- 
ing in  explanation,  and  not  in  variation, 
of  the  terms  of  the  written  contract. 
Buckbee  v.  P.  Hohenadel,  Jr,  Co.  (Fed.) 
1918B-88.  (Annotated.) 

131.  In  an  action  for  damages  for  fail- 
ing to  deliver  "Improved  Chicago  Pick- 
ling" cucumber  seed  under  a  written  con- 
tract, evidence  that  the  seller  produced  cu- 
cumbers from  the  seed  contracted  for  as 
samples  and  sent  them  to  the  purchaser 
previous  to  the  delivery  is  admissible  to 
show  notice  of  the  actual  nature  of  the 
seed  to  be  delivered.  Buckbee  v.  P.  Hoh- 
enadel, Jr.  Co.  (Fed.)  1918B-88. 

(Annotated.) 

13.'    PRESUMPTIONS. 

Of  execution  of  deed  from  acknowledg- 
ment, see  Acknowledgments,  3. 

Of  alienage  from  foreign  residence,  see 
Aliens,  1. 

Of  continuance  until  change  is  proved,  see 
Aliens,  1. 

No  presumption  of  alteration  from  erasure, 
see  Alteration  of  Instniments,  12. 

On  appeal,  see  Appeal  and  Error,  190-202. 

That  child  born  in  wedlock  is  legitimate, 
see  Bastardy,  11,  12. 

Of  consideration  from  "value  received," 
see  Bills  and  Notes,  16. 

That  payee  is  holder  of  note,  see  Bills  and 
Notes,  58. 

Of  negligence  from  accident,  see  Carriers 
of  Passengers,  60-62. 

Of  innocence  of  accused,  see  Criminal  Law, 
87. 

Of  death  from  absence,  see  Death,  1,  2,  4. 

Of  acceptance  of  some  streets  from  accept- 
ance of  others,  see  Dedication,  11. 

That  date  of  deed  is  that  of  execution,  see 
Deeds,  18%. 

After  twenty  years  that  judgment  has 
been  paid,  see  Executors  and  Adminis- 
trators, 34. 

That  law  of  foreign  state  is  law  of  forum, 
see  Foreign  Laws,  1,  3. 

Of  fraud  in  fiduciary  relations,  see  Fraud, 
13,  14. 

No  presumption  of  law  against  gifts  causa 
mortis,  see  Gifts,  16. 

Of  fraud  from  relation  of  confidence,  see 
Gifts,  15.    . 

Of  undue  influence  from  relation  of  con- 
fidence, see  Gifts,  15. 

That  evidence  authorized  judgment,  see 
Habeas  Corpus,  15. 

In  favor  of  homestead  right,  see  Home- 
stead, 1. 

In  homicide  cases,  see  Homicide,  16. 

That  highest  number  of  votes  for  one 
office  equaled  number  of  voting  elec- 
tors, see  Initiative  and  Referendum,  7. 

That  one  is  sane,  see  Insanity,  9,  15. 

From  failure  to  produce  evidence,  see  In- 
structions, 66. 


350 


DIGEST. 

1916C~1918B. 


By  statute  tliat  holder  of  U.  S.  tax  re- 
ceipt is  dealer,  see  Intoxicating  Li- 
quors, 104,  105. 
In  favor  of  consent  judgment,  see  Judg- 
ments, 45. 
That  plaintiff  is  owner  of  judgment,  see 

Judgments,  16. 
Of  agreement  to  pay  rent  from  occupancy, 

see  Landlord  and  Tenant,  32. 
Of  malica  from  wrong  done,  see  Libel  and 

Slander,  10. 
Of  damage  from  publication,  see  Libel  and 

Slander,  115,  120. 
As  to  malice,  see  Libel  and  Slander,  121. 
Of  regularity  of  election,  see  Local  Op- 
tion, 1. 

Under  Workmen's  Compensation  Act,  see 
Master  and  Servant,  331-333. 

That  ordinance  is  reasonable,  see  Munici- 
pal Corporations,  97. 

That  initial  is  Christian  name,  see  Names, 
4. 

Child  of  six  or  seven  incapable  of  contrib- 
utory negligence,  see  Negligence,  48. 

Boy  of  five  unconscious  of  danger,  see 
Negligence,  50. 

Against  railroad  for  accident,  see  Negli- 
gence, 77. 

Of  negligence  of  carrier  from  accident,  see 
Negligence,  114. 

That  public  nuisance  affects  all  public 
alike,  see  Nuisances,  16. 

No  presumption  of  undue  influence  in  gift 
to  child,  see  Parent  and  Child,  6. 

Malpractice  not  presumed  from  result,  see 
Physicians  and  Surgeons,  36. 

That  cause  of  action  accrued  within  state, 
see  Pleading,  53. 

Against  state  in  action  in  nature  of  quo 
warranto,  see  Quo  Warranto,  1. 

That  order  of  railroad  commission  is  rea- 
sonable, see  Bailroads,  46. 

That  testamentary  remainder  is  vested, 
see  Bemainders  and  Beversions,   12. 

That  statute  was  regularly  enacted,  see 
Statutes,   26. 

That  legislature  knows  rules  of  construc- 
tion, see  Statutes,  78. 

As  to  valuation  for  taxation,  see  Taxation, 
50,  52. 

Of  title  from  possession,  see  Trespass,  5. 

Against  motion  to  direct  verdict,  see  Ver- 
dict, 29-31. 

That  waters  above  ebb  and  flow  are  non- 
boatable,  see  Waters  and  Water- 
courses, 28. 

a.     Intention  of  Parties. 

132.  Inferences  Against  Actual  Intent 
of  Parties.  The  law  should  not  be  so  ap- 
plied as  to  create  presumptions  which 
have  no  actual  basis  of  fact  in  the  inten- 
tion of  the  parties.  Shepard  v.  New  York 
(N.  Y.)   1917C-1062. 

b.    Performance  of  Public  Duty. 
^  133.  In  such  case  the  court  will  conclu- 
sively  presume   that  the  publication  was 


made  according  to  the  constitutional  re- 
quirements by  those  to  whom  the  constitu- 
tion and  statutes  enacted  in  pursuance 
thereof  intrusted  such  dutv.  Gottstein  v. 
Lister  (Wash.)   1917D-100's. 

(Annotated.) 

134.  Acts  of  Public  Officer.  The  acts  of 
a  public  oflicer  which  presuppose  the  ex- 
istence of  other  acts  or  conditions  to  make 
them  legally  operative  are  presumptive 
proofs  of  the  latter.  Hamilton  v.  Erie  B. 
Co.  (N.  Y.)   1918A-928. 

c.    Receipt  of  Letter. 

135.  That  notice  by  postal  card,  properly 
addressed  and  mailed,  from  carrier  to  con- 
signee, of  arrival  of  shipment,  was  re- 
ceived, will  be  presumed  in  the  absence  of 
evidence  to  the  contrary.  Holloman  v. 
Southern  B.  Co.   (N.  Car.)    1917E-1069. 

(Annotated.) 

136.  A  letter  which  a  witness  testified 
he  mailed  to  defendant  by  dropping  in  an 
iron  letter  box  on  a  street  corner  is  ad- 
missible, since  the  court  judicially  knows 
that  such  mail  boxes  are  maintained  by 
the  government,  and  it  will  be  presumed 
that  the  letter  was  duly  delivered  to  de- 
fendant the  same  as  if  it  had  been  de- 
posited in  the  postoffice.  Corry  v.  Sylvia 
Y  Cia  (Ala.)  1917E-1052. 

(Annotated.) 
Note, 

Presumption  of  receipt  of  letter. 
1917E-1058. 

d.     Knowledge  of  Law. 

137.  Knowledge  of  Foreign  Law.  As  a 
general  rule,  a  man  is  presumed  to  know 
and  understand,  not  only  the  laws  of  the 
country  where  he  dwells,  but  also  those 
of  the  foreign  country  or  state  in  which 
he  transacts  business,  Klein  v.  Keller 
(Okla.)   1916D-1070.  (Annotated.) 

e.     Ownership. 

138.  Presumption  of  Continuance.  Title 
once  shown  to  exist,  whether  by  the  pro- 
bative force  of  possession  or  otherwise,  is 
conclusively  presumed  to  continue  as 
against  a  trespasser.  Vidmer  v.  Lloyd 
(Ala.)   1917A-576. 

f.     Identity  of  One  of  Same  Name. 

139.  Identity  of  Person  from  Identity 
of  Name — Conflicting  Presumptions.  The 
presumption  that  identity  of  names  indi- 
cates identity  of  persons  will  make  admis- 
sible in  a  trial  for  maintenance  of  a  liquor 
nuisance  a  government  license  for  the  sale 
of  liquor  issued  to  a  person  of  the  same 
name  as  the  defendant,  without  prelim- 
inary proof  of  the  identity  of  the  person. 
State  V,  KUmer  (N.  Dak.)   1917E-116. 

(Annotated.) 


EVIDENCE. 


351 


Note. 

Conflict  'between  presumption  of  iden- 
tity of  person  from  identity  of  name  and 
another  presumption.     1917E-121. 

g.    Sobriety. 

140.  As  there  is  a  presumption  of 
sobriety,  the  erroneous  admission  of  such 
evidence  is  harmless.  Kichardson  v.  Sioux 
City  (Iowa)  1918A-618.  (Annotated.) 

Note. 

Presumption  of  temperance  or  sobriety. 
1918A-620. 

h..     Eeceipt  of  Telegram. 

141.  Though  where  a  telegram  properly 
addressed  is  delivered  to  the  company 
with  payment  of  the  fee  for  transmission, 
or  is  shown  to  have  been  sent,  delivery  to 
the  addressee  is  presumed,  there  is  no  pre- 
sumption from  the  fact  that  a  telegraph 
company  found  a  telegram  among  its  files, 
where  no  showing  was  made  as  to  how  or 
for  what  purpose  the  telegram  came  into 
possession  of  the  company  nor  as  to  pay- 
ment of  fee.  Ottumwa  v.  McCarthy  Im- 
provement Co.  (Iowa)  1917E-1077. 

(Annotated.) 

142.  Delivery  of  Telegram.  Delivery  of 
a  properly  addressed  message  to  a  tele- 
graph company  for  transmission  raises  a 
presumption  that  it  was  received  in  due 
course  by  the  addressee.  Corry  v.  Sylvia 
Y  Cia  (Ala.)  1917E-1052. 

Note. 

Presumption     of    receipt    of    telegram. 

1917E-lp81. 

i.    Common  Law  of  Sister  State. 

143.  In  the  absence  of  evidence,  the 
common  law  of  Delaware  will  be  presumed 
to  be  the  same  as  that  of  Massachusetts. 
Klotz  V.  Pan-American  Match  Co.  (Mass.) 
1917D-895. 

144.  The  presumption  is  that  the  com- 
mon law  of  a  sister  state  is  the  same  as 
that  of  the  state  of  suit.  German-Ameri- 
can Bank  v.  Wright  (Wash.)  1917D-381. 

145.  Law  of  Sister  State.  In  the  ab- 
sence of  proof  to  the  contrary,  the  law  of 
another  state  or  country  is  presumed  to 
be  like  the  common  law  of  the  forum,  but 
it  is  not  presumed  to  be  like  the  statutory 
law.  Gowett  v.  Wallace  (Me.)  1917A- 
754. 

Note. 

Presumption  of  undue  influence  arising 
from  relation  of  man  and  woman  engaged 
to  be  married.     1916C-1031. 

j.     Authority  to   Answer   Letter. 

145^.  Authority  to  Answer  Letter. 
Where  a  letter  was  addressed  to  the  land 


agent  of  a  railroad  company  and  was  an- 
swered the  following  day  by  a  person  as- 
suming to  act  for  the  company,  it  should 
be  presumed  that  the  answer  was  made 
by  one  whose  duty  it  was  to  act  in  the 
matter  until  the  contrary  appeared.  New 
York,  etc.  E.  Co.  v.  Cella  (Conn.)  1917D- 
591. 

Note. 
Presumption   as  to  authenticity  of  let- 
ter received  in  reply  to  letter.    1917D-925. 

14.     BURDEN  OF  PROOF. 

146.  New  Matter  in  Answer.  Defend- 
ant has  the  burden  of  proving  matters  set 
up  by  the  answer  and  denied  by  the  reply. 
Schworm  v.  Fraternal  Bankers  Reserve 
Soc.  (Iowa)  1917B-373. 

147.  Quantum  of  Evidence.  In  an  ac- 
tion against  a  decedent's  estate  to  recover 
for  board  furnished  him,  an  instruction 
that  the  burden  of  proof  was  on  plaintiff 
to  make  out  a  case  and  to  offer  evidence 
"sufficient  by  its  greater  weight  to  sat- 
isfy" the  jury  of  the  truth  of  her  allega- 
tions, sufficiently  stated  the  correct  rule. 
McCurry  v.  Purgason  (N.  Car.)  1918A- 
907. 

148.  The  burden  of  establishing  the 
truth  of  a  plea  in  abatement  that  the 
plaintiff  was  a  fictitious  person  is  upon 
the  defendant.  Baldauf  v.  Nathan  Russell 
(N.  J.)  1917D-1191.  (Annotated.) 

15.  PRIVILEGED  COMMUNICATIONS. 
See  Witnesses. 

16.  WEIGHT    AND   SUFFICIENCY    OF 

EATLDENCE. 

a.     In   General. 

149.  Preponderance    of    Evidence.       A 

greater  or  less  probability,  leading  on  th© 
whole  to  a  satisfactory  conclusion,  is  all 
that  can  reasonably  be  required  to  estab- 
lish controverted  facts.  Devine  v.  Delano 
(111.)   1918A-689. 

150.  Wliat  Amounts  to  More  tlian  Scin- 
tilla. To  amount  to  more  than  a  scintilla 
the  evidence  must  be  of  a  character  suili- 
ciently  substantial,  in  view  of  all  the  cir- 
cumstances of  the  case,  to  warrant  the 
jury,  as  triers  of  the  facts,  in  finding  from 
it  the  fact  to  establish  which  the  evidence 
was  introduced.  Holstein  v.  Benedict 
CHawaii)    1918B-941.  (Annotated.) 

151.  Relative  Weight  of  Measurement 
and  Estimate.  Opinion  testimony  as  to  a 
witness'  estimation  from  observation  of 
the  depth  of  a  hole  in  the  street  is  so  con- 
jectural as  not  to  raise  a  substantial  con- 
flict, where  there  is  other  positive  evi- 
dence by  one  who  accurately  measured  the 
hole  that  it  was  of  a  different  depth,  so 
that    the    first-mentioned    testimony    does 


352 


not  make  the  question  one  for  the  jury. 
Lalor  V.  New  York  (N.  Y.)   1916E-572. 

(Annotated.) 

152.  To  sustain  a  finding  in  his  favor, 
it  is  not  essential  there  should  be  a  dis- 
tinct preponderance  of  evidence  on  behalf 
of  the  plaintiff.  To  have  this  effect,  it 
is  only  necessary  that  the  evidence,  when 
considered  in  its  entirety,  reasonably  jus- 
tifies such  verdict.  Hill  v.  Norton  (W. 
Va.)   1917D-489. 

153.  Evidence  Held  Sufllclent.  The  ver- 
dict finds  support  under  the  evidence  and 
the  law.  Manning  v.  St.  Paul  Gaslight  Co. 
(Minn.)   1916E-276. 

154.  Sufficiency  of  Evidence  to  Show 
Contents.  Evidence  of  the  contents  of  a 
lost  instrument  considered  and  held  not  to 
be  of  the  clear  and  convincing  character 
required  by  law.  Queen  v.  Queen  (Ark.) 
1917A-1101.  (Annotated.) 

Notes. 

Sufficiency  of  proof  to  establish  contents 
of  lost  instrument.     1917A-1104. 

Relative  weight  of  deposition  and  oral 
testimony.     1917D-758. 

Comparative  weight  of  estimate  and  ac- 
tual measurement.     1916E-573. 

Sufficiency  of  evidence  to  show  mailing 
of  letter.     1917E-1076. 

What  constitutes  scintilla  of  evidence. 
1918B-943. 

b.     Negative  Testimony. 

155.  The  evidence  in  an  action  against 
the  landlord  by  a  tenant's  guest  for  in- 
juries from  falling  in  an  unlighted  hall- 
way within  the  exclusive  control  of  the 
landlord  is  held  to  sustain  a  finding  that 
the  landlord  was  obligated  by  the  terms  of 
the  tenancy  to  light  the  hallway,  and  that 
he  negligently  failed  to  do  so.  Galagher 
v.  Murphy  (Mass.)  1917E-594. 

(Annotated.) 

156.  Itelative  Weight  of  Positive  and 
Negative.  The  rule  that  positive  testi- 
mony outweights  negative  testimony  does 
not  conflict  with  the  rule  that  the  weight 
of  conflicting  testimony  shiiU  be  left  to 
the  jury,  but  is  merely  a  rule  of  measure- 
ment for  use  by  the  jury.  Philadelphia, 
etc.  R.  Co.  V.  Gatta  (Del.)   1916E-1227. 

157.  Relative  Weight  of  Positive  and 
Inferential  Evidence.  The  evidence  of 
unimpeached  witnesses  testifying  from 
accurate  and  positive  knowledge  concern- 
ing facts  is  not  controverted  by  indefinite 
statements  or  negative  testimony,  or  by 
doubtful  inferences  from  undisputed  facts. 
Johnson  v.  Aetna  Life  Ins.  Co.  (Wis.) 
1916E-603. 

c.     TJncontroverted   Testimony. 

158.  Uncontradicted  Testimony.  De- 
fendant, a  stock  broker,  received  two  stock 


DIGEST. 

19160— 1918B. 

certificates,  which  it  pledged  with  the 
bank.  In  some  way  defendant's  employee, 
B.,  who  was  also  plaintifiTs  confidential 
agent,  obtained  possession  of  the  stock 
certificates  and  converted  them  to  his  own 
use.  Plaintiff  asserted  tBat  defendant 
was  liable  for  the  value  of  the  certificates 
he  had  deposited,  and  called  defendant's 
cashier  to  give  evidence  as  to  the  transac- 
tion. The  cashier  testified  without  contra- 
diction that  he  delivered  to  B.  two  other 
certificates  for  200  shares  upon  making 
monthly  settlement  of  plaintiff's  account, 
and  that  for  some  reason  B.  substituted 
those  for  the  ones  held  by  the  bank,  and 
which  defendant  was  entitled  to  hold  as 
margin.  Held,  that  the  cashier's  testi- 
mony was  not  so  improbable  as  to  entitle 
plaintiff  to  have  its  truth  submitted  to 
the  jury;   he  having  called  him  as  a  wit- 


ness.    Carlisle  v.  Norris   (N.  Y.)    1917A- 
429. 

159.  Conclusions  —  Motive.  Plaintiff 
having  introduced  evidence  tending  to 
show  a  reason  favorable  to  him  for  an 
admitted  act  of  defendant,  defendant,  to 
explain  his  conduct,  could  give  his  version 
of  the  occasion  and  his  reason  for  the  act, 
though  such  reason  was  uncommunicatcd 
to  any  one  at  the  time;  this  affecting  only 
the  weight  of  his  testimony.  Comstock's 
Administrator  v.  Jacobs  (Vt.)  1918A— 465. 

d.     Circumstantial  Evidence. 

160.  A  verdict  may  be  founded  on  cir- 
cumstances alone  in  criminal  as  well  as  in 
civil  cases.  Devine  v.  Delano  (III.) 
1918A-689. 

161.  "Circumstantial  evidence"  is  the 
proof  of  certain  facts  and  circumstances 
in  a  given  case  from  which  the  jury  may 
infer  other  connected  facts  which  usually 
and  reasonably  follow  according  to  the 
common  experience  of  mankind.  Devine 
V.  Delano  (HI.)  1918A-689. 

162.  Circumstantial  evidence  is  ac- 
cepted with  great  caution.  Watson  v. 
Adams  (Ala.)  1916E-565, 

e.  Number   of   Witnesses. 

163.  While  the  jury  is  to  be  guided  by 
the  evidence,  it  is  under  no  necessity  of 
comparing  the  number  of  witnesses,  and 
rendering  verdict  accordingly,  but  should 
weigh  all  the  testimony.  Music  v.  Big 
Sandy,  etc.  E.  Co.  (Ky.)  1916E-689. 

f.  Impossibility  of  Truth. 

164.  Testimony  to  Fact  Physically  Im- 
possible. Where  one  car  and  the  trucks  J 
of  another  rolled  off  the  end  of  a  railroad 
switch  and  crashed  into  the  fence  in  front 
of  plaintiffs  residence,  wrecking  it,  but 
not  injuring  the  house,  except  breaking  a 
window  by  a  flying  picket,  testimony  by 
plaintiff  that  she  was  thrown  over  the  foot 


EVICTION— EXECUTIONS. 


353 


of  a  bed,  which  was  two  feet  higher  than 
the'  mattress,  on  to  a  rocking  chair,  and 
thereby  injured,  when  taken  into  connec- 
tion with  testimony  by  other  occupants 
that  they  were  not  even  awakened,  is  con- 
trary to  the  physical  facts,  and  no  recov- 
ery can  be  had.  Louisville,  etc.  B.  Co,  t. 
Chambers   (Ky.)   1917B-i71. 

(Annotated.) 
Note. 

Conversations  by  telephone  as  evidence. 
1916E-977. 

EVICTION. 

Of  tenant,  effect  on  rent,  see  Landlord  and 
.     Tenant,  33,  34,  41. 

EXAMINATION  OF  "WITNESSES. 

See  Witnesses,  47-88. 

EXAMINATION  OF   TITIJ5. 

Bight  of  purchaser  to  time  for,  see  Jndi- 
clal  Sales,  3. 

EXCEPTIONS. 

In  d««ds,  see  Deeds,  55-61. 

EXCESSIVE  DAMAGES. 
See  Damages,  26-55. 

EXCISE  TAX 
See  Taxation,  86,  145-170. 

EXCLUSION  OF  ALIENS. 
See  Aliens,  3,  17-23. 

EXECUTION. 
Of  deeds,  see  Deeds,  3. 

EXECUTIONS. 

1.  Exemptions,  353. 

a.  Trust  Property,  353. 

b.  Tools  and  Apparatus  of  Trade,  353. 

c.  Proceeds  of  Fire  Insurance,  353. 

d.  Public  Property,   353. 

e.  Persons  Entitled,  353. 

f.  Evasion  of  Exemption  Laws,  354. 
2,.  Lien  of   Execution,  354. 

Creditor's  right  to  ignore  conveyance,  see 
Fraudulent  Sales  and  Conveyances, 
4,5. 

Claim  of  homestead  before  execution,  see 
Homestead,  9. 

Sale  under  junior  writ,  rights  of  parties, 
see  Judicial  Sales,  4. 

Sales  under  foreclosure,  see  Mortgages 
and  Deeds  of  Trust,  29-33. 

Effect  on  execution  sale  of  failure  to  re- 
cord deed,  see  Recording  Acts,  2. 

Suspension  of  sentence,  see  Sentence  and 
Punishment,  11,  12. 
23 


Liability  for  unauthorized  execution  sale, 
see  Sheriffs  and  Constables,  8,  9. 

1.    EXEMPTIONS, 
(a)     Trust  Property. 

1.  Land  Held  in  Trust.  Land  held  in 
trust  for  the  defendant  is  not  subject  to 
sale  under  execution.  Johnson  v.  Whilden 
(N.  Car.)   1916C-783. 

b.     Tools  and  Apparatus  of  Trade. 
Note. 
Vehicle  as  "tool,"   "implement"  or  "in- 
strument"     within      exemption      statute. 
1917D-96. 

«.    Proceeds  of  Fire  Insurance. 

2.  Property  not  Exempt  .at  Time  of 
Fire.  Under  Rem.  &  Bal.  Wash,  Code, 
§  568,  providing  that  whenever  property 
legally  exempt  from  execution  and  attach- 
ment is  insured  and  destroyed  by  fire  the 
insurance  money,  to  an  amount  equal  to 
the  exempt  property,  shall  be  exempt, 
where  a  man,  living  with  and  supporting 
his  illegitimate  child  and  its  mother,  so 
that  he  was  not  the  head  of  a  family  or  a 
householder  and  entitled  to  exemptions 
when  the  house  in  whiuh  he  lived,  which 
was  insured,  was  burned,  by  marrying  the 
woman  before  trial  of  his  creditor's  gar- 
nishment proceedings  against  the  insurer, 
legitimatized  the  child,  so  that  he  himself 
became  entitled  to  exemptions,  the  insur- 
ance money  is  not  exempt  from  the  cred- 
itor's claim,  since  to  reach  such  result  it 
would  be  necessary  to  read  into  the  stat- 
ute a  provision  that  if  property  is  insured 
which  is  not  exempt  and  is  damaged  by 
fire,  and  if  the  fire  had  not  occurred  the 
property  would  have  been  exempt  at  the 
time  of  the  trial,  the  insurance  money 
shall  be  exempt.  Peerless  Pacific  Co.  v. 
Burckhard  (Wash.)   1918B-247. 

d.  Public  Property. 

3.  Property  in  use  for  public  or  govern- 
mental purposes  cannot  be  sold  on  execu- 
tion or  other  legal  process,  the  rule  being 
founded  on  "public  policy,"  which  is  based 
upon  the  fundamental  law,  the  declara- 
tions of  the  legislature  in  the  statutes,  or 
the  decisions  of  the  courts.  School  Town 
of  Windfall  City  v.  Somerville  (Ind.) 
1916D-66L 

e.  Persons  Entitled. 

4.  "Child"  as  Including  Illegitimate 
Child.  Under  Rem.  &  Bal.  Wash.  Code, 
§§  553,  565,  providing  that  every  person 
who  has  residing  on  the  premises  with  him 
and  under  his  care  and  maintenance  bis 
minor  child  is  the  head  of  a  family,  and 
that  every  person  who  has  residing  with 
him  and  under  his  care  and  maintenance 


354 


DIGEST. 

19160— 1918B. 


his  minor  child  is  a  householder,  one  liv- 
ing with  and  supporting  his  minor  illegiti- 
mate child  and  its  mother  is  not  the  "head 
of  a  family"  or  a  "householder,"  and  so 
not  entitled  to  exemptions  from  attach- 
ment or  execution,  as  the  word  "child," 
used  in  the  statute  without  qualifying 
words,  the  context  not  showing  any  con- 
trary meaning,  does  not  include  an  illegiti- 
mate child.  Peerless  Pacific  Co.  v.  Burck- 
hard  (Wash.)  1918B-247. 

(Annotated.) 

f.     Evasion  of  Exemption  Laws. 

5.  Damages  for  Evading  Exemption.  In  . 
an  action  brought  by  a  debtor  to  recover 
damages  caused  by  his  creditor's  assign-, 
ment  of  the  claim  to  a  nonresident  so  that 
it  might  be  collected  by  attachment,  evi- 
dence held  to  support  a  finding  that  the 
debtor  was  not  the  owner  of  property,  in- 
cluding the  fund  attached,  of  a  value  in 
excess  of  the  statutory  exemption.  Ander- 
son V.  Knotts  (Ind.)  1916D-868. 

2.     LIEN  OP  EXECIJTION". 

6.  Effect  of  Issuing  Execution.  Under 
N.  Y.  Code  Civ.  Proc.  §  1250,  providing 
that  a  judgment  required  to  be  docketed 
neither  affects  real  property  nor  is  en- 
titled to  a  preference  until  the  judgment 
roll  is  filed  and  the  judgment  docketed, 
and  section  1251,  providing  that  a  judg- 
ment docketed  in  a  county  clerk's  office  is 
a  charge  upon  the  debtor's  real  property  in 
the  county  for  ten  years  after  filing  the 
judgment  roll,  where  a  judgment  debtor 
inherited  realty  from  his  father,  so  that 
the  liens  of  the  judgment  creditors,  whose 
judgments  had  been  docketed,  attached 
thereto  simultaneously  on  the  death  of  the 
father,  one  creditor  cannot  obtain  a  pref- 
erence over  the  others  through  the  issu- 
ance of  execution  and  the  advertising  of 
the  property  for  sale  by  the  sheriff.  Hul- 
bert  T.  Hulbert  (N.  Y.)   1917D-180. 

(Annotated.) 

7.  Necessity  of  Issuing  Execution  to 
Cfreate  Lien.  Under  N.  Y.  Code  Civ.  Proc. 
§  1250,  providing  that  a  judgment  required 
to  be  docketed  neither  affects  real  prop- 
erty nor  is  entitled  to  a  preference  until 
the  judgment  roll  is  filed  and  the  judg- 
ment docketed,  and  section  1251,  provid- 
ing that  a  judgment  docketed  in  a  county 
clerk's  office  is  a  charge  upon  the  debtor's 
real  property  in  the  county  for  ten  years 
after  filing  the  judgment  roll,  a  judgment, 
upon  being  filed  and  docketed,  becomes  a 
lien  upon  the  real  estate  of  the  debtor, 
and  it  is  no  longer  necessary  that  an  execu- 
tion should  be  issued  upon  the  judgment 
to  cause  it  to  become  a  lien  upon  realty. 
Hulbert  v.  Hulbert  (N.  Y.)  1917D-180. 

Note. 

Issuance  of  execution  as  giving  priority 
to  one  of  several  equal  judgment.  1917D- 
187. 


EXECITTOE   DE    SON   TOST. 

See  Executors  and  Administrators,  65-70. 

EXECUTOES  AND  ADMINISTRATORS. 

1.  Appointment  and  Removal,  354. 

a.  Jurisdiction  to  Appoint,  354. 

b.  Persons  Entitled,  355. 

c.  Contest   of  Appointment,   356. 

d.  Removal  or  Revocation,  356. 

2.  Bonds,  356. 

3.  Assets  of  Estate,  356. 

4.  Rights  and  Liabilities,  356. 

5.  Presentation  and  Proof  of  Claims,  357. 

6.  Family  Allowance  and  Probate  Home- 

stead, 357. 

7.  Sale  of  Decedent's  Realty,  358. 

8.  Accounting,   359. 

9.  Distribution,  360. 

a.  To  Heirs  and  Legatees,  360. 

b.  To  Creditors,  360. 

c.  Proceedings,  360. 

10.  Compensation,  360. 

11.  Executors  de  Son  Tort,  360. 

12.  Actions,  361. 

a.  By  Personal  Representative,  361. 

b.  Against    Personal   Representative^ 

362. 

c.  Limitation  of  Actions,  363. 

See  Embezzlement,  5. 

Substitution  of  executor  in  action  against 
decedent,  see  Actions  and  Proceed- 
ings, 17-18. 

Credit  to  executor  for  advancements,  see 
Advancements,  2. 

Appeals  in  administration  and  probate 
proceedings,  see  Appeal  and  Error, 
32. 

Withdrawal  of  decedent's  deposit,  see 
Banks  and  Banking,  47. 

Proceeds  of  condemned  land,  distribution, 
see  Conversion  and  Reconversion,  4. 

Administrator's  deed  as  evidence,  see 
Evidence,  108,  109. 

Attachment  of  payme^its  directed  by  will, 
see  Garnishment,  2,  4. 

Action  to  recover  excessive  allowance  to, 
see  Limitation  of  Actions,  8. 

Listing  of  debts  by  executor,  as  acknowl- 
edgment, see  Limitation  of  Actions, 
43. 

Pleading  bar  which  intestate  could  have 
set  up,  see  Limitation  of  Actions,  52. 

Probate  or  administration  tax,  see  Taxa- 
tion, 28-32. 

Treaty  in  conflict  with  state  administra- 
tion law,  see  Treaties,  7. 

Designation  of  executor,  see  Wills,  208. 

Testimony  as  to  transactions  with  person 
since  deceased,  see  Witnesses,  35-46. 

1.     APPOINTMENT  AND   REMOVAL. 

a.     Jurisdiction  to  Appoint. 

1.  The  word  "estate,"  as  used  in  Shan- 
non's Tenn.  Code,  §  3935,  subd.  4,  authoriz- 
ing the  appointment  of  an  administrator 
of  the  estate  of  a  nonresident  in  any 
county  where  any  suit  is  to  be  brought. 


EXECUTORS  AND  ADMINISTRATORS. 


355 


prosecuted,  or  defendant  in  which  the  es- 
tate is  interested,  means  the  whole  legal 
entity  which  may  be  the  subject  of  devolu- 
tion on  the  legatees,  devisees,  heirs,  or 
distributees  of  a  decedent,  under  the  laws 
of  a  state  or  government,  which,  under 
such  laws,  may  be  attacked  or  defended, 
or  to  obtain  which,  a  suit  may  be  brought. 
Sharp  V.  Cincinnati,  etc.  K.  Co.  (Tenn.) ' 
1917C-1212.  (Annotated.) 

2.  Assets  Within  Jurisdiction.  Under 
Shannon's  Tenn.  Code,  §  3935,  providing 
that  letters  of  administration  may  be 
granted  upon  the  estate  of  a  nonresident 
by  the  county  court  of  any  county  where 
deceased  had  any  goods,  chattels,  or  assets 
or  any  estate,  real  or  personal,  at  the  time 
of  his  death,  or  where  the  same  may  be 
when  the  letters  are  applied  for,  or  where 
any  suit  is  to  be  brought,  prosecuted,  or 
defended  in  which  the  estate  is  interested, 
an  administrator  may  be  appointed  iu  the 
county  in  which  the  decedent  was  wrong- 
fully killed,  though  the  cause  of  action 
for  the  wrongful  death  is  the  only  asset 
in  the  county,  and  there  are  no  technical 
assets.  Since  the  word  "chattels"  includes 
not  only  personal  property  in  possession, 
but  choses  in  action,  the  term  "goods  and 
chattels"  is  of  very  wide  signification, 
and  includes  choses  in  action.  The  term 
"choses  in  action"  includes  rights  of  ac- 
tion for  tort.  The  word  "assets,"  as  used 
in  the  administration  statutes,  though 
usually  meaning  items  subject  to  payment 
of  the  debts  of  the  decedent,  is  not  wholly 
limited  to  this  meaning,  but  has  been  ap- 
plied to  money  collected  by  an  adminis- 
trator as  damages  for  wrongful  killing  of 
an  intestate.  The  word  "estate,"  though 
in  its  primary  and  technical  sense  re- 
ferring only  to  an  interest  in  land,  as  used 
with  reference  to  a  decedent's  property, 
has  acquired  a  wider  appliea.tion  in  a  pop- 
ular sense  and  refers  to  the  entire  mass 
of  decedent's  property,  both  real  and 
personal,  while  the  words  "goods,  chattels, 
or  assets  or  any  estate,  real  or  personal," 
include  every  kind  of  property  of  any 
nature  whatsoever,  and  are  not  limited  to 
technical  assets  subject  to  the  payment 
of  debts.  Sharp  v.  Cincinnati,  etc.  B.  Co, 
(Tenn.)  1917C-1212.  (Annotated.) 

Note. 

Eight  of  action  within  jurisdiction  as 
sufficient  property  right  to  warrant  grant 
,of  administration.     1917C-1217. 

b.     Persons  Entitled. 

3.  The  quoted  phrase  in  the  county  be- 
•  tween  the  United  States  and  a  foreign 
-.country,  which  provides  that,  in  the  event 

of  any  citizen  of  either  dying  in  the  ter- 
ritory of  the  other,  the  consul  of  the 
nation  of  which  the  deceased  may  belong 
shall,  "so  far  as  the  laws  of  each  country 
will  permit,"  and  pending  the  appointment 
of  an   administrator,   take   charge   of   the 


property  of  the  deceased  and  have  the 
right  to  be  appointed  administrator,  applies 
not  only  to  the  temporary  possession  which 
the  foreign  consul  may  "take,  but  qualifies 
his  right  to  be  appointed  administrator, 
and  his  right  to  be  appointed  adminis- 
trator is  subject  to  the  statute  declaring 
that,  in  the  absence  of  next  of  kin  entitled 
to  inherit,  the  public  administrator  is  en- 
titled to  letters  of  administration,  and  the 
foreign  consul  is  only  to  administer  in  the 
absence  of  an  application  by  the  next  of 
kin  or  the  public  administrator,  and  then 
only  as  to  persons  legally  competent  within 
Cal.  Code  Civ.  Proc.  §  1365,  subd.  10. 
Estate  of  Servas  (Cal.)  1916D-233. 

(Annotated.) 

4.  Right  of  Foreign  Consul  to  Admin- 
ister. The  phrase  "so  far  as  the  laws  of 
each  country  will  permit,"  in  the  treaty 
between  the  United  States  and  Sweden 
providing  that,  in  the  event  of  any  citi- 
zen of  either  country  dying  in  the  terri- 
tory of  the  other;  the  consul  of  the  nation 
of  which  deceased  may  belong  shall,  "so 
far  as  the  laws  of  each  country  will  per- 
mit," and  pending  the  appointment  of  an 
administrator,  take  charge  of  the  property 
of  decedent  for  his  lawful  heirs  and  cred- 
itors and  have  the  right  to  be  appointed 
as  administrator,  refers  exclusively  to  the 
laws  of  the  state  within  which  the  for- 
eigner dies.  Estate  of  Servas  (Cal.) 
1916D-233.  (Annotated.) 

5.  Priority    of    Right   to   Appointment. 

Sfibject  to  Mo.  Kev.  St.  1909,  §  15,  declar- 
ing priority  of  persons  entitled  to  ad- 
minister estates,  and  section  19,  prescrib- 
ing when  letters  testamentary  with  will 
annexed  shall  issue,  it  is  within  the  dis- 
cretion of  the  court  to  appoint  the  admin- 
istrator, and  the  public  administrator  has 
no  superior  fight  to  appointment  as  ad- 
ministrator with  the  will  annexed.  Brinck- 
wirth  V.  Troll  (Mo.)  1918B-1056. 

(Annotated.) 

6.  Mistress  of  Testator.  Where  tes- 
tator, after  separating  from  his  wife,  who 
became  insane,  entered  into  a  meretricious 
relation  with  E.,  whom  he  appointed  ex- 
ecutrix of  his  will,  but  on  testator's  death 
it  appeared  that  E.  had  no  interest  in  the 
estate  under  the  will  or  otherwise,  that  she 
was  unfriendly  toward  the  insane  widow, 
and  that  the  estate  was  probably  insuffi- 
cient to  pay  its  debts,  including  the 
widow's  allowance,  the  court  should  have 
sustained  a  protest  against  the  appoint- 
ment of  E.  as  executrix,  under  Colo.  Eev. 
St.  1908,  §  7111,  providing  that  if  any  per- 
son named  as  executor  shall  appear  incom- 
petent for  any  reason,  letters  of  adminis- 
tration may  be  granted  in  the  same 
manner  as  if  such  person  had  not  been 
named,  etc.  Deeble  v.  Alerton  (Colo.) 
1916C-863. 

Note. 
Eights  and  duties  of  consul  with  respect 
to  decedent's  estate.     1916D-237. 


356 


DIGEST. 

1916C— 1918B. 


e.     Contest  of  Appointment. 

7.  Effect  of  Appeal  from  Order,  Ex- 
ecutors, whether  testamentary  or  dative, 
are  included  within  the  meaning  of  the 
comprehensive  language,  "or  other  admin- 
istrators of  successions,"  as  used  in  article 
1059  of  the  La.  Code  of  Practice,  and 
judgments  appointing  or  removing  them 
become  provisionally  executory  when  ren- 
dered, and  are  not  subject  to  suspension 
by  appeal.  Succession  of  Lefort  (La.) 
1917E-769. 

d.     Removal  or  Revocation. 

8.  Eevocation  of  AdminiBtration  by  Dis- 
covery of  Will.  The  discovery  of  a  will 
after  the  appointment  of  an  administrator 
does  not  make  the  appointment  void  ab 
initio,  and  accordingly  a  person  purchas- 
ing realty  from  the  administrator  prior 
to  the  discovery  of  the  will  takes  a  good 
title.  Hewson  v.  Shelley  (Eng.)  1917B- 
1119,  (Annotated.) 

9.  Public  Administrator — Bevocation  of 
Letters.  It  being  the  duty  of  the  public 
administrator  to  be  at  all  times  in  court 
and  take  notice  of  all  proceedings,  failure 
to  give  actual  notice  of  a  proceeding  to  re- 
voke his  letters  on  discovery  of  a  will 
does  not  vitiate  the  order  of  revocation, 
Brinckwirth   v.   Troll    (Mo.)    1918B-1056. 

(Annotated.) 

10.  On  discovery  and  probate  of  a  will, 
the  powers  of  the  public  administrator  to 
admini'Ster  the  estate  cease  ipso  facto,  and 
he  is  therefore  entitled  to  no  notice  oJ  a 
proceeding  formally  to  vacate  his  au- 
thority, Brinckwirth  v.  Troll  (Mo.) 
1918B-1056.  (Annotated.) 

11.  Mo.  Rev.  St.  1909,  §47,  requir- 
ing that  on  discovery  and  probate  of 
a  will  the  letters  of  administration  of  the 
administrator  theretofore  appointed  shall 
be  revoked,  applies  as  well  to  the  public 
administrator  as  to  others,  although  he 
has  on  due  notice  taken  charge  of  the 
estate.  Brinckwirth  v.  Troll  (Mo.)  1918B- 
1056.  (Annotated.) 

Note, 
Validity  of  acts  of  administrator  whose 
appointment    is    revoked    by    subsequent 
discovery  ofwill,     1917B-1128, 

2.     BONDS. 

12.  Liability  of  Sureties.  For  the  pur- 
pose of  charging  an  administrator's  sure- 
ties, an  indebtedness  due  the  estate  from 
the  administrator  should  not  be  regarded 
as  an  asset  as  of  the  time  of  its  maturity, 
if  at  that  time  and  at  all  subsequent 
periods  he  was  insolvent  and  did  not  have 
or  could  not  procure  the  money  with  which 
to  pay  the  debt.  McEwen  v.  Fletcher 
(Iowa)  1916D-631.  (Annotated.) 

Note. 
Liability  of  sureties  of  executor  or  ad- 
ministrator   for    debt    of     their    principal 
to  decedent.     1916D-633. 


3,     ASSETS  OP  ESTATE. 


13.  Construed  as  Including  Land.  Real 
estate  is  an  "asset"  of  the  estate  nf  a  dece- 
dent.    Friend  v.  Hogg  (Fla.)  1917B-155. 

14.  Collection  of  Assets.  The  adminis- 
trator of  a  person,  in  whose  name  judg- 
ments were  taken,  and  who  appeared  on 
the  record  to  be  the  legal  owner  of  one 
and  the  beneficial  owner  of  the  other,  can 
enforce  or  collect  them  for  the  benefit  of 
the  true  owner.  Brown  v.  Harding  (N. 
Car.)  1917C-548. 

15.  Appraisement.  Section  12,  c.  56, 
W.  Va.  Acts  1907,  respecting  the  appraise- 
ment of  nates,  bonds,  and  evidences  of 
debt,  owned  by  a  decedent  at  the  time 
of  his  death,  does  not  apply  to  evidences 
of  debt  not  taxable  in  this  state,  owned 
by  a  nonresident  at  the  time  of  his  death, 
and  sent  to  an  attorney  in  this  state,  by 
his  personal  representative,  for  suit  there- 
on against  the  debtor  who  resides  here. 
Austin  V.  Calloway  (W.  Va.)  1916E-112. 

16.  Ordinarily  debts  due  by  an  admin- 
istrator to  the  estate  are  treated  as  assets 
of  the  estate  from  the  tim-j  of  their  ma- 
turity, e8]>ecially  where  he  has  mixed  the 
funds  of  the  estate  with  his  private  prop- 
erty or  reports  them  as  assets  in  his  hands. 
McEVen  v.  Fletcher  (Iowa)   1916D-631. 

17.  "Where  an  administrator  inventoried 
a  debt  due  from  himself  on  demand  as  a 
deposit  in  his  private  bank  and  did  not 
report  within  a  year,  as  was  his  duty, 
or  do  anything  in  this  regsird  until  or- 
dered by  the  court,  and  then  filed  a  report 
showing  money  in  his  bank  and  a  personal 
indebtedness,  but  never  made  a  report 
which  secured  the  approval  of  the  court, 
it  appeared  that  his  bank  was  a  going 
concern  for  16  months  after  his  appoint- 
ment, and  that  he  did  not  keep  separate 
funds  in  the  bank  for  the  estate,  and 
there  was  no  proof  of  his  insolvency  dur- 
ing such  16  months,  his  debt  is  properly 
charged  against  him  as  an  asset  of  the 
estate,  as  because  of  his  trusteeship  he  was 
under  greater  obligations  to  pay  that  debt 
than  others  and  was  bound  to  do  so,  so 
long  as  his  bank  was  a  going  concern, 
even  though  it  made  him  insolvent.  Mc- 
Ewen V.  Fletcher  (Iowa)  1916D-631. 

(Annotated.) 

4.     BIGHTS    AND    LIABILITIES. 

18.  Power  to  Charge  Assets.  The  rule 
that  an  administrator  or  executor  is  with- 
out power  to  impose  a  charge  on  the  as- 
sets by  any  new  and  independent  contract, 
unless  expressly  authorized  by  statute  or 
will,  even  though  for  the  benefit  of  the 
estate,  applies  to  the  employment  of  an 
attorney.  Matter  of  Estate  of  Munger 
(Towa)'l917B-213. 

19.  Implied  Powers.  The  powers  and 
obligations  of  an  executor  or  adminis- 
trator are  defined  and  limited  by  the  will 


EXECUTORS  AND  ADMINISTRATORS. 


357 


or  statute,  and  he  has  no  implied  powers 
beyond  those  necessary  to  effectuate  the 
powers  expressly  conferred.  Matter  of 
Estate  of  Munger  (Iowa)  1917B-213. 

20.  Improvement  of  Property.  An  ad- 
ministrator with  the  will  annexed,  ap- 
pointed after  the  executrix  had  been  de- 
clared insane,  has  no  power  to  build  a 
family  dwelling  house  on  the  land  of  the 
estate.  Stuckey  v.  Stephens  (Ark.) 
1917A-133. 

20a.  Powers  of  Administrator  de  Bonis 
Non.  Under  Me.  Pub.  Laws  1903,  c.  193, 
making  it  the  duty  of  an  administrator 
de  bonis  non  to  collect  all  assets  of  the 
estate,  such  administrator  can  recover  in 
his  representative  capacity  from  dece- 
dent's bank  an  amount  paid  out  on  a 
forged  order.  Walker  v.  Portland  Sav- 
ings Bank  (Me.)  1917E-1, 

21.  Personal  Liability  of  Executor.  One 
obtaining  an  option  contract  from  an  ex- 
ecutor, with  knowledge  that  he  would 
have  to  obtain  a  deed  from  the  heirs  at 
law  of  testator  cannot  hold  the  executor 
personally  liable  on  the  contract.  Hedge- 
cock  V.  Tate  (N.  Car.)  1916D-449. 

22.  Personal  Liability  of  Administrator. 

Xo  cause  of  action  against  an  adminis- 
trator in  his  official  capacity  can  be  based 
upon  services  rendered  him  in  the  admin- 
istration of  the  estate.  Milboume  v. 
Kelley   (Kan.)   1916D-389. 

23.  Contracts.  The  contract  of  an  ad- 
ministratrix employing  an  attorney  to 
prosecute  an  action,  though  approved  ex 
parte  by  the  judge  or  court,  is  of  no 
validity  as  against  those  entitled  to  the 
estate.  Matter  of  E'state  of  Munger 
(Iowa)  1917B-213.  (Annotated.) 

5.     PKESENTATION    AND    PROOF    OF 
CLAIMS. 

24.  Debt  Secured  by  Mortgage.  A  moi't- 
gage  by  an  intestate  not  presented  to  the 
administrator  within  the  statute  of  non- 
claim,  is  barred  in  the  absence  of  payment 
of  interest  or  other  act  of  estoppel. 
Fremd  v.  Hogg  (Fla.)   1917B-155. 

(Annotated.) 

25.  An  indebtedness  secured  by  a  real 
estate  mortgage  is  not  "contingent"  within 
Wis.  St.  1915,  §  3858,  though  not  due  at  the 
time  of  administration;  therefore,  where 
it  was  not  duly  presented  as  a  claim 
against  the  estate,  the  mortgagor  on  sub- 
sequent foreclosure  is  not  entitled  to  a 
deficiency  judgment  over  against  dis- 
tributees after  a  complete  administration 
of  the  estate.  Schmidt  v.  Grenzow  (Wis.) 
1917B-163.  (Annotated.) 

26.  Priority  of  Claim.  An  expenditure 
for  a  monument  is  not  strictly  a  funeral 
exDense  within  Iowa  Code,  §  .S347.  pro- 
Tiding  that,  as  soon  as  the  executor  or 


administrator  has  sufficient  means,  he 
shall  pay  charges  of  deceased's  last  sick- 
ness and  funeral,  but  even  though  the 
estate  is  insolvent  the  court  may  in  its 
sound  discretion  class  such  an  expenditure 
as  a  funeral  expense,  but  postponing  it  to 
the  payment  of  such  part  of  a  claim  for 
nursing  during  the  last  sickness  of  de- 
ceased as  is  preferred  by  statute.  Matter 
of  Estate  of  Lester  (Iowa)  1917B-255. 

(Annotated.) 
Note. 

Laches  or  neglect  of  creditor  of  deceased 
as  precluding  enforcement  of  debt  against 
heir  or  devisee.     1917C-95. 

Liability  of  decedent's  estate  for  cost 
of  monument  or  tombstone.     1917B-256. 

Presentation  of  claim,  as  condition 
precedent  to  enforcement  of  mortgage 
against  decedent's  estate.     1917B-156. 

6.     FAMILY  ALLOWIANCE  AND    PRO- 
BATE HOMESTEAD. 

27.  Eights  of  Widow— Occupation  of 
Homestead.  Under  statutes  providing 
that  the  widow  may  occupj'  the  homestead 
until  allotment  of  dower,  homestead,  or 
the  estate  is  otherwise  distributed,  the 
widow  is  not  by  an  antenuptial  settlement 
deprived  of  such  right  of  occupation,  es- 
pecially where  the  only  other  person 
interested  in  the  estate  is  a  nonresident 
living  a  great  distance  from  the  liome- 
stead  and  it  is  necessary  to  the  preserva- 
tion of  the  property  that  it  should  be  oc- 
cupied. Stratton  v.  Wilson  (Ky.)  1918B- 
917. 

28.  Allowance  to  Widow.  Where  there 
is  protracted  litigation  between  the  next 
of  kin  living  outside  the  state  and  a 
widow  appointed  administratrix,  during 
which  the  widow,  although  confined  by  a 
marriage  settlement  to  a  cash  provision 
in  lieu  of  widow's  rights  occupied  the 
homestead,  allowances  for  minor  house- 
keeping expenses  and  court  costs  may  be 
allowed  in  the  discretion  of  the  trial  court. 
Stratton  v.  Wilson  (Ky.)  1918B-917. 

29.  A  widow's  allowance  out  of  her  de- 
ceased husband's  estate  is  not  a  distribu- 
tive part  of  the  estate,  but  a  part  of  the 
cost  of  administration.  Deeble  v.  Aler- 
ton    (Colo.)    1916C-863. 

30.  Where  a  husband  and  wife  executed 
a  separation  agreement  providing  that 
neither  should  have  nor  claim  any  part  of 
the  other's  estate,  but  containing  no  plain 
provision  that  the  wife  waived  her  widow's 
allowance  in  case  of  the  husband's  death, 
there  is  no  waiver,  and  the  separation 
agreement  is  no  bar  to  its  allowance. 
Deeble  v.  Alerton  (Colo.)  1916C-863. 

(Annotated.) 

31.  Selection  of  Personalty  on  Behalf  of 
Surviving  Spouse.     The  right  of  the  sur- 


358 


viving  spouse  to  select  personal  property 
to  the  value  of  $500,  if  not  exercised  in 
his  lifetime,  may  be  exercised  by  his 
administrator.  Nordlund  v.  Dahlgren 
(Minn.)   1917B-941. 

Note. 
Effect  of  voluntary  separation  on  right 
to  widow's  allowance.     1916C-866. 

7.  SALE  OF  DECEDENT'S  EEALTY. 

32.  Collateral  Attack  on  Sale.  Under 
a  Dak.  Prob.  Code,  §  102,  providing  that, 
where  real  estate  belonging  to  the  estate 
of  a  decedent  is  to  be  sold,  the -judge  must 
require  a  special  bond  unless  the  general 
bond  is  equal  to  twice  the  value  of  the 
personal  property,  and  the  probable 
amount  to  be  realized  from  the  sale,  the 
determination  by  the  probate  judge  as  to 
whether  the  general  bond  is  sufficient  is  a 
judicial  act  which  cannot  be  collaterally 
attacked.  Richelson  v.  Mariette  (S.  Dak.) 
1917A-883. 

33.  Sale  of  Reversion  for  Debt.    By  the 

Ga.  Civil  Code  1910,  §  4094,  it  is  de- 
clared that  "No  administrator  or  executor 
shall  be  authorized  to  sell  the  reversionary 
interest  in  the  land  set  apart  as  dower 
during  the  lifetime  of  the  widow,  except 
it  be  necessary  to  pay  debts." 

(a)  It  was  not  a  correct  application  of 
this  rule  to  charge  that  "all  property,  real 
and  personal,  belonging  to  his  [the  de- 
ceased husband's]  estate,  and  which  is 
subject  to  the  payment  of  his  debts,  must 
first  be  fully  exhausted  before  the  ad- 
ministrator can  lawfully  obtain  an  order 
from  the  court  of  ordinary  authorizing 
him  to  bring  to  sale  the  reversionary  in- 
terest in  dower  lands  for  the  purpose  of 
paying  off  debts  owing  by  the  estate  of 
the  deceased  husband." 

(b)  Whether  the  charge  on  this  sub- 
ject, when  taken  in  connection  with  its 
context  and  the  entire  charge,  would  re- 
quire a  reversal,  were  there  no  other  er- 
rors, need  not  be  decided.  Sutton  v.  Ford 
(Ga.)  1918A-106. 

34.  Time  for  Application.  Though  the 
common-law  presumption,  from  lapse  of 
20  years,  that  a  judgment  has  been  paid, 
may  be  rebutted  in  scire  facias  proceed- 
ings instituted  after  the  presumption  has 
attached,  and  though  no  statute  limits  the 
time  within  which  an  administrator  may 
apply  for  and  be  allowed  an  order  to  sell 
lands  to  pay  judgment  creditors  of  de- 
ceased, he  will  in  no  case  be  granted  an 
order  to  sell  lands  for  payment  of  debts 
after  the  time  limited  by  statute  for  re- 
covery thereon,  or  after  the  time  when 
by  the  common  law  the  debts  are  pre- 
sumed to  be  paid.  Cohen  v.  Tuff  (Del.) 
1917C-596.  (Annotated.) 

35.  Rights  of  Iiessee.  Where  an  ex- 
ecutor authorized  by  will  to  sell  real  es- 
tate exercises  the  power  of  sale  of  land 


DIGEST. 

1916C— 1918B. 

encumbered  by  a  lease  made  by  testator, 
the  sale  must  be  made  subject  to  the  rights 
of  the  lessee.  Heiseman  v.  Lowenstein 
(Ark.)   1916C-601. 


36.  Power  to  Mortgage.  A  mere  power 
of  sale  of  real  estate  conferred  on  execu- 
tors by  will  does  not  include  a  power  to 
mortgage.  Heiseman  v.  Lowenstein  (Ark.) 
1916C-601.  (Annotated.) 

37.  Where  the  bulk  of  the  estate  of  a 
testator,  who  directs  his  executors  to  de- 
posit specified  sums  with  trust  companies 
to  pay  to  named  beneficiaries,  is  real  estate, 
and  the  testator  directs  the  executors  to 
close  up  the  estate  as  speedily  as  possible, 
so  that  the  creditors  and  beneficiaries  may 
promptly  receive  what  is  due  them,  the 
executors  have  power  to  sell,  but  not  to 
mortgage,  the  estate.  Heiseman  v.  Lowen- 
stein  (Ark.)    1916C-601.  (Annotated.) 

38.  Any  words  in  a  will  which  show  an 
intention  to  confer  on  the  executor  power 
to  sell  real  estate  and  execute  the  requisite 
deeds,  or  any  form  of  a  will  which  imposes 
duties  which  cannot  be  performed  without 
a  sale,  necessarily  creates  a  power  of  sale, 
Heiseman  v.  Lowenstein  (Ark.)  1916C- 
601. 

39.  A  testator,  who  directs  his  executor 
to  dispose  of  his  real  estate,  thereby  con- 
fers on  the  executive  power  to  execute  the 
requisite  deeds  of  conveyance.  Heiseman 
V.  Lowenstein  (Ark.)  191GC-601. 

40.  Power  to  Sell  Lands.  An  execntor 
has  no  power  to  sell  the  land  of  his  tes- 
tator, unless  directed  to  do  so  by  the  will, 
either  expressly  or  by  necessary  implica- 
tion. Heiseman  v.  Lowenstein  (Ark.) 
1916C-601. 

41.  Order  to  Sell  Land.  An  order  to  sell 
land,  granted  to  an  administrator  by  the 
eojirt  of  ordinary  describing  the  land  as 
located  in  a  named  county  and  known  by 
ascertain  name,  and  as  containing  a  stated 
number  of  acres,  more  or  less,  and  lying 
alongside  a  certain  river,  followed  by  an 
additional  description  giving  the  calls  for 
three  sides  of  it,  is  not  void  for  uncer- 
tainty. When  property  has  a  descriptive 
name,  it  may  be  conveyed  by  that  name; 
and  such  description  will  prevail  over  one 
which  is  intended  to  be  a  further  descrip- 
tion, but  which  is  uncertain  and  imperfect. 
Extrinsic  evidence  is  receivable  to  apply 
the  description  to  its  subject-matter. 
Hunger  v.  Grimm   (Ga.)    1916C-173. 

42.  Power  to  Give  Option.  An  executor, 
vested  with  no  power  to  sell  land,  has  no 
power  to  give  an  option  to  sell  land. 
Hedgecock  v.  Tate    (X.   Car.)    1916D-449. 

(Annotated.) 

43.  Joint  Executors — Failure  of  One  to 
Qualify.  The  provision  of  a  will,  making 
a  trust  company  an  executor  and  ilosig- 
nating  another  to  act  with  the  company, 


EXECUTORS  AND  ADMINISTRATORS. 


359 


intended  the  two  to  act  jointly  as  ex- 
ecutors; and,  where  one  of  them  failed  to 
qualify,  the  other  had  the  power,  under 
the  express  provision  of  Ky.  St.  §  3888,  to 
sell  and  convey  land  as  directed  by  the 
will.  Varble  v.  Collins'  Executor  (Ky.) 
1916D-448. 

44.  Implied  Power  to  Sell  Land.  The 
executor  under  a  will,  giving  specific  leg- 
acies of  money  payable  out  of  sales  of  cer- 
tain lots,  though  not  expressly  authorized 
by  the  will,  yet  from  his  duty  to  carry 
out  its  provisions  and  to  raise  the  fund 
with  which  to  satisfy  such  legacies,  had 
implied  power  to  sell  and  convey  testa- 
trix's realtv.  Varble  v.  Collins'  Executor 
(Ky.)  1916b-448.  (Annotated.) 

45.  An  executor  has  no  implied  power  to 
sell  lands  of  the  testator  when  the  legal 
title  thereto  passes  to  specific  devisees 
other  than  the  executor,  and  the  will  does 
not  direct  or  show  an  intent  for  the  pay- 
ment of  debts  or  legacies  with  the  proceeds 
of  sales  of  the  lands,  or  direct  the  executor 
to  divide  the  estate  among  beneficiaries, 
and  the  power  to  sell  land  is  not  in  reality 
necessary  in  order  to  carry  out  any  of  the 
provisions  of  the  will,  and  the  will  gives 
to  the  executor  no  directions  whatever, 
and,  considered  as  an  entirety,  discloses 
no  intent  to  confer  upon  the  executor 
power  to  sell  lands  of  the  testator.  First 
Baptist  Church  v.  American  Board  of 
Com'rs  (Fla.)  1916r)-404.         (Annotated.) 

46.  Estoppel  to  Attack  Executor's  Sale. 

The  receipt  by  a  beneficiary  of  proceeds 
of  an  unauthorized  sale  of  lands  by  an  ex- 
ecutor may  not  estop  such  beneficiary  from 
claiming  rights  in  the  lands,  the  title  to 
which  was  given  by  the  testator's  will. 
First  Baptist  Church  v.  American  Board 
of  Com'rs  (Fla.)  1916D-404. 

Notes. 

Implied  power  of  executor  to  sell  real 
estate  of  executor.     1916D^10. 

Limit  of  time  within  which  leave  will 
be  granted  to  sell  decedent's  realty. 
1917€-600. 

8.     ACCOUNTING. 

47.  Counsel  Fees  of  Administrator. 
Counsel  fees  of  an  administratix  are 
necessarily  left  largely  to  the  discretion  of 
the  trial  court.  Stratton  v.  Wilson  (Ky.) 
1918B-917. 

48.  Where  an  administratrix,  seeking  to 
be  compensated  for  money  paid  to  an  attor- 
ney, showed  a  contract  employing  the  at- 
torney to  collect  a  claim  for  the  death  of 
the  decedent,  and  agreeing  to  pay  him 
one-third  of  the  amount  collected  without 
suit,  and  in  the  event  of  suit  one-half  the 
amount  collected,  and  that  a  suit  begun 
was  settled  by  payment  of  $199  funeral 
expenses  and  $1,875  as  damages,  and  she 


claimed  to  have  paid  the  attorney  $937, 
but  on  objections  waived  offering  any  evi- 
dence, the  court  erred  in  allowing  her 
more  than  one-third  of  the  amount  recov- 
ered. Matter  of  Estate  of  Munger  (Iowa) 
1917B-213. 

49.  Where  a  widow  wsis  administratrix, 
her  claims  for  expenses  in  the  employment 
of  an  attorney,  stated  as  for  "consultation 
with  Mrs.  A.  on  the  death  of  her  husband 
and  in  relation  to  estate  matters,"  and  an- 
other item  relating  to  consultation  with 
her  and  another  person,  without  stating 
what  it  was  about,  did  not  on  their  face 
appear  to  involve  matters  necessarily  of 
concern  to  the  estate,  and,  the  burden  be- 
ing on  the  administratrix  to  show  that 
fact,  the  court  did  not  err  in  rejecting 
such  items.  Matter  of  Estate  of  Mungpr 
(Iowa)  1917B-213. 

50.  Allowance  for  Expenditures.  Under 
Iowa  Code,  §  3415,  entitling  executors  and 
administrators  to  compensation  for  all 
ordinary  services  and  "such  further  allow- 
ances as  are  just  and  reasonable  .  .  .  for 
actual,  necessary,  and  extraordinary  ex- 
penses or  services,"  allowances  claimed 
thereunder  must  be  specifically  stated; 
there  being  no  presumption  that  they  are 
reasonable  and  just,  but  the  burden  being 
on  the  administrator.  Matter  of  Estate  of 
Munger  (Iowa)  1917B-213. 

51.  Claims  not  Allowed  by  Probate 
Court.  Under  chapter  2'65,  Minn.  Laws  of 
1899,  claims  theretofore  paid  by  the  ad- 
ministrator without  having  been  allowed 
by  the  probate  court,  may  be  credited  to 
him  in  his  final  account  upon  proof  that 
such  claims  were  just  and  existing  de- 
mands against  the  estate  at  the  time  of 
pavment.  Nordlund  v.  Dahlgren  (Minn.) 
19176-941. 

52.  Bents  and  Profits  of  Land.  Where 
the  administrator  takes  possession  of  the 
real  estate  he  must  account  for  the  rents 
and  profits  received  therefrom,  and  if  the 
amount  received  cannot  be  otherwise  de- 
termined, the  court  may  charge  him  with 
the  rental  value  of  the  land.  Nordlund 
V.  Dahlgren  (Minn.)   1917B-941. 

53.  Advancement  to  Infant  Heir — Sup- 
port from  Corpus  of  Estate.  An  admin- 
istrator who  makes  unreasonable  and  ex- 
cessive advances  for  the  support  of  a 
minor  heir  out  of  the  corpus  of  the  estate 
will  not  be  allowed  reimbursement  there- 
for.    In  re  Bundle   (Ont.)   1917A-139. 

(Annotated.) 

54.  Debt  of  Representative  to  Estate. 
Where  an  administrator  includes  his  in- 
debtedness to  the  estate  in  his  reports  as 
a  part  of  the  assets  and  asks  that  the 
amount  he  claims  be  fixed  as  his  liability, 
the  court  has  jurisdiction  to  find  the 
amount  of  his  liability  and  charge  it 
against  him.  McEwen  v.  Fletcher  (Iowa) 
1916D-631. 


360 


DIGEST. 

19160— 1918B. 


55.  Waiver  of  Jury  Trial.  An  adminis- 
trator, whose  report  includes  as  a  part 
thereof  his  personal  liability  to  the  estate, 
who  goes  to  trial  to  the  court  on  the 
issues  tendered  by  the  objections  without 
any  objection  or  demand  for  a  jury,  waives 
a  jury  triaL  MeEwen  v.  Fletcher  (Iowa) 
1916D-631. 

56.  Review  of  Finding  on  Accounting. 
Where  the  issues  made  by  the  objections 
to  an  administrator's  report  were  tried  to 
the  court  without  objection,  the  findings 
on  disputed  testimony  have  the  same  force 
and  effect  as  a  verdict  of  a  jury.  McEwen 
V.  Fletcher  (Iowa)   1916I>-631. 

Note. 
Power  of  executor  or  administrator  to 
employ  attorney  under  express  contract  as 
to  amount  of  compenaation.     1917B-21G. 

».     DISTBIBUTION. 
a.    To  Heirs  and  Legatees. 

57.  Determination  of  Indebtedness.  The 
county  court,  having  jurisdiction  to  make 
settlement  and  distribution  of  a  decedent's 
estate,  may  determine  the  share  of  each 
distributee,  and  to  that  end  it  has  author- 
ity to  inquire  into  and  determine  the  in- 
debtedness of  the  distributee  to  the  estate, 
and  order  a  deduction  of  the  same  from 
his  share.  Stenson  v.  H.  S.  Halvorson  Co. 
(N.  Dak.)  1916D-1289. 

58.  Extent  of  Indebtedness.  Evidence 
examined,  and  held  that  the  finding  of  the 
trial  court  that  the  extent  of  such  heir's 
indebtedness  to  the  estate  exceeded  the 
value  of  his  distributive  share  in  the  es- 
tate is  fully  sustained.  Stenson  v.  H.  S. 
Halvorson  Co.  (N.  Dak.)  1916D-1289. 

59.  Indebtedness  by  Heir.  An  indebt- 
edness owing  by  an  heir  to  a  decedent's  es- 
tate constitutes  a  prior  equitable  lien  upon 
•uch  heir's  distributive  share  of  the  estate 
as  against  the  liens  of  judgments  docketed 
against  him.  Stenson  v.  H.  S.  Halvorson 
Co.  (N.  Dak.)  1916D-1289. 

(Annotated.) 
Note. 
Distributive  share  of  heir  in  real  estate 
as  chargeable  with  heir's  indebtedness  to 
estate  either  as  against  land  itself  or  pro- 
ceeds of  sale  thereof.     1916D-129-i. 

b.     To  Creditors. 

60.  N.  Car.  Revisal  1905,  §  87,  provid- 
ing for  the  order  of  the  payment  of  claims 
against  the  estate  of  a  decedent,  was  de-- 
signed  only  to  fix  the  order  of  such  pay- 
ment, and  does  not  render  a  married 
woman's  estate  liable  for  necessaries  fur- 
nished during  her  last  sickness  and  for  her 
funeral  expenses,  which  otherwise  would 
be  a  debt  of  the  husband.  Bowen  v. 
Daugherty  (N.  Car.)  1917B-1161. 

(Annotated.) 


c.     Proceedings. 

61.  Collateral  Attack.  The  decree  of 
distribution  of  a  decedent's  estate  duly 
entered  by  the  county  court  is  final  and 
conclusive  as  against  a  mere  collateral  at- 
tack. Stenson  v.  H.  S.  Halvorson  Co. 
(N.  Dak.)  1916D-1289. 

10.     COMPENSATION. 

62.  Compensation  of  Administrator. 
Under  Ky.  St.  §  3883,  as  to  allowance  to 
a  personal  representative,  where  the  prop- 
erty of  the  estate  is  distributed  in  kind, 
and  the  administrator  is  put  to  little  or  no 
trouble,  he  should  not  be  allowed  the  max- 
imum sum  of  five  per  cent  of  the  value  of 
the  property  thus  distributed.  Stratton  v. 
Wilson  (Ky.)  1918B-917. 

63.  Under  Ky.  St.  §  3883,  because  the 
personalty  is  distributed  by  the  adminis- 
trator in  kind,  it  does  not  necessarily  fol- 
low that  he"  should  not  be  allowed  anything 
for  his  services,  but  a  reasonable  allow- 
ance should  be  made  to  him.  Stratton  v. 
Wilson  (Ky.)   1918B-917. 

64.  Forfeiture  of  Commissions.  Under 
Va.  Code  1904,  §§  2678,  2679,  requiring 
executors  and  administrators  to  settle 
their  accounts  and  providing  for  a  for- 
feiture of  their  commissions,  an  adminis- 
trator of  an  estate  qualifying  in  1893  and 
an  executor  of  an  estate  qualifying  in 
1892  are  not  entitled  to  commissions  on 
that  part  of  the  estate  of  their  respective 
decedents  due  and  payable  to  heirs,  not 
made  until  compelled  by  suit,  diamond's 
Adm'x.  V.  Jones  (Va.)    1917C-155. 

Note. 
Validity    of    statute    fixing   probate    or 
administration  fees.     1916C-213. 

11.     EXECUTORS  DE  SON  TORT. 

65.  What  Intermeddling  Constitutes: 
That  funds  belong  to  an  estate  will  not 
make  one  liable  as  an  executor  de  son  tort 
for  intermeddling  therewith,  where  he 
would  not  be  liable  were  the  owner  an 
individual,  but  in  the  one  case,  as  in  the 
other,  there  must  be  a  wrongful  invasion 
of  the  property  rights  of  the  owner. 
Holden  v.  Farmers,  etc.  Nat.  Bank 
(N.  H.)   1917E-23.  (Annotated.) 

67.  Defendant  bank  paid  to  one  E  funds 
of  a  decedent  on  an  order  forged  by  E, 
such  funds  being  used  for  E's  own  purposes. 
It  is  held  that  the  transaction  did  not  ren- 
der the  latter  executor  de  son  tort  to  make 
the  act  of  the  bank  in  paying  him  valid 
against  the  ^tate  after  his  appointment  as 
administrator;  more  than  the  mere  recep- 
tion of  assets  being  required  to  give  the 
payee  in  such  a  case  character  as  executor 
de  son  tort,  so  far  as  the  validation  of  the 


EXECUTORS  AND  ADMINISTRATORS. 


361 


payment   itself   is   concerned.     Walker   ▼. 
Portland  Sarings  Bank  (Me.)   1&17E-1. 

(Annotated.) 

68.  Eifect  of  Acts  of  Executor  de  Son 
Tort.  All  lawful  acts  done  in  the  pro- 
fessed administration  of  a  decedent's  es- 
tate by  one  purporting  to  act  as  executor, 
which  an  executor  de  jure  would  have 
been  bound  to  perform  in  due  course  of 
administration,  bind  the  estate;  it  being 
shown  that  the  executor  de  son  tort  was 
acting  as  an  executor,  but  a  single  act  of 
an  administrative  character  does  not  bind 
the  estate.  Walker  v.  Portland  Savings 
Bank  (Me.)  1917&-1. 

69.  Deflnition.  An  executor  de  son  tort 
is  one  deriving  no  authority  from  the 
decedent,  with  whose  estate  he  yet  wrong- 
fully assumes  to  interfere,  as  by  demand- 
ing payment  of  debts-,  or  paying  them, 
or  carrying  on  decedent's  business,  etc., 
although  merely  asserting  colorable  title 
in  himself  to  the  decedent's  goods  is  not 
sufficient  to  fix  the  character  upon  him. 
Walker  v.  Portland  Savings  Bank  (Me.) 
1917E-1.  (Annotated.) 

70.  Ratification  of  Acts  Before  Appoint- 
ment. One  who  has  assumed  without  right 
to  act  as  an  executor  may  ratify  and  vali- 
date by  relation,  after  his  appointment  as 
administrator,  all  acts  done  in  a  repre- 
sentative c-apacity,  which  would  have  been 
valid  had  he  been  the  rightful  representa- 
tive. Walker  v.  Portland  Savings  Bank 
(Me.)  1917E-1. 

Nota 
"^"hat  acts  of  intermeddling  charge  per- 
son as  executor  de  son  tort.     1917E-3. 

12.     ACTIONS. 
a.    By  Personal  Bepresentative. 

71.  An  action  the  cause  of  which  sur- 
vives may  on  death  of  plaintiff  at  once 
be  revived  in  the  name  of  a  special  ad- 
ministrator; there  being  no  general  ad- 
ministrator or  executor.  Aetna  L.  Ins. 
Co.   V.   Taylor    (Ark.)    1918B-1122. 

72.  In  an  action  by  an  executor  with 
power  of  sale  for  specific  performance  of 
defendant's  contract  to  purchase  land  of 
the  estate  sold  to  paj  specific  legacies,  the 
devisees  were  not  necessary  parties. 
Varble  v.  Collins'  Executor  (Ky.)  1916D- 
448. 

73.  Right  of  Administrator  of  Heir  to 

Contest.  Conceding  that  Mo.  Eev.  St. 
1909,  §  555,  in  regard  to  will  contests  is 
remedial,  and  should  be  liberally  construed, 
it  permits  contest  only  by  persons  inter- 
ested in  the  probate;  so  that  the  adminis- 
trator of  a  deceased  contestant  is  not  en- 
titled to  revival  of  the  action  in  his  name. 
Braeuel  v.  Eeuther  (Mo.)   1918B-5B3. 

(Annotated.) 

74.  Mo.  Rev.  St.  1909,  §  101,  authorizing 
the  administrator  to  commence  and  prose- 


cute all  actions  which  may  be  maintained 
and  are  necessary  in  the  course  of  his 
administration,  and  defend  all  such  as  are 
brought  against  him,  does  not  warrant  the 
administrator's  revival  of  a  will  contest 
which  is  not  in  any  sense  a  property  right, 
but  only  a  mere  right  of  action.  Braeuel 
V,  Eeuther   (Mo.)    1918B-533. 

75.  Under  Mo.  Rer.  St.  1909,  S  104,  pro- 
viding  that  executors  and  administra- 
tors shall  prosecute  and  defend  all  ac- 
tions commenced  by  or  against  the  deceased 
at  the  time  of  his  death,  and  which  might 
have  been  prosecuted  or  maintained  by  or 
against  such  executor  or  administrator, 
the  administlhator  cannot  prosecute  or 
maintain  actions  unless  he  might  have 
done  so  had  the  action  not  been  brought 
by  the  deceased.  Braeuel  v.  Eeuther 
(Mo.)  1918B-n533.  (Annotated.) 

76.  Under  Mo.  Eev.  St.  1909,  §  105,  au- 
thorizing administrators  to  prosecute  ac- 
tions for  torts,  there  is  no  authority  in 
the  administrator  to  prosecute  a  will  con- 
test. Braeuel  v.  Eeuther  (Mo.)  1918B- 
533.  (Annotated.) 

77.  Abatement  and  Revival.  At  com- 
mon law  a  right  of  action  for  personal 
injuries  did  not  survive  the  person  in- 
jured; and,  in  case  an  action  had  been 
brought,  it  abated  on  the  death  of  either' 
party.  Cincinnati,  etc.  E.  Co.  v.  McCul- 
lom  (Ind.)  1917E-1165. 

78.  Statute  Providing  for  Survival. 
The  purpose  of  Burns'  Ind.  Ann.  St.  1914, 
§  286,  providing  that,  whoever  has  a  claim 
for  personal  injuries  and  obtains  a  judg- 
ment, and  he  dies  pending  the  appeal,  the 
claim  shall  survive,  and  be  prosecuted  by 
his  personal  representatives,  is  to  provide 
for  the  survival  of  certain  actions,  and  the 
classification  created  by  the  statute  is 
practical  and  not  palpably  arbitrary,  and 
is  not  in  conflict  with  Const.  Ind.  art.  1, 
§  23,  and  Const.  U.  S.  Amend.  14.  Cincin- 
nati, etc.  E.  Co.  V.  MeCuUom  (Ind.)  1917E- 
1165.  (Annotated.) 

79.  The  enforcement  of  Burns'  Ind.  Ann. 
St.  1914,  §  286,  authorizing  the  personal 
representative  of  one  obtaining  a  judg- 
ment for  a  personal  injury  to  prosecute  an 
action  on  the  death  of  the  judgment  plain- 
tiff pending  an  appeal,  or  before  a  new 
trial,  if  reversal  be  had,  does  not  deprive 
the  wrongdoer  of  property  without  due 
process  of  law,  for  the  statute  only  re- 
quires that  compensation  shall  be  made 
for  the  injuries  occasioned  by  the  wrong- 
ful act,  and  imposes  no  liability  in  favor 
of  the  estate  of  an  injured  person  which 
could  not  have  been  enforced  in  his  favor 
had  he  lived.  Cincinnati,  etc.  E  Co.  v. 
McCullom   (Ind.)    1917E-1165. 

(Annotated.) 

80.  An  answer,  pleading  a  release  as  a 
bar,  but  which  does  not  aver  that  the  costs 


362 


of  the  administration  have  been  paid,  or 
that  there  are  no  creditors  of  the  estate  is 
demurrable,  though  it  avers  that  there  are 
no  creditors  who  have  filed  claims  against 
the  estate,  since  that  is  not  equivalent  to 
an  averment  that  there  are  no  claims. 
Cincinnati,  etc.  E.  Co.  v.  McCnllom  (Ind.) 
1917E-1165. 

81.  Eight  of  Heirs  to  Release.  An  ac- 
tion for  personal  injuries,  prosecuted,  on 
plaintiff's  death  pending  an  appeal  from 
a  judgment  in  his  favor,  by  his  adminis- 
trator, or  after  reversal  of  the  judgment, 
as  authorized  by  Burns'  Ind,  Ann.  St.  1914, 
§  286,  is  based  on  the  wrong  inflicted  on 
the  original  plaintiff,  and  the  amount  re- 
covered is  subject,  in  the  hands  of  the 
administrator,  to  the  costs  of  administra- 
tion, payment  of  debts,  and  distribution  of 
balance  in  accordance  with  the  statute  on 
that  subject,  and  an  attempted  release  by 
heirs  is  not  available  as  a  defense.  Cin- 
cinnati, etc.  R.  Co.  V.  McCullom  (Ind.) 
1917E-1165. 

of    Deceased. 


82.  Action  on  Contract 
Such  a  declaration  in  assumpsit  upon  a 
note  payable  to  his  intestate,  and  past  due 
at  his  death,  need  not  aver  a  promise  to 
the  administrator.  It  is  sufficient  to  aver 
a  promise  to  his  intestate  and  a  breach,  by 
nonpayment  to  either  his  intestate  or  bim- 

•self.     Austin  v.  Calloway  (W.  Va.)  1916E- 
112. 

83.  Allegation  of  Representative  Capa- 
city. A  declaration  by  an  administrator, 
suing  as  such,  upon  a  cause  of  action  ac- 
cruing to  his  intestate  in  his  lifetime, 
which  fails  to  aver  that  plaintiff  was  ap- 
pointed and  qualified  as  such  administra- 
tor, is  bad  on  demurrer.  Austin  v.  Callo- 
way (W.  Va.)  1916E-112.         (Annotated.) 

84.  Conspiracy  to  Restrain  Trade.  A 
right  of  action  for  damages  sustained  from 
an  unlawful  conspiracy  and  combination 
between  the  defendants  for  the  purpose  of 
creating  restrictions  in  trade  and  com- 
merce, and  of  destroying  the  credit,  repu- 
tation, and  business  of  F.,  whereby  F.'s 
business  was  ruined,  and  he  was  forced  to 
sell  its  tangible  assets  for  an  inadequate 
price,  does  not  survive  the  death  of  F.  at 
common  law,  nor  under  Comp.  Laws  Mich. 
1897,  §  10117,  which  provides  that  actions 
for  negligent  injury  to  persons,  for  dam- 
ages to  real  or  personal  estate,  and  actions 
to  recover  real  estate,  where  persons  have 
been  induced  to  part  therewith  through 
fraudulent  representations  and  deceit,  shall 
survive.  Frohlich  v.  Deacon  (Mich.) 
1916C-722.  (Annotated.) 

85.  Under  Pub.  Acts  1897,  No.  195 
(Comp.  Laws  Mich.  1897,  §§  10421,  10422), 
providing  that  where,  by  the  fraudulent 
representations  any  injury  shall  be  done 
to  the  person,  property,  or  rights  of  an- 
other for  which  an  action  for  fraud  may 
be  brought,  assumpsit  may  be  brought  to 


DIGEST. 

19160— 1918B. 

recover  damages  for  such  injury,  and  that 
the  cause  of  action  shall,  upon  the  death 
of  the  person  injured,  survive,  held,  by 
an  equally  divided  court,  that  such  cause 
of  action  did  not  survive  the  death  of  F., 
since  defendant's  acts,  though  illegal  and 
oppressive,  were  neither  deceptive  nor 
fraudulent,  and,  while  they  would  give  a 
right  of  action  on  the  case,  the  action  was 
not  one  for  fraud  and  deceit.  Frohlich  v. 
Deacon  (Mich.)  1916C-722. 

(Annotated.) 
Notes. 

Eight  of  executor  or  administrator  to 
recover  from  estate  advancement  made  to 
member  of  decedent's  family.     1917A-134. 

Survival  of  right  of  action  for  conspir- 
acy to  restrain  trade.     1916€'-726. 

Necessity  that  executor  or  administra- 
tor in  action  brought  by  him  allege  that 
suit  is  brought  in  representative  capacity. 
1916E-114. 

Validity  of  statute  providing  for  sur- 
vival of  action  for  personal  injuries  after 
death  of  person  injured.     1917E-1171. 

Power  or  duty  of  administrator,  guard- 
ian, or  the  like,  to  contest  will.  1918B- 
536. 


b.     Against  Personal  Representative. 

86.  Inability     to     Procure     Testimony. 

Plaintiff,  in  au  action  against  an  admin- 
istrator for  breach  of  intestate's  contract, 
is  not  entitled  to  an  instruction  balancing 
her  inability  to  testify  against  defend- 
ant's difficulty  in  not  having  the  benefit 
of  intestate's  testimony.  Parsons  v. 
Trowbridge  (Fed.)   1917C-750. 

87.  Necessity  of  Presenting  Claim.  Un- 
der Md.  Code  Pub.  Civ.  Laws,  art.  93,  §  83, 
providing  that  no  administrator  shall  dis- 
charge any  claim  against  the  decedent,  ex- 
cept at  his  own  risk,  unless  it  first  be 
passed  by  the  orphans'  court,  or  be  proven 
according  to  the  rules  prescribed  in  the 
statute,  section  97,  providing  that  no  ad- 
ministrator shall  be  allowed  in  his  account 
for  any  claim  discharged  by  him  unless 
he  produce  the  claim  passed  by  the  or- 
phans' court  or  proven  as  herein  directed, 
section  99,  providing  for  the  defense  of 
claims  by  the  personal  representative,  sec- 
tion 116,  providing  that  no  administrator 
shall  be  bound  to  take  notice  of  any  claim 
against  his  decedent  "unless  a  suit  shall 
be  pending  against  such  administrator  for 
such  claim,"  the  fact  that  the  claim  on 
which  an  executor  is  sued  has  not  been 
passed  in  the  orphans'  court  or  proven, 
does  not  preclude  the  suit.  Schnepfe  v. 
Schnepfe  (Md.)  1916D-988. 

88.  Decree  in  Action  Against.  Under 
Mass.  Rev.  Laws  1902,  c.  172,  §§6,  7, 
where  decree  is  for  plaintiff,  in  a  suit  in 
which,  defendant  dying  pending  the  suit, 
his  administrator  a£peared  and  defended. 


EXECUTORY  DEVISE— EXPLOSIONS  AND  EXPLOSIVES.      363 


it  should  provide  for  execution  for  the 
costs  alone  against  the  administrator  per- 
sonally, Hanscom  v.  Maiden,  etc.  Gas- 
light Co.  (Mass.)   1917A-145. 

89.  Allowance  of  Costs  from  Estate. 
Where  an  action  by  an  heir  against  the 
administrator  results  in  relieving  the  es- 
tate from  a  charge  for  excessive  advances 
made  by  the  administrator,  the  latter 
should  not  be  allowed  costs  out  of  the 
estate.     In  re  Bundle  (Ont.)  1917A-139. 

c.     Limitation  of  Actions. 

90.  Time  to  File  Claim.  The  fact  that 
the  claim  was  filed  in  the  probate  court, 
and  that  the  administrator  had  knowledge 
of  it  and  had  made  efforts  to  adjust  and 
settle  it,  will  not  suspend  the  statute  nor 
estop  the  administrator  from  relying  upon 
the  bar  of  the  statute.  Milbourne  v.  Kel- 
ley  (Kan.)   1916D-389. 

91.  In  an  action  to  establish  a  claim 
against  the  estate  of  a  deceased  person  it 
was  shown  that  the  letters  of  administra- 
tion issued  on  December  10,  1910.  At  that 
time  the  statute  (Gen.  Stat.  1909,  section 
3516),  allowed  three  years  for  the  presen- 
tation of  claims.  An  act  which  took  ef- 
fect on  the  22d  day  of  May,  1911  (Laws 
1911,  c.  188),  reduced  the  time  to  two 
years,  with  a  provision  that  all  demands 
not  exhibited  within  two  years  shall  be 
forever  barred.  Although  the  plaintiff 
had  18  months  after  the  act  took  effect  in 
which  he  might  have  commenced  his  ac- 
tion, his  claim  was  not  exhibited  until 
more  than  two  years  thereafter.  Held, 
that  he  was  allowed  a  reasonable  time  to 
pursue  his  remedy,  and  that  the  action  is 
barred  bv  the  new  statute.  Milbourne  v. 
Kelley  (Kan.)  1916D-389.        (Annotated.) 

92.  Nor  will  the  plaintiff  be  heard  to 
say  that  by  reason  of  such  acts  and  con- 
duct of  the  administrator  the  period  of  IS 
months  was  not  in  this  case  a  reasonable 
time.  Milbourne  v.  Kelley  (Kan.)  1916D- 
389. 

Note. 
Public  administrators.    191SB-1059. 

EXECUTORY  DEVISE. 

Defined,  see  Wills,  209. 

EXEMPLARY   DAMAGES. 

See  Damages,  1-2;  False  Imprisonment, 
10;  Libel  and  Slander,  8,  9,  162; 
Malicious  Prosecution,  32,  34,  35; 
Replevin,  6,  9. 

EXEMPTIONS. 
See  Homestead;  Executions,  1-6. 
Salary  not  exempt,  see  Bankruptcy,  .^. 
From  seizure  for  rent,  see  Landlord  and 
Tenant,  35. 


From  service  of  civil  process,  see  Process, 

4,5. 
Validity  of  exempting  recording  fees,  see 

Recording  Acts,  4. 
From  taxation,  see  Taxation,  67-85. 

EXHIBITS. 
See  Pleading. 

Removal  to  jury  room,  effect,  see  Jury,  38, 
39. 

EXPATRIATION. 

See  Aliens,  15,  16. 

EXPECTANCY. 

Assignability,  see  Assignments,  8,  9. 

EXPENSES. 
Allowance  for,  see  Judges,  4,  5. 

EXPERTS. 

Testimony  in  shock  cases,  see  Electricity, 

14,  16-19. 
Competency  to  testify,  see  Witnesses,  11- 

16. 
Cross-examination  of,  see  Witnesses,  82. 

EXPLOSIONS  AND  EXPLOSIVES. 

Explosion  of  gasoUne  light  plant,  see  Neg- 
ligence, 90,  99. 

Judicial  notice  of  nature  of  gas,  see  Evi- 
dence, 15,  16. 

Expert  testimony  as  to  presence  of  gaso- 
line, see  Evidence,  64. 

Descriptive  booklet  as  evidence,  see  Evi- 
dence, 93. 

1.  Leaving  Small  Quantity  Exposed.  It 
is  gross  negligence  for  an  agent  of  a 
powder  company,  after  shooting  an  oil 
well  with  solidified  glycerine,  to  leave  a 
quart  of  that  explosive  lying  near  the 
well;  and  the  act  of  a  workman,  unskilled 
in  the  use  of  such  substances,  in  removing 
the  dangerous  article  and  placing  it  in 
the  stone  fence  of  a  nearby  graveyard  to 
prevent  injury  to  himself  and  his  fellow 
workmen,  does  not  amount  to  an  unre- 
lated, intervening  and  efficient  cause  so  aa 
to  excuse  the  powder  company  from  its 
liability  for  damages  to  children  who 
afterward  find  the  solidified  glycerine  and 
are  injured  by  it.  Clark  v.  E.  I.  Du  Pont 
De  Nemours  Powder  Co.  (Kan.)  1917B- 
340.  (Annotated.) 

2.  The  owner  of  so  inherently  dangerous 
a  commodity  as  solidified  glycerine  is  re- 
quired to  exert  the  highest  degree  of  care 
to  keep  it  in  close  custody  to  prevent  its 
doing  mischief,  and  that  duty  never 
ceases;  and  such  owner  is  liable  for  all 
the  natural  and  probable  consequences 
which  flow  from  any  breach  of  that  duty, 
riark  v.  E.  I.  Du  Pont  De  Nemours  Pow- 
der Co.   (Kan.)   1917B-340.      (Annotated.) 


364 


DIGEST. 

1916C— 1918B. 

3.  The    rules    heretofore    announced    by 

this  court  for  the  determination  of  proxi-       gee  States,  11. 
mate  cause  adhered  to.     Clark  v.  E.  I.  Du 
Pont    De    Nemours    Powder    Co.    (Kan.) 
"  1917B-340.  (Annotated.) 

4.  Injury  by  Concussion.  The  use  of 
high-power  explosives  in  making  excava- 
tions of  rock  and  earth  is  a  lawful  method 
of  accomplishing  that  purpose;  but  where 
dirt  and  stone  are  thrown  by  the  force  of 
the  blast  upon  the  property  of  another,  or 
where  the  work  of  blasting  is  done  in  such 
proximity  to  adjoining  property  that  re- 
gardless of  the  care  used  the  natural, 
necessary  or  probable  result  of  the  force 
of  the  explosion  will  be  to  break  the  sur- 
face of  the  ground,  destroy  the  buildings, 
and  produce  a  concussion  of  the  atmos- 
phere, the  force  of  which  will  invade  the 
adjoining  premises,  injuring  the  buildings 
thereon  and  making  them  unfit  and  unsafe 
for  habitation,  the  person  or  corporation 
making  use  of  such  explosives  will  be  lia- 
ble for  the  damage  proximately  and  natur- 
ally resulting  therefrom,  irrespective  of 
the  question  of  negligence  or  want  of  skill 
in  the  blasting  operations.  Louden  v.  Cin- 
cinnati (Ohio)  1916C-1171.      (Annotated.) 


EX  BEIi. 


EXTENSION  OF  WATEB  MAINS. 

Public  water  supply,  see  Waterworks  and 
Water  Companies,  5-7. 


5.  A  petition  averring  that  defendants 
in  the  use  of  high  explosives  broke  into 
plaintiff's  land  and  dwelling  house  with 
force  and  violence  by  means  of  explosions 
of  great  power  and  frequency  in  the  street 
adjacent  to  and  in  close  proximity  to 
plaintiffs  dwelling  house,  and  thereby 
produced  concussions  and  vibrations  of 
the  earth  and  air,  causing  foundations, 
walls,  chimneys,  ceilings,  cistern  and  vault 
and  window  glass  of  plaintiff's  house  to 
break  and  fall,  rendering  such  house  un- 
safe for  habitation  and  untenantable, 
states  a  cause  of  action.  Louden  v.  Cin- 
cinnati (Ohio)  1916C-1171.     (Annotated.) 

Notes. 

Injury  to  property  by  concussion  or 
vibration  resulting  from  blasting.  1916C- 
1176. 

Liability  as  for  negligence  of  one  throw- 
ing away  small  quantity  of  explosive. 
1917B-345. 

EX  POST  FACTO  STATUTE. 

Cohabitation  after  statute  forbidding  mar- 
riage, see  Incest,  2. 

EXPRESS. 

Meaning,  .see  States,  6. 

EXPRESS  COMPANIES. 
See  Carriers;  Carriers  of  Goods;  Carriers 
of  Live  Stock. 

EXPRESS  TRUSTS. 
See  Trusts  and  Trustees,  1-5. 


EXTORTION. 

1.  Sufllciency  of  Indictment,  Under 
Ariz,  Pen.  Code  1913,  §  943,  providing  that 
an  information  is  sufficient  if  it  states  the 
act  charged  as  the  offense  clearly  and  dis- 
tinctly in  ordinary  and  concise  language, 
so  as  to  enable  a  person  of  common  under- 
standing to  know  what  is  intended,  and 
with  sufficient  certainty  to  enable  the 
court  to  pronounce  judgment,  and  which 
contains  the  formal  allegations  of  the 
necessary  jurisdictional  facts,  an  informa- 
tion for  extortion  by  threat  to  accuse  an- 
other of  a  crime  as  defined  by  Pen.  Code 
1913,  §§  512,  513,  which  charges  that  the 
defendant  threatened  to  accuse  another  of 
grand  larceny,  is  sufficient  without  alleg- 
ing the  particulars  of  the  larceny.  Lee  v. 
State  (Ariz.)   1917B-131. 

2.  Threat  in  Connection  With  Demand 
for  Payment  of  Debt.  Accused,  who 
wrote  one  who  trespassed  on  his  land  and 
cut  his  timber  that  if  the  trespasser  did 
not  compensate  him  for  the  damages  he 
would  prosecute  him,  is  not  guilty  of  the 
offense  denounced  by  Miss.  Code  1906, 
§  1364,  declaring  that  any  person  who 
shall  knowingly  send  any  letter  threaten- 
ing to  accuse  another  of  a  crime  with  a 
view  to  extort  money  shall  be  guilty  of 
an  attempt  to  rob;  for  a  creditor  is  en- 
titled to  demand  payment  of  honest  debts, 
and  a  threat  to  charge  the  debtor  with  an 
offense  committed  in  connection  with  the 
debt  or  obligation  is  not  within  the  Stat- 
ute.   State  V.  Bicks  (Miss.)  1917E-244. 

(Annotated.) 

3.  Trial.  In  a  prosecution  for  extortion 
by  threatening  to  accuse  another  of  grand 
larceny,  it  is  error  to  read  to  the  jury  all 
of  Ariz.  Pen.  Code  1913,  §§  481,  483,  484, 
defining  grand  larceny,  and  not  to  confine 
the  instruction  to  the  particular  kind  of 
larceny  to  which  the  threat  referred.  Lee 
v.  State   (Ariz.)   1917B-131. 

4.  Threat  to  Accuse  of  Crime.    One  who 

extorts  money  from  another  by  a  threat 
to  accuse  the  other  of  a  crime  is  guilty 
of  extortion,  whether  the  other  is  in  fact 
guilty  or  innocent  of  the  crime  referred 
to  in  the  threat.  Lee  v.  State  (Ariz.) 
1917B-131.  (Annotated.) 

Notes. 

Threat  to  accuse  of  crime  as  criminal 
offense.     1917B-134. 

Criminal  liability  for  threat  of  prosecu- 
tion in  connection  with  demand  for  pay- 
ment of  debt.     1917E-246. 


EXTRADITION— FALSE  IMPRISONjVIENT. 


365 


EXTRADITION. 

1.  Scope  of  Inquiry.  The  court,  on 
tabeas  corpus  by  one  in  custody  under  a 
requisition  warrant  for  his  arrest  as  a 
fugitive  from  the  justice  of  another  state, 
will  not  go  into  the  facts  of  his  guilt  or 
innocence  of  the  offense,  charged  by  the 
demanding  state.  Ex  parte  McDaniel 
(Tex.)  1917B-335. 

2.  Who  is  Fugitive.  A  person  who 
commits  a  crime  in  one  state  and  departs 
therefrom  and  is  found  in  another  is  a 
"fugitive  from  jtistice."  Ex  parte  Mc- 
Daniel (Tex.)  1917B-335. 

3.  Legality  of  Warrant.  An  extradition 
warrant  for  the  arrest  of  a  fugitive  from 
the  justice  of  the  demanding  state  makes 
a  prima  facie  case  on  habeas  corpus  for 
the  discharge  of  accused,  and  the  burden 
is  on  him  to  show  that  the  warrant  was 
not  legally  issued.  Ex  parte  McDaniel 
(Tex.)  1917B-335. 

4.  Sufficiency  of  Warrant.  An  extradi- 
tion warrant,  which  recites  that  the  de- 
mand was  accompanied  by  a  "complaint," 
instead  of  by  a  copy  of  an  affidavit  duly 
certified  as  authentic  by  the  governor  of 
the  demanding  state,  is  sufficient  on 
habeas  corpus.  Ex  parte  McDaniel  (Tex.) 
1917B-335. 

5.  Presumption  of  Authority  of  Magis- 
trate Taking  Affidavit.  An  extradition 
warrant,  which  recites  that  accused  stands 
charged  by  complaint  before  the  proper 
authorities  of  the  demanding  state  and 
that  the  demand  is  accompanied  by  a  copy 
of  a  complaint  sworn  to  before  a  justice  of 
the  peace,  duly  certified  as  authentic  by 
the  governor  of  the  demanding  state,  pre- 
sents a  prima  facie  case  of  the  authority 
of  a  justice  of  the  peace  to  act  as  magis- 
trate, and  accused  has  the  burden  of  show- 
ing the  contrary  to  obtain  his  discharge 
on  habeas  corpus.  Ex  parte  McDaniel 
(Tex.)   1917B-335. 

6.  Persons  Subject  to  Extradition. 
Where  accused  detained  under  an  extra- 
dition warrant  sought  his  discharge  on 
habeas  corpus  and  showed  that  two  indict- 
ments found  in  the  state  were  pending 
against  him,  the  court  must  order  the  de- 
tention of  accused  until  the  indictments 
are  disposed  of,  with  direction  for  his 
delivery  under  the  extradition  warrant. 
Ex  parte  McDaniel  (Tex.)  1917B-33o. 

(Annotated.) 
Note. 
Person   in   custody   on   charge   of   other 
crime  as  subject  to  extradition,     1917B- 
337. 

EYEWITNESS. 
"Who  is  not.  see  Accident  Insurance,  25. 


FACTORS. 


See  Brokers. 


FACTORIES. 

See  Manufacturers. 

FAILXTRE  OF  CONSIDERATION. 

As  defense,  see  Bills  and  Notes,  15. 

FAIR  COMMENT. 

Privileged  criticism,  see  1111)61  and  Slan- 
der, 65. 

FAIRNESS. 

As  essential  to  remedy,  see  Specific  Per- 
formance, 3. 

FAIRNESS  OF  TRIAIi. 

Excluding  outside  infl^uence  from  jury,  see 
Jury,  33,  34. 

FALSE  IMPRISONMENT. 

1.  Persons  Liable. 

2.  Defenses. 

3.  Evidence. 

4.  Instructions. 

5.  Damages. 

Excessiveness  of  damages,  see  Damages, 
45-47. 

Imprisonment  of  insane  patient,  liability, 
see  Hospitals  and  Asylums,  3-6. 

Wife's  action  for  imprisonment  of  hus- 
band, see  Husband  and  Wife,  34. 

Liability  of  warden  for  holding  pardoned 
convict,  see  Pardons,  2. 

1.     PERSONS  LIABLE. 

1.  Reporting  Offense  to  Officer.  One 
who  in  good  faith  reports  to  a  police  offi- 
cer the  violation  of  a  city  ordinance,  and 
at  the  same  time  asks  that  the  violator  be 
arrested,  but  does  not  assume  to  say  what 
steps  shall  be  taken  to  that  end,  is  not 
thereby  rendered  liable  for  damages  be- 
cause the  arrest  is  made  without  the  issu- 
ance of  a  warrant.  Lemmon  v.  King 
(Kan.)  1917E-40L  (Annotated.) 

2.  Detention  of  Convict  After  Pardon. 
Where  a  warden,  appointed  by  a  contrac- 
tor for  convict  labor  and  confirmed  by  the 
court  under  toe  statute,  refuses,  on  the 
ground  of  lack  of  authority,  to  release  a 
convict  laborer  of  whom  he  had  charge, 
on  delivery  of  a  pardon  to  him,  he  is 
liable  for  false  imprisonment.  Weigel  v. 
McCloskey  (Ark.)  I916C-503. 

Note. 

Liability  of  person  reporting  commission 
of  offense  to  police  officer  for  arrest  by 
officer  without  warrant.     1917E-404. 

2.     DEFENSES. 

3.  Truth  of  Charge.  On  the  trial  of  an 
action  for  false  imprisonment  and  assault, 
the  truth  of  the  matter  charged  in  a  void 


366  DIGEST. 

1916C5— 1918B. 
warrant  on  which  plaintiff  was  unlawfully       withdrawn  from  their  consideration 
arrested,  is  immaterial.     Howell  v.  Wysor 


Spain 
V.  Oregon-Washington  E.,  etc.  Co.  (Ore.) 
1917E-1104. 


3.     EVIDENCE. 
(W.  Va.)  1916C-519. 

4.  Condition  of  JaiL  Where  defendant 
railroad's  conductor  arrested  plaintiff  on 
the  pretext  that  he  was  drunk,  ejected  him 
from  the  car,  and  turned  him  over  to  the 
railroad's  watchman,  who  incarcerated  him 
in  a  city  jail,  the  road's  trespass  was  one 
continuing  through  the  incarceration  and 
up  to  plaintiff's  release,  and  it  was  liable 
for  the  imprisonment,  as  well  as  the  un- 
lawful ejection,  so  that  evidence  is  admis- 
sible to  prove  the  condition  of  the  city 
jail.  Spain  v.  Oregon-Waahington  B.,  etc. 
Co.  (Ore.)  1917E-1104. 

5.  Character  of  Associate  of  Person  Im- 
prisoned. In  an  action  against  a  railroad 
tor  injuries  sustained  by  plaintiff  when 
arrested  for  drunkenness,  by  defendant's 
conductor,  ejected  from  the  train,  and  im- 
prisoned, testimony  of  a  witness,  who  had 
given  plaintiff  the  bottle  from  which  he 
was  drinking  at  the  time  of  the  arrest, 
which  plaintiff  claimed  contained  ginger 
ale  instead  of  beer,  that  he  (the  witness) 
was  a  good  clean  athlete  and  drank  no 
liquor,  is  admissible.  Spain  \.  Oregon- 
Washington  R.,  etc.  Co.  (Ore.)  1917E-1104. 

6.  Acts  of  Servant— Proof  of  Motive. 
In  an  action  against  a  railroad,  its  special 
police  officer  and  another  for  wrongful 
ejection  and  arrest,  where  the  evidence 
justifies  compensatory  damages  only,  evi- 
dence as  to  the  special  officer's  motive  in 
making  the  arrest  is  inadmissible.  Cin- 
cinnati, etc.  R.  Co.  T.  Cundiff  (Ky.)  1916C- 
513. 

4.     INSTRUCTIONS. 

7.  Instructions  Approved.  There  was  no 
reversible  error  in  the  giving  and  refusing 
of  the  instructions  in  this  case.  Howell 
v.  Wysor  (W.  Va,)  1916C-519, 

5.     DAMAGES. 

8.  Speculative  Consequences.  In  an  ac- 
tion by  a  railroad  passenger  for  his  arrest 
and  ejection  from  defendant's  train  as 
intoxicated,  and  his  subsequent  imprison- 
ment, which  he  claimed  caused  him  to 
undergo  a  second  amputation  of  his  arm, 
where  plaintiff's  evidence  as  to  the  cause 
of  such  second  amputation  left  it  a  matter 
of  speculation  whether  the  cause  thereof 
was  a  cold  caught  in  the  jail  in  the  un- 
healed original  amputation,  or  infection 
from  unsterilized  bandages,  etc.,  the  court 
should  have  withdrawn  from  the  jury  the 
subject  of  the  second  amputation,  as  an 
element  in  plaintiff's  recovery,  since,  when 
the  evidence  leaves  the  case  in  such  situ- 
ation that  the  jury  must  guess  as  to  which 
of  several  possible  causes  occasioned  the 
injury,   such   part   of  the   case   should  be 


9.  Elements  of  Damage.  Where  a  rail- 
road passenger  was  taken  from  the  train 
by  the  conductor  and  other  agents  of  the 
road  on  the  pretext  that  he  was  drunk 
and  drinking  in  the  car,  which  arrest  was 
accomplished  with  some  degree  of  physical 
force  and  involved  a  false  imprisonment 
of  the  passenger,  in  his  action  against  the 
road  he  could  recover  for  humiliation  on 
account  of  the  public  ejectment  from  the 
car,  although,  except  in  cases  of  slander, 
breach  of  promise,  and  the  like,  a  recovery 
for  mental  suffering  unaccompanied  by 
physical  injury  will  not  be  permitted. 
Spain  V.  Oregon-Washington  E.,  etc.  Co. 
(Ore.)   1917E-1104. 

10.  Punitive  Damages.  Where  there  was 
nothing  in  the  conduct  of  defendant  rail- 
road's special  police  officer  and  its  em- 
ployee, acting  under  his  direction,  in  eject- 
ing and  arresting  plaintiff  that  can  be 
considered  as  wanton  or  reckless  disre- 
gard of  plaintiff's  rights  as  a  passenger, 
and  where  neither  their  language  nor  man- 
ner was  insulting,  punitive  damages  are 
not  recoverable.  Cincinnati,  etc.  E.  Co. 
V.  Cundiff  (Ky.)  1916C-513. 

Note. 
What  is  excessive  or  inadequate  verdict 
in  action  for  false  imprisonment.     1916C- 
505. 


FALSE  PRETENSES. 

Elements  of  Offense,  366. 
Indictment,   367. 
Defenses,  367. 
Evidence,  367. 


1, 

2. 
3! 
4, 
5.  Instructions,   368. 

Liability  of  corporation,  see  Corporations, 
23. 

1.     ELEMENTS  OP  OFFENSE. 

1.  Pretense  as  Sole  Inducement.    It  is 

not  essential  to  the  offense  of  obtaining 
property  by  false  pretenses  that  the  pre- 
tense shall  be  the  sole  inducement  moving 
the  prosecutor  to  part  with  his  property. 
Partridge  v.  United  States  (D.  C.)  1917D- 
622. 

2.  Note  as  Property.  A  promissory  note 
is  "property"  or  a  "thing  of  value"  within 
a  statute  against  false  pretenses.  Part- 
ridge V.  United  States  (D.  C.)  1917D-622. 

(Annotated.) 

3.  Giving  Worthless  Check.  Where  ac- 
cused asked  prosecutor  if  he  would  cash 
a  check  or  identify  him  at  a  bank, 
and  they  went  together  to  the  bank, 
and  the  officers  thereof  refused  to  give 
accused  money  on  prosecutor's  identifica- 
tion, and  thereupon  accused  wrote  a  check 
on  his  home  bank,  payable  to  prosecutor, 
who  indorsed  it,  and  the  bank  thereupon 


FALSE  PRETENSES. 


367 


paid  the  money  to  accused  in  the  presence 
of  prosecutor,  the  prosecutor  was  de- 
frauded, if  the  check  was  not  paid  for 
want  of  funds.  State  v.  Poxton  (Iowa) 
1916E-727.  (Annotated.) 

4.  Under  the  Iowa  statute,  any  person 
who,  by  false  pretense  or  by  any  false 
token,  obtains,  with  intent  to  defraud,  any 
money  from  another,  one  who  gives  a  check 
on  a  bank  in  which  he  has  no  account,  and 
without  reasonable  expectation  for  believ- 
ing that  the  check  will  be  paid  on  presenta- 
tion, and  who  delivers  the  check  to  a  third 
person  and  secures  money  thereon  from 
him,  is  guilty  of  obtaining  money  under 
false  pretenses,  though  no  representation 
was  made  other  than  that  involved  in  the 
delivery  of  the  check.  State  v.  Foxton 
(Iowa)  1916E-727.  (Annotated.) 

5.  Obtaining  Itoan.  The  word  "obtain," 
as  used  in  section  13104,  Ohio  General 
Code,  is  not  limited  to  getting,  securing 
or  appropriating  money  or  property  as 
owner.  It  includes  as  well  the  getting  or 
securing  of  money  or  property  by  way  of 
a  loan.  Tingue  v.  State  (Ohio)  1916C- 
1136.  (Annotated.) 

6.  Intent.  Under  N.  Car.  Revisal  1905, 
§  3432,  providing  that,  in  an  indictment 
for  obtaining  property  by  false  pretenses, 
it  shall  be  sufficient  to  allege  that  the 
party  did  the  act  with  the  intent  to  de- 
fraud, without  alleging  an  intent  to  de- 
fraud any  particular  person,  and  that  it 
shall  not  be  necessary  to  prove  an  intent 
to  defraud  any  particular  person,  an  alle- 
gation, in  an  indictment  as  to  the  persons 
intended  to  be  defrauded,  is  surplusage, 
and  a  claim  of  variance  cannot  be  predi- 
cated thereon.  State  v.  Salisbury  Ice,  etc. 
Co.  (N.  Car.)  1916C-456. 

7.  Reliance  on  Representation.  WhUe, 
to  constitute  the  offense  of  obtaining  prop- 
erty by  false  pretenses,  defendant's  con- 
duct must  deceive  and  be  intended  and 
calculated  to  deceive,  the  sale  of  1,750 
pounds  of  coke  as  a  ton  constitutes  the 
offense,  though  the  buyer  strongly  sus- 
pected that  defendant  was  selling  by 
short  weight,  where  he  did  not  and  could 
not  know  this  until  he  weighed  the  coke 
after  delivery,  as  he  was  induced  to  part 
with  the  price  in  reliance  upon  defendant's 
representation  that  it  was  a  ton.  State 
V.  Salisbury  Ice,  etc.  Co.  (N.  Car.)  1916C- 
456. 

8.  Attempt.  The  acts  of  a  person  whose 
property  is  insured  against  loss  by  bur- 
glary in  secreting  the  property  and  mak- 
ing complaint  to  the  police  that  it  had 
been  stolen  are  merely  preparation  for  the 
commission    of    the    offense    of    obtaining 

"  money  from  the  insurer  by  false  pretenses 
and  do  not  constitute  an  attempt  to  com- 
mit the  offense.  Kex  v.  Eobinson  (Eng.) 
1917B-1229.  (Annotated.) 


9.  Nature  of  Pretense.  It  is  not  neces- 
sary that  the  false  pretense  should  be  di- 
rect, definite  and  positive;  it  is  sufficient 
if  it  is  so  worded  as  reasonably  to  deceive 
a  person  of  ordinary  intelligence.  Part- 
ridge V.  United  States  (D.  C.)  1917D-622. 

Notes. 
Bill  OP  note  as  "property,"  etc.,  within 
statute    against    false    pretenses.     1917I>- 
627. 

What  constitutes  attempt  to  obtain 
money  by  false  pretenses.     1917B-1230. 

Obtaining  loan  of  money  as  constituting 
crime  of  obtaining  money  by  false  pre- 
tenses.    1916C-1158. 

Giving  worthless  check  as  false  pre- 
tense.    1916E-736. 

2.     INDICTME'NT. 

10.  Sufficiency  of  Complaint.  A  com- 
plaint for  obtaining  money  by  false  pre- 
tenses, which  alleged  that  the  defendant 
falsely  represented  that  a  certain  ring  was 
of  solid  gold,  and  that  the  complaining 
witness,  relying  on  such  pretense,  was  in- 
duced thereby  to  deliver  to  the  defendant 
a  certain  sum  of  money,  is  not  objection- 
able as  failing  to  show  what  was  the  de- 
ception practiced  or  as  failing  to  show  the 
connection  between  the  pretenses  alleged 
and  the  obtaining  of  the  money.  State  v. 
Solomon  (Wis.)  1916E-309. 

3.  DEFENSES. 

11.  Entrapment.  Accused,  obtaining 
money  by  means  of  short  weight  of  coke 
sold  to  prosecutor,  was  guilty  of  obtain- 
ing money  by  false  pretenses,  punishable 
by  Eevjsal  N.  Car.  1905,  §  3432,  though 
prosecutor  testified  that  he  had  been  sus- 
pecting that  accused  was  selling  short 
weight,  and  that  he  had  to  buy  from  him 
to  find  out  whether  that  was  true  or  not, 
and  that  he  did  not  know  positively  that 
accused  sold  short  weight  until  the  coke 
had  been  weighed  after  paying  the  price. 
State  V.  Salisbury  Ice,  etc.  Co.  (N.  Car.) 
1916C-728.  (Annotated.) 

4.  EYTDENCE. 

12.  Falsity  of  Representation  —  Owner- 
ship of  Land.  A  representation  of  owner- 
ship of  land  is  not  shown  to  be  true  by 
proof  of  the  possession  of  a  contract  for 
the  purchase  thereof.  Partridge  v.  United 
States  (D.  C.)  1917D-622. 

13.  Where  one  is  charged  with  obtaining 
money  bj'  false  pretenses  by  means  of  a 
worthless  check,  the  state  may  not  show 
that  accused  drew  checks  on  other  banks, 
unless  it  appears  that  there  were  no  funds 
in  the  other  banks,  from  which  a  fraudu- 
lent intent  could  be  deduced,  and  that  he 
intended  also  to  defraud  prosecutor.  State 
v.  Foxton  (Iowa)   1916E-727. 


368 


DIGEST. 

19160— 1918B. 


14.  On  a  trial  for  obtaining  money  by 
false  pretenses  by  means  of  a  worthless 
check,  evidence  that  accused  had  drawn 
another  check  on  another  bank,  unaccom- 
panied by  evidence  that  the  check  was  ever 
presented  to  the  bank,  or  that  accused  did 
not  have  credit  there,  is  inadmissible. 
State  V.  Foxton  (Iowa)  1916E-727. 

15.  Proof  of  Other  Similar  Offenses.  On 
a  trial  for  obtaining  money  by  false  pre- 
tenses by  means  of  a  worthless  check,  evi- 
dence of  the  giving  of  othtr  worthless 
checks  by  accused  about  the  time  of  the 
giving  of  the  check  involved  is  admissible 
to  show  intent.  State  v.  Foxton  (Iowa) 
1916E-727. 

16.  Ccmtrol  by  Accused  of  Subject-mat- 
ter of  Pretenses.  Where  the  false  pre- 
tenses charged  were  with  respect  to  the 
financial  condition  of  a  corporation,  evi- 
dence tending  to  show  that  the  accused 
controlled  the  corporation  and  that  its 
'ostensible  officers  acted  under  his  direction 
is  admissible.  Partridge  v.  United  States 
(D.  C.)  1917D-622. 

17.  Concealment  of  Documents  by  Ac- 
cused. Where  the  false  pretenses  on 
which  an  indictment  is  based  related  to 
the  financial  condition  of  a  corporation, 
evidence  that  the  accused  secreted  its  rec- 
ords and  endeavored  to  prevent  an  exam- 
ination of  its  affairs  is  admissible.  Part- 
ridge V.  United  States  (D.  C.)  1917I>-622. 

18.  Eyidence  of  Other  Offenses.  The  ex- 
tent to  which  evidence  of  other  similar 
offenses  may  be  received  on  a  prosecution 
for  obtaining  money  under  false  pretenses 
to  show  guilty  knowledge  or  intent  rests 
largelv  in  the  discretion  of  the  trial  court, 
and  its  decision  will  not  be  reversed  un- 
less the  evidence  admitted  appears  clearly 
to  be  irrelevant  and  prejudicial*  Part- 
ridge V.  United  SUtes  (D.  C.)  1917I>-622. 

5.     INSTRUCTIONS. 

19.  Instructiona  On  the  trial  of  an  in- 
dictment for  obtaining  property  by  false 
pretenses  an  instruction  which  in  effect 
singles  out  one  of  several  representations 
shown  by  the  evidence  and  tells  the  jury 
to  acquit  if  they  find  it  to  be  true  is  prop- 
erly refused.  Partridge  ▼.  United  States 
(D.  C.)  1917D-622. 

Note. 

Jurisdiction     of    offense 
property  by  false  pretenses. 


FARMINa. 


of    obtaining 
1917E-311. 


FALSE  SWEARING. 
See  Perjury. 

FALSE  EEPRESENTATIONS. 
See  Fraud  and  Deceit. 

FALSTJS  IN  UNO. 

See  Instructions,  47. 


See  Agriculture. 

FARM  LOAN  ACT. 
See  Agriculture,  5-10. 

FAMILY  ALLOWANCE. 
See  Executors  and  Administrators,  27-31. 

FAVORABLE  ERRORS. 

Not  available,  see  Appeal  and  Error,  443- 
452. 

FEDERAL     EMPLOYERS'     LIABILITY 
ACTS. 

See  Master  and  Servant. 

FEDERAL  COURTS. 

Appeals  in,  see  Appeal  and  Error,  14. 
Jurisdiction,  see  Courts,  8-11. 

FEDERAL    CORPORATION    TAX    ACT. 
Validity,  see  Taxation,  149. 

FEDERAL  INCOME  TAX  ACT. 
See  Taxation,  179,  182. 

FEDERAL  RESERVE  ACT. 
See  Banks  and  Banking,  77,  79,  80. 

FEES. 

Of  attorneys,  see  Attorneys,  17-35. 
Of  judges,  see  Judges,  3-8. 
Of  referees,  see  Referees,  8. 
Sheriff's  fees,  see  Sheriffs  and  Constables, 
12,  13. 

FELONIOUSLY. 

Meaning,  see  Homicide,  6. 

FELONY. 
Defined,  see  Criminal  Law,  7. 

FELLOW  SERVANTS, 

See  Master  and  Servant,  25-28. 

Assumption  of  risk  under  Employers'  Lia- 
bility Act,  see  Master  and"  Servant^ 
69. 

FENCES. 

Unfenced  land,  liability  of  owner,  see 
Animals,  3. 

1.  Division  Fence,  There  was  evidence 
to  show  that  the  defendant  company,  and 
its  lessor  before  it,  had  maintained  a  cer- 
tain fence  along  the  whole  line  of  its  right 
of  way  past  plaintiff's  close  from  the  very 
beginning,   although   it   latterly   protested 


FERAE  NATURAE— FINES  AND  PENALTIES. 


369 


tliat  it  was  not  liable  to  do  so.  These  pro- 
tests were  inefficacious  to  discharge  the 
company's  liability,  and  the  case  was 
rightly  submitted  to  the  jury  upon  the 
question  of  defendant's  liability  through 
lack  of  maintaining  a  sufficient  fence, 
there  being  no  question  of  right  or  obli- 
gation on  the  part  of  plaintiff  or  defend- 
ant in  reference  to  the  fence  in  question 
under  the  provisions  of  the  fence  act. 
Titus  V.  Pennsylvania  R.  Co.  (N.  J.) 
1917B-1251. 

2,  When  for  a  period  of  over  20  years 
the  owner  of  one  of  two  adjoining  tracts 
has  continuously,  without  interruption  and 
as  of  duty,  repaired  and  maintained  the 
whole  of  a  division  fence  between  them,  a 
presumption  arises  that  he  or  those  under 
whom  he  derived  title  were,  as  owners  of 
a  servient  tenement,  bound  to  perpetually 
make  and  maintain  the  fence,  the  exist- 
ence of  a  former  and  lost  agreement  to 
do  so  may  be  inferred.  Titus  v.  Pennsyl- 
vania R.  Co.  (N.  J.)  1917B-1251. 

(Annotated.) 
Note. 

Prescriptive  obligation  to  maintain  divi- 
sion fence.     1917B-1253. 


FERAE  NATURAE. 

See  Animals,  11-26. 

Wild  animals  subject  of  larceny,  when,  see 
Larceny,  1. 

FERRIES. 
1.  What  is  Ferryboat.  Steamers  oper- 
ated by  a  railroad  company  on  Lake  Tahoe 
which  carry  goods  and  passengers  be- 
tween California  points,  Nevada  points 
and  interstate  points  are  not  "ferryboats" 
within  Cal.  Pol.  Code,  §  3643,  defining  a 
ferryboat  as  a  vessel  traversing  across  any 
of  the  waters  of  the  state  between  two 
constant  points  regularly  employed  for  the 
transfer  of  passengers  and  freight,  author- 
ized by  law  so  to  do,  and  also  any  boat 
employed  as  a  part  of  the  system  of  a  rail- 
road for  the  transfer  of  passengers  and 
freight  plying  at  regular  and  stated 
periods  between  two  points.  Lake  Tahoe 
R.,  etc.  v.  Roberts  (Cal.)  1916E-1196. 

FERRYBOAT. 

Definition,  see  Ferries,  1. 

FERTILIZER  PLANT. 
Bee  Nuisances,  3. 

FIAT. 

Sufficiency  for  mandamus,  see  Mandamus, 

28. 

FICTITIOUS  PAYEE. 
Defined,  see  Bills  and  Notes,  39. 

FIDELITY  INSURANCE. 
See  Insurance,  31-39. 
24 


FIDUCIARY  RELATION. 
Abuse  of,  see  Fraud,  6,  7,  13. 

FIQHTINO. 

N"ot  accidental  means  of  injury,  see  Accl- 
dent  Insurance,  16. 

FILINa. 

See  Pleading,  105,  106. 

Effect  of  filing,  see  Recording  Acts,  1. 

FINDING. 

Rights  of  finder,  see  Lost  Property,  1,  2. 

FINDINGS. 

See  Equity,  29;  Life  Insurance.  56;  Ref- 
erees, 4;  Trial,  63-71. 

Conclusiveness  of  immigration  official's 
findings,  see  Aliens,  22. 

Review  of  findings,  see  Appeal  and  Error, 
136-154. 

Harmless  and  prejudicial  error,  see  Appeal 
and  Error,  320-324. 

Necessity  of  exception  to  error,  see  Appeal 
and  Error,  384-388. 

Sufficiency  of  objections  for  review,  see 
Appeal  and  Error,  428-431. 

In  disbarment  proceedings,  see  Attorneys, 
46. 

In  election  contest,  see  Elections,  92. 

On  challenges,  see  Jury,  27. 

In  proceedings  under  Workmen's  Compen- 
sation Act,  see  Master  and  Servant, 
299,  300,  304,  305. 

On  foreclosure  of  mechanic's  lien,  see 
Mechanics'  Liens,  59. 

In  proceedings  to  contest  will,  see  Wills, 
132. 

FINES  AND  PENALTIES. 

See    Forfeitures;    Sentence    and    Punish- 
ment. 
Right  to  appeal,  see  Appeal  and  Error,  4. 

Assignability  of  cause  of  action  for  pen- 
alty, see  Assignments,  15,  23. 

Interest  on  penalty  of  forfeited  bail,  see 
Bail,  1. 

Punishment  for  contempt,  see  Contempt, 
16,  17. 

Jurisdiction  of  action  for  penalty,  see 
Courts,   3. 

Sufficiency  of  proof,  see  Criminal  Law, 
69. 

Penalty  for  failure  to  pay  loss,  see  Fire 
Insurance,  46. 

Penal  action  as  jeopardy,  see  Former 
Jeopardy,  6-8. 

Fine  or  ouster,  as  penalty  of  foreign  cor- 
poration, see  Monopolies,  18,  19. 

Fines  not  "ordinary  revenue,"  see  Schools, 
22. 

Disposition  of  fines,  see  Sentence  and  Pun- 
ishment,  5. 

Provision  for  fine  or  compensation  for 
embeEzlement,  see  Sentence  and  Pun- 
ishment, 6. 


370 


DIGEST. 

1916C— 1918B. 


Penal  statutes,  construction,  see  Statutes, 

88,  89. 
Penalty  for  nonpayment  of  tax,  see  Taxa- 
tion, 86. 
Forfeiture  of  usurious  interest,  see  Usury, 

3,  5,  8,  19. 
Forfeiture  of  double  interest,  see  Usury, 
24,  25. 
1.  Excesslveness  —  Preventing  Test  of 
Statute.  The  penalties  of  $1,000  fine,  or 
six  months'  imprisonment,  prescribed  by 
Florida  Laws  1913,  c.  6421,  §  35,  for  viola- 
tions of  its  provisions  against  the  sale 
without  payment  of  the  specified  license 
fee,  of  merchandise  accompanied  by  cou- 
pons, profit-sharing  certificates,  or  other 
evidences  of  indebtedness,  or  other  liabil- 
ity redeemable  in  premiums,  are  not  so 
severe  as  to  intimidate  against  a  contest  of 
the  validity  of  such  statute,  and  thus  deny 
the  equal  protection  of  the  laws.  Rast  v. 
Van  Deman,  etc.  Co.  (U.  8.)  1917B-455. 

FINOEB  PRINTS. 
Expert  testimony,  see  Evidence,  66. 

FIBE  ESCAPES. 

See  Fires,  1-5. 

Ihity  to  provide,  see  Landlord  and  Tenant, 
13. 

FIBE  XNTSUBANCE. 

1.  Nature  of  Contract,  370. 

2.  Effect  of  Binding  Blip,  3"0. 

3.  Statutory  Eegulations,  371. 

4.  Insurable  Interest,  371. 

5.  Construction  of  Policy,  371. 

a.  Cause  of  Loss,  371. 

b.  Particular  Provisions,  371. 

(1)  Vacancy  Clause,  371. 

(2)  Provision      Against      Aliena- 

tion, 371. 

(3)  Provision      Against      Incum- 

brances, 372. 

(4)  Watchman  Clause,  372. 

(5)  Agreement  to  Pay  Loss,  372. 

(6)  Arbitration  Clause,  373. 

(7)  Designation  of  Location,  373. 
C.  Waiver  of  Provisions,  373. 

a.  Vacancy  Clause,  373. 

b.  Provision      Against     Incumbrance, 

373. 

7.  Cancellation  of  Policy,  373. 

8.  Loss  and  Adjustment,  373. 

a.  Subrogation    of    Insurer    and    As- 

signment of  Claims,  373. 

b.  Arbitration  and  Appraisement,  374. 

c.  Apportionment  of  Loss,  375. 

d.  Subrogation    to    Eights    of    Mort- 

gagee, 375. 

9.  Actions,  S7o. 

a.  Pleading,  375. 

b.  Sufficiency  of-  Evidence,  376. 

c.  Damages,  376. 

Exemption  of  proceeds  of  policy,  see  Exe- 
cutions, 2. 


Exemption  from  creditors  of  proceeds  of, 
see  Fraudulent  Sales  and  Convey- 
ances, 14. 


1.     NATURE  OF  CONTRACT. 

1.  On  Bawdy  House— Validity.  A  pol- 
icy of  fire  insurance  on  a  house  of  prosti- 
tution and  the  furniture  therein  is  void 
as  against  public  policy.  Dominion  Fire 
Ins.  Co.  V.  Nakata  (Can.)   1916C-1063. 

(Annotated.) 

2.  Bight  of  Agent  to  Insure  Own  Prop- 
erty. An  agent  of  a  fire  insurance  com- 
pany with  authority  to  act  for  it  in  con- 
tracting insurance,  countersigning  policies, 
and  delivering  them,  cannot  issue  a  policy 
to  himself  on  his  own  property  unless  the 
company,  with  knowledge  of  the  facts, 
ratifies  his  act.  Salene  v.  Queen  City  Fire 
Ins.  Co.  (Ore.)  1916D-1276.     (Annotated.) 

3.  A  mortgagee  knew  that  the  mort- 
gagor was  an  agent  of  a  fire  insurance 
company  with  power  to  act  for  it  in  con- 
tracting insurance.  The  mortgagor  issued 
a  policy  on  the  property  payable  to  the 
mortgagee  as  his  interest  might  appear. 
It  is  held  that  the  mortgagee  was  charge- 
able with  knowledge  of  the  want  of  power 
of  the  mortgagor  to  issue  a  policy  on  his 
own  property,  and  to  hold  the  company 
he  must  show  that  it  approved  or  ratified 
the  policy  with  knowledge  of  the  facts. 
Salene  v.  Queen  City  Fire  Ins.  Co.  (Ore.) 
1916D-1276.  (Annotated.) 

Notes. 

Eight  of  fire  insurance  agent  to  insure 
his  own  property.     1916D-1278. 

Validity  of  insurance  policy  on  property 
illegally  kept  or  used.    1916C-1070. 

2.     EFFECT   OF  BINDING  SLIP. 

4.  Binding  Slip  as  Contract.  Where  the 
president  of  plaintiff  lumber  company 
wrote  the  agent  of  defendant  insurance 
company,  "I  wish  you  would  also  bind  the 
building  of  [the  owner]  being  constructed 
at  Lost  Springs  for  $1,500  as  we  are  fur- 
nishing the  material.  We  can  probably 
make  this  permanent,  but  we  want  to  be 
covered  in  the  meantime,"  to  which  the 
agent  replied  that  he  had  boiind  the  build- 
ing, but  stated  that  it  was  necessary  fpr 
the  company  to  have  a  definite  location  on 
the  risk  if  they  were  to  hold  the  binder, 
requesting  that  his  correspondent  send  a 
regular  application  blank  for  a  policy, 
which  the  president  of  plaintiff  company 
thereafter  neglected  to  do,  there  is  a  bind- 
ing contract  of  present  insurance  made 
between  the  parties,  subjecting  the  insur- 
ance company  to  liability  for  a  loss,  such 
of  the  necessary  terms  of  every  contract 
of  insurance  as  were  unexpressed  in  the 
correspondence     resting     in     implication. 


FIRE  INSURANCE. 


371 


Eoyal  Ins.  Co.  r.  Walker  Lumber  Co. 
(Wyo.)    1917E-1174.  (Annotated.) 

3.     STATUTORY  REGULATIONS. 

5.  Provision  for  Payment  of  Less  Than 
Face  of  Policy.  In  such  case  any  condi- 
tion in  the  policy  providing  for  the  pay- 
ment of  a  less  sum  than  the  amount  of 
the  insurance  as  written  therein  is  void 
under  the  provisions  of  the  valued  policy 
law.  Neb.  Rev.  St.  1913,  §  3210.  Dinneen 
V.  American  Ins.  Co.   (Neb.)   1917B-1246. 

6.  Local  Regulations  as  Part  of  Policy. 

When  writing  insurance  on  a  building  sit- 
uated within  the  fire  limits  of  a  city,  the 
insurance  company  is  bound  by  the  laws 
and  ordinances  of  the  city  and  such  laws 
and  ordinances  should  be  considered  as  a 
part  of  the  policy.  Dinneen  v.  American 
Ins.  Co.    (Neb.)   1917B-1246. 

(Annotated.) 
Note. 
Effect  of  local  ordinance  or  regulation 
on    liability   under   fire   insurance    policy. 
1917B-1250. 

4.     INSURABLE  INTEREST. 

7.  Leasehold.  The  interest  of  a  lessee 
under  a  lease  for  years  is  insurable. 
Home  Ins.  Co.  v.  Coker  (Okla.)  1917C- 
950.  (Annotated.) 

Note. 
Insurable  interest  of  tenant  of  property 
for  specific  term.     19170-951. 

5.     CONSTRUCTION  OF  POLICY, 
a.     Cause  of  Loss. 

8.  A  company  issuing  a  policy  of  insur- 
ance against  direct  loss  by  fire  is  not  lia- 
ble thereon  for  an  injury  occasioned  to 
a  steam  boiler  through  its  negligent  man- 
agement by  some  one  connected  with  the 
business.  McGraw  v.  Home  Ins.  Co. 
(Kan.)   1916D-227.  (Annotated.) 

Note. 
Overheating  as  fire  within  fire  insurance 
policy.     1916D-228, 

b.    Particular  Provisions. 
(1)     Vacancy  Clause. 

9.  Effect     of     Subsequent     Occupancy. 

Fire  insurance  policies  in  the  Maine  stand- 
ard form  expiring  in  December,  1913,  and 
December,  1914,  provided  that  they  should 
be  void  if  the  premises  should  become 
vacant  and  so  remain  for  more  than  30 
days  without  the  previous  assent  of  the 
insurer  in  writing.  The  premises  were 
vacant  without  such  assent  from  January 
31,  to  June,  1912,  after  which  they  were 
occupied  until  July  28,  1912,  when  the  loss 
occurred.  Me.  Rev.  St.  c.  1,  §  6,  par.  1, 
provides  that  words  and  phrases  shall  be 


construed  according  to  the  common  mean- 
ing of  the  language.  Held,  that  the  word 
"void"  meant  null,  of  no  effect,  and  that 
the  force  of  the  provision  did  not  depend 
upon  an  increase  of  risk,  but  that  the 
vacancy  worked  a  forfeiture  and  not 
merely  a  suspension  of  risk,  so  that  the 
subsequent  occupancy  did  not  revive  the 
policy.  Dolliver  v.  Granite  State  Fire  Ins. 
Co.    (Me.)    1916C-765.  (Annotated.) 

10.  Period  Between  Successive  Occu- 
pancies. A  fire  policy  contained  a  stipula- 
tion that,  if  the  building  should  become 
vacant  or  unoccupied,  it  should  be  null 
end  void.  The  policy  was  issued  on  an 
application  stating  that  the  premises  were 
used  as  a  private  dwelling,  but  after  issu- 
ance the  owner  began  to  rent  them.  Upon 
the  tenant  removing  from  the  dwelling  the 
owner  secured  a  vacancy  permit,  and 
about  the  time  of  its  expiration  the  ten- 
ant returned.  After  expiration  of  the 
vacancy  permit  the  tenant  again  removed 
from  the  premises,  though  he  left  a  stove 
and  a  few  other  articles  which  the  owner 
intended  to  appropriate  for  rent.  Before 
the  premises  were  reoccupied  by  the  owner 
they  were  burned.  It  is  held  that,  though 
the  owner  intended  and  would  have  in 
less  than  a  week  reoccupied  the  premises, 
no  recovery  could  be  had  on  the  policy; 
this  not  being  a  case  of  a  policy  issued 
upon  rented  property,  where  short  vacan- 
cies are  to  be  anticipated.  Planters'  Fire 
Ins.  Co.  v.  Steele  (Ark.)  1917B-667. 

(Annotated.) 

11.  Change  In  Occupancy.  A  fire  policy 
was  issued  on  an  application  containing  a 
statement  that  the  building  was  occupied 
as  a  private  dwelling,  and  the  policy  pro- 
vided that,  if  the  building  should  become 
■vacant  or  unoccupied,  or  any  change 
should  take  place  in  the  title,  occupancy, 
or  possession,  it  should  become  null  and 
void.  After  issuance  of  the  policy  in- 
sured ceased  to  occupy  the  premises  as  a 
private  dwelling,  and  leased  them  to  ten- 
ants. It  is  held  that  there  was  such  a 
change  in  the  occupancy  as  to  avoid  the 
policy,  notwithstanding  that  at  the  time 
of  a  fire  the  premises  were  vacant,  and  in- 
sured was  intending  to  reoccupy  them 
within  a  few  davs.  Planters'  Fire  Ins.  Co. 
v.  Steele  (Ark.)    1917B-667. 

Notes. 

Revival  of  fire  insurance  policy  by  oc- 
cupancy after  vacancy.    1916C-770. 

Construction  of  vacancy  clause  in  fire 
insurance  policy  issued  upon  rented  prop- 
erty.    1917B-669. 

(2)     Provision  Against  Alienation. 

12.  Sale  of  Interest  by  Joint  Owner. 
Where  an  insurance  policy  covering  part- 
nership property  is  voidable  by  change  of 
title  of  insured,  a  sale  of  his  interest  by 


372 


DIGEST. 

1916C— 1918B. 


one  partner  to  a  third  person  aflfects  the 
risk,  because  a  new  party  is  brought  into 
contractual  relations  with  the  insurance 
company.  Firemen's  Ins.  Co.  v.  Larey 
(Ark.)   1917B-1225.  (Annotated.) 

13.  Under  such  policy,  covering  prop- 
erty of  tenants  in  common,  a  sale  by  a 
tenant  in  common  of  his  interest  to  a 
stranger  ends  the  contract  of  insurance 
as  to  him  or  his  vendee.  Firemen's  Ins. 
Co.  ▼.  Larey  (Ark.)   1917B-1225. 

(Annotated.) 

14.  Under  such  policy,  covering  property 
of  tenants  in  common,  a  sale  by  a  tenant 
in  common  of  his  interest  to  a  stranger 
does  not  affect  the  insurance  as  to  the 
remaining  tenant  or  tenants  in  common, 
since  thereby  no  stranger  is  brought  into 
contractual  relation  with  the  insurance 
company  so  far  as  concerns  that  part  of 
the  insurance  which  covers  the  interest  of 
the  tenant  or  tenants  in  common  not  sell- 
ing. Firemen's  Ins.  Co.  v.  Larey  (Ark.) 
1917B-1225.  (Annotated.) 

15.  Fire  Insurance  —  Change  in  Interest 
or  Title — Benewal  of  Lease.  A  condition 
against  change  in  title  or  interest  in  a 
fire  insurance  policy  issued  to  a  lessee 
holding  under  a  lease  giving  an  option  of 
renewal  is  not  broken  by  a  renewal  of  the 
lease,  the  provisions  of  the  new  lease  be- 
ing identical  with  those  of  the  former  one, 
including  the  renewal  clause.  Home  Ins. 
Go.  T.  Coker  (Okla.)  1917C-950. 

16.  Sale  and  Seacquisition  Before  Loss. 
Since  a  clause  in  a  fire  insurance  policy, 
forfeiting  the  policy  if  any  change  takes 
place  in  the  title,  possession,  or  interest 
at  the  insured  in  the  property,  or  if  the 
policy  be  assigned,  must  be  construed  to 
contemplate  only  transfers  which  per- 
manently divest  the  insured  of  all  interest 
in  the  property,  where,  upon  a  sale  of  the 
land  by  insured,  the  policy  was  trans- 
ferred with  the  consent  of  the  company, 
subsequently  again  transferred  without 
the  consent  of  the  company,  and  finally 
transferred  to  the  original  owner  without 
the  consent  of  the  company,  the  policy  is 
not  thereby  rendered  void,  in  the  absence 
of  a  declaration  of  forfeiture;  the  prop- 
erty having  been  restored  to  the  party 
with  whom  the  company  originally  con- 
tracted, before  the  loss  occurred  and  the 
liability  of  the  company  having  merely 
been  suspended  during  the  interim.  Ger- 
mania  Fire  Ins.  Co.  v.  Turley  (Kv.) 
1917C-931.  (Annotated.) 

17.  Interpretation.  A  policy  of  fire  in- 
surance on  a  building  under  construction 
in  favor  of  a  lumber  company  contained 
the  provision  that  it  should  be  void  if  any 
change  took  place  in  the  interest,  title,  or 
nosscssion  of  the  subject  of  insurance. 
The  policy  stood  in  the  name  of  the  owner 
of  the  building,  and  to  cover  the  lumber 
company's  interest  a  rider  was  attached  to 


the  effect  that  a  loss,  if  any,  was  payable 
to  the  company  as  its  interest  might  ap- 
pear. In  the  policy  there  was  a  printed 
stipulation  that  if  an  interest  under  the 
policy  should  exist  in  favor  of  any  person 
having  an  interest  other  than  the  insured, 
the  conditions  of  insurance,  relating  to 
such  interest,  "as  shall  be  written  upon, 
attached,  or  appended  hereto"  should  ap- 
ply. It  is  held  that  the  conveyance, 
twelve  days  before  loss  of  the  building,  by 
the  owner  to  his  sister  did  not  relieve  the 
insurer  of  liability  to  the  lumber  com- 
pany, since  the  stipulation  of  the  policy 
relating  to  the  effect  of  a  change  in  title 
did  not  apply  to  the  lumber  company 
where  not  set  out  in  the  rider.  Royal  Ins. 
Co.  V.  Walker  Lumber  Co.  (Wyo.)  "l917E- 
1174. 

Note. 

Sale  and  reacquisition  of  title  as  viola- 
tion of  clause  in  fire  insurance  policy  pro- 
hibiting change  in  interest,  title,  etc. 
1917C-934. 


(3)     Provision   Against   Incumbrances. 

18.  Effect  of  Subsequent  Satisfaction. 
Under  a  policy  of  insurance  on  an  auto- 
mobile providing  that  it  shall  be  void  if 
the  property  should  become  incumbered 
by  a  chattel  mortgage,  or  if  any  change 
other  than  by  the  death  of  insured  should 
take  place  in  the  interest  or  title  of  the 
property,  a  chattel  mortgage  subsequently 
given  merely  suspends  the  insurance,  and, 
where  it  is  paid  and  canceled  before  a 
loss,  the  insurance  revives.  Cottingham  v. 
Marvland  Motor  Car  Ins.  Co.  (N.  Car.) 
1917B-1237.  (Annotated.) 

Note. 

Eevival  of  fire  insurance  policy  after 
satisfaction  of  lien  or  incumbrance  at- 
taching to  property  in  violation  of  policy. 
1917B-124L 

(4)     Watchman  Clause. 

19.  Negligence  of  Watchman,  When 
the  insured  employs  two  competent  watch- 
men and,  in  good  faith,  instructs  them  to 
watch  carefully  the  property  and  to  guard 
against  fire,  both  by  day  and  by  night, 
the  condition  of  the  "watchman  clause" 
in  the  policy  is  fully  complied  with  on 
the  part  of  the  insured  and  negligence  on 
the  part  of  a  watchman  does  not  forfeit 
the  policy.  Theriault  v.  California  Ins. 
Co.  (Idaho)  1917D-818.  (Annotated.) 

Note. 
Construction  of  watchman  clause  in  fire 
insurance  policy.     1917D-821. 

(5)     Agreement    to    Pay  Loss 

20.  Agreement  to  Pay  Loss  Within 
Specified  Time.  Under  a  contract  cf  in- 
surance, providing  that  within  sixty  days 


FIRE  INSURANCE. 


373 


after  written  notice  of  the  fire  or  the  fur- 
nishing of  a  sworn  statement  on  request 
the  insurer  should  pay  the  amount  for 
which  it  should  be  liable,  which  amount, 
if  not  agreed  upon,  should  be  ascertained 
by  award  of  three  referees  chosen  in  the 
manner  designated,  and  that  the  award  of 
a  majority  should  be  conclusive  and  final 
as  to  the  amount  of  loss,  in  view  of  Mass. 
Laws  1910,  c.  552,  relating  to  sworn  state- 
ments of  loss,  the  obligation  of  the  in- 
surer is  to  pay  within  sixty  days  after 
the  notice  of  the  fire  or  the  submission  of 
the  sworn  statement  when  demanded, 
even  though  the  precise  amount  is  not 
then  ascertained.  6econd  Society  v. 
Royal  Ins.  Co.  (Mass.)  1917E-491. 

(6)     Arbitration  Clause. 

21.  Provision  for  Arbitration.  A  con-' 
tract  of  insurance,  providing  that  the 
company,  within  sixty  days  after  notice 
of  fire  in  writing,  or  the  submission  of 
sworn  statement  on  request,  should  either 
pay  the  amount  for  which  it  should  be 
liable,  which  amount,  if  not  agreed  upon, 
should  be  ascertained  by  award  of  ref- 
erees, and  that  the  award  in  writing  of  a 
majority  should  be  conclusive  and  final  as 
to  the  amount  of  loss,  that  such  reference, 
unless  waived,  should  be  a  condition 
precedent  to  any  right  of  action  at  law 
or  in  equity  to  recover  such  loss,  was  not 
an  arbitration  of  the  whole  controversy 
but  only  a  stipulation  for  determining  the 
amount  of  damages,  and  is  a  valid  provi- 
sion not  obnoxious  to  the  principle  that 
contracts  to  oust  courts  of  their  jurisdic- 
tion are  not  binding.  Second  Society  t. 
Royal  Ins.  Co.  (Mass.)   1917E-491. 

(7)     Designation  of  Location. 

22.  Absence  of  Stock  from  Designated 
Location.  Where  a  policy  insuring  horses 
against  fire  while  contained  in  a  described 
barn  also  uses  the  language  of  Wis.  St. 
1913,  §  1941-43,  which  provides  for  in- 
demnity against  loss  of  the  property 
while  contained  in  the  location  described, 
and  not  elsewhere,  insured  cannot,  on  the 
theory  that  it  was  contemplated  between 
the  parties  that  the  horses  might  of 
necessity  be  taken  from  the  bam  to  per- 
mit repairs,  recover  for  their  loss  while 
away  from  the  barn;  there  being  no 
ambiguity  of  language  or  waiver  of  that 
provision  in  the  policy.  Rosenthal  v.  In- 
surance Co.  (Wis.)  1916E-395. 

(Annotated.) 
Note. 

Fire  insurance  policy  on  live  stock  in 
designated  location  as  covering  animals 
temporarily  elsewhere.     1916E-398. 

6.     WAIVER  OF  PROVISIONS, 
a.     Vacancy  Clause. 

23.  Waiver  of  Forfeiture.  An  insurer 
may  waive  a  breach  of  a  provision  for 


forfeiture  in  case  of  vacancy  without  its 
assent.  Dolliver  v.  Granite  Stat©  Fire 
Ins.  Co.  (Me.)   1916C-765. 

b.     Provision  Against  Incumbrance. 

24.  Failure  to  Make  Inquiry.  Where  a 
fire  policy  is  issued  by  an  insurance 
company  without  written  application,  the 
company  must  be  held  to  have  waived  the 
condition  of  the  policy,  providing  that 
if  the  property  be,  or  shall  become,  in- 
cumbered by  a  chattel  mortgage,  the 
policy  shall  be  void,  for  while  effect 
should  be  given  to  the  contract,  the  in- 
sured has  practically  no  voice  in  framing 
it,  and  to  permit  the  company  to  obtain 
the  premiums  where  the  insured  was  in 
ignorance  of  the  stipulation  would  work  a 
fraud.  Great  Southern  Fire  Ins.  Co.  v. 
Burns  (Ai-k.)  1917B-497.  (Annotated.) 

7.     CANCELLATION  OF  POLICY. 

25.  Necessity  of  Eetum  of  Unearned 
Premium.  Under  a  fire  insurance  policy 
in  the  New  York  standard  form  providing 
that  it  might  be  canceled  at  any  time  at 
the  request  of  the  insured,  or  by  the  in- 
surer, by  giving  five  days'  notice  of  such 
cancellation,  and  that  if  the  policy  should 
be  canceled  as  provided  the  unearned  part 
of  the  premium  actually  paid  should  be 
returned  on  surrender  of  the  policy  or  last 
renewal,  the  insurer  retaining  the  cus- 
tomary short  rate,  except  that  on  a  can- 
cellation by  it  by  giving  notice  it  should 
retain  only  the  pro  rata  premium,  the 
giving  of  the  five  days'  notice  was  suffi- 
cient to  cancel  the  policy,  and  the  return 
of  or  offer  to  return  the  premium  is  not 
an  essential  element  of  the  cancellation. 
Mangrum  &  Otter  v.  Law  Union,  etc.  Ins. 
Co.  (Cal.)  1917B-907.  (Annotated.) 

Note. 

Necessity  of  return  or  tender  of  un- 
earned premium  to  effect  cancellation  of 
fire  insurance  policy  by  insurer.  1917B- 
910. 

8.     LOSS  AND  ADJUSTMENT. 

a.    Subrogation    of    Insurer    and   Assign- 
ment of  Claims. 

26.  Enforcement  of  Subrogation. 
Burns'  Ind.  Ann.  St.  1914,  §249,  declares 
that  there  shall  be  no  distinction  in  plead- 
ing between  actions  at  law  and  suits  in 
equity,  while  section  251  declares  that 
every  action  must  be  prosecuted  in  the 
name  of  the  real  party  in  interest.  Sec- 
tions 269  and  270  require  all  persons 
having  an  interest  and  desiring  relief  to 
be  joined  as  plaintiffs,  and  permit  the 
joinder  as  defendants  of  persons  who  ere 
necessary  parties  or  have  refused  to  join 
as  plaintiffs.  An  insurer  against  fire  paid 
a    policy    on    property    destroyed    by    fire 


374 


DIGEST. 

19160— 1918B. 


commnnicated  from  a  railroad  train.  It 
is  held  that,  as  the  insurer  was  subrogated 
to  the  rights  of  the  owner,  it  could,  in  its 
own  name,  maintain  an  action  for  the 
destruction  of  the  property,  and  in  case 
the  property  destroyed  was  of  a  greater 
value  than  the  amount  of  the  insurance, 
the  owner  should  be  joined.  Pittsburgh, 
etc.  B.  Co.  V.  Home  Ins.  Co.  (Ind.)  1918A- 
828.  Annotated.) 

27.  Subrogation  to  Eights  Against 
Wrongdoer.  An  insurer  of  property  de- 
stroyed by  fire,  who  has  paid  the  loss,  is 
subrogated  by  equitable  assignment  to  the 
rights  of  the  owner  to  recbrer  against  one 
who  is  responsible  for  the  property's  de- 
struction. Pittsburgh,  etc.  R.  Co.  v.  Home 
Ins.  Co.    (Ind.)    1918A-828. 

28.  Burns'  Ind.  Ann.  St.  1914,  §  5525a, 
making  railroad  companies  liable  for 
the  firing  of  property  by  locomotives, 
and  providing  that  they  shall  have  an  in- 
surable interest  therein,  does  not  destroy 
the  right  of  an  insurer  of  property  fired 
by  a  locomotive  to  be  subrogated  to  the 
rights  of  the  owner  to  recover  damages; 
the  statute  merely  giving  tbe  railroads  an 
insurable  interest  which  they  might  pro- 
tect by  taking  a  policy  in  its  own  name. 
Pittsburgh,  etc.  R.  Co.  t.  Home  Ins.  Co. 
(Ind.)   1918A-828. 

29.  Effect  of  Belease  by  Insured. 
Where,  a  tortfeasor,  who  fired  property, 
with  knowledge  that  the  insurer  had  paid 
the  amount  of  the  policy,  paid  the  insured 
a  further  sum,  and  procured  a  release, 
such  release  is  no  defense  against  an  ac- 
tion by  the  insurer.  Pittsburgh,  etc.  R. 
Co.  V.  Home  Ins.  Co.  (Ind.)   1918A-828. 

b.     Arbitration  and  Appraisement. 

30.  Procedure  at  Arbitration.  Mass. 
Pub.  St.  1882,  c.  188,  §§  1,  6,  7,  now  Rev. 
Laws,  c.  194,  §§1,  6,  7,  the  general  law 
authorizing  reference  to  arbitration,  by 
section  7  provides  that  arbitrators  shall 
meet  and  hear  the  parties,  and  by  section 
1  that  all  controversies  which  may  be  the 
subject  of  an  action  at  law  or  a  suit  in 
equity  may  be  submitted  to  arbitration. 
A  reference  in  writing  solely  to  determine 
the  amount  of  the  loss  under  a  policy  of 
fire  insurance  was  not  limited  to  the 
words  of  the  policy,  but  expressly  incor- 
porated the  statute  by  reference.  It  is 
held  that  the  parties  might  agree  to  a 
reference  broader  or  more  detailed  in  its 
scope  than  the  policy  demanded,  that  the 
requirement  that  the  referees  meet  and 
hear  the  parties  implied  that  relevant 
evidence  should  be  received  and  consid- 
ered, especially  as  the  reference  to  the 
procedure  under  the  general  law  neces- 
earily  imported  into  the  reference  the 
practice,  under  general  arbitration,  of 
hearings    at   which    evidence   is   received. 


Second  Society  v.  Roval  Ins.  Co.  (Mass.) 
1917E-491.  '  (Annotated.) 

31.  Scope  of  Arbitration.  Under  Mass. 
St.  1907,  c.  576,  setting  forth  the  stand- 
ard form  of  policy,  by  section  57  provid- 
ing that  if  buildings  insured  against  loss 
by  fire  are  totally  destroyed,  the  insurer 
shall  not  be  liable  beyond  the  actual  value 
of  the  property  at  the  time  of  the  loss  or 
damage,  in  force  when  the  policy  was  is- 
sued, it  is  proper  for  referees,  to  deter- 
mine the  amount  of  the  loss,  to  refuse  to 
consider  the  cost  to  the  insured  from  the 
tearing  down  of  the  walls  of  the  building 
during  the  fire  at  its  expense  by  public 
officers,  and  after  the  fire  by  itself  at  its 
own  expense,  and  the  increased  cost  of 
rebuilding,  due  to  the  fact  that  under  the 
building  laws  a  new  structure  must  be 
of  more  expensive  materials,  since  tbose 
matters  had  no  relation  to  the  actual 
value  of  the  property.  Second  Society  v. 
Royal  Ins.  Co.  (Mass.)  1917E-491. 

32.  The  refusal  of  referees,  appointed  to 
fix  the  amount  of  loss  under  a  policy  of 
fire  insurance,  to  receive  evidence  as  to  the 
loss  when  the  submission  required  them  to 
listen  to  evidence,  requires  that  the  award 
be  set  aside,  although  an  award  should 
stand  unless  it  primarily  appears  that  the 
alleged  misconduct  has  prejudiced,  or 
may  have  prejudiced,  the  party  complain- 
ing, or  had  violated  the  rules  which  jus- 
tice requires  should  be  observed  to  secure 
the  fair  determination  of  the  matters  in 
dispute.  Second  Society  v.  Roval  Ins.  Co. 
(Mass.)  1917E-491.  (Annotated.) 

33.  Ground  for  Vacating  Award,  In- 
sured, by  written  agreement  submitting  to 
referees  amount  of  its  loss  under  a  policy 
of  fire  insurance,  is  entitled  to  an  honest 
award  free  from  the  taint  of  fraud  or  pre- 
judice, but  mere  inadequacy  of  an  award 
honestly  made  without  mistake  is  no 
ground  for  setting  the  award  aside,  to  jus- 
tify which  the  inadequacy  of  the  award 
must  be  so  strong,  gross,  and  manifest  that 
it  would  be  impossible  to  state  it  to  a  man 
of  common  sense  without  producing  an  ex- 
clamation at  the  inequality  of  it,  so  that 
the  difference  between  the  insured's  al- 
leged value  of  $100,000  and  an  award  of 
$57,604  after  the  referees  had  disallowed 
elements  of  damages,  one  of  which 
amounted  to  at  least  $20,000,  did  not,  of  it- 
self, show  fraud,  bias,  or  prejudice,  so  as 
to  justify  a  setting  aside  of  the  award  on 
the  ground  of  inadequacy,  but  the  parties 
having  chosen  that  tribunal  were  bound 
thereby.  Second  Society  v.  Royal  Ins.  Co. 
(Mass.)   1917E-491. 

34.  Effect  of  Failure  of  Arbitration. 
The  provision  of  a  policy  of  fire  insurance 
for  ascertainment  of  the  amount  of  loss  or 
r'j^mage  by  a  reference  and  award  is  not 
satisfied  by  one  appointment  of  referees, 
and  it  is  not  the  law  that  an  insured  may 


FIRE  INSURANCE. 


375 


recover,  unless  it  appears  that  the  award 
has  failed  through  his  fault.  Second  Soci- 
ety V.  Boyal  Ins.  Co.  (Mass.)   1917E-491. 

35.  Conclusiveness  of  Award.  The  ques- 
tion whether  an  award  of  referees  ap- 
pointed under  a  policy  of  fire  insurance  to 
ascertain  the  amount  of  loss  should  be  set 
aside  may  be  determined  in  the  insured's 
action  of  contract  upon  the  policy,  without 
resort  to  equity,  under  the  rule  that  an 
award  may  be  impeached  at  law  for  mis- 
take of  fact  not  appearing  on  its  face,  and 
in  such  action  the  defendant  might  offer 
to  show  the  validity  of  the  award  in  bar 
to  an  action  thereon.  Second  Society  v. 
Royal  Ins.  Co.  (Mass.)  1917E-491. 

36.  Under  a  policy  of  fire  insurance  that 
if  the  amount  for  which  the  company  was 
liable  was  not  agreed  upon  it  should  be 
ascertained  by  an  award  of  referees,  that 
an  award  in  writing  of  a  majority  should 
be  conclusive,  and  that  such  reference,  un- 
less waived,  should  be  a  condition  prece- 
dent to  any  action  at  law  or  in  equity  to 
recover  for  such  loss,  the  insured's  cause 
of  action  is  upon  the  policy  of  insurance, 
and  not  upon  the  award,  which,  if  valid, 
is  simply  the  evidence  as  to  the  amount  of 
loss.  Second  Society  v.  Eoyal  Ins.  Co. 
(Mass.)  1917E-491. 

c.     Apportionment  of  Loss. 

37.  Building      Incapable      of      Bepalr. 

TMien  an  insured  building  is  injured  by 
fire  to  such  an  extent  as  to  destroy  its  use 
as  a  building  and  require  it  to  be  demol- 
ished or  removed,  the  insured  will  be  en- 
titled to  recover  as  for  a  total  loss.  Such 
construction  of  the  valued  policy  law  does 
not  deprive  the  insurance  company  of  its 
property  without  due  process  of  law.  Din- 
neen  v.  American  Ins.  Co.  (Neb.)  1917B- 
1246. 


d.     Subrogation  to   Eights  of  Mortgagee. 

38.  Subrogation  of  Insurer  to  Rights  of 
Mortgagee,  Where  a  mortgagee  insures 
the  hypothecated  property  at  his  own  ex- 
pense, the  insurer,  paying  a  loss  by  fire  to 
such  mortgagee  to  the  amount  of  the  debt, 
is  subrogated  to  the  mortgagee's  right  in 
such  debt,  since  the  insurance  contracted 
and  paid  for  by  the  mortgagee  in  effect 
makes  the  insurance  company  a  surety  to 
the  holder  of  the  mortgage  for  the  pay- 
ment of  the  debt.  Milwaukee  Mechanics' 
Ins.  Co.  V.  Eamsey  (Ore.)  1917B-1132. 

(Annotated.) 

39.  Eealty  was  insured  against  fire,  the 
loss  being  payable  to  a  mortgagee  as  its  in- 
terest might  appear;  otherwise  to  the  in- 
sured. Within  the  term  of  the  policy  the 
property  was  destroyed  by  fire,  and  upon 
the  mortgagee  and  owner  suing  the  insur- 
ance company  the  mortgagee  recovered 
judgment  for  the   amount   of  its  secured 


debt,  while  the  owner  failed  to  recover 
because  he  had  contracted  to  sell,  violating 
a  policy  restriction.  The  insurance  com- 
pany paid  the  mortgagee's  judgment,  and 
demanded  that  the  mortgagee  assign  to  it 
the  owner's  note  and  mortgage,  which  was 
refused.  Thereupon  the  company  sued  the 
mortgagee  and  the  owner,  claiming  subro- 
gation to  the  rights  of  the  mortgagee 
against  the  owner,  and  seeking  to  fore- 
close the  security  and  recover  the  amount 
of  the  debt.  It  is  held  that  the  insurance 
company  could  not  recover,  since  by  the 
policy  it  agreed  with  the  owner  to  pay  a 
certain  designated  person,  the  mortgagee, 
in  case  of  a  loss,  but  did  not  agree  to  pay 
the  owner's  debt  to  the  mortgagee  as  such. 
Milwaukee  Mechanics'  Ins.  Co.  v.  Eam- 
sey   (Ore.)    1917B-1132.  (Annotated.) 

40.  Subrogation  to  Bigbts  Against  Tort- 
feasor. Where  insured  property  is  burned 
by  the  tortious  act  of  one  not  a  party  to 
the  contract,  the  insurer,  paying  the  loss, 
is  subrogated  pro  tanto  to  the  chose  in 
action  the  payee  has  against  the  tortfeasor 
by  reason  of  his  insurable  interest.  Mil- 
waukee Mechanics'  Ins.  Co.  v.  Eamsey 
(Ore.)  1917B-1132. 

Note. 
Subrogation  of  insurer  to  rights  of  mort- 
gagee.    1917B-I135. 

9.     ACTIONS. 
a.    Pleading. 

41.  Declaration,  in  an  action  of  contract 
upon  a  policy  of  fire  insurance  in  the 
standard  form,  setting  out  a  contract  of 
insurance,  a  total  loss  of  the  property  in- 
sured, together  with  a  compliance  with 
the  condition  precedent  to  the  effect  that 
there  must  be  a  reference  to  ascertain  the 
amount  of  loss  that  the  award  was  invalid, 
insured's  offer  to  proceed  to  a  new  arbitra- 
tion and  the  insurer's  refusal  to  do  so  and 
its  insistence  on  the  validity  of  the  award 
made,  sets  out  a  cause  of  action  on  the 
policy.  Second  Society  v.  Eoyal  Ins.  Co. 
(Mass.)  1917E-491. 

42.  Award  as  Condition  Precedent  to  Be- 
covery  on  Policy.  Under  a  contract  of  in- 
surance, providing  for  the  determination 
of  the  amount  of  loss  by  award  of  referees, 
and  that  an  award  in  writing  of  a  majority 
should  be  conclusive,  and  that  such  refer- 
ence, unless  waived  by  the  parties,  should 
be  a  condition  precedent  to  any  right  of 
action  at  law  or  in  equity  to  recover  such 
loss,  the  reference,  and  not  the  award, 
was  the  condition  precedent  to  an  action 
at  law,  so  that  tte  declaration,  alleging 
a  reference  and  a  definite  refusal  to  join 
in  another  reference,  is  not  defective  in 
failing  to  allege  a  valid  award.  Second 
Society  v.  Eoyal  Ins.  Co.  (Mass.)  1917E- 
491. 

43.  Avoiding  Arbitration  for  Fraud.  Al- 
legations  in   an   action   of   contract  on   a 


376 


policy  of  fire  insurance  that  the 
quacy  of  the  award  arose  from  the  fraud, 
bias,  and  prejudice  of  the  referees,  without 
alleging  definite  acts  constituting  fraud, 
bias,  or  prejudice,  are  not  enough  to  re- 
quire judicial  inquiry.  Second  Society  v. 
Royal  Ins.  Co.  (Mass.)  1917E-491. 

44.  Avoidance  of  Arbitration.  An  alle- 
gation, in  an  action  of  contract  upon  a 
p<^icy  of  fire  insurance  in  the  standard 
form,  that  no  notice  of  hearings  was  given 
to  the  plaintiff  by  the  referees  to  fix  dam- 
age, without  alleging  that  no  hearings 
were  given  as  required  by  the  terms  of 
the  reference,  nor  that  the  plaintiff  did 
not,  in  fact,  have  notice  of  the  hearings, 
or  was  not  heard,  does  not  show  that  any 
substantial  right  of  the  plaintiff  was 
affected;  and  no  intendment  in  this  re- 
spect can  be  made  in  favor  of  the  pleader. 
Second  Society  t.  Eoyal  Ins.  Co.  (Mass.) 
1917E-491. 

b.    Sufliciency  of  Evidence. 

45.  "What  Constitutes  Fire.  Evidence 
that,  when  the  person  in  charge  of  a  steam 
boiler  used  in  a  laundry  left  it  at  night, 
it  was  over  half  full  of  water,  the  gas  by 
which  it  was  heated  being  turned  off,  and 
was  then  in  good  condition,  and  that  when 
the  building  was  unlocked  the  next  morn- 
ing no  fire  was  burning  under  the  boiler, 
but  it  was  empty  of  water,  and  was  ruined 
by  the  action  of  excessive  heat,  nothing 
being  shown  as  to  whether  any  one  con- 
nected with  the  business  returned  during 
the  night,  does  not  justify  an  inference  of 
an  intentional  injury  to  the  property  hav- 
hig  been  done  by  some  one,  who  gained 
wrongful  entrance  to  the  building.  Mc- 
Graw  V.  Home  Ins.  Co.  (Kan.)  1916D-227. 

(Annotated.) 

e.    Damages. 

46.  Penalty  for  Fallnre  to  Pay  In- 
surance. Insured  and  insurer  agreed  upon 
the  amount  of  a  fire  loss.  Thereafter  the 
insurer  denied  liability  on  the  ground  that 
the  property  was  encumbered  at  the  time 
the  poliey  was  written.  The  original  com- 
plaint prayed  recovery  for  the  amounts 
named  in  the  face  of  the  policies,  but  the 
insured  shortly  amended,  praying  recov- 
ery for  the  amonnts  agreed  upon.  It  is 
held  that,  as  the  insurer  contested  all  lia- 
bility, the  insured  could  recover  the  attor- 
ney's fees  and  penalties  provided  by  Ark. 
Acts  1905,  p.  307.  Great  Southern  Fire 
Ins.  Co.  V.  Bums  (Ark.)  1917B-497. 

TTELE   XNSUBANCE  PATROL. 

Liability  for  torts  of  employees,  see  Mas- 
ter and  Servant,  365. 

FIREMEN. 
See  Mnnlcipal  Corporations. 


DIGEST. 

1916C— 1918B. 
inade- 


FIRES. 

1.  Regulations  in   General. 

2.  Fires  Set  by  Railroads. 

a.  Care  Required. 

b.  Proximate  Cause. 
c  Actions. 

(1)  Pleading. 

(2)  Admissibility  of  Evidence. 

(3)  Sufficiency  of  Evidence. 
d.  Statutes  Imposing  Liability. 

Volunteer  fire  company,  charitable  corpo- 
ration, see  Charities,  7. 

Liability  of  innkeeper  for  injury  to  guest, 
see  Innkeepers,  8-10. 

Duty  to  provide  fire  escapes,  see  Landlord 
and  Tenant,  13. 

Effect  of  fire  damage  to  leasehold,  see 
Landlord  and  Tenant,  16. 

Fireman  as  within  "Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  242. 

Liability  of  railroad  for  fire  started  by  its 
laborers'    campfire,    see    Master    and 

^      Servant,  364. 

City  fire  departments,  see  Municipal  Cor- 
porations, 161-166. 

Owner's  duty  to  extinguish,  see  Negligence, 
17. 

Duty  to  guard  stationary  engine,  see  Neg- 
ligence, 33. 

Spark  from  sawmill  engine,  see  Negli- 
gence, 91. 

Statute  imposing  absolute  liability,  see 
Railroads,  61^3. 

Liability  of  railroads,  title  of  statute,  see 
Statutes,  13. 

Duty  of  street  car  employees  as  to  fire  en- 
gines, see  Street  Railwasrs,  33. 

Failure  to  furnish  water,  liability,  see 
Waterworks  and  Water  Companies,  10. 

1,     REGULATIONS  IN  GENERAL. 

1.  Fire  Escapes.  Though  111.  Factory 
Act,  §  14,  required  the  equipping  of  fac- 
tories and  mercantile  establishments  with 
sufficient  and  reasonable  fire  escapes,  the 
fact  that  a  fire  escape  was  built  pursuant 
to  the  statute  does  not  show  that  it  was 
adequate;  the  statute  not  prescribing  any 
standard  for  fire  escapes.  Lichtenstein  v. 
L.  Fish  Furniture  Co.  (111.)  1918A-1087. 

2.  111.  Factory  Act  (Kurd's  Rev.  St. 
1913,  c.  48,  §  102),  §  14,  requiring  suffi- 
cient and  reasonable  fire  escapes  to  be 
furnished  in  factories,  mercantile  estab- 
lishments, etc.,  is  valid.  Lichtenstein  v. 
L.  Fish  Furniture  Co.  (111.)   1918A-1087. 

3.  Neither  elevator  shafts  nor  inside 
stairways,  both  of  which  serve  as  means 
of  spreading  fire,  can  be  considered  as 
fire  escapes  within  111.  Factory  Act,  §  14, 
requiring  factories,  etc.,  to  be  equipped 
with  fire  escapes.  Lichtenstein  v.  L.  Fish 
Furniture  Co.   (111.)   1918A-1087. 

4.  A  master  is  bound  to  furnish  fire 
escapes  under  111.  Factory  Act,  §  14,  requir- 
ing factories  and  mercantile  establishments 
to   be   equipped  with   fire   escapes,   though 


FIRES. 


877 


no  notice  to  famish  same  tas  been  given 
by  a  factory  inspector.  Lichtenstein  t. 
L.  Fish  Furniture  Co.  (HI.)  1918A-1087. 

5.  In  an  action  for  the  death  of  an 
employee  based  on  defendant's  violation 
of  111.  Factory  Act,  §  14,  requiring  the 
furnishing  of  sufficient  and  adequate  fire 
escapes  in  factories,  mercantile  establish- 
ments, etc.,  an  instruction  that  there 
was  a  statute  making  it  the  duty  of 
every  person  employing  servants  in  a 
factory  9t  mercantile  establishment  to 
exercise  reasonable  care  in  furnishing  to 
such  servants  sufficient  and  reasonable 
means  of  escape  in  case  of  fire,  and  to 
exercise  reasonable  care  in  keeping  the 
means  of  escape  free  from  obstruction,  is 
not  erroneous;  the  master  in  such  case  be- 
ing liable  if  the  fire  escapes  were  insuffi- 
cient or  if  they  were  obstructed.  Lichten- 
stein V.  L.  Fish  Furniture  Co.  (HI.)  1918A- 
1087. 

2.     FIRES  SET  BY  RAILROADS, 
a.     Care  Required. 

6.  The  placing  by  a  railroad  company  of 
bunk  cars  for  the  use  of  its  laborers  upon 
its  right  of  way,  jfdjacent  to  plaintiff's 
property,  does  not  of  itself  create  a  nui- 
sance so  as  to  render  the  railroad  liable 
for  loss  caused  by  a  fire  kindled  by  the 
laborers  upon  the  right  of  way  to  heat 
water  to  wash  their  clothes,  and  communi- 
cated to  plaintiff's  property.  Excelsior 
Products  Mfg.  Co.  v.  Kansas  City  So.  R. 
Co.  (Mo.)   1917B-1047.  (Annotated.) 

7.  Where  the  conductor  of  a  railroad 
passenger  train  observed  a  fire  upon  the 
right  of  way  kindled  by  laborers  for  their 
own  purjwse  and  not  obviously  dangerous 
to  adjoining  premises,  the  railroad  is  not 
liable  for  his  failure  to  stop  his  train  and 
extinguish  the  fire,  since  the  circumstances 
did  not  impose  such  a  duty  upon  him. 
E'xcelsior  Products  Mfg.  Co.  v.  Kansas 
City  So.  R.  Co.  (Mo.)  1917B-1047. 

8.  The  knowledge  of  railroad  laborers  who 
kindled  a  fire  on  a  railroad  right  of  way 
for  a  purpose  outside  the  scope  of  their 
employment  is  not  knowledge  of  the  fire 
by  the  railroad  company,  which  requires 
it  to  use  due  care  to  prevent  the  spread 
of  the  fire.  Excelsior  Products  Mfg.  Co. 
▼.  Kansas  City  So.  R.  Co.  (Mo.)  1917B- 
1047. 

b.  Proximate   Cause. 

9.  The  negligence  of  a  railroad  company 
in  permitting  comoustibles  to  accumulate 
on  its  right  of  way  is  not  the  proximate 
cause  of  the  burning  of  adjoining  prop- 
erty, where  the  fire  was  started  by  rail- 
road laborers  on  the  right  of  way  for  their 
own  purposes,  and  there  was  no  evidence 
that  the  rubbish  became  ignited  and  there- 
by communicated  the  fire  to  the  plaintiff's 
property.  Excelsior  Products  Mfg.  Co.  v. 
Kansas  City  So.  R.  Co.  (Mo.)  3917B-1047. 

(Annotated.) 


C.     Actions. 
(1)     Pleading. 

10.  Under  Bums'  Ind.  Ann.  St.  1914, 
§  5525a,  declaring  that  railroad  companies 
shall  be  responsible  to  every  person  whose 
property  may  be  destroyed  by  fire  com- 
municated by  locomotives,  and  that,  in  all 
actions  instituted  under  the  act,  the  bur- 
den of  proving  contributory  negligence 
shall  be  on  the  defendant,  a  complaint 
seeking  to  recover  for  the  firing  of  prop- 
erty by  a  railroad  company  need  not  aver 
the  negligence  of  the  company  or  plain- 
tiff's freedom  from  contributory  negli- 
gence. Pittsburgh,  etc.  R.  Co.  v.  Homo 
Ins.  Co.  (Ind.)  1918A-828. 

11.  Liability  of  Railroad.  In  an  action 
under  Burns'  Ind.  Ann.  St.  1914,  §§  5525a 
and  5525b,  which  impose  upon  a  railroad 
company  liability  for  fires  communicated 
by  locomotives,  regardless  of  its  negli- 
gence, the  complaint  need  not  allege  the 
duty  of  the  railroad  company  to  exercise 
care  to  protect  plaintiffs  property,  as 
would  be  necessary  if  negligence  were  re- 
lied upon.  Pittsburgh,  etc.  R.  Co.  v.  Chap- 
T>ell  (Ind.)  1918A-627. 

(2)     Admissibility  of  Evidence. 

12.  Condition  of  Locomotive  at  Anotber 
Time.  The  property  burned  was  a  choco- 
late factory  and  its  contents.  There  was 
evidence  that  the  fire  originated  soon 
after  a  mixed  train  passed  the  factory 
going  east  early  in  the  morning  and  that 
the  engine  was  working  steam  when  it 
passed.  Evidence  that  the  same  engine 
when  going  west  the  evening  before  threw 
fire  when  working  steam  was  admissible. 
Hollinger  v.  Missouri,  etc.  R.  Co.  (Kan.) 
1916D-802. 

(3)     Sufficiency  of  Evidence. 

13.  Railroads — Evidence  Sufficient.  Find- 
ings that  the  fire  was  communicated  by 
the  engine  referred  to  and  of  damages 
closely  approximating  the  totals  of  the 
schedules  attached  to  the  petition  were 
sufficiently  sustained  by  the  evidence. 
Hollinger  v.  Missouri,  etc.  E.  Co.  (Kan.) 
1916D-802. 

d.     Statutes  Imposing  Liability. 

14.  Mo.  Rev.  St.  1909,  §§  3150,  3151, 
making  railroads  liable  for  fires  started 
by  engines  and  those  communicated  by  the 
ignition  of  dry  vegetation  negligently  per- 
mitted to  remain  on  the  right  of  way,  does 
not  make  the  railroad  liable  for  a  fire 
kindled  by  its  laborers  on  the  right  of  way 
outside  the  scope  of  their  employment  and 
communicated  directly  to  adjoining  prop- 
erty without  the  ignition  of  rubbish  upon 
the  right  of  way.  Excelsior  Products 
Mfg.  Co.  V.  Kansas  City  So.  R.  Co.  (Mo.) 
1917B-1047.  (Annotated.) 


378 


DIGEST. 

1916C— 1918B. 


15.  Eailroads— Statutory  Liability  for 
Fires  —  Enforcement  in  Another  State. 
The  statute  of  the  state  of  Missouri  mak- 
ing railroad  corporations  responsible  in 
damages  for  loss  by  fire  communicated  by 
their  engines  is  compensatory  and  reme- 
dial and  may  be  enforced  in  an  action  for 
such  damages  prosecuted  in  this  state. 
HoUinger  v.  Missouri,  etc.  B.  Co.  (Kan.) 
1916D-802. 

16.  Statute  Imposing  Absolute  Liability. 
Bums'  Ind.  Ann.  St.  1914,  §  5525a,  making 
railroad  companies  liable  for  fires  caused 
by  its  locomotives,  and  providing  that 
contributory  negligence  shall  be  a  matter 
of  defense,  is  not  invalid  as  working  an 
impairment  of  the  obligation  of  a  con- 
tract, because  at  the  time  the  railroad  ac- 
quired its  right  of  way,  and  at  the  present, 
it  is  authorized  to  propel  its  trains  by 
steam  power.  Pittsburgh,  etc.  B.  Co.  v. 
Home  Ins.  Co.  (Ind.)  1918A-828. 

FISCAL  MANAGEMENT. 
See  States,  5-7. 

FISH  AND  GAME. 

1.  Eight  to  Take  Fish,  378. 

2.  Statutory  Begulations,  3J8. 

3.  Offenses"  Against  Fishing  Laws,  380. 

4.  Interference  With  Hunting  Bights,  380. 

5.  State's  Title  to  Wild  Game,  380. 

Property  rights  in  inclosed  deer  herd,  see 

Animalw,  21. 
Killing  deer  in  defense  of  property,  see 

Animals,  22. 
Domesticated  wild  fowL  see  Animals,  20, 

23-26. 

1.     BIGHT  TO  TAKE  FISH. 

1.  Bight  of  Property  in  Fish.  Where 
one  catches  fish  in  public  waters  and  con- 
fines them  in  a  private  pond  having  no 
outlet  to  public  waters,  he  becomes  the 
owner  of  such  fish  and  may  recover  their 
value  from  another  wrongfully  taking 
them  from  his  possession.  Murphy  v. 
Hitchcock  (Hawaii)  1917B-976. 

(Annotated.) 

2.  Sale  of  Leasehold  Interest  in  Pond. 
T^sh  in  a  private  pond,  unconnected  with 
public  waters,  do  not  pass  by  sale  of  a 
leasehold  interest  in  the  pond  made  under 
execution,  the  levy  and  notice  of  sale  be- 
ing silent  as  to  the  fish,  and  the  execution 
defendant  being  admitted  to  be  the  owner 
of  the  fish  at  the  time  of  the  lew  and  sale. 
Murphy  v.  Hitchcock  (Hawaii)  1917B- 
976. 

2.     STATUTOBY  BEGULATIONS. 

3.  Validity  of  Statute,  Vt.  Const,  c.  2, 
§  63,  provides  that  the  inhabitants  of  a 
state  shall  have  liberty  in  seasonable  times 
to  hunt  on  their  own  lands  and  others  not 


inclosed,  and  take  fish  in  all  waters  under 
proper  regulations,  and  chapter  1,  art.  5, 
provides  that  the  "people  of  this  state  by 
their  legal  representatives  have  the  sole 
.  .  .  right  of  governing  and  regulating  the 
internal  police  of  the  same."  Held,  that 
article  5  authorized  the  enactment  of 
Acts  Vt.  1912,  No.  201,  requiring  hunting 
licenses,  section  1  of  whi-ch  provides  that 
the  word  "resident"  as  used  in  the  a«t 
which  provides  that,  if  applicant  is  a  bona 
fide  resident  or  owner  of  improved  realty 
of  a  certain  taxable  value,  he  shall  pay  a 
certain  fee  shall  "cover  all  citizens  of  the 
United  States"  living  in  the  state  for  not 
less  than  6  months,  even  though  the  sec- 
tion is  considered  to  exclude  a  resident 
aUen.     Bondi  t.  MacKay  (Vt.)  1916C-130. 

(Annotated.) 

4.  Treaties — Bight  of  Eesident  Alien — 
Exclusion  from  Privilege  of  Hunting.    The 

treaty  between  the  United  States  and 
Italy  (Feb.  26,  1871,  17  Stat.  845)  pro- 
viding that  citizens  of  each  country  shall 
enjoy  the  same  rights  and  privileges  which 
are  granted  to  the  natives  is  not  violated 
by  Acts  Vt.  1912,  No.  201,  §  1,  providing 
that  the  word  "resident"  as  used  in  the 
act  which  related  to  hunters'  licenses  is 
intended  to  include  all  citizens  of  the 
United  States,  though  the  section  con- 
strued excludes  from  obtaining  a  license 
an  Italian  subject  who  is  both  a  resident 
and  a  taxpayer.  Bondi  v.  MacKay  (Vt.) 
1916C-130. 

5.  A  hunting  license  fee  of  $10.50  re- 
quired by  Acts  Vt.  1912,  No.  201,  §  48,  of 
nonresidents  is  not  unreasonable.  Bondi 
V.  MacKay  (Vt.)  1916C-130. 

(Annotated.) 

6.  Acts  Vt.  1912,  No.  201,  §  1,  providing 
that  the  word  "resident"  as  used  in  the 
act  which  requires  one  hunter's  license  fee 
of  a  bona  fide  resident  or  property  owner, 
and  another  in  case  of  a  nonresident,  shall 
cover  all  citizens  of  the  United  States 
living  in  the  state  for  6  months,  does  not 
contravene  Const.  U.  S.  Amend.  14,  rela- 
ting to  the  equal  protection  of  the  law, 
even  if  construed  to  exclude  a  resident 
alien  and  taxpayer  from  obtaining  a 
license.  Bondi  v.  MacKay  (Vt.)  1916C- 
130.  (Annotated.) 

7.  The  legislature  may  regulate  the 
right  to  take  game,  with  respect  to  its  de- 
crease as  well  as  its  preservation  and  in- 
crease. Bondi  V.  MacKay  (Vt.)  1916C- 
130.  (Annotated.) 

8.  Requirement    of    License    to    Hunt. 

Acts  Vt.  1912,  No.  201.  §  47,  provides  that, 
if  the  applicant  for  a  hunter's  license  is  a 
bona  fide  resident  of  the  state,  or  owns 
improved  realty  listed  for  taxes  at  $1,000, 
he  shall  pay  75  cents.  Section  48  pro- 
vides that,  if  he  is  a  nonresident,  and  docs 
not  own  improved  realty  of  a  certain  valu- 
ation, he  shall  pay   $10.     Section   1  pro- 


FISH  AND  GAME. 


379 


videa  that  the  word  "resident"  as  used  in 
the  act  is  intended  to  cover  "all  citizens 
of  the  United  States  who  have  lived  in 
this  state  for  not  less  than  six  months" 
before  applying,  and  that  the  term  "non- 
resident" shall  include  all  persons  not  com- 
ing within  the  definition  of  "resident." 
Section  4,  subd.  3,  provides  that  game  or 
fish  protected  by  law,  if  taken  by  a  non- 
resident, may  be  transported  without  the 
state  as  provided.  Held,  that  one  who 
had  for  14  years  been  a  bona  fide  resident 
and  taxoayer  of  the  state,  though  not  on 
real  estate  of  the  required  value,  but  was 
I  not  a  citizen  of  the  United  States,  being 
a  subject  of  Italy,  was  not  entitled  to  a 
license.  Bondi  v,  MacKay  (Vt.)  1916C- 
130. 

9.  Wash.  Laws  1897,  p.  82,  §  1,  and  Laws 
1899,  p.  277,  §  1,  making  it  unlawful  for 
anyone  at  a  specified  season  to  take  or 
destroy  any  deer.  Laws  1901,  p.  279,  §§  1, 
2,  limiting  the  number  of  deer  that  may 
be  killed,  Laws  1903,  p.  94,  §  1,  making  it 
unlawful  for  any  person  at  a  certain  sea- 
son to  take  or  "possess"  any  deer.  Laws 
1905,  p.  277,  providing  for  licenses,  and 
Laws  1911,  p.  396,  making  it  unlawful  to 
take  or  possess  any  deer,  did  not  cover  the 
possession  of  deer  which  were  reclaimed 
and  kept  in  an  inclosure.  Graves  v.  Dunr 
lap  (Wash.)   1917B-944.  (Annotated.) 

10.  Regulation  of  Salmon  Fishing.     Ore. 

L.  O.  L.  §§  5293,  5298,  regulating  fishing 
for  salmon,  sturgeon,  or  other  anadromous 
fish  in  the  waters  of  the  state,  is  not  class 
legislation  within  the  prohibition  of  Const, 
art.  1,  §  20,  providing  "no  laws  shall  be 
passed  granting  to  any  citizen,  or  class  of 
citizens,  privileges  or  immunities,  which, 
upon  the  same  terms,  shall  not  equally 
belong  to  all  citizens,"  since  the  statute 
protects  the  right  of  all  persons  possessing 
the  requisite  qualifications  who  pursue  the 
salmon  fishery  under  similar  circumstances 
and  conditions.  State  v.  Catholic  (Ore.) 
1917B-913. 

11.  Ore.  L.  O.  L.  §  5298,  regulating  fish- 
ing for  salmon,  etc,  in  the  waters  of  the 
state,  is  not  in  violation  of  Const.  U.  S. 
Amend.  14  (9  Fed.  St.  Ann.  392),  provid- 
ing that  no  state  shall  make  a  law  to 
abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States,  since  a  busi- 
ness, to  be  protected  from  interference  by 
state  legislation  under  such  amendment, 
must  be  a  calling  which  any  person  can 
pursue  anywhere  in  the  United  States  as 
of  common  right,  while  the  qualified 
ownership  of  roving  fish  in  navigable 
waters  within  the  state  is  in  that  sov- 
ereignty in  trust  for  its  citizens  alone. 
State  v.  Catholic  (Ore.)  1917B-913. 

12.  Regulation  of  Method  of  Taking 
Fish.  Laws  Wash.  1915,  p.  SO,  §  36,  pro- 
viding that  it  shall  be  unlawful  to  oper- 
ate m  any  of  the  waters  of  Puget  Sound 
any  purse  seine,  drag  seine,  or  other  like 


seine  or  net  of  a  greater  length  than  500 
feet  with  meshes  less  than  2i  inches 
stretch  measure,  and  after  January,  1916, 
3  inclj#3s  stretch  measure,  and  that  it  shall 
also  be  unlawful  to  operate  any  gill  net 
of  a  greater  length  than  500  feet  with 
meshes  less  than  5  inches  stretch  measure, 
does  not,  because  it  permits  the  use  of 
purse  and  drag  seines  of  over  500  feet  in 
length  with  a  smaller  mesh  than  the  mesh 
required  with  respect  to  gill  nets  of  the 
same  length,  deny  to  gill  net  fishermen  the 
equal  protection  of  the  laws,  in  violation 
of  Const.  U.  S.  Amend.  14,  or  grant  to 
purse  and  drag  seine  fishermen  privileges 
and  immunities  which  it  withholds  from 
gill  net  fishermen,  in  violation  of  Const. 
Wash.  art.  1,  §  12,  as  it  discriminates  only 
as  to  appliances  used,  and  permits  every 
person  to  use  each  class  of  appliances  un- 
der exactly  the  same  conditions  and  re- 
strictions, and  it  does  not  affect  the  valid- 
ity of  the  act  that  its  operation  will  en- 
tirely destroy  the  vocation  of  the  gill  net 
fishermen,  assuming  such  to  be  its  effect. 
Barker  v.  State  Pish  Commission  (Wash.) 
1917D-810.  (Annotated.) 

13.  The  classification  of  territory  in 
game  and  fish  laws  preventing  hunting  or 
fishing  in  a  portion  of  the  state  and  per- 
mitting it  elsewhere  in  the  state  is  not  a 
discrimination  between  or  a  classification 
of  persons  in  violation  of  the  state  or 
federal  constitution.  Barker  v.  State  Msh 
Commission  (Wash.)   1917D-810. 

(Annotated.) 

14.  Enforcement  of  Game  Law.  Ac- 
cused, who  was  charged  with  unlawfully 
shooting  ducks  from  a  point  in  the  open 
sea  near  an  island  within  the  jurisdiction 
of  the  state,  cannot  complain  that  the 
warrant  against  him  was  directed  to  and 
served  by  a  fish  warden,  for  Laws  Me. 
1913,  c.  206,  §  45,  declares  that  the  general 
supervision  of  the  sea  and  shore  fisheries 
is  extended  to  islands  and  to  game  and 
birds  found  thereon,  and  that  such  depart- 
ment shall  have  charge  of  the  enforcement 
of  laws  relating  to  sea  and  shore  fisheries 
and  fish  wardens,  who  are  empowered  to 
enforce  all  laws  relating  thereto,  and  have 
the  same  power  to  serve  criminal  process 
as  sheriffs.  State  v.  Sawyer  (Me.)  1917D- 
650. 

15.  Validity  of  License  Law.  The  power 
and  discretion  of  the  legislature  to  control 
and  regulate  the  sul)ject  of  hunting  game 
is  not  limited  by  the  organic  law,  and  the 
subject  regulated  may  be  as  restricted  in 
manner  and  extent  as  the  legislature 
deems  advisable;  but  the  regulations 
should  affect  alike  all  persons  similarly 
situated  and  conditioned  with  reference 
to  the  particular  regulations.  State  v. 
Philips  (Fla.)  1918A-138.         (Annotated.) 

16.  The  discretion  of  the  legislature  in 
classifying  those  who  are  to  be  affected  by 
a  regulation  for  the  protection  of  game. 


380 


DIGEST. 

1916C— 1918B. 


will  not  be  disturbed  by  the  courts  where 
the  classification  haa  some  just,  fair  and 
practical  basis  in  real  dififerences  with  ref- 
erence to  the  subject  regulated;  and  all 
doubts  will  be  resolved  in  favor  of  the 
validity  of  a  statute.  State  v.  Philips 
(Fla.)  1918A-138.  (Annotated.) 

17.  Sections  26,  27,  28,  29,  30,  31  and  33 
of  chapter  6969,  Fla.  Acts  of  1915,  must  be 
eliminated  as  clearly  violative  of  the  pro- 
visions of  the  constitution  relative  to  the 
appointment  of  officers  and  fixing  their 
compensation,  but  such  elimination  will 
not  render  the  entire  act  inoperative. 
State  V.  Philips  (Fla.)  1918A-138. 

(Annotated.) 

18.  The  provisions  of  chapter  6969  re- 
quiring residents  of  the  state  to  pay  a 
license  tajc  of  $3  to  hunt  game  in  each 
countv  of  the  state  other  than  the  county 
of  residence,  and  requiring  residents  of  a 
county  to  pay  only  $1  as  a  license  tax  for 
hunting  game  in  such  county,  are  not  on 
their  face  purelv  arbitrary  and  unlawful. 
State  V.  Philips  '(Fla.)  1918A-138. 

(Annotated.) 

19.  Federal  Regulation  of  Migratory 
Birds.  Act  Cong.  March  4,  1913,  c.  145, 
37  Stat.  847  (3  Fed.  St.  Ann.  2d  ed.  412), 
declaring  that  all  migratory  and  insectivor- 
ous birds  shall  be  deemed  within  the  cus- 
tody and  protection  of  the  government  of 
the  United  States,  and  shall  not  be  de- 
stroyed or  taken  contrary  to  regulations 
providing  for,  and  providing  for  regula- 
tions of  the  taking  of  such  game,  purports 
to  regulate  exclusively  the  matter  and  to 
deprive  the  states  of  control  over  such 
game.     State  v.  Sawyer  (Me.)  1917D-650. 

(Annotated.) 

20.  Federal  Begolation  of  Game.  As 
the  states  retained  all  powers  not  granted 
to  the  federal  government,  the  states,  as 
sovereignties,  have  the  exclusive  right  to 
regulate  the  taking  and  capturing  of  wild 
game,  unless  such  right  is  conferred  upon 
the  federal  government.  State  v.  Sawver 
(Me.)  1917D-650.  (Annotated.) 

21.  The  commerce  clause  of  the  consti- 
tution, giving  Congress  the  right  to  regu- 
late commerce  with  foreign  nations,  among 
the  several  states,  and  with  the  Indian 
tribes,  does  not  warrant  Act  Cong.  March 
4,  1913,  purporting  to  regulate  the  killing 
and  taking  of  migratory  and  insectivorous 
birds  within  the  several  states;  the  killing 
or  taking  of  such  birds  not  being  an  act 
of  "commerce."  State  v.  Sawyer  (Me.) 
1917D-650.  (Annotated.) 

22.  VaUdity  of  Fishing  Laws.  That 
"Wash.  Laws  1915,  p.  80,  §  36,  is  unwise 
or  unjust,  in  that  the  three-inch  mesh 
thereby  permitted  to  be  used  in  purse 
and  drag  nets  is  much  more  destructive 
to  fish  than  the  five-inch  mesh  permitted 
to  be  used  in  gill  nets,  is  a  matter  with 
which    the    court    has    nothing    to    do,    as 


it  does  not,  for  this  reason,  discrimin- 
ate between  persons  or  grant  privileges  or 
immunities  to  any  class  and  withhold  them 
from  another,  nor  deny  to  any  person  the 
equal  protection  of  the  laws.  Barker  v. 
State  Fish  Commission  (Wash.)  1917D- 
810.  (Annotated.) 

Notes. 

Validity  of  statute  requiring  license  to 
hunt  game.     1916C-134. 

Validity  and  construction  of  federal 
statutes  protecting  o-ame.     1917D-654. 

Validity  and  construction  of  statute 
regulating  method  of  taking  fish.  1917D- 
814. 

3.  OFFENSES       AGAINST       FISHING 

LAWS. 

23.  Fishing  Without  License.  That  the 
defendant,  convicted  under  Ore.  L.  O.  L. 
§  5298,  regulating  fishing  for  salmon,  etc., 
in  the  waters  of  the  state,  of  fishing  for 
salmon  in  the  Columbia  river  without  a 
license,  was  employed  by  one  properly 
licensed,  is  not  a  defense.  State  v.  Cath- 
oUc      (Ore.)  1917B-913. 

4.  INTEEFEEENCE  WITH   HUNTINa 

RIGHTS. 

24.  Effect  oi  Conveyance  of  Fishing  and 
Hunting  Eights.  Where  the  right  of  non- 
residents to  shoot  or  fish  in  the  state  can 
exist  only  as  incident  of  their  ownership 
of  land  therein  on  which  they  hunt  or  fish, 
a  deed  to  them  granting  only  the  right  to 
hunt  and  fish,  and  this  to  revert  on  aban- 
donment of  the  property,  gives  no  right 
as  against  the  game  law.  Stokes  v.  State 
(Ark.)   1917D-657. 

5.  STATE'S   TITLE   TO   WILD   GAME. 

25.  Wild  game  belongs  to  the  people  of 
the  state  in  their  collective  capacity  ex- 
cept so  far  as  private  ownership  is  ac- 
quired under  the  Constitution.  B'ondi  v. 
MacKay  (Vt.)   1916C-130. 

(Annotated.) 

26.  Title  to  game  belongs  to  the  state 
in  its  sovereign  capacity,  in  trust  for  the 
use  and  benefit  of  its  people,  which, 
through  its  legislature,  has  the  right  to 
control  the  killing,  taking,  and  use  of 
game,  so  long  as  the  rights  guaranteed 
either  by  the  state  or  federal  constitu- 
tion are  not  encroached  upon.  Graves  v. 
Ihanlap   (Wash.)    1917B-944. 

(Annotated.) 

27.  Wild  Game.  The  purpose  of  Acts 
34th  Iowa  Gen.  Assem.  c.  118,  as  amended 
by  Acts  35th  Gen.  Assem.  c.  206,  decla- 
ring that  the  ownership  of  and  title  to  all 
wild  game  shall  be  in  the  state,  and  that 
no  wild  game  shall  be  killed  unless  the  per- 
son so  doing  shall  consent  that  the  title 
shall  remain  in  the  state,  etc.,  is  to  estab- 


FIXTURES— FOOD. 


381 


lish  title  in  the  state  to  all  wild  game, 
dead  or  alive.  State  v.  Ward  (Iowa) 
1917B-978.  (Annotated.) 

28.  Nor  does  the  general  welfare  clause, 
declaring  that  Congress  shall  have  power 
to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United 
States,  for  wild  game  is  not  property  be- 
longing to  the  federal  government.  State 
V.  Sawyer  (Me.)  1917D-650. 

(Annotated.) 

FIXTUBES. 

See  Sales,  61. 

Compensation    for    in    condemnation,    see 
Eminent  Do^iain,  41. 

1.  Gas  and  Electric  Light  Accessories. 
Combination  gas  and  electric  light  chan- 
deliers and  brackets,  mantels,  stationary 
washstands,  bathtubs,  etc.,  attached  to  a 
building  by  the  owner  thereof  for  the  ser- 
vice and  exploitation  of  said  building,  are 
immovable  by  destination,  and  pass  with 
the  house  when  it  is  mortgaged  or  sold,  if 
not  reserved  by  the  owner.  Scovel  v. 
Shadyside  Co.  (La.)  1917B-178. 

(Annotated.) 

2.  Statutory  Enumeration  of  Fixtures. 
The  instances  given  in  article  468,  La. 
Civil  Code,  of  immovables  by  destination 
are  merely  illustrative,  and  are  not  restric- 
tive. Scovel  V,  Shadyside  Co.  (La.)  1917B- 
178. 

3.  Intent  In  Attaching  Property.  After 
movables  have  become  immobilized  by 
destination  the  mere  change  of  mind  on 
the  part  of  the  former  owner  cannot,  of 
itself,  deimmobilize  them  as  against  a  pur- 
chaser without  notice.  It  is  the  same  with 
reference  to  a  mortgage.  Scovel  v.  Shady- 
side Co.  (La.)  1917B-178. 

4.  Manner  of  Attaclunent  as  Controlling 
Intent.  Whilst  the  purpose  for  which 
tumgs  are  placed,  by  the  owner,  on  "a 
tract  of  land,"  ordinarily  determines 
whether  or  not  they  acquire  the  immobil- 
ity of  the  land,  the  immobility  vel  non  of 
things  placed  in  a  tenement  or  building 
(^other,  perhaps,  than  a  manufacturing  es- 
tablishment which,  legally  speaking,  has 
become  part  of  the  tract  of  land  upon 
which  it  is  erected)  depends,  finally,  upon 
the  manner  in  whi^h  they  are  attached 
thereto.  Scovel  v.  Shadyside  Co.  (La.) 
1917B-178. 

5.  Gas  or  Electric  Light  Plant  and  Ac- 
cessories. Combination  gas  and  electric 
light  chandeliers  and  brackets  which  form 
parts  or  accessories  of  gas  and  electric 
light  plants  established,  the  one,  in  the 
cellar  of  the  residence  on  a  plantation, 
and  the  other,  in  the  sugar  house,  and 
without  which  those  plants  would  be  un- 
able to  render  the  service  for  which  thev 
were  established,  partake  of  the  immobil- 
ity of  the  plants,  and  cannot  be  reclaimed 
by  the  vendor  of  the  plantation,  on  the 
ground  that  they  are  not  permanently  at- 


tached to  the  house,  but  may  be  unscrewed 
without  injury  to  it  or  themselves.  Scovel 
V.  Shadyside  Co.  (La.)  1917B-178. 

(Annotated.) 

6.  Bevocatlon  of  License  to  Sever.  A 
purchaser's  implied  license  to  enter  and 
sever  from  the  realty  a  chattel  sold,  such 
as  a  building,  would  be  revoked  by  the 
seller's  conveyance  of  the  land,  leaving 
the  purchaser  to  his  remedy  for  breach  of 
contract.  Wetkopsky  v.  New  Haven  Gas 
Light  Co.  (Conn.)  1916D-968. 

7.  Severance  by  Contract.  Where  an 
intent  to  sell  a  building  as  i.  chattel  is 
apparent  from  the  contract  and  attending 
circumstances,  the  severance  may  be  made 
by  the  purchaser;  the  fact  that  he  is  to 
remove  the  building  only  being  important 
as  bearing  on  the  intention  of  the  parties 
in  determining  whether  title  is  to  pass  at 
once,  or  after  severance.  Wetkopsky  r. 
New  Haven  Gas  Light  Co.  (Conn.)  1916D- 
968. 

Note. 
Gas  or  electric  light  plant  or  accessories 
as  fixtures.     1917B-183. 

FLAGS. 

Prohibiting  black  and  red  flags,  see  Con- 
stitutional Law,  80. 

1.  Carrying  Bed  Flag.  Mass.  St.  1913, 
c.  678,  §  2,  prohibiting  the  carrying  of  any 
red  or  black  flag  in  parades,  applies  to  a 
flag  which  was  entirely  red  on  both  sides, 
save  that  on  one  side  there  were  gilt  let- 
ters indicating  the  society  represented 
by  the  flag.  Commonwealth  v.  Karvonen 
(Mass.)   1916D-846.  (Annotated.) 

2.  In  a  prosecution  for  carrying  a  red 
flag  in  a  parade,  in  violation  of  Mass.  St. 
1913,  c.  678,  §  2,  it  is  no  defense  that  the 
flag  was  the  usual  banner  of  a  society 
affiliated  with  a  political  party.  Common- 
wealth V.  Karvonen  (Mass.)  1916D-846. 

(Annotated.) 

FLOODS. 

Damage    to    shipment,    see    Carriers    of 
Goods,  4-6. 

FLY  POWER. 
Defined,  see  Corporations,  81. 

FOOD. 

1.  Definition,  382. 

2.  Statutory  Eegulations,  382. 

3.  Matters  of  Regulation.  382. 

a.  Purity,    Adulteration    and    Whole- 

someness,  382. 

b.  Brands  and  Labels,  382. 

c.  Itinerant  Venders,  382. 

4.  Regulation  of  Particular  Articles,  383. 

a.  Syrup,  383. 

b.  Lard,  383. 

c.  Eggs,  383. 

d.  Ice  Cream,  384. 

e.  Opium,  384. 


382 


5.  CiTil  Liability,  384. 

6.  Criminal  Prosecutions,  385. 

See  Drugs  and  Druggists;  Health;  Physi- 
cians and  Surgeons. 

1.     DEFINITION. 

1.  What  Constitutes.  Tobacco,  even 
chewing  tobacco,  is  not  a  foodstuff,  with- 
in the  exception  of  foodstuffs  from  the 
rule  that  ordinarily  the  manufacturer  of 
an  article  placed  by  him  on  the  market 
for  sale,  and  sold  by  another,  is  not  liable 
to  the  ultimate  consumer  for  injuries  from 
defects  or  impurities  in  it;  "food"  includ- 
ing only  what  tends  to  buUd  bodily  tis- 
sues. Liggett,  etc.  Tobacco  Co.  v.  Cannon 
(Tenn.)   1917A-179.  (Annotated.) 

2.  STATUTOEY  REGULATIONS. 

2.  Legislative  Power  of  Begulation. 
Whether  there  is  danger  of  the  public 
buying  food  injurious  to  health  or  differ- 
ent from  that  intended  to  be  bought  so  as 
to  authorize  the  exercise  of  the  police 
power,  and  whether  such  danger  suffici- 
ently affects  the  public  interests  to  jus- 
tify the  intervention  of  the  government, 
is  a  question  for  the  legislative  depart- 
ment, but  the  legislative  action  is  subject 
to  revision  by  the  courts.  New  Orleans 
v.  Toca  (La.)  1918B-1032. 

3.  Begulation  of  Ice  Cream — Validity. 
A  municipal  ordinance  requiring  ice  cream 
to  contain  at  least  ten  per  cent  of  butter 
fat,  and  providing  that  any  frozen  prod- 
uct, with  certain  exceptions,  containing 
milk  or  cream,  whether  designated  as  cus- 
tard, etc.,  or  by  whatever  name  it  is  des- 
ignated, shall  be  deemed  ice  cream,  is 
invalid  as  applied  to  a  frozen  product 
offered  for  sale  only  as  custard,  and  which 
ii  pure  and  wholesome,  .aough  not  contain- 
ing the  required  percentage  of  butter  fat. 
New  Orleans  v.  Toca  (La.)  1918B-1032. 

(Annotated.) 

3.  MATTERS  OP  REGULATION. 

a.    Purity,  Adulteration  and   Wholesome- 
ness. 

4.  The  elimination  of  a  harmful  ingredi- 
ent from  a  proprietary  food  which  with- 
out such  ingredient  would  not.be  the  same, 
does  not  constitute  an  adulteration  under 
the  U.  S.  Food  and  Drugs  Act  of  June  30, 
1906.  section  7,  by  the  abstraction  of  a 
"valuable  constituent."  United  States  v. 
Coca-Cola  Co.  (U.  S.)  1917C-487. 

(Annotated.) 

5.  Proprietary  Article.  A  poisonous  or 
deleterious  ingredient  called  for  as  a  con- 
stituent by  a  secret  formula  for  a  food 
product  sold  under  its  own  distinctive 
name  may  still  be  an  added  ingredient 
within  the  meaning  of  the  provisions  of 
the  Food  and  Drugs  Act  of  .Tune  30,  1906 
[34  Stat,  at  L.  768,  c.  3915,  3  Fed.  St.  Ann. 


DIGEST. 

1916C— 1918B. 

(2d    ed.) 


358,  et  seq.],  condemning  as 
adulterated  any  article  of  food  that  con- 
tains "any  added  poisonous  or  other  added 
deleterious  ingredient  which  may  render 
such  article  injurious  to  health,"  and  the 
provisos  in  §  8  that  food  mixtures  or  com- 
pounds "which  may  be  now  or  from  time 
to  time  hereafter  known  as  articles  of 
food  under  their  own  distinctive  names" 
are  to  enjoy  the  stated  immunity  only  in 
case  they  do  "not  contain  any  added 
poisonous  or  deleterious  in^gredients,"  and 
that  nothing  in  the  act  shall  be  construed 
to  require  manufacturers  of  proprietary 
foods  "which  contain  no  unwholesome 
added  ingredient"  to  disclose  their  trade 
formulas  except  as  the  provisions  of 
the  act  may  require  to  secure  freedom 
from  adulteration  or  misbranding.  United 
States  V.  Coca-Cola  Co.  (U.  S.)  19I7C-487. 

(Annotated.) 

b.     Brands  and  Labels. 

6.  A  secondary  significance  cannot  be 
attributed  to  the  name  "Coca  Cola,"  as  de- 
scriptive of  a  product  known  to  be  desti- 
tute of  either  of  the  products  indicated  by 
its  primary  meaning,  go  as  to  save  it  from 
condemnation  under  the  U.  S.  Food  and 
Drugs  Act  of  June  30,  1906,.  section  8,  on 
the  theory  that  it  is  within  the  protection 
accorded  by  the  proviso  in  that  section  to 
food  mixtures  or  compounds  known  under 
their  own  distinctive  names.  United 
States  V.  Coca-Cola  Co.  (U.  S.)  1917C- 
487.  (Annotated.) 

7.  The  name  "Coca  Cola"  cannot  be  said 
as  a  matter  of  law  to  be  distinctive  rather 
than  descriptive  of  a  compound  with  coca 
and  cola  ingredients,  so  as  to  escape  con- 
demnation under  the  U.  S.  Food  and  Drugs 
Act  of  June  30,  1906,  section  8,  as  mis- 
branded  in  case  of  the  absence  of  either 
coca  or  cola,  on  the  theory  that  it  was 
within  the  protection  of  the  proviso  in 
that  section  that  an  article  of  food  shall 
not  be  deemed  to  be  misbranded  in  the 
case  of  "mixtures  or  compounds  which 
may  be  now  or  from  time  to  time  hereafter 
known  as  articles  of  food  under  their  own 
distinctive  names,"  if  the  distinctive  name 
of  another  article  is  not  used  or  imitated, 
and  the  name  on  the  label  or  brand  is  ac- 
companied with  a  statement  of  the  place 
of  production.  United  States  v.  Coca-Cola 
Co.  (U.  S.)  1917C-487.  (Annotated.) 

c.     Itinerant  Venders. 

8.  St.  Cal.  1903,  p.  284,  imposes  a  state 
license  tax  on  itinerant  venders  of  drugs, 
and  section  2,  as  amended  by  St.  1907.  p. 
765,  contains  a  proviso  that  the  act  shall 
not  affect  the  operation  of  St.  1905,  p.  307, 
which  exempts  ex-Union  soldiers  and  sail- 
ors from  paying  local  license  taxes  as 
peddlers.  Held  that,  the  proviso  having 
no  effect  as  an  exemption  from  the  state 
tax  imposed,  the  act  was  not  in  violation 


FOOD. 


383 


of  section  1  of  the  fourteenth  amendment 
to  the  federal  constitution  as  depriving 
persons  of  the  equal  protection  of  the  law, 
nor  of  Const,  art.  1,  §  21,  by  granting  priv- 
ileges to  certain  citizens  not  granted  to  all 
on  the  same  terms.  Matter  of  Gilstrap 
(Cal.)  1917A-1086.  (Annotated.) 

9.  Nor  does  the  proviso  bring  the  act 
into  conflict  with  U.  S.  Const,  art.  1,  §  11, 
requiring  all  general  laws  to  operate  uni- 
formly. Matter  of  Gilstrap  (Cal.)  1917A- 
1086.  (Annotated.) 

10.  Cal.  St.  1903,  p.  284,  as  amended  by 
St.  1907,  p.  765,  and  St,  1909,  p.  419,  re- 
quiring a  semi-annual  license  fee  of  $100 
from  all  itinerant  venders  of  drugs,  is  a 
legitimate  exercise  of  the  police  power  of 
the  state,  since  the  subject-matter  is  a 
proper  one  for  legislative  control,  the 
amount  of  the  license  is  not  oppressive  or 
discriminatory,  the  provisions  of  the  act 
apply  uniformly  upon  the  whole  of  a  single 
class  of  clearly  defined  individuals,  an(J 
the  classification  is  founded  upon  a  natural 
and  intrinsic  distinction.  Matter  of  Gil- 
strap (Cal.)  1917A-1086.  (Annotated.) 

11.  The  Cal.  act  prescribing  a  license 
tax  for  itinerant  venders  of  drugs  (St. 
1903,  p.  284,  St.  1907,  p.  765;  St.  1909,  p. 
419),  being  a  regulation  of  the  business 
within  the  state,  applicable  to  all  under 
like  circumstances,  is  not  repugnant  to 
section  1  of  the  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States,  as 
abridging  the  privileges  and  immunities 
of  the  citizens  of  the  United  States,  and 
depriving  them  of  liberty  and  property 
without  due  process  of  law,  since  the 
amendment  was  not  designed  to  interfere 
with  the  reasonable  exercise  of  the  police 
power  of  the  state.  Matter  of  Gilstrap 
(Cal.)    1917A-1086.  (Annotated.) 

12.  Licensing  Itinerant  Venders.  The 
definition  of  "itinerant  venders"  of  drugs 
in  St.  Cal.  1903,  p.  284,  §  3,  providing  that 
the  term  shall  include  all  persons  who 
carry  on  the  business  by  passing  from 
house  to  house,  or  by  haranguing  the  peo- 
ple on  the  public  streets  or  in  public 
places,  or  use  the  various  customary  de- 
vices for  attracting  crowds  and  therewith 
recommending  their  wares,  and  offering 
them  for  sale,  is  broad  enough  to  include 
hawkers  and  peddlers.  Matter  of  Gilstrap 
(Cal.)  1917A-1086.  (Annotated.) 

4.     REGULATION      OF      PARTICULAR 
ARTICLES. 

a.     Syrup. 

13.  Caffeine  introduced  into  a  syrup  dur- 
ing the  second  or  third  melting  is  an 
"added"  ingredient  within  the  meaning  of 
the  U.  S.  Food  and  Drugs  Act  of  June  30, 
1906,  condemning  as  adulterated  any  ar- 
ticle of  food  that  contains  "any  added  poi- 
sonous or  other  a^ded  deleterious  ingredi- 
ent which  may  render  such  article  injuri- 


ous to  health,"  although  it  is  called  for  as 
a  constituent  by  the  secret  formula  under 
which  the  syrup  is  compounded.  United 
State  V.  Coca-Cola  Co.   (U,  S.)  1917C-487. 

(Annotated.) 

b.  Lard. 

14.  There  is  no  repugnancy  between  the 
pure  food  and  drugs  act  of  June  30,  1906 
(34  Stat,  at  L.  768,  a.  3915,  Fed.  St.  Ann. 
1909  Supp.  p.  145)  which  is  directed 
against  the  adulteration,  and  misbranding 
of  articles  of  food  transported  in  inter- 
state commerce,  and  the  prohibition  of  N. 
D.  Laws  1911,  p.  355,  against  retail  sales 
of  lard  otherwise  than  in  bulk,  unless  put 
up  in  1,  3,  or  5-pound  packages,  net 
weight,  or  some  multiple  of  these  numbers. 
Armour  &  Co.  v.  North  Dakota  (U.  S.) 
1916D-548.  (Annotated.) 

15.  As  applied  to  retail  sales  not  in  the 
package  of  importation,  the  commerce 
clause  of  the  federal  constitution  is  not 
violated  by  tne  prohibition  of  N.  D.  Laws 
1911,  p.  355,  against  the  sale  of  lard  other- 
wise than  in  bulk  unless  put  up  in  1,  3, 
or  5-pound  packages,  net  weight,  or  some 
multiple  of  these  numbers.  Armour  &  Co. 
V.  North  Dakota  (U.  S.)  1916D-548. 

(Annotated.) 

16.  Singling  out  lard  from  other  food 
products  as  is  done  by  the  prohibition  of 
N.  D.  Laws  1911,  p.  355,  against  the  sale 
of  lard  otherwise  than  in  bulk  unless  put 
up  in  1,  3,  or  5-pound  packages,  net  weight, 
or  some  multiple  of  these  numbers,  does 
not  make  the  statute  repugnant  to  U.  S. 
i^onst.  14th  Amend.,  as  denying  the  equal 
protection  of  the  laws.  Armour  &  Co.  v. 
North  Dakota  (U.  S.)  1916D^548. 

(Annotated.) 

17.  Eegnlatlon  of  Sale.  Prohibiting  the 
sale  of  lard  otherwise  than  in  bulk  unless 
put  up  in  1,  3,  or  5-pound  packages,  net 
weight,  or  some  multiple  of  these  numbers, 
as  is  done  by  N.  D.  Laws  1911,  p.  355,  does 
not  render  the  statute  repugnant  to  U.  S. 
Const.  14th  Amend.,  as  denying  due  pro- 
cess of  law.  Armour  &  Co.  v.  North  Da- 
kota (U.  S.)  1916D-548.  (Annotated.) 

c.  Eggs. 

18.  Regulation  of  Sale  of  Eggs.     St.  Cal. 

1915,  p.  1163,  declaring  that  any  dealer 
selling  eggs  imported  from  without  the 
United  States  shall  stamp  each  egg  "Im- 
ported" and  shall  display  at  his  place  of 
business  a  sign  "Imported  Eggs  Sold 
Here,"  but  which  did  not  require  the 
dealer  to  disclose  the  age  of  his  imported 
eggs,  is  not,  in  view  of  the  fact  that  in 
portions  of  the  state  of  California  egors 
can  be  imported  from  foreign  countries  in 
a  shorter  time  than  they  can  come  fro-u 
other  portions  of  the  state  and  United 
States,  a  valid  exercise  of  the  police 
power,  and  is  void  as  interfering  with  for- 
eign commerce,  it  being  obvious  that  th« 


384 


DIGEST. 

19160— 1918B. 


purpose  of  the  statute  was  not  to  protect 
the  public  health  against  unwholesome 
eggs,  but  merely  to  prejudice  buyers 
against  imported  eggs  in  fayor  of  the  local 
product,  it  appearing  that  the  s-tatute  as 
written  would  place  all  imported  eggs,  re- 
gardless of  the  distance  they  were  trans- 
ported, on  the  same  footing.  Matter  of 
Foley  (Cal.)  1918A-180. 

(Annotated.) 

Note. 
Validity  and  construction  of  statute  or 
ordinance  regulating  sale  of  eggs.    1918A- 
181. 

d.     Ice  Cream. 

19  Percentage  of  Butter  Fat  In  Ice 
Cream.  State  statutes  which  prohibit  the 
sale  as  "ice  cream"  of  a  product  contain- 
ing less  than  a  fixed  percentage  of  butter 
fat  do  not  take  property  without  due  pro- 
cess of  law  nor  deny  the  equal  protection 
of  the  laws — the  particular  percentage 
fixed  not  being  so  exacting  as  to  be  in 
themselves  unreasonable — although  the  ice 
cream  of  commerce  is  not  iced  or  frozen 
cream,  but  is  a  frozen  confection,  varying 
in  composition,  and  under  some  formulas 
may  be  made  without  either  creajn  or 
milk.  Hutchinson  Ice  Cream  Co.  v.  Iowa 
(U.  8.)   1917B-643.  (Annotated.) 

Note. 

State  or  municipal  regulation  of  ice 
cream.     1917B-645. 

e.    Opium. 

20.  Federal  Begnlation  of  Opium.  The 
grave  doubts  as  to  congressional  power 
which  any  other  construction  would  raise 
require  that  the  provision  of  the  Act  of 
December  17,  1914  (38  Stat.  L.  789,  c.  1, 
§  8;  4  Fed.  St.  Ann.  2d  ed.  187),  making 
it  unlawful  for  "any  person"  who  has  not 
registered  or  paid  the  special  tax  imposed 
by  that  act  to  have  in  his  possession  or 
control  opium  or  coca  leaves,  their  salts, 
derivatives,  or  preparations,  be  construed 
as  referring  to  those  only  who  are  re- 
quired by  that  statute  to  register  and  pay 
the  special  tax,  viz.,  all  persons  who  pro- 
duce, import,  manufacture,  compound,  deal 
in,  dispense,  sell,  distribute,  or  give  away, 
any  of  said  drugs,  notwithstanding  the  ex- 
ception in  such  section  in  favor  of  the 
possession  of  drugs  prescribed  in  good 
faith  by  a  physician,  since  this  exception 
stands  alongside  of  one  that  saves  em- 
ployees of  registered  persons  and  nurses 
under  the  supervision  of  a  physician,  etc., 
and  is  so  far  vague  that  it  may  have  been 
intended  to  mean  other  persons  carrying 
out  a  doctor's  order,  rather  than  the'  pa- 
tient's. United  States  v.  Jin  Fuey  Moy 
(U.  S.)  1917D-854.  (Annotated.) 

Note. 

Validity  and  construction  of  federal 
regulation  of  manufacture,  sale  or  posses- 


sion of  opium  or  other  narcotic.     19171)- 
856. 

5.     CIVIL  LIABILITY. 

21.  Foreign  Substance  in  Animal  Food. 
In  an  action  for  the  death  of  two  cows  al- 
leged to  have  been  caused  by  eating  bran 
purchased  from  defendants  and  containing 
arsenic,  the  evidence  is  held  to  be  suffi- 
cient to  sup{>ort  findings  that  the  cows 
died  from  arsenic  poisoning.  Newell  v. 
Eeid  (Mich.)  1918B-224. 

(Annotated.) 

22.  Foreign  Substance  in  Beverage.  In 
an  action  for  damages  for  an  illness 
caused  by  swallowing  a  decomposed  mouse 
in  a  bottle  of  Coca-Cola  purchased  from  a 
local  dealer  to  whom  it  had  been  sold  by 
a  bottling  company,  the  evidence  is  held 
to  sustain  a  finding  that  the  bottling  com- 
pany was  not  at  fault.  Crigger  r.  Coca- 
Cola  Bottling  Co.  (Tenn.)  1917B-572. 

(Annotated.) 

23.  One  who  prepares  and  puts  on  the 
market,  in  bottles  or  sealed  packages, 
foods,  drugs,  beverages,  or  articles  inher- 
ently dangerous  is  liable  for  breach  of  a 
duty  to  the  public  in  the  preparation 
thereof,  regardless  of  the  privity  of  con- 
tract to  any  one  injured  for  a  failure  to 
properly  safeguard  and  perform  such  duty. 
Crigger  V.  Coca-Cola  Bottling  Co.  (Tenn.) 
1917B-572. 

24.  Liability  of  Manufacturer  to  Con- 
stuner.  The  duty  of  one  who  prepares  and 
puts  on  the  market,  in  bottles  or  sealed 
packages,  foods,  drugs,  beverages,  medi- 
cines, or  articles  inherently  dangerous  of 
exercising  care  to  see  that  nothir.g  un- 
wholesome or  injurious  is  contained  in  the 
bottle  or  package  is  not  in  the  nature  of 
an  implied  warranty,  and  is  based  upon 
negligence.  Crigger  v.  Coca-Cola  Bottling 
Co.  (Tenn.)  1917B-572. 

25.  Eemedy  for  Injury.  The  remedy  of 
a  guest  at  a  restaurant  injured  by  impure 
food  served  to  him  must  probably  be  based 
on  the  negligence  of  the  proprietor.  Mer- 
ril  V.  Hodson   (Conn.)   1916D-917. 

(Annotated.) 

26.  Liability  for  Sale  of  Unwholesome 
Food.  The  Conn.  Sale  of  Goods  Act  (Pub. 
Acts  1907,  c.  212,  §  1,  defines  a  sale  of  goods 
as  an  agreement  whereby  the  seller  trans- 
fers the  property  in  goods  to  the  buyer  for 
a  consideration  called  the  price.  Section 
76  defines  goods  to  include  all  personal 
chattels  other  than  things  in  action  and 
money,  and  property  to  mean  the  general  • 
property  in  goods,  and  not  merely  a  special 
property.  Section  15  declares  an  implied 
warranty  that  the  goods  shall  be  reason- 
ably fit.  for  the  purpose  for  which  they  ■ 
are  ordered.  Held,  that  neither  under  the 
statute  nor  at  common  law,  of  which  the 
statute  is  merely  declaratory,  was  a  res- 
taurant keeper's  service  of  food  on  a 
patron's  order  for  immediate  consumption 
a  sale  of  goods,  since  the  consumer  does 


FORr-FORECLOSURB. 


385 


not  become  the  owner  of  the  food  served, 
but  has  only  a  privilege  of  consuming 
what  he  needs;  and  hence  there  was  no 
implied  warranty  that  food  so  served  was 
wholesome  and  fit  for  consumption,  Mer- 
ril  V.  Hodson  (Conn.)  1916D-917. 

(Annotated.) 
Notes. 

Liability  as  for  negligence  of  proprietor 
of  restaurant  or  lunch  room  to  person  in- 
jured by  eating  therein.     1916D-921. 

Liability  for  injury  resulting  from  for- 
eign substance  in  beverage.     1917B-575. 

Liability  for  injury  resulting  from  for- 
eign substance  in  food.     1981B-225. 

6.     CEIMINAL    PROSECUTIONS. 

27.  Whether  caffeine  added  to  a  food 
product  is  a  poisonous  or  deleterious  in- 
gredient which  may  render  the  article 
deleterious  to  health,  within  the  meaning 
of  the  U.  S.  Act  of  June  30,  1906,  con- 
demning as  adulterated  any  article  of  food 
that  contains  "any  added  poisonous  or 
other  added  deleterious  ingredient,  which 
may  render  such  article  injurious  to 
health,"  is  a  question  of  fact  for  the  jury, 
where  the  evidence  on  that  point  is  con- 
flicting. United  States  T.  Coca-Cola  Co. 
(U.  S.)  1917C-487.  (Annotated.) 

FOE. 

Defined,  see  Process,  9. 

FORCIBLE  ENTRY  AND  DETAINEB. 

1.  Entry  Distinguished  from  Detainer. 

2.  Scope  of  Action. 

3.  Persons  Liable. 

4.  Extent  of  Force. 

5.  Pleading. 

1.     ENTRY      DTSTTNGUTSHED      FROM 
DETAINER. 

1.  The  unlawful  detention,  unaccom- 
panied with  force,  where  the  original  pos- 
session was  taken  peaceably  and  under 
claim  of  right,  is  not  sufiieient  to  author- 
ize proceedings  under  section  7657,  Minn. 
G.  S.  1913.  Ejectment  is  the  remedy  in 
such  cases.  Mastin  t.  May  (Minn.) 
1916C-493.  (Annotated.) 

» 

2.     SCOPE  OF  ACTION. 

2.  Payment  of  Rent.  Under  Cal.  Code 
Civ.  Proc.  §  1161,  providing  that  a  tenant 
is  guilty  of  "unlawful  detainer"  when  he 
continues  in  possession  after  default  in  the 
payment  of  rent,  and  after  three  days' 
notice  in  writing,  requiring  its  payment 
or  the  possession  of  the  property,  shall 
have  been  served  upon  him,  in  an  action 
in  unlawful  detainer,  the  defendant  may 
show  that  there  was  no  forfeiture  of  the 
lease  because  there  was  no  breach  of  the 
covenants  of  the  lease,  and  if  by  reason 

25 


of  dealings  between  the  lessor  and  lessee 
the  rent  was  paid  or  discharged  by  apply- 
ing thereon  claims  due  the  tenant  from  the 
landlord,  he  may  show  this  fact,  but  this 
showing  can  only  go  to  the  question 
whether  or  not,  when  the  notice  to  quit 
was  given,  the  rent  claimed  therein  was 
due,  Arnold  v.  Krigbaum  (Cal.)  1916D- 
370. 

3.  Set-off  and  Counterclaim.  In  an  ac- 
tion in  unlawful  detainer  against  a  tenant, 
neither  a  counterclaim  nor  a  cross-com- 
plaint of  any  kind  is  permissible,  whether 
the  subject-matter  arises  out  of  a  violation 
of  the  terms  of  the  lease  or  not.  Arnold 
T.  Krigbaum   (Cal.)   1916D-370. 

(Annotated.) 

4.  Forcible  Entry — ^Right  of  Recovery — 
Basis.  A  plaintiff  in  forcible  entry  and 
detainer  must  either  show  a  superior  title 
in  himself  or  a  forcible  entry  or  unlawful 
detainer  by  defendant.  Phillips  v.  Phil- 
lips (Ala.)   1916D-&94. 

3.     PERSONS  LIABLE. 

5.  Possession  under  Claim  of  Eight.  Pro- 
ceedings under  the  forcible  entry  and  de- 
tainer statute  to  recover  the  possession  of 
land  alleged  to  be  unlawfully  and  forcibly 
detained,  cannot  be  maintained  against  a 
person  who  peaceably  and  under  claim  of 
right  entered  into  possession  of  the  prop- 
erty, and  does  not  forcibly  detain  the 
same.     Mastin  t.  May  (Minn.)  1916C-493. 

(Annotated.) 

.4.     EXTENT  OF  FORCE. 

6.  What  Constitutes  Forcible  Entry. 
The  act  of  cutting  through  an  inside  fence, 
as  an  act  separate  and  apart  from  a  prior 
entry  on  and  possession  of  the  premises  as 
a  whole,  is  not  a  forcible  entry  on  the 
premises,  and  will  not  support  an  action 
for  forcible  entry  and  detainer.  Phillips 
V.  Phillips   (Ala.)    1916D-994. 

5.     PLEADING. 

7.  Unlawful  Detainer — Complaint  Sufl- 
cient.  In  an  action  in  unlawful  detainer 
against  a  tenant,  a  complaint,  which  pleads 
in  full  a  copy  of  the  notice  to  quit  and  al- 
leged service  thereof  upon  the  tenants,  is 
sufficient  as  against  the  objection  that  the 
details  of  the  service  of  the  notice  are  not 
sufficiently  set  forth.  Arnold  v.  Krig- 
baum (Cal.)  1916D-370. 

FORD  AUTOMOBILE. 
A  "motor  vehicle,"  see  Homicide,  5. 

FORECLOSURE. 

Of  chattel  mortgage;  see  Chattel  Mort- 
gages, 26-28. 

Of  mechanics'  liens,  see  Mechanics'  Liens, 
41-&4. 


386  DIGEST. 

1916C— 1918B. 

Of  mortgages,  see  Mortgages  and  Deeds  of 

Trust,  24-28. 
Of  tax  lien,  see  Taxation,  88,  89. 


FOEFEITURES. 


FOKEIGN  ACKN^OWTjEDOMiaTTS. 
See  Acknowledgments. 

FOEEIGN  ATTACHMENTa 

See  Attachment,  1,  2. 

FOREIGN  COMMEBOE. 
See  Interstate  Conunerce. 

FOREIGN  CORPORATIONS. 

See  Corporations,  160-180. 

Taxation  of  stock,  see  Taxation,  14-21,  68, 

85. 
Exemption   of   stock,   see  Taxation   85. 
Foreign  corporation  tax  act,  see  Taxation, 

150-170. 

FOEEIGN    CORPORATION    TAX    ACT. 
See  Taxation,  150-170. 

FOREIGN  LAWS. 

See  Death  by  Wrongful  Act,  7-9. 

Extraterritorial  effect  of  divorce,  see  Di- 
vorce, 66,  67. 

Representations  as  to,  see  Fraud,  2-4. 

Operation  of  "Workmen's  Compensation 
Acts  outside  state,  see  Master  and 
Servant,  179-183. 

Construction  of  adopted  laws,  see  Statutes, 
90-94. 

1.  Where  a  contract,  made  in  a  foreign 
state,  is  sought  to  be  enforced  in  this  state, 
unless  the  laws  of  the  foreign  state  be 
pleaded  and  proved,  it  will  be  presumed 
that  the  laws  governing  the  rights  of  the 
parties  under  such  contract  are  the  same 
as  the  laws  of  this  state.  Marx  v.  Hefner 
(Okla.)  1917B-656. 

2.  Where  a  contract  is  made  in  a  for- 
eign state,  and  the  laws  of  such  foreign 
state  are  relied  upon  for  a  recovery,  such 
laws  of  the  foreign  state  must  be  pleaded 
and  proved.  Marx  v.  Hefner  (Okla.) 
1917B-656. 

3.  Where  the  laws  of  a  foreign  state 
are  not  proved,  it  will  be  presumed  that 
they  are  the  same  as  those  of  the  forum. 
Rudolph  Hardware  Co.  v.  Price  (Iowa) 
1916D-850. 

FOREST  LAWS. 

Validity  and  construction,  see  Trees  and 
Timber,  2-18. 

FORFEITURE  OF  CHARTER. 
See  Corporations,  6. 


Of  easement  by  misuser,  see  Easements,  7. 

Vacancy  clause,  see  Fire  Insurance,  9,  23. 

Forfeiture  of  franchise,  sec  Franchises,  1. 

Of  homestead,  see  Homestead,  19. 

Of  policy,  see  Insurance,  30. 

Of   mining   lease   by   inaction,   see   Mines 

and  Minerals,  6,  7. 
Of  usurious  interest,  see  Usury,  3,  5,  8,  19. 
Of  double  interest,  see  Usury,  24,  25. 

1.  Necessity  of  Demand  Before  Suit  to 
Enforce  Forfeiture.  Where  a  deed  con- 
tains a  condition  that  intoxicating  liquor 
shall  never  be  sold  on  the  premises,  aud 
provides  that  upon  an  adjudication  of  a 
court  of  competent  jurisdiction  that  such 
condition  and  covenant  have  been  violated, 
the  title  to  the  premises  thereby  conveyed 
shall  revert  to,  and  revest  in,  the  grantor, 
its  successors  and  assigns,  a  demand  for 
possession  or  a  claim  or  entry  upon  the 
land  by  the  grantor  is  not  essential  before 
instituting  an  action  »to  forfeit  the 
grantee's  title  to  the  lots,  as  an  action  and 
adjudication  were  essential  to  reinvest  the 
title  in  the  grantor.  Fusha  v.  Dacons 
Town  Site  Co.  (Colo.)  1917C-108. 

FORGED  INDORSEMENT. 
See  Checks,  13. 

FORGED  INSTRUMENTSi. 
See  Bills  and  Notes,  53,  54. 


FORGERY. 

1.  Typewriting.  Forgery  may  be  com- 
mitted by  the  insertion  of  typewritten 
words  into  a  document.  People  v.  Rislev 
(N.  Y.)    1916D-775.  (Annotated.) 

2.  Exi>ert  Evidence  as  to  Probabilities. 
A  university  professor  of  mathematics  is 
improperly  permitted  to  testify  that,  by 
the  application  of  the  law  of  mathematical 
probabilities,  the  chance  of  the  same  de- 
fects, as  were  shown  by  the  inserted  words, 
being  produced  by  another  typewriter,  is 
BO  small  as  to  be  practically  a  negative 
quantity,  where  his  statement  is  not  based 
on  actual  observation  but  is  purely  specu- 
lative. People  T.  Risley  (N.  Y.)  1916D- 
775. 

3.  Standard  for  Comparison.  In  a  pros- 
ecution under  N.  Y.  Penal  Law  (Consol. 
Laws,  c.  40)  §  810,  for  offering  in  evidence 
as  genuine,  a  document  knowing  that  same 
had  been  forged  and  fraudulently  altered 
by  the  insertion  of  certain  typewritten 
words,  specimens  of  typewriting  made  on 
the  machine  in  defendant's  ofBce  two  days 
subsequent  to  the  alleged  offense  are  prop- 
erly admitted  as  standards  for  comparison. 
People  V.  Risley   (N.  Y.)    1916D-775. 

Note. 
Forgery   of   or   by  typewriting.     1916D- 
784. 


FORGETFULNESS— FOBMER  JEOPARDY. 


387 


FOBOETTULNE  SS. 

Not    contributory    negligence,    see    Negli- 
gence, 41. 


TOBMES.  JEOPABDT. 

1.  In  Genera],  387. 

2.  What  Constitutes,  387. 

a.  In  General,  387. 

b.  Identity  of  Offenses,  387. 

c.  Defective    Information    Set    Aside, 

387. 

d.  Penal  Action,  387. 

3.  Pleading,  388. 

1.     IN  GENEEAL. 

1.  Application  to  States.  That  the  fifth 
amendment  to  the  federal  constitution  (9 
Fed.  St.  Ann.  264),  that  "nor  shall  any 
person  be  subject  for  the  same  offense  to 
be  twice  put  in  jeopardy  of  life  or  limb," 
applies  only  to  proceedings  in  federal  tri- 
bunals, and  in  no  way  restricts  or  pre- 
scribes the  limits  of  the  constitutional  pro- 
visions and  statutory  enactments  of  the 
several  states.  State  v.  Barnes  (N.  Dak.) 
1917C-762. 

2.  The  terms  "jeopardy  of  life  and  lib- 
erty for  the  same  offense,"  "jeopardy  of 
life  or  limb,"  "jeopardy  for  the  same 
offense/'  "twice  in  jeopardy  of  punish- 
ment," and  other  similar  provisions  used 
in  the  various  constitutions,  are  to  be  con- 
strued as  meaning  substantially  the  same 
thing.     Stout  v.  State  (Okla  )   1916E-858. 

2.     WHAT  CONSTITUTES, 
a.     In  General. 

3.  When  Jeopardy  Attaches,  Though  the 
jury  was  sworn  before  arraignment,  ac- 
cused's jeopardy  did  not  begin,  and  he 
may  thereafter  be  arraigned  and  the  jury 
a  second  time  sworn.  State  v.  Gould 
(Mo.)  1916E-855. 

b.     Identity  of  Offenses. 

4.  Similar  Acts  on  Different  Dates. 
Where  an  indictment  against  two  defend- 
ants for  practicing  medicine  without  ob- 
taining the  requisite  certificate  from  the 
state  board  of  medical  examiners  charged 
that  the  acts  complained  of  were  done  "on 
or  about  September  1.  1912,"  such  indict- 
ment being  dismissed,  its  dismissal  was  no 
bar  to  prosecution  under  a  second  indict- 
ment for  the  same  offense,  found  on  Octo- 
ber 16,  1913,  charging  that  the  acts  com- 
plained of  were  done  "on  or  about  October 

4.  1913,  and  from  that  date  to  October  16, 
1913,"  since  the  test  of  whether  a  former 
indictment  is  a  bar  to  prosecution  under  a 
second  is  whether  if  what  is  set  out  in 
the  second  indictment  had  been  proved 
under  the  first,  there  could  have  been  a 
conviction,  in  which  case  the  second  in- 
dictment cannot  be  maintained,  but  can 
be  where  proof  of  what  is  charged  in  it 


could  not  have  made  out  the  charge  in  the 
first.  State  v.  McAnineh  (Iowa)  1918A- 
559. 

c.    Defective  Information  Set  Aside. 

5.  Rem.  &  Bal.  Wash.  Code,  §  2101,  en- 
titles a  defendant  to  have  an  information 
set  aside  when  it  is  not  verified.  Section 
2125  provides  that  an  order  for  dismissal 
as  provided  in  the  chapter  is  a  bar  to  an- 
other prosecution  for  the  same  offense  if  it 
be  a  misdemeanor,  but  is  not  a  bar  if  the 
offense  charged  be  a  felony.  Section  2123 
provides  for  the  dismissal  of  an  action 
after  indictment  or  information  by  the 
court  upon  its  own  motion  or  upon  appli- 
cation of  the  prosecuting  attorney.  Sec- 
tion 2124  abolishes  the  entry  of  a  nolle 
prosequi.  Section  2316  provides  that  no 
order  of  dismissal  or  directed  verdict  of 
not  guilty  on  the  ground  of  variance  be- 
tween the  information  and  proof  shall  bar 
another  prosecution  for  the  same  offense. 
It  is  held  that  the  "setting  aside"  of  the 
information  provided  for  by  section  2101 
would  not  be  a  bar  to  a  further  prosecu- 
tion, but  that  only  those  dismissals  of  mis- 
demeanor prosecutions,  made  by  the  court 
upon  its  own  motion  or  upon  the  motion  of 
the  prosecuting  attorney  in  such  manner 
as  to  evidence  an  abandonment  by  the 
state  of  the  prosecution  which  take  the 
place  of  the  common-law  nolle  prosequi, 
would  render  an  accused  immune  from  an- 
other prosecution  for  the  same  misde- 
meanor. State  V.  Haffer  (Wash.)  1917E- 
229. 

d.     Penal  Action. 

6.  Section  4191  Okla.  Comp.  Laws  1909, 
imposing  as  the  penalty  for  the  offense 
there  described,  a  penalty  to  be  recovered 
at  the  suit  of  the  state,  and  a  fine  and 
imprisonment  to  be  administered  in  a 
criminal  prosecution,  is  not  in  conflict 
with  article  2,  §  21,  of  the  Okla.  Con- 
stitution, which  provides,  "Nor  shall  any 
person  be  twice  put  in  jeopardy  of  life 
and  liberty  for  the  same  offense."  Stout 
V.  State  (Okla.)   1916E-858. 

7.  Article  2,  §  21,  of  the  constitution 
(Williams'  Ann.  Const.  Okla.  §  29)  which 
provides,  "Nor  shall  any  person  be  twice 
put  in  jeopardy  of  life  and  liberty  for  the 
same  offense"  is  not  intended  to  apply  to 
a  civil  proceeding  which  affects  merely 
property  rights  even  though  such  proceed- 
ing is  in  part  a  punishment  of  an  offense. 
Stout  V.  State  (Okla.)  1916E-858. 

8.  Defenses.  A  defendant  sued  for  the 
penalty  provided  by  section  4191  Okla, 
Comp.  Laws  1909  for  unlawfully  permit- 
ting his  premises  to  be  used  in  violation 
of  the  prohibition  law  may  plead  that  the 
statute  is  invalid  because  in  conflict  with 
the  former  jeopardy  section  of  the  con- 
stitution although  he  has  not  been  previ- 
ously prosecuted  for  the  crime  pronounced 


388 


DIGEST. 

1916C— 1918B. 


by   the    statute.    Stout   t.   State    (Okla.) 
1M6E-858. 

3.     PLEADING. 

9.  The  failure  to  interpose  the  plea  of 
prior  jeopardy  prior  to  verdict  was  a 
waiver  of  the  defense  of  former  jeopardy 
arising  from  such  former  conviction.  State 
y.  Barnes  (N.  Dak.)  1917C-762. 

(Annotated.) 

10.  Necessity  of  Special  Plea.  A  crim- 
inal complaint  was  laid  in  justice  court 
against  defendant  Barnes,  charging  him 
with  assault  and  battery,  a  misdemeanor. 
He  pleaded  guilty,  and  paid  a  fine  and 
costs  imposed  on  judgment.  Subsequently 
he  was  prosecuted  for  felony — assault  and 
battery  with  intent  to  kill.  On  trial 
thereon  the  jury  found  him  guilty  of  the 
included  offense  charged,  of  assault  and 
battery,  a  misdemeanor.  The  prosecution 
for  felony  was  based  upon  the  same  acts 
committed  upon  the  same  person  as  was 
the  first  prosecution  for  misdemeanor  in 
justice  court,  to  which  the  plea  of  guilty 
was  entered.  When  defendant  was  called 
for  judgment  on  the  verdict  of  guilty  of 
assault  and  battery,  he  moved  an  arrest  of 
jYidgment,  asserting  for  the  first  time  that 
he  had  been  once  before  convicted  and 
punished  for  that  same  offense,  and  that 
under  the  statutes  and  the  state  and  fed- 
eral constitution  the  court  was  without 
jurisdiction  to  render  a  judgment  of  con- 
viction. The  motion  was  denied,  and  a 
sentence  of  fine  and  imprisonment  was 
imposed.  He  applies  to  the  supreme  court, 
asking  for  a  writ  of  habeas  corpus  direct- 
ing his  discharge  from  custody,  claiming 
he  is  being  legally  restrained  of  his  lib- 
erty under  a  void  sentence.  It  is  held: 
That  under  the  statutes,  defendant  in 
pleading  to  the  information  for  felony 
should  also  have  interposed  a  plea  of  for- 
mer ieopardy  arising  from  prior  convic- 
tion tor  the  same  offense,  to  the  included 
misdemeanor  charged  in  the  information. 
The  statutes  contemplate  that  the  jury 
shall  determine  as  a  fact  whether  prior 
conviction  has  been  had,  and  find  either 
for  the  defendant  or  for  the  state  on  that 
question,  in  addition  to  their  general  ver- 
dict of  guilty  or  not  guilty.  State  v. 
Barnes  (N.  Dak.)   19170-762. 

(Annotated.) 

11.  The  statutes  defining  and  provid- 
ing for  motion  in  arrest  of  judgment 
prevent  former  jeopardy  being  interposed 
in  arrest  of  judgment.  State  v.  Barnes 
(N.  Dak.)    1917C;-7€2.  (Annotated.) 

12.  Section  13  of  the  N.  Dak.  state  con- 
stitution, that  "no  person  shall  be  twice 
put  in  jeopardy  for  the  same  offense," 
merely  prescribes  immunity  from  a  second 
prosecution,  and  is  not  a  bar  thereto  un- 
less the  immunity  given  is  claimed  by  a 
plea  of  former  jeopardv  and  prior  to  ver- 
dict. State  T.  Barnes"  (N.  Dak.)  1917C- 
762.  (Annotated.) 


Kote. 
Failure  to  interpose  objection  of  former 
jeopardy  on  second  trial  as  waiver  of  plea. 
19170-765. 

FORNICATION. 
See  Adultery;  Prostitution;  Seduction. 

FOE  RESIDENCE  PURPOSES. 
Meaning,  see  Deeds,  50,  51. 

FOETHCOMINQ    BOND. 

See  Replevin,  4. 

FOUNDATION     FOR     IMPEACHMENT. 

See  WitnesseB,  96-98. 

FOURTEENTH  AMENDMENT. 
See  Constitutional  Law,  15,  30,  79. 

FRANCHISE. 

See  Corporations. 

Ferry  franchise,  see  Ferries. 

Of   street   railway    companies,    see    Street 

Railways,  1-3. 
Right    to    enjoin    illegal    taxation   of,   see 

Taxation,  95. 
Franchise  tax,  see  Taxation,  147,  148. 
Of  telegraph  and  telephone  companies,  see 

Telegraphs  and  Telephones,  2-5. 

1.  Forfeiture,  Construction  to  Avoid. 
Forfeitures  of  franchises  are  not  favored, 
and  legislative  enactments  of  that  char- 
acter are  strictly  construed.  State  v.  Iowa 
Tel.  Co.  (Iowa)   1917E-539. 

2.  Construction  of  Franchise.  Where 
the  meaning  of  a  grant  or  contract  regard- 
ing any  public  franchise  is  ambiguous  or 
doubtful,  it  will  be  construed  favorably  to 
the  rights  of  the  public.  State  t.  Water 
Supply  Co.  (N.  Mex.)  1916E-1290. 

FRATERNAL    BENEFIT    ASSOCIA- 
TIONS. 

See  Beneficial  Associations;  Insurancew 

FRATERNITIES. 
See  Societies  and  Clubs,  3,  4. 

FRAUD. 

1,  What  Constitutes,  389. 

a.  In  General,  389. 

b.  Opinion  on  Question  of  Law,  389. 

c.  Misrepresentation  as  to  Value,  389. 

d.  Breach  of  Promise,  389. 

e.  Concealment  of  Facts, 

f.  Abuse  of  Fiduciary  Relation,  390. 

2.  Actions,    390. 

a.  Persons  Entitled  to  Sae,  390. 

b.  Pleading,  390. 

c.  Presumptions  and  Burden  of  Proof, 

390. 


FRAUD. 


389 


See  Fraudulent  Sales  and  Conveyances; 
Bescission,  Cancellation  and  Beforma- 
tion. 

ABsignabilitj  of  cause  of  action,  see  Aj»- 
signments,  12-14. 

In  procuring  confession,  effect,  see  Con- 
fessions, 1. 

Fraud  in  confusion,  see  Confusion,  8,  9. 

Misrepresentation  and  concealment,  see 
Contracts,  53,  100. 

Stockholder's  action  against  officers,  see 
Corporations,  47. 

Waiver  by  delay,  see  Corporations,  65. 

Survival  of  actions,  see  Executors  and  Ad- 
ministrators, 84,  85. 

In  procurement  of  guaranty,  see  Guar- 
anty, 1. 

Effect  of  concealment  on  antenuptial  con- 
tract, see  Husband  and  Wife,  18,  19. 

On  ground  for  vacating  judgment,  see 
Judgments,  30,  37,  38. 

Imputation  of,  see  Libel  and  Slander,  30. 

Effect  on  incontestable  clause,  see  Life 
Insurance,  29,  32,  34,  36. 

When  cause  of  action  accrues,  see  Limita- 
tion of  Actions,  17-19. 

As  ground  for  vacating  award  under 
Workmen's  Compensation  Act,  see 
Master  and  Servant,  303. 

Fraudulent  service  of  process,  see  Process, 
4-17. 

In  obtaining  release,  see  Selease  and  Dis- 
charge, 5. 

Warranty  as  to  concealed  fact  no  defense, 
see  Ships  and  Shipping,  4. 

As  defense,  to  remedy,  see  Specific  Per- 
formance, 8. 

Use  of  one's  own  name  to  defraud,  see 
Trademarks  and  Tradenames,  5,  7. 

L     WHAT  CONSTITUTES, 
a.     In  General. 

1.  Bepresentations  as  to  Future.  Te 
constitute  actionable  fraud  in  the  sale  of 
property,  the  representations  must  be  of 
existing  facts  relating  to  the  subject  mat- 
ter of  the  contract,  made  by  the  vendor 
as  inducements,  which  are  false  and  known 
by  the  vendor  to  be  false,  or  made  by  him 
as  of  his  own  knowledge  without  knowl- 
edge as  to  the  facts,  which  are  not  open 
to  knowledge  of  or  known  by  the  other 
party,  and  are  relied  on  by  him  in  making 
the  purchase  to  his  damage;  representa- 
tions as  to  future  facts  or  promises,  or 
matters  of  opinion,  not  constituting  ac- 
tionable fraud.  Hunt  t.  Lewis  (Vt.) 
19160-17. 

b.     Opinion  on  Question  of  Law. 

2.  Bepresentations  as  to  Foreign  Law. 
In  an  action  tor  damages  for  fraud  in  the 
settlement  of  a  fraternal  beneficiary  certi- 
ficate, a  Missouri  contract,  by  false  rep- 
resentations as  to  the  insurer's  liability 
thereunder  on  suicide  of  the  insured,  the 
evidence  is  held  to  show  that  the  repre- 
sentations  of  the  law  were  correct,  and 


hence  that  there  was  no  fraud.  Travelers 
Protective  Assoc,  v.  Smith  (Ind.)  1917E;- 
1088.  ^  (Annotated.) 

3.  Misrepresentation  as  to  Foreign  Law. 
A  complaint,  alleging  that  defendant  was 
a  mutual  assessment  accident  association, 
organized  under  the  laws  of  Missouri;  is- 
sued its  membership  certificates  to  plain- 
tiff's husband,  naming  plaintiff  as  the 
beneficiary  entitled  to  $5,000  in  case  of 
death  by  accident,  the  constitution  of 
which  association  provided  that  $100  should 
be  paid  the  beneficiary  where  death  re- 
sulted from  suicide,  and  a  rule  of  which 
provided  that  the  association  should  not 
be  liable  if  insured  inflicted  fatal  injury 
upon  himself  while  sane  or  insane;  that 
insured  while  of  unsound  mind  inflicted  a 
fatal  revolver  shot;  that  due  notice  and 
proof  of  death  was  given  and  demand  made 
for  the  amount  of  the  certificate,  but  that 
defendant,  though  knowing  that  under  the 
laws  of  Missouri  suicide  was  not  a  de- 
fense, fraudulently  represented  that  it 
was;  that  plaintiff  in  ignorance  thereof 
and  in  reliance  thereon,  accepted  the  sum 
of  $100  and  executed  a  release  of  ■claim — 
sufficiently  pleads  fraud.  Travelers  Pro- 
tective Assoc.  V,  Smith  (Ind.)  1917E-1088. 

(Annotated.) 

4.  There  is  no  fraud  in  a  representation 
as  to  the  law  of  the  state  of  the  domicU  of 
the  party  to  whom  the  representation  is 
made,  but  the  misrepresentation  of  the  law 
©f  a  foreign  state  is  a  misrepresentatfon  of 
fact.  Travelers  Protective  Assoc,  v.  Smith 
(Ind.)   1917E-1088.  (Annotated.) 

Note. 

Misrepresentation  as  to  foreign  law  as 
fraud.     1917E-1096. 


c.     Misrepresentation  as  to  Value. 

5.  Opinion  as  to  Value  as  Fraud.  On 
an  exchange  of  real  property  for  a  room- 
ing house  business,  where  plaintiff  is  fa- 
miliar with  the  rooming  house  which  she 
received  in  the  exchange,  and  has  some 
experience  in  running  a  rooming  house, 
and  knows  the  rent  received  for  the  rooms 
occupied  at  the  time,  and  defendants 
make  no  false  representation  as  to  what 
thev  had  made  by  conducting  the  rooming 
house,  statements  by  defendants  as  to 
what  plaintiff  could  make  if  she  took  the 
rooming  house  are  expressions  of  opinion, 
and  not  statements  of  fact  constituting 
fraud,  or  forming  the  basis  for  rescission 
of  the  exchange.  Haney  v.  Parkison 
(Ore.)    1916D-1035.  (Annotated.) 

d.     Breach  of  Promise. 

Note. 
Riffht   of  action   for  fraud  in  inducing 
performance   of   personal    service   without 
intent  to  pay  therefor.     19160-172. 


390 


e.    Concealment  of  Facts. 


6.  Ooncealment  of  Lien  by  Seller.  One 
who  sells  a  ship  and  'the  freight  on  her 
then  voyage  two  weeks  after  he  has 
drawn  a  disbursement  note  for  the  total 
amount  of  the  freight,  which  he  made  a 
lien  against  the  ship  as  well  as  the  freight, 
is  guilty  of  actionable  fraud  in  not  in- 
forming the  buyer  of  the  existence  of  the 
draft,  of  which  the  latter  has  no  means 
of  acquiring  knowledge.  Corry  v.  Sylvia 
Y  Cia  (Ala.)  1917E-1052. 

f.     Abuse  of  Fiduciary  Relation. 

7.  Wbat  Constitutes  Fiduciary  Belation. 
Wherever  special  confidence  is  reposed  by 
reason  of  blood,  business  friendship  or  as- 
sociation, by  one  person  in  another  who  is 
in  a  position  to  have  and  exercise  or  does 
exercise  and  have  influence  over  the  other, 
a  fiduciary  relation  may  exist.  Dawson  v. 
National  Life  Ins.  Co.  (Iowa)  1918B-230. 


DIGEST. 

19160— 1918B. 

12.  Sufficiency  of  Pleading.  In  plead- 
ings in  chancery  for  which  no  abbreviated 
code  form  is  provided,  all  the  elements  of 
actionable  deceit  must  be  severally  alleged. 
Corry  v.  Sylvia  Y  Cia  ^Ala.)   1917E-1052. 


a. 


2.     ACTIONS. 
Persons  Entitled  to  Sue. 


8.  Procuring  Personal  Property.  The 
rules  and  principles  governing  actions  for 
deceit  in  the  sale  of  real  or  personal  prop- 
erty apply  to  actions  for  procuring  per- 
sonal services  by  fraud.  Hunt  t.  Lewis 
(Vt.)  1916C-170. 

b.     Pleading. 

9.  An  amended  count  in  the  same  decla- 
ration, which  alleged  that  defendant  had 
the  money  with  which  to  pay  for  the  ser- 
vices and  he  so  informed  the  plaintiff  and 
promised  to  pay  for  them,  but  did  not  in- 
tend to  do  80,  merely  alleges  a  promise, 
and  not  a  misrepresentation  as  to  an  ex- 
isting fact,  and  is  insufficient.  Hunt  v. 
Lewis  (Vt.)  1916C-170.  (Annotated.) 

10.  Inducing  Performance  of  Personal 
Services.  A  declaration  for  fraud  in  pro- 
curing the  services  of  an  attorney,  which 
alleged  in  the  first  count  that  the  defend- 
ant represented  that  he  would  pay  for  the 
services,  knowing  that  he  would  not  have 
the  money  with  which  to  pay  and  intend- 
ing to  deceive  the  plaintiff,  and  in  the 
second  count  that  the  defendant  falsely 
and  maliciously  represented  that  he  wo.ild 
and  could  pay  for  the  services,  not  know- 
ing that  he  could  or  would  have  the  money 
with  which  to  pay,  charges  representations 
or  promises  as  to  future  and  not  as  to 
existing  facts,  and  therefore  does  not  state 
a  cause  of  action.  Hunt  v.  Lewis  (Vt.) 
1916C-170.  (Annotated.) 

11.  Alleging  Knowledge  of  Falsity.  A 
count  for  deceit  in  the  form  prescribed  by 
Ala.  Code  1907,  §  3382,  subsec.  21,  except 
that  it  does  not  allege  defendant's  knowj- 
edge  of  the  falsity,  is  sufficient  where 
there  is  a  legal  implication  of  such  knowl- 
edge from  the  facts  pleaded.  Corry  v.  Svl- 
via  Y   Cia  (Ala.)   1917E-1052. 


c.    Presumptions  and  Burden  of  Proof. 

13.  Effect  of  Fiduciary  Belation.  When- 
ever the  relations  between  the  contracting 
parties  are  such  as  to  render  it  certain 
that  they  do  not  deal  on  terms  of  equality, 
but  that  either,  on  the  one  side  from  su- 
perior knowledge  of  the  matter  derived 
from  a  fiduciary  relation  or  from  overmas- 
tering influence,  or,  on  the  other,  from  de- 
pendence, or  a  trust  justifiably  reposed, 
unfair  advantage  in  a  transaction  is  ren- 
dered probable,  the  transaction  is  presumed 
void,  and  the  burden  shifts  to  the  stronger 
party  to  show  affirmatively  that  no  decep- 
tion was  practiced  and  no  undue  influence 
used.  Dawson  v.  National  Life  Ins.  Co. 
(Iowa)  1918B-230. 

14.  Burden  of  Proof.  Under  a  count  for 
deceit  in  the  form  prescribed  by  Ala.  Code 
1907,  §  5382,  subsec.  21,  the  burden  is  on 
plaintiff  to  prove  every  element  of  action- 
able deceit.  Corry  v.  Sylvia  Y  Cia  (Ala.) 
1917E-1052. 


FRAUDS,  STATUTE  OP. 

1.  Contracts  not  to  be  Performed  Within 

a  Year,  390. 

2.  Sale  of  Chattels,  391. 

3.  Estates  in  Land,  391. 

a.  Agreements   Other   Than   Contracts 

of  Sale,  391. 

b.  Contracts  of  Sale,  391. 

c.  Agreements  With  Agent,  392. 

4.  Promise  to  Answer  for  the   Debt,  De- 

fault or  Miscarriage  of  Another,  392. 

5.  Sufficiency  of  Memorandum,  392. 

a.  In  General,  392. 

b.  Signature  of  Parties,  392. 

c.  Statement  of  Consideration,  392. 

6.  Part  Performance,  393. 

7.  Performance  and  Enforcement,  393. 

8.  Pleading  and  Practice,  393. 

9.  Loss  of  Memorandum,  Effect,  393. 

1.  CONTRACTS  NOT  TO  BE  PER- 
FORMED WITHIN  A  YEAR. 

1.  Renewal  of  Written  Contract  for 
Year.  Wber^  a  bookkeeper  was  employed 
under  a  written  contract  for  one  year  and 
continued  from  year  to  year  thereafter, 
his  contract  for  each  of  the  succeeding 
years  was  a  contract  for  one  year's  service 
to  begin  and  be  performed  within  the 
year,  and  consequently  was  not  within  the 
Va.  statute  of  frauds.  Conrad  v.  Ellison- 
Harvey  Co.  (Va.)  1918B-1171. 

2.  Contract  Depending  on  Contingency. 
An  oral  contract  binding  one  to  rear  and 
maintain  another's  child  until  the  child's 
maturity  is  not  within  the  Ky.  statute  of 


FRAUDS,  STATUTE  OF. 


391 


frands  requiring  contracts  to  be  in  writ- 
ing which  are  not  to  be  performed  in  a 
year,  for  the  child  mav  die  within  the 
year  and  thereby  terminate  the  contract. 
Myers  V.  Saltry  (Ky.)   1916E-1134. 

(Annotated.) 

Note. 

Whether  contract  which  depends  upon 

contingency  for  performance  within  year 

is  within  statute  of  frauds,     1916E-1136. 

2.     SALE?  OF  CHATTELS. 

3.  "Where  sale  of  personal  property  is 
made  to  a  buyer  in  possession,  the  Cal. 
statute  of  frauds  does  not  require  him  to 
quit  it  and  to  retake  possession  as  the 
new  owner.  Wilson  v.  Hotehkiss  (Cal.) 
1917B-570.  (Annotated.) 

4.  ivetentio»  of  Vendee  in  Possession. 

Under  the  Cal.  statute  of  frauds  providing 
that  sales  of  personal  property  for  a  price 
of  $200  or  more  shall  be  invalid  unless 
there  be  some  written  memorandum,  ex- 
cept where  the  buyer  accepts  part  of  the 
goods,  the  mere  words  of  the  buyer,  who 
was  already  the  pledgee  in  possession,  or 
proof  of  his  acts  of  dominion  over  the 
property  inconsistent  with  his  former 
rights  as  pledgee,  may  establish  a  transfer 
of  possession  from  that  of  a  pledgee  to 
that  of  complete  ownership.  Wilson  v. 
Hotehkiss  (Cal.)  1917B-570. 

(Annotated.) 

5.  Contract  for  Sale  of  Building.  A 
contract  for  the  sale  of  a  house  to  be  im- 
mediately removed  from  the  land,  to  which 
it  is  affixed,  is  a  sale  of  personalty,  and 
not  of  an  "interest  in  realty,"  within  the 
Conn,  statute  of  frauds  prohibiting  an  ac- 
tion on  a  contract  for  the  sale  of  realty 
unless  it  is  in  writing.  Wetkopsky  v.  New 
Haven  Gas  Light  Co.  (Conn.)   1916D-968. 

(Annotated.) 

6.  Delivery  Avoiding  Statute.  Where  G. 
orders  lumber  of  P.,  aad  F.  then  orders 
of  T.,  and  T.  on  the  ord«r  of  and  primarily 
billing  it  to  F.  delivers  it  to  G.,  this 
amounts  to  a  delivery  to  F.,  and  by  F.  to 
G.;  the  latter,  under  Rem.  &  Bal.  Code, 
§  5290,  taking  F.'s  contract  for  sale  to  G. 
out  of  the  Wash,  statute  of  frauds.  First 
National  Bajik  t.  G.  Geske  &  Co.  (Wash.) 
1917B-564.  (Annotated.) 

7.  Part  Payment.  Within  the  provision 
Df  the  Md.  Uniform  Sales  Act  (Code  Pub. 
Ziv.  Laws,  art.  83)  that  a  contract  to  sell 
ar  a  sale  of  goods  of  the  value  of  $50  or 
ipward  shall  not  be  enforceable  by  ac- 
tion unless  the  buyer  shall  accept  part  of 
■,he  goods  and  actually  receive  them  or 
yivp  something  in  earnest  to  bind  the  con- 
tact or  in  part  payment,  etc.,  if  a  reser- 
Fati^n  of  a  growing  crop  by  a  grantor 
imounts  to  a  contract  to  sell  or  a  sale, 
•.he  grantor  both  accepts  and  receives  the 
!rop  and  gives  something  in  part  payment, 
vhere  the  crop  is  subsequently  delivered 


to  him  by  a  tenant;  the  conveyance  of  the 
property  constituting  payment  in  full. 
Willard  v.  Higdon  (Md.)  1916C-339. 

8.  Sale  of  Corporate  Stock.  A  contract 
relating  to  the  sale  of  corporate  stock  of 
the  value  named  falls  within  the  statute 
of  frauds  relating  to  the  sale  of  personal 
property.  Such  contract  is  one  for  the 
disposal  of  goods  within  the  meaning  of 
section  8384  (1),  Ohio  General  Code,  and 
is  required  to  be  in  writing  and  signed 
by  the  parties  to  be  charged.  Davis 
Laundry,  etc.  Co.  v.  Whitmore  (Ohio) 
1917C-988.  (Annotated.) 

9.  Delivery  Avoiding  Statute  of  Frauds. 

Where  plaintiff  sent  orders  by  mail  from 
time  to  time  to  defendants  for  flour  for 
future  delivery,  the  most  of  which  were 
accepted  in  writing,  but  one  was  not,  de- 
liveries afterward  made  without  any  des- 
ignation of  the  particular  contract  on 
which  they  were  applied  were  presump- 
tively intended  to  apply  and  were  applied 
on  the  contracts  in  their  chronological  or- 
der, and,  where  there  was  not  sufficient  to 
fill  the  orders  prior  to  the  one  not  ac- 
cepted, there  is  no  ground  for  claiming  a 
delivery  thereon  to  take  the  sale  out  of 
the  statute  of  frauds.  Van  Boskerck  v. 
Torbert  (Fed.)  1916E-171. 

Notes. 

Effect  on  sales  of  corporate  stock  of 
seventeenth  section  of  statute  of  frauds 
and  equivalent  enactments.     1917C-991. 

Symbolical  or  constructive  delivery  of 
goods  within  statute  of  frauds.  1917B- 
566. 

Costinuance  of  existing  possession  by 
vendee  as  sufficient  delivery  to  take  verbal 
sale  of  goods  out  of  statute  of  frauds. 
1917B-572. 

Contract  for  sale  of  building  as  contract 
for  sale  of  realty  within  statute  of  frauds. 
1916D-970. 

3.     ESTATES  IN  LAND. 

a.     Agreements  Other  Than  Contracts  of 
Sale. 

10.  Parol  Reservation  of  Growing  Crop. 
As  a  growing  crop  may  be  sold  by  parol, 
a  parol  reservation  of  such  a  crop  upon  a 
conveyance  of  land  is  valid,  since  a  crop 
may  be  so  dealt  with  as  to  make  it  per- 
sonal property,  and  therefore  does  not 
necessarily  pass  with  the  land  upon  which 
it  is  growing.  Willard  v.  Higdon  (Md.) 
1916C-339.  (Annotated.) 

Note. 
Validity  of  parol  reservation   of   crops 
by  vendor  of  land.     1916C-344. 

b.     Contracts  of  Sale. 

11.  Transfer  of  Growing  Crop.  Grow- 
ing crops,  if  fructus  industriales,  such  as 
a  crop  of  wheat,  are  chattels,  and  may  be 


392 


DIGEST. 
19160— 1918B. 


■old  without  complying  with  the  require- 
ments of  the  statute  of  frauds,  especially 
in  view  of  Md.  Uniform  Sales  Act  (Code 
Pub.  Ciy.  Laws,  art.  83),  §  97,  providing 
that  "goods"  includes  all  chattels  per- 
sonal other  than  things  in  action  or  money, 
and  that  the  term  includes  emblements, 
industrial  growing  crops,  and  things  at- 
tached to  or  forming  a  part  of  the  land 
which  are  agreed  to  be  severed  before  sal* 
or  under  the  contract  of  sale.  Willard  ▼. 
Higdon  (Md.)   1916C-339. 

e.    Agreements  With  Agent. 

12.  Broker's  Authority  to  Sell.  Under 
Colo.  Eev.  St.  1908,  §  2660,  providing  that 
no  estate  or  interest  in  lands  other  than 
leasee  for  not  exceeding  one  year  shall  be 
created,  granted,  etc.,  unless  by  operation 
of  law  or  by  a  conveyance  in  writing  sub- 
scribed by  the  party  creating  it,  or  by  his 
lawful  agent  thereunto  authorized  by  writ- 
ing, section  2662,  requiring  contracts  for 
the  sale  of  the  land  to  be  in  writing  and 
subscribed  by  the  party  by  whom  the  sale 
is  made,  section  2663,  providing  that  such 
instruments  may  be  subscribed  by  such 
p^irty's  agent  lawfully  authorized  by  writ- 
ing, and  section  2677  defining  "convej- 
ance"  as  used  in  that  chapter  as  embrac- 
ing every  instrument  in  writing  except  a 
will  by  which  any  estate  or  interest  in 
lands  is  created,  aliened,  assigned,  or  sur- 
rendered, an  agent's  authority  to  contract 
for  the  sale  of  land  on  behalf  of  his  prin- 
cipal must  be  conferred  in  writing. 
Springer  v.  City  Bank,  et».  Co.  (Colo.) 
1917A-520. 

4.  PROMISE  TO   ANSWER   FOR   THE 

DEBT,   DEFAULT   OR  MISCARRI- 
AGE OF  ANOTHER. 

13.  Agreement  of  Stockholder  to  Bepay 
Advance  to  Corporation.  A  promise  by  a 
stockholder  that  he  will  repay  advances 
to  be  made  to  the  corporation,  on  the 
strength  of  which  advances  are  made, 
creates  an  original  and  not  a  secondary 
liability  JUid  is  not  within  the  Can.  statute 
of  frauds.  Gillies  v.  Brown  (Can.)  1917D- 
354.  (Annotated.) 

5.  SUFFICIENCY  OF  MEMORANDUM. 

a.     In   General. 

14.  Memorandum  Insufficient.  A  writ- 
ing which  stated  the  receipt  from  plaintiff 
of  $5  "deposit  on  house  No.  44  Mill  street, 
balance  of  $35  to  be  paid  on  or  before  the 
date  named,"  and  signed  by  defendant, 
and  another  writing,  signed  by  defendant, 
reciting  the  receipt  from  plaintiff  of  $35 
"balance  on  house  No.  44  Mill  Street," 
were  insufficient  as  memoranda  of  any 
contract  for  the  sale  of  land,  not  showing 
any  sale.  Wetkopsky  v.  New  Haven  Gas 
Light  Co.  (Conn.)  1916D-968. 


15.  Contract  of  Sale — Evidence  of  Writ- 
ing Insufficient.  Evidence  in  behalf  of 
cross-complainant  in  ejectment  claiming 
under  a  contract  for  a  conveyance  by  de 
fendant  bank,  plaintiff's  grantor,  is  held 
to  be  insufficient  to  prove  any  written 
agreement  or  memorandum  to  convey  the 
realty,  as  required  by  Ore.  L.  O.  L.  §  808, 
subd.  6.  Brown  v.  Farmers',  etc.  National 
Bank  (Ore.)  1917B-1041. 

b.     Signature  of  Parties. 

16.  Sale  of  Ooods.  An  unsigned  state- 
ment given  by  defendants  to  plaintiff,  pur- 
porting to  show  the  number  of  barrels  of 
flour  sold  by  defendants  to  plaintiff  and 
remaining  undelivered,  which  included  a 
certain  number  of  barrels  sold  on  a  cer- 
tain date,  is  not  a  sufficient  memorandum 
to  take  such  sale  out  of  the  statute  of 
frauds  of  New  York,  which  requires  con- 
tracts of  sale  of  goods  for  the  price  of 
$50  or  more  not  delivered  to  be  evidence 
by  some  note  or  memorandum  in  writing 
subscribed  by  the  party  to  be  charged  or 
his  agent.  Van  Boskerck  v.  Torbert  (Fed.) 
1916E-I7I. 

17.  Printed  Signature.  A  printed  and 
written  contract  between  an  owner  of 
land  and  a  broker  or  agent  for  the  sale 
of  land  was  signed  by  the  owner  by  his 
own  hand.  The  signature  of  the  broker 
was  printed.  The  broker  acted  upon  the 
contract.  In  this,  an  action  to  recover  a 
commission  for  the  sale  of  the  land  de- 
scribed in  the  contract,  the  trial  court  ex- 
cluded the  paper  as  not  being  sufficient 
under  section  2628,  Rev.  St.  1913,  and  re- 
fused an  offer  to  show  that  the  land  was 
sold  by  virtue  of  the  contract.  Held,  that 
the  rulings  were  erroneous.  Berryman  v. 
Childs  (Neb.)  1918B-1029.      (Annotated.) 

Note. 
Sufficiency     of     printed     signature     to 
memorandum    within    statute    of    frauds. 
1918B-1030. 

c.     Statement  of  Consideration. 

18.  Necessity  of  Stating  Consideration. 
Under  Ore.  L.  O.  L.  §  808,  declaring  void 
certain  agreements,  including  one  author- 
izing or  employing  an  agent  or  broker  to 
sell  real  estate  for  compensation  or  a  com- 
mission, unless  the  same,  or  a  memoran- 
dum thereof,  expressing  the  considerations, 
be  in  writing  and  subscribed  by  the  jmrty 
to  be  charged,  the  written  authorization 
to  a  broker  to  sell  real  estate  must  state 
the  compensation  to  be  paid  him.  Tag- 
gart  V.  Hunter  (Ore.)  1918A-128. 

(Annotated.) 
Note. 
Necessity   for   statement   of    considera- 
tion in  contract  within  statute  of  frauds 
other  than  contract  to  answer  for  debt  of 
another.     1918A-134. 


FEAUDULENT  SALES  AND  CONVEYANCES. 


393 


6.     PART    PERFORMANCE. 

19.  Verbal  Agreement  to  Divide  Estate. 

Where  plaintiff's  father  before  his  death 
made  an  agreement  with  his  children  for 
the  distribution  of  his  property,  giving 
equal  shares  to  all  except  to  the  plaintiff, 
who  was  a  cripple  and  in  ill  health,  and 
who  continued  to  live  with  her  father,  and 
where  he  executed  deeds  to  the  other  chil- 
dren for  the  property  which  they  were  to 
receive  under  the  agreement,  but  failed  to 
execute  a  deed  to  plaintiff  for  the  75  acres 
of  the  home  place  which  she  was  to  re- 
ceive, and  thereafter,  by  acts  of  the  de- 
fendant, the  father  was  led  to  deed  a  por- 
tion of  the  75  acres  orally  given  to  plain- 
tiff to  the  defendant,  plaintiff  was  entitled 
to  a  decree  setting  aside  the  deed  to  the 
defendant  and  vesting  title  in  her,  in  spite 
of  the  statute  of  frauds.  Simmons  v.  Ross 
(111.)  1916E-1256. 

20.  Delivery  of  Stock.  The  delivery  of 
the  242  shares  of  stock  to  the  National 
Bank  of  Commerce,  accompanied  by  de- 
fendant's possession  and  operation  of  the 
plant  for  a  period  of  two  weeks,  was 
evidence  justifying  a  jury  in  finding 
that  this  was  an  acceptance  under  the 
verbal  contract,  and  took  the  case  out 
of  the  Ohio  statute  above  mentioned. 
Davis  Laundry,  etc.  Co.  r.  "Whitmor© 
(Ohio)  1917C-988.  (Annotated.) 

7.     PERFORMANCE     AND     ENFORCE- 
MENT. 

21.  Executed  Cojitract.  The  statute  of 
frauds  does  not  apply  to  executed  con-. 
tracts;  hence  the  acceptance  by  defendant 
of  part  of  the  materials  purchased  by 
plaintiff,  who  agreed  to  furnish  the  mate- 
rials and  stake  out  a  telephone  line  of  six- 
teen sections,  takes  the  case  without  the 
Vt.  statute.  Camp  v.  Barber  (Vt.)  1917A- 
451. 

22.  Oral  Contract  as  Defense.  A  party 
may  rely  upon  an  oral  contract  as  a  de- 
fense, though  the  contract  could  not  be 
enforced  on  account  of  the  statute  of 
frauds,  especially  in  view  of  the  provision 
of  the  Md.  Uniform  Sales  Act  (Code  Pub. 
Cir.  Laws,  art.  83)  that  a  contract  to  sell 
or  a  sale  "shall  not  be  enforceable"  un- 
less the  buyer  shall  accept  part  of  the 
goods  and  actually  receive  them,  etc. 
Willard  v.  Higdon  (Md.)   1916C-339. 

8.     PLEADING  AND  PRACTICE. 

23.  Necessity  of  Pleading  as  Defense. 
The  defense  of  statute  of  frauds  is  waived, 
not  being  pleaded  or  otherwise  raised  in 
the  trial  court,  though  the  complaint  fully 
disclosed  the  basis  of  plaintiff's  «laim. 
First  National  Bank  r.  G.  Geake  ft  Co. 
(Wash.)  1917B-564. 

9.     LOSS  OF  MEMORANDUM,  EFFECT. 

24.  Proof  of  Lost  Memorandum,  The 
contents  of  a  written  memorandum  of  sale 


required  by  the  statute  of  frauds,  whieh 
has  been  lost,  may  be  proved  by  parol, 
and  proof  of  a  statement  by  a  defendant 
that  an  order  for  merchandise  sent  by  let- 
ter had  been  accepted  by  mail  is  sufficient 
to  establish  guch  a  written  memorandum 
of  sale,  although  the  acceptance  was  not 
received  by  plaintiff.  Van  Boskerck  v. 
Torbert  (Fed.)  1916E-171. 

(Annotated.) 

Note. 

Proof  by  parol  of  contents  of  lost 
memorandum  required  by  statute  of 
frauds.    1916E-173. 


FRAUDULENT  SALES  AND  CONVEY- 
ANCES. 

1.  In  General,    393. 

2.  Transactions  Invalid,  393. 

3.  Remedies  of  Creditors,  394. 

4.  Avoidance  of  Conveyance,  394. 

a.  Who  may  Avoid,  394. 

b.  Evidence,  394. 

c.  Instructions,  394. 

5.  Property  Subject  to  Claims  of  Creditors. 

395. 
C.  Sales  in  Bulk  Acts,  395. 

a.  Validity,  395. 

b.  Construction,  395. 

c.  Defenses,  395. 

d.  Liability  of  Purchaser,  ,395. 

What  law  governs,  see  Bankruptcy,  17. 
Avoidance  in  bankruptcy,  see  Bankruptcy, 
12,  17-20. 

Conveyance    of    homestead',    validity,    see 
Homestead,  12-16. 

Suit  to  set  aside  transfer,  see  Limitation 
of  Actions,  9,  10. 

1.     IN  GENERAL. 

1.  Right  to  Prefer  Creditoj.  At  com- 
mon law  a  debtor  may  prefer  one  creditor 
to  another,  provided  there  is  no  secret 
trust  for  the  debtor;  and  such  genuine 
transfer  is  not  vitiated  by  the  fact  that  in 
other  respects  the  preferred  creditor  de- 
sired to  and  did  help  the  debtor  to  se- 
crete his  property  from  another  creditor. 
Gurney  v.  Tenney  (Mass.)  1918A-739. 

2.  Conveyance  in  Consideration  of  Sup- 
port. A  conveyance  by  an  old  and  feeble 
man,  of  his  homestead  to  his  daughter  in 
consideration  of  her  caring  for  him  in  his 
old  age  is  not  necessarily  fraudulent. 
McKillip  V.  Farmers'  State  Bank  (N.  Dak.) 
1917C-993. 

2.     TRANSACTIONS  INVALID. 

3.  Voluntary  Conveyance  Producing  In- 
solvency. Where  a  debtor  conveys  un- 
exempt  property  without  consideration  and 
without  retaining  sufficient  other  property 
to  pay  his  then  existing  debts,  the  con- 
veyanfe  is  void  as  against  prior  creditors. 
Thysell  v.  McDonald  (Minn.)  1917C-1015. 


394 


8.     REMEDIES  OF  CJEEDITORS. 

4.  Sight  to  Ignore  Conveyance.  Under 
Ky.  St.  §  1907,  declaring  that  every  con- 
veyance by  a  debtor  without  valuable  con- 
aideration  shall  be  void  as  to  his  then 
existing  liabilities,  where  the  legal  title 
to  land  vested  in  a  debtor's  children  un- 
der a  conveyance  from  their  grandfather 
to  whom  their  father  conveyed,  is  subject 
only  to  the  claim  of  the  debtor's  creditors 
to  the  extent  of  $50,  the  amount  of  the 
purchase  price  paid  by  the  father,  no  part 
of  the  property  can  be  subject  to  the  cred- 
itor's claim  without  a  proceeding  to  have 
the  conveyance  declared  to  be  fraudulent 
as  to  amount  paid  by  the  father,  and  in 
such  case  an  execution  could  not  be  levied 
thereon  on  the  theory  that  the  title  there- 
to never  passed.  Hall  t.  Caaebolt  (Ky.) 
1917C-1012. 

5.  Where  conveyances  by  a  debtor 
through  his  father  to  his  children  were 
without  consideration,  the  conveyances  are 
void  under  Ky.  St.  §  1907,  as  to  prior 
debts,  and  no  title  passes  to  the  grantee, 
and  the  property  may  be  sold  under  an 
execution  against  the  debtor,  ignoring  the 
fraudulent  conveyances.  Hall  v.  Casebolt 
(Ky.)  1917C-1012. 

4.     AVOIDANCE  OF  CONVEYANCE. 
,a.     Who  may  Avoid. 

6.  Mortgagee  of  Other  Land.  A  mort- 
;^gee  may  maintain  a  suit  to  set  aside  a 
fraudulent  conveyance  of  property  other 
than  that  covered  by  the  mortgage  by  a 
purchaser  assuming  payment  of  the  mort- 
gage debt,  where  the  purchaser  is  insol- 
vent. Fidelity  Mortgage  Bond  Co.  v. 
Morris  (Ala.)  1917C-952.         (Annotated.) 

7.  Consideration — Indemnity  to  Surety. 
A  surety  who  guaranteed  performance  of 
a  contract  ipay,  upon  furnishing  the  prin- 
cipal with  advances  necessary  to  enable 
him  to  carry  out  his  contract,  demand  se- 
curity, and  other  creditors  of  the  prin- 
cipal cannot  attack  mortgages  given  or 
assignments  made  as  in  fraud  of  creditors. 
Dickey  v.  Southwestern  Suretv  Ins.  Co. 
(Ark.)   1917K-634. 

8.  Withholding  Deed  from  Record. 
Where  a  grantee  withheld  his  conveyance 
from  record  for  over  three  years,  during 
which  time  the  grantor  was  in  open  and 
exclusive  possession  of  the  land,  the  con- 
veyance being  withheld  so  as  not  to  im- 
pair the  credit  of  the  grantor,  the  convey- 
ance is,  as  to  those  extending  credit  on 
the  faith  of  the  grantor's  apparent  owner- 
ship, fraudulent;  consequently  a  complaint 
by  the  grantor's  trustee  in  bankruptcy, 
alleging  such  facts,  is  good  against  de- 
murrer. Manders  v.  Wilson  (Fed.)  1918A- 
1052.  (Annotated.) 

b.     EN'idence. 

9.  Snfflciency  of  Evidence.  After  plain- 
tiff obtained  verdict  against  T.,  T.  induced 


DIGEST. 

19160— 1918B. 

H.  to  foreclose  her  second  mortgage  on 
his  property,  and  after  she  had  been 
obliged  to  pay  the  first  mortgage  she  in- 
sisted on  a  change;  and  the  property  was 
conveyed  to  P.,  by  arrangement  between 
P.  and  T.,  and  P.  gave  a  first  mortgage  to 
a  bank  and  a  second  mortgage  to  H.,  the 
two  being  less  than  the  original  mort- 
gages. It  is  held  that,  as  against  a  find- 
ing of  no  fraudulent  purpose  by  H.,  it  was 
not  necessary,  as  matter  of  law,  to  attrib- 
ute one  to  her.  Qurney  v.  Tenney  (Mass.) 
1918A-739. 


10.  Proof  of  Fraud.  Where  one  seeks  to 
set  aside  a  deed  on  the  ground  of  fraud, 
his  proof  must  be  clear  and  convincing. 
McKillip  V.  Farmers'  State  Bank  (N.  Dak  ) 
1917C-993. 

11.  In  an  action  to  quiet  title  to  two 
tracts  of  land  and  to  set  aside  a  levy 
and  sale  thereof  in  a  creditor's  suit  against 
the  debtor,  the  plaintiff's  father,  the  evi- 
dence is  held  to  show  that  the  debtors'  con- 
veyance of  the  tract  to  the  plaintiffs  was 
voluntary,  without  consideration,  and  for 
the  fraudulent  purpose  of  defeating  his 
creditors.  Hall  v.  Casebolt  (Ky.)  1917C- 
1012. 

12.  SoAciency  of  Evidence.  In  an  ac 
tion  by  the  assignee  of  a  judgment  to  sub- 
ject corporate  stock  and  bonds  thereto,  the 
evidence  is  held  to  show  that  the  securi- 
ties were  sold  in  good  faith  by  the  judg- 
ment debtor,  with  indorsement  and  de- 
livery, to  interveners,  his  creditors.  Hus- 
band V.  Linehan  (Ky.)  1917D-954. 

Note. 
Delay  in  recording  deed  as  constituting 
fraud    on    creditors    of    grantor.     1918A- 
1054. 

c.     Instructions. 

13.  Consideration — Payment  by  Orantee 
of  Balance  of  Price  Due  from  Grantor. 
The  court  erred  in  instructing  the  jury 
that  if  one  who  was  insolvent  conveyed  to 
another  property  upon  which  he  owed  an 
unpaid  balance  of  the  purchase  price,  upon 
the  sole  consideration  of  payment  of  the 
balance  of  the  purchase  money,  by  the 
transferee,  such  conveyance  would  be  with- 
out a  valid  consideration  and  void  as 
against  other  creditors;  that  the  equity 
which  the  vendor  had,  if  he  had  an  equity, 
in  the  property  under  the  circumstances 
stated,  was  subject  to  his  debts,  and  that 
he  could  only  "convey  it  for  a  valuable 
consideration;  otherwise,  it  belonged  to 
his  creditors,  and  he  could  not  give  :t 
away  to  a  person  without  receiving  some- 
thing for  it  which  would  inure  either  to 
the  benefit  of  himself  or  his  creditors."  A 
conveyance  by  an  insolvent  under  the  cir- 
cumstances to  another  party  upon  the  con- 
sideration of  the  payment  by  the  latter  of 
the  balance  of  the  unpaid  purchase  money 
would  not  be  without  consideration,  and 


FREEDOM  OF  PRESS— FREE  SCHOOLS. 


395 


would  not  be  a  mere  voluntary  convey- 
ance, and  it  was  error  to  so  instruct  the 
jury;  though  they  might  properly  have 
been  informed  that  in  passing  upon  the 
bona  fides  of  the  transaction  between  the 
vendor  and  his  transferee  they  could  take 
into  consideration  the  value  of  the  equity 
in  the  land  with  which  the  vendor  was 
vested  and  the  amount  of  the  unpaid  pur- 
chase money,  and  the  insolvency  of  the 
grantor.  Ga.  Civ.  Code,  §  4244.  Loewen- 
herz  v.  Merchants',  etc.  Bank  (Ga.)  1917E- 
877. 

5.  PROPERTY  SUBJECT  TO  CLAIMS 
OF  CREDITORS, 

14.  Pro<;eeds  of  Fire  Insurance  Policy. 
The  proceeds  of  the  insurance  on  a  build- 
ing on  land  conveyed  to  insured  in  fraud 
of  the  creditors  of  the  grantor  do  not  take 
the  place  of  the  property  destroyed  by 
fire,  and  the  trustee  in  bankruptcy  of  the 
grantor  may  not  recover  them.  Trenholm 
V.  Klinker  (Miss.)  1917E-289. 

(Annotated.) 
Note. 
Right  to  proceeds  of  insurance  on  prop- 
erty    conveyed    in    fraud    of    Qreditors. 
1917E-291. 

6.     SALES  IN  BULK  ACTS. 
a.     Validity. 

15.  The  Act  of  April  18,  1913,  to  amend 
section  11102  et  seq.,  Ohio  General  Code, 
relating  to  the  transfer  of  stocks  of  mer- 
chandise and  fixtures  other  than  in  the 
usual  course  of  trade  (103  O.  L.  462),  is  a 
valid  enactment  not  repugnant  to  the  state 
or  federal  constitutions.  Steele,  etc.  Co. 
V.  MiUer  (Ohio)  1917C-926. 

(Annotated.) 

16.  The  New  York  Bulk  Sales  Law  (Per- 
sonal Property  Law,  §  44)  invalidating  as 
to  creditors  a  sale  in  bulk  of  a  stock  of 
merchandise  is  constitutional.  Klein  v. 
Maravelas  (N.  Y.)  1917B-273. 

(Annotated.) 

17.  The  Ark.  Bulk  Sales  Law  (Laws 
1913,  p.  326),  which  requires  a  purchaser 
of  stock  of  goods  in  bulk  to  give  notice  to 
creditors  before  purchase,  is  not  invalid 
as  violating  Const,  art.  2,  §§  2  and  18, 
guaranteeing  the  right  of  acquiring,  pos- 
sessing, and  protecting  property,  and  pro- 
hibiting the  granting  of  special  privileges 
and  immunities  to  any  person  or  class. 
Stuart  V.  Elk  Horn  Bank,  etc.  Co.  (Ark.) 
1918A-268. 

(Annotated.) 

b.     Construction. 

18.  Notice  to  Creditors  of  Seller.  Ark. 
Bulk  sales  act  requires  the  seller  to  fur- 
nish a  written  list  of  the  names  and  ad- 
dresses of  his  creditors  with  the  amount  of 
indebtedness  due  each  not  less  than  ten 
days  before  the  sale  and  delivery,  and  re- 
quires  the   purchaser,  before   taking  pos- 


session of  the  stock  of  goods  or  paying 
the  purchase  price,  to  notify  personally, 
or  by  registered  mail,  every  creditor  whose 
name  appears  on  the  list,  or  of  whom  he 
has  any  knowledge,  of  the  sale.  Defend- 
ant purchased  the  stock  of  goods,  agree- 
ing to  assume  payment  of  all  indebtedness 
which  the  debtor  disclosed.  The  debtor 
concealed  his  indebtedness  to  the  plaintiff 
bank,  and  the  list  of  creditors  was  not 
prepared  by  the  debtor  ten  days  before 
the  sale,  nor  were  the  notices  given  at 
that  time.  Defendant  paid  all  the  cred- 
itors of  whose  claims  he  was  notified.  It 
is  held  that,  as  the  statute  in  requiring 
notice  to  be  given  some  days  before  the 
sale  contemplated  that  creditors  who  were 
not  notified  might  learn  of  the  proposed 
sale,  defendant  did  not  substantially 
comply  with  the  act  so  as  to  escape  lia- 
bility to  plaintiff.  Stuart  v.  Elk  Horn 
Bank,  etc.  Co.  (Ark.)  1918A-68. 

c.     Defenses. 

19.  Waiver  of  Failure  of  Seller  to 
Comply.  Where  the  owner  of  a  stock  of 
merchandise,  in  good  faith,  and  for  a  fair 
consideration  placed  in  escrow  during  the 
consummation  of  a  transfer  of  such  stock, 
proceeds  to  comply  with  the  provisions  of 
the  Okla.  Bulk  Sales  Act  (section  2903, 
Rev.  Laws  1910),  and  furnishes  a  list  of 
his  creditors  to  the  representative  of  the 
purchasers,  which  list  complies  substan- 
tially with  the  requirements  of  the  stat- 
ute, but  where  the  notice  given  the  cred- 
itors was  signed  by  the  transferor  instead 
of  the  transferees,  a  resident  creditor,  who 
receives  such  notice  with  knowledge  of  all 
the  facts  connected  with  the  proposed 
sale,  and  who  assents  thereto,  waives  any 
objection  he  might  otherwise  have  to  a 
strict  compliance  with  the  statute,  and  's 
estopped  from  thereafter,  and  within  the 
ten-day  period  named  in  the  statute,  at- 
taching the  stock  of  goods,  on  the  ground 
that  the  seller  has  not  fully  complied  with 
the  statute.  First  Bank  of  Texola  v.  Ter- 
rell (Okla.)  1917A-681. 

d.     Liability  of  Purchaser. 

20.  Effect  of  Failure  to  Comply  With 
Act.  Though  a  purchaser  of  a  stock  of 
goods  in  bulk  did  not  comply  with  the 
bulk  sales  act,  he  does  not  become  liable 
for  all  of  the  debts  of  the  seller,  but  only 
for  the  seller's  debts,  so  far  as  they  can 
be  satisfied  out  of  the  stock  of  goods 
which  he  is  held  to  be  a  receiver  for  bene- 
fit of  the  seller's  creditors.  Stuart  v.  Elk 
Horn  Bank,  etc.  Co.  (Ark.)  1918A-268. 

FREEDOM  OF  PRESa 

See  Contempt,  4-6. 


See  Schoola 


FBEE  SCHOOLS. 


DIGEST. 

19160— 1918B. 

by  which  one,  on  paying  money  or  giving 
any  other  thing  of  value,  obtainB  a  token, 
which  entitles  him  to  receive  a  larger  or 
smaller  value,  as  some  formula  of  chance 
may  determine;  the  fact  that  the  purchas- 
ers could  at  all  events  keep  up  their  pay- 
ments, and  ultimately  receive  the  furni- 
ture, not  changing  the  nature  of  the  trans- 
FRONT  FOOT  BTTLE.  action.     State  y.  Lipkin  (N.  Car.)  1917D- 

ToT  fpecial  assessment,  see  Tajcatlon,  132.       137.  (Annotated.) 


396 

FREIGHT  CHAROEa. 

See  Carriers  of  Oooda,  15-23. 

FROM. 

Meaning,  see  Time,  5,  7. 


FRUCTUS  INDUSTRIAI.es. 
Sale  by  parol,  see  Frauds,  Statute  of,  11. 

FRUIT  STAND. 

See  Nuisances,  6. 

If  eaning,  see  Streets  and  Hlgliways,  2S. 

FRUIT  TREES. 

Destruction  of  diseased  trees,  see  Agricul- 
ture, 2,  i. 

FUamVE  FROM  JUSTIOB. 
Meaning,  see  Extradition,  2. 


See  Oamlng. 


OAMBLINa. 


GAME  lAWS. 


See  Fista  and  Game. 
Defined,  see  "Animals,"  28. 

GAMING.  • 

As  ground  for  deportation,  see  Aliens,  23. 
Consideration,  see  Bills  and  Notes,  6. 

1.  "PooL"  In  a  prosecution  under  Pen, 
Code  1913,  S  321,  for  conducting  a  gam- 
bling device  consisting  of  a  pool  known  as 
'^ari  mutuel,"  conviction  set  aside.  Mc- 
Call  V.  State  (Ariz.)  1918A-168. 

(Annotated.) 

2,  What  Constitutes  Lottery.  Bevisal 
19(X5,  §  3726,  declares  that  any  person  who 
shall  promote  a  lottery,  or  by  such  means 
sell  or  dispose  of  any  property,  evidences 
of  debt,  etc.,  shall  be  guilty  of  an  offense. 
Defendant  took  orders  for  furniture,  under 
contracts  providing  for  weekly  instalments 
until  the  entire  purchase  price  should  be 
paid,  but  holding  out  the  prospect  that  the 
purchaser  might  for  advertising  purposes 
be  given  the  article  before  the  payments 
had  been  completed.  The  contracts  fur- 
ther provided  that  a  lapse  in  payment 
should  work  forfeiture.  It  is  held  that  as 
the  purchasers  had  no  control  over  the 
way  in  which  the  prizes  were  to  be  dis- 
tributed, and  ae  the  prizes  were  ordinarily 
given  before  any  advertising  was  done,  the 
transaction  was  a  "lottery,"  which  term  in 
common  parlance  means  a  scheme  for  the 
distribution   of  prizes,  by  lot   or  chance, 


GARAGE. 

As  a  nuisance,  see  Nuisances,  17. 

GARNISHMENT. 

1.  Bank  Deposit  in  Name  of  Debtor. 
Money  deposited  in  bank  by  a  judgment 
debtor  as  agent  for  a  third  person  cannot 
be  reached  by  garnishment  proceedings  by 
the  judgment  creditor,  who  did  not  ex- 
tend credit  on  faith  of  the  deposits  being 
the  agent's.  Home  Land,  etc.  Co.  v. 
Bouth  (Ark.)   1917C-1143. 

(Annotated.) 

2.  Funds  in  Hands  of  Executor  or  Ad- 
ministrator. Section  228  of  the  code  au- 
thorizing creditors  to  proceed  by  garnish- 
ment against  "any  person"  who  shall  be 
indebted  to,  or  have  any  property,  real  or 
personal,  in  his  possession  or  under  his 
control  belonging  to,  the  debtor,  is  suffi- 
ciently broad  in  its  terms  to  authorize  an 
action  in  garnishment  against  an  executor 
or  administrator  after  an  order  of  final 
distribution.  Sherman  v.  Havens  (Kan.) 
1917B-394. 

3.  It  being  one  of  the  agreed  facts  in 
the  present  case  that  the  estate  of  the 
testator  is  solvent  and  able  to  respond  to 
the  quarterly  payments  due  to  the  bene- 
ficiary, and  that  they  have  made  such  pay- 
ments to  him  in  advance  and  recognized 
the  provision,  no  order  of  distribution  was 
necessary  in  order  to  authorize  them  to 
make  the  payments,  and  such  quarterly 
payments  are  subject  to  attachment  be- 
fore final  settlement.  Sherman  v.  Havens 
(Kan.)  1917B-394. 

4.  Deposit  With  Sheriff  to  Discharge 
Liens.  The  proceeds  of  a  cashier's  check 
deposited  by  a  bank  with  a  sheriff  and  re- 
ceiver to  secure  the  discharge  of  a  log- 
gers' liens  in  a  foreclosure  suit  is  not  sub- 
ject to  garnishment  at  the  suit  of  other 
creditors  of  the  defendant  in  the  fore- 
closure action,  though  the  check  was  in- 
dorsed by  the  sheriff  to  the  clerk  of  the 
court  and  was  by  him  cashed,  and  thoujh 
defendant  prevailed  as  against  the  log- 
gers' liens,  where  the  check  was  not  a  loan 
by  the  bank  to  defendant,  but  was  a  spe- 
cial deposit  to  be  returned  to  the  bank  in 
the  event  that  it  was  not  used  for  the  pur- 
pose intended,  and  it  was  immaterial  that 
a  note  for  the  amount  of  the  check  was 
given  by  defendant  to  the  bank  to  evi- 
dence the  transaction.  Beaston  v.  Port- 
land Trust,  etc.  Bank  (Wash.)  1917B-488. 


GAS  AND  GAS  COMPANIES— GENERAL  AND  SPECIAL  LAWS.     397 


5.  Bank  Account  of  Third  Party  In 
Debtor's  Name.  In  garnishment  proceed- 
ings by  a  judgment  creditor  against  a  bank 
having  on  deposit  funds  of  the  judgment 
debtor,  held  by  the  latter  as  agent  for  a 
third  person,  the  evidence  is  held  to  war- 
rant the  conclusion  that  the  transaction 
between  the  judgment  debtor  and  his  prin- 
cipal, resulting  in  the  deposit  of  the  funds 
in  the  debtor's  name,  was  conducted  in 
good  faith.  Home  Land,  etc.  Co.  v.  Routh 
(Ark.)  1917C-1143.  (Annotated.) 

Note. 

Money  standing  in  name  of  debtor  but 
belonging  to  third  person  as  reachable  in 
garnishment  proceeding.     1917C-1145. 

GAS  AND  GAS  COMPANIES. 

Judicial  notice  of  nature  of  gas,  see  Evi- 
dence,  16. 

Sufficiency  of  garnishee's  intervention 
plea,  see  Intervention,  2,  3. 

Ordinance  fixing  rates,  see  Constitutional 
Law,  116. 

Nature  of  gas  and  oil  lease,  see  Landlord 
and  Tenant,  2,  3. 

1.  Rate  Regulation.  The  property  of  a 
gas-distributing  company  cannot  be  said  to 
have  been  taken  without  due  process  of 
law,  contrary  to  U.  S.  Const.  14th  Amend. 
(9  Fed.  St.  Ann.  416),  by  a  decree  which 
enforced,  without  prejudice  to  the  right  to 
anply  thereafter  for  modification,  a  mu- 
nicipal ordinance  fixing  gas  rates  for  five 
years,  where  there  was  no  claim  that  the 
company  could  not  operate  profitably 
under  such  ordinance  so  long  as  its  con- 
tract with  a  producing  gas  company, 
under  which  the  latter  was  to  furnish  gas 
to  the  former  upon  the  basis  of  a  per- 
centage of  meter  readings,  which  had  two 
or  three  years  to  run  when  the  suit  was 
commenced,  remained  in  force,  and  no 
evidence  was  offered  to  show  the  rate  paid 
by  the  distributing  to  the  producing  com- 
pany after  the  expiration  of  such  contract. 
Newark  Nntural  Gas,  etc.  Co.  v.  Newark 
(U.   S.)    1917B-1025.  (Annotated.) 

2.  Liability  for  Injury  Caused  by  Es- 
cape. Defendant  manufactures  and  dis- 
tributes illuminating  gas.  Such  gas,  when 
allowed  to  escape,  in  any  considerable 
quantity,  becomes  a  highly  dangerous  sub- 
stance, and  the  defendant  must  exercise  a 
commensurate  degree  of  care  to  prevent 
the  gas  from  escaping  up  to  the  time  it  is 
measured  and  delivered,  through  its  meter, 
to  the  consumer.  Manning  v.  St.  Paul 
Gaslight  Co.  (Minn.)  1916E-276. 

(Annotated.) 

3.  The  rule  of  res  ipsa  loquitur  may  be 
applied  to  a  situation  which  discloses  that 
gas  escaped  in  destructive  quantities  from 
a  break  in  the  service  pipe  installed  by 
the  gas  company  upon  the  consumer's 
premises,  at  his  cost,  where  the  evidence 
further  shows  that  there  had  been  no  work 
or  change  upon  such  premises  which  could 


have  afiTeeted  the  pipe,  and  no  interference 
therewith.  Under  this  rule  defendant  was 
not  entitled  to  a  directed  verdict.  Man- 
ning V.  St.  Paul  Gaslight  Co.  (Minn.) 
1916E-276.  (Annotated.) 

4.  Complaint  Held  Sufficient.  The  com- 
plaint, without  the  permitted  amendment, 
held  sufficiently  broad  to  admit  of  proof 
showing  improper  installation  of  the  ser- 
vice pipe.  Manning  v.  St.  Paul  Gaslight 
Co.   (Minn.)   1916E-276. 

5.  Extension  of  Mains — ^Reasonableness 
of  Order.  The  fact  that  the  increased  re- 
turn from  an  extension  of  gas  mains  or- 
dered by  a  Public  Service  Commission 
amounts  to  less  than  three  per  cent  on  the 
cost  of  making  the  extension  does  not  show 
that  the  order  is  arbitrary  or  capricious. 
People  V.  McCall  (N.  Y.)  1916E-1042. 

6.  Proof  of  Reasonableness  of  Rates — 
Rate  Prevailing  Elsewhere.  In  proceed- 
ings by  a  city  against  a  gas  company  be- 
fore the  Public  Service  Commission,  th« 
fact  that  other  cities  of  similar  population 
are  procuring  gas  at  a  much  less  rate  than 
defendant  company  charges  is  some  evi- 
dence of  the  fact  that  its  rates  are  unrea- 
sonable. State  V.  Public  Service  Commiii- 
sion  (Mo.)  1917E-786. 

7.  Regulation  of  Rates — Power  to  Make 
Test  Order.  In  a  city's  proceeding  before 
the  Public  Service  Commission  against  a 
manufacturer  and  distributer  of  gas,  the 
evidence  tended  to  show  an  exorbitant 
rate  for  gas  in  the  city,  and  that  a  redujc- 
tion  in  rates  would  increase  the  sales  or 
consumption.  It  is  held  that  an  order  of 
the  commission  fixing  lower  rates  for  the 
gas  company  temporarily,  merely  to  make 
a  test,  that  the  real  question  of  a  reason- 
able rate  might  be  ultimately  determined, 
the  order  leaving  that  open,  was  not  un- 
reasonable. State  V.  Public  Service  Com- 
mission (Mo.)  1917E-786.         (Annotated.) 

Notes. 

Liability  of  gas  company  for  injury 
caused  by  escape  of  gas  from  pipes. 
1916E-277. 

State  or  municipal  regulation  of  gas 
rates.     1917B-1026. 

GASOLINE. 

Judicial  notice  of  properties  of,  see  Evi- 
dence, 15. 
Storage  as  a  nuisance,  see  Nuisances,  5. 

GASOLINE  LIGHTING  PLANT. 

Explosion  of,  see  Negligence,  90,  9&. 

GENERAL. 

Meaning,  see  Descent  and  Distribution,  o. 

GENERAL  AND  SPECIAL  LAWS. 
See  Constitutional  Law,  86-88. 


398 

OENEBAIi  AFPHABANCE. 

See  Appearances,  3-6. 

GEKEBAIi  DENIAI*. 
See  Pleading,  31,  32. 

OEOOSAPHICAIi  NAME. 

Acquisition  of  exclusive  right  to  use,  see 
Trademarks  and  Tradenamee,  4. 

GIFTa 

1.  Gifts  Inter  Vivos. 

a.  Nature  and  Elements. 

b.  Subjects  of  Gift. 

c.  Delivery  and  Acceptance. 

d.  Evidence. 

2.  Gifts  Causa  Mortis. 

a.  Nature  and  Elements. 

b.  Delivery. 

c.  Evidence. 


Charitable    gifts,   see  Cliarltles,   10-26. 
Creating  disability  to  pay  debts,  validity, 

see   Fraudulent    Sales    and    Conyey- 

ances,  3. 
Suit  to  set  aside,  see  Laches,  1. 
Parent  to  child,  see  Parent  and  Child,  6. 
Statute  against  perpetuities  not  applied  to 

charities,  see  Perpetuities,  5,  6,  10. 
Validity  of  Sunday  gift,  see  Sundays  and 

Holidasrs,  7. 
Construed  as  creating  tenancy  in  common, 

see  Tenants  in  Common,  3. 
Testamentary  gift,  see  Wills,  216-218. 

1.     GIFTS  INTER  VIVOS. 

a.     Nature   and   Elements. 

1.  Between  Husband  and  Wife — Death 
of  Husband.  Where  a  husband  had  on  a 
trip  abroad  given  his  wife  express  checks 
for  their  expenses  amounting  to  $800,  and 
at  another  time  sent  her  $2,000  in  a  draft, 
and  there  is  no  showing  that  he  intended 
that  she  should  account  therefor,  she  is 
entitled  to  retain  the  same  on  his  death. 
Stratton  v.  Wilson  (Ky.)  1918B-917. 

b.     Subjects  of  Gift. 

2.  Parol  Gift  of  Mortgage.  A  valid  gift 
inter  vivos  of  a  mortgage  may  be  made 
without  a  writing.  Hoyt  v.  Gillen  (Mich.) 
1916C-812.  (Annotated.) 

3.  Note  Payable  to  Donor's  Estate. 
Where  a  person  takes  a  note  payable  to 
his  estate  he  does  not  thereby  deprive  him- 
self of  the  right  to  dispose  of  it  during 
his  lifetime.  Poole  v.  Poole  (Kan.) 
1918B-929. 

Note. 
Validity     of     gift     of     mortgage     inter 
vivos  without  writing.     1916C-814. 

c.     Delivery  and  Acceptance. 

4.  An  owner  of  a  bank  deposit  when 
making  an  additional  deposit  informed  the 


DIGEST. 

19160— 1918B. 

assistant  cashier  that  she  wanted  the  de- 
posit arranged  so  that  in  case  she  died, 
her  two  children  P  and  D  could  get  the 
money,  but  so  that  she  could  draw  the  in- 
terest. The  money  was  thereupon  placed 
in  an  account  bv  itself,  and  entered  in 
the  depositor's  passbook  as  "payable  to  P 
or  D,  an  equal  amount  to  each,"  but  in 
the  bank's  ledger  as  "payable  to  self  or  P 
or  D,  an  equal  amount  to  each."  It  is 
held  that  there  was  a  gift  of  the  money 
to  the  two  children  and  a  delivery  thereof 
to  the  bank  as  trustee  to  be  held  by  it  for 
their  use  and  benefit  during  the  life  of 
the  depositor,  with  the  right  on  her  part 
to  have  the  use  and  benefit  of  the  accru- 
ing interest.  Boyle  v.  Dinsdale  (Utah) 
1917E-363.  (Annotated.) 

5.  That  the  depositor's  passbook  is  in 
her  possession  at  the  time  of  her  death 
does  not  prevent  the  gift  from  taking 
effect,  since  there  was  an  actual  delivery 
of  the  money  to  the  bank  as  trustee,  and 
a  symbolical  delivery  by  delivery  of  the 
passbook  was  unnecessary.  Boyle  v.  Dins- 
dale   (Utah)   1917E-363.  (Annotated.) 

6.  The  gift  is  not  invalid  on  the  ground 
that  it  is  a  testamentary  disposition. 
Boyle  V.  Dinsdale  (Utah)  1917E-363. 

(Annotated.) 
Note. 


Complete  execution  of  gift  inter  vivos 
by  deposit  of  money  in  bank  to  credit  of 
another.     1917E-367. 

d.    Evidence. 

7.  Sufficiency  of  Evidence  of  Gift.  A 
finding  of  a  gift  inter  vivos  of  a  note  and 
mortgage  affirmed  by  equally  divided 
court.     Hoyt  v.  Gillen  (Mich.)   1916C-812. 

8.  The  entry  of  the  deposit  on  the  bank's 
ledger  as  payable  to  the  depositor  or  to 
the  two  children  did  not  affect  the  validity 
of  the  gift,  as  a  trust  in  personalty  need 
not  be  in  writing  or  in  any  particular  form. 
Boyle  v.  Dinsdale  (Utah)  1917E-363. 

(Annotated.) 

9.  Corroborating  Testimony  as  to  Gift. 

Where  plaintiff,  to  show  that  his  intes- 
tate, while  living  with  defendant,  had  not, 
as  claimed  by  defendant,  given  him  all  of 
her  property  for  her  support,  showed  that 
she  gave  defendant's  young  daughter  fifty 
dollars,  defendant  could,  as  against  objec- 
tion going  only  to  its  weight,  in  corrobora- 
tion of  his  testimony  that  he  gave  intes- 
tate the  money  with  which  to  make  the 
gift,  introduce  his  personal  cashed  check 
for  fifty  dollars,  payable  to  K,  and  in- 
dorsed by  him  for  her.  Comstock's  Ad- 
ministrator V.  Jacobs    (Vt.)    1918A-465. 

10.  Deposit  in  Bank  in  Name  of  Donee. 
In  an  action  involving  the  title  to  money 
deposited  in  a  bank  and  entered  in  the  de- 
positor's passbook  as  "payable  to  P  or  D 
(children  of  the  depositor),  an  equal 
amount  to  each,"  but  entered  in  the  bank's 


GOOD  FAITH— GRAND  JURY. 


399 


ledger  as  "payable  to  self  or  P  or  D,  an 
equal  amount  to  each,"  the  evidence  is  held 
to  be  sufficient  to  show  that  it  was  the  de- 
positor's intention  that  she  should  have  the 
right  to  draw  the  interest  for  her  own  use 
during  her  life  if  she  so  desired,  and  that 
the  principal  sum  should  go  to  the  two 
children.  Boyle  v.  Dinsdale  (Utah) 
1917E-363.  (Annotated.) 

Note. 
When    gift   to    "children"    and    like    in- 
cludes  child  en   ventre  sa   mere.     1916E- 
1034. 

2.     GIFTS  CAUSA  MOKTIS. 
a.     Nature  and  Elements. 

11.  Validity  of  Gift  Causa  Mortis. 
Gifts  causa  mortis,  if  made  by  competent 
persons,  and  fully  executed,  are  valid,  in 
the  absence  of  fraud  or  undue  influence 
if  the  rights  of  creditors  are  not  affected. 
Baber  v.  C'aples   (Ore.)   19160-1025. 

b.     Delivery. 

12.  Gift  of  Note.  Whether  a  gift  of  a 
promissory  note  or  other  chose  in  action 
is  causa  mortis  or  inter  vivos,  the  actual 
delivery  of  the  written  evidence  of  the 
debt  is  sufficient,  without  any  assignment 
or  indorsement.  Baber  v.  Caples  (Ore.) 
1916C-1025. 

13.  Requisites  of  Gift  Causa  Mortis.     A 

"gift  causa  mortis,"  like  a  gift  inter  vivos, 
must  be  completely  executed  and  go  into 
immediate  effect,  and  be  accompanied  by 
an  actual  and  complete  delivery.  Baber 
v.  Caples  (Ore.)  1916C-1025. 


GOOD  FAITH. 

No  defense  to  false  imprisonment,  see  Hos- 
pitals and  Asylums,  4. 


GOODS. 

Defined,  see  Frauds,  Statute  of,  11. 

GOODS  AND  CHATTELS. 

Meaning,  see  Executors  and  Administra- 
tors, 2. 

GOOD  WILL. 

See  Sales,  3,  19. 

GOVERNOR. 

Grant    of    conditional    pardon,    see    Par- 
dons, 4. 
Veto  power,  see  Statutes,  23,  24,  27. 

1.  Civil  Liability  for  Official  Acts.  The 
office  of  governor  is  political  and  the  dis- 
cretion vested  in  the  chief  executive  by 
the  constitution  and  laws  of  the  state  re- 
specting his  official  duties  is  not  subject 
to  control  or  review  by  the  courts.  His 
proclamations,  warrants  and  orders  made 
in  the  discharge  of  his  official  duties  are  as 
much  due  process  of  law  as  the  judgment 
of  a  court.  Hatfield  v.  Graham  (W.  Va.) 
1917C-1.  * 

2.  The  governor  cannot  be  held  to  an- 
swer in  the  courts  in  an  action  for  damages 
resulting  from  the  carrying  out  of  his  law- 
ful orders  or  warrants  issued  in  good  faith 
in  discharge  of  his  official  duties.  Hatfield 
V.  Graham  (W.  Va.)   1917C-1. 


c.     Evidence. 

14.  Evidence  Sufficient.  Evidence  held 
to  show  that  decedent  gave  the  promissory 
notes  in  controversy  to  defendant;  that 
she  indorsed  each  of  them  with  her  own 
hand,  and  delivered  them  to  the  defend- 
ant with  intent  to  vest  title  in  him,  and 
that  he  accepted  them  as  a  gift  causa  mor- 
tis.    Baber  v.  Caples  (Ore.)  1916C-1025. 

15.  Undue  Influence — Persons  Engaged 
to  be  Married — Presumption.  Where  a  re- 
lation of  confidence  exists,  as  between  a 
man  and  woman  engaged  to  be  married, 
it  is  incumbent  upon  the  donee  causa  mor- 
tis to  show  that  the  gift  was  not  obtained 
by  fraud  or  undue  influence.  Baber  v. 
Caples  (Ore.)  1025.  (Annotated.) 

16.  No  Presumption.  While  gifts  causa 
mortis  are  sustained  only  on  clear  proof 
of  the  essential  facts,  there  is  no  presump- 
tion of  law  against  them.  Baber  v.  Caples 
(Ore.)    1916C-102O. 

17.  Fraud  and  Undue  Influence.  Evi- 
dence held  to  show  that  a  gift  causa  mor- 
tis was  not  induced  by  fraud  or  undue 
influence  of  the  donee.  Baber  v.  Caples 
(Ore.)  1916C-1025. 


GRADE  CROSSINGS. 

See  Railroads,  19-25,  50,  51,  64-77. 

GRAND  JURY. 

1.  Powers  and  Duties,  399. 

2.  Selection,  400. 

3.  Number,  400. 

Misconduct,  effect  on  indictment,  see  In- 
dictments and  Informations,  1. 

Member  as  complainant,  see  Indictments 
and  Informations,  23,  24. 

Resubmission,  see  Indictments  and  Infor- 
mations, 26,  27. 

Disqualification  of  member  for  trial  jury, 
see  Jury,  21. 

Expunging  report  of  district  attorney's 
misconduct,  see  Prosecuting  Attorneys, 
3,4. 

1.     POWERS  AND  DUTIES. 

1.  Where  a  grand  jury  had  been  properly 
drawn,  summoned  and  impaneled  to  serve 
during  a  term  of  court  continuing  two 
weeks,  and,  having  completed  their  work 
at  or  near  the  end  of  the  first  week,  were 
discharged  by  the  court  for  the  term,  and 


400 


DIGEST. 

19160— 1918B. 


on  the  day  following  their  discharge  a 
homicide  was  committed  in  the  county  in 
which  the  court  was  being  held,  and  the 
court  by  appropriate  written  order  directed 
the  sheriff  and  regular  bailiffs  sworn  at  the 
term  of  the  court  then  being  held  to  re- 
summon the  same  grand  jury  to  reconvene 
during  the  second  week  of  the  court,  for 
the  purpose  of  investigating  the  case  of 
the  person  charged  with  the  murder  of  the 
person  killed,  and  also  to  take  into  con- 
sideration any  other  matter  that  might 
legally  come  before  the  grand  jury  during 
the  term,  such  reconvening  of  the  grand 
jury  was  legal,  and  an  indictment  prop- 
erly found  by  them  against  such  person 
was  also  legal. 

The  order  of  the  court  reconvening  th© 
grand  jury,  after  they  had  been  discharged, 
had  the  effect  of  abrogating  the  former 
order  of  discharge.  Bird  v.  State  (Ga.) 
1916C-205.  (Annotated.) 

2.  Powers  of  Grand  Jury.  Under  Comp. 
Laws  1897.  §51395,  11443,  authorizing  a 
grand  jury  to  make  reports  or  present- 
ments relating  to  trespass  on  public  lands 
and  violations  of  election  laws,  and  sec- 
tions 11891,  11893,  providing  how  indict- 
ments shall  be  found,  without  providing 
for  the  filing  of  a  report  or  presentment 
reflecting  on  the  conduct  of  public  officials 
a  grand  jury  has  no  right  to  file  a  report 
reflecting  on  the  official  conduct  of  the 
prosecuting  attorney,  unless  followed  by 
an  "indictment,"  which  is  a  written  accusa- 
tion that  one  or  more  persons  have  com- 
mitted a  crime,  presented  on  oath  by  a 
grand  jury;  for  a  "presentment,"  as  dis- 
tinguished from  an  "indictment,"  is  a  no- 
tice taken  by  a  grand  jury  of  any  offense 
from  its  own  knowledge  or  observation 
without  a  bill  of  indictment  laid  before 
it  at  the  suit  of  the  commonwealth,  and 
is  generally  regarded  in  the  light  of  in- 
structions on  which  an  indictment  must 
be  found.  Bennett  v.  Kalamazoo  Circuit 
Judge  (Mich.)  1916E-223. 

(Annotated.) 
Notes. 

Power  of  grand  jury  to  report  crime  or 
misconduct  otherwise  than  by  indictment 
or  presentment.     1916E-228. 

Power  of  court  to  reassemble  dis- 
charged grand  jury.     1916C-207. 

2.     SELECTION. 

8.  Irregularity  in  Drawing.  So  much  of 
section  3,  e.  157,  serial  section  5539,  Code 
1913,  as  relates  to  the  issuance  of  a  venire 
facias  for  grand  jurors  is  directory,  and 
the  failure  to  issue  such  writ  will  not 
vitiate  an  indictment  found  by  a  grand 
jury  selected  and  drawn,  in  the  manner 
provided  by  the  statute,  who  actually  at- 
tended and  are  impaneled  and  sworn  ac- 
cording to  law.  Such  a  grand  jurv  is 
lawfully  constituted.  State  v  Wetzel 
(W.  Va.)   191SA-1074.  (Annotated.) 


4.  Likewise,  the  failure  of  the  clerk  of 
the  circuit  court  to  issue  a  summons  re- 
quiring the  clerk  of  the  county  court  to 
attend  the  drawing  of  grand  jurors,  does 
not  affect  the  legal  status  of  a  grand  jury, 
provided  the  clerk  of  the  county  court  does 
actually  attend  and  assist  in  the  drawing 
of  such  grand  jurors.  State  v.  Wetzel 
(W.  Va.)  1918A-1074.  (Annotated.) 

5.  The  presence  of  the  clerk  of  the 
county  court  at  the  drawing  of  grand  jur- 
ors, and  the  list  of  names  of  persons  se- 
lected by  the  county  court  to  serve  as 
such,  as  well  as  its  delivery  to  and 
preservation  by  the  clerk  of  the  circuit 
court,  are  all  indispensable  requirements, 
and  a  failure  to  comply  with  all,  or  any 
one,  of  them  renders  the  grand  jury  ille- 
gal and  their  indictments  void  because  not 
selected  in  the  manner  provided  by 
law.  Respecting  these  matters  the  stat- 
ute is  mandatory.  State  v.  Wetzel  (W. 
Va.)   1918A-1074.  (Annotated.) 

Note. 

Legality  of  grand  jury  not  selected  in 
accordance   with    statute.     1918A-1080. 


3.     NUMBER. 

6.  Quomm,  Number  Constituting.  The 
provisions  of  section  3  of  Act  No.  98  of 
1880  that  the  grand  jury  for  the  parish 
of  Orleans  should  consist  of  sixteen  mem- 
bers, twelve  of  whom  should  constitute  a 
quorum,  were  entirely  superseded  by  the 
provisions  of  article  117  of  the  constitu- 
tion of  1898  (retained  in  the  constitution 
of  1913)  that  the  grand  jury  shall  consist 
of  twelve  members,  nine  of  whom  must 
concur  to  find  an  indictment.  The  num- 
ber required  to  constitute  a  quorum  is  the 
number  who  must  concur  to  find  an  indict- 
ment.    State    V.    Pallet    (La.)    191SA-102. 

(Annotated.) 

7.  As  the  law  only  requires  the  concur- 
rence of  nine  members  of  the  grand  jury 
to  find  an  indictment,  it  does  not  require 
the  presence  of  more  than  nine  members 
during  the  deliberations  or  finding  or  pre- 
sentment of  the  indictment.  State  v. 
Pallet  (La.)  1918A-102.  (Annotated.) 

GRAND  LARCENY. 
See  Larceny,  3. 

GRATUITOUS  UNDERTAKINGS. 
See  Automobiles,  30. 

GRAVEYARDS. 

See  Cemeteries. 

GROUNDS  FOR  NEW  TRIAL. 
See  New  Trial,  3-24. 


GUARANTY— GUARDIAN  AND  WARD. 


401 


GUAEANTT. 

Power  of  "banks  to  guarantee,  see  Banks 

and  Banking,  1-3. 
Warranty  distinguished,  see  Sales,  16. 

1.  Fraud  in  Procurement.  The  evidence 
is  held  to  sustain  findings  that  a  guaranty 
was  procured  by  fraud.  American  Na- 
tional Bank  v.  Donnellan  (Cal.)  1917C- 
744. 

GUARDIAN  AND  WAED, 

1.  Nature  of  Relationship,  401. 

2.  Appointment,  401. 

a.  In  General,  401. 

b.  Proceedings  for  Appointment,  401. 
8.  Powers,  402.  " 

a.  To  Maintain  and  Defend  Actions, 

402. 

b.  Sale  of  Ward's  Property,  402. 

c.  Investment  of  Funds,  402. 

d.  Lease  of  Ward's  Property,  402. 

6.  Release  of  Ward's  Claim  for  Dam- 
ages, 402. 
4.  Accounting,  403. 
6.  Transactions    Between     Guardian    and 

Ward,  4Q3. 
6.  Compensation  of  Guardian,  403. 

Guardians  ad  litem,  see  Infants,  19-22. 

Privilege  in  statements  by  guardian  in  in- 
terest of  estate,  see  Libel  and  Slandei, 
52,  53. 

1.     NATURE  OF  RELATIONSHIP. 

1.  Where  the  property  of  an  aged  person 
is  placed  in  the  hands  of  a  guardian  or 
conservator  to  be  managed  for  his  bene- 
fit, as  provided  by  Burns'  Ann.  St.  1914, 
§  3111a,  it  is  not  "taken"  by  law  in  such  a 
sense  as  to  require  that  compensation  shall 
be  made  under  Const,  art.  1,  §  21,  provid- 
ing that  no  man's  property  shall  be  taken 
by  law  without  just  compensation.  Kutz- 
ner  v.  Meyers  (Ind.)  1917A-872. 

(Annotated.) 

2.  Such  statute,  applying  to  and  enforce- 
able against  all  persons  who,  on  account 
of  old  age,  shall  become  incapable  of  man- 
aging their  estates  or  business  affairs,  and 
applying  to  all  persons  under  like  condi- 
tions, does  not  deny  to  such  persons  the 
equal  protection  of  the  laws  guaranteed 
by  Const.  U.  S.  Amend.  14.  Kutzner  v. 
M  yers   (Ind.)    1917A-872.       (Annotated.) 

3.  In  view  of  the  state's  policy  to  pro- 
tect those  who,  by  reason  of  youth  or  in- 
capacity, are  incapable  of  managing  their 
estates  by  placing  their  property  in  the 
hands  of  guardians  or  conservators,  stat- 
utes may  extend  the  same  protection  to 
persons  incapable  of  managing  their  es- 
tates and  affairs  by  reason  of  old  age. 
Kutzner  v.  Meyers  (Ind.)  1917A-872. 

(Annotated.) 

4.  For  Aged  Person — Validity  of  Stat- 
ute. Burns'  Ann.  St.  1914,  §  3111a,  provid- 
ing that  whenever  any  person  files  a  com- 

26 


plaint  in  a  court  of  probate  jurisdiction 
to  the  effect  that  any  inhabitant  of  such 
county,  because  of  old  age,  is  incapable 
of  managing  his  estate  or  business  affairs, 
the  court  shall  cause  ten  days'  notice  to 
be  given  such  aged  person,  and  that,  if  on 
trial  he  is  found  incapable,  the  court  shall 
appoint  a  guardian  for  his  estate,  who 
shall  gire  bonds  and  be  under  like  re- 
strictions and  act  in  the  same  manner  and 
with  the  same  powers  as  in  cases  of  guard- 
,  ians  for  minors,  provides  due  process  of 
law,  within  the  meaning  of  Const.  U.  S. 
Amend.  14.  Kutzner  v.  Meyers  (Ind.) 
1917A-872.  (Annotated.) 

Note. 
Validity    of   statute    providing   for    ap- 
pointment  of  guardian   for  aged  person. 
1917A-874. 

2.    APPOINTMENT, 
a.     In  General. 

5.  Eigbt  of  Aged  Person  to  Select 
Guardian.  Burns'  Ann.  St.  1914,  §  3111a, 
providing  for  the  appointment  of  a  guard- 
ian for  a  person  incapable  of  managing 
his  estate  or  affairs,  who  shall  give  bonds 
and  be  under  like  restrictionif  and  act  in 
the  same  manner  and  with  the  same 
powers  as  in  cases  of  guardians  for  minors, 
refers  to  the  manner  in  which  the  duties 
of  the  trust  shall  be  performed  by  the 
guardian  after  appointment,  and  the  court 
properly  refuses  to  permit  an  alleged  in- 
competent to  select  his  guardian,  since  sec- 
tion 3057,  providing  that  an  infant  over 
fourteen  may  select  a  guardian,  applies 
only  to  the  appointment  of  guardians  for 
infants.  Kutzner  v.  Meyers  (Ind.)  1917A- 
872. 

b.     Proceedings  for  Appointment. 

6.  Petition  for  Guardianship.  A  peti- 
tion under  Burns'  Ann.  St.  1914,  §  3111a, 
jroviding  for  the  appointment  of  a  guard- 
ian of  the  estate  of  any  person  who,  by 
reason  of  old  age,  is  incapable  of  man- 
aging his  estate  or  affairs,  stating  the 
facts  showing  the  disability  of  the  agedr 
person  and  his  residence  in  the  county 
where  the  petition  was  filed,  is  suflScient 
against  a  demurrer;  and  its  allegation  that 
shortly  before  the  proceeding  he  conveyed 
real  estate,  vaJued  at  $3,800,  for  an  ex- 
pressed consideration  of  $1,  and  that  it 
had  been  obtained  by  fraud  and  undue  in- 
fluence, tendering  no  issue  which  could  be 
tried  in  the  proceeding,  does  not  render 
the  complaint  insufficient.  Kutzner  v. 
Meyers  (Ind.)  1917A-872. 

7.  Issues  Under  Petition.  Under  such 
petition,  the  validity  of  the  alleged  deed 
is  not  in  issue  and  could  not  be  decided; 
and  hence  the  court  does  not  err  in  ex- 
cluding evidence  as  to  the  grantor's  men- 
tal capacity  at  the  time  he  executed  the 
deed.  Kutzner  v.  Meyers  (Ind.)  1917A- 
872. 


402 


DIGEST. 

19ieC— 1918B. 
Ih    such    proceeding,    eri-       abstract,  the  purchaser  is  entitled  to  an 


8.  Evidence. 

dence  identifying  th«  record  containing 
the  deed  from  the  alleged  incompetent  and 
the  admission  of  the  record  in  evidence  are 
proper,  since,  when  considered  with  other 
evidence,  it  showed  that  a  short  time  be- 
fore the  proceeding  he  had  conveyed  valu- 
able real  estate  in  consideration  only  of 
the  grantee's  agreement  to  look  after  him, 
and  is  proper  for  the  court  to  consider  ?n 
determining  whether  a  guardian  should 
be  appointed.  Kutzner  v.  Meyers  (Ind.) 
1917A-872.     . 

3.     POWERS. 

s.     To  Maintain  and  I>efend  Actions. 

9.  With  Eespect  to  Will  of  Ward.  A 
guardian  of  an  insane  person  has  no  legal 
interest  either  in  establishing  or  disestab- 
lishing his  ward's  will  executed  before- his 
appointment,  though  he  possibly  has  suffi- 
cient special  interest  and  right  of  posses- 
sion to  maintain  replevin  to  recover  pos- 
session of  the  instrument  for  safekeeping 
from  one  in  unauthorized  possession,  since 
the  law  does  not  notice  wills  during  the 
lifetime  of  their  makers,  except  to  provide 
a  method  Sf  custody  and  safekeeping. 
Pond  V.  Faust  (Wash.)  1918A-736. 

10.  Action  to  Cancel  Ward's  Will.  Rem. 
A  Bal.  Code,  §§  1659,  1662,  do  not  confer 
on  the  guardian  of  a  living  insane  person 
the  right  to  maintain  an  action  to  cancel 
a  will  of  the  ward  in  the  custody  of  a 
third  person.  Pond  v.  Faust  (Wash.) 
1918A-736. 

b.    Sale  of  Ward's  Property. 

11.  Effect  of  Failure  to  Give  Bond. 
Where  the  lands  of  an  insane  person  were 
sold  by  his  guardian  without  any  special 
sale  bond  being  given,  and  the  guardian 
wholly  failed  to  account  for  the  proceeds 
of  the  sale,  the  owner  is  not  estopped  from 
attacking  the  validity  of  the  sale  after 
being  restored  to  his  reason.  Richelson  v. 
Mariette  (S.  Dak.)  1917A-883. 

(Annotated.) 

12.  Under  Prob.  Code,  §  403,  providing 
that  every  guardian  authorized  to  sell  real 
estate  must,  before  the  sale,  give  bond  to 
account  for  the  proceeds  thereof,  the  re- 
quirement of  the  bond  is  mandatory,  and 
an  order  confirming  a  sale,  made  without 
the  giving  of  such  bond,  is  void  and  sub- 
ject to  collateral  attack.  Richelson  v. 
Mariette  (S.  Dak.)  1917A-883. 

(Annotated.) 

13.  Application  of  Doctrine  of  Caveat 
Emptor.  The  doctrine  of  caveat  emptor 
does  not  apply  to  sales  by  guardians  under 
order  of  the  court,  and  where  a  guardian 
selling  a  lot  as  an  entirety  under  order 
of  court  and  the  purchaser  did  not  know 
that  it  was  subject  to  an  easement  not 
disclosed  in  the  records  as  shown  by  an 


abatement  in  the  price  because  of  the  in- 
cumbrance by  the  easement.  Stonerook  v. 
Wisner  (Iowa)  19I7E-252.       (Annotated.) 

14.  Sale  of  Personalty.  A  guardian  of 
a  minor  having  the  same  jurisdiction  over 
the  minor's  choses  in  action  as  an  executor 
has  over  the  personal  property  of  his  tes- 
tator, the  guardian,  at  his  peril  and  the 
peril    of    his    bondsmen,    may    assign   and 

,  transfer  notes  belonging  to  the  minor's 
estate.  Echols  ▼.  Speake  (Ala.)  1916C- 
332.  (Annotated.) 

Notes. 

Power  of  guardian  to  sell  personal  prop- 
erty of  ward.     I916C-334. 

Doctrine  of  caveat  emptor  as  applicable 
to  sale  by  guardian.     1917E-255. 

e.     Investment  of  I\inds. 

15.  Investment  Outside  Jurisdiction.  A 
guardian  who  makes  investments  beyond 
the  jurisdiction  of  the  court  is,  except  un- 
der peculiar  circumstances,  responsible  for 
the  safety  of  the  funds  invested.  In  re 
Moore  (Me.)    1917A-645. 

16.  Injudicious  Investment.  A  guardian 
who  invests  guardianship  funds  without 
security  is  liable  for  all  losses  arising 
therefrom.  In  re  Moore  (Me.)  1917A- 
645. 

d.    Lease  of  Ward's  Property. 

17.  Lease  of  Realty.  Under  Kirby's 
Dig.  §  3798,  a  lease  of  a  ward's  estate  by 
the  guardian  is  void  if  not  confirmed,  and 
that  the  court  ordered  the  lease  and  pre- 
scribed the  terms  does  not  constitute  con- 
firmation. Gaines  v.  Gaines  (Ark.)  1917A- 
1254.  (Annotated.) 

18.  Validity  of  Lease  not  Approved. 
Where  an  instrument,  purporting  to  be  a 
lease  executed  by  the  guardian  of  a  minor 
Indian,  is  not  shown  to  have  been  exe- 
cuted upon  the  order  of  court  of  probate, 
as  provided  by  section  2405,  Stat.  Ind. 
Ter.,  is  offered  in  evidence,  an  objection 
to  its  competency  is  properly  sustained. 
Fisher  v.  McKeemie  (Okla.)  1917C-1039. 

Note. 
Power  of  guardian  to  lease  ward's  real 
estate.     1917A-1256. 

e.     Release  of  Ward's  Claim  for  Damages. 

19.  Effect.  A  release  given  by  plain- 
tiff's guardian  to  the  employer  in  whose 
service  he  had  been  injured,  on  the  ground 
that  plaintiff's  claim  against  the  employer 
was  regulated  by  the  Workmen's  Compen- 
sation Laws  does  not  settle  the  claim  for 
damages  for  injury  resulting  from  his 
wrongful  employment  in  violation  of  St. 
1915,  §]728a.  snbd.  1.  forbidding  employ- 
ment   of    children   between    fourteen    and 


GUESTS— HABEAS  CORPUS. 


403 


sixteen,  without  permit,  etc.,  and  if  bo  in- 
tended is  not  binding  because  it  was  not 
approved  by  the  county  ■court  as  expressly 
required  by  section  3982.  Stetz  v.  F. 
Mayer  Boot,  etc.  Co.  (Wis.)  1918B-675. 

4.     ACCOUNTING. 

20.  Settlement  of  Account.  Though  a 
guardian  at  the  time  of  the  settlement  of 
his  account  represented  the  face  value  of 
securities  to  be  the  cash  value,  the  pro- 
bate court  may  investigate  the  character 
of  the  investments  and  determine  the  lia- 
bility of  the  guardian  thereon.  In.  re 
Moore  (Me.)  1917A-645. 

21.  Finality,  Where  the  probate  court 
opened  the  final  account  of  a  guardian  on 
the  petition  of  the  adult  ward  and  dis- 
allowed items  of  credit  and  commissions 
and  restated  the  account,  the  restated  ac- 
count must  be  deemed  final,  though  in- 
formal.    In  re  Moore  (Me.)  1917A-645. 

22.  Allowance  for  Expenses.  A  sum  ap- 
plied by  a  guardian  to  r^reserve  invest- 
ments without  security  and  beyond  the 
jurisdiction  of  the  court  cannot  be  allowed 
to  him  on  his  final  settlement,  where  losses 
arising  from  the  investment  are  charge- 
able to  him.  In  re  Moore  (Me.)  19I7A- 
645. 

23.  The  sureties  of  a  guardian  are  not 
80  directly  interested  in  proceedings  by 
the  ward  on  reaching  majority  for  the 
opening  of  the  final  settlement  of  the 
guardian  and  the  disallowance  of  credits 
allowed  and  commissions,  as  will  prevent 
the  granting  of  relief  merely  because  of 
delay  by  the  ward  in  instituting  pro<ieed- 
ings.     In  re  Moore  (Me.)  1917A-645. 

(Annotated.) 

24.  Mere  delay  of  a  ward  in  petitioning, 
after  reaching  majority,  to  open  the  final 
settlement  of  his  guardian  and  for  the 
disallowance  of  items  of  credit  therein 
allowed  and  for  disallowance  of  commis- 
sions, does  not  bar  relief  where  no  testi- 
mony has  been  lost  and  where  there  has  . 
been  no  change  of  circumstances  affecting 
the  guardian.  In  re  Moore  (Me.)  1917A- 
645.  (Annotated.) 

25.  Time  for  Application  to  Open  Ac- 
count, Where  no  time  is  specified  by  stat- 
ute within  which  a  guardian's  settlement 
may  be  opened  for  fraud  or  mistake,  the 
time  within  which  the  ward  after  attain- 
ing full  age  must  apply  for  relief  depends 
on  the  sound  discretion  of  the  court,  con- 
sidered with  reference  to  the  nature  and 
extent  of  the  account,  the  condition  and 
situation  of  the  parties,  and  the  character 
and  evidence  of  the  fraud  or  mistake.  In 
re  Moore  (Me.)  1917A-645. 

(Annotated.) 

26.  Opening  Account.  The  right  of  a 
ward  to  open  the  account  of  his  guardian 
for   the   disallowance   of   items   of   credit 


therein  and  the  disallowance  of  commis- 
sions is  unaffected  by  the  fact  that  the 
succeeding  guardian  knew  the  facts  and 
failed  to  take  any  action.  In  re  Moore 
(Me.)  1917A-645. 

27.  The  probate  court  decreeing  the  re- 
opening of  the  account  of  a  guardian  may 
restate  the  account.  In  re  Moore  (Me.) 
1917A-645. 

Note. 
Lapse  of  time,  as  affecting  right  to  open 
guardian's  account  or  settlement.     1917A- 
648. 

5.  TRANSACTIONS  BETWEEN  GUARD- 

IAN AND  WARD. 

28.  Duty  of  Guardian  to  Disclose  Facts. 
A  guardian  in  settling  with  his  ward  and 
in  accounting  to  the  court  must  make  full 
disclosure  of  all  facts  necessary  to  a  com- 
plete understanding  of  the  transactions, 
and  a  failure  so  to  do  is  a  breach  of  trust. 
In  re  Moore  (Me.)  1917A-645. 

6.  ^COMPENSATION     OF     GUARDIAN. 

29.  Mismanagement  of  Estate.  Where 
a  guardian  has  been  guilty  of  wrongdoing 
in  the  management  of  his  ward's  estate  or 
the  ward  has  suffered  by  the  guardian's 
neglect  of  duty,  commissions  to  the  guard- 
ian will  be  refused.  In  re  Moore  (Me.) 
1917A-645. 

30.  Appointment  of  Person  not  Eligible. 

Since  a  trust  company  is  not  authorized  to 
act  as  the  guardian  of  an  infant,  the  ap- 
pointment of  an  officer  of  such  a  company 
as  guardian  of  a  minor  heir  as  an  incident 
to  the  apoointment  of  the  company  as  ad- 
ministrator of  his  ancestor  is  an  evasion 
of  the  spirit  of  the  law  and  no  compensa- 
tion will  be  allowed  to  him  for  his  ser- 
vices as  guardian.  In  re  Rundle  (Ont.) 
1917A-I39. 

GUESTS. 
See  Innkeepers. 

Injury  to  guest,  see  Automobiles,  29-31. 
Liability  of  guest,  see  Automobiles,  33-35. 
Liability  of  landlord  for  injury  to  tenant's 

guest,  see  Landlord  and  Tenant,  18. 
Injury  in  dark  hall,  see  Negligence,  83. 

HABEAS  CORPUS. 

1.  Nature  and  Scope  of  Remedy,  404. 

2.  Grounds  of  Remedy,  404. 

3.  Jurisdiction    of    Courts   to   Issue    Writ, 

404. 

4.  Application  for  Writ,  404. 

5.  The  Return,  404. 

6.  Hearing  and  Determination,  405. 

7.  Appeal  and  Error,  405. 

See  Costs,   3. 

To  prevent  deportation,  see  Aliens,  23. 

Review    of    proceedings,    see    Appeal    and 

Error,  39. 
Jurisdiction  not  tested  by,  see  Courts,  4. 


404 


DIGEST. 

1916C— 1918B. 


Guilt  not  an  issue,  see  Extradition,  1. 

Burden  of  proof,  legality  of  warrant,  see 
Extradition,  3,  5. 

Sufficiency  of  extradition  warrant,  aee  Ex- 
tradition, 4. 

For  release  of  enlisted  minor,  see  Mili- 
tia, 2. 

To  investigate  detention  of  militiaman  on 
criminal  charge,  see  Militia,  19. 

1.    NATURE  AND  SCOPE  OF  REMEDY. 

1.  Eevlew  of  Military  Jurisdiction,  The 
power  to  issue  writ  of  habeas  corpus 
under  U.  S.  Rer.  St.  5  753  (3  Fed.  St. 
Ann.  167,  Comp.  St.  1913,  §  1281),  is  to  be 
sparingly  exercised,  especially  when  di- 
rected toward  release  of  members  of  the 
military  accused  of  offenses  against  the 
peace  of  the  state;  the  jurisdiction  of  the 
civil  courts  of  the  state  over  such  offenses 
in  time  of  peace  being  admitted.  In  re 
Wulzen  (Fed.)  1917A-274. 

2.  Right  to  Release— Imprisonment 
Originally  IllegaL  In  habeas  corpus  pro- 
ceedings, so  far  as  the  right  to  the  writ  is 
concerned,  it  is  immaterial  whether  the 
applicant  was  originally  restrained  by 
civil  or  criminal  process,  since  the  sole 
question  to  be  determined  on  hearing  is 
whether  his  restraint  is  now  legal.  Addis 
T.  Applegate   (Iowa)   1917E-332. 

3.  Persons  Subject  to  Writ — ^Public  Offi- 
cers. The  fact  that  one  against  whom  ha- 
beas corpus  issues  is  a  public  officer  does 
not  render  him  immune,  and  his  official 
character  neither  enlarges  nor  abridges 
his  rights.  Addia  v.  Applegate  (Iowa) 
1917E-332. 

4.  Nature  of  Habeas  Corpus  Proceeding. 
Proceedings  in  habeas  corpus  are  not  ad- 
versary in  character,  are  not  in  a  tech- 
nical sense  a  suit  between  applicant  and 
officer,  whose  responsibility  ceases  when 
he  brings  the  applicant  into  court,  for  the 
court  to  pass  upon  the  ultimate  question 
whether  such  applicant  is  or  is  not  wrong- 
fully restrained  of  his  liberty.  Addis  v. 
Applegate  (Iowa)  1917E-332. 

5.  Excessive  Sentence.  On  habeas  cor- 
pus by  one  fined  for  contempt  of  the  dis- 
trict court  for  the  violation  of  its  injunc- 
tion, when  the  court  imposed  a  fine  in  ex- 
cess of  the  limit  permitted  by  Tex.  Rev. 
Civ.  St.  1911,  art.  1708,  the  judgment  of 
the  court  is  not  void  except  as  to  the  ex- 
cess, and  the  applicant  will  not  be  re- 
leased until  he  has  paid  the  fine  that  could 
be  lawfully  imposed.  Ex  parte  Ellerd 
(Tex.)    1916D-361.  (Annotated.) 

6.  Conviction  Under  Defective  Informa- 
tion. That  the  information  under  which 
one  was  convicted  was  defective  does  not 
entitle  him  to  discharge  on  habeas  corpus; 
all  that  he  could  secure  by  a  reversal  on 
appeal,  in  view  of  Mo.  Const,  art.  2,  S  23, 
being  a  remand  for  trial  on  a  proper  in- 


formation. 
684. 


In    re    Siegel    (Mo.)    1917C- 


2.     GROUNDS    OF    REMEDY. 

7.  Invalidity  of  Order  in  Bastardy  Pro- 
ceeding. As  an  order  of  the  magistrate 
issuing  a  warrant  in  a  bastardy  proceed- 
ing, committing  to  jail  a  defendant  ar- 
rested in  another  county,  and  not  taken 
before  the  mag^istrate  of  that  county  in- 
dorsing the  warrant,  because  of  his  fail- 
ure to  give  an  undertaking,  was  void,  the 
invalidity  of  the  order  could  be  asserted 
by  a  writ  of  habeas  corpus.  People  t. 
Snell  (N.  Y.)   1917D-222. 

Note. 
Right  of  prisoner  who  has  received  ex- 
cessive sentence  to  be   discharged  on  ha- 
beas corpus  or  appeal.     1916D-368. 

3.    JURISDICTION     OF     COURTS     TO 
ISSUE   WRIT. 

8.  Judge  Remote  from  Place  of  Confine- 
ment. Under  Iowa  Code  1897,  §  4419,  pro- 
viding that  the  district  courts  and  their 
judges  have  jurisdiction  to  allow  a  writ 
of  habeas  corpus  upon  proper  showing, 
and  that  the  writ  may  be  served  in  any 
part  of  the  state,  and  under  section  4420, 
providing  that  application  for  habeas  cor- 
pus must  be  made  to  the  judge  most  con- 
venient in  point  of  distance  to  the  appli- 
cant, and  the  more  remote  judge,  if  ap- 
plied to,  may  refuse  the  writ  unless  a 
sufficient  cause  be  stated  in  the  petition 
for  not  making  the  application  to  the 
more  convenient  court,  where  one  who 
had  been  confined  to  a  hospital  for  female 
inebriates  applied  to  the  judge  of  a  re- 
mote district  court  for  habeas  corpus  to 
secure  her  release,  claiming  that  she  was 
cured,  and  alleging  convenience  of  wit- 
nesses in  her  application  as  a  reason  for 
not  applying  to  a  judge  nearer  the  place 
of  detention,  such  judge  has  jurisdiction 
under  the  statutes  to  grant  the  writ.  Ad- 
dis V.  Applegate   (Iowa)   1917E-332. 

4.     APPLICATION  FOR   WRIT. 

9.  Prima  Facie  Showing  of  Illegality. 
An  application  for  habeas  corpus  must  at 
least  make  prima  facie  showing  that  the 
applicant's  confinement  is  unlawful.  Ad- 
dis V.  Applegate   (Iowa)   1917E-332. 

10.  Habeas  corpus  may  be  applied  for 
by  and  secured  upon  the  application  of 
the  person  confined,  or  the  application 
may  be  made  on  his  behalf  by  another, 
or  the  court  itself  may  issue  the  writ  on 
its  own  motion  in  proper  case.  Addis  v. 
Applegate  (Iowa)   1917E-332. 

5.     THE   RETURN. 

11.  Duty  to  Produce  Applicant  In  Court. 
By    whatever    authority    the    original    re- 


HABEAS  CORPUS. 


405 


straint  of  an  applicant  for  habeas  corpus 
was  made,  upon  issuance  of  the  writ  the 
party  against  whom  it  runs  must  bring  the 
applicant  before  the  judge  to  explain  and 
justify  the  present  restraint,  since  the 
object  of  the  writ  is  to  give  speedy  and 
effective  relief  to  those  wrongfully  de- 
prived of  their  liberty,  no  matter  by  whom 
or  under  what  claim.  Addis  v.  Applegata 
(Iowa)  1917E-332. 

fl.     HEARING  AND  DETERMINATION. 

12.  Confinement  of  Inebriate  for  Treat- 
ment. Where  one  confined  in  a  hospital 
for  female  inebriates  sought  habeas  corpus 
against  the  smperintendent  to  secure  her 
release,  whether  the  court  on  hearing  has 
the  right  to  inquire  whether  petitioner  was 
cured  is  a  question  of  law.  Addis  v.  Ap- 
plegate  (Iowa)   1917E-332.      (Annotated.) 

13.  Iowa  Const,  art.  1,  §  13,  provides  that 
the  writ  of  habeas  corpus  shall  be  issued 
when  application  is  made  as  required  by 
law.  Iowa  Code  Supp.  1907,  §  2310a3  pro- 
vides that  if,  after  thirty  days  of  treat- 
ment and  detention  as  an  inebriate  in  an 
insane  hospital,  a  patient  shall  appear  to 
be  cured,  and  if  the  physician  in  charge 
and  the  superintendent  of  said  institution 
shall  80  recommend,  the  governor  shall 
parole  such  patient.  Section  2310al2  pro- 
vides that  the  board  of  control  of  state 
institutions  may  discharge  any  inebriate 
confined  to  the  state  hospital  on  recom- 
mendation of  the  superintendent,  when 
satisfied  that  such  person  will  receive  no 
benefit  from  further  hospital  treatment, 
and  further  provides  that  the  term  of  de- 
tention and  treatment  of  an  inebriate  shall 
be  until  the  patient  is  cured,  not  exceeding 
three  years.  Petitioner  was  committed  as 
an  inebriate  by  order  of  the  court  to  the 
state  hospital  for  the  insane,  to  be  con- 
fined "until  cured,  not  exceeding  three 
years."  She  sought  habeas  corpus  against 
the  superintendent  of  the  institution  to 
secure  her  release,  claiming  that  she  was 
cured.  It  is  held  that  the  court,  on  hear- 
ing, had  tha  right  to  determine  the  issue 
of  fact  whether  she  was  cured,  since,  if 
such  was  the  case,  the  purpose  of  confine- 
ment was  accomplished,  and  there  was  no 
longer  any  right  under  the  order  or  stat- 
utes to  confine  her  longer;  habeas  corpus 
being  a  proper  means  under  the  constitu- 
tion, although  the  remedy  was  not  given 
expressly  by  the  statutes,  to  secure  her 
release,  when  her  right  to  liberty  arose 
upon  the  occurrence  of  a  cure.  Addis  v. 
Applegate  (Iowa)  1917E-332. 

(Annotated.) 

14.  Inferences  on  Habeas  Corpus — Stat- 
ute Under  Which  Conviction  was  Had. 
Petitioner's  conviction  of,  and  sentence  to 
a  term  of  two  years  for,  voting  twice  at 
an  election,  beinfr  supported  bv  Mo.  R-ev. 
St.    1909,  S  4427,   authorizing   a'  term   "not 


exceeding  five  years,"  and  it  not  appear- 
ing by  the  record  proper,  all  that  is  before 
the  court,  that  the  information  was  not 
drawn,  and  the  punishment  assessed,  there- 
under, he  will  not  be  discharged  on  habeas 
corpus,  even  if  sections  6155,  6177,  ynder 
which  the  information  might  be  drawn, 
and  which  require  a  texm  not  less  than  two 
years  nor  more  than  five  years,  be  invalid 
as 'special  legislation.  In  re  Siegel  (Mo.) 
1917C-684. 

15.  Sufficiency  of  Evidence.  Where  the 
testimony  on  habeas  corpus  shows  that  the 
court,  before  fining  the  applicant  for  con- 
tempt, heard  the  evidence  as  to  his 
contempt,  but  that  evidence  is  not  before 
the  court  in  habeas  corpus  proceedings,  it 
will  be  presumed  that  it  authorized  a  judg- 
ment of  conviction.  Ex  parte  EUerd 
(Tex.)  1916D-361. 

7.     APPEAL  AND  ERROR. 

16.  Eight  of  Appeal.  Following  the  de- 
cision in  Re  Petitt,  84  Kan.  637,  114  Pac. 
1071,  it  is  held  that,  since  the  adoption  of 
the  amended  Kan.  Code,  an  appeal  may 
be  taken  to  the  district  court  from  a  de- 
cision of  the  probate  court  discharging  the 
petitioner  in  a  habeas  corpus  proceeding. 
Miller  t.  Gordon   (Kan.)   1916D-502. 

(Annotated.) 

17.  The  respondent  in  a  habeas  corpus 
proceeding  appealed  to  the  district  court 
from  an  order  of  the  probate  court  dis- 
charging the  petitioner.  The  district  court 
dismissed  the  appeal  on  the  ground  that  it 
had  no  jurisdiction.  The  respondent  then 
appealed  to  the  supreme  court.  No  super- 
sedeas was  granted  and  no  stay  was  asked 
of  the  order  discharging  the  petitioner. 
Held,  that  the  questions  raised  are  not 
moot,  and  that  in  case  the  district  court 
upon  a  trial  of  the  appeal  on  its  merits 
remands  the  petitioner,  the  court  in  which 
the  prosecution  was  commenced  will  have 
authority  to  issue  a  warrant  for  the  peti- 
tioner if  that  is  found  necessary.  Miller 
V.  Gordon  (Kan.)  1916D-502. 

(Annotated.) 

18.  A  chief  of  police,  who  is  made  the 
respondent  in  a  habeas  corpus  proceeding, 
has  such  an  interest  therein  that  he  may 
prosecute  an  appeal  from  an  order  of  the 
probate  court  discharging  the  petitioner. 
The  case  of  Cook  v.  Wyatt,  60  Kan.  535, 
57  Pac.  130,  is  overruled.  Miller  v.  Gor- 
don (Kan.)  1916D-502.  (Annotated.) 

19.  Scope  of  Review.  Habeas  corpus  is 
assumed  to  be  the  proper  remedy,  without 
that  question  being  decided,  the  court  pre- 
ferring to  place  its  decision  upon  the  mer- 
its.    State  V.  Barnes  (N.  Dak.)  1917C-762. 

20.  On  appeal  from  discharge  on  habeas 
corpus  of  one  confined  in  a  state  hospital 
for  female  inebriates,  the  court  cannot  re- 
view the  finding  of  the  trial  coiirt,  whore 
there  is  evidence  to  support  it,  that  such 


406 


DIGEST. 

1916C— 1918B. 


patient  was  cored;  the  question  being  one 
of  fact,  not  reviewable  on  appeal.  Addis 
T.  Applegate  (Iowa)  1917E-33S. 

*^*^    "  (AnnoUted.) 

Note. 
Finality  of  order  in  habeas  corpus  pro- 
ceedings.    1916D-506. 

HAIL  INSUEANCB. 
See  Insnrance,  57,  59. 

HAin>  CAB. 

Use  at  night,  contributory  negligence,  see 

Master  and  Servant,  33. 
Negligence  in  operating,  see  Sailroads,  52, 

68. 

HANDWRITING. 

Expert   testimony,   see   Evidence,   59,  €3, 

111. 
Comparison,  see  Evidence,  112. 

HABMLESS  EBBOB. 
See  Appeal  and  Error,  212-334. 

HATCHWAY. 
Meaning,  see  Streets  and  Highways,  30. 

HAWKEBS  AND  PEDDI.EBS. 

See  Licenses,  3-15. 

License    of    itinerant    food    venders,    see 

rood,  8-12. 
Bight  of  fruit  stand  in  street,  see  Streets 

and  Hififhways,  22. 

1.  Soliciting  Orders  by  Sample.  One 
who,  by  displaying  samples,  solicits  orders 
for  the  sale  of  goods  for  future  delivery, 
is  not,  as  a  general  rule,  a  "peddler." 
Ideal  Tea  Co.  v.  Salem  (Ore.)   1917D-684. 

(Annotated.) 

2.  An  ordinance  of  a  city,  which  imposes 
on  peddlers  a  license,  which  defines  a 
"peddler"  as  a  person  who,  for  himself  or 
as  the  agent  of  another,  goes  from  house  to 
house  selling  or  offering  to  sell  for  future 
delivery  by  sample,  and  which  declares 
that  the  provisions  shall  not  apply  to  any 
merchant  or  dealer  having  a  regular  place 
of  business  in  the  city  in  taking  or  soli- 
citing orders  for  the  sale  and  delivery  of 
his  merchandise,  conflicts  with  Ore.  Const, 
art.  1,  §  20,  prohibiting  laws  granting  to 
any  citizen  or  class  of  citizens  privileges 
or  immunities  which  on  the  same  terms 
shall  not  equally  belong  to  all  citizens; 
for  it  imposes  a  license  on  nonresident  soli- 
citors, but  permits  merchants  of  the  city  to 
have  their  employees  visit  the  houses  of 
their  customers  and  take  orders  for  goods 
without  a  license.  Ideal  Tea  Co.  v.  Salem 
(Ore.)  1917D-684. 

Note. 
Sale  by   sample   for  future  delivery  as 
peddling.     1917D-686. 


HAZAEDOUS. 
Meaning,  see  Master  and  Servant,  257. 

HEADLIGHTa 
See  Automobiles,  4. 

HEAD  OF  A  FAMILT. 

Meaning,  see  Executions,  4. 

HEALTH. 

1.  Boards  of  Health. 

2.  Health  Regulations. 

a.  Regulation  of  Diseased  Animals. 

b.  Regulation  of  Bedding  Materials. 

Scope  of  police  power,  see  Constitutional 

Law,  14—44. 
Workmen's  Compensation  Act,  as  applying 

to   disease,   see   Master  and  ServanC 

110  193-198,  200. 
Physical      examination      of      pupils,      see 

Schools,  33-38. 
Exclusion  of  pupils  exposed  to  disease,  see 

Schools,  42,  43. 

1.     BOARDS  OF  HEALTH. 

1.  Review  of  Decision  of  Board.  As  HI. 
Laws  1915,  pp.  3,  5,  §§  2,  8,  authorizing  the 
destruction  of  diseased  cattle  by  the  board 
of  live  stock  commissioners,  is  valid,  the 
remedy  of  a  stockman  whose  cattle  have 
been  by  the  board  determined  to  have  a 
contagious  disease  and  are  about  to  be  de- 
stroyed is  at  law,  and  not  in  equity,  even 
though  it  is  contended  that  the  cattle  are 
not  afflicted  with  a  contagious  disease,  and 
the  evidence  of  experts  is  conflicting. 
Durand  v.  Dyson  (111.)   1917D-84. 

2.     HEALTH  REGULATIONS, 
a.     Regulation  of  Diseased  Animals. 

2.  Diseased  Animal  as  Nuisance.  Cattle 
afSicted  with  a  dangerous  or  contagious 
disease  are  public  nuisances  at  common 
law,  which  nuisance  cannot  be  legalized, 
as  it  invades  the  peace  and  safetv  of  the 
people.     Durand  v.  Dyson  (111.)   1917D-84. 

3.  Validity  of  Statute  Providing  Com- 
pensation to  Owner.  111.  Laws  1915,  p.  3, 
§  2,  declares  that  it  shall  be  the  duty  of 
the  board  of  live  stock  commissioners  to 
investigate  all  cases  of  communicable 
diseases  among  domestic  animals,  and  to 
use  all  proper  means  to  prevent  the  spread 
of  such  diseases,  and  provides  for  the 
extirpation  thereof,  authorizing  the  de- 
struction of  the  deceased  animals,  as  well 
as  the  premises  in  which  they  are  housed. 
The  section  also  authorizes  the  board  to 
make  agreements  with  the  owner  as  to  the 
value  of  the  animals,  and,  in  case  such  an 
agreement  cannot  be  made,  provides  for 
the  appraisement  thereof.  Section  8  de- 
clares that  all  claims  arising  from  the 
slaughter  of  animals  shall  in  no  event  ex- 


HEARING— HEREDITAMENTS. 


407 


ceed  $300  for  any  registered  animal  of  thd 
bovine  species,  or  $150  for  any  unregistered 
animal,  and  that  the  average  shall  not  ex- 
ceed $250  per  head  for  a  herd  of  registered 
cattle,  nor  $125  for  unregistered  cattle.. 
It  is  held  that  as  diseased  cattle  consti- 
tute a  nuisance,  and  as  Const.  U.  S. 
amend.  14  is  not  intended  to  deprive  states 
of  their  police  power,  the  statute  is  valid, 
for  in  such  case  the  determination  of 
whether  cattle  are  diseased,  as  well  as 
whether  they  should  be  slaughtered,  is 
properly  left  to  an  administrative  board, 
as  the  board  of  live  stock  commissioners. 
DHrand  v.  Dyson  (Bl.)  1917D-84. 

(Annotated.) 

4.  Delegation  of  Power  to  Board.  111. 
Laws  1915,  pp.  3,  5,  §§  2,  8,  authorizing  the 
destruction  of  diseased  cattle,  and  provid- 
ing for  compensation  of  owners,  is  not  an 
abuse  of  legislative  discretion,  though  the 
determination  of  the  question  of  disease 
be  left  to  the  board  of  live  stock  commis- 
sioners. Durand  v.  Dyson  (111.)  1917D- 
84.  (Annotated.) 

Not«. 
Validity    of    statute    providing   for    de- 
struction of  diseased  animals  with  compen- 
sation to  owner.     1917D-89. 

b.     Regulation  of  Bedding  Materials. 

5.  111.  Act  July  1,  1915  (Laws  1915, 
p.  375),  relative  to  the  use  of  second-hand 
material  in  the  manufacture  of  mattresses, 
quilts,  or  bed  comforters,  but  containing  no 
similar  provision  with  respect  to  pillows, 
discriminates  between  manufacturers  and 
dealers  in  pillows  and  manufacturers  and 
dealers  in  mattresses,  comforters,  and 
quilts,  and  is  class  legislation.  People  v. 
Weiner  (111.)  1917C-1065.  (Annotated.) 

6.  111.  Act  July  1,  1915  (Laws  1915, 
p.  375),  §  3,  providing  that,  when  any  per- 
son shall  remake  or  renovate  or  employ 
others  to  remake  or  renovate  any  mattress, 
quilt,  or  bed  comforter  for  his  own  use, 
the  material  used  for  filling,  together  with 
the  cover,  shall  be  sterilized,  is  a  proper 
exercise  of  the  police  power,  and  the  same 
requirement  could  be  made  with  reference 
to  the  manufacture  and  sale  of  mattresses, 
etc.     People  v.  Weiner   (111.)    19170-1065. 

(Annotated.) 

7.  111.  Act  July  1,  1915  (Laws  1915. 
p.  375),  relative  to  the  use  of  second-hand 
material  in  mattresses,  quilts,  or  bed  com- 
forters manufactured  for  sale,  cannot  be 
upheld  as  passed  to  prevent  fraud  or  de- 
ceit in  the  sale  of  goods,  as  regulations  to 
prevent  fraud  and  deceit  could  be  readily 
provided  without  prohibiting  the  use  of 
second-hand  material  if  properly  renovated 
and  sterilized.  People  v. .  Weiner  (111.) 
1917C-106O.  (Annotated.) 

8.  Use  of  Second-hand  Material  in  Bed- 
ding. 111.  Act  July  1,  1915  (Laws  1915, 
p.   375),  prohibiting  the  use   of  cotton  or 


other  material  made  second-hand  by  use 
about  the  person  in  the  making  of  mat- 
tresses, quilts,  or  bed  comforters,  and  the 
sale  of  mattresses,  etc.,  in  which  any  such 
second-hand  material  is  used  is  void,  as 
depriving  citizens  of  the  lawful  use  of 
their  property  in  a  manner  not  injurious 
or  dangerous  to  others,  since,  while  it 
would  be  proper  to  require  that  material 
be  free  from  germs  of  contagion  and  infec- 
tion, the  possible  danger  to  health  or 
safety  does  not  justify  the  absolute  prohi- 
bition of  a  useful  industry  or  practice 
where  the  danger  can  be  dealt  with  by 
regulation,  and  the  evidence  shows  that 
second-hand  bedding  does  not  necessarily 
convey  infectious  or  contagious  diseases, 
and  that  a  lawful  business  of  selling  or 
dealing  therein  may  be  carried  on  without 
danger  to  the  public  health,  and  the  legis- 
lature itself  recognizes  this  by  permitting 
persons  to  remake  or  renovate  or  employ 
others  to  remake  or  renovate  for  their  own 
use  any  mattress,  quilt,  or  bed  comforter, 
provided  the  material  is  sterilized,  and  it 
is  the  fundamental  right  of  every  person 
under  the  federal  and  state  constitutions 
to  pursue,  without  let  or  hindrance,  all 
such  callings  or  pursuits  as  are  innocent 
in  themselves,  and  not  injurious  to  the 
public.  People  v.  Weiner  (111.)  1917C- 
1065.  (Annotated.) 

Note. 
State  or  municipal  regulation  of  use  or 
sale  of  second-hand  clothes,  beddin?  or  the 
like.     1917C-10C8. 


HRABINO. 

Of  appeal,  see  Appeal  and  Error,  13. 

Necessity    for    hearing    on    default,    see 
Judgments,  48. 


HEAESAY  EVIDBNOE. 

See  Evidence,  37-41. 

HEXES. 

Meaning,  see  Wills,  1 83-190. 

HEXES  AT  LAW. 
Meaning,  see  Wills,  185,  186,  189. 

HEIESHXP. 

Living  person    has   no   heirs,  see  Descent 
and  IMstribution,  1. 

HEPBURN  ACT. 
See  Interstate  Commerce. 

HERD  LAW. 

See  Animals,  8-9. 

HEREDITAMENTS. 
Rent,  see  Property,  1. 


408 

HEBNIA   CLAUSE. 
See  Accident  Insurance,  5. 


DIGEST. 
19160— 1918B. 

appear  consistent  with  a  good-faith  claim 
of  homestead  right.  Mandan  Mercantile 
Agency  v.  Sexton  (N.  Dak.)  1917A-67. 


HIGH  SCHOOLS. 
Part  of  "common  schools,"  see  Schools,  8. 

HIGHEST  BIDDEE. 

Eights  at  auction,  see  Auctions  aad  Auc- 
tioneers, 5. 

HIGHWAYS. 

See  Streets  and  Highways. 

HOLDEE. 
Meaning,  see  Bills  and  Notes,  7,  48. 

HOLDEE  IN  DTTE  COUESE. 

Meaning,  see  Bills  and  Notes,  28,  42,  46. 

HOLDING  OVEE. 

Sffect  as  renewal  of  covenants,  see  Land- 
lord  and  Tenant,  49. 

HOLIDAYS. 
See  Sundays  and  Holidays. 

HOLOGEAFHIO  WCLU 
See  Wills,  13,  40,  46. 

HOME   FOB   INDIGENT. 
Charitable  trust,  see  Charities,  6. 

HOIilE  EXTLE  CHAETEB. 
See  Municipal  Corporations,  7. 

HOMESTEAD. 

1.  Nature  of  Homestead  Bights,  408. 

2.  Acquisition   and   Selection,   408. 

3.  Extent  of  Exemption,  409. 

4.  Conveyance  and  Incumbrance,  40d. 
6.  Waiver  and  Forfeiturej  410. 

6.  Devolution  of  Rights,  410. 

Avoidance  as  to  excess,  see  Bankruptcy, 
12. 

Probate  homestead,  see  Executors  and  Ad- 
ministrators, 27-31. 

As  subject  to  lien  for  improvements,  see 
Mechanics'  Liens,  14. 

Conveyance  reformed,  see  Eescission,  Can- 
cellation and  Eeformation,  10. 

1.     NATURE  OP  HOMESTEAD  RIGHTS. 

1.  Presumption  in  FaTor  of  Homestead 
Eight.  The  homestead  right  of  exemption 
is  a  constitutional  right  guaranteed  the 
family,  and  all  reasonable  presumptions  in 
its  favor  will  be  indulged,  where  the  facts 


2.  Eetroactive  Effect  of  Statute.  N.  Car. 
Revisal  1905,  §  686,  provides  that  an  al- 
lotted homestead  shall  be  exempt  from 
levy  so  long  as  owned  and  occupied  by  the 
homesteader  or  by  anyone  for  him,  but 
that,  when  conveyed  by  him  in  the  mode 
authorized  by  the  constitution,  the  ex- 
emption ceases  as  to  liens  attaching  prior 
to  the  conveyance;  that,  the  homestead 
right  being  indestructible,  the  homesteader 
who  has  conveyed  his  allotted  homestead 
can  have  another  allotted  as  often  as  may 
be  necessary,  provided,  this  shall  have  no 
retroactive  effect.  It  is  held  that  this  does 
not  apply  where  judgments  were  rendered 
and  .the  homestead  allotted  and  subse- 
quently conveyed  by  the  judgment  debtor 
long  before  the  section  in  question  was  en- 
acted, and,  upon  the  enactment  of  that  sec- 
tion, limitations  did  not  commence  to  run 
against  the  judgment  creditor's  right  to 
enforce  the  lien  of  the  judgments  against 
the  homestead.  Brown  t.  Harding 
(N.  Car.)  1917C-548. 

2.     ACQUISITION      AND     SELECTION. 

3.  Suflciency  of  Declaration.  Under 
Rem.  &  Bal.  Wash.  Code,  §§  558-560,  pro- 
viding that  in  order  to  select  a  homestead 
the  husband  or  other  head  of  a  family  must 
execute  and  acknowledge  a  declaration  of 
homestead,  and  file  the  same  for  record, 
which  must  contain,  a  statement  showing 
certain  required  matters,  and  that  such 
declaration  must  be  recorded  in  the  office 
of  the  auditor  of  the  county  in  which  the 
land  is  situated,  there  can  be  no  home- 
stead right  in  any  specific  property  until 
it  is  selected  and  such  selection  evidenced 
in  writing  and  recorded  as  provided. 
Brace,  etc.  Mill  Co.  v.  Burbank  (Wash.) 
1917E-739. 

4.  Intent  to  Occupy.  Property  purchased 
and  improved  in  pursuance  of  a  good- 
faith  intent  to  build  the  family  dwelling 
thereon,  and  to  reside  therein,  is  impressed 
with  homestead  characteristics,  entitling 
the  possessors  to  the  homestead  exemption 
in  advance  of  the  establishment  thereon 
of  actual  residence  of  the  claimant  and 
family,  where,  pursuant  to  a  previous  good- 
faith  intent,  the  actual  residence  is  estab- 
lished within  a  reasonable  time  after  com- 
pletion of  the  dwelling.  Mandan  Mercan- 
tile Agency  v.  Sexton  (N.  Dak.)  1917A-67. 

5.  The  time  so  elapsing  here  before  resi- 
dence began  is  sufficiently  explained  and 
excused.  Mandan  Mercantile  Agency  v. 
Sexton   (N.  Dak.)   1917A-67. 

6.  Interest. of  Tenant  in  Common.  Un- 
der the  Iowa  statutes  and  decisions,  the 
homestead  claim  attaches  to  the  undivided 
interest  of  a  tenant  in  common.  Sieg  v. 
Greene  (Fed.)  1917C-1006. 


HOMESTEAD. 


409 


7.  Snfaciency  of  Occupancy.  A  debtor, 
who  had  a  family  and  sometimes  kept 
house,  and  who  was  staying  at  his  father's, 
as  to  land  which  he  had  fraudulently  con- 
Teyed  to  his  father,  and  which  was  in  turn, 
conveyed  to  the  debtor's  children,  who  did 
not  show  any  interest  in  his  father's  land 
or  that  it  could  be  regarded  as  his  own 
homestead,  and  who  was  living  with  his 
father  and  cultivating  it,  has  no  such  oc- 
cupancy as  to  be  entitled  to  a  homestead 
therein  exempt  from  execution  sale  at  the 
suit  of  his  creditors.  Hall  v.  Casebolt 
(Ky.)  1917C-1012. 

3.     EXTENT  OF  EXEATPTION. 

8.  Two  Houses  on  Same  Tract.  The 
Iowa  statutes  (Code  1897  and  Code  Supp. 
1907,  §§  2972-2978)  provide  that  the  home- 
stead embraces  the  house  used  as  a  home 
by  the  owner,  that  if  he  has  two  or  more 
houses  he  may  select  which  he  will  retain, 
and  that  if  not  within  a  city  or  town  plat 
it  must  not  contain  more  than  40  acres  or 
embrace  more  than  one  dwelling  house. 
S  owned  an  undivided  half  interest  in 
about  97  acres  of  land,  10  acres  of  which 
was  within  the  corporate  limits  of  a  muni- 
cipality, but  had  not  been  platted.  There 
were  two  houses  on  the  land,  one  of  which 
S  occupied  with  his  family,  and  also  a 
brick  manufacturing  plant  occupying  about 
2  acres  J  the  rest  of  the  land  being  farm 
land.  It  is  held  that  the  homestead  right 
was  confined  to  the  undivided  half  interest 
in  80  acres,  including  the  dwelling  house 
occupied  by  S  and  excluding  the  brick 
plant  and  appurtenances  and  the  other 
dwelling  house.  Sieg  v.  Greene  (Fed.) 
1917C-1006. 

9.  Priority  of  Mechanic's  Lieu.  The  rule 
that  a  homestead  exemption  may  be 
claimed  at  any  time  before  execution, 
though  applicable  to  sales  under  execution 
to  satisfy  personal  judgments,  which  are 
general  liens,  has  no  application  to  a  sale 
of  property  to  satisfy  specific  mechanics' 
liens  against  it,  foreclosure  and  sale  in 
such  cases  being  in  rem;  and,  where  me- 
chanics' liens  against  a  house  accrued  upon 
the  furnishing  of  materials,  they  cannot  be 
precluded  by  the  owner's  subsequent  decla- 
ration of  homestead.  Brace,  etc.  Mill  Co. 
V.  Burbank  (Wash.)  1917E-739. 

(Annotated.) 

10.  An  owner  cannot,  by  filing  a  home- 
stead declaration,  cut  off  the  right  of  a 
materialman,  whose  material  is  then  in  the 
building,  to  perfect  his  lien  subsequently 
by  filing  the  required  notice  within  the 
statutory  time.  Brace,  etc.  Mill  Co.  v. 
Burbank  (Wash.)  1917E-739. 

(Annotated.) 

4.    CONVEYANCE     AND     INCUM- 
BEANCE. 

11.  Joinder  in  Husband's  Deed — ^Ac- 
knowledgment. Under  Ark.  Act  March  18, 
1887  (Laws  1887,  p.  90),  providing  that  no 


mortgage  affecting  the  homestead  of  any 
married  man  shall  be  valid  unless  his  wife 
joins  in  its  execution,  the  wife  must  not 
only  join  in  the  execution  of  a  deed  of 
trust  covering  a  homestead,  but  must  also 
acknowledge  that  she  executed  it,  in  order 
to  render  it  a  valid  incumbrance.  Davis  v. 
Hale  (Ark.)  1916D-701. 

12.  Validity  as  to  Creditors.  The  con- 
veyance of  a  homestead  is  not  fraudulent 
as  to  creditors.  Hall  v.  Casebolt  (Ky.) 
1917C-1012.  (Annotated.) 

13.  It  is  not  a  fraudulent  act  for  a 
debtor  to  transfer  to  his  wife  or  daughter 
a  homestead  to  which  his  creditors  could 
not  have  looked  for  the  satisfaction  of 
their  claims.  McKillip  v.  Farmers'  State 
Bank  (N.  Dak.)   1917C-993. 

(Annotated.) 

14.  Under  the  Iowa  statutes  and  deci- 
sions, a  voluntary  conveyance  of  the 
homestead  is  not  fraudulent  as  to  credi- 
tors, and  the  grantor  need  not  receive  full 
value,  as  his  creditors  cannot  take  it  and 
have  no  concern  about  what  he  gets.  Sieg 
V.  areene  (Fed.)  1917C-1006. 

(Annotated.) 

15.  As  against  creditors,  a  deed  con- 
veying both  the  homestead  and  unexempt 
land  is  valid  as  to  the  homestead,  even  if 
fraudulent  as  to  the  unexempt  land.  Thy- 
sell  V.  McDonald   (Minn.)   1917C-1015. 

(Annotated.) 

16.  Creation  of  Easement  Against  Home- 
stead. A  deed  granting  a  perpetual  right 
of  way  over  a  homestead  is  invalid  unless 
signed  by  both  husband  and  wife.  Lin- 
dell  V.  Peters  (Minn.)  1916E-1130. 

17.  Mortgage  by  Husband  Alone.  De- 
fendant and  wife  purchased  a  vacant  city 
block,  improved  the  same  for  three  sea- 
sons, finally  erecting  a  dwelling  house  and 
other  buildings  thereon.  Immediately  on 
completion  of  the  house,  plaintiff  took  a 
mortgage  on  the  tract,  signed  only  by  the 
husband,  who  declares  in  the  mortgage 
that  the  tract  "does  not  now  and  never 
has  constituted  any  part  of  his  home- 
stead." The  wife  refused  to  sign  the 
mortgage.  They  owned  no  other  real  es- 
tate, but  had  rented  in  the  same  city  since 
long  before  the  purchase  of  this  tract, 
which  they  testified  to  have  bought  "to 
make  a  home  of  it."  The  wife  paid  part 
of  the  purchase  price.  To  clear  the  land 
of  a  $200  mortgage  a  lease  for  a  term  of 
one  year  was  given  codefendant  W.,  and 
immediately  on  completion  of  the  house 
he  and  family  moved  in.  Four  months 
afterward  defendants  moved  their  furni- 
ture into  three  rooms  of  the  house  not 
rented,  intending  to  reside  in  it.  but  be- 
cause of  inconvenience  from  the  occu- 
pancy of  the  W.  family  did  not  actually 
take  up  their  residence  therein,  but  at- 
tempted to  oust  W.;  but  did  not  succeed. 
A  cow  and  some  chickens  were  moved  on 
the  tract  at  the  same  time  the  furniture 


410 


DIGEST. 

19160— 1918B. 


was  moved  into  the  honse,  and  remained 
there  several  months  until  feed  on  the 
place  gave  out.  A  year  and  four  months 
after  the  mortgage  was  taken,  and  about 
two  months  after  vacation  by  W.,  defend- 
ants established  actual  residence,  since 
maintained  continuously  in  said  dwelling. 
W.  had  signed  the  notes  as  a  joint  maker 
with  S.  The  husband  and  wife  defend, 
claiming  the  mortgage  to  be  void,  and 
that  the  premises  at  the  time  it  was  taken 
was  their  homestead,  which  could  not  be 
legally  encumbered,  except  the  wife  join 
therein.  Held,  the  mortgaged  premises 
was  the  homestead  and  the  mortgage  is 
void.  Mandan  Mercantile  Agency  v.  Sex- 
ton (N.  Dak.)  1917A-67.         (Annotated.) 

18.  The  recitals  in  the  mortgage  that 
the  premises  are  not  a  homestead  is  not -a 
covenant.  It  falls  with  the  mortgage  and 
amounts  to  but  a  statement  of  the  hus- 
band, which  cannot  of  itself  operate  to 
validate  the  mortgage.  Man  don  Mercan- 
tile Agency  v.  Sexton  (N.  Dak.)  1917A- 
67.  (Annotated.) 

Notes. 

Validity  and  effect  of  alienation  or  in- 
cumbrance of  homestead  without  joinder 
or  consent  of  wife.     1917A-71. 

Validity  as  against  creditors  of  convey- 
ance of  homestead.     1917C-994. 

5.     WAIVER  AND  FORFEITURE. 

19.  Involuntary  Absence.  Under  Tenn. 
Const,  art.  11,  §  11,  and  Shannon's  Tenn. 
Code,  §  3798,  providing  that  the  homestead 
shall  not  be  aliened  save  by  the  joint  con- 
sent of  the  husband  and  wife  where  that 
relation  exists,  a  husband,  though  incar- 
cerated in  the  penitentiary,  did  not,  where 
he  maintained  his  family  relations,  send- 
ing his  wife  money  from  the  institution 
and  resuming  his  position  as  head  of  the 
family  on  his  release,  lose  that  status  by 
reason  of  his  incarceration,  so  that  sepa- 
rate property  of  the  wife  upon  which  she 
lived  did  not  constitute  the  family  home- 
stead, which  could  not  be  aliened  without 
joint  consent  of  the  spouses.  Bryant  v. 
Freeman    (Tenn.)   1917E-111. 

(Annotated.) 
Note. 
Abandonment    or    forfeiture    of    home- 
stead  by   involuntary   op   compulsory   ab- 
sence.    1917EI-112. 

6.     DEVOLUTION  OF  RIGHTS. 

20.  Death  of  Spouse.  The  fee  of  the 
homestead  vested  in  the  children  subject 
only  to  the  life  estate  of,  the  surviving 
husband,  and  the  title  of  the  children  to 
such  remainder  in  fee  cannot  be  waived, 
impaired  or  burdened  by  the  surviving 
husband  either  as  life  tenant  or  as  admin- 
istrator. Nordlnnd  v.  Dahlgren  (Minn.) 
1917B-941. 

21.  Bights  of  Survlying  Spouse.  The 
lights    of    the    surviving    spouse    in    the 


homestead  vest  and  become  absolute  at 
the  death  of  the  deceased  spouse.  The 
statutory  provisions  for  setting  it  apart 
to  him  merely  prescribe  the  procedure  for 
segregating  it  from  the  remainder  of  the 
estate,  and  the  administrator  does  not  be- 
come entitled  to  possession  of  the  home- 
stead although  it  has  not  been  so  set 
apart.  The  homestead  of  Carrie  Walberg, 
at  her  death,  descended  to  her  husband 
for  the  term  of  his  natural  life,  and  his 
possession  thereof  was  as  such  tenant  for 
life  and  not  as  administrator.  Nordlund 
v.  Dahlgren  (Minn.)  1917B-941. 

HOMICIDE. 

1.  Involuntary    Manslaughter,  411. 

2.  Justifiable  and  Excusable  Homicide  and 

Other  Defenses,  411. 

a.  Defense  of  Habitation.  411. 

b.  Intervening  Causes,  411. 

3.  Indictment  or  Information,  411. 

a.  In  General,  411. 

b.  Charge    of    Murder    as    Including 

Manslaughter,  412. 
e.  Issues  and  Variance,  412. 

4.  Conduct  of  Trial,  412. 

5.  Evidence,  412. 

a.  Presumptions,  412. 

b.  Admissibilitv   of  Evidence,  412. 

(1)  In  General,  412. 

(2)  Other  Crimes,  412. 

(3)  Instruments  of  Crime,  412. 

(4)  Fruits  of  Crime,  413. 

(5)  Clothing,  413. 

(6)  Letters,  413. 

(7)  Intoxication,  413. 

(8)  Dictaphoned       Conversations, 

414. 

(9)  Acts  and  Declarations  by  De- 

ceased, 414. 

(a)  In  General,  414. 

(b)  Threats    bv    Deceased, 

414. 

(c)  Dying  Declarations,  414. 

(10)  Acts     and     Declarations     of 

Third  Person,  414. 

(11)  Testimony    at    Coroner's   In- 

quest, 415. 
e.  "W flight    and    SufSciency    of    Evi- 
ilence  415. 

(1)  In  General,  415. 

(2)  Necessity  of  Proving  Motive, 

415. 

(3)  Self-defense,  415. 

(4  Identity  of  Deceased,  415. 
(5)  Finger  Prints,  415. 

6.  Instructions,  415. 

a.  In  General,  415. 

b.  Intent,  416. 

c.  Criminal  Responsibility,  416. 

d.  I^cts  not  in  Evidence,  416. 

e.  Self-defense,  416. 

f.  Charge  as  to  Degree  of  Crime.  416. 

g.  "Recommendation  of  Mercy,  417. 

7.  Verdict,  417. 

Admissions  of  accused,  see  Admissions  and 
Declarations.  11. 


HOMICIDE. 


411 


Declarations  of  deceased,  see  Admissions 
and  Declarations,  9-10. 

Dying  declarations,  see  AdmiS3ions  amd 
DeclaratioHS,  21-24. 

Exculpatory  statements,  see  Admissions 
and  Declarations,  25. 

Harmless  error  in  admitting  testimony, 
see  Appeal  and  Error,  239. 

Reference  to  expense  of  imprisonment,  see- 
'Argument  and  Conduct  of  Counsel, 
26. 

In  resisting  arrest,  see  Arrest,  8. 

Liability  of  auto  driver,  see  Automobiles, 
63. 

Expert  testimony  as  to  physical  possibil- 
ity of  act,  see  Evidence,  62. 

Opinion  evidence  as  to  defendant's  intoxi- 
cation, see  Evidence,  78-81. 

Form  of  verdict,  see  Verdicts,  9. 

Spring  gun  causing  death,  manslaughter, 
see  Weapons,  1. 

1.  INVOLUNTARY  MANSLAUGHTER. 

1.  Effect  of  Statute.  The  Oregon  stat- 
ute, making  homicide  from  unlawful  abor- 
tion manslaughter,  has  not  created  a  new 
crime,  but  merely  reduced  the  grade  of 
the  offense  at  common  law  by  changing 
the  punishment  from  death  to  imprison- 
ment in  the  penitentiary.  State  y.  Far- 
nam  (Ore.)  1918A-318. 

2.  JUSTIFIABLE  AND  EXCUSABLE 
HOMICIDE  AND  OTHER  DE- 
FENSES. 

a.     Defense  of  Habitation. 

2.  Duty  to  Retreat.  The  owner  of  a 
dwelling  attacked  therein  is  not  bound  to 
flee,  but  may  stand  his  ground  and  kill  his 
assailant;  this  being  the  rule  both  at  com- 
mon law  and  under  N.  Y.  Penal  Law 
(Consol.  Laws,  c.  40)  §  1055.  People  v. 
Tomlins    (N.    Y.)    1916C-916. 

(Annotated.) 

b.     Intervening  Causes. 

3.  Cause  of  Death.  Defendant  was 
guilty  of  causing  decedent's  death,  if  his 
shooting  her  caused  a  miscarriage  fol- 
lowed by  blood  poisoning,  resulting  in  her 
death,  notwithstanding  any  intervening 
medical  negligence;  it  being  only  when 
the  death  is  solely  attributable  to  the 
secondary  agency,  and  not  at  all  induced 
by  the  primary  one,  that  its  intervention 
constitutes  a  defense.  People  v.  Kane 
(N.  Y.)  1916C-685.  (Annotated.) 

Note. 
Fact    that    death    resulted    from    super- 
vening cansp  as  defense  to  charge  of  homi- 
cide.    191fiC-692. 

3.  INDICTMENT    OR    INFORMATION. 

a.     In  General. 

4.  Sufficiency  of  Indictment.  An  in- 
dictment for   murder  by  means  unknown 


to  the  grand  jury  is  good.     State  v.  Far- 
nam  (Ore.)   1918A-318. 

5.  In  a  prosecution  for  involuntary 
manslaughter,  it  is  not  necessary  that  the 
indictment  should  describe  the  particular 
character  or  kind  of  motor  vehicle  with 
which  the  killing  was  accomplished,  as  ac- 
cused is  presumed  to  know  the  provisions 
of  the  statute  defining  the  term  "motor 
vehicle,"  and  that  a  Ford  automobile 
comes  clearly  within  the  statutory  defini- 
tion. People  v.  Falkovitch  (111.)  1918B- 
1077. 

6.  An  indictment  for  involuntary  man- 
slaughter committed  by  the  reckless  driv- 
ing of  an  automobile,  alleging  that  the 
act  was  done  feloniously,  unlawfully,  and 
recklessly,  is  sufficient,  although  it  does 
not  charge  that  the  killing  was  "wilful," 
as  an  act  done  feloniously  is  done  with 
the  deliberate  purpose  of  committing  a 
crime.  People  t.  Falkovitch  (111.)  1918B- 
1077. 

7.  Negligent  Manslaughter  —  Reckless 
Driving  of  Automobile.  In  a  prosecution 
for  involuntary  manslaughter  committed 
by  reckless  driving  of  an  automobile,  in- 
dictment is  held  to  set  forth  sufficiently 
the  specific  acts  relied  on  as  constituting 
the  crime.  People  v.  Falkovitch  (HI.) 
1918B-1077. 

8.  Included  Offenses,  An  indictment 
for  murder  in  the  first  degree  is  sufficient 
to  sustain  a  conviction  for  homicide,  com- 
mitted in  an  attempt  to  procure  an  abor- 
tion.    State  V.  Farnam  (Ore.)   1918A-318. 

9.  Averment  of  Death  from  Wound. 
An  information  charging  that  there  was 
inflicted  upon  and  in  the  body  of  deceased 
one  mortal  wound,  from  which  mortal 
wound  deceased  languished  a  short  time, 
and  then  on  a  certain  day,  at  the  county 
and  state,  etc.,  died,  is  not  defective  in 
failing  to  charge  that  deceased  languished 
and  died  from  the  wound  inflicted.  State 
T.  Inlow   (Utah)   1917A-741. 

10.  Failure  to  Allege  Mortal  Wound  or 
Injury.  An  indictment  for  murder  in  the 
first  degree  is  not  defective  for  failure  to 
allege  that  the  defendant  administered  to 
the  deceased  "a  mortal  wound"  or  "mortal 
injury"  or  "mortal  sickness,"  where  the 
language  of  the  indictment  sets  up  a 
plain,  direct,  and  certain  state  of  facts 
constituting  the  crime,  from  which  the 
connection  between  the  facts  alleged  as 
the  cause  of  death  and  the  death  itself 
appears.  Robinson  v.  State  (Fla.)  1917D- 
506. 

11.  Grammatical  Error.  An  informa- 
tion, charging  that  accused  with  a  deadly 
weapon,  to  wit,  a  pistol,  did  feloniously 
shoot  off,  at,  against,  and  upon  another,  is 
sufficient  to  charge  an  assault  with  intent 
to  kill,  even  though  the  use  of  the  word 
"with"  before  "a  deadly  weapon"  is  bad 


412 


grrammar. 
855. 


DIGEST. 

19160— 1918B. 

Stato  T.  Qoold  (Mo.)  1916E-  does  not  authorize  the  admisgion  of  evi- 
dence relative  to  the  illness  and  death  of 
a  daujfhter  long  after  his  death.  People  t. 
BuiEom  (N.  Y.)  1916D-962. 


b.     Charge  of  Murder  as  Including  Mas- 
slaughter. 

12.  Incladed  Offenses.  The  general  rule 
is  that  an  indictment  for  murder  in  the 
first  degree  necessarily  involves  all  other 
grades  of  homicide  which  the  evidence 
tends  to  establish.  State  v.  Farnam  (Ore.) 
1918A-318. 

e.    Issues  and  Variance. 

13.  An  indictment  for  murder  by  means 
unknown  to  the  grand  jury  will  sustain 
conviction  in  a  case  where  accused  was 
conclusively  proved  to  have  either  mur- 
dered a  girl  outright  or  killed  her  in  an 
attempt  to  procure  an  abortion.  State  v. 
Farnam   (Ore.)    1918A-318. 

4.     CONDUCT    OF    TRIAL. 

14.  Taking  Jury  to  Seyival  Meeting.  In 
a  prosecution  for  murder,  where  the  jury 
were  present  at  a  revival  meeting  during 
the  trial,  a  mere  theoretical  discussion  of 
sin  and  its  punishment,  considered  solely 
from  the  angle  of  divine  government,  is 
not  prejudicial  to  the  rights  of  the  de- 
fendant. Chilton  v.  Commonwealth  (Ky.) 
1918B-851.  (Annotated.) 

15.  Custody  and  Conduct  of  Jury.    The 

members  of  a  jury  impaneled  to  try  a 
homicide  case  should  not  be  subjected  to 
any  outside  influence,  but  their  conclusion 
should  be  the  result  of  an  unbiased  judg- 
ment, based  on  the  evidence  heard  in  the 
courtroom  and  the  law  as  expounded  by 
the  court,  considered  in  the  light  of  proper 
arguments  by  counsel  for  the  prosecution 
and  defense.  Chil*'>ii  ▼.  Commonwealth 
(Ky.)  1918B-851. 

5.    FVTDENCB. 
a.     Presumptions. 

16.  Where  it  appears  that  a  son  of  the 
deceased  who  was  in  the  house  when  the 
murder  was  committed,  is  deficient  in  un- 
derstanding and  not  able  to  talk  intelli- 
gently, no  inference  adverse  to  the  state 
can  be  drawn  from  the  district  attorney's 
failure  to  call  him  as  a  witness,  especially 
in  view  of  the  fact  that  such  son  was  in 
court  and  might  have  been  called  by  de- 
fendant. People  V.  Roach  (N,  Y.)  1917A- 
410. 

b.     Admissibility  of  Evidence. 

(1)     In  General. 

17.  In  a  prosecution  of  a  wife  for  the 
murder  of  her  husband,  who  died  of  arsen- 
ical poisoning,  the  fact  that  one  theory 
of  the  defense  was  that  the  husband  com- 
mitted suicide  pursuant  to  an  intention 
formed  to  kill   himself  and  his  children, 


(2)     Other  Crimes. 

18.  As  Bearing  on  Motive.  Where  the 
^tate  contended  that  accused  killed  de- 
ceased to  prevent  the  latter  from  testify- 
ing against  him  in  a  prosecution  for  bur- 
glary, evidence  by  police  officers  as  to  a 
conversation  with  accused,  wheiein  they 
informed  him  that  deceased  would  be  a 
witness  against  him,  is  admissible  to  show 
motive,  although  the  state  should  not  go 
into  the  particulars  of  the  other  offense. 
State  V.  Inlow  (Utah)  1917A-741. 

19.  Proof  of  Other  Homicides.  In  a 
prosecution  of  a  wife  for  the  murder  of 
her  husband,  who  died  of  arsenical  poison- 
ing, the  admission  of  evidence  of  the  ill- 
ness and  death  of  their  daughter,  appa- 
rently from  poisoning,  long  after  the 
death  of  the  husband,  is  in  violation  of 
the  rule  forbidding  proof  of  any  crime  not 
alleged  in  the  indictment.  People  v.  Buf- 
fom  (N.  Y.)  1916D-962. 

20.  Premeditation.  Premeditation  is  an 
essential  element  of  the  crime  of  murder. 
Its  existence  mav  be  inferred  from  the 
circumstances  of  the  case.  Where  a 
woman  is  charged  with  the  murder  of  her 
infant  child,  and  the  evidence  tends  to 
show  that  it  was  destroyed  immediately 
upon  its  birth,  evidence  of  the  woman's  in- 
tention or  desire  before  the  birth  of  the 
child  to  produce  an  abortion  is  admissible 
as  tending  to  show  the  existence  of  a  mo- 
tive for  the  destruction  of  the  infant  and 
of  a  premeditated  design  to  destroy  it. 
Robinson  v.  State  (Fla.)  1917D-506. 

(3)     Instruments  of  Crime. 

21.  Bloodstain  from  Weapon.  Where  a 
witness  testified  that  he  had  gone  to  ac- 
cused's room  shortly  after  the  infliction  of 
fatal  wounds  on  decedent  and  had  seen  a 
razor  between  the  mattress  and  the  pillow, 
and  that  in  the  morning  he  saw  the  razor 
in  the  hands  of  the  landlady,  who  was 
making  the  bed,  the  testimony  of  the  land- 
lady that  on  the  morning  following  the 
killing  she  saw  a  third  person  take  the 
razor  and  walk  out,  and  that  she  examined 
the  pillow  slip  and  there  was  a  stain  of 
blood,  is,  together  with  the  pillow  slip,  ad- 
missible. State  v.  Giudice  (Iowa)  1917C- 
1160. 

22.  As  to  Allegation  that  Manner  of 
Killing  was  Unknown.  Where  an  indict- 
ment for  homicide  charged  that  deceased 
was  killed  with  some  sharp  instrument  to 
thfe  grand  jury  unknown,  it  is  not  error 
for  the  district  attorney  to  testify  as  to 
the  efi'orts  of  the  prand  jury  to  ascertain 
the  character  of  instrument  used.  Mason 
V.  State  (Tex.)   1917D-1094. 


HOMICIDE. 


413 


23.  As  to  Footprints  of  AnlmaL  In  a 
trial  for  murdar,  alleged  to  hare  been  com- 
mitted in  conspiracy  with  other  parties, 
evidence  that  witness  had  examined  mule 
tracks  in  the  woods  near  where  the  killing 
occurred,  that  they  were  fresh  shod  foot 
impressions,  showing  a  rough  calk  not 
wedged  at  the  end  as  usual,  and  that  he 
saw  some  of  the  tracks  of  the  mule  made 
in  town  which  were  the  same  as  those  seen 
near  where  the  killing  occurred,  and  that 
the  mule  whose  tracks  he  saw  in  town  was 
brought  to  the  barn  by  one  of  the  alleged 
conspirators,  is  admissible.  Brindley  t. 
State  (Ala.)  1916E-177. 

24.  Where  a  witness  testified  that  h« 
saw  fresh  mule  tracks  in  the  woods  near 
the  place  of  the  homicide,  and  stated  that 
the  calk  of  one  shoe  was  larger  than  the 
other,  and  that  he  afterwards  saw  a  mule 
in  town  driven  by  one  with  whom  defend- 
ant was  charged  to  have  been  in  con- 
spiracy, which  was  the  mule  whose  tracks 
he  had  exajnined,  there  is  no  error  in 
allowing  him  to  be  asked  by  the  solicitor 
what  wa«  the  measurement  of  the  mule 
track,  nor  in  permitting  an  answer  that 
the  track  witness  had  measured  was  not 
as  plain  as  where  he  found  it  out  there, 
that  he  •could  not  get  the  exact  measure- 
ment of  the  heel,  but  the  length  of  it  was 
the  same.  Brindley  v.  State  (Ala.)  1916E- 
177. 

(4)     Fruits  of  Crime. 

25.  Articles  Taken  from  Accomplice. 
In  a  prosecution  for  murder  in  the  first  de- 
gree, committed  within  and  as  a  part  of 
an  attempted  lobbery,  articles  of  wearing 
apparel  and  other  article  found  on  or  taken 
from  defendant's  accomplice  after  the  at- 
tempted robbery  are  admissible.  State  v. 
Mewhinney  (Utah)  1916C-537. 

(5)     Qothing. 

26.  Examination  of  Blood  Stains.  Where 
the  state  introduced  in  evidence  a  coat 
worn  by  accused  on  the  night  of  the  mur- 
der, and  the  state  chemist  testified  that 
blood  stains  on  the  coat  were  from  the 
blood  of  mammals,  but  refused  to  give  an 
opinion  whether  it  was  human  blood,  the 
chemist  may  also  testify  that,  in  making 
the  test,  he  compared  it  with  his  own 
blood,  for,  in  making  such  tests,  a  com- 
parison with  mammalian  blood  is  always 
made.     State  v.  Inlow  (Utah)   1917A-741. 

27.  In  a  prosecution  for  homicide,  where 
there  was  suflScient  evidence  to  show  that 
accused  and  his  wife  were  co-conspirators, 
a  coat  worn  by  the  wife  on  the  evening  of 
the  homcide,  and  which  was  spattered  with 
blood,  is  admissible  in  evidence.  State  v. 
Inlow  (Utah)  1917A-741. 

28.  To  render  accused's  blood-stained 
clothing  admissible  in  evidence  in  a  murder 
trial,    there    must    be    preliminary    proof 


that  the  clothing  was  worn  by  accused 
at  the  time  of  the  homicide,  and  that 
there  had  been  no  change  in  the  condi- 
tion thereof  between  that  time  and  the 
time  of  the  test  for  blood  stains  or  the 
time  when  the  clothing  is  admitted  in 
evidence,  and,  while  the  preliminary 
proof  need  not  be  shown  by  direct  evi- 
dence, the  proof  must  justify  the  infer- 
ence, that  the  clothing  was  worn  at  the 
time  of  the  killing  and  that  the  blood 
stains  were  then  received.  State  v.  Ilgen- 
fritz  (Mo.)   1917C-366. 

29.  Where  tests  for  blood  stains  on 
clothing  of  accused  charged  with  murder 
were  not  made  until  six  months  after  the 
murder,  and  the  evidence  did  not  show 
the  condition  of  the  clothing  during  the 
interval  or  that  it  had  not  been  interfered 
with,  but  showed  that  it  had  passed 
through  the  hands  of  several  persons  dur- 
ing the  interval,  it  was  error  to  admit  in 
evidence  the  clothing  and  the  testimony 
of  a  physician  that,  on  making  scientific 
test,  he  found  human  blood  stains  thereon. 
State  V.  Ilgenfritz  (Mo.)  1917C-366. 

30.  Comparison  of  Footprints — Shoe  Fur- 
nished by  Accused.  Where  one  under  ar- 
rest hands  his  shoe  to  the  officer  in  charge, 
who  places  the  shoe  in  a  track  near  the 
scene  of  the  homicide,  the  latter  may  tes- 
tify that  the  shoe  fitted  the  track  exactly, 
even  though  he  did  not  warn  the  former 
against  incriminating  evidence.  Lee  v. 
State  (Fla.)  1917D-236.  (Annotated.) 

(6)     Letters. 

31.  Matters  Explanatory  of  Eelevant 
Dociunent.  Where  in  a  prosecution  for 
murder  the  theory  of  the  state  was  that 
defendant,  a  police  lieutenant,  instigated 
the  crime  because  deceased,  a  professional 
gambler,  angry  because  defendant  raided 
his  place,  threatened  to  disclose  defend- 
ant's connection  with  gamblers,  anony- 
mous letters  sent  to  a  police  commissioner 
charging  defendant  with  protecting  gam- 
blers are  admissible,  not  as  evidence  of  the 
facts  stated  therein,  but  to  aid  a  memo- 
randum of  defendant  sent  to  the  police 
commissioner  in  answer  to  such  charges. 
People  V.   Becker    (Kan.)    1917A-600. 

(7)     Intoxication. 

32.  IntoKlcation  as  Bearing  on  Intent. 

Accused,  charged  with  murder  in  the  first 
degree,  may  show  that  he  was  so  intoxi- 
cated at  the  time  of  the  killing  as  to  be 
incapable  of  understanding  that  he  was 
committing  a  crime,  to  disprove  existence 
of  specific  intent  essential  in  murder  in 
the  first  degree.  James  v.  State  (Ala.) 
1918B-119. 

33.  As  Bearing  on  Capacity.  That  ac- 
cused, relying  on  intoxication  at  the  time 
of  the  killing,  had  been  drinking  at  other 
times,   does   not  show  incapacity   to   com- 


414 


DIGEST. 

1916C— 1918B, 


mit  murder  at  the  time  of  killing,  and 
questions  as  to  his  condition  as  to  drink- 
ing on  prior  occasions  are  properly  ex- 
cluded.    .James  v.  State  (Ala.)  1918B-119. 

34.  Conviviality.  That  accused,  relying 
on  intoxication  at  the  time  of  the  killing, 
offered  a  witness  a  drink  shortly  before 
the  killing,  is  immaterial.  James  v.  State 
(Ala.)  1918B-119. 

(8)     Dictaphoned  Conversations. 

35.  Evidence  Procured  Through  Dicta- 
phone. In  a  prosecution  for  murder,  testi- 
mony of  a  witness  that,  with  interrup- 
tions, he  overheard  a  conversation  through 
a  detectaphone  installed  in  the  room  of 
the  jail  where  the  defendant  and  two  other 
parties,  who  had  been  jointly  indicted  for  • 
the  murder,  were  confined,  to  the  effect 
that  defendant  asked  one  of  the  other  par- 
ties if  he  knew  what  a  certain  named  per- 
son had  done,  and  that  such  other  party 
replied  that  he  had  heard  that  the  person 
named  had  turned  state's  evidence,  that 
such  other  defendant  said  he  could  prove 
an  alibi  if  he  could  find  the  right  man, 
that  defendant  replied,  "They  all  know  I 
was  up  there  at  the  saloon,"  that  defend- 
ant asked  the  other  party  what  he  did 
with  the  guns,  and  why  he  did  not  get 
the  father  of  the  deceased,  and  was  told 
that  the  guns  were  hid  under  a  rail  fence 
and  that  he  "had  to  leave  there  too  quick," 
is  admissible,  when  accompanied  by  the 
witness'  exhibition  of  a  detectaphone  and 
his  explanation  of  its  operation.  Brind- 
ley  V.  State  (Ala.)  1916E-177. 

(Annotated.) 

(9)     Acts  and  Declarations  by  Deceased. 

(a)     In  General. 

36.  Statement  of  Deceased  as  to  In- 
tended Movements.  A  statement  made  by 
decedent  immediately  before  he  returned 
to  a  railroad  roundhouse  with  his  throat 
cut,  that  he  was  going  out  an  avenue  and 
80  would  pass  a  woodpile  where  the  crime 
was  alleged  to  have  been  committed,  is 
admissible  as  part  of  the  res  gestae.  State 
V.  Giudice  (Iowa)  1917C-1160. 

37.  Intention  to  Commit  Suicide.  Where 
the  state's  circumstantial  evidence  showed 
that  accused  shot  deceased  and  a'ocused's 
circumstantial  evidence  showejl  that  de- 
ceased committed  suicide,  evidence  that 
de<!eased  on  the  day  of  the  shooting,  or 
shortly  before,  stated  that  he  intended  to 
commit  suicide,  is  admissible.  State  v. 
Hgenfritz  (Mo.)  1917C-366. 

(Annotated.) 

(b)     Threats  by  Deceased. 

38.  Uncommunicated  Threats  by  De- 
ceased. Where  accused  does  not  rely  on 
self-defense,  evidence  of  uncommunicated 
threats  of  deceased  to  kill  accused  is  inad- 


missible.   State  V.  Dgenfpitz  (Mo.)  1917C- 
366. 

(c)     Dying  Declarations. 

39.  Statement  of  Convict  Immediately 
Before  Execution.  The  declaration  of  one 
convicted  of  murder,  made  just  before 
execution,  that  defendant  on  trial  as  in- 
stigator of  the  murder  had  nothing  to  do 
with  it  as  far  as  he  knew,  is  inadmissible. 
People  V,  Becker   (Kan.)    1917A-600. 

(Annotated.) 
Note. 

Dying  declaration  as  admissible  only 
when  death  of  declarant  is  under  inquiry. 
1917A-612. 

(10)     Acts  and  Declarations  of  Third  Per- 
son. 

40.  Acts  of  Co-conspirator.  In  a  prosecu- 
tion for  homicide,  evidence  held  sufficient 
to  show  that  accused  and  his  wife  were 
co-conspirators,  and  hence  evidence  of  the 
acts  of  his  wife  was  admissible.  State  v. 
Inlow  (Utah)  1917A-741. 

41.  Conversation  of  Accessory.  Conver- 
sation of  a  third  person  in  absence  of  de- 
fendant, with  the  gunman  who  did  the 
killing,  is  admissible  when  there  is  evi- 
dence of  such  person's  general  authority 
from  defendant  to  bring  about  the  killing. 
People  V.  Becker  (Kan.)  1917A-600. 

42.  After  Crime  Committed.  The  decla- 
rations of  a  codefendant  and  alleged  con- 
spirator, together  with  his  manner  and  ap- 
pearance after  the  homicide,  do  not  coQ- 
stitute  evidence  against  defendant.  Brind- 
ley  V.  State  (Ala.)   1916E-177. 

43.  Declaration  of  Infant  at  Time  of 
Homicide.  The  exclamation  of  a  boy  four 
years  of  age  that  "the  bums  killed  pa  with 
a  broomstick,"  which  was  made  from  10  to 
30  seconds  after  a  fatal  assault  upon  his 
father,  made  in  the  boy's  presence,  is  com- 
petent evidence  to  go  to  the  jury  as  ex- 
planatory and  illustrative  of  the  manner 
and  means  by  which  the  father  was  as- 
saulted. The  utterance  of  the  boy  under 
such  circumstances,  made  at  the  earliest 
opportunity  to  make  an  outcry  in  the  pres- 
ence and  hearing  of  others,  was  the  spon- 
taneous and  impulsive  language  of  the 
situation,  free  from  any  subterfuge,  arti- 
fice or  motive  to  fabricate.  Its  weight, 
however,  is  purely  a  question  for  the  jury. 
State  V.  Lasecki  (Ohio)  1916C-1182. 

(Annotated.) 

44.  Conversation  Connecting  Defendant 
With  Crime.  To  prove  that  conversations 
in  absence  of  d«fendant,  connecting  him 
with  the  crime  charged,  were  authorized 
b-^  him,  the  sworn  testimony  of  one  of  the 
parties  holding  such  conversation  is  ad 
missible.  though  its  weight  was  for  the 
jury.  People  v.  Becker  (Kan.)  1917A- 
600. 


HOMICIDE. 


415 


45.  Declarations  of  Third  Person.     Tn  a 

prosecution  for  murder,  conversations  had 
between  third  persons  subsequently  re- 
peated to  defendant,  connecting  defendant 
with  the  crime,  are  admissible.  People  v. 
Becker  (Kan.)  1917A-600. 

46.  Acts  after  Commission  of  Crime. 
Where,  on  a  trial  of  defendant  for  insti- 
gating a  murder,  one  of  the  conspirators 
testified  that  he,  at  the  direction  of  de- 
fendant, had  been  given  money  to  pay  the 
gunmen  who  actually  did  the  killing,  tes- 
timony of  the  wife  of  one  of  the  gunmen 
that  her  husband  brought  a  package  of 
money  to  her  apartment  and  divided  the 
money  with  the  other  gunmen  is  admis- 
sible. People  v.  Becker  (Kan.)  1917A- 
600. 

47.  Declaration  of  Co-conspirator.  Where 
there  is  evidence  of  a  conspiracy  to  kill, 
testimony  of  the  chauffeur  driving  the  men 
who  actually  did  the  shooting  to  the  place 
of  crime  that  one  of  the  men  said  that  the 
defendant  "had  the  cops  fixed"  is  admis- 
sible. People  v.  Becker  (Kan.)  1917A- 
600. 

Note. 

Declarations  of  infant  at  time  of  assault 
or  homicide  as  part  of  res  gestae.  1916C- 
1187. 

(11)     Testimony  at  Coroner's  Inquest. 

48.  In  a  prosecution  for  murder,  where 
defendants  ob,iected  generally  to  the  ad- 
mission in  evidence,  to  impeach  their  tes- 
timony on  cross-examination,  of  a  steno- 
gfrapher's  transcript  of  portions  of  their 
testimony  before  the  coroner's  jury,  and 
parts,  at  least,  of  such  transcript  were  ad- 
missible, the  whole  is  admissible,  since  the 
duty  to  separate  by  specific  objection  the 
inadmissible  from  the  admissible  parts 
rests  upon  the  defendants  alone,  not  upon 
the  court.  Patterson  v.  State  (Ala.) 
1916C-968. 

c.     Weight    and    Sufficiency    of   Evidence. 
(1)     In  General. 

49.  Evidence  in  a  murder  case  held  to 
make  a  question  for  jury  whether  the  shoot- 
ing was  intentional  or  accidental.  People 
V.  Kane  (N.  Y.)  1916C-685. 

50.  In  a  prosecution  for  homicide  the 
evidence  is  held  to  sustain  the  verdict. 
Lee  v.  State  (Fla.)  1917D-236. 

51.  Evidence  Suflacient.  In  a  prosecu- 
tion for  murder,  evidence  held  sufficient  to 
show  that  defendant  instigated  the  mur- 
der, which  was  committed  by  others.  Peo- 
ple V.  Becker  (Kan.)   1917A-600. 

52.  In  a  prosecution  for  murder,  evi- 
dence of  corroboration  of  the  accomplices 
of  defendant,  who,  on  grant  of  immunity, 
testified  that  defendant  instigated  them 
to  hire  gunmen  to  do  the  killing  held  suf- 


ficient to  go  to  the  jury.     PeoTple  v.  Becker 
(Kan.)  1917A-600.' 

53.  Evidence  considered  and  held  to  be 
sufficient  to  sustain  a  conviction  for  mur- 
der. Belcher  v.  Commonwealth  (Ky.) 
1917B-238. 

54.  Evidence  Held  Insufficient  as  to  One 
Defendant.  On  the  trial  of  a  wife  and 
her  alleged  paramour  for  the  murder  of 
her  husband,  evidence  held  to  be  sufficient 
to  present  to  the  jury  the  issue  of  the 
paramour's  guilt,  but  not  sufficient  to  pre- 
sent the  issue  of  the  guilt  of  the  wife. 
State  v.  Ilgenfritz  (Mo.)  1917C-366. 

55.  Murder  in  First  Degree.  The  evi- 
dence is  held  to  be  sufficient  to  warrant 
a  conviction  of  murder  in  the  first  degree. 
Woods  V.  State  (Ark.)  1918A-348. 

(2)     Necessity  of  Proving  Motive. 

56.  Proof  Only  of  Motive.  On  the  trial 
of  a  wife  and  her  alleged  paramour  for 
the  murder  of  her  husband,  evidence  of 
motive  alone  does  not  make  a  prima  facie 
case  of  guilt.  State  v.  Ilgenfritz  (Mo.) 
1917C-366. 

(3)     Self-defense. 

57.  Self-defense  not  Shown.  In  a  prose- 
cution for  murder,  where  it  appeared  that 
accused  had  left  his  bam  carrying  his 
shotgun  at  a  time  when  he  was  in  no  im- 
mediate danger,  and  approached  the  pike 
upon  wnich  the  decedents  with  whom  he 
had  had  trouble  were  walking,  evidence  is 
held  to  be  sufficient  to  sustain  a  verdict 
of  guilty.  Chilton  v.  Commonwealth  (Ky.) 
1918B-851. 

(4)     Identity  of  Deceased. 

58.  Evidence  of  the  identity  of  de- 
ceased, whose  remains  were  found  burned 
in  a  barn,  of  previous  preparation  by  ac- 
cused for  abortion  and  of  footprints  of  ac- 
cused and  the  horse  he  was  riding,  etc.,  is 
held  to  sustain  a  conviction  for  man- 
slaughter by  direct  killing  or  producing 
an  abortion  on  deceased.  State  v.  Farnam 
(Ore.)  1918A-318. 

(5)     Finger  Prints. 

59.  The  weight  to  be  given  such  evi- 
dence as  finger  prints  is  for  the  jury. 
People  V.  Koach  (N.  Y.)  1917A-410. 

(Annotated.) 

6.     INSTRUCTIONS. 
a.     In  General. 

60.  What  Constitutes  "Lying  in  Walt." 
Under  Ala.  Code  1907,  §  7084,  providing 
that  every  homicide  perpetrated  by  lying 
in  wait  is  "murder  in  the  first  degree,"  an 
instruction  in  a  prosecution  for  murder, 
that  if  the  defendants  lay  in  wait  for  the 


416  DIGEST. 

19160— 1918B. 
deeeased,  and  killed  him  with  a  gun  while       is  properly  refused 
lying  in  wait,  they  were  guilty  of  murder 


in  the  first  degree,  is  proper;  "lying  in 
wait"  meaning  being  in  ambush  for  the 
purpose  of  murdering  another.  Patterson 
T.  State  (Ala.)  1916C-968. 

(Annotated.) 

b.     Intent. 

61.  Inference  of  Intent  from  Act.  An 
instruction  that  one  who  takes  the  life  of 
another  with  a  deadly  weapon  must,  in  the 
absence  of  qualifying  acts,  be  presumed  to 
have  intended  death  is  not  erroneous, 
where  it  is  qusdified  by  a  statement  that 
there  must  be  a  sufficient  time  to  delib- 
erate and  form  the  conscious  purpose  of 
killing.  Commonwealth  T.  Boyd  (Pa.) 
1916D-201. 

c     Criminal  Responsibility. 

62.  A  charge  requiring  an  acquittal  of 
murder  in  the  first  degree,  if  accused  was 
so  drunk  or  mentally  unbalanced  as  to 
cause  him  to  turn  a  deaf  ear  to  reason,  is 
properly  refused.  Jamei  v.  State  (Ala.) 
1918B-119. 

63.  An  instruction  that  evidence  that 
accused,  relying  on  the  defense  of  intoxi- 
cation at  the  time  of  killing  decedent,  was 
intoxicated  at  the  time,  was  admitted  as 
bearing  on  the  question  of  premeditation 
and  deliberation,  and  if,  after  considera- 
tion of  the  facts,  the  jury  hare  a  reason- 
able doubt  of  the  guilt  of  accused,  they 
must  acquit  him,  is  properly  refused,  be- 
cause misleading  in  its  suggestion  of  ac- 
quittal because  of  accused's  intoxication, 
while  on  the  evidence  there  could  be  no 
acquittal  on  the  plea  of  not  guilty.  James 
T.  State  (Ala.)  1918B-119. 

64.  Mental  Capacity  as  Affecting  Degree. 
Where  the  jury  were  instructed  that  de- 
fendant, a  deaf  mute,  could  not  be  con- 
victed unless  he  was  of  sound  mind  and 
had  sufficient  reason  to  know  what  he  was 
doing,  thus  authorizing  acquittal  for 
mental  incapacity,  it  is  not  error  preju- 
dicial to  defendant  that  the  court  did  not 
instruct  on  voluntary  manslaughter  in  re- 
lation to  mental  incapacity.  Belcher  t. 
Commonwealth  (Ky.)  1917B-238. 

d.     Facts  not  in  Evidence. 

65.  Intent  of  Accnsed.  On  a  trial  for 
murder  in  the  first  degree,  on  the  theory 
of  its  commission  during  an  attempt  to 
rob.  where  there  is  no  evidence  that  de- 
fendant had  voluntarily  abandoned  the  at- 
tempted robbery  before  firing  the  fatal 
shot,  an  instruction  that,  if  defendant  had 
abandoned  the  intention  to  rob  before  he 
shot  deceased,  the  killing  would  not  have 
been  in  an  attempt  to  rob,  and  unless  wil- 
ful and  premeditated,  the  killing  would 
not  have  been  murder  in  the  first  degree 


State  T.  Mewhinney 
(Utah)   1916C-537. 

66.  Offenses  to  be  Submitted.  Under  the 
evidence  in  this  case,  voluntary  and  in- 
voluntary manslaughter  were  not  involved, 
and  the  court  did  not  err  in  failing  to 
charge  the  jury  the  law  applicable  thereto. 
Bird  V.  State  (Ga.)  1916C-205. 

e.     Self-defense. 

67.  It  furnishes  no  ground  for  reversal 
that  the  court,  when  charging  on  the  doc- 
trine of  reasonable  fears,  used  the  expres- 
sion, "if  the  facts  and  circumstances  were 
sufficient  to  excite  in  the  mind  of  the  per- 
son killing,  as  a  reasonably  self-possessed 
and  courageous  man,  the  fear  that  his  life 
was  in  danger,"  instead  o/  employing  the 
statutory  expression,  "the  fears  of  a  rea- 
sonable man."  Graham  t.  Stat©  (Ga.) 
1917A-595. 

68.  In  a  prosecution  for  murder  an  in- 
struction on  self-defense  must  leave  the 
question  to  be  determined  by  the  jury  in 
the  light  of  all  the  facts  and  circumstances 
in  the  case,  rather  than  in  the  light  of  cer- 
tain particular  facts,  whether  relied  on  by 
the  commonwealth  or  by  the  accused. 
Chilton  T.  Commonwealth  (Ky.)  1918B- 
851. 

f.     Charge  as  to  Degree  of  Crime. 

69.  In  a  prosecution  for  homicide,  the 
refusal  of  the  trial  court  to  instruct  the 
jury  as  to  the  punishment  imposed  for  the 
various  degrees  of  homicide  is  not  error, 
for  the  punishment  is  assessed  by  the 
court  and  not  by  the  jury,  although  the 
court  may,  in  its  discretion,  charge  the 
jury  on  such  matter.  State  v.  Inlow 
(Utah)  1917A-741.  (Annotated.) 

70.  On  a  trial  for  murder,  under  an  in- 
formation framed  upon  the  theory  of  a 
deliberate  and  premeditated  murder,  and 
under  the  statute  providing  that  murder 
committed  in  an  attempt  to  commit  rob- 
bery is  murder  in  the  first  degree  without 
deliberation  or  premeditation,  where  the 
evidence  requires  a  finding  that  the  mur- 
der was  committed  in  an  attempt  to  rob, 
and  the  court  submits  the  case  upon  each 
theory  of  the  information,  there  is  no 
error  in  refusing  to  charge  as  to  second 
degree  murder;  since  the  statute  defines 
the  crime  shown  by  the  evidence  to  be 
first  degree  murder,  and  the  court  is  not 
required  to  charge  on  second  degree  mur- 
der so  as  to  empower  the  jury  to  disre- 
gard the  evidence  and  return  a  verdict 
contrary  to  law.  State  t.  Mewhinney 
(Utah)    1916C-537.  (Annotated.) 

71.  In  such  case,  the  court  might  have 
submitted  the  question  of  second  degree 
murder  without  committing  error  against 
accused.  State  T.  Mewhinnev  CUtah) 
1916C-537.  (Annotated.) 


HOSPITALS  AND  ASYLUMS— HOUSE  MOVING. 


417 


Note. 
Propriety   of  instruction   as  to  punish- 
ment imposed  for  various  degrees  of  homi- 
cide.    1917A-752. 

g.     Kecommendation  of  Mercy. 

72.  Instructions  Relating  to  Power  of 
Jury.  In  a  trial  for  murder  in  the  first 
degree,  where  the  «ourt,  after  calling  at- 
tention to  the  statute  enabling  the  jury 
to  recommend  life  imprisonment  in  case 
they  found  defendant  guilty  of  that  de- 
gree of  homicide,  charged  that  in  consid- 
ering the  question  they  were  not  restricted 
by  any  rule  of  law  or  public  policy,  but 
were  entitled  to  decide  the  question  from 
such  <M>nsiderations  as  might  appeal  to 
them,  as  reasonably  entitled  to  be  weighed 
in  determining  such  recommendation,  is 
not  objectionable  as  in  any  way  directing 
or  controlling,  or  attempting  to  control  or 
direct,  the  judgment  of  the  jury  on  the 
question  of  recommendation.  State  v. 
Mewhinney  (Utah)  1916C-537. 

7.     VERDICT. 

73.  Homicide — Conviction  of  Lower  De- 
gree— Degree  Fixed  by  Statute.  A  jury  in 
any  homicide  case  has  the  power,  though 
not  the  legal  or  moral  right,  to  disregard 
the  evidence,  and  find  one,  who  is  clearly 
guilty  of  first  degree  murder,  guilty  of 
manslaughter,  or  acquit  him.  State  v. 
Mewhinney  (Utah)  1916C-537. 

(Annotated.) 
Notes. 
Right  of  jury  to  convict  for  lesser  de- 
gree    under     indictment     or     information 
charging    act    declared   by  statute   to  be 
murder  in  first  degree.     1916C-556. 

What  constitutes  "lying  in  wait"  within 
statute  relating  to  homicide.     1916C-969. 

HOSPITALS   AND   ASYLUMS. 

Liability  for  negligence,  see  Charities,  26. 

Release  from  on  habeas  corpus,  see 
Habeas  Corpus,  8,  12,  13,  20. 

Liability  of  lunatic's  estate  for  mainte- 
nance, see  Insanity,  18. 

Exemption  from  taxation,  see  Taxation, 
76. 

1.  Liability  for  Malpractice  by  Surgeon. 
Where  the  medical  and  surgical  treatment 
of  a  patient  in  an  infirmary  and  an  opera- 
tion were  prescribed  and  performed  by  a 
surgeon  under  an  independent  employ- 
ment by  the  patient,  the  infirmary  corpo- 
ration is  not  liable  for  his  negligence, 
unskillfulness,  or  other  wrong,  though  he 
was  a  shareholder  and  officer  of  the  cor- 
poration. Barfield  v.  South  Highlands 
Infirmary  (Ala.)   1916C-1097. 

2.  Remedy  for  Patient's  Disobedience. 
Where  a  patient  does  not  abide  by  the 
rules  of   a   private  hospital   according  to 

27 


her  agreement,  the  remedy  for  those  in 
charge  is  to  discharge  her.  Cook  t.  High- 
land Hospital   (N.   Car.)    1917C-158. 

(Annotated.) 

3.  Duty  Toward  Patient  on  Becoming 
Insane.  Should  a  patient  in  a  private  | 
hospital  become  insane  after  going  there  < 
for  treatment,  it  is  the  duty  of  those  in  r 
charge  to  notify  her  relatives,  and  not  ' 
to  imprison  the  patient.  Cook  v.  High- 
land Hospital  (N.  Car.)  1917C-158. 

(Annotated.) 

4.  Good  Faith  No  Defense  to  False  Im- 
prisonment. That  the  head  of  a  private 
hospital  in  good  faith  believed  he  was 
entitled  to  imprison  a  patient,  who  de- 
sired to  leave,  is  no  defense  to  an  action 
for  compensatory  damages.  Cook  v.  High- 
land Hospital  (N.  Car.)  1917C-158. 

(Annotated.) 

5.  Wrongful  Detention  of  Patient. 
Where  a  patient  in  a  sanatorium,  who  is 
not  in  such  condition  that  she  would  be 
likely  to  imperil  her  health  or  safety,  de- 
sired to  leave,  those  in  charge  of  the  san- 
atorium cannot  lawfully  compel  her  to  re- 
main. Cook  v.  Highland  Hospital  (N. 
Car.)  1917C-158.  (Annotated.) 

6.  A  patient,  by  agreeing  to  abide  by 
the  rules  of  a  private  hospital  and  to  re- 
main there  for  a  fixed  time,  does  not 
thereby  surrender  control  of  herself. 
Cook  V.  Highland  Hospital  (N.  Car.) 
1917C-158  (Annotated.) 

Notes. 

Construction  of  statute  providing  for 
compulsory  commitment  of  inebriate  to 
institution   for  treatment.     1917E-359. 

Eight  to  damages  for  unlawful  deten- 
tion in  hospital  or  institution  for  insane. 
1917C-162. 

HOSTILE  POSSESSION. 
See  Adverse  Possessiom,  8-11. 

HOTELS. 

See  Innkeepers;  Licenses. 
Duty  to  provide  fire  escapes,  see  Landlord 
and  Tenant,  13. 

HOUSE    BREAKINO. 
See  Burglary. 

HOUSEHOLDER. 

Meaning,  see  Executions,  4. 

HOUSEHOLD  EXPENSES. 

Liability  of  husband    for,    see    Husband 
and  Wife,  39,  40,  43,  44. 

HOUSE  MOVING. 

Right  to  use  streets,  see  Streets  and  High- 
ways, 23. 


418 

HOUSE   OF  ILL  FAME. 
Meaning,  see  Disorderly  Houses,  6. 

HOUSES  OF  PROSTITUTION. 
See  Disorderly  Houses. 

HUMOS  AND  WIT. 

No  defense  to  defamation,  see  Ubel  aad 
Slander,  77. 

HUNTINO. 
See  Fish  and  Qame. 

HUSBAND   AND   WIFE. 

1.  Disabilities  of   Married   Women,  418. 

a.  Contracts  in  General,  418. 

b.  Suretyship  for  Husband,  419. 

c.  Conveyances,  420. 

d.  Right  to  Sue  and  be  Sued,  420. 

2.  Antenuptial   Contracts,  420. 

a.  Validity,  420. 

b.  Construction,  420. 

c.  Enforcement,  421. 

3.  Wife's  Separate  Property,  421. 

4.  Bights  and  Liabilities  Inter  8e,  421. 

a.  In   General,  421. 

b.  Actions     Between     Husband     and 

Wife,  422. 

5.  Bights  Against  Third  Persons,  422. 

a.  Actions   for   Injuries    to   Husband, 

422. 

b.  Actions  for  Injuries  to  Wife,  422. 

c.  Actions  for  Serrices  of  Wife,  422. 

6.  Liability  to  Third  Persons,  423. 

a.  Necessaries,  423. 

b.  Liability  on  Contracts,  423. 

c.  Wife's  Funeral  Expenses,  423. 

7.  Alienation  of  AfiFections,  424. 

a.  Nature  and  Bight  of  Action,  424. 

b.  Burden  of  Proof,  424. 

c.  Admissibility  of  Evidence,  425. 

d.  Sufficiency  of  Evidence,  425. 

8.  Criminal  Conversation,  425. 

See  Adultery;  Alimony  and  Suit  Money; 

Curtesy;    Divorce;   Dower;    Marriage; 

Polygamy. 
Expatriation  by  marriage,  see  Aliens,  15, 

16. 
Assignment    of    wages,    see    Assignments, 

1,  2. 
Liability   of   owner    for   husband's    negli- 
gence, see  Antomobiles,  24,  32. 
Liability  of  wife  for  her  own  negligence, 

see  Automobiles,  25,  49. 
Wife's     liability    for  household     expenses, 

see  Conflict  of  Laws,  5. 
Alienation   of  affections,  excessiveness  of 

damages,  see  Damages,  43. 
Criminal     conver.«ation,     excessiveness     of 

verdict,  see  Damages,  .53. 
Measure  of  damages  for  husband's  death. 

see  Death  by  Wrongful  Act,  51. 
Widows  allowance,  see  Executors  and  Ad- 

mimistrators,  27-31. 
Gift  to  wife,  validity,  see  Gifts,  1. 


DIGEST. 

19160— 1918B. 


Execution  and  acknowledgment  of  con- 
veyance of  homestead,  see  Homestead, 
11,  16. 

Mortgage  by  husband  alone,  see  Home- 
stead, 17,  18. 

Effect  of  death  of  spouse,  see  Homestead, 
20,  21. 

Jurisdiction  of  juvenile  court  over  married 
minor,  see  Infants,  36,  38. 

Survival  in  wife  of  joint  chose  in  action, 
see  Joint  Adventures,  6. 

Wife  not  concluded  by  judgment  against 
husband,  see  Judgments,  66. 

Privileged  communications,  effect  of  by- 
standers, see  liibel  and  Slander,  56, 
58. 

Wife's  conveyance  of  her  life  estate,  see 
Life  Estates,  5. 

Insurable  interest  inter  se,  see  Life  In- 
surance, 8,  9,  14. 

Effect  of  divorce,  see  Life  Insurance,  10- 
12. 

Action  to  restore  property,  see  Parties  to 
Actions,  6. 

Purchase  in  wife's  name  as  creating  trust, 
see  Trusts  and  Trustees,  17. 

Beneficiary  spouse  as  attesting  witness, 
see  Wills,  21-24. 

Competency  of  wife  to  testify  in  bastardy 
proceedings,  see  Witnesses,  7-9. 

Communications  between  as  privileged, 
see  Witnesses,  30. 

1.     DISABILITIES    OF   MABBIED   WO- 
MEN. 

a.     Contracts    in    General. 

1.  Authority  of  Wife  to  Pledge  Credit 

for  Necessaries.  A  wife  is  held  not  to 
have  exceeded  her  authority  in  pledging 
her  'husband's  credit  for  provisions  where, 
for  12  years,  he  made  payments  on  the 
account,  notwithstanding  he  also  ad- 
vanced her  large  sums  for  household  ex- 
penses. Mettler  v.  Snow  (Conn.)  1917C- 
578. 

2.  Household  Expenses.  Under  Ore. 
L.  O.  L.,  §  7039,  providing  that  the  ex- 
penses of  the  family  and  the  education  of 
the  children  are  chargeable  upon  the  prop- 
erty of  both  husband  and  wife,  or  of 
either  of  them,  and  that  in  relation 
thereto  thev  may  be  sued  jointly  or  sepa- 
rately, although  an  action  at  law  may 
be  maintained  against  a  married  woman 
for  the  value  of  goods  purchased  by  her 
husband  and  used  as  family  necessaries, 
yet  the  realty  of  a  wife  cannot  be  sub- 
jected to  the  payment  of  a  note  given  by 
her  husband  to  evidence  his  linViilitv  to 
a  tradesman  for  household  supplies:  her 
liability  under  the  statute  being  only 
upon  the  original  account  for  goods  sold 
and  delivered.  Dale  v.  Marvin  (Ore  '^ 
1917C-557.  (Annotated.) 

3.  Power  of  Wife  to  Contract.  Prior  to 
the  passage  of  Vt.  Acts  1884.  Xo.  140, 
relating  to  the  property  of  married  women 


HUSBAND  AND  WIFE. 


419 


(P.  S.  3037-3051),  a  note  executed  by  a 
married  woman  was  void  at  law,  but  by 
such  statute  the  disability  of  a  married 
woman  to  contract  with  others  than  her 
husband  is  removed  so  far  as  her  separate 
property  is  concerned,  with  a  special  lim- 
itation that  nothing  contained  therein 
shall  authorize  her  to  become  surety  for 
her  husband's  debts  except  by  way  of 
mortgage  duly  executed,  etc.  First  Na- 
tional Bank  v.  Bertoli  (Vt.)  1917B-590. 

b.     Suretyship  for  Husband. 

4.  Where  a  wife  signed  a  note  as  surety 
for  her  husband,  the  fact  that  he  induced 
her  through  false  representations  cannot  be 
shown  in  defense;  the  note  being  given 
for  a  good  consideration  and  the  cred- 
itor not  being  a  party  to  the  fraud.  Koyal 
v.  Southerland  (N.  Car.)   1917B-623. 

5.  N.  Car.  Const.,  art.  10,  §  6,  declaring 
that  the  real  and  personal  property  of  any 
woman  acquired  before  marriage  shall  be 
and  remain  her  sole  and  separate  property, 
not  liable  for  the  debts  of  her  husband, 
does  not  inhibit  a  wife  from  becoming  the 
surety  of  her  husband;  the  purpose  being 
merely  to  protect  the  estate  of  the  wife 
from  liability  for  her  husband's  debts 
arising  by  reason  of  the  coverture.  Eoyal 
V.  Southerland  (N.  Car.)   1917B-623. 

(Annotated.) 

6.  A  contract  of  suretyship  being  pri- 
marily a  contract  between  the  surety  and 
creditor,  a  wife  may,  under  N.  Car.  Laws 
1911,  c.  109,  authorizing  married  women  to 
contract  and  deal  as  femes  sole,  become 
surety  for  her  husband.  Eoyal  v.  Souther- 
land (N.  Car.)  1917B-623.        (Annotated.) 

7.  Under  Ky.  St.,  §  2127,  providing  that 
no  part  of  a  married  woman's  estate  shall 
be  subjected  to  the  payment  for  the  debt 
of  another,  including  her  husband,  unless 
set  apart  for  that  purpose  by  deed  or  mort- 
gage a  wife's  separate  property  may  be 
mortgaged  by  her  and  her  husband  to 
secure  the  debt  of  the  husband  or  another, 
regardless  of  whether  her  property  is  a 
homestead.  Hite  v.  Reynolds  '  (Ky.) 
1917B-619.  (Annotated.) 

8.  Where  certain  sureties  on  the  bond 
of  a  tax  collector  borrowed  money  from  a 
bank  and  loaned  it  to  the  wife  of  the 
tax  collector,  who  paid  it  to  the  county 
in  settlement. of  a  shortage  due  the  county 
by  the  collector,  and  the  wife  executed  a 
mortgage  to  the  sureties  on  her  land  to 
secure  the  payment  of  the  money  thus 
loaned,  such  a  transaction  would  come 
within  the  provisions  of  the  statute,  which 
declares  that  a  wife  cannot  bind  her  sepa- 
rate estate  by  any  contmct  of  suretyship, 
nor  by  any  assumption  of  the  debts  of 
her   husband,    and    that    any    sale    of   her 


separate  estate,  made  to  a  creditor  of 
her  husband  in  extinguishment  qf  his 
debts,  shall  be  absolutely  void. 

(a)  In  such  a  case  the  sureties  on  the 
husband's  bond  are  his  creditors  within 
contemplation  of  law. 

(b)  It  follows  that  a  mortgage  executed 
and  delivered  by  the  wife,  on  land  belong- 
ing to  her  individually,  to  the  sureties  on 
her  husband's  bond,  as  set  out  in  the  first 
head-note,  is  absolutely  void,  and,  on  fore- 
closure proceedings  in  behalf  of  the  sure- 
ties, the  wife  can  defend  on  such  ground 
and  defeat  the  proceedings.  Sharpe  v. 
Denmark    (Ga.)    1917B-617. 

(Annotated.) 

9.  Act  Tex.  March  21,  1913  (Acts  33d 
Leg.,  c.  32),  amending  Rev.  St.  1911,  arts. 
4621,  4622,  4624,  governing  a  married 
woman's  liability  on  contracts,  evidences 
the  establishment,  or  the  continuance, 
with  the  modifications  thereby  made,  of 
a  well-defined  public  policy  of  preventing 
the  diminution  of  the  estates  of  married 
women  by  unauthorized  transfers  or  con- 
veyances, or  by  subjecting  them  to  the 
payment  of  forbidden  obligations;  and  a 
contract  made  in  Illinois  by  a  married 
woman  residing  in  Texas,  whereby  she  be- 
came a  surety  for  her  husband,  being  con- 
trary to  this  public  policy,  cannot  be  en- 
forced in  the  courts  of  Texas,  or  in  courts 
administering  the  laws  of  Texas.  Gros- 
man  v.  Union  Trust  Co.  (Fed.)  1917^^- 
613.  (Annotated.) 

10.  Rev.  St.  Tex.  1911,  art.  4621,  as 
amended  by  Act  March  21,  1913  (Acts 
33d  Leg.,  c.  32),  provides  that  neither  the 
separate  property  of  the  wife,  nor  the 
rents  from  her  real  estate,  nor  the  interest 
on  bonds  and  notes  belonging  to  her,  nor 
her  personal  earnings,  shall  be  subject 
to  the  payment  of  debts  contracted  by 
the  husband.  Article  4624,  as  amended 
by  the  same  act,  after  providing  that  the 
separate  property  of  the  husband  and  cer- 
tain community  property  shall  not  be  sub- 
ject to  the  payment  of  debts  contracted 
by  the  wife,  except  for  necessaries,  con- 
tains a  proviso  that  the  wife  shall  never 
be  the  joint  maker  of  a  note,  or  a  surety 
on  any  bond  or  obligation  of  another, 
without  the  joinder  of  her  husband  with 
her  in  making  such  contract.  It  is  held 
that  a  contract  made  by  the  wife  alone, 
by  which  she  undertakes  to  become  a 
surety  on  a  bond  or  obligation  on  which 
her  husband  is  a  principal  is  forbidden 
by  the  statute,  as  the  word  "another" 
cannot  reasonably  be  given  such  a  mean- 
ing as  would  prevent  the  husband  from 
being  regarded  as  "another"  than  his 
wife,  and  the  wife  may  not  become  a 
surety  on  bonds  and  obligations  in  which 
the  hnsband  cannot  join.  Grosman  v. 
Union  Trust  Co.  (Fed.)  1917B-613. 

(Annotated.) 


420 


DIGEST. 

1916C— 1918B. 


11.  A  hnsband,  being  indebted  to  plain- 
tiff bank  for  $14,500  and  being  requested 
to  change  the  indebtedness,  procured  his 
wife  to  execute  a  note  to  the  bank  for 
$5,000  after  one  of  the  bank's  officers  had 
informed  her  that  it  was  desired  only  as 
security  for  her  husband's  indebtedness 
and  that  the  first  money  received  on  his 
collections  would  be  applied  in  payment 
of  the  note.  The  husband  was  given 
credit  on  other  notes  for  the  amount  of 
the  wife's  note,  which  was  renewed  from 
time  to  time  until  after  the  husband's 
death,  when  she  was  induced  to  pay  a 
large  portion  thereof  and  give  a  new  note 
for  the  balance,  having  proved  the  last 
renewal  note  as  a  claim  against  her  hus- 
band's estate.  It  is  held  that  the  trans- 
action showed  that  the  wife  executed  the 
note  as  surety  for  her  husband  only,  and 
that  the  notes  as  renewed  were  therefore 
void  as  violating  Vt.  P.  S.,  c.  147,  provid- 
ing that  a  married  woman  may  not  be- 
come surety  for  her  husband,  and  hence 
the  note  given  in  partial  surrender  of  the 
last  renewal  note  was  without  considera- 
tion and  unenforceable.  First  National 
Bank  v.  Bertoli  (Vt.)   1917B-590. 

(Annotated.) 
Note. 
Bight    of    mafried    woman    to    become 
surety   for   husband.     1917B-597. 

c.     Conreyances. 

12.  Mortgage — Necessity  of  Joinder  by 
Hnsband.  A  wife's  mortgage  is  in  the 
same  category  as  her  deed,  as  to  which 
Me.  Rev.  St.,  c.  63,  §  1,  provides  that 
realty  directly  conveyed  to  her  by  her 
husband  cannot  be  conveyed  by  her  with- 
out his  joinder,  so  that  the  husband's  in- 
heritance right  to  one-third  of  her  abso- 
lute property  is  not  conveyed  by  her  mort- 
gage thereof,  in  which  he  does  not  join. 
Oato  V.  Christian  (Me.)  1917A-592. 

d.     Bight  to  Sue  and  be  Sued. 

13.  Services  of  Wife — Eight  to  Recover 
in  Own  Name.  Where  a  husband  has 
consented  that  his  wife  might  render 
services  and  nursing  to  a  person  since 
deceased,  the  wife  may  maintain  an  ac- 
tion for  compensation  in  her  own  name 
under  Iowa  Code,  §  3162,  providing  that  a 
wife  may  receive  the  wages  of  her 
personal  labor  and  maintain  an  action 
therefor  in  her  name  as  if  unmarried. 
Tucker    v.    Anderson    (Iowa)     1918A-769. 

14.  Alienation  of  Affections  —  Wife's 
Right  of  Action.  Under  Kirby's  Ark. 
Dig.,  §  6017,  authorizing  a  wife  to  sue 
alone  as  to  any  separate  property  or  for 
damages  for  any  injury,  a  wife  mav  main- 
tain an  action  for  damages  for  the 
alienation  of  the  affections  of  her  hus- 
band, whether  the  cause  of  action  is  de- 


nominated a  personal  or  a  property  right. 
Weber  v.  Weber  (Ark.)   1916C-743. 

(Annotated.) 

2.  ANTENUPTIAL     CONTRACTS. 
a.     Validity. 

15.  Release  of  Dower.  A  contract  be- 
tween parties  -about  to  marry  that  the 
marriage  shall  not  affect  the  rights  of 
either  in  the  property  of  the  other  or  his 
own  property  is  not  contrary  to  public 
policy,  so  that  any  reasonable  provision 
which  an  adult  previous  to  marriage 
agrees  to  accept  in  lieu  of  dower  will  bar 
a  subsequent  claim  thereto.  Dickason  t. 
English  (El.)  1918A-1165. 

16.  Agreement  to  Live  With  Husband's 
Parents.  An  agreement  between  parties 
about  to  be  married  that  the  wife  should 
live  with  her  husband  at  the  home  of  his 
parents  is  an  antenuptial  contract  which 
merges  into  the  marriage  contract  and  is 
of  no  binding  force.  Marshak  v.  Mar- 
shak  (Ark.)   1916E-206. 

17.  Provision  Contemplating  Dirorce. 
A  stipulation  in  an  antenuptial  settlement 
providing  for  a  fixed  sura  for  alimony  in 
the  event  of  divorce  or  separation  is  void, 
as  providing  for  a  future  separation  after 
marriage.  Stratton  v.  Wilson  (Ky.) 
1918B-917. 

18.  Signing  Without  Advice.  An  ante- 
nuptial settlement  as  to  which  all  the 
facts  were  fully  stated  to  the  bride  be- 
fore the  marriage  is  not  invalidated  be- 
cause she  signed  it  before  being  so  ad- 
vised. Stratton  v.  Wilson  (Ky.)  1918B- 
917. 

19.  Concealment  of  Facts.  To  be  bound 
by  the  terras  of  an  antenuptial  settlement, 
the  prospective  wife,  before  entering  into 
the  contract,  and  at  the  time,  must  have 
been  apprised  without  misrepresentation 
or  concealment  of  the  nature  and  extent 
of  her  prospective  husband's  estate  and 
the  value  of  her  marital  rights  therein 
which  she  bv  its  terms  is  surrendering. 
Stratton  v.  Wilson    (Ky.)   1918B-917. 

b.     Construction. 

20.  Contract  Favored  in  Law.  Contracts 
for  antenuptial  settlements  are  favored 
by  the  law,  and  will  not  be  held  invalid 
for  trifling  or  technical  reasons.  Stratton 
V.  Wilson   (Ky.)   1918B-917.    . 

21.  Effect  of  Testamentary  Provision. 
An  antenuptial  agreement  to  cause  to  be 
paid  to  a  woman  $250  per  month  if  the 
parties  married  and  she  survived,  is  not 
abridged  by  a  codicil  providing  the  annu- 
ity out  of  the  remainder  of  the  estate 
after  the  provisions  of  three  paragraphs 
of  the  will.  Estate  of  Cutting  (Cal.) 
1917D-1171. 


HUSBAND  AND  WIFE. 


421 


22.  Partial  Failure  of  Consideration  for 
AJfttenuptial  Agreement.  Where  parties 
about  to  marry  agreed  each  on  his  part 
to  release  all  claims  to  the  property  of 
the  other,  the  wife  to  receive  $5,000  to  be 
paid  from  her  husband's  estate  on  his 
death,  and  to  be  in  full  satisfaction  and 
discharge  of  her  claims  as  widow  or  heir 
at  law,  it  being  mutually  declared  to  be 
the  intention  that  neither  should  have 
nor  acquire  any  right,  title,  or  claim  to 
the  real  or  personal  estate  of  the  other, 
but  that  the  estate  of  each  should  descend 
or  vest  in  his  or  her  heirs  at  law,  lega- 
tees, or  devisees  as  though  no  marriage 
had  ever  taken  place,  and  each  agreeing 
that,  in  case  either  decided  to  mortgage 
or  sell  his  property,  the  other  would  join 
in  the  conveyance  or  mortgage,  after 
which  the  husband  mortgaged  his  real 
estate  without  joining  his  wife,  and  the 
mortgage  was  foreclosed,  the  heirs  of  the 
mortgagee  have  title  and  can  have  the 
cloud  of  the  wife's  claim  to  $5,000  from 
the  estate  removed;  the  marriage  and 
mutual  covenants  alone  being  sufficient  to 
support  the  antenuptial  agreement,  and 
the  payment  of  the  money  not  being  a 
condition  precedent  to  the  relinquishmeut. 
Dickason  ▼.  English   (111.)   1918A-1165. 

(Annotated.) 

Notes. 

Effect  of  partial  invalidity  of  antenup- 
tial contract.     1918B-925. 

Effect  on  antenuptial  agreement  for 
release  of  dower  or  like  interest  of  failure 
of  consideration  for  agreement.  1918A- 
1168. 

c.    Enforcement. 

23.  An  antenuptial  settlement  of  $2$,- 
000  to  the  wife  as  widow  and  $10,000  to 
her  if  divorced  or  separated,  where  the 
marriage  is  consummated,  will  be  en- 
forced on  the  death  of  the  husband  as  to 
the  $25,000  settlement,  notwithstanding 
the  illegal  promise  to  pay  alimony.  Strat- 
ton  v.  Wilson  (Ky.)   1918B-917. 

(Annotated.) 

24.  Fault  of  Wife.  Where  a  wife  sepa- 
rated from  her  husband  and  sued  for  a  di- 
vorce, which  was  refused,  it  does  not  nec- 
essarily follow  that  the  wife  was  so  much 
to  blame  for  the  separation  that  an  ante- 
nuptial agreement  between  the  parties 
cannot  be  enforced  at  her  instance. 
Schnepfe  v.  Schnepfe  (Md.)  1916D-988. 

25.  Effect  of  Separation.  Where  hus- 
band and  wife  entered  into  an  antenuptial 
agreement  providing  for  the  payment  of 
$12,000  by  him  to  her,  she  relinquishing 
all  other  rights  in  his  estate,  this  agree- 
ment will  be  enforced  in  equity  after  his 
death,  although  the  wife  after  mar- 
riage separated  from  him.  Schnepfe  v. 
Schnepfe    (Md.)     1916D-9S8. 


3.  WIFE'S  SEPAEATE  PEOPERTY. 

26.  Separate  Interest  in  Husband's 
Property.  While  a  wife  may  convey  her 
separate  interest  in  land  as  though  un- 
married if  the  deed  she  execut;es  with  her 
husband  is  a  suitable  instrument  for  re- 
lease of  dower  or  alienation  of  homestead, 
no  purpose  to  affect  her  independent  in- 
terest can  be  implied.  Agar  v.  Streeter 
(Mich.)    1916E-518. 

27.  Right  of  Husband  to  Attack  Con- 
veyance. Where  a  wife  sells  her  separate 
property,  representing  herself  to  be  a 
widow,  when,  in  fact,  her  husband  is  liv- 
ing and  entitled  to  his  estate  by  the 
curtesy  initiate,  the  purchaser  having  en- 
tered into  possession,  a  joint  disseisin  is 
effected,  so  that  a  joint  suit  by  the  hus- 
band and  wife  is  necessary;  hence,  if  the 
wife  is  estopped  from  asserting  her 
rights,  there  can  be  no  relief,  the  wife  not 
having  effected  a  fraud  on  her  husband. 
Bryant  v.  Freeman  (Tenn.)  1917E-1J1. 

28.  Conveyance  by  Wife — ^Estoppel  of 
Wife  to  Repudiate.  Where  a  married 
woman  whose  husband  has  been  sentenced 
to  the  penitentiary  for  life  disposes  of  her 
property,  representing  herself  to  be  a 
widow,  her  fraud  estops  her  from  ques- 
tioning the  conveyance  on  the  ground 
that  her  husband  did  not  join,  and  her 
privy  examination  was  not  taken  in  the 
form  prescribed  for  deeds  of  married 
women.  Bryant  v.  Freeman  (Tenn.) 
1917E-111. 

29.  Ratification  by  Husband.  Where  a 
wife  after  the  birth  of  heirs  sold  her 
separate  property  while  her  husband  was 
in  the  penitentiary,  and  after  his  release 
he  joined  with  her  in  disposing  of  prop- 
erty purchased  with  the  proceeds  thereof, 
he  ratifies  the  original  sale  and  estops 
himself  from  setting  up  any  rights  in  the 
first  property  which  he  might  have  under 
his  curtesy  initiate.  Bryant  v.  Freeman 
(Tenn.)  1917E-111. 

4.     RIGHTS     AND    LIABILITIES 
INTER  SE. 

a.     In   General. 

30.  Power  of  Husband  to  Dispose  of 
Personalty.  The  general  rule  is  that  the 
law  has  placed  no  restriction  or  limitation 
on  the  husband's  right  to  make  such  dis- 
position of  his  personal  property  during 
his  lifetime  as  he  may  elect.  Poole  v. 
Poole  (Kan.)   1918B-92i9.         (Annotated.) 

31.  A  widow  sued  as  an  heir  of  her  de- 
ceased husband  to  set  aside  gifts  and 
transfers  of  personal  property  made  by 
him  to  the  defendants,  who  are  his  sons 
by  a  former  marriage.  The  transfers 
were  made  without  the  wife's  knowledge, 
when  the  husband  was  eighty-three  years 


422 


of  age  and  poRsesBed  of  no  other  prop- 
erty, and  immediately  following  the  dis- 
missal of  an  action  brought  by  her  for 
separate  maintenance,  that  action  having 
been  settled  upon  his  conveying  to  her 
certain  real  estate  and  agreeing  to  pay 
her  a  monthly  allowance.  The  court 
found  that  he  made  the  gifts  and  trans- 
fers to  his  sons  in  anticipation  that  he 
would  not  live  long  and  to  prevent  the 
plaintiff  from  inheriting  a  share  in  the 
property  as  his  widow,  and  in  the  further 
anticipation  of  the  probability  that  the 
resumption  of  the  marriage  relation  with 
plaintiff  would  not  last  long  or  be  per- 
manent, and  that  she  might  separate  from 
him  and  bring  another  action  for  alimony 
or  divorce,  and  to  defeat  her  right  to  a 
division  of  hjs  property,  held,  following 
Small  T.  Small,  56  Kan.  1,  54  Am.  St.  Rep. 
581,  30  L.  R.  A.  243,  42  Pae.  323,  that 
the  gifts  to  the  sons  not  being  colorable 
but  absolute  transfers  of  the  title  to  the 
property,  binding  upon  the  grantor,  are 
binding  upon  the  heirs,  and  cannot  be  at- 
tacked by  the  widow  as  made  in  bad  faith 
because  of  the  intent  thereby  to  deprive 
her  of  an  interest  in  the  property  either 
as  wife  or  widow,  Poole  v.  Poole  (Kan.) 
1918B-929.  (Annotated.) 

32.  Where  the  transfer  or  gift  is  color- 
able and  there  is  a  voluntary  transfer  or 
conveyance  by  which  the  husband  re- 
serves to  himself  an  interest  in  or  a 
power  to  dispose  of  the  property,  it  may 
be  declared  void  as  against  the  widow 
and  she  may  participate  in  its  distribu- 
tion upon  the  theory  that  the  title  still 
remained  in  the  husband  at  his  death. 
Poole  T.  Poole  (Kan.)  1918B-929. 

(Annotated.) 
Notes. 
Right  of  husband,   as  against  wife,  to 
dispose   of   his  personalty   during   covert- 
ure.    1918B-934. 

Right  of  wife  to  leave  marital  home  be- 
cause of  conduct  of  husband's  relatives. 
1916E-209. 

b.     Actions  Between  Husband  and  Wife. 

33.  Action  by  Wife  Against  Husband. 
Neither  Shannon's  Tenn.  Code,  §  6470, 
making  one  committing  an  assault  anrl 
battery  upon  his  wife  for  any  cause 
whatsoever  guilty  of  a  misdemeanor,  nor 
Pub.  Acts  1913,  c.  26,  providing  that  mar- 
ried women  are  thereby  fully  emancipated 
from  all  disability  on  account  of  covert- 
ure, that  marriage  shall  not  impose  any 
disability  or  incapacity  on  a  woman  as 
to  the  ownership,  acquisition,  or  disposi- 
tion of  property,  or  as  to  her  capacity  to 
make  contracts,  and  do  all  acts  in  refer- 
ence to  property  which  she  could  lawfully 
do  if  she  were  not  married,  but  that  every 
married  woman  shall  have  the  same 
capacity  to  acquire,  hold,  control,  and 
dispose  of  property  and  to  make  any  con- 


DIGEST. 

1916C— 1918B. 

tract  in  reference  thereto  and  to  bind 
herself  personally,  and  to  sue  and  be  sued 
as  if  she  were  not  married,  abrogates  the 
common-law  rule  that  one  spouse  cannot 
sue  the  other  for  an  assault  committed 
during  the  marriage,  as  it  must  be  as- 
sumed that,  if  it  had  been  the  purpose  of 
the  legislature  to  change  this  rule,  such 
purpose  would  have  been  clearly  ex- 
pressed, or  would  have  appeared  by  neces- 
sary implication.  Lillienkamp  v.  Ripple- 
toe  (Tenn.)   1917C-901.  (Annotated.) 


RIGHTS 


AGAINST 
SONS. 


THIRD     PER- 


a.     Actions  for  Injuries  to  Husband. 

34.  ImprisoHment  of  Husband.  Defend- 
ant C,  believing  that  plaintiff's  husband 
was  immorally  intimate  with  C.'s  wife, 
with  certain  others  carried  out  a  scheme 
to  take  the  husband  in  flagrante  delicto 
with  another  woman,  that  he  might  be 
imprisoned  for  adultery.  Held  that,  de- 
fendants' wrongful  act  being  leveled  at 
the  husband  only,  and  not  at  plaintiff, 
she  could  not  recover  damages  from  de- 
fendants because  of  the  loss  of  her  hus- 
band's affections,  society,  support,  etc., 
due  to  his  incarceration  for  such  offense. 
Nieberg  v.  Cohen  (Vt.)  1916C-476. 

(Annotated.) 
Note. 
Right   of  wife  to   recover   damages  for 
imprisonment  of  husband.     1916C-481. 

b.  Actions  for  Injuries  to  Wife. 

35.  Recovery  for  Loss  of  Consortium. 
A  husband  cannot  recover  against  a  per- 
son responsible  for  injuries  to  his  wife 
for  the  loss  of  the  undefined  influence  of 
the  wife  in  the  family  relation  and  the 
pleasure  of  the  relationship  or  for  the  loss 
of  "consortium,"  defined  as  a  person's 
affection,  society,  or  aid,  or  the  right  to 
the  conjugal  fellowship  of  the  wife  and 
to  her  company,  co-operation,  and  aid  in 
every  conjugal  relation.  Blair  v.  Seitner 
Dry  Good's  Co.   (Mich.)   1916C-882. 

(Annotated.) 

36.  Eight  of  Wife  to  Sue  for  Injuries. 
A  wife  may  sue  for  injuries  to  her  person 
without  joining  her  husband  as  plaintiff. 
Blair  v.  Seitner  Drv  Goods  Co.  (Mich.) 
1916C-882. 

Note. 
Right  of  husband  to  recover  for  loss  of 
consortium  in  action  for  personal  injuries 
to  wife  where  statute  gives  wife  right  of 
action  for  such  injuries.     1916C-886. 

c.  Actions  for  Services  of  Wife. 

37.  Recovery  by  Husband  for  Loss  of 
Services.  While  the  legislature  has  re- 
lieved married  women  of  certain  disabili- 
ties  and   has    denied   to   the   husband   the 


HUSBAND  AND  WIFE. 


423 


right  to  her  earnings  and  the  profits  of 
any  business  she  may  carry  on,  it  has  not 
put  her  domestic  duties  and  labor  per- 
formed in  and  about  her  home  for  her 
family  upon  a  pecuniary  basis,  nor  classi- 
fied such  duties  as  services,  nor  permitted 
her  to  recover  for  the  loss  of  ability  to 
perform  them,  and  the  husband  may  re- 
cover the  pecuniary  value  of  a  service 
habitually  rendered  by  the  wife  which  he 
has  lost  on  account  of  her  injuries.  Blair 
V.  Seitner  Dry  Goods  Co.  (Mich.)  1916C- 
882. 

6.     LIABILITY    TO    THIRD    PERSONS, 
a.     Necessaries. 

38.  Attorney's  Fees  in  Divorce  Suit. 
Where  an  attorney  brought  an  action  for 
a  wife  for  divorce,  and  the  husband  filed 
a  cross-petition  containing  allegations  re- 
flecting on  the  character  of  the  wife,  who 
thereafter  withdrew  from  the  case,  and 
the  court  granted  a  divorce  to  the  hus- 
band on  the  cross-petition,  the  attorney 
cannot,  by  independent  action,  recover 
from  the  husband  for  the  services  ren- 
dered the  wife  on  the  theory  that  they 
were  "necessaries."  Wick  v.  Beck  (Iowa) 
1917A-691.     ,  (Annotated.) 

39.  Household  Exi)enses.  Under  the 
New  York  law,  a  wife  is  not  liable  for 
provisions  furnished  the  family,  unless 
she  expressly  agreed  to  pay  for  them  or 
exceeded  her  authority  as  her  husband's 
agent  in  ordering  them.  Mettler  v.  Snow 
(Conn.)    1917C-078.  (Annotated.) 

40.  Tuneral  Expenses.  At  common  law 
neither  a  wife  nor  her  estate  is  liable  for 
necessaries  furnished  to  her  or  for  her 
funeral  expenses,  though  courts  at  times 
enforce  such  claims  against  her  estate  on 
equitable  principles.  Bowen  y.  Daugh- 
erty  (N.  Car.)  1917B-1161. 

(Annotated.) 
Note. 
Liability    of    wife    for    household    ex- 
panses.    1917C-561. 

b.     Liability  on  Contracts. 

41.  Attorney's  Fees  in  Divorce  Suit.  A 
husband  is  not  liable  for  the  services  of 
an  attorney,  who  at  the  request  of  the 
wife  consulted  with  merchants  relative  to 
their  furnishing  necessaries  to  the  wife 
pending  divorce  proceedngs  by  the  hus- 
band. Meaher  v.  Mitchell  (Me.)  191 7A- 
688.  (Annotated.) 

42.  Since  Me.  Rev.  St.  c.  62,  §  6,  author- 
izes the  court  in  a  libel  for  divorce  to  or- 
der the  husband  to  pay  the  wife's  attor- 
ney's fees,  there  is  no  necessity  for  the 
wife  pledging  her  husband's  credit  for 
such  fees,  and  her  attorney  cannot,  after 
a  divorce  has  been  denied  to  the  husband, 
recover  from  the  husband  for  his  services 


in    an    independent    action.      Meaher    t. 
Mitchell  (Me.)  1917A-688. 

(Annotated.) 

43.  Note  for  Household  Ooods.  Where 
a  creditor,  to  whom,  a  husband  had  given 
a  note  representing  his  liability  for  house- 
hold goods,  sought  to  enforce  against  the 
wife  her  joint  liability  with  the  husband 
for  such  expenses  under  Ore.  L.  O.  L. 
§  7039,  by  levying  execution  upon  the 
wife's  homestead  estate  under  judgment 
against  the  husband  alone  in  an  action 
on  his  note,  the  attempt  is  in  contraven- 
tion of  the  organic  law,  which  guarantees 
to  a  citizen  the  right  of  trial  by  jury  be- 
fore he  or  she  may  be  deprived  of  prop- 
erty, unless  the  wife's  realty  was  fraudu- 
lently conveyed  to  her  by  her  husband. 
Dale  V.  Marvin  (Ore.)   1917C-557. 

(Annotated.) 

44.  Household  Expenses.  Where  a 
married  woman  personally  applies  to  a 
tradesman  for  the  purchase  of  groceries, 
stating  that  she  wishes  to  open  an  account 
in  her  own  name,  and  directs  the  plaintiff 
to  charge  the  goods  to  her,  and  where  in 
pursuance  of  this  arrangement  the  goods 
are  delivered  at  her  home  and  charged 
to  her,  she  will  be  personally  liable  there- 
for, notwithstanding  the  legal  obligation 
of  the  husband  to  support  his  wife,  and 
the  groceries  being  such  as  would  be  a 
proper  support  to  be  provided  by  the  hus- 
band for  j;he  family.  Bell  v.  Rossi  gnal 
(Ga.)    1917C-576.  (Annotated.) 

45.  Effect  on  Wife  of  Covenants. 
Usually  when  a  wife  joins  in  the  deed  of 
her  husband  of  his  property,  the  cove- 
nants in  the  deed  being  in  form  the  joint 
covenants  of  both  of  them,  the  covenants 
are  not  hers,  but  are  his  only;  but,  if  it 
appears  that  the  sole  consideration  for 
the  deed  was  received  by  her  and  was  by 
her  husband  so  intended,  the  covenants 
will  be  treated  as  the  joint  covenants  of 
husband  and  wife.  Agar  v,  Streeter 
(Mich.)   1916E-518. 

Note. 

Liability  of  husband  for  counsel  fees 
incurred  by  wife  in  divorce  action. 
1917A-689. 


c.     Wife's  Funeral  Expenses. 

46.  Liability  of  Husband  for  Wife's 
Funeral  Expenses.  At  common  law  a 
husband  is  liable  for  the  funeral  expenses 
of  his  deceased  wife  and  for  necessaries 
furnished  to  her  during  their  married 
life,  including  the  cost  of  clothing,  food, 
ordinary  household  supplies,  medical  at- 
tendance, expenses  of  sickness,  and  arti- 
cles of  comfort  suitable  to  the  condition 
and  style  in  which  the  parties  were  ac- 
•  customed  to  live.  Bowen  v.  Daugherty 
(N.  Car.)   1917B-1161.  (Annotated.) 


424 


47.  Under  Laws  N.  Car.  1911,  c, 
authorizing  a  married  woman  to  contract 
as  if  she  were  unmarried,  a  married 
woman  or  her  estate  after  her  death  is 
liable  for  her  express  contract,  or  in  the 
common  counts  in  assumpsit  when  goods 
are  furnished  on  her  credit,  but  where 
there  is  no  express  promise  by  a  wife  or 
circumstances  showing  that  the  expenses 
of  her  last  sickness  and  her  funeral  ex- 
penses were  furnished  on  her  credit,  or 
that  of  her  estate,  the  husband  is 
primarily  liable  therefor,  and  the  estate 
of  the  wife  cannot  be  charged  with  claims 
for  such  expenses  if  they  can  be  collected 
from  the  husband.  Bowen  ▼.  Daugherty 
(N.  Car.)  1917B-1161.  (Annotated.) 

Note. 
Liability  of  husband  for  wife's  funeral 
expenses.     1917B-1164. 

7.    ALIEXATION    OF   AFFECTIONS, 
a.    Nature  and  Bight  of  Action. 

48.  Liability  of  BelatlTe.  Where  a 
parent,  brother,  or  sister  acts  in  good 
faith  and  is  prompted  by  worthy  motives 
in  advising  a  wife  or  husband  to  separate 
from  the  other  spouse,  even  though  such 
advice  results  in  separation  and  estrange- 
ment, the  advising  relative  is  not  liable 
as  for  alienation;  but,  if  it  be  made  to 
appear  that  such  relative  was  actuated  by 
malice,  and  wilfully  interfered  for  such 
reason,  not  for  the  welfare  of  the  related 
spouse,  an  action  will  lie  on  behalf  of  the 
injured  spouse  for  alienation.  Eatcliffe  ▼. 
Walker  (Va.)   1917E-1022. 

(Annotated.) 

49.  Duty  of  Parents.  Parents  are  justi- 
fied in  giving  counsel  and  advice  to  a 
daughter,  who  has  contracted  a  marriage 
with  a  man  who  is  believed  by  them  to  be 
wholly  unfitted  to  make  her  happy  and 
to  support  her  properly,  and  if  they  act 
without  malice,  and  are  prompted  by  af- 
fection for  their  daughter  and  solicitude 
for  her  health  and  happiness,  they  cannot 
be  held  liable  for  alienation.  Kleist  v. 
Breitung  (Fed.)   1917E-1014. 

(Annotated.) 

50.  Necessity  of  Separatiom  of  Spouses. 
An  action  by  a  married  woman  against  an 
unmarried  woman ,  for  alienation  of  her 
husband's  affections  will  lie  even  though 
plaintiff's  husband  has  not  completely  and 
in  a  literal  sense  abandoned  her.  Rott  v. 
Goehring  (N.  Dak.)    1918A-643. 

(Annotated.) 

51.  Loss  of  Consortium.  If  through 
defendant's  alleged  wrongful  acts  the 
plaintiff's  husband  was  induced  and  per- 
suaded to  deprive  plaintiff  of  the  conjugal 
affection  and  society  which  the  marriage 
contract  entitled  her  to  enjoy,  she  has  a. 
right   to   recover  for   the  injury   thus  in- 


DIGEST. 

19160— 1918B. 
109,       flicted. 


Bott     T. 


1918A-643. 


Goehring     (N.     Dak.) 
(Annotated.) 


52.  Eight  of  Wife  to  Sue.  Section  4355, 
Comp.  Laws  N.  Dak.  1913,  which  pre- 
scribes what  is  forbidden  by  the  rights  of 
personal  relation,  was  not  intended  to  pre- 
scribe the  only  rules  of  conduct  as  to  the 
violation  of  the  wife's  conjugal  rights. 
Held,  further,  following  King  v.  Hanson, 
13  N.  D.  85,  that  subdivision  1  of  said 
section  gives  to  the  wife  the  same  pro- 
tection as  subdivision  2  gives  to  the  hus- 
band. Bott  V.  Goehring  (N.  Dak.)  1918A- 
643. 

53.  What  Constitutes  Alienation.  De- 
fendant will  not  be  exonerated  from  all 
liability  merely  because  the  plaintiff's 
husband  may  have  been  more  blamable 
than  defendant.  Bott  v.  Goehring  (N. 
Dak.)   1918A-643. 

54.  Prior  Estrangement.  The  fact  that 
plaintiff  was  estranged  from  her  husband 
prior  to  his  illicit  relations  with  defend- 
ant will  not  defeat  the  action.  Bott  v. 
Goehring   (N.  Dak.)   1918A-643. 

55.  Single  Act  of  Unfaithfulness.  A 
single  act  of  sexual  intercourse  by  a  man 
accustomed  to  marital  infidelities,  with 
a  prostitute,  on  a  chance  occasion,  does 
not  constitute  the  "enticement"  and 
"alienation"  essential  to  a  recovery  by 
the  wife  in  a  suit  for  alienation  of  affec- 
tions. Nieberg  v.  Cohen  (Vt.)  1916C- 
476. 

56.  Paramour  Solely  Liable.  The  ordi- 
nary right  of  action  of  a  wife  for  the 
alienation  of  affections  and  loss  of  society 
of  her  husband  through  criminal  conversa- 
tion is  against  the  husband's  paramour 
alone.     Nieberg  v.  Cohen  (Vt.)  19160-476. 

57.  Eight  of  Eecovery.  A  wife  at  com- 
mon law  had  no  remedy  for  alienation  of 
her  husband's  affections  and  consequent 
loss  of  his  society  and  aid;  such  right 
being  conferred  on  her  by  modern  stat- 
utes empowering  her  to  sue  alone  and  to 
hold  separate  property.  Nieberg  v. 
Cohen   (Vt.)   1916C-476. 

Notes. 

Action  by  wife  for  alienation  of  affec- 
tions or  for  criminal  conversation. 
1916C-748. 

Liability  of  parent  or  guardian  for 
alienation  of  affections.     1917E-1017. 

Liability  of  relative  other  than  par- 
ent or  guardian  for  alienation  of  affec- 
tions.     1917E-1027. 

Actual  separation  or  abandonment  as 
prerequisite  to  action  for  alienation  of 
affections.     I918A-647. 

b.     Burden  of  Proof. 

58.  In  an  action  for  alienation  of  the 
affections  of  plaintifiTs  husband,  the  bur- 


HUSBAND  AND  WIFE. 


425 


den  is  on  plaintiff  to  show  that  defendant 
■was  the  pursuer,  not  merely  the  pursued, 
and  that  she  deliberately  influenced 
plaintiff's  husband  to  withdraw  his  care, 
protection,  comfort  and  companionship. 
Stewart  v.  Hagerty  (Pa.)   1917D-483. 

c.     Admissibility  of  Evidence. 

59.  Acts  After  Separation.  In  an  ac- 
tion by  a  wife  against  another  woman  for 
alienation  of  the  affections  of  plaintiff's 
husband,  where  there  is  no  evidence  of 
improper  relations  between  defendant  and 
the  husband  before  the  separation  of 
plaintiff  from  her  husband,  evidence  of 
such  improper  relations  thereafter  is  in- 
admissible. Stewart  v.  Hagerty  (Pa.) 
1917D-483.  (Annotated.) 

Note. 
Admissibility  in  action  for  alienation  of 
affections  of  evidence  of  acts  committed 
after  separaton  of  spouses.     1917D-484. 

d.  ■  SufBciency   of  Evidence. 

60.  In  an  action  by  a  husband  against 
the  relatives  of  his  wife  for  a  conspiracy 
to  alienate  her  affections,  the  questions 
whether  the  defendants  or  any  of  them 
gave  advice  to  the  wife  to  induce  a 
separation,  indulged  in  solicitation,  used 
any  compulsion,  or  made  any  threats  to 
that  end,  or  entertained  any  malice 
toward  the  plaintiff,  are  held  to  be  for  the 
jury  under  the  evidence.  Eatcliffe  v. 
Walker  (Va.)  1917E-1022. 

61.  In  an  action  for  alienation  against 
the  parents,  brothers,  and  sister  of  a  wife 
who  had  separated  from  her  husband,  the 
evidence  is  held  to  be  suflScient  to  sustain 
a  verdict  against  all  the  defendants  on 
the  ground  that  there  was  a  common  un- 
derstanding and  design  to  procure  a 
separation.  Ratcliffe  v.  Walker  (Va.) 
1917E-1022.  (Annotated.) 

62.  Liability  of  Parent.  The  evidence 
is  held  to  be  insufficient  to  show  that  the 
defendants,  who  were  the  parents  of  the 
plaintiff's  wife,  through  malice  or  other 
improper  motives,  alienated  her  affections 
from  the  plaintiff,  or  that  they  tried  in 
any  way  so  to  alienate  her  affections. 
Kleist  V.  Breitung  (Fed.)  1917E-1014. 

(Annotated.) 

63.  Circumstantial  Evidence.  Direct 
proof  of  illicit  relations  is  not  required, 
circumstantial  evidence  being  sufficient. 
Eott  V.  Goehring  (N.  Dak.)  1918A-643. 

64.  Evidence  Insufficient.  In  an  action 
for  alienation  of  the  affections  of  plain- 
tiff's husband,  the  evidence  is  held  to  be 
insufficient  to  show  that  defendant  was 
the  active  cause  of  the  alienation  of 
plaintiff's  husband's  affections.  Stewart 
V.  Hagerty    (Pa.)    1917D-483. 


8.     CEIMINAL  CONVERSATION. 

65.  Evidence.  In  a  trial,  without  a 
jury,  of  a  husband's  action  for  criminal 
conversation,  the  admission  in  evidence  of 
letters  to  plaintiff  from  his  wife  contain- 
ing matters  competent  and  matters  in- 
competent is  not  error,  where  the  court 
stated  that  the  letters  were  admitted 
merely  to  contradict  any  inference  that 
the  husband  and  wife  were  living  to- 
gether, and  there  was  other  and  compe- 
tent evidence  relative  to  the  adultery  re- 
lied on  as  the  basis  of  the  action.  Rehl- 
ing  V.  Brainard  (Nev.)  1917C-656. 

66.  Question  not  Decided  —  Right  of 
Wife  to  Sue  for  Criminal  Conversation. 
Whether  an  action  will  lie  by  a  married 
woman  for  criminal  conversation,  and  also 
whether  such  a  cause  of  action  is  alleged 
in  the  complaint,  not  decided  for  reasons 
stated.  Eott  v.  Goehring  (N.  Dak.) 
1918A-643. 

67.  Measure  of  Damages.  In  a  hus- 
band's action  for  criminal  conversation, 
lack  of  consortium  is  an  element  of  the 
damages,  but  the  fact  that  the  breaking 
up  of  the  home  or  the  destruction  of  the 
marital  relation  has  been  only  partial, 
and  that  there  has  been  a  reconciliation, 
may  be  considered  in  mitigation  of  dam- 
ages. Rehling  v.  Brainard  (Nev.)  1917C- 
656. 

68.  Scope  of  Issue.  In  a  husband's  ac- 
tion for  criminal  conversation,  the  issue 
is  whether  the  wife  has  been  guilty  of 
adultery  without  his  consent  or  conniv- 
ance. Rehling  v.  Brainard  (Nev.)  1917C- 
656. 

69.  Evidence  Sufficient.  Evidence  in  a 
husband's  action  for  criminal  conversa- 
tion, tried  without  a  jury,  is  held  to  sus- 
tain a  judgment  for  plaintiff.  Rehling  v. 
Brainard  (Nev.)   1917C-656. 

70.  Eight  to  Punitive  Damages.  In  ac- 
tions for  criminal  conversation,  the  jury, 
in  their  discretion,  may  award  punitive 
or  exemplary  .  damages.  Jowett  t.  Wal- 
lace (Me.)   1917A-754. 

71.  Marriage — ^Proof.  In  an  action  for 
criminal  conversation,  the  husband  was  a 
competent  witness  as  to  the  performance 
of  a  marriage  ceremony.  Jowett  v.  Wal- 
lace (Me.)  1917A-754. 

72.  To  support  an  action  for  criminal 
conversation,  there  must  be  proof  of  a 
marriage  ceremony  performed  by  a  per- 
son authorized  by  law  to  solemnize  mar- 
riages. Jowett  V.  Wallace  (Me.)  1917A- 
754.  (Annotated.) 

73.  In  actions  for  criminal  conversation, 
the  production  of  record  proof  of  the  mar- 
riage from  the  proper  public  records,  with 
proof  of  the  identity  of  the  parties,  is  suffi- 
cient prima  facie  proof  of  the  authority  of 


426 


the  person  officiating^  to  solemnize  mar- 
riages; since,  while  the  marriage  must  be 
strictly  proved,  the  record  aflfords  presump- 
tive evidence  of  regularity  and  authority. 
Jowett  V.  Wallace  (Me.)  1917A-754. 

(Annotated.) 

74.  Proof  Bequlslte  to  Recovery.  In  an 
action  for  criminal  conversation^  plaintiff 
must  prove  a  legal  marriage  in  fact,  and 
carnal  intercourse  between  his  wife  and 
defendant.  Jowett  t.  Wallace  (Me.) 
1917A-754. 

Note. 
Proof   of   marriage   in  action  for   crim- 
inal conversation.     1917A-755. 

HYPOTHETICAL   QUESTIONB. 
See  Witnesses,  55-60. 

HYPOCRISY. 

Charge  of  as  libel,  see  Libel  amd  Shmder, 
26. 

lOE. 

Bights  of  riparian  owner,  see  Waters  aad 
Watercourses,  13. 

ICE  CREAM. 
Regulation  of,  see  Food,  3,  19. 

IDEM  SONANS. 

See  Names,  7. 

IDENTITY. 

Preaumption  as  to,  see  Evidence,  139. 

IDENTITY  OF  ISSUE& 
See  Judgments,  58-61. 

IDENTITY  OF  OFFENSES. 
S  «  Former  Jeopardy,  4. 

ILLEGAL  CONSIDERATION. 
See  Bills  and  Notes,  52. 

ILLEGALITY. 
Of  contracts,  see  Contracts,  23-43. 

ILLEGITIMACY. 
See  Bastardy. 

ILLEGITIMATES. 

Descent  to  and  through,  see  Descent  and 
Distribution,  5-8. 

"Child"  not  including  bastard,  see  Execu- 
tions, 4. 


DIGEST. 
19160— 1918B. 

IMMEDIATE  DISABILITY. 
Defined,  see  Accident  Policy,  2. 


See  Disease. 


ILLNESS. 


IMMIGRATION. 

See  Aliens,  3,  17-23. 

Importation  of  contract  labor,  see  Labor 
Laws,  2. 

IMMORAL  PURPOSES. 

See  Prostitution,  12,  13. 

IMPAIRING  CONTRACT  OBLIGATIONS. 
Eight  hour  day,  see  Labor  Laws,  15. 

IMPEACHMENT. 

Of  verdict,  see  Verdicts,  12-13. 
Of  witnesses,  see  Witnesses,  96-111. 

IMPLIED  CONTRACTS. 

See  Contracts,  54. 

IMPLIED  COVENANTS. 
See  Landlord  and  Tenant,  4-7. 

IMPLIED  MALICE. 
See  JAbel  and  Slander,  10,  12. 

IMPLIED  POWERS. 
See  Corporations,  14-16. 

IMPLIED  REPHAL, 
See  Statutes,  117-121. 

IMPLIED  TRUSTS. 
See  Trusts  and  Trustees,  13-21. 

IMPLIED  WARRANTY. 
See  Sales;  Warranty. 

IMPOTENCE. 

As  defense  in  assault,  see  Rape,  13.    ' 

IMPRISONMENT. 

See  False  Imprisonment;  Imprisonment 
for  Debt  and  in  Civil  Cases;  Sentence 
and  Punishment. 

Effect  on  homestead  rights,  see  Home- 
stead, 19. 

Place  of,  see  Sentence  and  Punishment, 
20. 

IMPRISONMENT    FOR   DEBT   AND   IN 
CIVIL  CASES. 

1.  What  Constitutes  Debt.  Comp.  Laws 
N.  Dak.  1913,  §  10941.  which  authorizes  im- 
prisonment in  case  of  the  nonpayment  of 


IMPROVEMENTS— INCLUSION  BY  REFERENCE. 


427 


the  costs  of  a  criminal  prosecution,  does 
not  violate  either  the  constitution  of  the 
state  of  North  Dakota  or  that  of  the 
United  States.  State  r.  Kilmer  (N.  Dak.) 
1317E-116. 

2.  Eem.  &  Bal.  Wash.  Code,  §  749,  pro- 
viding that  a  defendant  may  be  arrested 
in  civil  cases,  in  actions  for  damages,  on 
a  cause  of  action  not  arising  out  of  ■con- 
tract, where  defendant  is  a  nonresident, 
or  is  about  to  remove  from  the  state, 
where  the  action  is  for  any  injury  to  per- 
son or  character,  for  wrongfully  taking, 
detaining,  or  converting  property,  in  an 
action  for  fines  or  penalties,  on  promise  to 
marry,  for  money  received,  property  em- 
bezzled, fraudulently  misapplied  or  con- 
verted by  a  public  officer,  an  attorney  or 
a  corporation's  agent,  or  other  person  in 
fiduciary  capacity,  for  professional  mis- 
conduct, for  a  recovery  of  possession  of 
personal  property  unjustly  detained  and 
concealed,  removed,  or  disposed  of,  when 
defendant  has  been  guilty  of  a  fraud  in 
contraeting  a  debt,  or  in  concealing  or 
disposing  of  property  sought  to  be  taken 
by  suit,  when  the  action  is  to  prevent 
threatened  injury  to  or  destruction  of 
property,  when  a  defendant  refuses  to 
apply  money  to  payment  of  judgments 
with  intent  to  defraud  plaintiff,  or  when 
he  refuses  to  comply  with  the  legal  order 
of  the  court  to  defraud  plaintiff,  is  uncon- 
stitutional, under  Const,  art.  1,  §  17,  pro- 
viding there  shall  be  no  imprisonment  for 
debt  except  in  case  of  absconding  debtors; 
a  judgment  founded  on  tort  being  a 
"debt"  within  the  meaning  of  the  ■consti- 
tution. Bronson  v.  Syverson  (Wash.) 
1917D-833.  (Annotated.) 

Note. 

Civil  liability  for  tort  as  debt  within 
constitutional  provision  against  imprison- 
ment for  debt.     1917D-841. 

IMPROVEMENTS. 

Care  required  in  excavating,  see  Adjoin- 
ing Itondowners,  9. 

Effect  on  compensation,  see  Eminent  Do- 
main, 37,  38. 

Riffht  to  lien  for  improvements  by  tenant, 
see  Mechanics'  Liens,  8. 

Street  and  highway  improvements,  see 
Streets  and  Highways,  5-15. 

Defaulting  vendee's  right  to  recover  for 
improvements,  see  Vendor  and  Pur- 
chaser, 20. 

1.  Recovery  by  Occupying  Claimant. 
Where,  in  a  suit  to  recover  the  possession 
of  land  condemned  by  a  railroad  company, 
defendant  in  addition  to  pleading  an  aban- 
donment of  the  railroad  company's  ease- 
ment also  made  claim  for  improvements 
made  upon  the  property  in  good  faith,  be- 
lieving that  he  had  an  absolute  title,  evi- 
dence as  to  the  length  of  time  that  de- 
fendant   was    engaged    in    constructing    a 


building  on  the  property  and  the  amount 
expended  in  its  erection  is  admissible  un- 
der the  claim  for  improvements.  New 
York,  etc.  R.  Co.  v.  Cella  (Conn.)  1917I>- 
591. 

IMPUTATION  OF  FRAUD. 

See  Libel  and  Slander,  30. 

IMPUTATION  OF  CRIME. 
See  Libel  and  Slander,  24,  25. 

IMPUTATION  OF  UNCHASTITY. 
.  To  male,  see  Libel  and  Slander,  36. 

IMPUTED  NEGLIGENCE, 

See  Automobiles,  26,  32-35. 
Imputed      contributory      negligence,      see 
NegUgemce,  55-57. 

INADEQUACY. 

Of  gift,  effect  on  validity,  see  Charities, 
20. 

INADEQUACY  OF  CONSIDERATION. 
Defense  of,  see  Bills  and  Notes,  13. 

INCEST. 

1.  Marriage  of  Accosed.  In  a  proseen- 
tion  for  incest  alleged  to  have  been  com- 
mitted by  defendant  with  his  daughter, 
a  girl  of  18,  the  state  introduced  a  mar- 
riage certificate  showing  that  defendant 
had  married  E.  in  Kansas  on  August  25, 
1895,  and  E.'s  sister  testified  that  the 
woman  mentioned  in  the  marriage  certifi- 
cate was  her  sister  and  defendant's  wife; 
that  she  was  alive  at  the  time  of  the  trial; 
and  that  defendant  had  lived  with  her  as 
his  wife  for  the  past  20  years.  Held, 
sufficient  to  establish  that  defendant  was 
a  married  man  at  the  time  of  the  commis- 
sion of  the  crime.  Knowles  v.  State 
(Ark.)  1916C-568. 

2.  Cohabitation  After  Statute  Forbid- 
ding Marriage.  Where  defendant  in  1882 
married  the  daughter  of  his  half-sister 
when  incest  was  not  a  ■crime,  and  such 
marriage  was  not  void,  but  voidable,  his 
cohabitation  with  her  after  the  passage  of 
the  Act  of  Dec.  24,  1884  (18  Stat.  857), 
S.  Car.  Criminal  Code,  §  388,  making  incest 
a  crime,  cannot  be  punished  as  incest,  for 
as  to  him  the  statute  would  be  ex  post 
facto.  State  v.  Smith  (8.  Car.)  1917C- 
149. 

INCrDENTAL  POWERS. 
See  Corporations,  14-16. 

INCLUSION  BY  REFERENCE. 

In    bill    of    exceptions,    see    Appeal    and 
Error,  67-70. 


428 

INCOME  TAX. 
Se«  Taxation,  180-199. 


INCOMINa  PABTNEB. 

Liability  for  firm  debts,  see  PartnerBhlp, 
26,  32-36. 

INCOMPETENT. 
See  Insanity. 

INCONSISTENT  DEFENSES. 
Big^t  to  plead,  see  Pleading,  20,  25-30. 

INCONTESTABU:  CIiAUSE. 
See  Life  Insurance,  26-37. 

INCBEASR 

See  Chatty  Mortgagee,  21-24. 

INCBEASE  OF  CAPITAL  STOCK. 

Preferential  rights  of  stockholders  in  new 
issue,  see  Corporations,  73. 

INCUMBBANCES. 

Effect  of  bankruptcy,  see  Bankruptcy,  16. 

Avoidance  of  policy  by,  see  Fire  Insur- 
ance, 18. 

W aiyer  of  provision  against,  see  Fire  In- 
surance, 24. 

IN  CUSTODIA  LEQIS. 

Control  of  bankruptcy  trustee,  see  Bank- 
ruptcy, 14. 

INDEMNITY. 
Action  by  beneficial  obligee,  see  Bonds,  1. 

INDEPENDENT  CONTBACTOBS. 

Authorized  unlawful  act,  see  Torts,  5. 

1.  Mode  of  Payment  as  Affecting  Inde- 
pendence. Defendant  made  an  agreement 
with  J.  &  Son  relative  to  the  construction 
of  a  building  on  its  property,  by  which 
J.  &  Son  were  to  erect  the  brick  walls 
and  the  foundations  according  to  plans 
and  specifications  drawn  by  defendant's 
architect,  defendant  was  to  furnish  all 
building  material,  while  J.  &  Son  were  to 
supply  all  scaffolding,  etc.,  used  in  the 
construction  of  the  building,  J.  &  Son  were 
to  employ  their  own  men,  and  for  their 
services  in  the  supervision,  construction, 
and  general  erection  of  the  brick  and 
cement  work  were  to  receive  a  specified 
sum  per  week.  J.  &  Son  hired  all  the 
bricklayers,  including  plaintiff,  and  all 
laborers,  and  gave  the  orders  to  the  men  as 
to  what  they  should  do,  and  how  it  should 
be  done,  and  one  of  the  members  kept  the 


DIGEST. 

1916C— 1918B. 

time  of  the  men,  and  made  out  the  weekly 
pay  roll,  which  he  presented  to  defend- 
ant, from  whom  he  received  the  money 
to  meet  it.  Defendant's  president  was 
about  the  building  practically  every  day, 
and  conferred  with  .7.  &  Son  regarding 
the  plans  and  specifications,  and  on  one 
occasion  told  a  workman  that  certain  win- 
dow frames  should  be  changed,  but  did 
not  tell  him  to  make  the  change,  and  it 
was  not  made  until  J.  &  Son  so  directed. 
He  also  laid  off  another  workman,  but  in 
doing  so  acted  under  the  direction  of  .1. 
&  Son.  Held,  that  J.  &  Son  were  "inde- 
pendent contractors,"  and  alone  had  con- 
trol over  plaintiff  and  the  methods  to  be 
used  in  constructing  the  building,  and 
hence  defendant  was  not  liable  for  plain- 
tiff's injury  ■caused  by  the  falling  of  a  de- 
fective scaffold  which  was  the  property  of 
J.  &  Son,  and  had  been  used  by  them  on 
other  buildings,  and  was  placed  in  posi- 
tion by  their  emplovees.  Marion  Shoe  Co. 
V.  Eppley  (Ind.)  1916D-220. 

(Annotated.) 

2.  Control  of  Work  as  Affecting  Inde- 
pendence. Where  a  building  contract  pro- 
vided that  the  owner,  through  an  inspec- 
tor representing  him,  should  have  author- 
ity to  examine  the  materials  furnished, 
and  to  condemn  that  not  conforming  to  a 
prescribed  standard,  and  the  inspector  was 
authorized  to  arrest  the  progress  of  the 
work  if  it  did  not  conform  to  such  stand- 
ard, but  he  had  power  only  to  see  that  the 
standard  was  lived  up  to  as  the  work 
progressed,  and  had  no  control  of  the 
means  and  methods  of  attaining  the  stand- 
ard, the  contractor  was  an  independent 
contractor,  and  not  an  employee,  for  whose 
negligence  the  employer  was  liable.  Prest- 
o-lite Co.  V.  Skeel  (Ind.)  1917A-474. 

3.  Definition.  An  "independent  con- 
tractor" is  one  exercising  an  independent 
employment  under  a  contract  to  do  certain 
work  by  his  own  methods,  without  sub- 
jection to  the  control  of  his  employer,  ex- 
cept as  to  the  product  or  result  of  the 
work.  Presto-lite  Co.  v.  Skeel  (Ind.) 
1917A-474. 


4.  Wliat  Constitutes  Independent  Con- 
tractor. Where  an  agreement  provides 
for  a  result  to  be  accomplished,  but  leaves 
to  the  person  employed  to  accomplish  it 
the  means  and  methods  by  which  it  is  to 
be  accomplished,  the  person  so  employed 
is  a  contractor,  and  the  relation  is  not 
that  of  master  and  servant,  and  the  em- 
ployer is  not  liable  for  the  contractor's 
negligence.  Prest-o-lite  Co.  v.  Skeel  (Ind.) 
1917A-474. 

5.  Dangerous  Employment — What  Con- 
stitutes. The  Ind.  Dangerous  Employmojit 
Act  of  1911  (Acts  1911.  c.  236)  has  no 
application  to  the  liability  of  an  owner 
for  injuries  to  an  employee  of  an  inde- 
pendent contractor,  engaged  in  construct- 
ing a  building,  from  the  collapse  of  such 


INDEPENDENT  CONTRACTORS. 


429 


building.     Presto-lite  Co.  v.  Skeel  (Ind.) 

1917A-474. 

6.  Who  is  not  an  Independent  Contrac- 
tor. Where  one  person  lets  a  contract  to 
another  to  do  a  particular  work,  reserving 
to  himself  no  control  over  the  manner  in 
which  it  shall  be  performed,  except  that 
it  shall  conform  to  a  particular  standard 
when  completed,  he  is  not  liable  for  an 
injury  occurring  to  others  by  reason  of 
any  negligence  of  the  person  to  whom  the 
contract  is  let,  and  the  fact  that  he  re- 
tains a  supervision  of  the  work  for  the 
purpose  of  securing  certain  results,  that 
he  may  stop  woik  which  is  not  properly 
done,  that  the  right  is  reserved  to  make 
alterations  in  the  contract,  that  the  con- 
tractor is  to  be  compensated  by  a  lump 
sum,  by  a  commission  on  the  cost,  or  a 
per  diem,  or  that  the  proprietor  furnishes 
the  building  material,  where  the  accident 
does  not  result  from  a  defect  in  such  ma- 
terial, does  not  change  the  rule.  Marion 
Shoe  Co.  y.  Eppley  (Ind.)  1916D-220. 

(Annotated.) 

7.  Liability  of  Owner — Defect  In  Plans. 
When  an  owner  has  exercised  due  care  to 
employ  an  architect  to  prepare  plans  and 
specifications  for  a  building,  and  builds 
accordingly,  he  should  not  be  held  liable 
for  any  defects,  unless  they  were  such 
that  he  should  have  known  of  them. 
Presto-lite  Co.  v.  Skeel  (Ind.)  1917A-474. 

8.  Effect  of  Nuisance  Created  by  Owner. 
The  owner  of  a  building  employed  an  in- 
dependent contractor  to  paint  it,  and  the 
•contractor  negligently  fastened  the  guy 
ropes  so  that  the  stage  on  which  he  was 
painting  slipped,  and  he  fell  and  struck 
plaintiff  on  the  sidewalk  below.  It  ap- 
peared that  the  work  was  done  in  the 
usual  way,  and  there  was  no  evidence  that 
it  was  customary  to  erect  guards  over 
sidewalks-  above  which  men  were  painting 
from  a  suspended  stage  during  the  work. 
Held,  that,  while  an  abutting  owner  caus» 
ing  a  nuisance  to  be  erected  on  his  prop- 
erty is  not  excused  from  liability  for  an 
injury  therefrom  to  a  person  using  the 
street  because  he  employs  an  independent 
contractor  to  do  the  work,  yet,  as  the  sus- 
pension of  the  stage  above  the  sidewalk 
was  not  such  a  menace  to  the  safety  of 
those  using  it  as  to  amount  to  a  nuisance, 
the  owner  was  not  liable.  Weilbacher  v. 
J.  W.  Putts  Co.  (Md.)  1916C-115. 

(Annotated.) 

9.  Admissibility  of  Evidence,  In  an  ac- 
tion for  damages  by  being  struck  by  an 
independent  contractor  who  fell  from  a 
staging  suspended  over  the  sidewalk  by 
reason  of  his  own  negligence  in  fastening 
the  guy  ropes,  where  the  president  of  the 
defendant  owner  testified  for  plaintiff  that 
the  contract  for  painting  was  given  to  the 
contractor  and  that  the  owner  had  noth- 
ing to  do  with  the  work,  did  not  employ 
the    men    engaged    in    it,    or    control    the 


methods,  the  plaintiff  has  a  right  to  ask 
on  redirect  examination  who  owned  the 
appliances  useii  in  the  work,  but  not  to 
inquire  whether  defendant  took  anv  pre- 
caution to  safeguard  travel  on  the  side- 
walk below;  sin<?e  the  latter  question  does 
not  relate  to  any  matter  covered  by  the 
cross-examination.  Weilbacher  v.  J.  W. 
Putts  Co.  (Md.)  1916C-115. 

10.  Ees  Ipsa  Loquitur.  The  maxim  "res 
ipsa  liquitur,"  meaning  that,  although 
there  must  be  reasonable  evidence  of 
negligence,  yet  where  the  thing  is  shown 
to  be  under  the  management  of  defend- 
ant or  his  servants,  and  the  accident  is 
such  as  in  the  ordinary  course  of  things 
does  not  happen  if  those  in  control  use 
proper  care,  affords  reasonable  evidence, 
in  the  absence  of  explanation,  that  the 
accident  arose  from  want  of  care,  docs 
not  apply  to  the  owner  of  a  building  who 
had  no  control  over  a  contractor  engaged 
in  painting  it,  through  whose  negligence 
plaintiff  was  injured.  Weilbacher  v.  J.  W. 
Putts  Co.  (Md.)  1916C-115. 

11.  Eurden  oX  Proof.  Plaintiff,  in  an 
action  for  injury  from  being  struck  by  an 
independent  contractor  who  fell  from  a 
painter's  stage  suspended  from  defend- 
ant's building  over  the  sidewalk,  by  rea- 
son of  his  negligent  fastening  of  the  guy 
ropes,  has  the  burden  of  showing  that  de- 
fendant owner  was  guilty  of  negligence; 
and  the  mere  fact  that  the  contractor  fell 
and  injured  him  will  not  justify  an  in- 
ference of  defendant's  negligence.  Weil- 
bacher T.  J.  W.  Putts  Co.  (Md.)  1916C- 
115. 

12.  Jury  Question  —  Negligence.  The 
question  whether  an  injury  might  reason- 
ably have  been  anticipated  by  the  owner 
of  a  building  abutting  on  a  public  street 
as  a  probable  consequence  of  work,  such 
as  painting  and  repairing,  which  he  has 
done  by  an  independent  contractor  is  gen- 
erally a  question  of  fact  for  the  jury. 
Weilbacher  v.  J.  W.  Putts  Co.  (Md.) 
1916C-115.  (Annotated.) 

13.  Duty  of  Owner.  The  duty  of  the 
owner  ot  property  abutting  on  a  highway 
not  to  create  a  nuisance  on  the  highway 
endangering  the  public  use  thereof  does 
not  make  him  an  insurer  against  injury 
to  the  public  or  require  him  to  provide 
agr.inst  all  possible  injury,  and  does  not 
require  him,  on  employing  an  independent 
contractor  to  paint  the  building,  to  see 
that  the  guy  ropes  used  by  the  contractor 
to  fasten  a  stage  are  properly  tied.  Weil- 
bacher V.  J.  W.  Putts  Co.  (Md.)  1916C- 
115.  (Annotated.) 

14.  Such  eonditions  were  not  such  that 
the  injury  might  have  been  anticipated 
by  the  owner  as  the  probable  consequence 
of  the  work  if  he  failed  to  take  proper 
precaution  to  prevent  it,  and  hence  the 
owner  was  not  liable;  although,  if  the  in- 
jury had  been  such  that  he  should  have 


430 


DIGEST. 

1916C— 1918B. 


anticipated  it,  he  would  have  been  liable. 
Weilbacher  v.  J.  W.  Putts  Co.  (Md.) 
19160-115.  (Annotated.) 

15.  Erection  of  Scaffold  —  Injury  to 
Pedestrian.  The  owner  of  a  building  con- 
tracted with  a  painter  to  paint  it,  he  to 
furnish  the  aoplianccs  and  employ  the 
labor  therefor,  the  owner  not  retaining 
any  supervision  of  the  work  or  any  con- 
trol over  the  men,  and  the  contractor  used 
a  stage  fastened  by  guy  lines  which  were 
not  tight  enough,  and  which  allowed  the 
stage  to  slip,  so  that  he  fell  therefrom  and 
struck  plaintiff  as  she  was  passing  on  the 
sidewalk  below.  Held,  that  the  negli- 
gence was  the  negligence  of  an  independ- 
ent contractor,  for  which  the  owner  was 
not  liable.  Weilbacher  t.  J,  W.  Putts  Co. 
(Md.)   1916C-115.  (Annotated.) 

INDEPENDENT  COVENANTS. 

To  repair  and  to  pay  rent,  see  Landlord 
and  Tenant,  38. 

INDIAN.S. 

Regulating  shipping  liquor  to  Indian  Ter- 
ritory, see  Intoxicating  Liquors,  30. 

1.  Lease  of  Lands  of  Minor.  Under  Act 
Cong.  April  26,  1906,  c.  1876,  34  Stat.  145 
(Fed.  St.  Ann.  1909  Supp.  p.  190),  requir- 
ing that  allotments  of  minor  Indians  be 
leased  under  orders  of  the  proper  court, 
and  section  2405,  Stat.  Ind.  Ter.  section" 
3509,  Mansf.  Dig.  Ark',  relating  to  the 
leasing  of  the  lands  of  minors,  an  order  of 
court  permitting  a  guardian  to  lease  his 
ward's  land  is  indispensable  to  a  valid 
lease.  Pisher  v.  McKeemie  (Okla.)  1917C- 
1039. 

2.  Proof  of  Age.  In  an  action  to  can- 
cel conveyances  affecting  an  Indian  allot- 
ment consummated  prior  to  the  approval 
of  Act  Cong.  May  27,  1908,  c.  199,  35  St. 
at  L.  313,  §  3,  the  "enrollment  records"  are 
not  conclusive  evidence  as  to  the  age  of 
the  allottee.  In  such  case  his  age  is  a 
question  of  fact,  to  be  proved  by  compe- 
tent testimony,  as  any  other  fact  at  issue 
in  the  case.  Freeman  v.  First  National 
Bank  (Okla)  1918A-259. 

INDICTMENTS  AND  INFOEMATIONS. 

1.  Tending  and  Filing,  430. 

2.  Formal  Requisites,  430. 

3.  Charging  Offense,  431. 

a.  In  General,  431. 

b.  Charging  Malice,  431. 

c.  Charging  One  Offense  in   Different 

Counts,  431. 

d.  Allegation  of  Time  of  Offense,  431. 

e.  Joinder  of  Offenses,  432. 

f.  .Joinder  of  Defendants,  432. 

4.  Amendment,  432. 

5.  Quashing  or  Setting  Aside,  432. 

6.  Variance,  432. 

7.  Resubmission,  433. 


See  Abduction,  1;  Adultery,  3;  Assault,  1; 
Conspiracy,  2,  3;  Embezzlement,  3-5, 
Extortion,  1;  False  Pretenses,  6,  10; 
Intoxicating  Liquors,  84,  89:  Larceny, 
2,  3,  8;  Libel  and  Slander,  166,  167; 
Prostitution,  18,  19;  Rape.     • 

Charging  abduction,  see  Abduction,  1. 

Erroneous  construction  held  harmless 
error,  see  Appeal  and  Error,  228. 

Failure  to  give  name  to  injured  person,  see 
Automobiles,  67. 

Concealment  of  assets,  see  Bankruptcy,  30. 

Accepting  deposit  while  insolvent,  see 
Banks  and  Banking,  15,  16.  18,  20. 

For  polygamy  or  bigamy,  see  Bigamy,  2. 

Offering  bribe,  see  Bribery,  2,  3. 

Quashing  information  as  bar  to  prosecu- 
tion, see  Former  Jeopardy,  5. 

Validity  of  indictment,  found  after  dis- 
charge and  reassembly,  see  Grand 
Jury,  1. 

Irregularity  in  drawing  grand  jury,  effect, 
see  Grand  Jury,  3-5. 

Quorum  necessary  to  validity,  see  Grand 
Jury,  7. 

Defective  information,  relief,  see  Habeas 
Corpus,  6. 

For  involuntary  manslaughter,  see  Homi- 
cide, 5-7. 

For  murder,  see  Homicide,    4,  9,  10,  13. 

Included  offenses,  see  Homicide,  8,  12. 

Negativing  exceptions,  see  Licenses,  26. 

1.  FINDING  AND  FILING. 

1.  Misconduct  of  Grand  Jurors.  It  is 
the  policy  of  the  law  to  preserve  inviolate 
the  secrecy  of  proceedings  before  the 
grand  jury,  and  the  discussion  of  evidence 
before  them,  relating  to  an  alleged  crime 
which  they  are  then  considering,  by  per- 
sons not  sworn  to  testify  as  witnesses, 
will  vitiate  an  indictment  returned  by 
them  whether  they  were  actually  influ- 
enced by  such  discussion  or  not.  The  law 
seeks  to  guard  against  even  the  possibility 
of  such  influence.  State  v.  Wetzel 
("W.  Va.)  1918A-1074. 

2.  Effect  of  Invalid  Appointment.  The 
order  appointing  an  attorney  to  file  an 
information  and  prosecute  the  cause,  being 
void  for  want  of  jurisdiction  to  make  it, 
there  being  no  temporary  vacancy  in  the 
office  of  state's  attorney,  may  be  attacked 
bj'  motion  to  quash  the  information  filed 
by  such  appointee,  and  this  without  regard 
to  the  question  of  prejudice  from  the  or- 
der.    State  V.  Flavin  (S.  Dak.)  1918A-713. 

2.  FORMAL    REQUISITES. 

3.  Verification.  In  the  United  States 
the  informations  used  by  the  prosecuting 
officers  are  the  informations  used  by  the 
attorney  general  in  England,  and  not  those 
exhibited  by  masters  of  the  crown,  and 
which  were  governed  by  4  and  5  William 
and  Mary,  c.  18;  and  as  at  common  law 
an  information  could  be  filed  by  the  attor- 
ney  general   simply  on   his  oath   of   ofiice,. 


INDICTMENTS  AND  INFORMATIONS. 


431 


and  without  verification,  the  verification 
of  an  information  by  a  prosecuting  attor- 
ney in  this  country  is  unnecessary,  unless 
required  by  some  constitutional  or  statu- 
tory provision.  T^J'eeks  v.  United  States 
(Fed.)  1917C-524.  (Annotated.) 

4.  Indictment  at  Common  Law  Con- 
cluding Against  Statute.  Under  N.  Car. 
Revisal  1905,  §  3254,  making  an  indictment 
suflicient  in  form  where  it  expresses  i;he 
charge  against  defendant  in  a  plain,  in- 
telligent, and  explicit  manner,  an  indict- 
ment otherwise  sufficiently  good  as  charg- 
ing a  common-law  offense  is  not  invalid 
because  it  concludes  "against  the  form  of 
the  statute."  State  v.  Craft  (N.  Car.) 
1917B-1013. 

5.  Formal  Defects.  Under  Iowa  Code, 
§  5290,  providing  that  no  indictment  is  in- 
sufficient, nor  can  the  trial,  judgment,  or 
other  proceedings  be  affected  for  the  omis- 
sion of  certain  formal  allegations,  for  sur- 
plusage, repugnant  allegations,  or  for  other 
matter,  formerly  deemed  a  defect,  but 
not  tending  to  prejudice  the  substantial 
rights  of  the  defendant  on  the  merits,  the 
verbal  exactness  and  the  technical  strict- 
ness of  old  times  are  not  now  required  in 
indictments.  State  v.  McAnich  (Iowa) 
1918A-559. 

6.  Failure  to  Verify — Cure  by  Amend- 
ment. In  a  prosecution  for  libel,  error  of 
the  court  refusing  to  set  aside  an  informa- 
tion in  accordance  with  provisions  of  Rem. 
&  Bal.  Wash.  Code,  §  2101,  because  not 
verified,  is  without  prejudice,  where  the 
court  permits  an  amended  information  to 
be  filed  in  the  exact  language  of  the  origi- 
nal and  dulv  verified.  State  v.  Haffer 
(Wash.)   1917E-229. 

7.  Necessity  of  Verification — Informar 
tion.  The  provision  of  the  Fourth  Consti- 
tutional Amendment  (9  Fed.  St.  Ann.  249) 
that  "no  warrants  shall  issue  but  upon 
probable  cause  supported  by  oath  or  affirm- 
ation," which  is  a  limitation  upon  the  pow- 
ers of  the  federal  government  only,  does 
not  require  an  information  filed  by  a  dis- 
trict attorney  of  the  United  States  to  be 
verified  or  supported  by  an  affidavit  based 
on  personal  knowledge  and  showing  prob- 
able cause,  unless  such  information  is  made 
the  basis  of  an  application  for  a  warrant 
of  arrest.  If  the  sole  purpose  of  the  in- 
formation is  to  state  the  accusation,  a  de- 
fendant may  be  charged  and  tried  for  a 
misdemeanor  on  an  information  not  veri- 
fied nor  80  supported.  Weeks  v.  United 
States  (Fed.)   1917C-524. 

(Annotated.) 

8.  Disregarding  Defects.  While  it  is  the 
declared  policy  of  the  legislature,  as  well 
as  of  this  court,  to  uphold  indictments  and 
informations  whenever  there  has  been  a 
substantial  compliance  therein  with  the 
statutory  requirements,  this  relates  to  mat- 
ters of  form,  and  not  of  substance.  Brun- 
son  v.  State  (Fla.)  1918A-312. 


Note. 
Necessity  that  criminal  information  filed 
by    prosecuting   attorney    be    under    oath. 
1917C-531. 


3.    CHARGING  OFFENSE. 
a.     In  General. 

9.  Each  Count  Treated  as  a  Whole.    In: 

determining   the   sufficiency   of   an   indict- 1 
ment,   each   count   must   be   treated    as   a  f 
whole,  and  not  merely  as  a  part  thereof.' 
Samuels  v.  United   States   (Fed.)    1917A- 
711. 

10.  Requisites  of  Charge.  Where  the 
language  of  an  indictment  for  murder  in 
the  first  degree  is  clear  enough  to  enable 
the  jury  to  easily  understand  it,  and  is 
not  so  vague  as  to  mislead  the  accused 
and  embarrass  her  in  the  preparation  of 
her  defense  or  expose  her  to  substantial 
danger  of  another  prosecution  for  the  same 
offense,  the  indictment,  if  not  otherwise 
defective,  should  not  be  quashed.  Robin- 
son V.  State  (Fla.)  1917D-506. 

11.  Bequisite  Degree  of  Certainty. 
Where  the  language  of  an  indictment  is 
sufficiently  certain  to  enable  an  innocent 
person  to  prepare  for  trial,  and  furnishes 
the  accused  with  reasonable  information 
of  what  he  is  called  upon  to  answer  by 
setting  forth  the  constituent  elements  of 
the  crime  charged,  it  cannot  be  maintained 
that  the  accused  is  not  apprised  of  the 
nature  and  cause  of  the  accusation  against 
him.     Robinson  v.  State  (Fla.)  1917D-506. 

b.    Charging  Malice. 

12.  Malicious  Mischief.  An  indictment 
for  malicious  injury  to  property  is  not 
bad  because  it  fails  to  charge  that  defend- 
ant acted  "maliciously."  State  v.  Ward 
(Minn.)    1916C-674. 

13.  Sufficiency.  The  words  "wilfully  and 
unlawfully"  embody  the  idea  of  malicious- 
ness.    State  V,  Ward   (Minn.)   1916C-674. 

c.    Charging    One     Offense    in    Different 
Counts. 

14.  One  Transaction  in  Several  Forms. 

Where  the  statute  declares  an  act  unlawful 
when  perpetrated  in  any  one  or  all  of 
several  modes,  the  information  may  charge 
the  act  in  separate  counts,  basing  each 
count  upon  the  different  modes  specified. 
State  V.  Bickford   (N.  Dak.)   1916D-140. 

d.     Allegation  of  Time  of  Offense. 

15.  Meaning  of  "Then."  As  used  in  an 
indictment,  the  word  "then"  is  an  adverb 
of  time,  meaning  "at  that  time,"  and  the 
phrase  "then  and  there"  means  at  the  time 
and  place  charged,  and  refers  to  a  single 
transaction.  State  v.  Klasner  (N.  Mex.) 
1917D-824. 


432 


«.    Joinder  of  Offenses. 


16.  mdlctment  Sustained.  Information 
for  embezzlement  examined,  and  held  to 
charge  one,  and  not  several  offenses.  State 
V.  Bickford  (N.  Dak.)  1916D-140. 

f.    Joinder  of  Defendants. 

17.  Violation  of  License  Statute.  Where 
an  indictment  charged  two  jointly  with 
practicing  medicine  without  having  ob- 
tained from  the  state  board  of  medical  ex- 
aminers the  prescribed  certificate,  such  in- 
dictment was  not  invalid  for  the  joinder, 
since,  when  two  are  supposed  to  be  jointly 
guilty  of  an  offense,  they  may  be  indicted 
jointly  or  separately,  and,  in  either  case, 
one  alone  may  be  found  guilty  and  the 
other  acquitted.  State  t.  McAnish  (Iowa) 
1918A-559,  (Annotated.) 

Note. 

Eight  to  join  two  or  more  defendants 
in  indictment  for  violation  of  license  stat- 
ute.    1918A-571. 

4.     AMENDMENT. 

18.  Amendment  at  Trial.  Allowing 
amendment  of  an  information  at  close  of 
testimony  by  inserting  "Dorothy  Burger" 
in  lieu  of  "Jennie  Doe,"  where  defendant 
knew  at  time  of  filing  information  that 
Jennie  Doe  was  a  fictitious  name  intended 
to  describe  Dorothy  Burger,  is  without 
prejudice  in  view  of  Mont.  Kev.  Codes, 
§  9174,  allowing  amendment  at  trial  for 
variance  in  name  where  not  prejudicial  to 
defendant,  and  section  9157,  providing  that 
no  judgment  shall  be  affected  by  defects 
in  form  which  do  not  prejudice  rights  of 
defendant.  State  v.  Eeed  (Mont.)  1917E- 
783. 

19.  Formal  Amendment.  Under  Pa.  Act 
March  31,  1860  (P.  L.  433)  §  11,  authoriz- 
ing the  amending  of  indictments,  it  is 
proper  to  permit  an  indictment  which, 
charges  the  killing  of  a  named  woman  by 
a  man  also  named,  but  by  clerical  error 
uses  the  wrong  gender  of  the  pronoun  in 
referring  to  each,  to  be  amended  by  trans- 
posing the  pronouns.  Commonwealth  v. 
Boyd  (Pa.)  1916D-201. 

.  20.  Prejudice  to  Accused.  Under  Iowa 
Acts  33d  Gen.  Assem.  c.  227,  authorizing 
amendments  to  indictments  which  do  not 
prejudice  the  rights  of  accused,  an  indict- 
ment for  false  pretenses  which  charged 
that  accused  induced  prosecutor  to  part 
with  his  money  on  receiving  a  check  there- 
for, that  accused  falsely  represented  to 
prosecutor  that  he  had  sufficient  funds  in 
the  bank  on  which  the  check  was  drawn 
to  pay  it  when  presented,  that  prosecutor 
believed  the  representations  to  be  true,  and 
was  deceived  thereby,  and  that  payment 
of  the  check  was  refused  when  presented 
because  accused  did  not  have  any  money 
on  deposit,  is  properly  amended  by  the  al- 


DIGEST. 

19160— 1918B. 

legation  that  prosecutor  indorsed  accused's 
check,  and  that  money  thereon  was  pro- 
cured from  a  bank  which  was  paid  to  ac- 
cused.    State  v.  Foxton  (Iowa)  1916E-727. 


5.    QUASHING    OB    SETTING    ASIDE. 

21.  Power  of  Court  on  Own  Motion. 
Iowa  Code,  §  5319,  provides  that,  if  motion 
to  set  aside  an  indictment  is  made  before 
plea  is  entered  the  indictment  must  be  set 
aside,  if  certain  objections  appear.  The 
objections  enumerated  do  not  include  that 
the  indictment  charges  no  crime.  Section 
5331  provides  that,  if  demurrer  to  an  in- 
dictment be  sustained  for  failure  of  the 
indictment  to  charge  a  crime,  the  defend- 
ant must  be  discharged  unless  the  defect 
can  be  remedied  in  another  indictment, 
when  the  cause  may  be  resubmitted  to  the 
grand  jury.  It  is  held  that,  although  the 
statutes  do  not  authorize  a  court,  on  its 
own  motion,  before  plea,  to  set  aside  an 
indictment  for  failure  to  charge  a  crime, 
they  do  not  expressly  prohibit  it,  and 
therefore  the  court  may,  on  its  own  mo- 
tion, set  aside  an  indictment  for  failure  to 
charge  a  crime,  and  resubmit  the  cause  to 
the  grand  jury  before  plea  is  entered. 
State  V.  Asbury  (Iowa)  1918A-856. 

(Annotated.) 

22.  Grounds  for  Quashing.  Where  the 
information  charges  an  offense  different 
from  that  stated  in  the  complaint  on  which 
accused  had  a  preliminary  examination,  the 
accused  may,  before  pleading  to  the  merits, 
move  to  quash  the  information  on  that 
ground.     State  v.  Pay  (Utah)   1917E-173. 

23.  Complainant  Member  of  Grand  Jury. 
It  is  not  ground  for  quashing  an  indict- 
ment that  the  complainant  was  a  member 
of  the  grand  jury  by  which  it  was  found 
but  took  no  part  in  the  deliberation 
therein.  Veronneau  v.  Kex  (Can.)  1917E- 
612.  (Annotated.) 

24.  Prosecutor  Member  of  Grand  Jury. 

That  the  foreman  of  the  grand  jury  was 
the  prosecutor,  and  swore  out  a  complaint 
against  accused,  is  not  ground  for  quash- 
ing an  indictment  against  him,  where  the 
foreman  retired  from  the  jury  room,  and 
did  not  discuss  the  case  with  the  grand 
jury,  nor  vote  on  passing  the  bill.  State 
V.  Pitt  (N.  Car.)  1916€-422. 

(Annotated.) 
Note. 
Power  of  court  to  set  aside  indictment 
on    own    motion    and   order    resubmission. 
1918A-860. 

6.     VAEIANCE. 

25.  Surplusage.  Mere  matter  of  un- 
necessary particularity  or  immaterial  de- 
scription contained  in  an  indictment  is  not 
sufficient  upon  which  to  base  a  charge  of 
variance  between  pleading  and  proof. 
Such  variance  must  be  based  upon  some 
essential   element  of  the  offense  or  some 


INDORSEE— INFANTS. 


43C 


essential  part  of  such  element.     Tingue  v. 
State  (Ohio)  19160-1156. 

7.     EESUBMISSION. 

26.  Necessity  of  Summoning  Witnesses. 
Under  Iowa  Code,  §  5278,  providing  that, 
on  resubmission  to  the  same  or  another 
grand  jury,  it  shall  be  unnecessary  to  sum- 
mon the  witnesses  again,  but  the  minutes 
on  the  former  indictment  may  be  detached 
and  attached  to  the  second  indictment,  it 
is  unnecessary  that  the  witnesses,  on  whose 
testimony  a  defective  indictment  was 
found,  be  resummoned  before  the  grand 
jury  which  brings  in  the  second  indict- 
ment on  resubmission.  State  v.  Asbury 
(Iowa)   1918A-856. 

27.  Resubmission  to  Grand  Jury.  Nev. 
Eev.  Laws,  §  7005,  subd.  6,  allows  grand 
jurors  to  be  challenged  because  of  a  state 
of  mind  which  would  prevent  them  from 
acting  without  prejudice  to  the  substantial 
rights  of  the  challenging  party.  Section 
7399  provides  that  the  court  may  dismiss 
an  action  after  indictment,  and  section 
7401  declares  that  such  a  dismissal  shall 
not  bar  another  prosecution  for  the  same 
felony.  Section  7044  provides  that  the 
dismissal  of  a  charge  shall  not  prevent 
the  same  charge  from  being  submitted  to 
a  grand  jury  as  often  as  the  court  may 
direct.  Section  7101  provides  that,  if  a 
demurrer  to  an  indictment  is  allowed,  the 
judgment  is  a  bar  to  another  prosecution, 
unless  the  court  thinks  that  the  defect 
maj'  be  avoided  in  a  new  indictment,  and 
directs  a  resubmission  to  the  same  or  an- 
other grand  jury;  and  section  7024  limits 
evidence  receivable  by  the  grand  jury  to 
sworn  witnesses,  legal  documentary  evi- 
dence, and  depositions.  Defendant  was  in- 
dicted for  obtaining  money  under  false 
pretenses,  a  felony,  and  pleaded  not  guilty, 
and  thereafter  the  indictment  was  dis- 
missed, and  the  matter  resubmitted  to  the 
same  grand  jury,  who  reported  "No  bill." 
Subsequently  the  matter  was  again  resub- 
mitted to  the  same  grand  jury,  who  re- 
turned an  indictment  for  the  felony.  Held 
that,  as  a  reconsideration  of  the  charge 
or  the  evidence  would  be  necessary,  it 
could  not  be  resubmitted  to  the  same 
grand  jury,  which,  having  already  formed 
an  opinion  on  the  merits,  was  subject  to 
the  challenge  that  their  state  of  mind  pre- 
A'cnted  them  from  acting  impartially,  but 
that  the  resubmission  must  be  to  another 
grand  jury.  State  v.  Towers  (Nev.) 
1916D-269.  (Annotated.) 

Note. 

Eesubmission    of    cause    to   grand   jury. 
1916D-273. 

INDORSEE. 

Who  is,  see  Bills  and  Notes,  29. 
Rights  of,  see  Bills  and  Notes,  56. 

28 


ENDORSEMENT  IN  BLANK. 
Effect,  see  Bills  and  Notes,  1. 

INDORSEMENTS. 

See  BiUs  and  Notes  1,  2,  28,  30,  40;  Checks, 
5—14. 

INDUCEMENT. 

In  complaint  for  defamation,  see  label  and 
Slander,  84,  85,  87,  101,  107. 

INDUSTRIAL  INSURANCE. 
See  Insurance,  61. 

INEVITABLE  ACCIDENT. 
Confusion  by,  see  Confusion,  1,  4. 

INFANTS. 

1.  Liability  on  Contracts,  434, 

a.  In  General,  434. 

b.  Contracts  for  Necessaries,  434. 

c.  Disaffirmance,  434. 

(1)  Right  to  Disaffirm,  434. 

(2)  Time  of  Disaffirmance,  434. 

(3)  Effect  of  Disaffirmance,  435. 

d.  Ratification,  435. 

2.  Actions,  435. 

a.  Pleading,  435. 

b.  Guardian  ad  Litem,  435. 

c.  Evidence,  436. 

d.  Actions  for  Injury  to  Minor,  436. 

e.  Proceedings  in  Juvenile  Courts,  436. 

See  Adoption  of  Children;  Guardian  and 
Ward;  Parent  and  Child. 

Care  to  avoid  children,  see  Automobiles. 
17,  25,  45. 

Liability  of  carrier  to  boy  invited  to  ride, 
see  Carriers  of  Passengers,  27,  70. 

Custody  on  divorce  of  parents,  see  Divorce. 
58-61. 

Duty  toward  children,  overhead  wires,  see 
Electricity,  13. 

Injury  by  explosion,  see  Explosions  and 
Explosives,  1. 

Leasing  lands  of  minor  Indians,  see  In- 
dians, 1,  2. 

Sales  of  liquor  to  minors,  see  Intoxicating 
Liquors,  12. 

Vacation  of  judgment  affecting  infant,  see 
Judgments,  36. 

Rights  of  minor  servant  under  "V^'orkmen's 
Compensation  Act,  see  Master  and 
Servant,  189-192,  244. 

Parent's  right  to  release  minor,  see  Militia. 
1-3. 

Injury  on  dock,  see  Negligence,  6,  7. 

Injuries  by  attractive  nuisances,  see  Neg- 
ligence, 23-28. 

Contributory  negligence  of  infants,  see 
Negligence,  48-53. 

Ordinary  care  on  part  of  child,' see  Negli- 
gence, 51. 

Imputed  negligence  of  parent,  see  Negli- 
gence, 56,  57. 


434 


Negligence  of  clild  coasting  in  street,  see 

Negligence,  87. 
Liability  of  canal  company  for  drowning 

of  child,  see  NegUgence,  93. 
Stealing  ride,  see  Negligence,  123. 
Eelative  rights  of  parents,  see  Parent  and 

Child,  1.  ^    ^._ 

Parent's  contract  for  services  of  child,  see 

Parent  and  Child,  2. 
Parent's   action   for   loss   of  services,  see 

Parent  and  CMld,  3. 
Support  by  parent,  see  Parent  and  Child,  4. 
Emancipation,  see  Parent  and  CMld,  5. 
Contracts  between   parent   and   child,   see 

Parent  and  ChUd,  6-8. 
Infants  as  witnesses,  see  Witnesses,  6,  o. 

1.     LIABILITY  ON  CONTRACTS, 
a.    In  General. 

1.  An  infant  is  not  bound  by  a  contract 
made  for  him  or  in  his  name  by  another 
person  purporting  to  act  for  him,  unless 
such  person  has  been  duly  appointed  his 
guardian  or  next  friend  and  authorized  by 
the  court  to  act  and  bind  him;  but  the  per- 
son so  contracting  is  himself  bound.  Cain 
V,  Garner  (Ky.)   1918B-824.   (Annotated.) 

2.  Enforcement  of  Infant's  Contract  for 
Services.  Where  an  infant's  executory 
contract  with  plaintiff  for  personal  services 
as  a  jockey  was  unenforceable  against 
him,  an  injunction  restraining  him  from 
a  breach  of  its  covenants  by  working  for 
or  serving  any  person  except  the  plaintiff 
is  improperly  granted.  Cain  v.  Garner 
(Ky.)   1918B-824. 

3.  A  contract  whereby  a  father  under- 
took to  bind  his  infant  son  to  work  for 
plaintiff  as  a  stable  boy  and  race  rider  for 
a  term  of  three  years  for  a  fixed  compen- 
sation to  be  paid  to  the  father,  which  pur- 
ported to  be  the  act  of  the  infant  by  his 
parents,  and  was  signed  by  him  and  by 
his  father  and  the  plaintiff,  covenanting 
that  the  infant  would  not  leave  the  service 
of  plaintiff  and  would  faithfully  serve 
him,  but  under  which  the  plaintiff  was 
under  no  obligation  to  teach  the  infant  or 
to  develop  him  as  a  jockey,  is  a  contract 
for  his  personal  services,  and  not  an  in- 
denture of  apprenticeship,  under  the  laws 
of  Iowa,  where  the  contract  was  made. 
Cain  V.  Garner  (Ky.)  1918B-824. 

(Annotated.) 

4.  "When  Binding.  Attempted  contracts 
by  an  infant  are  incomplete  and  imperfect, 
and  do  not  become  binding  except  by  the 
act,  or  failure  to  act,  of  the  infant  after 
he  reaches  majority.  Matter  of  Farley 
(N.  Y.)  1916C-494. 

.5.  Voidable  or  Void.  Contracts  by  min- 
ors are  generally  not  void,  but  voidable 
only,  and  may  be  ratified  or  disaflirmed 
after  majority.  Hobbs  v.  Hinton  Foundry, 
etc.  Co.  (W.  Va.)  1917D-410. 


DIGEST. 

19160— 1918B. 

6.  Money  Loaned.  No  recovery  can  be 
had  at  law  or  in  equity  against  an  infant 
for  money  loaned,  though  the  loan  was 
procured  by  false  representations  of  the 
infant  as  to  his  age.  Leslie  v.  Sheill 
(Eng.)   1916C-992.  (Annotated.) 


Note. 
Infancy  as  defense  to  action  for  money 
loaned.     1916C-999. 


b.     Contracts  for  Necessaries. 

7.  Legal  Services  as  Necessaries.  A  pe- 
tition which  seeks  a  recovery  against  a 
minor  for  legal  services  rendered  in  re- 
gard to  his  estate  upon  an  express  contract, 
or  upon  a  quantum  meruit,  based  upon  a 
contract  made  in  a  foreign  state,  which 
does  not  plead  the  lex  loci  contractus  of 
the  contract,  showing  such  services  are 
classed  as  a  "necessary,"  does  not  state  a 
cause  of  action.  Marx  v.  Hefner  (Okla.) 
1917B-656. 

c.     Disafl5rmance. 
(1)     Right  to  Disaffirm. 

8.  Eight  to  Avoid  Contract — Contract 
for  Personal  Services.  Except  for  neces- 
saries, an  infant  may,  at  his  election,  avoid 
any  executory  contract  made  by  him  dur- 
ing infancy,  including  his  contract  for  the 
performance  of  labor  or  personal  services. 
Cain  V.  Garner  (Ky.)  1918B-824. 

(2)     Time  of  Disaffirmance. 

9.  The  retention,  for  three  months  after 
full  age,  of  possession  of  property  pur- 
chased by  an  infant,  his  enjoyment  of  the 
beneficial  use  thereof,  payment  of  part  of 
the  consideratipn  therefor,  and  his  offer 
for  sale  of  part  thereof  do  not  preclude 
right  to  disaffirm  or  authorize  the  infer- 
ence of  an  intention  to  ratify.  Hobbs  v. 
Hinton  Foundry,  etc.  Co.  (W.  Va.)  1917D- 
410.  (Annotated.) 

10.  An  infant's  contract,  wholly  con- 
summated by  him  before  or  after  full 
legal  age,  requires  more  prompt  action  and 
a  less  degree  of  confirmatory  conduct  than 
one  not  thus  performed.  Hobbs  v.  Hin- 
ton Foundry,  etc.  Co.  (W.  Va.)  1917D-410. 

(Annotated.) 

11.  While  much  depends  upon  the 
promptitude  with  which  acts  are  per- 
formed by  way  of  confirmation  or  disaffirm- 
ance after  attaining  full  age,  no  time  has 
been,  or  in  the  nature  of  things  can  be, 
definitely  fixed  as  alike  applicable  to  all 
cases.  Hobbs  v.  Hinton  Foundry,  etc.  Co. 
(W.  Va.)   1917D-410.  (Annotated.) 

Note. 
What  constitutes  reasonable  tinje  for  in- 
fant  to   disaffirm  contract  after  majority. 
1917D-413. 


INFANTS. 


435 


(3)     Effect  of  Disaffirmance. 

12.  Bight  to  Becover.  Sections  4014 
and  4015,  N.  Dak.  Rev.  Codes  1905,  permit 
a  minor  to  make  contracts  with  certain 
exceptions,  in  the  same  manner  as  an 
adult,  subject  to  his  power  of  disaffirm- 
ance, and  permit  him  to  disaffirm  contracts, 
except  for  necessaries,  and  statutory  con- 
tracts, either  before  his  majority  or  within 
one  year  thereafter,  when  the  contract  is 
made  while  he  is  under  the  age  of  18;  if 
made  when  over  the  age  of  18,  disaffirm- 
ance may  be  had  by  his  restoring  the  con- 
sideration or  paying  its  equivalent,  with 
interest.  Held,  that  a  minor  cannot  dis- 
affirm his  express  contract  when  partially 
performed  and  recover  in  an  action  based 
on  the  contract.  Held,  further,  that  an 
infant  having  elected  to  disaffirm  his  con- 
tract when  partially  performed,  the  dis- 
affirmance relates  back  to  the  inception  of 
the  contract,  and  the  contract  is  totally 
destroyed  and  the  parties  left  to  their  legal 
rights  and  remedies  the  same  as  though 
there  had  never  been  any  contract. 
Yancey  v.  Boyee  (N.  Dak.)  1916E-258. 

(Annotated.) 

13.  Plaintiff,  a  minor,  made  a  contract 
to  work  for  defendant,  a  farmer,  during 
the  season  of  1912,  and  at  the  end  of  the 
season  he  was  to  be  paid  $30  per  month  for 
his  services.  He  disaffirmed  this  contract 
and  left  defendant's'  employ  in  August, 
and  subsequently  sued  upon  the  contract  to 
recover  wages  for  the  time  he  worked. 
It  is  held  that  the  action  cannot  be  main- 
tained, and  that  the  question  of  defend- 
ant's rights  to  recoup  or  offset  damages 
sustained  by  the  breach  of  the  contract  is 
therefore  eliminated  from  the  case.  Yan- 
cey v.  Boyce  (N.  Dak.)  1916E-258. 

(Annotated.) 

14.  Discharge  of  Security.  A  disaffirm- 
ance after  full  age  of  a  contract  made 
while  an  infant,  and  a  return,  or  offer  to 
return,  to  the  vendor  of  the  property  pur- 
chased, will  effect  the  discharge  of  a  trust 
lien  given  to  secure  payment  of  the  con- 
sideration, and  to  acquit  both  principal  and 
surety  therefrom.  Hobbs  v.  Hinton  Foun- 
dry, etc.  Co.  (W.  Va.)  1917D-410. 

Note. 
Right  of  infant  who  repudiates  contract 
for  services  to  recover  therefor.     1916E- 
261. 

d.     Ratification. 

15.  Whether  he  acts  within  a  reasonable 
time  after  full  age,  and  what  acts  consti- 
tute a  ratification,  are  ordinarily  questions 
of  fact.  Hobbs  v.  Hinton  Foundry,  etc. 
Co.  (W.  Va.)  1917D-410. 

16.  To  effectuate  a  ratification,  however, 
the  acts  must  be  inconsistent  with  any 
other  purpose,  as  where,  after  attaining  his 
majority,  he  retains  and  for  an  unreason- 


able length  of  time  enjoys  the  beneficial 
use  of  property  purchased  while  a  minor, 
or  exercises  such  acts  of  ownership  over 
it  as  clearly  evince  a  purpose  to  ratify. 
Hobbs  v.  Hinton  Foundry,  etc.  Co. 
(W.  Y&.)   1917D-410. 

17.  What  Constitutes.  While  ratification 
is  generally  a  question  of  intention,  the 
purpose  to  ratify  need  not  be  expressly 
declared.  Such  purpose  may  be,  and  ordi- 
narily is,  inferred  from  the  free  and  vol- 
untary acts  of  the  party  to  be  charged, 
although  he  may  not  have  in  mind  any 
definite  intent  or  purpose  to  ratify.  Hobbs 
V,  Hinton  Foundry,  etc.  Co.  {W.  Va.) 
1917D-410. 

2.     ACTIONS, 
a.     Pleading. 

18.  Expenditures  for  Nurture.  A  peti- 
tion, in  an  action  on  a  contract  binding 
plaintiff  to  rear  and  maintain  defendant's 
child  during  the  minority  of  the  child, 
which  alleges  that  plaintiff  provided  the 
child  with  a  home,  maintained,  clothed, 
and  educated  him,  nursed  and  cared  for 
him  in  sickness,  and  in  that  way  expended 
the  amount  demanded,  states  a  cause  of  ac- 
tion as  against  the  objection  that  it  does 
not  allege  that  the  expenses  incurred  were 
necessaries.  Myers  v.  Saltry  (Ky.)  1916E- 
1134. 

,  b.     Guardian  Ad  Litem. 

19.  Appointoient  of  Guardian  Ad  Utem 
— ^Effect.  Where  a  guardian  ad  litem  for 
an  infant  party  to  an  action  has  been 
duly  appointed,  the  infant  is  properly  in 
court  for  all  purposes.  Burke  v.  Northern 
Pacific  R.  Co.  (Wash.)   1917B-919. 

20.  Order  of  Appointment.  In  an  action 
for  the  death  of  a  street  car  passenger, 
it  is  not  error  for  the  court  to  admit  the 
order  appointing  a  guardian  ad  litem  on 
the  fact  of  appointment  but  not  on  the 
truth  of  the  matter  alleged  in  the  petition. 
Froeming  v.  Stockton  Electric  R.  Co.  (Cal.) 
1918B-408. 

21.  Allegation  of  Appointment.  In  an 
action  for  wrongful  death  of  a  street  car 
passenger  by  the  guardian  ad  litem  of 
minors,  an  allegation  that  the  guardian 
was  appointed  guardian  ad  litem  and  was 
authorized  to  commence  and  prosecute  the 
action,  and  that  he  accepted  the  appoint- 
ment, though  inartistic,  was  not  bad  as 
pleading  a  conclusion.  Froeming  v.  Stock- 
ton Electric  R.  Co.  (Cal.)  1918B-408. 

22.  Necessity  for  Guardian.  Neither  un- 
der an  action  upon  an  express  contract, 
nor  upon  a  quantum  meruit,  can  a  recovery 
be  had  against  a  minor  in  an  action  at 
law  for  an  attorney's  fee  for  legal  services 
rendered  in  behalf  of  a  minor  in  relation 
to  his  property,  without  the  intervention 
of    a    legal    guardian,    as    such    legal    ser- 


436 


DIGEST. 


19160- 
Tices  cannot  be  classed  as  a  "necessary," 
under  the   meaning  of  section  886,   Okla. 
Rev.  Laws  1910.     Marx  T.  Hefner  (Okla.) 
1917B-656. 

c.     Eridenc*. 

23.  Burden  of  Proof.  Where  an  Indian 
allottee  brings  an  action  to  cancel  certain 
deeds  and  mortgages  afifecting  his  allot- 
ment, on  the  ground  that  he  was  an  infant 
when  the  same  were  executed,  he  thereby 
assumes  the  burden  of  proof  in  establish- 
ing the  fact  of  his  infancy.  Freeman  t. 
First  National  Bank  (Okla.)  1918A-259. 


d.     Actions  for  Injury  to  Minor. 

24.  Under  Wis.  St.  1915,  §  1728a,  subd. 
1,  forbidding  the  employment  of  children 
between  fourteen  and  sixteen  in  any  fac- 
tory, etc.,  without  first  obtaining  the  per- 
mit therein  specified,  the  violation  of  which 
is  made  by  section  1728h  a  misdemeanor 
punishable  by  fine  and  imprisonment,  plain- 
tifif,  under  sixteen,  who  misrepresented  his 
age  to  defendant's  foreman  when  he  was 
employed,  is  not  thereby  estopped  from 
recovering  damages  for  the  injury  in  such 
employment,  as  the  statute  is  declaratory 
of  a  public  policy,  and  is  aimed  at  the 
master  and  not  at  the  servant.  Stetz  v. 
F.  Maver  Boot,  etc.  Co.  (Wis.)  1918B- 
675. 

25.  Defenses.  Under  Wis.  St.  1915, 
§  1728a,  subd.  1,  prohibiting  the  employ- 
ment of  any  child  between  the  ages  of 
fourteen  and  sixteen  at  work  in  any  fac- 
tory, etc.,  without  first  obtaining  the  writ- 
ten permit  therein  specified,  and  section 
1827h,  declaring  that  any  employer  includ- 
ing a  corporation  violating  section  1728a, 
subd.  1,  shall  be  guilty  of  a  misdemeanor 
and  liable  to  fine  or  imprisonment,  an  em- 
ployer of  a  child  having  no  permit  cannot 
defend  on  the  ground  that  its  foreman  was 
reasonably  justified  under  all  the  facts  in 
relying  on  his  representation  that  he  was 
more  than  sixteen  years  of  age;  since  the 
employer's  violation  of  the  statute  consti- 
tutes a  criminal  offense,  classed  with  gross 
negligence,  and  makes  him  liable  in  a  civil 
action  for  injury  resulting  from  such  vio- 
lation of  law.  Stetz  v.  F.  Mayer  Boot,  etc. 
Co.   (Wis.)   1918B-675. 

e.    Proceedings  in  Juvenile  Courts. 

26.  Employment  Forbidden.  Under  the 
Wash.  Juvenile  Court  Law  (Laws  1913, 
p.  520),  a  girl  of  17  cannot  sing  in  a  caf6 
where  intoxicants  are  sold,  even  though  she 
gains  her  livelihood  in  that  manner,  and 
notwithstanding  it  is  elsewhere  provided 
in  the  act  that  children  under  the  age  of 
12  shall  not  participate  in  any  entertain- 
ment for  hire.  In  re  Lundy  (Wash.) 
1916E-1007.  (Annotated.) 


-1918B. 

27.  Procedure  Approved.  In  the  charge, 
apprehension,  investigation  and  order  in- 
volved herein,  the  child  was  not  denied 
any  of  her  constitutional  rights.  In  Re 
Turner  (Kan.)  1916E-1022.      (Annotated.) 

28.  Verification  of  Complaint.  A  girl 
15  years  old  found  by  the  probate  judge, 
sitting  as  the  juvenile  court,  to  be  delin- 
quent and  incorrigible,  to  associate  know- 
ingly with  immoral  persons,  to  be  growing 
up  in  idleness  and  crime,  and  viojating 
the  city  ordinances  by  remaining  out  until 
late  hours  at  night,  was  ordered  committod 
to  the  Industrial  School  for  Girls  at  Beloit. 
Her  parents  appeared  without  service  of 
process  on  them,  but  the  child  was  taken 
into  custody  by  the  probation  oflScer  upon 
a  warrant  based  upon  a  complaint  verified 
on  information  and  belief.  A  hearing  fol- 
lowed, and  the  testimony  abundantly  sup- 
ported the  findings  of  the  court.  Held, 
that  such  child  is  not  entitled  to  a  writ 
of  habeas  corpus  because  of  failure  to 
verify  the  complaint  positively.  In  re 
Turner  (Kan.)  1916E-1022.     (Annotated.) 

29.  Proceedings  not  Criminal.  By  ex- 
press declaration  of  the  statute  in  ques- 
tion, and  by  the  settled  decisions  applica- 
ble to  similar  enactments,  all  such  pro- 
ceedings, orders  and  judgments  are  deemed 
to  have  been  taken  and  done  in  the  ex- 
ercise of  the  state's  parental  power,  and 
neither  the  stigma  nor  the  penalty  for 
crime  can  be  held  to  accompany  such  pro- 
ceedings or  order.  In  re  Turner  (Kan.) 
1916E-1022.  (Annotated.) 

30.  Vacating  Commitment.  A  juvenile 
court  has  no  power  to  vacate  a  commit- 
ment after  the  expiration  of  the  term  at 
which  it  is  entered.  Board  of  Children's 
Guardians  v.  Juvenile  Ct.  (D.  C.)  1916E- 
1019.  (Annotated.) 

31.  Purpose  of  Statute.  The  Kan. 
juvenile  court  act  (Gen.  St.  1909,  §§  50.99- 
5113)  has  for  its  object,  not  the  punish- 
ment of  juvenile  offenders  for  misconduct, 
criminal  or  otherwise,  but  their  removal 
from  the  path  of  temptation  and  their  di- 
rection into  the  paths  of  rectitude  by  pre- 
ventive and  corrective  means.  In  re 
Turner  (Kan.)  1916E-1022.     (Annotated.) 

32.  The  act  is  an  assertion  of  the  state's 
power  as  parens  patriae  and  its  right  to 
exercise  proper  parental  control  over  those 
of  its  minor  citizens  who  are  disposed  to 
go  wrong.  In  re  Turner  (Kan.)  1916E- 
1022.  (Annotated.) 

33.  Order  for  Probation.  Under  the 
Utah  juvenile  delinquent  statute  providing 
that  the  juvenile  court  may  order  that 
the  juvenile  be  committed  to  the  State  In- 
dustrial School,  that  the  court  may  com- 
mit a  juvenile  to  the  care  of  a  probation 
oflScer,  subject  to  return  to  court  for  fur- 
ther proceedings,   or   may   dispose   of   the 


INFECTIOUS  DISEASES— INITIATIVE  AND  EEFERENDUM.    437 


matter  in  any  way  deemed  for  the  best 
interests  of  the  delinquent,  the  act  of  the 
juvenile  court  in  making  an  order  of  com- 
mitment upon  the  first  hearing,  and  then 
conditionally  suspending  it  by  an  order 
of  probation,  and,  after  violation  of  the 
conditions  of  probation,  ordering  that  she 
be  committed,  while  somewhat  irregular,  is 
not  void.  Stocker  v.  Gowans  (Utan) 
1916E-1025.  (Annotated.) 

34.  Notice  to  Parent.  Where  the  juve- 
nile court,  after  notice  of  proceedings  to 
the  mother  of  a  delinquent,  and  a  finding 
of  her  unfitness,  which  was  not  disputed 
or  appealed  from,  made  an  order  of  com- 
mitment, and  suspended  it  by  an  order  of 
probation,  and  having  control  of  the  de- 
linquent and  authority  to  modify  its  orders, 
it  may  on  a  showing  of  the  delinquent's 
violation  of  the  probation  conditions  order 
her  commitment  without  further  notice  to 
the  mother.  Stoker  v.  Gowans  (Utah) 
1916E-1025.  (Annotated.) 

35.  Eevlew  of  Proceedings.  Under  the 
Utah  juvenile  statute,  as  amended  and  re- 
enacted  by  Laws  1913,  c.  54,  giving  the 
juvenile  court  jurisdiction  over  delinquents 
under  the  age  of  18,  and  making  its  judg- 
ments operative  until  the  delinquent 
reaches  the  age  of  21  years,  and  providing 
that  all  orders  of  the  court  shall  be  under 
its  control  until  the  delinquent  reaches 
such  age,  the  delinquent  or  any  one  in 
her  behalf  may  apply  for  a  modification 
of  the  judgment,  and  determination  of  the 
right  of  her  custody  with  a  right  of  ap- 
peal as  provided  in  section  11,  so  that  the 
rights  of  delinquents  may  be  enforced 
without  recourse  to  habeas  corpus  proceed- 
ings. Stoker  v.  Gowans  (Utah)  1916E- 
1025.  (Annotated.) 

38.  Married  Infants.  The  operation  of 
the  law  governing  juvenile  delinquents  is 
not  suspended  merely  because  a  delinquent 
enters  into  the  marriage  relation.  Stoker 
V.  Gowans  (Utah)  1916E-1025. 

(Annotated.) 

37.  Purpose  and  Construction  of  Law. 
The  Wash.  Juvenile  Court  Law  (Laws 
1913,  p.  520),  declaring  that  certain  minor 
children  shall  be  considered  delinquents 
and  wards  of  the  state,  should  be  given  a 
liberal  construction,  so  as  to  give  effect 
to  the  beneficent  purpose  of  the  law,  ex- 
cept in  80  far  as  it  purports  to  restrain  the 
liberty  of  infants,  in  which  case  it  should 
be  construed  with  all  the  strictness  of  a 
criminal  statute.  In  re  Lundy  (Wash.) 
1916E-1007.  (Annotated.) 

38.  Married  Infajit.  The  Wash.  Juve- 
nile Court  Law  (Laws  1913,  p.  520),  de- 
claring that  the  law  shall  apply  to  all 
minor  children  under  the  age  of  18  who 
are  delinquent  or  dependent,  and  that  the 
words  "dependent  children"  shall  mean 
uny  child  under  the  age  of  18  who  habitu- 
ally visits  any  pool  room,  saloon,  or  place 


where  intoxicating  liquors  are  sold,  etc., 
applies  to  a  girl  of  17  who  bad  previously 
been  married  to  a  man  of  full  age,  though 
the  marriage  had  been  annulled.  In  re 
Lundy  (Wash.)    1916E-1007. 

(Annotated.) 
Notes. 

Juvenile   Courts.     1916E-1010. 

"Child"  as  including  illegitimate  child. 
1918B-249. 


INFECTIOUS  DISEASES. 
See  Diseases. 

INFEINGEMENT. 

of  trade  names,  see  Trademarks  and  Trade- 
names, 3-7. 

INHEEIT. 
Meaning,  see  Tenants  in  Common,  2. 

INHEEITANCEi. 

Nature  of  right  to  take  by,  see  Descent 
and  Distribution,   2. 

INHERITANCE  TAXES. 
See  Taxation,  28,  171-179. 


See  Names. 


INITIALS. 


INITIATIVE   AND   EEFERENDUM. 

See  Intoxicating  Liquors,  14. 

1.  Scope  of  Power.  Since  by  the  bill  of 
rights  all  political  power  is  vested  in  and 
derived  from  the  people,  and  by  Miss. 
Const.  1890,  §  33,  as  amended,  a  part  of 
the  legislative  power  is  conferred  upon 
the  legislature,  the  remainder  being  re- 
served to  the  people,  and  by  Const.  1890, 
§  273,  the  legislature  has  a  limited  power 
to  amend  the  constitution  (Laws  Miss. 
1916,  c.  159)  as  to  initiative  and  referen- 
dum gives  no  new  power  to  the  people  and 
is  valid.  State  v.  Brantley  (Miss.)  1917E- 
723.  (Annotated.) 

2.  Emergency  Laws.  The  provision  in 
section  2  of  chapter  237,  N.  Dak.  Laws 
1915  (commonly  known  as  the  State  Board 
of  Regents  Act),  empowering  the  governor 
to  nominate  and  the  Senate  to  confirm 
nominations  for  the  offices  of  members  of 
the  state  board  of  regents  during  the  same 
session  of  the  legislature  at  which  the 
act  creating  the  offices  was  enacted,  does 
not  conflict  with  or  contravene  the  initia- 
tive and  referendum  amendment  to  sec- 
tion 25  of  the  state  constitution.  State  r. 
Crawford  (N.  Dak.)  1917E-955. 

(Annotated.) 

3.  Grant  of  Power  to  Municipality.  The 
Minn,  constitutional  requirement  that  the 


438 


DIGEST. 

1916C— 1918B. 


charter  shall  provid*  a  legislative  body 
for  the  city  is  not  violated  by  conferring 
the  power  of  the  initiative  and  referendum 
upon  the  electors  of  the  city  after  estab- 
lishing such  legislative  body.  State  v. 
Duluth    (Minn.)    1918A-683. 

4.  Legislative  Power.  The  amendment 
of  Ore.  Const,  art.  4,  §  1,  declaring  that 
the  legislative  authority  shall  be  vested  in 
a  legislative  assembly,  that  the  people  re- 
serve to  themselves  the  power  to  propose 
laws  and  amendments  to  the  constitution 
and  t©  enact  or  reject  the  same,  and  also 
reserve  the  power  to  approve  or  reject  any 
acts  of  the  legislative  assembly,  does  not 
lessen  the  powers  of  the  legislature  in  mat- 
ters of  legislation  only,  but  the  legislature 
is  not  the  exclusive  agent  of  legislation, 
and  such  power  is  conferred  on  the  people 
by  article  11,  §  1,  and  article  4,  §  la,  re- 
serving to  the  people  the  initiative  and 
referendum.  Kalich  v.  Knapp  (Ore.) 
1916E-1051. 

5.  Form  of  Submission.  The  mere  fact 
that  separate  powers  of  initiative  and 
referendum  might  have  been  submitted 
upon  separate  ballots  is  not  determinative 
of  the  question  whether  submission  of  both 
projects  on  one  ballot  violated  Miss.  Const. 
1890,  §  273,  as  to  plurality  of  objects. 
State   V.  Brantley    (Misa.)    1917E-723. 

(Annotated.) 

6.  Submission  on  one  ballot  of  the  three 
powers  of  initiative  and  referendum  as 
applied  to  statutes,  and  initiative  as  ap- 
plied to  constitutional  amendments,  being 
for  the  one  general  purpose  of  providing 
more  direct  control  of  legislation,  does  not 
violate  Miss.  Const.  1890,  §  273,  providing 
that,  if  more  than  one  amendment  shall 
be  submitted  at  one  time,  they  shall  be 
submitted  in  such  manner  and  form  that 
the  people  may  vote  for  or  against  each 
amendment  separately.  State  v.  Brantley 
(Miss.)   1917E-723.  (Annotated.) 

7.  Presumption  as  to  Vote.  In  the  ab- 
sence of  correct  certification  of  the  num- 
ber of  electors  votiig  upon  a  constitu- 
tional amendment  submitted  at  a  general 
election,  the  court  must  presume  that  the 
highest  number  of  votes  cast  for  candi- 
dates for  any  one  office  represented  the 
number  of  electors  voting,  so  that  a  vote 
for  the  amendment  to  the  constitution 
(Laws  Miss.  1916,  c.  159)  providing  for 
the  initiative  and  referendum  was  adopted 
where  the  vote  therefor  was  19.118  and 
the  highest  vote  cast  for  anv  office  was 
37.583.  State  v.  Brantlev  (M"iss.)  1917E- 
723. 

8.  Procedure.  Wash.  Const.  Amend.  7, 
approved  March  10,  1911  (Laws  1911, 
p.  136)  requires  the  legislature  to  provide 
methods  of  publicity  of  all  laws  and 
amendments  to  the  eonstitution  referred 
to  the  people  so  that  each  voter  of  the 
state  shall  receive  the  publication  at  least 


50  days  before  the  election,  and  that  any 
initiative  measure  shall  become  a  law  if 
approved  by  a  majority  of  the  votes  cast 
thereon.  Laws  1913,  p.  418,  enacted  pursu- 
ant thereto,  provides  by  section  29  that 
not  less  than  55  days  before  any  election 
on  initiative  measures  the  secretary  of 
state  shall  mail  each  voter  a  copy  of  the 
pamphlet  containing  the  measure,  and  bj' 
section  30  that  votes  thereon  shall  be  can- 
vassed by  the  regular  election  officers,  and 
that  within  30  days  after  election  the 
secretary  of  state  shall  canvass  the  vote 
and  certify  the  result  to  the  governor, 
who  shall  proclaim  measures  approved  by 
a  majority  equal  to  one-third  of  the  total 
vote  cast  to  be  the  law  of  the  state.  In  an 
action  to  enjoin  the  governor  and  state 
and  county  officers  from  enforcing  initia- 
tive measure  No.  3  (Laws  1915,  p.  2),  pro- 
hibiting the  manufacture,  keeping,  sale, 
and  disposition  of  intoxicating  liquors,  it 
was  contended  that  the  measure  had  not 
been  lawfully  submitted  or  voted  upon. 
It  is  held  in  the  absence  of  constitutional 
or  statutory  provisions  for  preserving  any 
official  record  evidence  or  facts  showing 
sufficiency  of  publication  that,  while  the 
court  judicially  knew  that  the  measure 
was  submitted  by  the  general  election, 
that  a  majority  of  votes  were  for  its  adop- 
tion, that  the  governor  had  proclaimed 
the  result  of  the  canvass,  and  declared  it 
a  law,  it  could  not  judicially  know  any 
facts  touching  the  sufficiency  of  the  publi- 
cation and  hence  could  not  determine  its 
sufficiency.  Gottstein  v.  Lister  (Wash.) 
1917D-1008, 

INJUNCTIONa 

1.  Nature  and  Grounds  of  Relief,  439. 

a.  In   General,  439. 

2.  Subjects  of  Relief,  439. 

a.  Property    and    Rights    of   Property 

Generally,  439. 

b.  Personal  Rights,  439, 

c.  Contracts,  439. 

d.  Municipalities   and  Public  Officers, 

440. 

(1)  Restraining    Passage    or    En- 

forcement    of     Statute     or 
Ordinance,  440. 

(2)  Restraining        Payment        of 

Moneys      Unconstitutionally 
Appropriated,  441. 

(3)  Restraining  Discretionary 

Acts,   441. 

e.  Civil  Actions  and  proceedings,  441. 

f.  Restraining        Acts        Constituting 

Nuisance  as  Crime,  441. 

g.  Restraining     Labor     Combinations, 

442. 
h.  Restraining    Criminal    Prosecution, 

442. 
i.  Restraining  Criminal  Act,  442. 

3.  .\ctions   for  Injunctions,  442. 

a.  Bill,  442. 

b.  Temporary  Restraining  Order,  442. 


INJUNCTIONS. 


439 


4.  Temporary  Injunction,  442, 

a.  In  General,  442. 

b.  Modification  or  Suspension,  442. 
5    Injunction   Bond,   443. 

See  Nuisances,  10-13. 

To  prevent  violation  of  building  ordinance, 
see  Buildings,  6-8, 

To  restrain  fixing  rates,  see  Carriers,  5-11. 

Bight  of  street  railway  to  enjoin  jitneys, 
see  Carriers  of  Passengers,  86. 

To  abate  cemetery  as  nuisance,  see  Ceme- 
teries, 1-3. 

Stockholder's  action  to  prevent  illegal  act, 
see  Corporations,  46. 

Estoppel  to  prevent  railroad  construction, 
see  Ejectment,  2. 

Protection  of  appropriation  rights,  see 
Irrigation,  9,  10. 

Dissolution  as  res  adjudicata,  see  Judg- 
ments, 62. 

Injunction  to  prevent  organization,  see 
Labor  Combinations,  11. 

Abatement  of  nuisance,  see  Laches,  2. 

To  prevent  foreclosure  sale,  se«  Mortgages 
and  Deeds  of  Trust,  32, 

Agains^  officers  of  union,  see  Parties  to 
Actions,  7-9. 

Suit  to  prevent  dispossession,  see  Parties 
to  Actions,  10. 

Enjoining  chiropractor,  see  Physicians  and 
Surgeons,  2. 

Using  mails  to  defraud,  see  Post  Office,  3. 

Prohibition  against  unwarranted  injunc- 
tion, see  Prohibition,  4. 

Prohibition  against  further  order,  see  Pro- 
hibition, 3. 

To  restrain  order  of  railroad  commission, 
see  Bailroads,  45-47. 

To  stay  execution  of  insane  capital  con- 
vict, see  Sentence  and  Punishment,  12. 

To  restrain  use  of  name,  emblems,  insignia 
of  fraternity,  see  Societies  and  Clubs, 
3,  4. 

Taxpayer's  suit  to  restrain  expenditures, 
see  States,  7. 

As  remedy  for  erroneous  assessment  or 
taxation,  see  Taxation,  90-100. 

To  restrain  special  assessment,  see  Taxa- 
tion, 144. 

Taxpayer's  action  to  restrain  city  from 
engaging  in  business,  see  Taxation, 
201. 

To  prevent  use  of  tradename,  see  Trade- 
marks and  Tradenames,  1,  3,  7. 

To  restrain  diversion  of  subterranean 
waters,  see  Waters  and  Watercourses, 
17-23. 

To  restrain  damage  by  floating  logs,  see 
Waters  and  Watercourses,  25. 

1,     NATUEE   AND    GROUNDS    OP    RE- 
LIEF. 

a.     In    General. 

1.  Apprehension  of  Injury.  An  injunc- 
tion should  not  be  issued  upon  the  mere 
apprehension  of  the  complainant  that  some 


illegal  act  would  be  done.  O'Rear  t,  Sar- 
tain  (Ala.)  1918B-593. 

2.  Statute  Regulating  Procedure.  Cal. 
Code  Civ,  Proc,  §§  525-533,  defining  the 
power  of  a  superior  court  as  to  granting, 
refusing,  modifying,  and  dissolving  tem- 
porary injunctions,  are  not  invalid  as  en- 
croaching upon  the  original  jurisdiction  of 
the  court  in  equity  cases  granted  by  the 
constitution  of  1879,  United  Bailroads  v, 
Superior  Court  (Cal,)  1916E-199. 

2.'   SUBJECTS  OF  BELIEF. 

a.     Property  and  Bights  of  Property  Gen- 
erally. 

3.  Unlawful  Carriage  of  Passengers  by 
Jitney.  Where  the  plaintiff  street  rail- 
way company  has  a  franchise  from  the 
city,  its  franchise  is  a  property  right, 
under  which  it  can  restrain  any  person 
from  becoming  a  common  carrier  of  pas- 
sengers in  competition  with  it  without 
legislative  or  municipal  authority,  and  for 
tnat  purpose  its  franchise  is  exclusive 
against  all  persons  upon  which  similar 
rights  have  not  been  conferred.  Memphis 
St.  B.  Co,  V.  Bapid  Transit  Co.  (Tenn.) 
1917C-1045.  (Annotated.)' 

4.  Against  Trespass.  The  grantee  of  the 
successful  plaintiff  in  ejectment,  in  posses- 
sion thereunder,  is  entitled  to  an  injunc- 
tion against  one  committing  trespass  upon 
the  realty  whose  sole  claim  of  title  is 
under  the  unsuccessful  defendant  in  eject- 
ment. Williams  v.  Bichardson  (Fla.) 
1916D-245. 

5.  In  a  suit  to  enjoin  the  closing  of  a 
right  of  way  acquired  by  prescription. 
The  petition  sufficiently  set  forth  a  cause 
of  action,  and  it  was  error  to  dismiss  it 
on  general  demurrer.  Carlton  v.  Sea- 
board Air-Line  By,  (Ga.)   1917A-497, 

6.  Against  Creation  of  Cloud  on  Titie. 

Equity  will  enjoin  execution  of  a  deed 
which  it  would  cancel  if  executed.  May- 
nard  v.  Henderson  (Ark.)   1917A-1157. 

7.  Interference  with  Easement.  Upon 
proper  application,  a  court  of  equity  will 
enjoin  interference  with  an  owner's  ease- 
ment when  the  injury  complained  of  is  ir- 
reparable, the  intermeddling  continuous,  or 
the  remedy  at  law  for  damages  inadequate. 
Nicholas  V,  Title,  etc.  Co.  (Ore.)  1917A- 
1149. 

b.     Personal    Bights. 

8.  Against  Publication  of  False  Political 
Matter.  The  publication  of  political  mat- 
ter in  a  newspaper  cannot  be  enjoined 
merely  because  it  is  false  or  misleading, 
such  relief  being  forbidden  by  the  follow- 
ing constitutional  provisions:  "Every  per- 
son may  freely  speak,  write  and  publish  on 
all  subjectp.  beinjj  responsible  for  the 
abuse  of  that  liberty;  and  in  all  trials  for 


440 


DIGEST. 

19ieC— 1918B. 


libel,  both  ciril  and  criminal,  the  truth 
when  published  with  good  motires,  and 
for  justifiable  ends,  shall  be  a  sufficient 
defense."  Neb.  Const,  art.  1,  §  5.  Howell 
V.  Bee  Publishing  Co.    (Neb.)    1917D-655. 

(Annotated.) 

9.  Against  Publication  of  Libel.  Where 
no  breach  of  trust  or  of  a  contract  ap- 
pears, a  bill  in  equity  will  not  lie  to  en- 
join the  publication  of  libelous  statements 
injurious  to  plaintiff;  his  remedy  being  an 
action  at  law  for  damages.  Finnish 
Temperance  Soc.  \.  Biavaja  Pub.  Co. 
(Mass.)  1916D-1087.  (Annotated.) 

Note. 
Injunction  against  publication  of  or  to 
compel  retraction  of  libel.     1916I>-1088. 

c.     Contracts. 

10.  Breach  of  Contract.  Equity  will  re- 
strain a  breach  of  an  express  covenant 
where  injury  arising  from  a  breach  cannot 
be  adequately  compensated.  Marvel  v. 
Jonah  (N.  J.)   1916C-185. 

11.  Covenant  Against  Engaging  in  Com- 
peting Business.  A  stipulation,  in  a  firm 
agreement  between  plaintiff  and  defend- 
ant for  the  general  practice  of  medicine 
Ki  Atlantic  City,  that  defendant  will  not 
practice  medicine  in  the  city  for  three 
years  after  the  termination  of  the  firm, 
is  enforceable  in  equity  at  the  suit  of 
plaintiff  who  had  built  up  so  large  a  prac- 
tice in  the  city  as  to  be  unable  to  talce 
care  of  it  without  assistance,  as  against 
the  objection  that  equitable  relief  will 
deprive  defendant  of  the  privilege  of  prac- 
ticing in  the  only  field  of  his  acquain- 
tance; the  practice  of  the  firm  not  being 
confined  to  Atlantic  City,  but  embracing 
adjacent  boroughs.  Marvel  v.  Jonah  (N. 
J.)   1916C-185.  (Annotated.) 

12.  Contract  of  Employment.  Contracts 
for  the  services  of  artists  of  special  merit 
are  personal  and  peculiar,  and,  when  they 
contain  negative  covenants  which  are  es- 
sential parts  of  the  agreement  that  the 
artist  will  not  perform  elsewhere,  and  the 
damages  in  case  of  violation  are  incapable 
of  definite  measurement,  they  are  such 
contracts  as  ought  to  be  specifically  en- 
forced, and  a  violation  of  the  covenants 
will  be  restrained  by  injunction.  Cain  v. 
Garner  (Ky.)   1918B-824. 

Note. 
Injunction  as  remedy  for  breach  of  ex- 
press covenant  not  to  engage  in  same  busi- 
ness as  covenantee.     1916C-187. 

d.     Municipalities  and  Public  Officers. 

(1)     Restraining  Passage  or  Enforcement 
of  Statute  or  Ordinance. 

13.  Enjoining  Criminal  Prosecution. 
While  equity  will  not  ordinarily  enjoin  a 


criminal  prosecution  (Georgia  Railway  & 
Electric  Co.  v.  Oakland  City,  129  6a.  576, 
59  S.  E.  296)  yet,  where  repeated  prosecu- 
tions are  threatened  under  a  void  munici- 
pal ordinance,  and  the  effect  of  such  prose- 
cutions would  tend  to  injure  or  destroy  the 
property  of  the  person  prosecuted  or  de- 
prive him  of  the  legitimatp  enjoyment 
of  his  property,  equity  will  entertain  a 
suit  to  inquire  into  the  validity  of  the  or- 
dinance, and  enjoin  its  enforcement. 
Carey  v.  Atlanta  (Ga.)  1916E-11.51. 

14.  Preventing  Criminal  Prosecution. 
Where  prosecution  under  a  void  rejpalation 
relating  to  a  misdemeanor  is  threatened, 
and  the  attempted  enforcement  of  the  reg- 
ulation will  deprive  plaintiff  of  a  valuable 
property  right,  he  may  sue  to  enjoin  the 
prosecution.  Ideal  Tea  Co.  v.  Salem 
(Ore.)   1917D-684. 

15.  Against  Enforcement  of  Penal  Stat- 
ute. The  owner  of  a  teachers'  agency  who 
was  threatened  with  procecution  under  the 
Wash.  Employment  Agency  Law,  and 
whose  business  would  be  greatly  injured 
or  destroyed  in  case  of  arrest  and  prosecu- 
tion, could,  where  it  appeared  that  he 
misrLt  come  within  the  purview  of  the  law, 
obtain  an  injunction  against  prosocution, 
and  in  that  way  secure  a  construction  of 
the  act  and  test  its  constitutionality,  not 
being  bound  to  wait  until  criminal  prose- 
cution, under  the  law  prohibiting  the 
charging  of  fees  for  obtaining  employment 
had  ruined  his  business.  Huntworth  t. 
Tanner  (Wash.)   1917D-676. 

16.  Against  Criminal  Prosecution.  While 
as  a  general  rule  a  court  of  equity  (or  one 
exercising  equitable  jurisdiction)  will  not 
enjoin  a  proceeding  before  a  recorder  of 
a  city,  instituted  for  the  purpose  of  pun- 
ishing the  violation  of  a  penal  ordinance, 
yet  in  certain  cases  a  court  having  equi- 
table jurisdiction  may  intervene  to  pro- 
tect property  or  property  rights  from  irre- 
parable damage  by  wrongful  conduct  of 
municipal  officers,  although  repeated  prose- 
cutions in  the  recorder's  court,  or  threats 
thereof,  may  be  used  as  a  means  of  con- 
summating the  wrong.  Cutsinger  v.  At- 
lanta (Ga.)  1916C-280. 

17.  Restraining  Prosecution  Under  In- 
valid Statute.  Equity  has  jurisdiction  to 
restrain  the  criminal  prosecution  of  an  em- 
ployer under  the  Arizona  anti-alien  labor 
law  of  December  14,  1914,  at  the  instance 
of  an  alien  employee  who  alleges  tHat  the 
act  violates  the  federal  constitution  and 
that  its  enforcement  will  result  in  his  im- 
mediate discharge  from  employment,  al- 
though such  employment  may  be  one  at 
will,  rather  than  for  a  term.  Truax  v. 
Raich  (U.  S.)   1917B-283. 

18.  Federal  Injunction  Against  Enforce- 
ment ©f  State  Penal  Statute.  The  threat- 
ened enforcement  by  state  officers  through 
civil   or   criminal   proceedings,   of   a   state 


INJUNCTIONS. 


441 


statute  which  is  attacked  as  repugnant  to 
the  federal  constitution,  may  be  enjoined 
by  a  federal  court,  where  the  statute,  if 
exerted  against  complainants  and  their 
property,  will  produce  irreparable  injury. 
East  V.  Van  Deman,  etc.  Co.  (U.  S.) 
1917B-455. 

19.  Against  Prosecution  for  Violating 
Liquor  Ijaw.  In  an  action  to  enjoijj.a 
prosecution  for  carrying  on  business  with- 
out a  license  in  violation  of  Ore.  Laws 
1913,  p.  143,  providing  that  no  person  shall 
sell  or  receive  or  solicit  consignments,  or 
farm,  dairy,  orchard,  or  garden  products 
for  sale  upon  commission,  where  the  com- 
plaint does  not  deny  that  plaintiff  is  en- 
gaged in  such  busiuess,  it  is  insufl&cient  to 
authorize  equitable  interference.  Sherox 
V.  Aitchison  (Ore.)   1916C-1151. 

(Annotated.) 

20.  Irreparable  Injury  the  Criterion. 
Where  an  attempted  enforcement  of  an  in- 
valid ordinance  or  statute  would  do  irre- 
parable injury  to  property  rights,  a  court 
of  equity  may  restrain  the  maintenance  of 
the  criminal  actions.  Sherod  v.  Aitchi- 
son (Ore.)  1916C-1151.  (Annotated.) 

21.  Mere  Invalidity  Insufllclent.  The 
mere  invalidity  of  a  statute  or  ordinance 
is  not  sufficient  to  authorize  an  injunction 
against  a  prosecution  thereunder,  since 
such  invalidity  may  be  interposed  as  a 
complete  defense  to  the  prosecution. 
Sherod  v.  Aitchison  (Ore.)  1916C-1151. 

(Annotated.) 

Note. 
Power    of    equity    to    enjoin    criminal 
prosecution.     1916C-1153. 

(2)     Eestraining  Payment  of  Moneys  Un- 
constitutionally Appropriated. 

22.  Enjoining  Purchase  of  Property. 
The  averment  of  the  unverified  bill  to  en- 
join a  county  from  buying  land  that  too 
much  is  being  paid  for  it,  and  that  com- 
plainant believes  and  alleges  that  the 
county  is  being  burdened  with  $50,000 
more  than  the  land  is  worth,  this  going 
as  a  profit  to  promoters,  is  insufficient  as 
an  attack  on  the  purchase,  authorized  by 
the  legislature  at  the  price  attacked. 
Heiskell  v.  Knox  County  (Tenn.)  1916E- 
1281. 

(3)     Restraining  Discretionary   Acts. 

23.  Equity  has  no  power  to  control  the 
discretion  of  county  commissioners  In  the 
conduct  of  the  countv's  business.  O'Eear 
V.  Sartain  (Ala.)  19186-593. 

e.     Civil  Actions  and  Proceedings. 

24.  Bestrainlng  Suit  in  Another  State. 
A  court  may  restrain  a  citizen  of  the 
state  of  the  forum  from  prosecuting  a 
suit  against  a  citizen  of  the  same  state  in 


a  foreign  state.     American  Express  Co.  ▼. 
Fox  (Tenn.)  1918B-1148.         (Annotated.) 

25.  Defendant,  a  resident  of  Tennessee, 
will  not  be  enjoined  from  suing  a  com- 
plainant in  the  state  of  Mississippi  on  a 
cause  of  action  arising  in  Teanessee,  be- 
cause it  would  be  to  complainant's  con- 
venience to  be  sued  in  Tennessee,  or  be- 
cause the  rules  of  law  in  Mississippi  are 
slightly  different,  for  probably  the  laws 
of  Tennessee  would  be  applied,  and  such 
an  injunction  should  be  granted  only  in  a 
very  special  case,  and  not  one  merely 
where  the  practice  in  two  states  differed. 
American  Express  Co.  v.  Fox  (Tenn.) 
1918B-1148.  (Annotated.) 

26.  A  court  will  not,  at  the  suit  of  a 
nonresident  corporation  which  might  re- 
move a  suit  brought  by  a  resident  of  the 
state  to  the  federal  courts,  enjoin  a  resi- 
dent from  suing  in  a  foreign  state,  for 
such  corporation  could  not  be  compelled  to 
submit  to  the  jurisdiction  of  the  local 
courts.  American  Express  Co.  v.  Fox 
(Tenn.)   1918B-1148.  (Annotated.) 

Note. 
Power  of  court  to  enjoin  proceedings  in 
another  state  or  country.     1918B-1150. 

f.     Eestraining    Acts     Constituting    Nui- 
sance as  Crime. 

27.  Protection  of  Water  Bights.  Rev. 
St.  Colo.  1908,  c.  72,  providing  a  method 
of  establishing  priorities  to  the  use  and 
distribution  of  water,  and  that  any  com- 
missioner failing  to  perform  his  statutory 
duty,  and  any  person  violating  the  com- 
missioner's order,  shall  be  guilty  of  crim- 
inal offenses,  does  not  afford  a  complete 
and  adequate  remedv  for  injury  from  the 
taking  of  water  by  a  junior  appropriator, 
when  it  is  needed  and  demanded  by  a 
senior  appropriator  within  the  same  irri- 
gation division,  se  as  to  preclude  an  in- 
junction. Rogers  v.  Nevada  Canal  Co. 
(Colo.)    1917C-669. 

28.  Public  Nnlsance.  The  rule  that 
equity  cannot  punish  crime  if  the  punish- 
ment is  the  only  object  of  the  proceeding 
does  not  prevent  it  from  exercising  its 
jurisdiction  to  enjoin  a  public  nuisance 
against  a  disorderly  house,  which  was  a 
public  nuisance  at  common  law,  particu- 
larly where  criminal  prosecutions  have 
proved  effective.  People  v.  Clark  (111.) 
1916D-785.  (Annotated.) 

29.  Private  Nuisance.  The  keeping  of  a 
bawdyhouse  being  a  crime,  and  being  a 
private  rather  than  a  public  nuisance  it 
cannot  be  enjoined  in  a  suit  by  the  state. 
Laymaster  v.  Goodin   (Mo.)    1916C-452. 

(Annotated.) 

Note. 

Right  of  state  to  enjoin  private  nuisance 
which  is  also  crime.     1916C-455. 


442 


DIGEST. 

1916C— 1918B. 


g.     Restraining  Labor    Combinations. 

80.  Injunction  Against  Unionizing  Em- 
ployees. Where  an  employer  makes  non- 
membership  in  a  labor  union  a  condition 
of  employment,  with  the  free  assent  of  its 
employees,  the  fact  that  the  employment 
is  at  will  and  terminable  by  either  party 
at  any  time  does  not  affect  the  right  of 
the  employer  to  an  injunction  against  the 
efforts  of  third  parties  to  organize  the  em- 
ployees. Hitchman  Goal,  etc.  Co.  v.  Mit- 
chell (U.  S.)  1918B-461.  (Annotated.) 

31.  An  employer,  operating  a  nonunion 
mine  and  having  agreements  with  his  em- 
ployees that  they  would  not  become  mem- 
bers of  a  union,  is.  as  much  entitled  to  an 
injunction  to  prevent  the  unionizing  of 
the  miners  as  the  unionizing  of  the  mine, 
assuming  that  there  is  a  practical  distinc- 
tion between  the  two;  the  first  being  but 
a  step  in  the  process  of  unionizing  the 
mine.  Hitchman  Coal,  etc.  Co.  v.  Mitchell 
(U.   S.)    1918B-461.  (Annotated.) 

h.     Bestraining  Criminal  Prosecution. 

32.  Kirby's  Ark.  Dig.  §  2454,  providing 
for  an  inquest  by  sheriff's  jury  into  the 
insanity  of  persons  sentenced  to  be  exe- 
cuted, affords  such  person  a  remedy  in 
case  he  becomes  insane  after  trial.  Hence 
the  chancery  court  cannot,  on  the  ground 
that  such  person  has  no  other  remedy,  jus- 
tify an  order  enjoining  his  execution. 
Ferguson  v.  Martineau  (Ark.)  1916E-421. 

(Annotated.) 

33.  Courts  of  equity  have  no  jurisdic- 
tion to  interfere  by  injunction  with  crimi- 
nal proceedings;  their  jurisdiction  to  be 
confined  solely  to  civil  and  property  rights. 
Ferguson  v.  Martineau  (Ark.)  1916E-421. 

34.  The  threatened  prosecution  of  a 
criminal  action  will  not  usually  be  en- 
joined, under  Ore.  L.  O.  L.  §  389,  author- 
izing suits  in  equity  where  there  is  not  a 
plain,  adequate,  and  complete  remedy  at 
law.  Sherod  v.  Aitchison  (Ore.)  1916C- 
1151.  (Annotated.) 

i.     Restraining  Criminal  Act. 

35.  Enjoining  Criminal  Act.  Although 
the  acts  of  a  water  officer  in  permitting 
water  to  be  taken  by  a  junior  appropri- 
ator,  and  the  taking  thereof  by  the  latter, 
are  crimes  subject  to  prosecution,  they 
constitute  a  special  injury  to  the  senior 
appropriator,  and  may  be  enjoined  by  a 
court  of  equity.  Rogers  ▼.  Nevada  Canal 
Co.   (Cplo.)   1917C-669. 

Note. 
Right   of   municipality   to   enjoin   viola- 
tion of  municipal  ordinance.     1916C-963. 

3.     ACTIONS  FOR  INJUNCTIONS, 
a.     Bill. 

36.  Petition  Held  Sufficient.  The  allega- 
tions of  the  petition  for  an  injunction  in 


this  case  were  sufficient  to  withstand  a 
general  demurrer,  which  admits  the  facts 
alleged;  and  it  was  error  to  sustain  the 
demurrer  and  dismiss  the  petition.  Cut- 
singer  V.  Atlanta  (Ga.)  1916C-280. 

b.     Temporary  Restraining  Order. 

>-  j7.  On  January  27th  an  injunction  suit 
^itPn  instituted  by  the  county  attorney 
praying  for  a  temporary  restraining  order 
enjoining  defendants  from  permitting 
moving  picture  shows  being  opened  on 
Sunday,  and  that  the  cause  be  set  for 
hearing,  and  that  upon  final  hearing  the 
temporary  restraining  order  be  made  per- 
manent, and  the  petition  was  presented  on 
the  same  day  to  the  judge  of  the  district 
court,-  who  indorsed  thereon  the  following 
fiat:  "Petition  granted  and  clerk  of  dis- 
trict court  directed  to  issue  and  direct  to 
each  and  every  defendant  ...  an  order 
enjoining,  restraining,  and  prohibiting 
them  and  each  of  them  from  opening  or 
permitting  to  be  opened  their  theaters  and 
moving  picture  shows  on  Sunday  .  .  .  un- 
til further  orders  of  this  court;  this  cause 
set  down  for  hearing  Saturday,  February 
3d."  Held,  that  the  order  was  only  a 
temporary  restraining  order  and  expired 
on  the  date  of  the  hearing,  unless  ex- 
tended, and  hence  a  judgment  of  contempt 
for  its  alleged  violation  after  such  date 
was  void.  Ex  parte  Zuccaro  (Tex.)  1917B- 
121.  (Annotated.) 

4.     TEMPORARY  INJUNCTION. 
a.     In  General. 

38.  Distinction  Between  Restraining 
Order  and  Temporary  Injunction.  Under 
the  Texas  practice,  injunctions  are  classi- 
fied: First,  as  a  "restraining  order,"  which 
is  an  interlocutory  order  made  upon  appli- 
cation for  an  injunction  as  a  part  of  a 
motion  for  the  preliminary  injunction,  by 
which  a  party  is  restrained  pending  the 
hearing  of  the  motion;  second,  an  order 
which  operates,  unless  dissolved  by  an  in- 
terlocutory order,  until  the  final  hearing; 
and,  third,  a  perpetual  injunction,  which 
can  only  be  ordered  upon  final  decree. 
Ex  parte  Zuccaro  (Tex.)   1917B-121. 

(Annotated.) 

39.  Temporary  Injunction  Properly 
Denied.  The  court  erred  in  granting  a 
temporary  injunction.  Jacob's  Pharmacy 
Co.  V.  Luckie  (Ga.)  1917A-1105. 

Note. 
Distinction  between  temporary  restrain- 
ing    order     and     temporary     injunction. 
1917B'123. 

b.     Modification  or  Suspension. 

40.  Power  to  Modify.  In  view  of  Cal. 
Civ.  Code,  §  3421.  providing  that  provi- 
sional   injunctions    are    regulated    by    the 


INNKEEPERS. 


443. 


Code  of  Civil  Procedure,  and  Code  Civ. 
Proc.  §§  525-533,  providing  a  complete  sys- 
tem of  law  and  procedure  aa  to  granting, 
refusing,  modifying,  and  dissolving  tem- 
porary injunctions,  and  of  sections  939, 
and  963,  allowing  an  appeal  from  an  order 
granting  or  dissolving  an  injunction,  a 
superior  court,  which,  upon  notice  and 
hearing,  has  granted  a  temporary  injunc- 
tion absolutely  restraining  a  defendant 
from  the  commission  of  certain  acts  dur- 
ing the  pendency  of  the  action,  without 
reserving  any  right  of  revocation  or  modi- 
fication, has  no  power  subsequently  to 
make  an  order  staying  the  operation  of 
the  injunction  until  final  determination  of 
the  cause  or  until  a  contemplated  appeal 
has  been  heard.  United  Bailroads  v.  Su- 
perior Court  (CaL)  1916E-199. 

(Annotated.) 
Note. 
Modification    or   suspension   of   prelimi- 
nary injunction  before  trial.     1916B-205. 

6.    INJUNCTION  BOND. 

41.  Where  a  telegraph  company  was  en- 
joined, during  the  year  1914,  from  carry- 
ing on  intrastate  business  within  the  state 
because  it  had  not  paid  the  city  license 
fees,  and  the  city  had  given  the  statutory 
bond  to  secure  the  injunction,  the  case 
will  not,  after  the  expiration  of  the  year, 
be  deemed  moot,  so  as  to  preclude  a  re- 
view of  the  question  by  the  court,  for  a 
dismissal  of  the  appeal  would  result  in 
leaving  the  question  of  whether  the  issu- 
ance of  the  injunction  was  wrongful  un- 
determined, and  would  not  give  the  tele- 
graph company  any  rights  under  the  bond; 
this  being  true,  even  though  it  might  be 
maintained  that  the  city,  as  an  arm  of  the 
state,  was  not  required  to  give  bond. 
Postal  Telegraph-Cable  Co.  t.  Montgomery 
(Ala.)    1918B-554.  (Annotated.) 

INJUBIES  ARISING   OUT  OF  AND  IN 
COURSE  OF  EMPLOYMENT. 

Under  Workmen's  Compensation  Act,  see 
Master  and  Servant,  206-230. 

INJURIES  TO  PROPERTY. 

See  Injunctions. 

Measure  of  damages,  see  Damages,  15. 

INJURY. 

Meanins^  within  Workmen's  Compensation 
Act,  see  Master  and  Servant,  196. 

INNKEEPERS. 

1.  Definitions  and  Distinctions,  443. 

2.  Statutory  Regulation,  443. 

3.  Liability  for  Effects  of  Guest,  444. 

4.  Liability     for     Personal     Injuries     to 

Guest,  444. 

5.  Lien  of  Innkeeper,  444. 


See  Licenses,  28-30. 

Injury  to  guest  by  impure  food,  see  Food, 

25-26. 

Duty  to  provide  hotel  with  fire  escapes,  see 
Landlord  and  Tenant,  13. 


1.     DEFINITIONS  AND  DISTINCTIONS. 

1.  When  Relation  Commences — Delivery 
of  Baggage.  The  relation  of  innkeeper 
and  guest  involves  the  obligation  to  fur- 
nish accommodation  on  the  one  hand,  and 
the  obligation  to  pay  on  the  other.  Gen- 
erally a  person  becomes  a  guest  when  he 
registers  and  engages  accommodation.  He 
may,  however,  be  a  guest  before  doing 
either.  Handing  baggage  to  a  porter  or 
bell  boy  of  the  inn  may  commence  the 
relations,  if  the  parties  contemplate  that 
accommodation  be  engaged.  But  one  does 
not  become  a  guest  by  merely  handing  his 
satchel  to  such  employee  when  he  does  not 
intend  to  engage  such  accommodation. 
Parker  v.  Dixon  (Minn.)  1918A-540. 

(Annotated.) 

2.  Restaurants  Distinguished  from  Inns. 
A  restaurant  keeper  differs  from  an  inn- 
keeper in  that  he  furnishes  only  food,  or 
food  and  drink,  and  not  lodging  or  shelter, 
though,  in  so  far  as  the  character  of  the 
service  performed  by  a  restaurant  keeper 
and  by  an  innkeeper  to  their  respective 
patrons  is  concerned,  it  is  the  same.  Mer- 
ril  T.  Hodson  (Conn.)  1916D-917. 

Note. 

Intrusting  baggage  to  innkeeper  or  his 
employee  as  establishing  relation  of  inn- 
keeper and  guest.     1918A-541. 


2.     STATUTORY  REGULATION. 

3.  The  act  of  1883  (Laws  1883,  c.  47) 
known  as  the  "Nebraska  Hotel  Act"  im- 
posing on  innkeepers  the  duty  to  take 
certain  precautions  against  fire  does  not 
contravene  the  provisions  of  the  Four- 
teenth Amendment  to  the  constitution  of 
the  United  States,  or  deprive  an  innkeeper 
of  life,  liberty  or  property  without  due 
process  of  law,  and  is  a  valid  enactment. 
Strahl  V.  Miller  (Neb.)  1917A-141. 

(Annotated.) 

4.  This  act  confers  upon  a  guest  at  a 
hotel  the  right  to  maintain  a  cause  of  ac- 
tion agninst  the  proprietor  for  injuries  re- 
ceived through  the  negligence  of  the  pro- 
prietor or  his  servants.  Strahl  v.  Miller 
(Neb.)   1917A-141.  (Annotated.) 

5.  The  fact  that  the  statute  or  ordinance 
in  question  does  not,  in  terms,  impose  a 
civil  liability  for  its  violation  does  not 
affect  such  evidence  of  its  violation  as 
mav  go  to  show  negligence.  Hoopes  v. 
Creighton  (Neb.)  1917E-847. 

(Annotated.) 


444 


LIABILITY      FOR 
GUEST. 


DIGEST. 

1916C— 1918B. 
EFFECTS      OF 


6.  Liability  for  Loss  of  Property  of 
Guest.  An  innkeeper  is  answerable  for 
the  loss  in  his  inn  of  the  goods  of  his 
guest  unless  the  loss  arises  from  the  negli- 
gence of  the  guest  or  the  act  of  God  or 
of  a  public  enemy.  Parker  v.  Dixon 
(Minn.)  1918A-540. 

7.  This  rule  of  liability  arises  only  in 
favor  of  guests.  It  does  not  arise  in  favor 
of  one  who  comes  to  the  inn  intending 
only  to  avail  himself  without  expense  ot 
the  facilities  and  comforts  which  the  inn- 
keeper furnishes  free  to  the  public  at 
large.  Parker  v.  Dixon  (Minn.)  1918A- 
540. 

4.     LIABILITY    FOR    PERSONAL    IN- 
JURIES TO  GUEST. 

8.  Liability  for  Injury  to  Guest  by  Fire. 
A  hotel*  owner  may  not  omit  to  do  the 
things  that  are  reasonably  necessary  for 
the  safety  and  protection  of  the  guests  of 
the  house,  and  if  he  disregards  the  provi- 
sions of  the  law  concerning  the  establish- 
ment of  fire  escapes  upon  the  building,  and 
such  other  devices  as  the  law  provides  for, 
he  will  be  held  liable  for  the  damages  sus- 
tained because  of  the  death  of  any  guest 
which  may  be  brought  about  by  his  negli- 
gence. Hoopes  V.  Creighton  (Neb.)  1917E- 
847.  (Annotated.) 

9.  A  requested  instruction  of  the  de- 
fendant, to  the  effect  that  the  plaintiff's 
decedent  assumed  the  risk  of  injury  be- 
cause he  knew  the  dangerous  condition  of 
the  building  as  regards  injury  by  fire,  was 
properly  refused.  Hoopes  v.  Creighton 
(Neb.)   1917E-847.  (Annotated.) 

10.  Injury  to  Gueet  in  Fire.  An  inn- 
keeper is  not  an  insurer  of  the  safety  of 
his  mest;  but  he  is  bound  to  exercise  rea- 
sonable care  for  the  comfort  and  safety  of 
the  guest  while  in  his  hotel,  and  if  the 
guest  is  injured  in  attempting  to  escape 
from  a  fire  through  the  negligence  of  the 
innkeeper  or  his  employees  the  innkeeper 
is  liable  therefor.  Strahl  v.  Miller  (Neb.) 
1917A-141.  (Annotated.) 

Note. 
Liability  of  innkeeper  to  guest  for  in- 
juries sustained  by  latter  in  fire.     I917A- 
143. 

5.     LIEN  OF  INNKEEPER. 

11.  Owner  of  Apartment  House.  Colo. 
Rev.  St.  1908,  §  4013,  providing  that  the 
keeper  of  an^  hotel,  tavern,  or  boarding 
house,  or  any  person  renting  furnished  or 
unfurnished  rooms,  shall  have  a  lien  upon 
the  baggage  and  furniture  of  his  guests, 
boarders,  and  tenants  for  lodging,  board- 
ing or  renting,  does  not  give  tbe  owner  of 
an  apartment  house  consisting  of  suites 
rented  furnished  for  bonsekeeping  pur- 
poses for  homes  a  lien  upon  the  tenant's 


goods  for  rent,  as  the  words  "■•ny  person 
who  rents  furnished  and  unfurnished 
rooms"  are  not  intended  to  include  all 
classes  of  rooms  for  whatever  purpose 
rented,  but  are  limited  to  persons  renting 
rooms  for  lodging  purposes,  etc.,  and  do 
not  include  furnished  houses,  as  the  apart- 
ment is  to  all  intents  and  purposes  the 
same  as  an  individual  dwelling  house. 
Seanlan  t.  La  Coste  (Colo.)  1917A-254. 

(Annotated.) 

INNOCENT  BYSTANDER. 

Wounded  by  another's  self-defense,  see 
Negligence,  102,  116. 

INNOCENT  PURCHASER. 
See  Bona  Fide  Purchaser. 
Of  altered  note,  see  Alteration  of  Instrup 
ments,  7. 

INNUENDO. 
In  complaint  for  defamation,  see  Libel  and 
Slander,  82,  83,  90,  92,  101,  107. 

INQUEST. 

On  sanity  of  convict  condemned  to  death, 
see  Sentence  and  Punishment,  7. 

INQUISITION  OF  INSANITY. 
Not  applicable  to  convicts,  see  Insanity, 
16. 

INSANE  DELUSION. 
Defined,  see  Wills,  59,  60,  63. 
See  Wills,  56,  59,  60-64,  79,  80,  82. 

INSANITY. 

1.  Evidence  of  Insanity,  444. 

2.  Inquisition   of   Insanity,   445. 

3.  Maintenance  of  Insane  Person  and  His 

Estate,  446. 

4.  Criminal  Responsibility,  446. 

Arrest  of  lunatic  without  warrant,  see 
Arrest,  6. 

Duty  of  carrier  toward  insane  passenger, 
see  Carriers  of  Passengers,  31. 

Test  of  capacity  to  convey,  see  Deeds,  26. 

Attack  on  guardian's  sale  after  restora- 
tion, see  Guardian  and  Ward,  11. 

Instructions,  see  Homicide,  64. 

Duty  toward  patient  who  becomes  insane, 
see  Hospitals  and  Asylums,  3. 

Suicif!«  while  insane,  see  Life  Insuranc*, 
57-59. 

As  accident  within  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  197. 

Of  convict  condemned  to  death,  sen  Sen- 
tence and  Punishment,  7,  12. 

Impeachment  of  insane  witness,  see  Witr 
nesses,  105. 

1.     EVIDENCE  OF  INSANITY. 

1.  Where    defendant   committed    murder 
to  avoid  apprehension  and  conviction  for 


INSANITY. 


44& 


AB  attempted  robbery,  and  relies  upon  in- 
sanity as  a  defense,  the  test  of  mental  re- 
sponsibility is  not  whether  he  was  a  eon- 
firmed  thief  and  had  not  the  will  power 
to  resist  theft,  but  whether  he  had  the 
mental  capacity  to  distinguish  between 
right  and  wrong  with  respect  to  the  mur- 
der. State  T.  Mewhinney  (Utah)  1916C- 
537. 

2.  Where  the  evidence  to  establish  de- 
fendant's insanity  can  be  considered  only 
to  show  general  insanity,  the  test  of  re- 
sponsibility is  the  capacity  of  the  defend- 
ant to  distinguish  between  right  and 
wrong  at  the  time  of  and  with  respect  to 
the  criminal  act.  State  v.  Mewhinney 
(Utah)   1916C-537. 

3.  The  mere  fact  that  a  maternal  aunt 
of  accused,  relying  on  insanity,  is  insane, 
and  confined  in  an  insane  asylum,  may  not 
be  shown  in  support  of  the  defense  of  in- 
sanity, unaccompanied  by  any  evidence 
of  the  nature,  extent,  duration,  or  symp- 
toms of  her  mental  disorder.  James  v. 
State  (Ala.)  1918B-119.  (Annotated.) 

4.  Opinions  of  witnesses  acquainted  with 
the  relatives  of  accused,  relying  on  insan- 
ity, that  insanity  runs  in  the  family,  are 
incompetent,  because  mere  conclusions. 
James  v.  State  (Ala.)  1918B-119. 

(Annotated.) 

5.  That  the  mother  of  accused  and  a 
maternal  aunt  were  sent  to  the  asylum 
may  not  be  shown  in  defense  of  the  insan- 
ity of  accused,  in  the  absence  of  anything 
to  show  the  sort  of  asylum  they  were  sent 
to,  or  why  they  were  sent,  and  what  their 
mental  condition  was  at  the  time.  James 
v.  State  (Ala.)   1918B-119.     (Annotated.) 

6.  Insanity  of  Kelatives.  Evidence  of 
the  insanity  of  one  or  more  members  of 
accused's  family,  immediate  or  collateral, 
is  not  admissible,  except  in  connection 
with  other  evidence  directly  showing  that 
accused  is  insane.  James  v.  State  (Ala.) 
1918B-119.  (Annotated.) 

7.  Inlieritable  Nature  of  Insanity.  The 
court  judicially  knows  as  an  established 
truth  of  medical  science  that  many  forms 
of  insanity  are  inheritable,  and  may  recur 
in  various  individuals  collaterally  de- 
scended from  a  common  source.  James  v. 
State  (Ala.)  1918B-119. 

8.  Burden  of  Proof  as  to  Insanity.     A 

charge  requiring  the  acquittal  of  accused, 
if  the  evidence  leaves  in  the  mind  of  the 
jury  any  reasonable  doubt  of  his  sanity, 
was  properly  refused.  James  v.  State 
(Ala.)  1918E^119. 

9.  Insanity  as  Defense.  There  is  a  legal 
presumption  of  sanity.  State  v.  Mewhin- 
ney (Utah)  1916C-537. 

10.  A  charge  that  if  the  jury  believe 
that,  at  the  time  accused  shot  decedent, 


Ms  conduct  and  acts  were  such  that  he 
was  so  mentally  unbalanced  that  he  did 
not  know  the  consequences,  that  fact 
should  be  considered  in  determining  the 
verdict,  is  properly  refused,  as  misleading, 
and  as  singling  out  evidence  for  the  con- 
sideration of  the  jury  without  stating  any 
proposition  of  law.  James  v.  State  (Ala.) 
1918B-119. 

11.  Condition  on  Prior  Occasion.  That 
accused,  relying  on  insanity  produced  by 
intoxication,  was  on  another  occasion, 
when  drunk,  in  such  condition  that  no  one 
could  do  anything  with  him,  is  properly 
excluded  as  irrelevant.  James  v.  State 
(Ala.)   1918B-119. 

12.  Hearsay.  Testimony  by  those  hav- 
ing personal  knowledge  as  to  the  transac- 
tions between  deceased  and  accused,  who 
claimed  to  have  killed  as  the  result  of  in- 
same  delusions,  is  admissible,  but  hearsay 
as  to  the  transactions  is  not.  Ryan  v. 
People  (Colo.)  1917C-605. 

13.  Conclusions  of  Witness.  That  the 
mind  of  accused,  relying  on  insanity,  had 
not  been  very  strong  since  he  had  a  fever 
a  year  before  the  offense,  was  properly  ex- 
cluded, as  the  mere  opinion  of  the  father 
of  accused,  seeking  to  so  testify.  James 
v.  State  (Ala.)  1918B-119. 

14.  A  nonexpert  witness,  testifying  to 
the  insanity  of  accused,  must  state  what 
acts  of  accused  he  has  seen,  and  then  give 
his  opinion  as  to  his  sanity,  but  cannot 
testify  that  he  has  seen  acts  of  insanity. 
James  v.  State  (Ala.)  1918B-119. 

15.  Suicide  aa  Evidence.  Sanity  is  pre- 
sumed, and  the  taking  of  one's  own  life 
does  not,  in  itself,  establish  insanity. 
Ledy  v.  National  Council  (Minn.)  1916E- 
486.  (Annotated.) 

Notes. 

Suicide  as  evidence  of  insanity.  1916E- 
488. 

Admissibility,  on  issue  of  sanity,  of 
evidence  of  insanity  of  ancestors  or  kin- 
dred.    1918B-124. 

2.     INQUISITION  OF  INSANITY. 

16.  Present  Insanity — Time  When  Issue 
may  be  Tried.  Kirby's  Ark.  Dig.  §  4003, 
providing  for  insanity  inquests  by  the  pro- 
bate court,  was  enacted  solely  for  the  pur- 
pose of  protecting  the  civil  and  property 
rights  of  insane  persons,  and  has  no  refer- 
ence to  determining  the  question  of  the 
sanity  of  one  who  has  been  convicted  and 
sentenced  to  be  executed  for  a  criminal 
offense.  Ferguson  v.  Martineau  (Ark.) 
1916E-421.  (Annotated.) 

Note. 

Time  or  stage  in  criminal  proceedings 
when  question  of  insanity  of  defendant 
may  be  determined  by  inquisition  or  other- 
wise.    1916E'-424. 


446 


DIGEST. 

19160— 1918B. 


3.     MAINTENANCE  OP  INSANE  PER- 
SON AND  HIS  ESTATE. 

17.  Keeping  Up  Life  Insurance.  In  an 
action  against  the  estate  of  an  insane  per- 
son to  recover  the  cost  of  his  maintenance, 
the  court  has  power  to  order  the  invest- 
ment of  a  part  of  the  estate  and  the  use 
of  the  income  to  pay  the  premiums  on 
existing  policies  of  insurance  on  the  life 
of  the  insane  person.  Depue  v.  District 
of  Columbia  (D.  C.)  1917E-414. 

18.  Liability  of  Estate  for  Maintenance. 
Under  the  Act  of  Congress  of  Feb.  23, 
1905  (3  Fed.  St.  Ann.  (2d  ed.)  613),  if  a 
person  committed  to  the  government  hos- 
pital for  the  insane  as  a  charge  on  the 
District  of  Columbia  has  or  comes  into  the 
possession  of  an  estate,  the  District  is  en- 
titled to  recover  therefrom  the  cost  of  his 
maintenance.  Depue  v.  District  of  Colum- 
bia (D.  C.)  1917E-414.  (Annotated.) 

4.     CRIMINAL   RESPONSIBILITY. 

19.  Instructions  as  to  Insanity.  On  a 
trial  for  murder,  defended  on  the  ground 
of  insanity,  where  the  evidence  can  be 
considered  only  to  show  general  insanity, 
and  the  court  properly  defines  the  test 
thereof,  its  failure  to  enlarge  upon  differ- 
ent phases  of  insanity  and  mental  weak- 
ness is  not  prejudicial  to  defendant.  State 
V.  Mewhinney  (Utah)  1916C-537. 

20.  Test  of  Irresponsibility — Knowledge 
of  Consequences.  That  accused  was,  at 
the  time  of  the  killing  of  decedent,  so 
mentally  unbalanced  as  not  to  know  the 
consequences  of  his  act,  is  not  per  se  a 
palliation  of  murder,  under  a  plea  of  not 
guilty,  nor  an  excuse  therefor,  under  a 
plea  of  insanity.  James  v.  State  (Ala.) 
1918B-119. 

21.  Drunkenness.  Insane  conduct  or 
mania  resulting  from  present  intoxication 
of  accused,  charged  with  murder,  does  not 
excuse  the  crime;  and  where  there  was  no 
evidence  to  show  any  fixed  insanity,  re- 
sulting from  drunken  habits  or  otherwise, 
abnormal  conduct  and  conditions  of  ac- 
cused, associated  with  present  drunken- 
ness, may  not  be  shown.  James  v.  State 
(Ala.)   1918B-119. 

22.  A  witness  for  accused,  relying  on 
the  defense  of  insanity  produced  by  in- 
toxication, may  not  testify  that  while  ac- 
cused is  drinking  his  reason  is  dethroned, 
or  that  he  then  displays  acts  of  insanity, 
or  is  not  responsible  for  what  he  does. 
James  v.  State  (Ala.)  1918B-119. 

23.  Irresistible  Impulse.  A  person  who 
is  so  diseased  in  mind  as  to  be  incapable 
of  distinguishing  right  and  wrong,  or  be- 
ing able  to  so  distinguish,  has  suffered 
such  an  impairment  as  to  destroy  the  will 
power,  is  not  accountable,  and  such  insan- 
ity may  be  manifested  bv  insane  delusions. 
Ryan  v.  People  (Colo.)  i917C-605. 

(Annotated.) 


24.  Insane  Delusions.  "Insanity"  is  a 
disease  of  the  mind,  while  a  "delusion," 
which  is  a  symptom  of  the  disease,  is  a 
false  conception  and  a  persistent  belief, 
unconquerable  by  reason,  of  what  has  no 
existence  in  fact;  hence  an  instruction 
that  an  insane  delusion  to  alone  suffice  to 
establisn  the  defense  of  insanity  must  be 
of  such  a.  character  that,  if  things  were 
as  the  person  possessed  of  such  delusion 
imagined  them  to  be,  it  would  justify  the 
act  springing  from  the  delusion  is,  in  a 
prosecution  for  homicide,  where  the  de- 
fense was  insanity  and  accused  claimed  to 
have  been  laboring  under  an  insane  delu- 
sion that  he  believed  deceased,  while  act- 
ing as  his  attorney,  had  betrayed  him, 
financially  ruined  him,  and  denounced  him 
to  the  world  as  a  leper  and  a  drunkard, 
prejudicially  erroneous,  for  it  takes  from 
the  jury  the  question  of  insanity  evi- 
denced by  delusions,  and  requires  them  to 
find  that  the  delusion  was  sufficient,  if 
true,  to  have  justified  the  killing.  Ryan 
V.  People  (Colo.)  1917C-605. 

Note. 

Irresistible  or  uncontrollable  impulse  as 
defense  to  criminal  charge.     1917C-609. 


INSOLVENCY. 

See  Assignment  for  Benefit  of  Creditors; 
Bankruptcy;  Banks  and  Banking,  13- 
22,  17,  67-74;  Receivers;  Creditors' 
Bills. 

Accepting  deposits  while  insolvent,  see 
Banks  and  Banking,  13-22. 

Set-off  of  deposit  against  debt,  see  Banks 
and  Banking,  48-53. 

Effect,  see  Building  and  Loan  Associations, 
5. 

Of  fellow  subscriber  as  release  of  subscrip- 
tion, see  Corporations,  66. 

Of  corporations,  see  Corporations,  144-149. 

Insurance  premiums  trust  for  creditors,  see 
Receivers,  11. 


INSPECTION. 

Right  of,  see  Carriers  of  Goods,  1. 

Duty  to  inspect  cars,  see  Carriers  of  Pas- 
sengers, 20. 

Right  to  inspect  books,  see  Corporations, 
104-114. 

State  inspection  as  affecting  interstate 
commerce,  see  Interstate  Conunerce, 
6,7. 

Of  meat,  city  regulation,  see  Municipal 
Corporations,  89,  90. 

Of  grain,  see  Weights  and  Measures,  1-3. 

INSPECTION  LAWS. 
Police  power,  see  Constitutional  Law,  36. 


INSTRUCTIONS. 


447 


INSTRUCTIONS. 

1.  In  General,  447, 

2.  Construction,  448. 

3.  Form,  448. 

•4,  Bequests  to  Charge,  448. 

5.  Repetition,  449. 

6.  Ignoring  Evidence,  450. 

7.  Cautionary  Instructions,  450. 

8.  Weight    and   Sufficiency   of   Evidence, 

450. 

9.  Instructions  Unsupported  by  Evidence, 

451. 

10.  Instructions  Assuming  Fact  in  Issue, 

451. 

11.  Advising  Jury  to  Disregard  Argument 

of  Counsel,  451. 

12.  Argumentative  Instructions,  451. 

13.  Instructions    as    to    Abandoned    Issue. 

451. 
14    Presumption,  452. 

See  Assault,  9;  Automobiles,  47-51;  Civil 
Damage  Acts,  3. 

See  Conversion,  8;  Damages,  23-25;  Death 
by  Wrongful  Act,  33-43;  Extortion, 
3;  False  Imprisonment,  7;  False  Pre- 
tenses, 19;  Fires,  5;  Homicide,  60-72; 
Insanity,  10.  19-24;  Malicious  Prose- 
cution, 27-28;  Negligence,  112-121; 
Prostitution,  7-9,  11,  13;  Rape,  12,  15, 
17;  Robbery,  4;  Trespass,  9. 

Satisfaction  beyond  reasonable  doubt,  see 
Accident  Insurance,  27. 

Rulings  brought  up  on  appeal,  see  Appeal 
and  Error,   94. 

Waiver  of  error  by  requesting  charge,  see 
Appeal  and  Error,  184. 

Presumptions  on  appeal,  see  Appeal  and 
Error,  197-198. 

Charge  on  punitive  damages  harmless, 
see  Appeal  and  Error,  215. 

Cure  of  error  in  admitting  evidence,  see 
Appeal  and  Error,  242-248. 

Harmless  and  prejudicial  error,  see  Ap- 
peal and  Error,  282-317. 

Record  must  show  error,  see  Appeal  and 
Error,  349,  350. 

Necessity  of  exception  to  error,  see  Ap- 
peal and  Error,  377-383. 

Sufficiency  of  objections  for  review,  see 
Appeal  and  Error,  404-419. 

In  action  against  attorney  for  negligence, 
SCO  Attorneys,  71. 

In  actions  to  enforce  negotiable  paper, 
see  Bills  and  Notes,  88,  89. 

In  breach  of  promise  suit,  see  Breach  of 
Promise  of  Marriage,  14. 

In  actions  against  carriers,  see  Carriers 
of  Goods,  38-40. 

In  actions  for  injury  to  passengers,  see 
Carriers  of  Passengers,  81-83. 

In  criminal  cases,  see  Criminal  Law,  75— 
97. 

In  shock  damage  cases,  see  Electricity, 
24. 

In  condemnation  proceedings,  see  Emi- 
nent Domain,  89-91. 

As  to  conveyance  by  insolvent  debtor,  see 
Fraudulent  Sales  and  Conveyances, 
13. 


In  prosecutions  under  liquor  laws,  see 
Intoxicating  Liquors,  106. 

Duty  of  jury  to  follow  instructions,  see 
Jury,  43. 

As  to  privilege,  see  Libel  and  Slander, 
58. 

In  proceedings  under  Employers'  Liability 
Act,  see  Master  and  Servant,  90-92. 

In  proceedings  under  Workmen's  Compen- 
sation Act,  see  Master  and  Servant, 
356-361. 

In  action  against  master  for  negligence  of 
servant,  see  Master  and  Servant,  369. 

In  prosecution  under  Sherman  Act,  see 
Monopolies,  24r-26. 

Burden  of  proof  in  negligence  action,  see 
Negligence,   115. 

Care  requisite  in  self-defense,  see  Negli- 
gence, 116. 

New  trial  for  giving  instructions  in  ab- 
sence of  counsel,  see  New  Trial,  13. 

In  malpractice  actions,  see  Physicians  and 
Surgeons,  40-44. 

Using  mails  to  defraud,  see  Postoffice, 
5,   6. 

In  action  for  breach  of  warranty,  see 
Sales,  43,  46. 

Action  by  fireman  for  injury  in  going  to 
fire,  see  Streets  amd  Highways,  38. 

In  action  for  delay  in  telegram,  see 
Telegraphs  a»d  Telephones,  33. 

In  action  against  promoters  of  entertain- 
ment for  personal  injury,  see  Thea- 
ters and  Amusements,  6. 

Instruction  amounting  to  direction  of 
verdict,  see  Verdicts,  35. 

In  action  for  flood  damage  by  embank- 
ment, see  Waters  and  Watercourses, 
33. 

In  reference  to  testamentary  capacity,  see 
Wills,  89-96. 

1.     IN  GENERAL. 

1.  Duty  to  Declare  Law.  The  court,  in 
its  instructions,  must  declare  the  law  to 
the  jury.  Osteen  v.  Southern  R.  Co.  (S. 
Car.)    1917C-505. 

2.  Rulings  Sustained.  The  trial  court 
committed  no  error  in  its  charge  to  the 
jury  or  in  its  rulings  on  the  admission  of 
evidence.  Wising  v.  Brotherhood  of 
American  Yeomen   (Minn.)    1918A-621. 

3.  Instructions  Approved.  In  the  mo- 
tion for  a  new  trial  there  are  numerous 
exceptions  to  the  charges  of  the  court  on 
the  ground  that  there  was  no  evidence  to 
authorize  the  instructions  criticized.  An 
examination  of  the  evidence  contained  in 
the  record  shows  that  in  each  case  such 
exception  is  without  merit.  For,  while 
as  to  some  of  the  issues  covered  by  the 
instructions  complained  of  there  may 
have  been  no  direct  evidence,  there  were 
facts  in  evidence  from  which  the  jury 
would  have  been  authorized  to  draw  de- 
ductions which  would  have  supported  the 
contentions  of  the  defendants  in  error 
relatively  to  those  issues.  Loewenherz  v. 
Merchants,  etc.  Bank  (Ga.)  1917E-877. 


M8 


4.  There  was  no  error  in  the  charge 
complained  of  in  the  twenty-first  ground 
of  the  motion  for  a  new  trial.  Sutton  v. 
Ford  (Ga.)   1918A-106. 

5.  Rulings  on  instructions  are  held  not 
to  be  erroneous.  State  v.  Cooper  (W.  Va.) 
1917D-453. 

6.  An  examination  of  the  ijistructions 
discloses  no  error,  O'Neal  v.  Bainbridge 
(Kan.)   1917B-293. 

7.  It  is  held  that  the  court  did  not  err 
in  giving  or  refusing  to  give  certain  in- 
structions. Ruble  V.  Busby  (Idaho) 
1917D-665. 

8.  In  Case  Tried  Without  Jury.  In- 
structions are  not  only  out  of  place  in  a 
lawsuit  tried  to  the  court  without  a  jury, 
on  an  agreed  case,  but  serve  no  useful 
oflSce  in  equity.  Tevis  v.  Tevis  (Mo.) 
1917A-865. 

2.     CONSTRUCTION. 

9.  Instructions  Considered  as  Whole. 
The  court's  instructions  to  the  jury  should 
be  considered  and  construed  as  a  whole. 
McGregor  v.  Great  Northern  R.  Co.  (N. 
Dak.)   1917E-141. 

10.  Instructions  Approved.  Instruc- 
tions given  by  the  court,  when  construed 
together,  are  found  properly  to  state  the 
law  applicable  to  the  evidence.  Strahl  v. 
Miller  (Neb.)  1917A-141. 

11.  An  instruction  that  it  is  not,  as  a 
matter  of  law,  contributory  negligence 
for  a  passenger  to  start  to  leave  a  car 
before  it  stops,  but  that  that  is  a  question 
for  th«  jury,  is  not  misleading  when  the 
instructions  read  as  a  whole  are  correct. 
Froeming  ▼,  Stockton  Electric  R.  Co. 
(Cal.)   1918B-408'. 

3.     FORM. 

12.  Definiteness.  In  an  action  for 
damages  from  a  fire  caused  by  defend- 
ant's engine,  due  to  the  alleged  escape  of 
sparks  from  a  smokestack,  an  instruction 
requiring  the  jury  to  find  that  the  "en- 
gine was  the  occasion  for  the  fire"  is  too 
indefinite.  Hodges  v.  Baltimore  Engine 
Co.    (Md.)    1917C-766. 

13.  Use  of  Word  "Alibi"  in  Civil  Case. 
An  instruction  in  a  civil  action  against 
the  owner  of  an  automobile,  whose  chauf- 
feur was  alleged  to  have  negligently  run 
down  plaintiff,  that  if  defendant's  plea 
of  "alibi"  was  false  that  was  a  discredit- 
ing circumstance  is  erroneous,  as  the  use 
of  the  term  "alibi"  and  the  rule  stated 
is  not  appropriate  in  a  civil  action;  the 
inducement  to  avert  the  imposition  of 
damages  not  being  the  equivalent  of  the 
reason  for  making  a  false  alibi  in  a  crim- 
inal case,  where  the  offender's  life  or 
liberty  is  affected,  a  discrediting  circum- 
stance. Watson  V.  Adams  (Ala.)  1916E- 
565. 


DIGEST. 

19160— 1918B. 

14.  Necessity  of  Defining  Terms.  It 
was  not  reversible  error  for  the  court  to 
use  the  term  "proximate  cause,"  without 
otherwise  defining  it,  in  absence  of  a  re- 
quest for  an  appropriate  instruction.  Mc- 
Gregor V.  Great-  Northern  R.  Co.  (N. 
Dak.)  1917E-141. 

15.  In  Language  of  Statute  Sued  on. 
In  an  action  based  on  statute,  an  instruc- 
tion, following  the  language  of  the  stat- 
ute, is  not  erroneous  because  it  did  not 
define  all  of  the  ordinary  terms,  no  re- 
quest for  a  proper  instruction  being  made. 
Lichtenstein  v.  L.  Fish  Furniture  Co. 
(111.)  1918A-1087. 

16.  Abstract  Instructions.  Instructions 
should  be  concrete  as  to  each  issuable 
fact,  and  not  abstract.  State  t.  Cessna 
(Iowa)    1917D-289. 

17.  Expressing  Qualifications  of  Rule  in 
Each  Instruction.  Where  instructions 
separately  present  every  phase  of  the  law 
as  a  whole,  each  instruction  need  not 
carry  qualifications  which  are  explained  in 
the  others.  St.  Louis  etc.,  R.  Co.  v.  Blay- 
lock   (Ark.)   1917A-563. 


4.     REQUESTS  TO  CHARGE. 

18.  Instruction  Given  in  Substance. 
The  court  is  not  bound  to  grant  a  re- 
quested instruction  in  the  very  language 
of  the  request.  Miller  v.  Delaware  River 
Trans.  Co.   (N.  J.)   1916C-165. 

19.  Necessity  for  Request.  While 
Const.  Wash.  art.  4,  §  16,  requires  the 
judges  to  declare  the  law,  they  need  de- 
clare it  only  in  a  general  sense,  and  a 
party  desiring  instructions  on  a  particular 
phase  of  the  case  must  request  them.  His- 
cock  V.  Phinney  (Wash.)  1916E-1044. 

20.  Immaterial  Issues.  It  is  not  error 
to  refuse  to  submit  immaterial  issues. 
Gist  v.  Johnson-Carey  Co.  (Wis.)  1916E- 
460. 

21.  Singling  Out  Evidence  —  Request 
Properly  Refused.  Requested  instruc- 
tions, directed  to  fragmentary  and  inde- 
cisive portions  of  the  evidence,  are 
rightly  refused.  Hanley  v.  Eastern 
Steamship  Corporation  (Mass.)  1917D- 
1034. 

22.  Refusal  of  Request — Matter  Ade- 
quately Covered.  In  an  action  for  con- 
spiracy to  alienate  the  affections  of  a 
wife,  where  the  instructions  as  a  whole 
emphasized  and  reiterated  the  legal  pre- 
sumptions in  favor  of  defendants,  the  bur- 
den of  proof  on  the  plaintiff,  and  the 
clearness  of  the  evidence  necessary  to  sus- 
tain such  burden,  the  refusal  of  the  court 
to  instruct  that  the  jury  must  be  guided  by 
reasonable  inferences  only,  not  by  mere 
conjecture,  ir,  reaching  a  verdict,  is  not 
erroneous.  Ratcliffe  v.  Walker  (Va.) 
19171: -1022. 


INSTBUCTIONS. 


449 


23.  Instructions  Sustained.  No  error  is 
found  in  refusing  to  give  requested  in- 
structions, nor  is  there  prejudicial  error 
in  the  charge  ks  given.  Manning  v.  St. 
Paul  Gaslight  Co.  (Minn.)  1916E-276. 

24.  Effect  of  Bequest  on  Same  Subject. 
Where  plaintiflf  in  writing  requested  an 
instruction  dealing  with  contributory 
negligence,  she  cannot  attack  an  instruc- 
tion on  contributory  negligence  on  the 
ground  that  the  issue  was  not  raised  by 
the  evidence.  Smith's  Admx.  v.  Middles- 
boro  Electric  Co.  (Ky.)  1917A-1164. 

25.  Giving  In  Substance.  The  request 
of  a  defendant  for  instructions  is  com- 
plied with  by  giving  them  in  substance,  in 
a  fair  and  comprehensive  charge.  Hanley 
v.  Eastern  Steamship  Corporation  (Mass.) 
1917D-1034. 

26.  Time  for  Requesting.  Under 
Kirby's  Ark.  Dig.  §  6196,  subd.  5,  provid- 
ing that  when  the  evidence  is  concluded 
either  party  may  request  instructions, 
which  shall  be  given  or  refused  by  the 
court,  etc.,  the  trial  judge  has  discretion 
to  require  that  the  instructions  be  settled 
before  argument,  and  to  that  end  may  re- 
quire that  requests  to  charge  be  sub- 
mitted before  the  opening  argument.  St. 
Louis  Southwestern  E.  Co.  v.  Mitchell 
(Ark.)   1916E-317. 

27.  Instructions  Approved.  It  is  held 
that  the  trial  court  properly  ruled  on  the 
instructions  requested  by  the  parties 
hereto.  Hill  v.  Norton  (W.  Va.)  1917D- 
489. 

28.  Necessity  of  Requesting  Instruc- 
tions. Where  an  instruction  is  correct  as 
far  as  it  goes,  a  party  to  the  action  who 
deems  the  same  not  sufiSciently  explicit 
should  present  requests  for  more  specific 
and  comprehensive  instructions.  Mc- 
Gregor v.  Great  Northern  E.  Co.  (N. 
Dak.)    1917E-141. 

29.  Effect  of  Erroneous  Request.  The 
court  may  refuse  an  incorrect  requested 
instruction,  and  is  not  bound  to  modify 
it  or  give  any  other  instruction  in  its 
place.  Eatcliffe  t.  Walker  (Va.J  1917E- 
1022. 

30.  Request  Based  on  Partial  Statement 
of  Evidence.  A  requested  instruction 
directing  a  verdict  for  defendant  if  the 
jury  should  find  certain  facts,  but  based 
on  an  incomplete  and  partial  statement  of 
the  evidence,  is  properly  refused.  Eat- 
cliffe V.  Walker  (Va.)  1917E-1022. 

31.  Requesting  Excessive  Number. 
Where  the  parties  request  over  100  in- 
structions, most  of  which  are  either  not 
the  law  or  are  not  applicable  or  merely 
repetitions,  such  conduct  is  an  abuse  of 
the  privilege  of  requesting  instructions. 
Lichtenstein  v.  L.  Eish  Furniture  Co. 
(111.)   1918A-1087.  (Annotated.) 

29 


32.  Effect  of  Erroneotis  Request.  In  a 
prosecution  for  assault  with  intent  to 
murder,  where  an  erroneous  requested  in- 
struction on  the  issue,  raised  by  the  proof 
of  defense  of  habitation,  served  to  call 
the  attention  of  the  court  thereto,  the 
failure  of  the  court  to  submit  such  issue 
to  the  jury  under  a  proper  instruction  is 
error.  State  v.  Cessna  (Iowa)  1917D- 
289. 

Note. 
Propriety     of     requesting     or     giving 
numerous  or  lengthy  instructions.    1918A- 
1091. 

5.     REPETITION. 

33.  Refusal  of  Requests  Already  Given. 

There  is  no  error  in  refusing  requested  in- 
structions abstractedly  correct,  where 
they  had  already  been  covered  by  the  in- 
structions given.  Oleson  v.  Fader  (Wis.) 
1917D-314. 

34.  Instructions  Given  In  Substance. 
There  is  no  error  in  the  refusal  of  re- 
quested instructions,  where  they  are  given 
in  substance,  and  in  so  far  as  the  facts 
of  the  case  call  for  instructions  upon  the 
matters  therein  requested.  Harris  v. 
Bremerton   (Wash.)   1916C-160. 

35.  Requests  Covered  by  General 
Charge.  The  refusal  of  instructions  fully 
covered  by  those  given  is  not  error. 
Nicoll  v.  Sweet  (Iowa)  1916C-661. 

36.  The  refusal  of  an  instruction  cov- 
ered by  the  charge  as  given  is  not  avail- 
able error.  Shoop  v.  Fidelity,  etc.  Co. 
(Md.)   1916D-954. 

37.  Where  the  court's  charge  is  explicit 
and  fair,  and  covered  all  the  aspects  of 
the  case  requiring  that  all  the  facts  must 
be  proved  against  defendant  beyond  a 
reasonable  doubt,  and  defines  reasonable 
doubt  in  the  language  of  defendant's 
counsel,  it  is  not  error  to  refuse  a  charge 
that  if  on  the  whole  case  the  jury  should 
find  that  the  evidence  was  evenly  bal- 
anced, or  they  were  unable  to  determine 
where  the  truth  lay,  that  created  a  rea- 
sonable doubt,  and  defendant  would  be 
entitled  to  an  acquittal.  Kaufman  v. 
United  States  (Fed.)  1916C-466. 

38.  In  a  father's  action  for  loss  of  ser- 
vices from  the  negligent  death  of  a  minor 
employee,  a  requested  charge  was  refused 
that  the  burden  was  upon  plaintiff  to  es- 
tablish that  the  falling  of  the  slate  from 
the  roof  that  caused  the  boy's  death  was 
not  one  of  the  dangers  incident  to 
the  employment.  The  court  submitted 
whether  it  was  defendant's  duty  to  in- 
spect the  roof  at  the  place  where  the  boy 
was  working,  and  instructed  that  plaintiff 
could  recover  only  if  the  jury  found  that 
defendant  owed  such  duty  to  the  boy  and 
failed  to  perform  it,  and  that  if  it  was 
the  boy's  duty  to  inspect  the  roof  of  the 


450 


entry,  or  if  the  entry  was 
change  wrought  by  him  and  the  other 
workmen,  and  its  condition  resulted  from 
what  they  did,  plaintiff  could  not  recover. 
Held,  that  the  requested  charge  was  prop- 
erly refused  as  being  substantially  in- 
cluded in  the  instructions  given.  Carnego 
V.  Crescent  Coal  Co.   (Iowa)    1916D-794. 

39.  Though  instructions  requested  by  a 
party  may  correctly  state  the  law,  yet  a 
judgment  will  not  be  reversed  for  refusal 
to  give  such  instructions,  if  the  law  ap- 
plicable to  the  issues  involved  is  correctly 
given  in  the  court's  charge.  Farmers' 
National  Bank  v.  McCoy  (Okla.)  1916D- 
1243. 

40.  The  refusal  of  requested  instruc- 
tions, fully  covered  by  given  instructions, 
is  not  erroneous.  Kimmina  v.  Montrose 
(Colo.)  1917A-407. 

41.  The  refusal  of  requests  covered  by 
the  granted  prayers  is  not  error.  Ameri- 
can Express  Co.  v.  Terry  (Md.)  1917C- 
650. 

42.  The  requests  to  charge,  so  far  as 
they  were  legal  and  pertinent,  were  cov- 
ered by  the  general  charge.  Loewenherz 
V.  Merchants',  etc.  Bank  (Ga.)  1917E- 
877. 

6.    IGNORING  EVIDENCE, 

43.  Ignoring  Admitted  Tacts.  Where 
defendant  insurance  company,  under  the 
issues,  admits  its  liability  on  the  policy 
for  an  amount  less  than  its  face,  an  in- 
struction requested  by  it,  which  ignored 
the  admitted  liability,  is  properly  refused. 
Shoop  V.  iUdelity,  etc.  Co.  (Md.)  1916I>- 
954. 

7.    CAUnONARY  INSTRUCTIONS. 

44.  Cautionary  Instruction  as  to  Mat- 
ter Stricken  Out.  Where  all  reference  to 
city  ordinances  in  an  action  for  the  death 
of  an  employee,  which  was  based  on  de- 
fendant's failure  to  furnish  fire  escapes 
as  required  by  statute,  was  stricken,  the 
jury  need  not  be  informed  that  they  can- 
not find  defendant  guilty  for  violating 
ordinances.  Lichtenstein  v.  L.  Fish  Fur- 
niture  Co.    (111.)    1918A-1087. 

45.  As  to  False  Testimony.  An  instruc- 
tion to  disregard  false  testimony  must 
be  conditioned  on  the  witness  wilfully  or 
knowingly  swearing  falsely,  and  the  omis- 
sion of  the  qualifying  words  "wilfully  and 
corrupt! v"  is  error.  Babb  v.  State  (Ariz.) 
19183-925. 

8.     WEIGHT    AND    SUFFICIENCY    OF 
EVIDENCE. 

46.  Credibility  of  Witness.  An  instruc- 
tion on  the  credibility  of  witnesses  is  not 
erroneous  as  invading  the  province  of  the 
jury    because    it    states    that     the    jury 


DIGEST. 

1916C— 1918B. 
subject    to       "should"  consider  the  interest  of  the  wit 


nesses,  rather  than  that  they  "may"  con- 
sider such  interest.  Pittsburgh,  etc.  E. 
Co.  ▼.  Chappell  (Ind.)  1918A-627. 

47.  Falsus  in  Uno.  It  was  proper  t<y 
charge  that  the  jury  are  the  sole  judge* 
of  the  weight  and  credibility  of  the  wit- 
nesses, but  that,  if  they  find  and  believ© 
that  any  witness  had  wilfully  sworn  falsely 
to  any  material  facts,  they  may  disregard 
the  whole  or  any  part  of  his  testimony. 
Hall  V.  Manufacturers*  Coal,  etc.  Co. 
(Mo.)    1916C-375. 

48.  Statement  That  There  has  Been  Per- 
jury at  Trial.  An  instruction  that  "there 
has  been  manifest  perjury  by  witnesses 
who  have  testified  in  this  case,  as  counsel 
for  both  sides  have  claimed  in  their  argu- 
ment. They,  of  course,  differ  as  to  which 
witnesses  have  testified  falsely.  It  is  for 
you  to  determine  from  all  of  the  evidence, 
which  includes  the  appearance  of  the  wit- 
nesses when  testifying  as  well  as  what 
they  said,  what  evidence  you  credit" — held 
erroneous,  as  violative  of  section  2994, 
N.  Mex.  Comp.  Laws  1897,  which  forbids 
comment  by  the  court  upon  the  weight  of 
the  evidence.  State  v,  Chavez  (N.  Mex.) 
1917B-127.  (Annotated.) 

49.  Weight — Deposition  as  Compared. 
With  Oral  Testimony.  The  weight  and 
credibility  of  the  testimony  of  witnesses 
whether  oral  or  by  deposition,  having  by 
proper  instructions  been  entirely  left  to 
the  jvy,  instructing  them  to  give  to  the 
testimony  of  one  testifying  by  deposition 
the  same  credence  and  weight  as  if  he  were 
present  and  testifying  in  open  court,  is 
not  error.  Hillis  v.  Kessinger  (Wash.)- 
1917D-757.  (Annotated.) 

50.  Instruction  as  to  Credibility — Sing- 
ling Out  Particular  Witness.  In  prosecu- 
tion for  horse  stealing,  instruction  that  if 
testimony  of  a  witness,  naming  him,  had 
been  attacked  through  bias,  and  that  if 
beyond  a  reasonable  doubt  such  witness 
testified  truthfully,  his  testimony  should 
have  the  same  weight  and  credence  as  that 
of  any  other  witnesses,  is  erroneous  and 
prejudicilal  as  singling  out  the  testimony 
of  a  single  witness  and  giving  undue  prom- 
inence to  an  isolated  fact.  Babb  v.  State- 
(Ariz.)   1918B-925. 

51.  Invasion  of  Province  of  Jury — Posi- 
tive and  Negative  Testimony.  In  prosecu- 
tion for  horse  stealing,  instruction  that 
positive  evidence  of  one  credible  witness 
is  entitled  to  more  weight  than  the  tes- 
timony of  several  witnesses  who  testify 
negatively  or  to  collateral  circumstances  is 
erroneous,  as  invasive  of  the  jury's  province 
to  determine  the  weight  of  evidence. 
Babb  V.  State  (Ariz.)   1918B-925. 

52.  Manner  of  Stating  Issues — Reading 
Pleadings.  In  an  action  for  death  of  a 
railroad  employee,  where  the  trial  court, 
instead   of   stating   the   issues   of   fact   to- 


INSTRUCTIONS. 


451 


the  jnry,  reads  a  portion  of  the  declara- 
tion of  the  plaintiff,  and  directs  the  jury 
to  find  in  favor  of  the  plaintiff  if  the 
greater  weight  of  the  evidence  is  on  that 
side  on  any  one  or  more  of  the  five  counts, 
such  charge  is  error,  certain  averments  of 
negligence  not  being  supported  by  the 
proof,  and  no  proof  being  offered  as  to 
some  of  the  matters  charged.  Nashville, 
etc.  Ky.  v.  Anderson  (Tenn.)  1917E>- 
902. 

53.  Comment   on  Weight   of  livldence. 

Under  our  law  a  trial  judge  is  not  per- 
mitted to  comment  on  the  evidence,  or  to 
give  to  the  jury  his  views  of  its  weight. 
Florida  East  Coast  B.  Co.  v.  Carter  (Fla.) 
1916E-1299. 

9.     INSTRUCTIONS  UNSUPPORTED  BY 

EVIDENCE. 

54.  In  a  striking  employee's  action  for 
damages  sustained  from  his  eviction  from 
a  house  occupied  by  him  as  part  compen- 
sation for  his  services,  where  there  is  no 
evidence  as  to  the  use  of  excessive  force, 
plaintiff  is  not  entitled  to  go  to  the  jury 
on  that  issue.  Lane  v.  Au  Sable  Electric 
Co.  (Mich.)  1916C-1108. 

55.  There  was  no  evidence  in  the  case 
that  plaintiff  was  employed  by  parties 
other  than  defendants,  and  a  submission 
of  that  question  to  the  jury  was  error. 
Lufkin  V.  Harvey  (Minn.)  1917D-583. 

(Annotated.) 

56.  Instruction  not  Applicable  to  Evi- 
dence— Prejudicial  Effect.  In  a  prosecu- 
tion for  involuntary  manslaughter  com- 
mitted by  reckless  driving  of  automobile, 
where  there  is  no  claim  and  no  evidence 
of  any  intent  to  kill,  an  instruction  that 
intent  may  be  proved  by  direct  testimony, 
etc.,  although  having  no  place  in  the  case, 
cannot  mislead  the  jury.  People  v.  Falk- 
ovitch    (111.)   1918B-1077. 

57.  Operation  of  Engine  Causing  Fire. 
In  an  action  for  damages  by  a  fire  set  by 
defendant's  engine,  an  instruction  on  the 
theory  that  defendant  had  taken  over  a 
contract  under  which  a  third  person  had 
theretofore  operated  the  engine  is  errone- 
ous, where  the  evidence  showed  that  de- 
fendant was  operating  the  engine  under  its 
own  contract  with  the  plaintiff.  Hodges  v, 
Baltimore  Engine  Co.  (Md.)  I917C-766. 

58.  Action  for  Personal  Injury.  In  an 
action  for  the  death  of  a  licensee  engaged 
in  repairing  a  coal-laden  steamer  at  de- 
fendant's discharging  dock,  killed  by  coal 
which  dropped  from  the  Ijuckets,  an  in- 
struction as  to  decedent's  dullness  of  hear- 
ing is  properly  refused,  where  it  does  not 
appear  that  it  had  anything  to  do  with  the 
injury,  and  where,  others  present  of  sound 
hearing  and  in  a  position  to  hear  did  not 
hear  defendant's  alleged  warnings.  Tay- 
lor V.  Northern  Coal,  etc.  Co.  (Wis.)  1916C- 
167. 


59.  Limitation  to  Evidence.  The  charges 
to  the  jury  should  be  confined  to  the  evi- 
dence in  the  case.  Florida  East  Coast  B. 
Co.  V.  Carter  (Fla.)  1916E-1299. 

W.  INSTRUCTIONS  ASSUMING  FACT 
IN  ISSUE. 

60.  Instructions  Disapproved.  Certain 
excerpts  from  the  charge  were  open  to  the 
criticism  that  they  were  not  properly  ad- 
justed to  the  facts  of  the  case.  Peagler  v, 
Davis  (Ga.)   1917A-232. 

61.  Confining  Charge  to  Issues.  An  in- 
struction authorizing  verdict  for  defend- 
ant if  it  was  not  proved  true  that  plaintiff 
was  a  hypocrite  was  not  within  the  issues; 
the  answer  merely  denying  that  the  pub- 
lished cartoon  was  susceptible  of  the  im- 
putation that  he  was  a  hypocrite.  Newby 
v.  Times-Mirror  Company  (Gal.)  1917E- 
186. 

62.  Applicability  to  Issues.  In  an  ac- 
tion at  law  for  breach  of  contract,  wherein 
defendant  set  up  the  alteration  of  the  con- 
tract, but  there  was  no  evidence  that  de- 
fendant retained  any  benefit  received 
under  the  contract  as  changed,  with  knowl- 
edge of  the  change,  instructions  touching 
ratification  by  reason  of  such  retention 
are  inapplicable  because  not  within  the 
issues.  Smith  v.  Barnes  (Mont.)  I917D- 
330. 

11.  ADVISING  JURY  TO  DISREGARD 

ARGUMENT  OF  COUNSEL. 

63.  Where,  in  an  action  for  injuries  at 
a  railroad  crossing,  a  controversy  arises 
during  the  argument  over  a  statement 
made  therein  that  defendant's  offer  to  com- 
promise was  an  admission  of  liability,  de- 
fendant is  then  entitled  to  request  and 
have  the  court  give  an  instruction  that 
such  was  not  the  effect  thereof.  St.  Louis 
Southwestern  R.  Co.  v.  Mitchell  (Ark.) 
1916E-317. 

12.  ARGUMENTATIVE  INSTRUCTIONS. 

64.  Argumentative  instructions  should 
not  be  given.  American  Bauxite  Co.  v. 
Dunn  (Ark.)  1917C-625. 

13.  INSTRUCTIONS      AS      TO     ABAN- 

DONED ISSUE. 

65.  Necessity  of  Instructing.  Where  in 
an  action  for  the  conversion  of  electrical 
machinery,  sold  to  a  contractor  to  be 
placed  in  an  electrical  plant  for  defendant, 
the  case  was  tried  on  the  theory  that  the 
selling  price  was  competent  proof  as  to  the 
value  of  the  machinery,  it  cannot  be  said 
that  it  was  error  not  to  instruct  more 
definitely  on  the  question  of  the  reasonable 
value  of  the  machinery,  or  that  the  trial 
theory  was  erroneous,  in  the  absence  of 
any  request  therefor.  Allis-Chalmers  Co. 
v.  Atlantic  (Iowa)  1916D-9I0. 


452 


DIGEST. 

19160— 1918B. 


14.    PRESUMPTION". 


6C.  Presumption  frdm  Failure  to  Produce 
Evidence.  It  ia  proper  to  instruct  that  as 
a  matter  of  law  the  failure  of  the  plaintiff 
to  produce  a  material  witness  creates  a 
presumption  that  his  testimony  if  pro- 
duced would  be  unfavorable  to  the  plain- 
tiff. Carmody  v.  Capital  Traction  Co. 
(D.  C.)  19I6IX-706. 

INSTEUXkEBNTS. 
See  Alteration  of  Instruments. 

INSUIiTINO  LANGUAGE. 
By  conductor  to  passenger,  actionable,  see 
Carriers  of  Passengers,  25. 

INSTJEABLB  INTEREST. 
See   Fire   Insurance,    7;    Life   Insurance, 

1-15. 
Under  industrial  policy,  see  Insurance,  61. 

INSUEANOE. 

1.  Insurance  Agents  and  Brokers,  452. 

a.  In  General,  452. 

b.  Liability  to  Insured,  452. 

c.  Liability  to  Insurer,  453. 

2.  Statutory  Regulations,  453. 

3.  Construction    and    Validity    of    Policy 

Generally,  453. 

4.  Commencement  of  Risk,  454. 

5.  "Warranties  and  Representations,  454. 

6.  Waiver  of  Provisions,  454. 

7.  Forfeiture  or  Suspension  of  Policy,  454. 

8.  Fidelity  Insurance,  455. 

9.  Liability  Insurance,  456. 

a.  Construction  of  Contract,  456. 
b.  Actions,  456. 

10.  Animal  Insurance,  457. 

11.  Automobile  Insurance,  457. 

a.  Construction  of  Contract,  457. 

b.  Adjustment  of  Loss,  457. 
e.  Actions,  457. 

12.  Credit  Insurance,  457. 

13.  Hail  Insurance,  458. 

14.  Burial  Insurance,  458. 

15.  Tornado  Insurance,  458. 

16.  Industrial  Insurance,  458'. 

See  Accident  Insurance;  Beneficial  Asso- 
ciations, 1-7;  Fire  Insurance;  Life  In- 
surance. 

Construction  of  Standard  Policy  Law,  see 
Accident  Insurance,  9. 

Action  against  insurer's  attorney  for  neg- 
ligence, see  Negligence,  63-65,  69. 

Insolvency,  premiums  trust  fund,  see  Re- 
ceivers, 11. 

Bights  of  insurer  against  tortfeasor,  see 
Subrogation,  1-6. 

1.    INSURANCE       AGENTS      AND 
BROKERS. 

a.    In  General. 

1.  An    insurance    company,    having    no 
knowledge  until  after  a  loss  that  the  prop- 


erty insured  by  a  policy  issued  by  its 
agent,  authorized  to  issue  policies,  was 
owned  by  a  corporation  of  which  he  was  a 
stockholder,  did  not  ratify  the  act  of  the 
agent  by  making  no  objection  to  the  re- 
port of  the  agent  that  the  policy  was 
issued,  made  shortly  after  its  issuance. 
Riverside  Development  Co.  v.  Hartford 
Fire  Ins.  Co.  (Miss.)  1916D-1274. 

(Annotated.) 

2.  Insurance  by  Agent  of  Property  of 
Corporation  of  WMch  Agent  is  Stock- 
holder. An  agent  authorized  to  issue  in- 
surance policies  cannot  bind  his  principal 
by  issuing  a  policy  on  property  owned  by 
him  or  in  which  he  has  an  interest  ad- 
verse to  that  of  his  principal,  or  on  prop- 
erty owned  by  a  corporation  of  which  he  is 
a  stockholder,  though  the  rate  of  premium 
is  fixed,  and  though  he  acted  in  good  faith 
in  issuing  it.  Riverside  Development  Co. 
v.  Hartford  Fire  Ins.  Co.  (Miss.)  1916D- 
1274.  (Annotated.) 

Note. 

Validity  of  insurance  policy  issued  by 
agent  on  property  of  corporation  of  which 
agent  is  stockholder.     1916D-1275. 

b.    Liability  to  Insured. 

3.  Failure  to  Procure  Insurance.  In  a 
petition  in  which  it  is  substantially  alleged 
that  a  broker  or  agent  undertook  to  pro- 
cure insurance  on  certain  property  of  an 
owner  in  some  responsible  company  and 
where  the  parties  agreed  on  the  total 
amount  of  insurance,  the  amount  to  be 
placed  on  each  class  of  the  property  to  be 
insured,  and  that  the  premium  should  be 
taken  from  a  certain  fund  provided  by 
the  owner,  but  that  the  broker  neglected 
to  procure  the  insurance,  and  in  reply  to 
an  inquiry  of  the  owner  had  assured  him 
that  the  insurance  had  been  obtained,  and 
the  property  is  thereafter  destroyed  by 
fire,  a  cause  of  action  against  the  broker 
is  stated,  and  certainly  sufficient  as  against 
an  objection  of  the  defendants  to  the  in- 
troduction of  any  evidence.  Rezac  v. 
Zima  (Kan.)    1918B-1035. 

(Annotated.) 

4.  A  broker  or  agent  who  undertakes  to 
procure  insurance  for  another  is  bound  to 
exercise  reasonable  diligence  to  obtain  it 
on  the  terms  and  conditions  agreed  upon 
and  to  give  timely  notice  to  his  principal  in 
case  he  is  unable  to  procure  it  on  the 
agreed  terms  and  conditions,  and  if  he  fails 
to  carry  out  his  agreement  and  a  loss  re- 
sults through  his  inattention,  incapacity  or 
fraud  he  will  be  liable  to  the  extent  and 
for  the  amount  that  would  have  been  re- 
coverable upon  the  insurance  he  had 
agreed  to  procure.  Rezac  v.  Zima  (Kan.) 
1918B-1035.  (Annotated.) 

Note. 
Liability   of  insurance    agent   to    owner 
of  property  for  failure  to  procure  insur- 
ance.    1918B-1037. 


INSURANCE. 


453 


e.    Liability    to    Insurer. 

5.  Unauthorized  Issuance  of  Policy- 
An  insurance  agent  who  issues  a  policy 
of  insurance  in  violation  of  the  instruc- 
tions of  his  company  is  liable  to  the  com- 
pany for  the  amount  of  insurance  paid 
and  expenses  incurred  by  the  company  on 
account  of  a  loss  under  the  policy.  In- 
surance Co.  V.  Baer  (Kan.)  1917B-491. 

(Annotated.) 

6.  An  insurance  agent  cannot  defeat  his 
liability  to  his  company  for  issuing  a  pol- 
icy in  violation  of  his  instructions  by 
showing  that  the  company  might  have  es- 
caped liability  on  the  policy  by  litigation. 
Insurance  Co.  v.  Baer  (Kan.)    1917B-491. 

(Annotated.) 

7.  Failure  to  Collect  Premium.  Where 
an  insurance  company's  agents  failed  to 
comply  with  the  company's  demand  that 
they  either  cancel  a  policy  or  collect  an 
additional  premium,  and  such  demand  con- 
tinued for  several  months  and  until  a  loss 
occurred  nearly  six  months  after  issu- 
ance of  the  policy,  and  where  the  com- 
pany knew  during  such  time  that  the 
policy  was  oustanding  and  made  no  un- 
conditional demand  for  its  cancellation, 
the  liability  of  the  agents  is  limited  to 
the  amount  of  the  additional  premium, 
and  they  are  not  liable  for  the  sum  paid 
by  the  company  in  settlement  of  the  loss. 
Phoenix  Ins.  Co.  v.  Banks  (Ark.)  1916D- 
649. 

Notes. 

Liability  of  agent  to  insurance  com- 
pany for  failure  to  collect  premium. 
1916D-631. 

Liability  of  agent  to  insurance  com- 
pany for  issuing  policy  in  violation  of 
instruction.     I917B-493. 

2.    STATUTOEY  REGULATIONS. 

8.  The  standard  form  of  insurance  pol- 
icy prescribed  by  N.  Car.  Revisal  1905, 
§  4760,  in  making  provision  for  subroga- 
tion, is  declaratory  of  existing  principles. 
Powell  &  Powell  v.  Wake  Water  Co. 
<N.  Car.)  1917A-1302. 

Note. 
Liability  for  inducing  change  of  bene- 
ficiary in  insurance  policy.    1917A-^73. 

<?.     CONSTRUCTION     AND     VALIDITY 
OF   POLICY   GENERALLY. 

9.  Essentials  of  Insurance  Contract — 
Implied  Terms.  Some  of  the  essentials  of 
a  valid  contract  of  insurance  may  be  un- 
expressed and  rest  in  implication.  Royal 
Ins.  Co.  V.  Walker  Lumber  Co.  (Wyo.) 
1917E-1174. 

10.  Construction  Favoring  Insured.  In 
case  of  ambiguity  in  the  provision  of  an 
insurance  policy,  that  construction  should 
be  adopted  which  is  more  favorable  to  the 


insured  or  those  claiming  under  the  policy. 
Royal  Ins.  Co.  v.  Walker  Lumber  Co. 
(Wyo.)   1917E-1174. 

11.  What  Constitutes  Insurance  Con- 
tract. Where  a  corporation  contracts  with 
its  subscribers  to  procure  for  them  medi- 
cal services,  drugs,  and  merchandise,  at  a 
relatively  low  rate,  not  guaranteeing  per- 
formance by  the  individuals,  who  are  to 
furnish  services  and  goods,  such  corpora- 
tion is  not  engaged  in  the  insurance  busi- 
ness subjecting  it  to  the  authority  of  the 
insurance  commissioners,  since  by  Laws 
Wash.  1911,  p.  161  (the  Insurance  Code), 
"insurance"  is  a  contract  whereby  one 
party,  called  the  "insurer,"  for  a  consider- 
ation, undertakes  to  pay  money  or  its 
equivalent,  or  to  do  an  act  valuable  to  an- 
other party,  called  the  "insured,"  or  his 
beneficiary,  upon  the  happening  of  the 
hazard  or  peril  insured  against,  whereby 
the  party  insured  or  his  beneficiary  suffers 
loss  or  injury,  while  in  the  instant  case 
there  is  no  hazard  or  peril  whereby  the 
purchasers  of  contracts  may  suffer  a  loss 
or  injury  which  the  corporation  insures 
against.  State  v.  Universal  Service 
Agency  (Wash.)   1916C-1017. 

(Annotated.) 

12.  Interpretation  Favoring  Insured.  A 
policy  reasonably  susceptible  of  two  inter- 
pretations will  be  construed  most  favor- 
ably for  insured.  Moore  v.  Aetna  Life 
Ins.  Co.  (Ore.)  1917B-1005. 

13.  The  terms  of  a  policy  of  insurance 
are  construed  against  the  insurer  and  in 
favor  of  insured,  even  though  a  standard 
form  of  policy  has  been  adopted  under 
legislative  enactment.  Cottingham  v. 
Marvland  Motor  Car  Ins.  Co.  (N.  Car.) 
1917B-1237. 

14.  In  case  of  ambiguity  in  an  insur- 
ance policy,  it  should  be  construed  in 
favor  of  indemnity  to  insured,  rather  than 
as  being  useless  and  nugatory.  Rosenthal 
V.  Insurance  Co.  (Wis.)  1916E-395. 

15.  The  rule  that  policies  of  insurance^ 
should  be  liberally  construed  in  favor  of* 
insured,  because  prepared  by  the  insurer, 
has  no  application,  where  the  contract  is 
in   the  form  prescribed  by  statute.     Ros- 
enthal V.  Insurance  Co.  (Wis.)  1916E-395. 

16.  Where  words  are  so  used  in  a  con- 
tract of  insurance  that  their  meaning  is 
ambiguous  or  susceptible  of  two  interpre- 
tations differing  in  import,  that  interpre- 
tation which  will  sustain  the  claim  of  the 
policyholder  and  cover  the  loss  should  be 
adopted.  Lane  v.  Grand  Fraternity 
(Tenn.)   1917A-376. 

17.  Though  an  insurance  contract  pre- 
pared by  the  company,  when  doubtful  or 
ambiguous  in  its  terms,  will  always  be 
construed  in  favor  of  the  insured,  it  should 
be  construed,  like  other  contracts,  so  as  to 
give  effect  to  the  intention  and  express 
language  of  the  parties.  Seav  v.  Georgia 
Life   Ins.   Co.    (Tenn.)    1916E^1157. 


454 


DIGEST. 

1916C— 1918B. 


18.  Insurance  contracts,  if  doubtful  or 
equivocal,  are  construed  against  the  in- 
surer American  Surety  Co.  v.  Pangburn 
(Ind.)  1916E-1126. 

19.  By-laws  of  Insureir— Conflict  With 
Statute.  By-laws  of  a  mutual  insurance 
association,  in  conflict  with  express  stat- 
utory provisions,  cannot  be  sustained. 
Schultz  V.  Des  Moines  Mutual  Hail,  etc. 
Ins.  Assoc.   (S.  Dak.)   1917D-78. 

20.  Conditions  in  Policy.  An  insurance 
company  may  insert  in  its  policy  reason- 
able conditions  as  to  the  use  of  the  prop- 
erty insured.  Crowell  v.  Maryland  Motor 
Car  Ins.  Co.  (N.  Car.)  1917D-50. 

21.  Eulcs  of  Construction.  An  insur- 
ance policy  should  be  fairly  and  reason- 
ably construed,  unless  it  is  so  clear  and 
unambiguous  as  not  to  require  a  construc- 
tion, when  its  words  are  taken  in  their 
plain  and  ordinary  sense.  Crowell  v. 
Maryland  Mptor  Car  Ins.  Co.  (N.  Car.) 
1917D-50. 

22.  An  insurance  policy  should  be  so 
construed  as  to  effectuate  the  purpose  of 
indemnification  against  loss,  rather  than 
to  defeat  it.  Crowell  v.  Maryland  Motor 
Car  Ins.  Co.  (N.  Car.)   1917D-50. 

23.  An  insurance  policy  should  be  in- 
terpreted by  the  rules  which  are  applicable 
to  other  written  contracts  to  ascertain  and 
give  effect  to  the  intention  of  the  parties. 
Crowell  V.  Maryland  Motor  Car  Ins.  Co. 
(N.  Car.)   1917D-50. 

Note. 
What    is    an    "insurance    company"    or 
"contract   of   insurance."     1916C'-1022. 

4.    COMMENCEMENT  OF  EISK. 

24.  Validity  of  Oral  Contract.  An  oral 
contract  of  insurance  is  valid,  unless  pro- 
hibited by  statute,  and  will  be  binding 
from  the  time  it  is  complete,  although  loss 
occurs  before  the  policy  is  issued.  Eoyal 
Ins.  Co.  V.  Walker  Lumber  Co.  (Wyo.) 
1917&-1174. 

•25.  When  Policy  Becomes  Effective.  An 
insurance  policy  providing  that  it  shall 
not  beeome  effective  until  delivery,  and 
which  is  sent  to  a  local  agent  with  in- 
structions not  to  deliver  it  until  a  certain 
matter  is  adjusted,  does  not  become  effec- 
tive on  his  adjusting  the  matter  in  ques- 
tion, neither  that  policy  or  the  new  one 
sent,  in  view  of  the  adjustment  having 
been  delivered.  Donovan  v.  Excelsior 
Life  Ins.  Co.  (Can.)  1917D-2S3. 

(Annotated.) 

6.     WARRANTIES  AND  REPRESENTA- 
TIONS. 

26.  Unintentional      False      Statements. 

\V'hcre   one   applying  for  insurance   truth- 
fully states  all  the  facts  required  by  the 


application  to  the  insurer's  agent,  who  fills 
out  the  application  falsely  and  not  in  ac- 
cordance with  the  applicant's  statements, 
and  the  latter  does  not  read  over  the  ap- 
plication, or  have  it  read  over  to  him, 
and  has  no  reason  to  suspect  disparity, 
he  is  not  guiltv  of  fraud,  and  may  recover. 
Simmons  v.  I^ational  Live  Stock  Ins.  Co. 
(Mich.)   1917D-42. 

6.     WAIVER   OF   PROVISIONS. 

27.  Necessity  of  Written  Waiver.  A 
provision  of  an  insurance  policy  that  none 
of  its  conditions  shall  be  deemed  waived, 
unless  in  writing,  signed  by  the  president 
or  vice  president  of  the  company,  with  its 
seal  attached,  cannot  prevent  a  waiver 
by  the  company  itself,  acting  through  its 
officers  who  have  charge  of  its  business. 
Citizens'  Trust,  etc.  Co.  v.  Globe,  etc.  Fire 
Ins.  Co.  (Fed.)  1917C-416. 

28.  Waiver  of  Defects.  Regardless  of 
the  clause  in  a  policy  that  no  officer, 
agent,  or  other  representative  of  the  in- 
surance company  shall  have  the  power  to 
waive  any  of  its  provisions  or  conditions, 
where  other  proofs  than  those  required  in 
the  policy  are  accepted  by  an  agent,  au- 
thorized to  adjust  a  loss,  the  company  will 
be  deemed  to  have  waived  the  provisions 
of  the  policy  fixing  the  manner  of  making 
proof  of  loss.  Theriault  v.  California  Ins. 
Co.  (Idaho)  1917D-818. 

29.  Necessity  of  Pleading,  Waiver  of 
Payment  of  Premiums.  Waiver  of  a  mat- 
ter relied  on  as  a  defense  must  be  pleaded 
to  be  availed  of;  and  hence,  where  plain- 
tiff did  not  plead  waiver  of  the  provisions 
in  an  insurance  certificate  requiring  pay- 
ment of  premiums,  evidence  of  waiver  is 
inadmissible.  Schworm  v.  Fraternal  Bank- 
ers Reserve  Soc.   (Iowa)   1917B-373. 

Note. 
Waiver  of  conditions  in  insurance  pol- 
icy by  insurer's  failure  to  inquire  into  ex- 
isting facts.     1917B-500. 

7.    FORFEITURE  OR  SUSPENSION  OP 
POLICY. 

30.  Suspension  for  Nonpayment  of  Prem- 
ium. S.  Dak.  Civ.  Code,  §  677,  provides 
that  no  insurance  policy  shall  be  forfeited 
or  suspended  for  nonpayment  of  any  note 
or  obligation  taken  for  the  premium  or 
any  part  thereof  unless  the  insurer  shall 
give  the  required  notice  to  the  insured. 
Section  678  provides  that  the  term  "prem- 
ium" includes  policy  fees  and  all  other 
sums  of  money  paid  or  agreed  to  be  paid 
in  consideration  of  a  policy  of  insurance. 
Section  685  provides  that  the  foregoing 
provisions  ghall  apply  to  all  insurance  com- 
panies and  associations,  both  stock  and 
mutual,  transacting  the  business  of  insur- 
ing property.  It  is  held  that  one  insured 
by  a  mutual  hail  and  cyclone  insurance  as- 


INSURANCE. 


455 


«ociation,  who  gave  a  note  for  the  pay- 
ment of  the  assessments  to  be  levied  each 
year,  was  entitled  to  the  statutory  notice 
before  his  policy  could  be  suspended  for 
nonpayment  of  any  assessment,  notwith- 
fltanding  a  provision  in  the  by-laws  of  the 
company  to  the  contrary,  since  that  re- 
quirement was  expressly  made  applicable 
to  mutual  insurance  companies.  Schultz  v. 
Des  Moines  Mutual  Hail,  etc.  Ins.  Assoc. 
(S.  Dak.)  1917D-78. 

8.     FIDELITY  INSURANCE. 

31.  Acts  Covered  by  Policy.  The  evi- 
dence is  held  to  sustain  a  recovery  on  a 
policy  insuring  against  loss  by  reason  of 
"fraud  or  dishonesty"  of  an  agent,  where, 
while  there  was  a  dispute  between  the 
principal  and  agent  as  to  the  amount  of 
compensation  which  the  agent  was  entitled 
to  retain  from  collections  made,  he  used 
the  money  so  collected,  and  was  unable  to 
pay  it  over  on  final  settlement.  Citizens' 
Trust,  etc.  Co.  v.  Globe,  etc.  Fire  Ins.  Co. 
(Fed.)  1917C-416.  (Annotated.) 

32.  Failure  to  Disclose  Existing  Indebt- 
edness of  Employee.  A  renewal  surety 
bond,  insuring  a  principal  against  loss  by 
reason  of  the  fraud  or  dishonesty  of  an 
agent,  which  was  procured  by  the  agent, 
is  not  invalidated  by  the  fact  that,  when 
the  renewal  was  made,  the  agent  owed  the 
principal  a  considerable  balance,  of  which 
the  insurer  was  not  advised,  where  the 
principal  had  no  communication  with  the 
insurer,  was  not  asked  the  state  of  its  ac- 
count, and  had  no  knowledge  of  fraud  or 
dishonesty  on  the  part  of  the  agent.  Citi- 
zens' Trust,  etc.  Co.  v.  Globe,  etc.  Fire 
Ins.  Co.  (Fed.)  1917C-416. 

33.  Scope  of  Policy.  A  mere  recital  in  a 
surety  bond  given  by  an  agent  that  he 
has  been  appointed  agent  at  a  certain  place 
does  not  limit  the  scope  of  the  bond,  or  the 
liability  of  the  surety  to  business  done  by 
the  agent  at  such  place.  Citizens'  Trust, 
etc.  Co.  V.  Globe,  etc.  Fire  Ins.  Co.  (Fed.) 
1917C-416. 

34.  Construction   in  Favor   of   Insured. 

The  purpose  of  contracts  of  fidelity  insur- 
ance to  procure  full  indemnity  should  not 
be  defeated,  except  by  clear  and  unam- 
biguous limitations,  assented  to  by  the 
parties,  and  all  ambiguities  of  expression, 
as  in  other  insurance  contracts,  are  to  be 
construed  most  favorably  to  the  assured. 
Dominion  Trust  Co.  v.  National  Surety 
Co.  (Fed.)  1917C-447. 

35.  Acts  Covered  by  Policy.  Under  a 
surety  bond  insuring  a  corporation  against 
loss  through  the  personal  dishonesty, 
amounting  to  larceny  or  embezzlement,  of 
its  president,  the  insurer  is  not  liable  for 
a  loss  due  to  the  act  of  the  president  in 
issuing,  in  exchange  for  stock  held  by  him, 
new  certificates  for  greatly  increased  num- 
bers of  shares,  which  he  sold  and  pledged, 


as  his  acts  did  not  amount  to  larceny  or 
embezzlement,  though  the  corporation's 
4oss  was  as  complete  as  if  money  had  been 
stolen  or  embezzled.  Dominion  Trust  Co. 
V.  National  Surety  Co.  (Fed.)  1917C-447, 

(Annotated.) 

36.  Failure  to  Give  Notice  of  Defalca- 
tion. Underva  surety  bond  insuring  a  cor- 
poration against  loss  through  the  dishon- 
esty of  its  president,  providing  that  if  at 
any  time  there  should  come  to  the  notice 
or  knowledge  of  the  corporation  any  act, 
fact,  or  information  indicating  that  the 
president  was  dishonest  it  should  immedi- 
ately notify  the  insurer,  that  upon  discov- 
ery by  it  that  a  loss  had  been  sustained  it 
should  immediately  notify  the  insurer  and 
within  the  time  limited  make  and  furnish 
claim  for  and  proof  of  loss,  and  that  fail- 
ure to  give  such  immediate  notice  or  make 
such  claim  or  such  proof  should  relieve  the 
company  from  all  liability  thereunder, 
where  after  the  president  had  issued,  in  ex- 
change for  stock,  certificates  for  greatly 
increased  numbers  of  shares,  but  before 
the  discovery  thereof  the  corporation  dis- 
covered that  he  had  stolen  cash  and  securi- 
ties belonging  to  it,  but,  the  loss  occasioned 
thereby  having  been  partly  repaired,  it 
gave  no  notice  to  the  insurer,  but  sought 
and  obtained  renewals  of  the  bond,  the  in- 
surer is  relieved  from  all  liability  for  the 
antecedent  dishonesty  in  connection  with 
the  issuance  of  the  stock  certificates.  Do- 
minion Trust  Co.  V.  National  Surety  Co. 
(Fed.)  1917C-477. 

37.  Acts  Outside  Employment.  M.  ap- 
plied to  plaintiff  for  assistance  in  procur- 
ing cash  to  carry  M.'s  business,  and  to 
that  end  they  made  a  contract  by  which 
plaintiff  agreed  to  "employ  said  M.  as  col- 
lector or  agent  to  collect  certain  bills  as- 
signed to"  plaintiff,  "and  to  pay  and  allow 
said  M.  1  per  cent  on  all  such  collections." 
The  practice  of  the  parties  was  for  M.  to 
assign  to  plaintiff  a  number  of  accounts 
receivable,  due  from  M.'s  customers,  and 
receive  from  plaintiff  their  full  value,  less 
15  or  18  per  cent,  which  accounts  plain- 
tiff gave  to  M.  for  collection  as  if  no  as- 
signment had  been  made;  M.'s  customers 
not  being  notified  of  such  assignment. 
Afterwards  the  parties  had  a  settlement, 
in  which  M,  paid  plaintiff  "interest  and 
expenses"  on  the  sum  paid  M.  when  the 
assignments  were  made,  and  M.  never  in 
fact  received  a  commission  for  collecting 
the  accounts  assigned.  The  bond  executed 
by  defendant,  providing  for  reimburse- 
ment to  plaintiff  for  all  loss  through  M.'s 
dishonesty,  recited  that  M.,  "hereinafter 
called  the  'employee,'  has  been  appointed 
to  the  position  of  agent  and  collector  in 
the  service  of  [plaintiff],  hereinafter 
called  the  'employer.' "  Plaintiff's  state- 
ment of  the  character  of  the  position 
stated  that  M.'s  "position"  was  "agent  or 
collector,"  and  that  the  duties  were  the 
"collection  of  accounts  assigned  to  me  for 


456 


same"  for  a  "commission  or  percentage 
as  collected."  M.'s  application  for  the 
bond  stated  that,  in  addition  to  his  salary 
as  "agent  or  collector,"  he  was  to  have  an 
"income  from  business  now  in,"  referring 
to  M.'s  business.  It  is  held  that  M.'s  col- 
lection of  accounts  assigned  by  him  to 
plaintiff  and  appropriation  of  the  proceeds 
to  his  own  use  were  not  acts  committed  in 
the  course  of  the  employment  described  in 
the  bond,  so  as  to  make  defendant  liable 
to     plaintiff     therefor.     Coyle     v, 


States   Fidelity,  etc. 
450. 


United 

Co.    (Mass.)    1917C- 

(Annotated.) 

38.  Notice  of  Claim.  A  policy  of  fidel- 
ity insurance  issued  to  an  insurance  com- 
pany on  account  of  an  agency  required 
the  assured  to  give  immediate  notice  of 
any  loss,  or  of  facts  indicating  that  loss 
had  probably  been  sustained.  The  as- 
sured notified  the  insurer  of  a  claim 
against  the  agency  several  months  overdue, 
explaining  that  the  delay  in  giving  notice 
was  due  to  its  continued  attempts  to  ob- 
tain settlement  and  statement  of  the  ac- 
count. The  insurer,  without  objecting  to 
the  notice,  also  assisted  in  trying  to  ob- 
tain an  agreement  between  the  parties. 
It  is  held  that  it  thereby  waived  the  con- 
dition requiring  immediate  notice.  Citi- 
zens Trust,  etc.  Co.  v.  Globe,  etc.  Fire 
Ins.  Co.  (Fed.)   1917C-416. 

39.  Eecovery  of  Premium.  Where  a 
county  trustee  gave  bond  with  a  surety 
company  as  surety  for  the  faithful  per- 
formance ot  his  duties,  and  paid  a  prem- 
ium of  $4,000  in  advance,  and  died  after 
six  months,  during  which  time  the  bulk  of 
the  funds  passing  through  his  hands  were 
collected  and  disposed  of,  his  administra- 
trix cannot  recover  back  one-half  of  the 
premium,  since  the  risk  had  attached,  and 
neither  it  nor  the  premium  can  be  appor- 
tioned. Crouch  V.  Southern  Surety  Co. 
(Tenn.)  1916C-1220.  (Annotated.) 

Notee. 

Recovery  of  premium  paid  for  fidelity 
insurance.     1916C-1222. 

Act  or  default  of  employee  covered  by 
fidelity  bond  or  insurance.     1917C-420. 

9.     LIABILITY  INSURANCE. 
a.     Construction  of  Contract. 

40.  Under  a  contract  indemnifying 
against  loss  through  actions  brought  for 
injuries  by  employees  that  the  insurer  has 
exercised  its  option  to  defend  the  suit  and 
appealed  from  an  adverse  judgment,  but 
was  unsuccessful,  and  merely  created  an 
extra  charge  in  damages  and  interest,  does 
not  make  it  liable  therefor  beyond  the 
amount  limited  in  the  contract,  since  such 
contract  was  made  in  view  of  that  contin- 
gency. Little  Cahaba  Coal  Co.  v.  Aetna 
Life  Ins.  Co.  (Ala.)   1917D-863. 

(Annotated.) 


DIGEST. 

19160— 1918B. 

41.  Extent  of  Eecovery.  A  contract  in- 
demnifying an  employer  against  loss  or 
expense  resulting  from  an  injury  or  acci- 
dent to  its  employees  stipulated  that  the 
insurer's  liability  for  loss  should  be  lim- 
ited to  $5,000;  that  the  insurer  was  to  pay 
the  expenses  of  litigation  in  addition  to 
the  sum  stipulated;  that  it  should  at  its 
own  cost  defend  injury  suits  in  the  name 
of  assured;  and  that  assured  should  not 
incur  expenses  without  the  consent  of  the 
insurer.  While  the  contract  was  in  force 
judgment  was  recovered  against  the  em- 
ployer for  injuries  to  an  employee  in  the 
sum  of  $5,000,  which  on  appeal  was  af- 
firmed; the  affirmance  carrying  with  it 
ten  per  cent  damages,  and  interest  pending 
appeal.  The  defense  and  the  appeal  were 
conducted  by  the  insurer  in  the  name  of 
the  insured.  It  is  held  that  the  interest 
and  damages  were  not  "expenses  of  litiga- 
tion" within  the  meaning  of  the  contract 
of  indemnity.  Little  Pahaba  Coal  Co.  v. 
Aetna  Life  Ins.  Co.  (Ala.)   1917D-863. 


(Annotated.) 

42.  Indemnity  Against  Liability  of 
Physician  for  Malpractice.  Defendant  in- 
sured plaintiff,  a  physician  having  in  his 
employ  two  younger  doctors  as  assistants, 
against  loss  from  liability  for  bodily  in- 
juries or  death  suffered  in  consequence  of 
error,  mistake,  or  malpractice  by  any  as- 
sistant in  his  employ  "while  acting  un- 
der the  assured's  instructions."  One  of 
his  assistants  made  a  mistaken  diagnosis, 
resulting  in  a  judgment  for  damages 
against  the  physician.  The  diagnosis  and 
treatment  was  left  wholly  to  the  assistant, 
and  the  physician  apparently  had  no 
knowledge  of  the  particular  case  and  gave 
the  patient  no  personal  attention;  the  as- 
sistant merely  acting  according  to  pre- 
vious general  instructions  and  the  custom 
which  prevailed  under  the  contract  be- 
tween himself  and  the  physician.  Held, 
that  defendant  was  not  liable,  since  the 
quoted  words  were  intended  to  qualify  de- 
fendant's liability,  and  if  they  were 
treated  as  covering  the  physician's  gen- 
eral instructions,  they  would  neither  ex- 
pand nor  restrict  the  insurer's  liability, 
but  would  be  altogether  meaningless. 
Seay  v.  Georgia  Life  Ins.  Co.  (Tenn.) 
1918E-n57.  (Annotated.) 

Note. 
Indemnity  insurance  against  liability  of 
physician  for  malpractice.     1916E-I159. 

b.    Actions. 

43.  Failure  of  Insurer  to  Defend  Suit. 
The  holder  of  a  liability  insurance  policy, 
under  which  the  insurer  was  bound  to  in- 
demnify the  policvholder  against  loss  not 
exceeding  $5,000  and  to  defend  a  suit  at 
its  own  expense,  could  not  recover  more 
than  $5,000  because  of  the  insurer's  failure 
to  defend  an  action  resulting  in  a  default 
judgment  for  $15,000  without  alleging  and 


INSURANCE. 


457 


proving  a  meritorious  defense  to  the  ac- 
tion against  it.  Maryland  Casualty  Com- 
pany V.  Price  (Fed.)  1917B-50. 

10.     ANIMAL  INSURANCE. 

44.  Notice  of  Sickness  or  Accident. 
Where  the  insurance  policy  on  a  stallion 
provided  that  the  perils  indemnified 
against  did  not  include  death  from  any 
cause,  where  the  insured  did  not  render 
forthwith  by  telegraph  or  telephone  to  the 
company  at  its  home  ofiice  notice  of  aiiy 
sickness  or  accident,  where  the  stallion 
was  taken  ill  at  8:30  P.  M.,  November 
28th,  plaintiff  and  veterinaries  working 
over  the  animal  all  night,  plaintiff  sending 
a  telegram  to  the  insurer  at  8:30  A.  M. 
the  next  morning,  notifying  it  of  the  ill- 
ness, which  telegram  was  not  actually  sent 
until  11:30  A.  M.,  and  not  received  at  the 
home  office  of  the  insurer  until  after  1 
P.  M.,  the  sending  was  a  reasonable  com- 
pliance with  the  policy,  since  the  term 
"forthwith"  does  not  in  all  eases  mean 
instanter,  but  often  has  a  relative  mean- 
ing of  all  reasonable  celerity,  or  all  rea- 
sonable dispatch,  or  with  reasonable  and 
proper  diligence,  defending  on  the  cir- 
cumstance of  each  case.  Simmons  v.  Na- 
tional Live  Stock  Ins.  Co.  (Mich.)  1917D- 
42.  (Annotated.) 

Note. 
Animal  insurance.     1917D-45. 

11.     AUTOMOBILE  INSURANCE. 
a.    Construction  of  Contract. 

45.  Condition  Against  Carrying  Passen- 
gers for  Hire.  A  clause  in  a  policy  of  in- 
surance on  a  motor  car,  providing  that  the 
car  should  not  be  "rented  or  used  for  pas-  • 
senger  service  of  any  kind  for  hire,"  does 
not  authorize  a  forfeiture,  where  the  car 
was  used  by  the  owner's  chauffeur  with- 
out his  knowledge  upon  a  single  occasion 
to  carry  persons,  for  hire;  the  car  being 
destroyed  while  in  the  exclusive  possession 
of  the  owner  and  after  the  forbidden  use 
had  ceased.  Crowell  v.  Marvland  Motor 
Car  Ins.  Co.  (N.  Car.)  1917I>-"50. 

(Annotated.) 

46.  A  clause  in  a  policy  of  insurance  of 
a  motor  car,  providing  that  the  car  should 
not  be  "rented  or  used  for  passenger  ser- 
vice of  any  kind  for  hire,"  implies  more 
than  a  single  act  of  renting  or  using,  and 
refers  to  the  business  of  carrying  passen- 
gers for  hire.  Crowell  v.  Maryland  Motor 
Car  Ins.  Co.  (N.  Car.)  1917D-50. 

(Annotated.) 
Notes. 
Automobile  insurance.     1917D-53. 
Insurance    against  liability   of  automo- 
bile owner.     1917D-61. 

b.     Adjustment  of  Loss. 

47.  Contract  for  Settlement  —  Effect. 
Plaintiff's  auto,  insured  by  defendant  for 


$2,500,  was  burned,  and  plaintiffs  filed 
claim  for  total  loss,  and  defendant  dis- 
puted it,  and  offered  to  settle  it  for  $2,000, 
or  to  ship  the  car  for  repairs,  and  plain- 
tiffs elected  to  accept  the  proposition  for 
repairs,  stating  that  defendant  must  make 
the  car  as  good  as  before  the  fire,  and  not 
delay  too  long,  and  defendant  then  wrote 
plaintiffs  that  it  had  made  arrangements 
to  ship  the  car  and  would  at  once  proceed 
with  the  repairs,  and  that  it  estimated 
that  it  would  take  about  four  weeks  for 
repairs.  It  is  held  that  a  settlement  con- 
tract arose,  terminating  all  rights  under 
the  policy  contract,  so  that  the  only  rem- 
edy thereafter  was  for  breach  of  the  new 
contract.  Gaffey  v.  St.  Paul  Fire  and 
Marine  Ins.  Co.  (N.  Y.)  1918B-1041. 

(Annotated.) 

e.    Actions. 

48.  Error  in  the  admission  on  defend- 
ant's cross-examination  of  testimony  tend- 
ing to  show  that  defendant  was  indemni- 
fied against  liability  by  an  insurance  com- 
pany is  highly  prejudicial.  Watson  v. 
Adams  (Ala.)  1916E-565.         (Annotated.) 

49.  Proof  that  Defendant  is  Indemnified. 
The  admission  on  cross-examination  of  de- 
fendant, whose  chauffeur  is  alleged  to 
have  negligently  run  down  plaintiff,  of 
testimony  tending  to  show  that  counsel 
appearing  for  defendant  represents  an  in- 
demnity insurance  company  is  error,  as 
defendant's  liability  is  not  affected  by  the 
fact  that  he  is  indemnified  nor  does  it 
affect  his  credibility.  Watson  v.  Adams 
(Ala.)   1916E-565.  (Annotated.) 

12.     CREDIT  INSURANCE. 

50.  Construction  of  Credit  Insurance 
Bond.  Credit  insurance  bonds,  like  other 
insurance  policies,  if  ambiguous  in  their 
language,  are  to  be  construed  strictly 
against  the  insurer,  by  whom  they  were 
framed.  Philadelphia  Casualty  Co.  v. 
Fechheimer  (Fed.)  1917D-64. 

(Annotated.) 

51.  The  losses  to  which  such  clause  re- 
lates are  to  be  determined  by  the  terms  of 
the  first  bond,  and  not  of  the  renewal,  and 
the  insurer  is  liable  for  a  loss  which  comes 
within  the  terms  of  the  first,  although  it 
is  of  a  class  not  insured  against  by  the 
renewal.  Philadelphia  Casualty  Co.  v. 
Fechheimer  (Fed.)   1917D-64. 

(Annotated.) 

52.  Renewal  Bond — Losses  Covered.    A 

credit  insurance  policy,  or  "bond,"  insur- 
ing against  loss  of  accounts  due  the  in- 
sured from  customers  for  goods  shipped 
during  the  calendar  year  1903,  contained 
a  clause  providing  that,  "if  this  bond  is 
renewed  on  or  before  the  date  of  termina- 
tion thereof  by  the  issuance  of  a  new 
bond,  the  losses  occurring  during  the  term 
of  the   renewal  on  goods  shipped  during 


458 


DIGEST. 

19160— 1918B. 


the  term  of  this  bond  shall  be  included  in 
the  calculation  of  losses  under  said  re- 
newal the  same  as  if  the  goods  had  been 
shipped  during  the  term  of  such  renewal 
bond."  December  4,  1903,  a  second  bond 
was  issued,  differing  in  some  of  its  provi- 
sions, covering  the  term  from  October  1, 
1903,  to  September  30,  1904.  The  only 
reference  therein  to  the  previous  bond 
was  a  provision  that  losses  occurring  on 
goods  shipped  on  and  after  October  1, 
1903,  should  not  be  included  under  the  first 
bond,  but  under  the  second.  It  is  held 
that  the  second  bond  was  a  renewal  of 
the  first  within  the  meaning  of  the  quoted 
clause  of  the  first,  and  covered  losses  aris- 
ing on  shipments  made  during  the  term  of 
the  first  bond  previous  to  October  1,  1903. 
Philadelphia  Casualty  Co.  v.  Fechheimer 
(Fed.)   1917D-64.  (Annotated.) 

53.  Computation  of  Total  Sales  by  In- 
sured. Where  goods  shipped  by  insured 
were  returned,  no  sale  was  consummated 
which  can  be  computed  in  making  up  the 
total  sales  under  the  bonds.  Philadelphia 
Casualty  Co.  v.  Fechheimer  (Fed.)  1917D- 
64.  (Annotated.) 

54.  Each  bond  provided  that  on  sales 
not  exceeding  $450,000  during  its  term 
losses  to  the  aggregate  amount  of  $5,000 
should  constitute  an  initial  loss  to  be 
borne  by  the  insured,  the  insurer  being 
liable  only  for  an  excess  of  loss  above  that 
sum,  and  that,  if  the  sales  exceeded 
$450,000,  the  initial  loss  should  be  propor- 
tionately increased.  It  is  held  that  the 
fact  that  losses  on  sales  made  during  the 
term  of  the  first  bond,  but  occurring  dur- 
ing the  term  of  the  second,  were  payable 
under  the  latter,  did  not  entitle  the  in- 
surer to  carry  over  the  sales  of  the  first 
term,  and  add  them  to  those  of  the  second, 
for  the  purpose  of  increasing  the  amount 
of  the  initial  loss  thereunder.  Philadel- 
phia Casualty  Co.  v.  Fechheimer  (Fed.) 
1917D-64.  (Annotated.) 

55.  Notice  of  Loss.  That  a  preliminary 
notice  of  loss  required  and  given  the  in- 
surer incorrectly  stated  that  the  debtor 
had  been  adjudged  bankrupt,  whereas  in 
fact  he  had  been  closed  on  execution,  is 
immaterial,  where  no  objection  was  made 
on  that  ground,  and  the  insurer  was  lia- 
ble in  either  case.  Philadelphia  Casualty 
Co.  V.  Fechheimer  (Fed.)  1917D-64. 

56.  When  Effective.  Although  the  re- 
newal bond  was  not  executed  until  Decem- 
ber 4,  1903,  a  clause  therein  providing 
that  "losses  occurring  on  goods  shipped 
on  and  after  October  1,  1903,"  should  be 
included  thereunder,  and  not  under  the 
first  bond,  made  the  second  bond  effective 
for  all  purposes  from  that  date.  Phila- 
delphia Casualty  Co.  v.  Fechheimer  (Fed.) 
1917D-64.  (Annotated.) 

Note. 
Credit  insurance.     1917D-75. 


13.     HAIL   INSURANCE. 


57.  Time  for  Payment  of  Loss.  A  pro- 
vision, in  a  hail  insurance  policy  issued 
by  a  mutual  company,  that  the  loss  should 
not  be  payable  until  a  fixed  time,  is 
waived  by  a  denial  of  all  liability  by  the 
company.  Schultz  v.  Des  Moines  Mutual 
Hail,  etc.  In».  Assoc  (S.  Dak.)  1917D-78. 

(Annotated.) 

58.  OflScers  of  a  mutual  hail  insurance 
company  have  authority  to  waive  the  pro- 
vision of  the  by-laws  deferring  the  pay- 
ment of  losses  by  denying  liability  on  the 
policy.  Schultz  t.  Des  Moines  Mutual 
Hail,  etc.  Ins.  Assoc.  (S.  Dak.)  1917D-78. 

(Annotated.) 
Note. 

Hail  insurance.     1917D-81. 

14.     BURIAL  INSURANCE. 

59.  Burial  Contract.  Contracts  under 
which  an  undertaker  agreed,  in  consider- 
ation of  the  payment  of  monthly  interest 
on  so-called  mutual  notes  issued  by  him 
during  the  lives  of  the  makers,  that  he 
would  provide  them  with  respectable 
funerals,  are  contracts  of  insurance,  ren- 
dering the  undertaker,  in  the  transaction 
of  such  insurance  business,  subject  to 
regulation  by  the  insurance  department, 
under  Ohio  Gen.  Code,  §  670.  Renschler 
V.  State   (Ohio)   1916C-1014. 

(Annotated.) 
Note. 
Burial  insurance.     1916C-1016. 

15.     TORNADO  INSURANCE. 

60.  An  insurance  company,  joining  with 
insured  in  the  appointment  of  appraisers 
to  appraise  a  loss,  as  required  by  a  tor- 
nado insurance  policy  declaring  that  such 
appraisal  shall  affect  no  other  question 
under  the  policy,  does  not  thereby  waive 
his  right  to  object  to  the  validity  of  the 
policy  on  the  ground  that  the  agent  issu- 
ing it  was  a  stockholder  of  the  corpora- 
tion owning  the  property  covered  thereby. 
Riverside  Development  Co.  r.  Hartford 
Fire  Ins.  Co.  (Miss.)  1916D-1274. 

(Annotated.) 

16.     INDUSTRIAL   INSURANCE. 

61.  Insurable  Interest.  Payment  by  the 
insurance  company  which  issued  a  ^licy 
of  "industrial  insurance,"  the  purpose  of 
which  is  to  provide  a  reasonable  fund 
with  which  insured  may  alleviate  his  last 
sickness  and  secure  decent  burial,  to  in- 
sured's aunt,  his  beneficiary,  who  cared 
for  him  in  his  sickness  and  buried  him,  is 
permissible  under  the  usual  "facility  of 
payment"  clause  in  such  a  policy,  provid- 
ing that  payment  may  be  made  to  the 
beneficiary  or  any  person  equitably  en- 
titled, etc.,  thousrh  the  annt  has  no  in- 
surable interest  in  insured's  life.     Metro- 


INTEMPERANCE— INTEREST. 


459 


politan  L.  Ihb.  Co.  ▼.  Nelson  (Ky.)  1918B- 
1182.  (Annotated.) 

Note. 
Indastrial  insurance.    1918B-1186. 

INTEMPEEANCE. 

See  Intoxicatiitg  Liquors. 
Defined,  see  Public  Officera,  4S. 

INTENT. 

See  Adultery,  2;  Adverse  Possession,   1; 

Prostitution,  17. 
Ab  essential  to  crime,  see  Criminal  Law,  8. 
As  essential  to  dedication,  see  Dedication, 

4,  5. 
Presumption  as  to,  see  Evidence,  132. 
Inference  from  act,  see  Homicide,  61. 
Effect  on  validity  of  marriage,  see  Mar- 
riage, 2. 
Information   of  partnership,   see  Partmer- 

ship,  3,  10. 
Of  legislature  in  construction  of  statutes, 

see  Statutes,  48-55. 
As  essential  to  fraud  in  use  of  name,  see 

Trademarks  and  Tradenames,  7. 
As  governing  signature,  see  Wills,  IQ. 
As    governing    construction    of    will,    see 

Wills,  145-152. 

INTENTIONAL  INJXJET. 

Effect  on  recovery  under  accident  policy, 
see  Accident  Insurance,  14. 


Interest. 

1.  Right  to  Eecover- 

2.  Computation  of  Interest- 

3.  Waiver. 
See  Usury. 

On  attorneys'  fees,  see  Attorneys,  31. 
Allowance  of  interest  on  forfeited  bond, 

see  Bail,  1. 
On  bank  deposit,  see  Banks  and  Banking, 

25,  71. 
On  county  indebtedness,  see  Counties,  7. 
Interest    as    disqualification,    see    Judges, 

9-14. 
Of    juror,    as    disqualification,    see    Jury, 

19,  20. 
On  citv  warrants,  see  Municipal  Corpora- 
tions, 36,  120-128. 
On  funds  improperly  collected  by  officers, 

see  Pensions,  3. 
Interest  is  ordinary  revenue,  see  Schools, 

23. 
Personal    interest    of    trustee,    effect,    see 

Trusts  and  Trustees,  26. 


1.     EIGHT    TO    RECOVER. 

1.  Where  the  payment  of  interest  is 
provided  for  by  contract,  it  constitutes  an 
integral  part  of  the  debt,  as  much  so  aa 
the  principal  debt  itself,  and  an  independ- 


ent action  for  its  recovery  may  be  main- 
tained notwithstanding  payment  of  the 
principal  as  such  has  been  made  and  ac- 
cepted. Alabama  City,  etc.  E.  Co.  v.  Gads- 
den  (Ala.)   1916C-573. 

2.  Recovery  Separate  from  PrlncipaL 
The  general  rule  is  that  when  the  princi- 
pal subject  of  a  claim  is  extinguished  by 
the  act  of  the  plaintiff,  or  of  the  parties 
acting  in  unison,  all  its  incidents  go  with 
it,  which  rule  is  applicable  where  interest 
is  awarded  in  the  way  of  damages;  it 
being  recoverable  only  in  an  action  for 
the  principal  and  not  constituting  a  dis- 
tinct claim.  Alabama  City,  etc.  E.  Co.  v. 
Gadsden   (Ala.)   1916C-573. 

3.  Right  to  Recover  Admitted.  Though 
defendant  does  not  deny  plaintiff's  right 
to  recover  a  certain  amount,  it  is  discre- 
tionary with  the  jury  to  add  interest  in 
computing  its  verdict,  unless  defendant 
has  made  a  tender  of  an  amount  equal  to 
or  greater  than  the  verdict.  Shoop  v. 
Fidelity,  etc.  Co.  (Md.)  1916D-954. 

Note. 
Eight   to   interest   on   judgment   as   af- 
fected  by    modification    of   judgment    on 
appeal.     1917C-413. 

2.     COMPUTATION  OP  INTEREST. 

4.  Accrual  of  Cause  of  Action.  Where 
such  statement  of  indebtedness  was  not 
furnished  to  the  seller  until  June  7th,  he 
is  liable  for  interest  on  his  share  of  the 
indebtedness  only  from  that  date,  and 
not  from  March  8th,  the  date  of  sale. 
Miller  t.  Dilkes  (Pa.)  1917D-555. 

5.  Compounding.  Where  the  basic  prin- 
ciple of  an  accounting  by  a  trustee  can 
be  given  effect  without  charging  him  with 
compound  interest  on  the  amount  which 
he  has  held  for  his  cestui  que  trust,  it  is 
not  error  to  refuse  to  make  such  a  charge. 
Silver  King  Coalition  Mines  Co.  v.  Silver 
King  Consol.  Min.  Co.  (Fed.)  1918B-571. 

3.     WAIVER. 

6.  Acceptance  of  Principal.  Where 
the  plaintiff  was  unlawfully  removed  from 
one  office  and  installed  in  another  at  a 
lower  salary  and  he  continuously  objected 
and  protested  to  the  reduction  in  salary 
and  receipted  for  his  salary  only  as  on 
account  and  never  in  full,  and  upon  judg- 
ment in  his  favor  ordering  the  payment 
of  the  difference  in  his  salary  receipted 
for  the  amounts  paid  only  as  on  account 
and  not  in  full,  his  acts  did  not  show  a 
waiver  of  the  interest,  and  he  is  entitled 
to  recover  the  same  upon  the  salary  with- 
held. Shepard  v.  New  York  (N.  Y.) 
1917C-1062.  (Annotated.) 

7.  The  evidence  is  held  to  show  such 
demand  for  the  payment  of  principal  of 
salary  withheld  as  to  fulfill  the  condition 


460 


DIGEST. 

1916C— 1918B. 


that,  the  interest  being  only  recoverable 
aa  damages  for  the  nonpayment  of  the 
principal  when  due,  it  is  necessary  for 
plaintiff  to  prove  a  timely  demand  for 
the  principal.  Shepard  t.  New  York 
(N.  Y.)   1917C-1062.  (Annotated.) 

INTEBEST  IN  LAND. 

See  Frauds,  Statute  of,  g,  10. 

INTERFERENCE  WITH  BUSINESS. 
Action  for,  see  Torts,  2. 

INTERFERENCE      WITH      CONTRACT 

RELATIONS. 
See  Labor  CombiaatioBS. 

INTERMEDIATE  APPELLATE  COURTS. 

Jurisdiction  and  powers,  see  Appeal  and 
Error,  15-24. 

Review  of  judgments,  see  Appeal  and  Er- 
ror, 157,  158. 

INTERNATIONAL  LAW. 
See  Treaties;   Ambassadors  and  Consuls; 
Conflict  of  Laws. 

INTERNMENT. 
Of  alien  enemies,  see  War,  7. 

INTlJRPLEADER. 
See  Pleading. 

INTERPRETATION. 

Of  defamatory  language,  see  Libel  and 
Slander,  22-23. 

INTERPRETATION  OF  STATUTES. 

See  Statutes,  47-115. 

INTERROQATORIES. 
See  Discovery. 

INTERRUPTION  OF  STATUTE. 
See  Limitation  of  Actions,  33-42. 

INTERSTATE  COMMERCE. 

1.  What  Constitutes  Interstate  Commerce. 

a.  In  General. 

2.  Regulation  of  Interstate  Commerce. 

a.  Power  of  Congress. 

b.  Power  of  States. 

(1)  Police  Power  in  General. 

(2)  Effect  of  Nonaction  by  Con- 

gress. 

3.  Interstate  Commerce  Act. 

See  Carriers,  1-3. 

Inspection  of  grain  as  interfering,  se© 
Weights  and  Measures,  2. 


1.  WHAT  CONSTITUTES  INTERSTATE 

COMMERCE. 

a.    In  General. 

1.  Commerce  within  the  federal  consti- 
tution is  commercial  intercourse  between 
nations  and  the  states,  and  includes  not 
only  navigation  and  transportation,  but 
the  purchase,  sale,  and  exchange  of  com- 
modities, and  hence  the  Mass.  Foreign 
Corporation  Tax  Law  of  1909  (St.  1909, 
c.  490,  pt.  3),  imposing  an  excise  upon 
foreign  corporations,  does  not  apply  to 
those  engaged  in  foreign  commerce,  al- 
though it  be  a  commercial  business.  Mar- 
coni Wireless  Tel.  Co.  v.  Commonwealth 
(Mass.)   1916C-214. 

2.  The  sending  of  means  of  education 
by  correspondence  through  the  mails  is 
commerce.  Marconi  Wireless  Tel.  Co.  v. 
Commonwealth   (Mass.)    1916C-214. 

3.  Where  a  Connecticut  corporation 
maintained  a  Boston  office,  the  sale  and 
delivery  of  goods  to  citizens  of  Connecti- 
cut through  the  local  office  is  not  inter- 
state commerce  for  that  reason.  Marconi 
Wireless  Tel.  Co.  v.  Commonwealth 
(Mass.)   1916C-214. 

4.  "Dealer" — Meaning  of  Term — Manu- 
facturer Selling  Product.  Plaintiffs 
manufactured  soft  drinks  in  Ohio,  and 
sold  some  of  their  goods  in  Newport,  Ky., 
upon  orders  from  retail  dealers  in  New- 
port, by  means  of  solicitors  or  through 
the  drivers  of  their  wagons  acting  as 
solicitors.  When  a  retail  dealer  had 
theretofore  purchased  goods  from  them, 
they  would  place  their  goods  upon  their 
wagons  and  send  them  into  Newport,  and 
there  expose  them  for  sale  to  such  dealer, 
and  sell  and  deliver  such  goods  as  he 
might  desire.  If  any  person  other  than 
a  former  customer  desired  to  buy  goods 
while  the  wagons  were  in  Newport,  the 
sale  would  be  made,  and  the  goods  then 
and  there  delivered  to  him.  Held  that, 
while  some  of  the  transactions  constituted 
interstate  commerce,  some  of  them  were 
intrastate  transactions,  and,  whether  the 
sales  were  made  in  the  original  packages 
or  not,  plaintiffs  were  doing  business  in 
Newport  as  wholesale  dealers  in  soft 
drinks,  and  were  subject  to  a  license  tax 
imposed  by  that  state  upon  parties  doing 
the  business  of  a  wholesale  dealer  in 
such  goods.  Newport  v.  Wagner  (Ky.) 
1917A-962.  (Annotated.) 

2.  REGULATION      OF      INTERSTATE 

COMMERCE. 
a.     Power  of  Congress. 

5.  Interstate  Commerce  —  Exclusiveness 
of  Federal  Power.  The  power  to  regulate 
commerce  between  states,  delegated  to 
the  federal  government,  makes  its  exercise 
of  such  power  supreme,  to  the  exclusion 
of  the  powers  of  state  governments.  Van 
Winkle  v.  State  (Del.)   1916D-104. 


INTERURBAN  RAILWAYS— INTERVENTION. 


461 


b.    Power  of  States. 
(1)     Police  Power  in  General. 

6.  The  Ohio  inspection  act,  in  so  far  as 
the  same  affects  interstate  commerce, 
contravenes  clause  2,  section  10,  article  1 
of  the  federal  constitution  and  is  uncon- 
stitutional and  void  for  the  reason  that 
it  imposes  a  burden  on  such  commerce,  by 
way  of  fees,  largely  in  excess  of  the  ex- 
penses necessary  for  executing  the  in- 
spection law.  Castle  v.  Mason  (Ohio) 
1917A-164.  (Annotated.) 

7.  Commerce  between  states  may  be  af- 
fected by  local  inspection  or  police  regu- 
lations without  the  latter  becoming  in- 
valid on  that  account;  for  when  the  local 
police  regulation  has  real  relation  to  the 
suitable  protection  of  the  people  of  the 
state  and  is  reasonable  in  its  require- 
ments, it  is  not  invalid  because  it  may 
incidentally  affect  interstate  commerce. 
State  V.  McKay  (Tenn.)  1917E-158. 

8.  Goods  in  Interstate  Transit.  Goods 
delivered  to  a  common  carrier  at  a  point 
without  the  state,  consigned  to  a  pur- 
chaser at  his  residence  within  the  state, 
are  exempt  from  state  regulations  during 
the  course  of  transportation.  Newport  v. 
Wagner   (Ky.)    1917A-962. 

9.  Eequiring  Precautions  at  Crossings. 
The  provision  of  the  Ga.  Civil  Code 
(1910),  §  2675,  which  requires  the  en- 
gineer of  a  locomotive  to  check  the  speed 
thereof  on  approaching  a  public  road 
crossing,  so  as  to  stop  in  time  should  any 
person  or  thing  be  crossing  the  railroad 
track  on  said  road,  is  not  unconstitutional 
as  applied  to  a  railway  train  while  en- 
gaged in  interstate  commerce,  under  the 
conditions  set  forth  in  paragraph  23  of 
the  defendant's  answer,  on  the  ground 
that,  as  thus  applied,  the  statute  is  a 
regulation  of  interstate  commerce  and 
repugnant  to  the  provisions  of  the  consti- 
tution of  the  United  States  that  "the  Con- 
gress shall  have  power  to  regulate  com- 
merce with  foreign  nations  and  among 
the  several  states."  The  statute  is  an 
exercise  of  the  police  power  of  the  state, 
though  to  some  extent  it  may  indirectly 
affect  interstate  transportation.  Sea- 
board Air-line  Ey.  v.  Blackwell  (Ga.) 
1917A-967.  (Annotated.) 

Note. 
State  regulation  of  railroads  as  interfer- 
ence  with   interstate   commerce.      1917A- 
973. 

(2)     Effect  of  Nonaction  by  Congress. 

10.  Trade  in  Illegal  Articles.  The  com- 
merce clause  of  the  federal  constitution 
excludes  state  control  only  over  interstate 
commerce  in  articles  which  are  legitimate 
subjects  of  trade,  and  not  over  articles 
which  are  inherently  unworthy  of  com- 
merce and  unfit  for  use  of  the  people  and 


which  the  state,  in  the  absence  of  con- 
gressional legislation  covering  the  subject, 
has  declared  are  not  legitimate  subjects 
of  trade.  American  Express  Co.  v.  Beer 
(Miss.)   1916D-127. 

3.     INTERSTATE  COMMEECE  ACT. 

11.  Bates  Fixed  by  Commission,  The 
fact  that  plaintiff  railroad  company  made 
a  mistake  in  computing  the  freight  charge 
and  failed  to  discover  it  until  six  months 
afterward  cannot  constitute  a  waiver  or 
estoppel  precluding  recovery  of  the  cor- 
rect amount,  since  the  rate  filed  with  the 
Interstate  Commerce  Commission  is  the 
lawful,  arbitrary,  and  immutable  rate;  all 
parties  concerned  being  charged  with 
knowledge  of  it  and  its  unescapable  force. 
Pennsylvania  E.  Co.  v.  Titus  (N.  Y.) 
1917C-862. 

12.  The  rate  filed  with  the  Interstate 
Commerce  Commission  being  the  only 
legal  rate  and  not  variable  by  the  act  of 
the  parties,  payment  of  part  of  the  freight 
charge  by  the  consignee  of  goods  can, 
under  no  circumstances,  relieve  him  from 
full  payment.  Pennsylvania  E.  Co.  t.. 
Titus  (N.  Y.)  1917C-862. 

INTERURBAN  RATLWATS. 
See  Street  Railways. 

INTERVENING  CAUSE. 
When  a  defense,  see  Homicide,  3. 

INTERVENTION. 
See  Costs,  6. 

1.  Pleading — Interv^er's  Plea.  Where, 
in  an  action  involving  the  title  to  the  bed 
of  a  lake,  the  state  intervenes  and  claims 
title,  but  does  not  allege  whether  the  lake 
is  navigable  or  unnavigable,  it  is  properly 
required  to  make  its  complaint  in  inter- 
vention more  specific,  even  though,  as 
claimed,  it  might  claim  the  bed  of  the 
lake  because  of  either  condition,  since 
pleading  contradictory  facts,  either 
directly  or  inferentially,  by  failing  to  al- 
lege either  fact,  is  not  a  compliance  with 
the  statutory  requirement  that  the  com- 
plaint shall  contain  a  plan  and  concise 
statement  of  "facts."  Bernot  v.  Morrison 
(Wash.)   1916D-280. 

2.  In  garnishment  proceedings  to  reach 
funds  deposited  in  bank  in  the  name  of 
the  judgment  debtor,  the  intervener's  plea 
that  the  funds  held  by  the  garnishee  were 
not  the  depositor's  property,  but  the  prop- 
erty of  the  intervener,  is  a  statement  of 
fact,  and  not  a  statement  of  a  legal  con- 
clusion. Home  Land,  etc.  Co.  v.  Eouth 
(Ark.)   1917C-1143. 

3.  Intervention  by  Owner  of  Garnished 
Funds — Plea    Sufiicient.      In    garnishment 


'462 


DIGEST. 

1916C— 1918B. 


proceedings  to  reach  funds  deposited  in 
bank  by  the  judgment  debtor,  the  plea  of 
the  intervener,  stating  that  the  funds  held 
hy  the  garnishee  bank  were  not  its  de- 
positor's property,  but  that  they  were  the 
intervener's  property,  is  a  sufficiently 
definite  allegation  touching  the  ownership 
of  the  funds,  which  did  in  fact  belong  to 
the  intervener,  the  depositor  having  their 
custody  as  his  agent,  it  being  unnecessary 
to  set  out  the  evidence  upon  which  the 
intervener's  claim  of  ownership  was 
based.  Home  Land,  etc  Co.  t.  £outh 
(Ark.)  1917C-1143. 

INTEE  Vr70& 
See  Gifts,  1-10. 

INTESTACY. 

Construction  of  will  to  avoid,  see  Wills, 
160. 

INTESTATES. 
Actions      concerning     property     of,     see 
Descent  and  D&ribution,  9. 

INTOXICATING  LIQUORS. 

1.  Power  to  Regulate  and  Control,  462. 

2.  What  are  Intoxicating  Liquors,  463. 

3.  Validity  of  Regulations,  463. 

a.  In  General,  463. 

b.  Regulating  Sale  to  Indians,  465. 

c.  Qualification  of  Dealers,  465. 

d.  Conflict  Between  Statute  and  Ordi- 

nance, 466. 

e.  Annulment  of  License,  467. 

f.  Regulating  Transportation,  467. 

g.  The  Webb-Kenyon  Act,  467. 

4.  Licenses,  468. 

a.  Operation  and  Effect  of  Statute,  468. 

b.  Consent  to  Granting  of  I^icense,  469. 

c.  Liquor  Dealer's  Bond,  469. 
6.  Offenses,  469. 

a.  Distribution  by  Social  Club,  469. 

b.  Sale  by  Physician,  470. 

c.  Importation  of  Liquor,  470. 

d.  Persons  Liable,  470. 

6.  Prosecutions,  470. 

a.  Duty  of  Arresting  Officer,  470. 

b.  Indictment,  470. 
C.  Evidence,  471. 

(1)  Admissibility,  471. 

(2)  Sufficiency,  471. 

(3)  Presumptions  and  Burden  of 

Proof,  472. 

d.  Instructions,  472. 

e.  Punishment,  472. 

7.  Abatement  of  Liquor  Nuisance.  472. 
See  Civil  Damage  Acts,   1-6;   Conflict  of 

Laws,  1-3;  Disorderly  Houses,  1,  2; 
Local  Option. 

Review  of  order  revoking  license,  see 
Appeal  and  Error,  31. 

Provisions  against  use  in  insurance  con- 
tract, see  Beneficial  Associations,  l. 

Unlawful  sale  as  peace  breach,  see  Breach 
of  Peace,  5-8. 


Arrest  of  sober  passenger  by  mistake,  lia- 
bility, see  Carriers  of  Passengers,  28. 

Effect  of  intoxication  on  confession,  see 
Confessions,  2. 

Prohibition  amendment,  self  executing, 
see  Constitutional  Law,  91. 

Liquor  contract  void  for  illegality,  see 
Contracts,  25. 

Criminal  liability  of  corporations,  see 
Corporations,  22. 

Opinion  evidence  as  to  intoxication,  see 
Evidence,   78-81. 

Presumption  as  to  sobriety,  see  Evidence, 
140. 

Intoxication  as  bearing  on  intent,  see 
Homicide,  32-34,  63. 

Drunkenness  in  homicide  cases,  see  Homi- 
cide, 32-34,  62,  63. 

Drinking  by  jurors,  effect,  see  Jury,  36,  37. 

Intoxication  of  defendant  as  mitigating 
damages,  see  Libel  and  Slander,  159. 

Granting  of  license  not  compellable,  see 
Mandamus,  3. 

Intoxication  of  servant,  effect  under 
Workmen's  Compensation  Act,  see 
Master  and  Servant,  231-234. 

Liability  of  officers  for  destroying  liquor, 
see  "Militia.  5-10. 

State  regulation  in  cities,  see  Municipal 
Corporations,  20. 

Intoxication  as  evidence  of  contributory 
negligence,  see  Negligence,  82. 

Drunkenness,  removal  from  office,  see  Pub- 
lic Oflacers,  47-49. 

Duty  of  sheriff  to  enforce  liquor  laws,  see 
Sheriffs  and  Constables,  5,  16,  17. 

Sales  to  members  of  incorporated  club,  see 
Societies  and  Clubs,  2. 

Title  of  Hazel  Law,  see  Statutes,  8. 

Title  of  prohibition  act,  see  Statutes,  14. 

Construction  of  statutes  in  pari  materia, 
see  Statutes,  85. 

Intoxication  as  affecting  testamentary  ca- 
pacity, see  Wills,  69,  94. 

1.     POWER  TO  REGULATE  AND  CON- 
TROL. 

1.  A  state  may,  consistently  with  the 
due  process  of  law  clause  of  U.  S.  jConst. 
14th  Amend.  (6  Fed.  St.  Ann.  416).  for- 
bid all  shipments  of  intoxicating  liquor, 
whether  intended  for  personal  use  or 
otherwise.  James  Clark  Dist.  Co.  v.  West- 
ern Md.  R,  Co.  (U.  S.)   1917B-845. 

2.  Conditions  to  Issuance  of  License — 
Power  to  Prescribe.  As  the  authority  to 
sell  liquor  is  a  mere  privilege  which  the 
state  may  grant  or  withhold,  at  its  pleas- 
ure, it  may  require  those  desirous  of  per- 
mission to  sell  intoxicating  liquor  to  pro- 
cure a  petition  signed  by  a  majority  of  the 
adult  white  inhabitants  of  the  locality,  as 
prescribed  by  the  Going  Act.  Wade  v. 
Horner  (Ark.)  1916E-167. 

3.  The  former  charter  of  the  city  of 
Duluth  limited  the  control  of  the  city  over 
the  liquor  traffic  so  that  the  city  could 
regulate  but  not  prohibit  such  traffic;  but 


INTOXICATING  LIQUORS. 


463 


the  present  charter,  after  continuing  in 
force  all  powers  previously  possessed  by 
the  city,  granted,  in  addition  thereto,  "All 
municipal  power  ...  of  every  name  and 
nature  whatsoever."  Held,  that  "all  muni- 
cipal power"  includes  all  powers  generally 
recognized  as  powers  which  may  properly 
be  exercised  by  municipal  corporations, 
and  that  the  liquor  traffic  may  be  prohib- 
ited under  the  grant  of  such  power. 
State  V.  Duluth  (Minn.)  1918A-683. 

4.  It  is  not  contrary  to  the  public  policy 
of  the  state  to  give  the  power  to  prohibit 
such  traffic  to  a  city  of  the  first  class,  and 
such  power  may  be  given  to  a  city  of  that 
class  by  a  home-rule  charter.  State  v. 
Duluth  (Minn.)   1918A-683. 

5.  Prohibition  of  Sale.  The  power  to 
prohibit  the  sale  of  intoxicating  liquor 
within  its  limits  may  be  given  to  a  city 
by  its  charter.  The  general  laws  regu- 
lating the  liquor  traffic  imposed  regula- 
tions and  restrictions  more  stringent  than 
those  theretofore  existing,  which  the  muni- 
cipalities of  the  state  could  not  abrogate 
or  lessen;  but  such  municipalities  were 
free  to  impose  any  further  restrictions  au- 
thorized by  their  respective  charters  or 
other  laws.  State  v.  Duluth  (Minn.) 
1918A-683. 

6.  Const.  Tex.  art.  16,  §  20,  authorizing 
the  prohibition  of  the  sale  of  intoxicating 
liquor,  is  not  an  implied  limitation  on 
legislative  power,  and  the  legislature  has 
not  only  the  authority  but  must  pass  all 
laws  necessary  and  appropriate  to  prevent 
illegal  sales.  Longmire  v.  State  (Tex.) 
1917A-726.  (Annotated.) 

7.  Regulation  of  Transportation  of 
Liquor.  As  with  the  shipment  and  deliv- 
ery of  intoxicating  liquor  wholly  within 
the  state,  the  legislature  alone  has  author- 
ity to  deal,  and,  in  so  far  as  it  may  be 
necessary  to  protect  the  public  health, 
morals,  and  welfare,  its  will,  as  expressed 
in  statutes,  is  final.  Longmire  v.  State 
(Tex.)    1917A-726.  (Annotated.) 

8.  The  legislature  can,  in  the  exercise  of 
its  police  powers  as  an  aid  to  the  enforce- 
ment of  the  law  against  the  sale  of  liquor, 
regulate  shipments  of  liquor,  and  thereby 
prohibit  acts  which  in  themselves  are  harm- 
less.    Bird  V.  State  (Tenn.)  1917A-634. 

(Annotated.) 
Notes. 

Right  txj  prohibit  possession  of  intoxi- 
cating liquor  for  personal  use.     1916E-780. 

State  ■  regulation  of  transportation  of 
intoxicating  liquors.     1917A-622. 

2.     WHAT     ARE     INTOXICATING 
LIQUORS. 

9.  Medicinal  Preparation.  A  medicinal 
preparation  containing  nlcoho],  but  which 
will  not  intoxicate  by  imn^orlorate  use  be- 
cause   one    using   it    "would    become   siek 


long  before  he  becomes  intoxicated"  is  not 
"intoxicating  liquor"  forbidden  to  be  de- 
livered within  the  state  by  S.  Car.  Act 
Feb.  20,  1915  (29  St.  at  Large,  p.  140). 
Geer  Drug  Co.  v.  Atlantic  Coast  Line  R. 
Co.   (S.  Car.)   1917C-908.         (Annotated.) 

10.  "Near  Beer."  "Near  beer"  is  a  bev- 
erage intended  as  a  substitute  for  beer, 
and  is  in  reality  a  malt  liquor.  Howard  v. 
Acme  Brewing  Co.  (Ga.)  1917A-91. 

Notes. 

Medicinal  or  toilet  preparation  contain- 
ing alcohol  as  within  purview  of  intoxi- 
cating liquor  statute.     1917C-909. 

Regulation  of  alcoholic,  spirituous,  malt 
or  vinous  liquor  as  including  or  es;cluding 
nonintoxicating  liquor.     1917A-94. 

3.    VALIDITY  OP  REGULATIONS, 
a.    In  General. 

11.  The  authority  given  the  agent  to 
refuse  delivery  of  a  shipment  of  intoxicat- 
ing liquor  when  intended  for  unlawful  use 
does  not  confer  upon  him  judicial  power. 
State  V.  Missouri  Pacific  R.  Co.  (Kan.) 
1917A-612.  (Annotated.) 

12.  Provisions  of  the  act  relating  to 
shipments  within  the  state  and  the  deliv- 
ery of  liquor  to  minors  do  not  affect  this 
prosecution  and  cannot  be  invoked  for  the 
purpose  of  building  up  the  defense  that 
the  statute  is  unconstitutional.  State  v. 
Missouri  Pacific  R.  Co.  (Kan.)  1917A-612. 

(Annotated.) 

13.  State  Regulation  of  Transportation. 
The  requirements  concerning  statements 
in  writing  to  be  made  or  taken  and  filed 
with  the  county  clerk  do  not  violate  the 
provisions  of  sections  15  anfl  20  of  the  In- 
terstate Commerce  Act  as  amended  (Fed. 
St.  Ann.  1912  Supp.  pp.  119,  125).  State 
V.  Missouri  Pacific  R.  Co.  (Kan.)  1917A- 
612.  (Annotated.) 

14.  Validity  of  Prohibition.  Wash.  Ini- 
tiative measure  No.  3  (Laws  1915,  p.  2), 
prohibiting  the  manufacture,  keeping,  sale, 
and  disposition  of  intoxicating  liquors,  ex- 
cept in  certain  cases,  approved  by  popular 
vote  at  general  election  of  1914,  does  not 
violate  the  equal  privileges  and  immunities 
provisions  of  the  federal  or  state  consti- 
tutions. Gottstein  v.  Lister  (Wash.) 
1917D-1008. 

15.  Such  initiative  measure  does  not  vio- 
late the  equal  protection  of  the  laws  pro- 
visions of  the  state  and  federal  constitu- 
tions. Gottstein  v.  Lister  (Wash.)  19I7D- 
1008. 

16.  Objection  to  Validity.  The  ordi- 
nance is  valid  so  far  as  it  prohibits  the 
sale  of  intoxicating  liquor  at  retail,  and, 
as  relator  seeks  a  license  to  sell  at  retail 
only,  -n-hether  the  ordinan^'e  is  valid  so 
far  as  it  prohibits  sales  at  wholesale  is 


464 


DIGEST. 

1916C— 1918B. 


not    involved    herein.     State    ▼.    Duluth 
(Minn.)   1918A-683. 

17.  Confiscation  of  Uqaor  Unlawfully 
Kept.  Construing  these  Ga.  prohibitory 
laws  in  connection  with  the  existing  laws, 
liquors  of  the  prohibited  classes  cannot  be 
kept  at  all  in  certain  places,  cannot  b© 
kept  in  excess  of  limited  quantities  any- 
where, and  cannot  be  sold;  and  where  such 
liquors  are  kept  in  excess  of  the  quantities 
allowed,  the  keeping  or  possessing  of  them 
is  unlawful.  The  qualities  of  property 
theretofore  existing  in  them  were  taken 
away,  and  it  is  competent  for  the  legis- 
lature to  declare  that  they  may  be  seized, 
condemned,  and  destroyed  upon  order  of 
the  judge  of  the  court  having  jurisdiction; 
and  such  provision  is  a  valid  exercise  of 
the  police  power  of  the  state,  and  not  un- 
constitutional on  the  ground  that  it  does 
not  provide  for  a  hearing.  Delaney  v. 
Plunkett  (Ga.)  1917E-685. 

18.  Prohibition  of  Possession  for  Per- 
sonal Use.  The  restriction  as  to  amount 
of  intoxicating  liquors  that  a  citizen  is 
allowed  to  keep  in  a  building  used  solely 
as  a  dwelling  or  residence  is  not  uncon- 
stitutional. Delaney  v.  Plunkett  (Ga.) 
1917E-685.  (Annotated.) 

19.  These  laws  are  not  ex  post  facto  in 
their  character  nor  retroactive.  Delaney 
T.  Plunkett  (Ga.)  1917E-685. 

20.  These  prohibitory  laws  are  not  un- 
constitutional on  the  gn"ound  that  they 
hinder,  impede,  and  interfere  with  the 
power  of  Congress  to  regulate  interstate 
commerce.  Delaney  v.  Plunkett  (Ga.) 
1917E-685. 

21.  The  acts  of  the  general  assembly, 
aoproved  November  17,  and  November  18, 
1915,  hereinafter  called  the  prohibitory 
laws  or  statutes  (Georgia  Laws  E'x.  Sess. 
1915,  pp.  77,  90),  being  acts  to  prohibit 
the  manufacture,  sale,  keeping,  etc.,  of  in- 
toxicating liquors,  and  containing,  among 
other  provisions,  an  inhibition  against 
keeping  intoxicating  liquors  in  any  place 
of  business  or  public  place,  and  also 
against  the  keeping  of  such  liquors  in  ex- 
cess of  given  quantities  in  any  place  what- 
soever, are  a  valid  exercise  on  the  part  of 
the  legislative  body  of  the  police  power. 
Delaney  v.  Plunkett  (Ga.)  1917E-685. 

22.  Presumption  of  Unlawful  Use.  The 
N.  Car.  search  and  seizure  law  (Acts  1913, 
c.  44),  making  the  possession  of  more  than 
one  gallon  of  spirituous  liquor  prima  facie 
evidence  of  keeping  it  for  sale  in  viola- 
tion of  law,  is  constitutional.  State  t. 
Eandall  (N.  Car.)  1918A-438. 

23.  Purpose  of  Prohibition.  The  main 
purpose  of  the  prohibition  amendment  to 
the  constitution  is  to  prohibit  the  manu- 
facture and  sale  in  the  state  of  intoxi- 
cating liquor,  and  the  provision  prohibit- 
ing the  manufacture  and  sale  in  the  state 


is  valid,  though  the  provision  prohibiting 
the  introduction  into  the  state  of  intoxi- 
cating liquor  is  invalid  as  interfering  with 
interstate  commerce.  Gherna  v.  State 
(Ariz.)  1916D-94.  (Annotated.) 

24.  Validity  of  Statute  Bringing  Liquor 
into  Dry  Territory.  The  provision  of 
Hazel  Law  (27  Del.  Laws,  c.  139)  §  6,  that 
no  person,  in  quantities  greater  than  one 
gallon  in  24  hours,  shall  bring  intoxicating 
liquors  into  local  option  territory  from  any 
point  within  the  state,  bears  a  substantial 
relation  to  the  sale  of  intoxicating  liquor 
in  prohibited  territory,  and  therefore  is  a 
proper  exercise  of  the  police  power  of  the 
state,  and  not  an  abridgment  of  the  privi- 
leges of  citizens,  guaranteed  by  Const. 
U.  S.  Amend.  14.  Van  Winkle  v.  State 
(Del.)  1916D-104. 

25.  Validity  of  Exception — Physicians 
and  Druggists.  The  Hazel  Law  (27  Del. 
Laws,  c.  139)  provides  by  section  5  that 
it  shall  not  apply  to  the  shipment  or  de- 
livery to  physicians  or  druggists  of  such 
liquors  in  unbroken  packages  not  exceed- 
ing five  gallons  at  any  one  time,  and  by 
section  6  prohibits  any  person  from  bring- 
infr  into  local  option  territory  any  liquor 
greater  than  one  gallon  within  24  hours. 
Const.  Del.  art.  13,  §  1,  provides  for  an 
election  to  determine  whether  the  sale  of 
liquors  in  certain  districts  shall  be  licensed 
or  prohibited,  and  that,  after  a  vote 
against  license,  no  person  shall  thereafter 
manufacture  or  sell  liquors  except  for 
medicinal  or  sacramental  purposes.  The 
Prescription  Act  (26  Del.  Laws,  c.  147)  re- 
quires all  prescriptions  for  intoxicating 
liquors  for  medicinal  purposes  to  be  writ- 
ten by  practicing  physicians.  Held,  in 
view  of  the  recognized  necessity  of  liquor 
as  a  drug,  and  therefore  readily  to  be  ob- 
tained by  those  authorized  to  prescribe  or 
sell  it,  that  the  discrimination  in  favor  of 
physicians  and  druggists  was  reasonable, 
and  that  the  Hazel  Law  did  not  deny  the 
equal  protection  of  the  laws.  Van  Winkle 
V.  State  (Del.;  1916D-104. 

26.  Validity  of  Prohibitory  Law.  The 
state,  in  the  exercise  of  its  police  power, 
may  prohibit  the  manufacture  and  sale  in 
the  state  of  intoxicating  liquors.  Glferna 
V.  State  (Ariz.)  1916D-94. 

27.  Effect  of  Prohibitory  Amendment. 
The  Ariz,  prohibition  amendment  to  the 
constitution  annuls  existing  laws  permit- 
ting the  manufacture  and  sale  of  intoxi- 
cants under  licenses  or  other  restrictions. 
Gherna  v.  State  (Ariz.)  1916D-94. 

28.  Validity  of  Prohibitory  Amendment. 
The  Ariz,  prohibition  amendment  to  the 
constitution  does  not  deprive  liquor  deal- 
ers of  their  property  without  due  process 
of  law,  and  does  not  discriminate  against 
citizens  of  other  states,  though  it  may  de- 
prive dealers  of  the  right  to  pursue  the 
business  which  was  previously  lacvful  and 


INTOXICATING  LIQUORS. 


465 


diminish  the  xalue  of  the  property  de- 
voted to  the  business.  Gherna  v.  State 
(Ariz.)  1916D-94. 

29.  The  Ariz,  prohibition  amendment  to 
the  constitution  is  not  an  ex  post  facto 
law,  in  so  far  as  it  prohibits  the  sale  of 
liquor  in  existence  at  the  time  of  its  adop- 
tion.    Gherna  t.  State  (Ariz.)  1916D-94. 

*  Note. 

Validity  of  statute  forbidding  bringing 
of  liquor  into  prohibition  territory.  1917A- 
740. 

b.     Eegulating  Sale  to  Indians. 

30.  Shipments  of  Uquor  into  Indian 
Territory.  Act  March  1,  1895,  c.  145,  §  8, 
28  Stat.  697  (3  Fed.  St.  Ann.  424),  which 
inter  alia  prohibits  the  carrying  of  intoxi- 
cating liquors  into  Indian  Territory,  was 
enacted  as  a  part  of  the  recognized  guard- 
ianship by  the  United  States  of  the 
Indians  as  a  separate  but  independent 
people,  and  in  the  exercise  of  the  constitu- 
tional power  of  Congress  to  regulate  com- 
merce with  the  Indian  tribes,  and  was  not 
repealed  by  the  Enabling  Act  of  Okla- 
homa, and  the  admission  of  the  state  there- 
under, as  to  importation  from  pavts  of  the 
state  not  within  the  former  Indian  Terri- 
tory, and  an  indictment  for  conspiracy  to 
violate  said  act  by  carrying  liquor  into 
such  territory  need  not  allege  that  it 
was  to  be  imported  from  without  the  state 
of  Oklahoma.  Joplin  Mercantile  Co.  v. 
United  States  (Fed.)  19160-470. 

31.  In  none  of  the  legislation  of  Con- 
gress prohibiting  the  introduction  of  liquor 
into  the  Indian  country  have  state  lines 
been  recognized,  but  the  acts  prohibited 
have  always  been  held  unlawful  whether 
the  liquor  was  introduced  from  points 
within  the  same  state  or  from  without. 
Joplin  Mercantile  Co.  v.  United  States 
(Fed.)  1916C-470. 

c.     Qualification  of  Dealers. 

32.  Where  names  signed  to  a  statcmeot 
of  consent  to  the  sale  of  intoxicating 
liquors  were  spelled  differently  from  the 
names  in  the  poll  books,  but  the  names 
would  be  pronounced  the  same,  the  doc- 
trine of  idem  sonans  will  apply,  and  the 
names  must  be  counted.  Kiley  v.  Litch- 
field (Iowa)  1917B-172. 

33.  Proceeding  for  Permission  to  Sell. 
A  proceeding  under  the  mulct  law  for  per- 
mission to  sell  intoxicating  liquors  pursu- 
ant to  a  statement  of  consent,  though  spe- 
cial, is  at  law.  EUey  v.  Litchfield  (Iowa) 
1917B-172. 

34.  Mode  of  Trial.  Iowa  Code,  §  2450, 
providing  for  the  filing  of  statements  of 
consent  to  the  sale  of  intoxicating  liquors, 
and  authorizing  any  aggrieved  party  to 
appeal  from  the  decision  of  the  board  of 
Bupervisors  to  the  district  court,  where  the 

30 


matter  shall  be  tried  de  novo,  requires  a 
trial  in  the  district  court  as  though  not 
previously  heard.  Biley  v.  Litchfield 
(Iowa)  1917B-172. 

35.  Signatures  —  Conformity  to  Poll 
Book.  Where  the  names  on  a  statement 
of  consent  to  the  sale  of  intoxicating 
liquor  and  on  the  poll  books  are  the  same, 
the  identity  of  the  signers  with  the  elec- 
tors whose  names  are  on  the  poll  books  is 
presumed,  but  the  presumption  may  be 
overcome.  Eiley  v.  Litchfield  (Iowa) 
1917B-172. 

36.  Signature  by  Incorrect  Name.  Where 
persons  signing  a  statement  of  consent  to 
the  sale  of  intoxicating  liquor  testified 
that  the  names  signed  by  them  were  not 
their  true  names,  but  that  the  change  in 
the  signatures  was  to  make  the  names  con- 
form with  those  on  the  poll  books,  and 
not  to  deceive,  but  there  was  nothing  to 
show  that  other  persons  resided  in  the 
city  bearing  the  names  appearing  on  the 
poll  books,  the  names  must  be  disregarded 
in  determining  the  number  of  signers  on 
the  statement.  Eiley  v.  Litchfield  (Iowa) 
1917B-172. 

37.  Where  "0.  A.  Oppelt"  signed  a  state- 
ment of  consent  as  "E.  A.  Oppelt,"  the 
name  appearing  on  the  poll  book,  and  he 
testified  to  having  resided  in  the  city  and 
to  having  voted  at  the  last  preceding  elec- 
tion and  that  there  was  no  one  living  in 
the  city  by  the  name  of  "Oppelt"  except- 
ing himself  and  son,  and  that  the  son  had 
never  voted,  but  did  not  know  whether  a 
person  by  the  name  of  "E.  A.  Oppelt" 
voted,  the  person  signing  as  "E.  A.  Op- 
pelt" was  "C.  A.  Oppelt,"  and  his  name 
must  be  counted.  Eiley  v.  Litchfield 
(Iowa)  1917B-172. 

38.  Where  persons  signing  a  statement 
of  consent  to  the  sale  of  liquor  testified 
that  the  names  signed  by  them  were  not 
their  true  names,  evidence  that  the  change 
in  signatures  was  to  make  the  names  con- 
form with  those  on  the  poll  books  and  not 
to  deceive,  and  that  all  of  them  were  reg- 
istered in  their  true  names,  but  none  of 
their  true  names  appeared  on  the  poll 
books,  is  admissible  as  against  the  objec- 
tion that  the  evidence  varied  or  explained 
the  names  on  the  poll  books.  Eiley  v. 
Litchfield  (Iowa)   1917B-172. 

39.  Where  electors  signing  a  statement 
of  consent  to  the  sale  of  liquor,  on  dis- 
covering that  their  true  names  were  not 
on  the  poll  books,  signed  the  names  to  the 
statement  corresponding  with  those  on  the 
poll  books,  supposed  to  have  been  written 
for  them  by  the  judges  of  election,  pursu- 
ant to  advice  of  canvassers  to  procure 
signatures  to  a  statement  of  consent,  the 
canvassers  are  not  chargeable  with  in- 
ducing electors  to  sign  names  other  than 
their  own.  Eiley  v.  Litchfield  (Iowa) 
1917B-172. 


466 


DIGEST. 

1916C— 1918B. 


40.  Affidavit  to  Signatures.  The  pur- 
pose of  Iowa  Code,  §  2452,  declaring  that 
the  signing  of  a  name  of  another  to  any 
statement  of  consent  shall  be  punishable 
as  forgery,  and  every  statement  shall  be 
accompanied  by  affidavit  of  some  repu- 
table person  showing  that  these  persons 
personally  witnessed  the  signing  of  each 
name  thereon,  and  any  false  statement  in 
the  affidavit  shall  be  punishable  as  per- 
jury, is  that  each  signer  shall  be  identified 
as  the  person  named,  so  that  a  genuine 
statement  may  form  the  basis  of  subse- 
quent proceedings,  and  a  canvasser  who 
procured  over  200  signatures  to  which  he 
made  affidavit,  and  who  admitted  that  he 
did  not  know  over  half  of  them,  and  had 
never  seen  them  before  or  since  the  sign- 
ing of  the  petition,  and  only  knew  their 
names  because  attached  to  the  statement, 
is  guilty  of  perjury  in  the  performance  of 
his  work  and  is  not  a  reputable  person, 
and  the  signatures  procured  by  him  must 
be  excluded.  Eiley  v.  Litchfield  (Iowa) 
1917B-172. 

41.  Effect  of  Death  or  Bemoval  of 
Signer.  Iowa  Code,  §§2448,  2452,  provid- 
ing that  a  statement  of  consent  to  the 
Bitle  of  intoxicating  liquors  signed  by  a 
majority  of  the  voters  as  shown  by  the 
poll  list  shall,  if  found  sufficient,  be  effec- 
tual, and  that  no  name  shall  be  counted 
that  is  not  signed  within  thirty  days  prior 
to  the  filing  of  the  statement,  imply  that 
all  signing  within  thirty  days  prior  to  the 
filing  shall  be  counted,  and  fixed  the 
period  during  which  signatures  may  be 
procured,  and  the  thirty  days  mentioned 
is  that  period,  and  a  name  signed  within 
that  time  and  while  a  resident  of  the 
municipality  must  be  counted,  though  he 
has  since  that  time  removed  from  the  city 
or  has  died.  Eiley  v.  Litchfield  (Iowa) 
1917B-172. 

42.  Qualification  of  Signers.  The  poll 
list  of  the  electors  is  conclusive  evidence 
of  those  who  voted  at  the  election  in  de- 
termining whether  a  statement  of  consent 
to  the  sale  of  liquor"  has  been  signed  by 
the  requisite  number  of  electors,  and  the 
law  does  not  contemplate  an  investigation 
as  to  who  had  the  right  to  vote,  but  it  is 
sufficient  that  the  name  appeared  on  tho 
poll  lists.  Riley  v.  Litchfield  (Iowa) 
1917B-172. 

43.  Withdrawal  of  Signature.  Electors 
signing  a  statement  of  consent  may  re- 
voke withdrawals  not  filed,  and  may  file 
revocation  of  withdrawals  prior  to  the  tak- 
ing effect  of  withdrawals.  Riley  v.  Litch- 
field  (Iowa)   1917B-172. 

44.  Validity  of  Local  Option  Law.  As 
the  colored  electors  are  entitled  to  vote 
on  the  question  whether  the  sale  of  intoxi- 
cants shall  be  licensed,  which  is  submitted 
at  the  biennial  general  state  elections,  and 
may  prespnt  a  petition  for  the  suppression 
of  the  sale  of  intoxicants,  under  the  Ark. 


Three  Mile  Local  Option  Law  (Kirby's 
TUg.  §§  5128-5132),  it  cannot  be  held  that 
thev  are  unlawfully  deprived  of  any  voice 
in  the  suppression  of  liquor  traffic  by  the 
Going  Act,  which  requires  a  petition, 
signed  by  a  majority  of  white  electors,  as 
condition  to  the  granting  of  a  license. 
Wade  V.  Horner  (Ark.)  1916E-167. 

(Annotated.) 

45.  The  Ark.  Going  Act  does  not  deprive 
colored  citizens  of  the  right  of  remon- 
strance against  the  issuance  of  a  license; 
such  persons  having  the  same  right  to 
make  themselves  parties  to  a  proceeding 
for  the  issuance  of  a  license  as  any  other 
elector,  and  to  present  their  remonstrances 
in  the  same  manner.  Wade  v.  Horner 
(Ark.)  1916E-167.  (Annotated.) 

46.  Validity  of  Statute  Discriminating 
Against  Race.  The  Going  Act  (Acts  Ark. 
1913,  p.  180),  providing  that  whrn  a  ma- 
jority of  the  adult  white  inhabitants  of 
a  city  or  town  petition  the  county  court, 
asking  that  a  license  for  the  sale  of  in- 
toxicants be  issued,  the  court  may  issue 
such  license,  if  the  majority  of  the  votes 
cast  at  the  last  election  was  in  favor  of 
license,  merely  prescribes  a  condition  pre- 
cedent to  the  issuance  of  a  license,  and  is 
not  invalid  under  either  the  state  or  fed- 
eral constitution,  as  providing  for  an  elec- 
tion from  which  electors  of  African  de- 
scent were  illegally  excluded.  Wade  v. 
Horner  (Ark.)  1916E-167. 

(Annotated.) 

Note. 

Validity  of  intoxicating  liquor  statute 

which    makes    distinction    between    races 

with    respect    to    granting    of    license    or 

otherwise.     1916E-170. 

d.     Conflict    Between    Statute    and    Ordi- 
nance. 

47.  Eegnlation  of  Transportation.  An 
ordinance  which  attempts  to  regulate  the 
transportation  of  intoxicating  liquors 
within  the  city  for  legal  purposes,  and  to 
prohibit  such  transportation  for  illegal 
purposes,  but  which  does  not  permit  the 
transportation  of  such  liquors  for  all  of 
the  purposes  recognized  as  legal  by  the 
law  of  the  state,  is  invalid;  and  a  judg- 
ment quashing  a  complaint  drawn  under 
such  an  ordinance  will  be  sustained.  Kan- 
sas City  V.  Jordan  (Kan.)   1918B-273. 

(Annotated.) 

48.  Clnb  House  System  as  Nuisance. 
Under  statutory  power  to  declare  what 
shall  be  nuisances  and  abate  them,  a  town 
cannot,  by  ordinance,  make  the  clubhouse 
locker  system  of  receiving  and  using  in- 
toxicating liquors  in  an  orderly  way  a 
nuisance.  Cortland  v.  Larson  (111.)  1916E- 
775.  (Annotated.) 

49.  The  ordinance  was  not  within  the 
town's  police  power  for  the  orderly  recep- 


INTOXICATING  LIQUORS. 


467 


tion,  keeping,  and  use  of  intoxicating 
liquors  by  private  individuals,  and  does 
not  affect  the  public  welfare  or  health. 
Cortland  v.  Larson  (111.)  1916E-775. 

(Annotated.) 

50.  Prohibition  of  Possession  for  Per- 
sonal Use.  Under  charter  power  to  "regu- 
late, prohibit  and  license  the  selling  of  in- 
toxicating liquors,"  a  town  cannot  enact 
an  ordinance  prohibiting  club  members 
from  receiving  ana  keeping  intoxicating 
liquors  for  their  individual  use  in  club- 
house lockers.  Cortland  v.  Larson  (111.) 
1916E-775.  (Annotated.) 

•.    Annulment  of  License. 

51.  The  Ariz,  prohibition  amendment  to 
the  constitution  does  not  impair  the  obli- 
gation of  contracts,  though  prohibiting  the 
sale  of  liquor  by  existing  licensed  dealers. 
Gherna  v.  State  (Ariz.)  1916D-94. 

52.  The  prohibition  amendment  to  the 
constitution  is  not  invalid  as  confiscating 
the  license  money  paid  by  liquor  dealers, 
or  because  depreciating  lease  rentals  and 
stocks  of  liquor,  for  these  have  no  bearing 
on  the  right  to  sell  liquor  after  the  revo- 
cation of  a  license.  Gherna  v.  State 
(Ariz.)  1916D-94. 

53.  Revocation  of  Licenses  by  Statute. 
The  state,  in  the  exercise  of  its  police 
power,  may  revoke  liquor  licenses,  and 
whether  the  law  is  confiscatory  may  be 
litigated,  provided  the  state  permits  the 
bringing  of  an  action  against  it  for  that 
purpose.  Gherna  v.  State  (Ariz.)  1916I>- 
94. 

f.     Regulating  Transportation. 

54.  Under  the  laws  of  Kansas  cities  of 
the  first  class  have  power  to  pass  ordi- 
nances regulating  the  transportation  of 
intoxicating  liquors  for  legal  purposes  and 
prohibiting  such  transportation  for  illegal 
purposes.  Kansas  City  v.  Jordan  (Kan.) 
1918B-273.  (Annotated.) 

55.  Such  an  ordinance  as  is  mentioned 
in  section  1  of  this  syllabus  is  a  law  of 
this  state  within  the  meaning  of  the 
United  States  Constitution,  and  of  the 
Webb-Kenyon  Act  (Part  1,  37  U.  S.  Stat, 
at  Laree,  c.  90,  p.  699,  4  Fed.  St.  Ann. 
(2d  ed.)  593).  Kansas  City  v.  Jordan 
(Kan.)    1918B-273.  (Annotated.) 

56.  Such  an  ordinance  as  is  mentioned 
in  section  1  of  this  syllabus  is  not  an  un- 
lawful regulation  of  interstate  commerce. 
Kansas  City  t.  Jordan  (Kan.)   1918B-273. 

(Annotated.) 

57.  A  city  ordinance  regulating  the 
transportation  of  intoxicating  liquors  for 
legal  purposes,  and  prohibiting  such  trans- 
portation for  illegal  purposes,  is  consis- 
tent with  the  law  of  this  state  regulating 
the  transportation  and  delivery  of  intoxi- 


cating   liquors.     Kansas    City    t.    Jordan 
(Kan.)  1918B-273.  (Annotated.) 

g.    The  Webb-Kenyon  Act. 

58.  The  Webb-Kenyon  Act  (Part  1,  37 
U.  S.  Stat,  at  Large,  c.  90,  p.  699,  Fed.  St 
Ann.  1914  Supp.  p.  208),  removing  the  in- 
terstate character  and  protection  from  in- 
toxicating liquor  shipped  into  a  state  for 
the  purpose  of  use  in  violation  of  its  laws, 
is  a  valid  exercise  of  the  commerce  power 
vested  in  Congress  by  the  Constitution. 
State  V.  Missouri  Pacific  E.  Co,  (Kan.) 
1917A-612. 

59.  The  act  is  not  void  as  a  delegation 
of  power  over  interstate  commerce,  but  is- 
a  legitimate  exercise  of  such  power.     State 
V.  Missouri  Pacific  E.  Co.  (Kan.)   1917A- 
612. 

60.  State  Regulation  of  Transportation. 
The  Hahin  Act  (Laws  Kan.  1913,  c.  248) 
is  not  void  as  an  attempt  to  regulate  in- 
terstate commerce,  but,  complementary  to 
the  Webb-Kenyon  Act,  is  a  valid  enact- 
ment concerning  the  bringing  into  the 
state  of  intoxicating  liquors  for  unlawful 
use  here.  State  v.  Missouri  Pacific  R.  Co. 
(Kan.)  1917A-612.  (Annotated.) 

61.  There  is  nothing  repugnant  to  the 
due  process  of  law  clause,  of  U  S.  Const. 
5th  Amend.  (9  Fed.  St.  Ann.  288),  in  the 
provisions  of  the  Webb-Kenyon  Act  of 
March  1,  1913  (37  Stat,  at  L.  699,  c.  90, 
Fed.  St.  Ann.  1914  Supp.  p.  208),  upder 
which  an  interstate  shipment  of  intoxi- 
cating liquor,  though  intended  for  personal 
use,  may  be  subjected  to  the  state  pro- 
hibitory laws.  James  Clark  Dist.  Co.  v. 
Western  Md.  R.  Co.  (U.  S.)  1917B-S45. 

(Annotated.) 

62.  Congress  did  not  exceed  its  power 
nnder  the  commerce  clause  in  enacting  the 
provision  of  the  Webb-Kenyon  Act  of 
March  1,  1913  (37  Stat,  at  L.  699,  c.  90, 
Fed.  St.  Ann.  1914  Supp.  p.  208),  forbid- 
dine  the  interstate  shipment  or  transpor- 
tation of  intoxicating  liquor  which  is  in- 
tended by  any  person  interested  therein 
to  be  received,  possessed,  sold,  or  in  any 
manner  used,  either  in  the  original  pack- 
age or  otherwise,  in  violation  of  any  law 
of  the  state  into  which  the  liquor  is  trans- 
ported. James  Clark  Dist.  Co.  v.  Western 
Md.  R.  Co.  (U.  S.)  1917B-845. 

(Annotated.) 

63.  Validity  and  Effect  of  Webb-Kenvon 
Law.  Any  immunity  from  the  prohibi- 
tions of  "W.  Va.  Code  1913,  c.  32A,  as 
amended  by  Laws  1915,  c.  7,  §  7.  Laws 
1915,  2d  Ex.  Sess.  p.  660,  §  34,  against  the 
shipment  from  without  the  state  of  intoxi- 
catinjr  liquors  intended  for  personal  use, 
and  the  receipt  and  possession  of  liquors 
so  transported,  which  the  interstate  char- 
acter of  such  a  shipment  might  otherwise 
give,  is  taken  away  by  the  provisions  of 


468 


DIGEST. 

1916C— 1918B. 


the  Webb-Kenyon  Act  of  Marcb  1,  1913 
(37  Stat,  at  L.  699,  c.  90,  Fed.  St.  Ann. 
1914  Supp.  p.  208),  forbidding  the  inter- 
state shipment  or  transportation  of  intoxi- 
cating liquor  which  is  intended  by  any 
person  interested  therein  to  be  received, 
possessed,  sold,  or  in  any  manner  used, 
either  in  the  original  package  or  other- 
wise, in  violation  of  the  law  of  the  state 
to  which  the  liquor  is  transported,  al- 
tbough  individual  use  may  not  have  been 
prohibited  by  the  West  Virginia  law. 
James  Clark  Dist.  Co.  v.  Western  Md,  R. 
Co.  (U.  S.)  1917B-845.  (Annotated.) 

64.  The  Webb-Kenyon  law,  prohibiting 
the  transportation  of  liquors  from  one 
state  into  another,  to  be  received,  kept, 
or  used  jn  violation  of  the  law  of  the  lat- 
ter state,  thereby  divesting  intoxicating 
liquors  of  their  interstate  character  in  so 
far  as  the  power  of  the  state  to  regulate 
the  sale  or  disposition  thereof  and  ship- 
ments into  the  state  for  that  purpose  is 
concerned,  is  valid.  Gottstein  v.  Lister 
(Wash.)  1917D-1008. 

65.  Effect  ou  State  LegislatioiL  Such 
initiative  measure  is  not  invalid  as  an  in- 
terference with  interstate  commerce,  since 
the  Webb-Kenyon  act  (Act  March  1,  1913, 
c.  90,  37  Stat.  699  [4  Fed.  St.  Ann.  2d  ed. 
593])  divests  intoxicating  liquors  of  their 
interstate  character  in  so  far  as  the  power 
of  the  state  to  regulate  the  sale  and  dis- 
position thereof  and  the  shipment  into  the 
state  for  that  purpose  is  concerned.  Gott- 
stein V.  Lister  (Wash.)  1917D-1008. 

66.  Prohibition  of  Importation.  The 
May-Mott-Lewis  Act  (Laws  Miss.  1914, 
c  127)  §§  2,  7,  and  11,  par.  2,  making  it 
unlawful  for  any  person  to  order  and  have 
shipped  to  him,  or  for  him  to  receive  from 
without  the  state,  intoxicating  liquors  in 
excess  of  one  gallon,  though  imposing  a 
direct  burden  on  interstate  commerce,  is 
authorized  by  the  Webb-Kenyon  Act  (Act 
March  1,  1913,  c.  90,  37  Stat.  699),  divest- 
ing intoxicating  liquor  of  its  interstate 
character,  when  it  is  intended  by  any  per- 
son interested  therein  to  be  received  in 
violation  of  vthe  laws  of  the  state  into 
which  it  is  being  transported,  even  as 
applied  to  liquor  being  transported  for  the 
personal  use  of  the  consignee  and  his 
family  and  not  to  be  sold  or  used  unlaw- 
fully. American  Express  Co.  v.  Beer 
(Miss.)  1916D-127. 

67.  The  requirement  of  the  May-Mott- 
Lewis  Act  (Laws  Miss.  1914,  c.  127),  §5, 
that  those  transporting  liquors  into  the 
state  shall  keep  a  record  of  same  and  file 
statements  thereof  with  the  clerk  of  the 
circuit  court,  is  not  invalid  as  imposing 
a  direct  burden  on  interstate  commerce, 
regardless  of  whether  it  is  within  the 
Webb-Kenyon  Act  (Act  March  1,  1913, 
c.  90,  37  Stat.  699,  Fed.  St.  Ann.  1914 
Supp.  p.  208;,  prohibiting  the  transporta- 
tion of  liquor  from  one  state  into  another 


lor  sale  in  violation  of  any  law  of  the 
state  where  received.  American  Express 
Co.  V.  Beer  (Miss.)  1916D-127. 

68.  The  Webb-Kenyon  Act  (Act  March 
1,  1913,  c.  90,  37  Stat.  699,  Fed.  St. 
Ann.  1914  Supp.  p.  208),  making  it  un- 
lawful to  transport  into  a  state  intoxicat- 
ing liquor  "intended  by  any  person  in- 
terested therein  to  be  received,  possessed, 
sold  or  in  any  manner  used  ...  in  vio- 
lation of  any  law  of  such  state,"  is  a 
proper  exercise  of  the  power  vested  in 
Congress  to  regulate  commerce.  American 
Express  Co.  v.  Beer  (Miss.)   1916D-127, 

69.  Liquor  Shipped  for  Lawful  Purpose. 
The  Webb-Kenyon  Act  (Act  March  1,  1913, 
c.  90,  37  Stat.  699,  Fed.  St.  Ann.  1914 
Supp.  p.  208),  by  its  title  purporting  to 
divest  liquor  of  its  interstate  character 
only  "in  certain  cases,"  and  prohibiting 
transportation  of  intoxicating  liquors  from 
one  state  into  another,  to  be  received, 
possessed,  sold,  or  used  in  violation  of 
any  law  of  such  state,  does  not  divest 
liquor  of  its  interstate  character  in  all 
cases,  but  removes  the  protection  of  the 
commerce  clause  only  when  the  liquor 
is  to  be  used  in  violation  of  any  law 
of  the  state;  and  hence  the  Hazel  Law 
(27  Del.  Laws,  c.  139),  enacted  thereunder, 
prohibiting  the  shipment  or  delivery  of 
liquor  in  a  prohibition  district  of  the  state 
for  any  purpose,  except  to  physicians  and 
druggists,  is  invalid  as  to  a  shipment  and 
delivery  of  liquor  from  another  state  into 
a  prohibition  district  of  this  state  for  the 
receiver's  personal  consumption,  a  purpose 
recognized  bv  the  act  itself  to  be  lawful. 
Van  Winkle  v.  State  (Del.)  1916D-104. 

4.     LICENSES. 
a.     Operation  and  Effect  of  Statute. 

70.  What  Constitutes  Tavern.  Under 
R.  L  Gen.  Laws  1909,  c.  123,  §  2,  forbid- 
ding the  granting  of  a  liquor  license  to  a 
place  within  200  feet  of  any  public  or 
parochial  school  or  to  any  place  except 
taverns  licensed  on  May  22,  1909,  the  place 
must  be  used  as  a  tavern,  and  it  is  not  suffi- 
cient to  show  that  it  was  at  that  time 
licensed  as  a  tavern,  even  though  such 
license  might  afford  presumptive  evidence 
that  it  was  so  used.  Rice  v.  Board  of 
License  Commissioners  (R.  I.)  1916C-1189. 

71.  'Tremlses"  of  School.  R.  I.  Gen, 
Laws  1909,  c.  123.  §  2,  provides  that  no 
liquor  license  shall  be  issued  to  a  place 
within  200  feet,  measured  by  any  public 
traveled  way,  of  the  premises  of  any 
school.  A  church  owned  land  on  H.  street, 
with  a  building  thereon,  80  feet  from  the 
street,  the  basement  of  which  was  used 
as  a  parochial  school,  with  a  space  on  each 
side  for  yard,  with  a  gate  on  the  street  at 
about  the  middle  of  the  lot,  and  a  double 
gate  at  the  northwest  corner  thereof  open- 
ing on  a  driveway  on   the  northerly  side 


INTOXICATING  LIQUORS. 


469 


of  the  building,  with  a  post  near  the 
northwest  corner  of  the  building,  both 
gates  being  used  as  means  of  access  by 
tne  pupils,  who  were  told  not  to  play  in 
front  of  the  building.  The  distance  from 
a  point  on  the  east  side  of  H.  street  oppo- 
site the  southwest  corner  of  a  licensed 
place  along  the  street  to  the  northwest 
corner  of  the  school  lot  was  154  feet,  and, 
when  prolonged  for  200  feet  from  the 
starting  point,  the  line  extended  across  the 
entrance  to  the  middle  gate;  but  a  line 
from  the  same  point  of  beginning  to  the 
post  near  the  corner  of  the  lot,  then  turn- 
ing east  and  extending  along  and  across 
the  drireway  to  the  post,  measured  240 
feet.  Held,  that  the  term  "premises,"  in 
reference  to  real  estate,  usually  includes 
appurtenances,  and  that  as  applied  to  the 
school  included  the  school  yard,  driveway, 
and  paths,  so  that  the  licensed  building 
was  within  200  feet  of  the  school;  the 
fact  that  the  driveway  was  used  by  other 
persons  for  bringing  coal,  etc.,  not  making 
it  a  "public  traveled  way."  Rice  v.  Board 
of  License  Commissioners  (R.  I.)  1916C- 
1189.  (Annotated.) 

72.  Nature  of  License.  A  license  for 
the  sale  of  liquor  is  not  a  contract  within 
the  protection  of  the  constitutional  guar- 
anties, but  is  a  mere  permit  affording  pro- 
tection to  the  holder,  but  the  privilege 
may  be  revoked  by  the  repeal  of  the  law 
authorizing  the  issuance  of  the  license. 
Gherna  v.  State  (Ariz.)  1916D-94. 

73.  Right  to  License  Social  Club.  A 
social  club,  incorporated  under  Mo.  Rev. 
St.  1909,  §§  3432-3445,  cannot  procure  are- 
tail  license  as  a  dramshop  keeper  under 
section  7188,  which  license,  under  the  ex- 
press provisions  of  section  7191,  can  be 
granted  only  to  a  "law-abiding,  assessed 
taxpaying  male  citizen  over  twenty-one 
years  of  age."  State  r.  Missouri  Athletic 
Club  (Mo.)  1916D-931. 

b.     Consent  to  Granting  of  License. 

74.  Signatures.  Where  poll  lists  con- 
tained the  Christian  names  of  electors, 
while  the  names  to  a  statement  of  consent 
to  the  sale  of  intoxicating  liquors  con- 
tained only  the  letters  of  the  Christian 
names,  the  signatures  to  the  statement 
were  not  signatures  of  names  of  persons 
appearing  on  the  poll  books,  and  must  be 
disregarded,  Riley  v.  Litchfield  (Iowa) 
1917B-172. 

75.  Consent  of  Infant  Owner.  Under 
N.  Y.  Liquor  Tax  Law  (Consol.  Laws, 
c.  34,  §  15,  subd.  8),  as  amended  by  Laws 
1911,  c.  643,  §  2,  requiring  the  consent  of 
owners  of  dwelling  houses  situated  within 
300  feet  of  a  saloon  to  the  issuance  of  a 
license  therefor,  infant  owners  may  not 
give  a  valid  consent,  in  view  of  the  policy 
of  the  liquor  law  as  to  infants,  nor  can 
an  infant,  through  an  agent,  make  a  valid 


consent.    Matter  of  Farley  (N.  Y.)  1916C- 
494.  (Annotated.) 

Note. 

Power  of  infant  to  consent  to  issuance 
of  liquor  license.     1916C-497. 

«.     Liquor  Dealer's  Bond. 

76.  Liability  of  Surety  on  Transferor's 
Bond.  Under  Bums'  Ind.  Ann.  St.  1914, 
§  82230  (Laws  1911,  c.  119,  §  12),  provid- 
ing that  if,  upon  hearing  of  a  petition  for 
transfer  of  a  liquor  license,  the  commis- 
sioners approve  the  application  for  a 
license,  it  shall  grant  the  holder  permis- 
sion to  sell  and  the  applicant  permission 
to  purchase,  and  upon  filing  of  a  bond  by 
such  purchaser,  with  the  approval  of  the 
county  auditor,  the  board  shall  issue  to 
the  purchaser  of  the  license  a  certified 
copy  of  the  order  of  transfer,  where,  on 
transfer  of  a  license,  the  transferee  files 
no  bond,  but,  the  surety  on  his  transferor's 
bond  having  assented  to  the  substitution, 
such  surety's  assent  to  the  change  is  filed 
with  the  approval  of  the  commissioners, 
the  old  bond  meets  the  requirements  of 
the  statute  and  binds  the  surety.  White 
T.  State  (Ind.)  1917B-527. 

77.  In  such  case  both  transferee  and 
surety  are  bound  to  discharge  the  statu- 
tory conditions  of  the  bond,  under  Burns* 
Ind.  Ann.  St.  1914,  §  1278,  providing  that 
no  bond  shall  be  void  for  want  of  form  or 
substance  or  recital  or  condition,  nor  the 
principal  or  surety  be  discharged,  but  shall 
be  bound  to  the  full  extent  contemplated 
by  the  law  requiring  the  same.  White  v. 
State  (Ind.)  1917B-527. 

5.     OFFENSES. 

a.     Distribution  by  Social  Club. 

78  Where  an  incorporated  club  furnishes 
intoxicating  liquors  to  its  members  at  a 
clubhouse,  keeping  an  account  of  each 
transaction  and  requiring  the  member  at 
stated  times  to  pay  for  what  he  has  re- 
ceived, this  is  a  "sale,"  within  Mo.  Rev. 
St.  1909,  §  7188,  prohibiting  the  sale  of  in- 
toxicating liquors  without  a  license,  when 
such  section  is  liberally  construed  pursu- 
ant to  the  express  requirement  of  section 
7222.  State  v.  Missouri  Athletic  Club 
(Mo.)   1916D-931.  (Annotated.) 

79.  That  a  social  club,  in  reliance  on  a 
construction  placed  by  the  supreme  court 
on  the  dramshop  act  (Rev.  St.  Mo.  1909, 
§§  7186-7229)  in  a  decision  adjudicating 
the  rights  of  social  clubs  to  sell  liquor  with- 
out a  license,  and  on  legislative  acquies- 
cence in  such  decision  through  failure  to 
enact  any  subsequent  law  affecting  its  sub- 
ject matter,  has  enjoyed  the  privilege  of 
selling  intoxicating  liquor  and  made  ex- 
penditures in  anticipation  of  the  continued 
enjoyment  of  such  privilege,  will  not  pre- 


470 


DIGEST. 

19160— 1918B. 


elude  a  forfeiture  of  the  club's  charter  for 
abuse  of  its  corporate  powers  by  keeping 
and  selling  intoxicating  liquors.  State  v. 
Missouri  Athletic  Club   (Mo.)    1916D-931. 

Note. 
Application  of  statute  regulating  liquor 
traffic  to  bona  fide  social  club  distributing 
liquor  to  members.     1916D-940. 

b.     Sale  by  Physician. 

80.  The  Hazel  Law  (27  Del.  Laws, 
e.  139),  providing  by  section  5  that  it  shall 
not  apply  to  the  shipment  or  delivery  to 
physicians  of  liquors  in  unbroken  packages 
not  exceeding  five  gallons  at  any  one  time, 
does  not  permit  liquor  to  be  sold  by  phy- 
sicians. Van  Winkle  v.  State  (Del.) 
1916D-104. 

c.    Importation  of  Liquor. 

81.  Eegulatlon  of  Transportation  of  Liq- 
uors. Tenn.  Acts  1913  (2d  Ex.Sess.),  c.  3, 
which  is  entitled  "An  act  to  prohibit"  the 
shipment  and  conveying  of  intoxicating 
liquors  from  one  county  to  another,  but 
providing  that  the  venue  for  prosecution 
shall  be  in  the  county  to  which  shipments 
are  made  or  in  which  deliveries  are  made, 
does  not  prohibit  the  personal  transporta- 
tion of  liquor,  since  "ship"  means  to  put 
or  receive  on  a  ship  or  other  vessel  for 
transportation,  to  send  away,  to  get  rid 
of;  and  "deliver"  means  to  give  or  trans- 
fer, to  yield  possession  of,  to  make  or  give 
over,  to  make  the  delivery  of,  to  commit, 
to  surrender,  to  rescind;  and  both  imply 
a  change  of  custody,  and  do  not  apply  to 
personal  transportation,  and  it  will  be  pre- 
sumed that  if  the  legislature  intended  to 
prohibit  personal  transportation,  it  would 
have  provided  for  the  venue  of  prosecu- 
tions for  violation  of  that  provision  also. 
Bird  V.  State  (Tenn.)  1917A-634. 

(Annotated.) 

82.  Tenn.  Acts  1913  (2d  Ex.  Sess.),  c.  1, 
which  is  entitled  "An  act  regulating  the 
shipment"  and  delivery  of  intoxicating  li- 
quor, and  section  9  of  which  excepts  from 
the  prohibition  of  the  acts  personal  trans- 
portation of  liquor  for  personal  or  family 
use  in  quantities  not  exceeding  one  gallon, 
does  not  prohibit  the  personal  transporta- 
tion of  quantities  greater  than  one  gallon, 
since  the  title  includes  only  the  regulation 
of  shipment  and  delivery,  and  to  construe 
it  to  prohibit  personal  transportation 
would  render  the  statute  unconstitutional 
under  Const,  art.  2,  §  17,  requiring  the  sub- 
ject of  an  act  to  be  expressed  in  its  title. 
Bird  V.  State  (Tenn.)  1917A-634. 

(Annotated.) 

83.  Construction  of  Statute — Counties  to 
Which  Applicable.  The  Allison  Law  (Acts 
Tex.  33d  Leg.  1st  Called  Sess.  c.  31)  applies 
to  a  county  which,  prior  to  its  enactmeut, 
had  adopted  prohibition.  Longmire  v. 
State  (Tex.)  1917A-72G. 


84.  "CTnlawful  Transportation  of  Liquor. 
An  indictment  alleging  that  accused,  a  pri- 
vate person,  unlawfully  transported  and 
delivered  intoxicating  liquor  to  a  person 
named  in  a  county  which  had  adopted  pro- 
hibition, need  not  allege  whether  the  trans- 
portation was  interstate  or  intrastate,  since 
Allison  Act  (Acts  Tex.  33d  1st  Called  Sess. 
c.  31,  §§  2-4)  relates  to  intrastate  transac- 
tions, and  section  12  thereof  declares  that 
it  shall  not  be  necessary  to  negative  excep- 
tions, but  the  same  shall  be  available  as 
purely  defensive  matter.  Longmire  v. 
State  (Tex.)  1917A-726. 

85.  Shipment  for  Personal  Use.  The 
transportation  of  intoxicating  liquors  from 
"wet"  territory  in  the  state  into  prohibi- 
tion territory  by  &  citizen  of  the  latter  ter- 
ritory, for  his  own  use  or  as  agent  for  an- 
other for  his  own  use,  is  not  a  violation  of 
Allison  Act  (Acts  Tex.  33d  Leg.  1st  Called 
Sess.  c.  31).  Longmire  v.  State  (Tex.) 
1917A-726. 

d.     Persons  Liable. 

86.  Illegal  Sale — Liability  of  Person 
Buying  as  Agent.  The  penalties  of  the 
Minn,  local  option  statute.  Laws  1915, 
c.  23,  §  13,  are  directed  against  the  seller 
and  not  against  the  buyer;  and  one  who 
purchases  intoxicating  liquor  in  a  dry 
county  at  the  solicitation  of  another,  and 
with  his  money  and  for  his  use  and  as  his 
agent,  in  good  faith,  and  not  as  a  subter- 
fuge or  for  purposes  of  evasion,  does  not 
commit  an  offense.  State  v.  Provencher 
(Minn.)   1917E-598.  (Annotated.) 

87.  The  law,  however,  does  not  counte- 
nance an  evasion  or  subterfuge.  The 
claimed  agency  must  be  exercised  in  good 
faith  and  not  to  hide  a  participation  in  an 
illegal  traffic.  The  evidence  in  this  case 
was  such  as  to  make  the  defense  of  agency 
in  good  faith  for  the  jury  and  the  court  by 
charging  that  there  was  no  defense  of 
agency  in  good  faith  erroneously  deprived 
the  defendant  of  the  right  to  have  the 
question  determined  by  the  jury.  State  v. 
Provencher   (Minn.)    1917B-59'8. 

(Annotated.) 

C.     PROSECUTIONS. 
a.     Duty  of  Arresting  Officer. 

88.  Arrest  for  Threatened  Violation  of 
Law.  On  making  an  arrest  for  a  threat- 
ened violation  of  the  liquor  law,  the  sheriff 
should  take  such  steps  as  are  necessary  to 
prevent  the  threatened  sales,  as,  in  case  of 
a  saloon  open  for  business,  by  closing  it  til] 
the  liquors  are  removed,  and  then  release 
the  offender  and  leave  future  sales  and 
future  threats  to  be  dealt  with  as  they  arise. 
State  V,  Reichman  (Tenn.)  1918B-889. 

b.     Indictment. 

89.  Indictment  containing  several  Counts. 
The  informatiou  in  twelve  counts  charged 


INTOXICATING  LIQUORS. 


471 


the  unlawful  bringing  of  intoxicating  li- 
quor into  the  state,  in  twelve  others  its  un- 
lawful delivery  here,  and  in  the  twenty- 
fifth  both  a  bringing  in  and  a  delivery. 
Held,  that  each  count  charged  an  offense, 
and  it  was  error  to  exclude  evidence  under 
any  of  such  counts.  State  v.  Missouri  Pa- 
cific E.  Co.  (Kan.)  1917A-612. 

c.    Evidence. 
(1)     Admissibility. 

90.  Admissibility  of  Becords  Kept  by 
Carrier.  The  statements  of  the  shipments 
made  and  filed  by  the  carrier  with  the 
county  clerk  were  competent  evidence,  as 
were  also  the  dockets  of  a  justice  of  the 
peace  showing  pleas  of  guilty  by  such  con- 
signees to  the  charges  of  violating  the  pro- 
hibitory law.  State  v.  Missouri  Pacific  E. 
Co.  (Kan.)  1917A-612. 

91.  Admissibility  of  Records  of  Internal 
Revenue  Collector.  Certified  copies  of 
records  in  the  office  of  the  United  States 
internal  revenue  collector  for  this  district 
showing  that  from  July,  1912,  to  July, 
1913,  the  consignees  held  receipts  for  taxes 
paid  as  wholesale  liquor  dealers  were  com- 
petent and  their  exclusion  was  error.  State 
V.  Missouri  Pacific  R.  Co.  (Kan.)  1917A- 
612. 

92.  Pointing   Out   Person    Referred    to. 

Witnesses  testifying  to  sales  of  liquor,  but 
not  knowing  the  name  of  the  person  sell- 
ing, may  be  allowed  to  point  to  the  one 
or  the  other  of  defendants  as  the  person. 
People  V.  Elliott  (111.)  1918B-391. 

93.  Sales  by  Bartender.  Testimony  of 
sales  at  the  bar  by  persons  other  than  de- 
fendants, who  had  charge  of  the  premises 
and  managed  the  business,  such  other  per- 
sons acting  as  bartenders,  is  competent; 
all  being  guilty  as  principals.  People  v. 
Elliott  (111.)  1918B-391. 

94.  Other  Offenses.  Where  the  issue  on 
a  prosecution  for  violation  of  a  municipal 
ordinance  was  whether  defendant  kept  at 
his  storehouse  prohibited  liquors  with  in- 
tent to  sell  same  contrary  to  law,  a  ques- 
tion to  a  witness,  whether  he  bought  li- 
quor at  that  location  recently  before  the 
offense  alleged  and  after  the  passage  of 
the  ordinance,  is  an  evidential  fact  bear- 
ing on  defendant's  guilt.  Borok  v.  Bir- 
mingham  (Ala.)   1916C-1061. 

95.  Abbreviations — Admissibility  of  Ex- 
planation. No  error  is  committed  in  a 
prosecution  for  the  unlawful  keeping  for 
sale  of  intoxicating  liquor,  in  allowing  the 
express  agent  who  delivered  the  goods  to 
testify  as  to  the  meaning  of  abbreviations 
in  his  receipt  book,  such  as  "Liq.,"  "Cs.,"' 
and  "Bx."  State  v.  Gordon  (N.  Dak.) 
1918A-442. 

96.  Keeping  Liquor  for  Sale.  Where  in 
an  action  for  the  unlawful  keeping  for  sale 


of  intoxicating  liquor  as  a  beverage  proof 
is  made  that  liquor  was  on  several  occa- 
sions delivered  to  customers  at  the  shop 
of  the  defendant,  it  is  immaterial  that  the 
liquor  itself  was  stored  at  some  other  place. 
State  V.  Gordon  (N.  Dak.)  1918A-442. 

97.  Keeping  for  Sale — Proof  of  Sales. 
Where  a  person  is  charged  with  the  ofifenso 
of  unlawfully  keeping  intoxicating  liquor 
for  sale,  evidence  of  sales  is  admissible 
as  a  circumstance  tending  to  prove  the 
crime  charged.  State  v.  Gordon  (N.  Dak.) 
1918A-442. 

98.  Proof  of  Receipt  of  Liquor — ^Express 
Delivery  Book.  The  delivery  book  of  an 
express  company  in  which  various  con- 
signments of  liquor  were  receipted  for  by 
the  defendant  is  admissible  in  evidence  in 
a  prosecution  for  unlawfully  keeping  in- 
toxicating liquor  for  sale,  and  in  spite  of 
the  fact  that  the  original  bills  of  lading  or 
shipping  bills  were  not  introduced,  where 
the  signature  of  such  defendant  appears 
in  such  book  as  a  receipt  for  such  liquor, 
and  is  proved  to  be  his.  State  v.  Gordon 
(N.  Dak.)   1918A-442. 

99.  Government  License.  Where  one  is 
accused  of  maintaining  a  liquor  nuisance 
at  a  certain  place,  proof  of  the  issuance  to 
such  person  of  a  government  license  for 
the  sale  of  intoxicating  liquors  in  the  town 
and  state  where  such  nuisance  is  claimed 
to  have  been  maintained  is  admissible, 
even  though  the  premises  described  in  said 
license  are  different  from  those  mentioned 
in  the  information,  as  such  evidence  tends 
to  show  that  the  defendant  was  in  the  busi- 
ness of  selling  intoxicating  liquors.  State 
v.  Kilmer  (N.  Dak.)  1917B-116. 

(2)     Sufficiency. 

100.  Proof  of  Venue.  The  venue  is 
proved  on  a  prosecution  for  selling  liquor 
in  the  town  of  D.,  anti-saloon  territory, 
by  testimony  that  witness  knew  defendant 
E.  and  his  place  of  business,  a  certain 
number  on  a  certain  street,  and  that  it  is 
in  said  town;  all  the  testimony  relating  to 
sales  by  defendants  and  their  bartenders 
in  that  place  of  business.  People  v.  Elliott 
(111.)   1918B-391. 

101.  Evidence  of  Illegal  Sale.  Evidence, 
on  a  prosecution  for  sale  of  liquor  in  anti- 
saloon  territory,  is  held  to  be  sufficient  to 
support  the  conviction.  People  v.  Elliott 
(111.)  1918B-391. 

102.  Possession  as  Evidence  of  Purpose. 
The  receipt  of  large  quantities  of  liquor  is 
at  least  some  evidence  of  the  receipt  of 
such  liquor  for  unlawful  purposes.  State 
V.  Gordon  (N.  Dak.)  1918A-442. 

103.  Ownership  of  Building  Where  Un- 
lawfully Sold.  Evidence  examined  and 
held  sufficient  to  establish  the  crime  al- 
leged bv  a  preponderance  of  the  evidence. 
Hammett  v.  State  (Okla.)  1916D-1148. 


472 


DIGEST. 

191G0— 1918B. 


(3)     Presumptions  and  Burden  of  Proof. 

104.  Presumption  from  Payment  of  Fed- 
eral Tax.  Iowa  Code,  §  2427,  making  re- 
ceipts of  payment  of  United  States  liquor 
taxes  presumptive  evidence  that  the  person 
owning  the  receipt  is  engaged  in  keeping 
liquor  for  sale  "contrary  to  the  provisions 
of  this  chapter,"  applies  to  an  action  under 
section  2423  to  recover  payments  made  for 
liquor  illegally  sold,  for  the  two  sections 
are  in  the  same  chapter,  Cvitanovich  v. 
Bromberg  (Iowa)   1917B-309. 

105.  The  presumption  created  by  lowu 
Code,  §  2427,  arising  from  a  receipt  of  pay- 
ment of  United  States  liquor  taxes,  may 
be  rebutted.  Cvitanovieh  v.  Bromberg 
(Iowa)  1917B-309. 

d.  Instructions. 

106.  Instructions  Held  Applicable.  In- 
structions as  to  giving  away  liquor,  or 
other  shift  or  devise  to  evade  the  liquor 
law,  and  sales  by  servant,  are  held  under 
the  evidence  applicable  to  the  case.  Peo- 
ple V.  EUiott  (111.)  1918B-391. 

e.  Punishment. 

107.  Action  for  Penalty — ^Nature  of  Pro- 
ceeding. An  action  in  the  name  of  the 
commonwealth  against  an  express  company 
to  recover  the  penalties  imposed  for  the 
violation  of  Ky.  St.  §  2569b,  subsec.  2,  for- 
bidding the  transportation  of  intoxicating 
liquors  into  prohibition  territory,  instituted 
under  Cr.  Code  Prac.  §  11,  authorizing  a 
prosecution  of  a  public  offense  punishable 
only  by  fine,  by  penal  action  in  the  name 
of  the  commonwealth,  and  under  Ky.  St. 
§  1139,  providing  that  the  fine  imposed  by 
law  shall  inure  to  the  commonwealth,  ex- 
cept where  given  to  a  particular  person, 
etc.,  may  be  recovered  by  civil  procedure, 
or  by  indictment,  is  not  a  civil,  but  a  penal 
action,  and  no  judgment  for  imprisonment 
can  be  had  thereunder.  Commonwealth  v. 
American  Express  Co.  (Ky.)  1916E-875. 

(Annotated.) 

108.  Punishment.  The  fact  that  the 
Okla.  Constitution  prescribes  the  punish- 
ment for  the  sale  of  intoxicating  liquors 
does  not  prevent  the  legislature  from  im- 
posing other  and  different  or  greater  pun- 
ishment for  using  or  permitting  one's 
premises  to  be  used  for  the  sale  of  intoxi- 
cating liquors,  as  the  two  offenses  are  sepa- 
rate and  distinct  and  require  different 
proof  to  support  them.  Stout  v.  State 
(Okla.)  1916E-858, 

109.  Action  for  Penalty — Nature  of  Pro- 
ceeding. Section  4191,  Comp.  Laws  Okla. 
1909,  provides  as  the  punishment  of  one 
who  uses  or  permits  his  premises  to  be  used 
for  violating  the  prohibition  law  both  fine 
and  imprisonment  and  a  penalty.     Held: 

(a)  That  the  proceeding  to  recover  the 
penalty  is  the  punishment  of  an  offense. 


(b)  That  while  this  proceeding  punishes 
an  offense,  it  at  the  same  time  is  in  the 
nature  of  a  civil  action  and  is  governed 
by  the  rules  of  procedure  applicable  to  civil 
instead  of  criminal  cases.  Stout  v.  State 
(Okla.)  1916E-858.  (Ann-otated.) 

Note. 
Action  for  penalty  for  violation  of  in- 
toxicating liquor  statute.     1916E-868. 

7.     ABATEMENT     OF     LIQUOR     NUI- 
SANCE. 

110.  Scope  of  Regulation — Nonintoxicat- 
ing  Liquor.  A  manufacturing  plant  where 
only  nonintoxieating  malt  liquor  is  made 
and  sold  is  not  a  nuisance  which  may  be 
abated  under  the  "blind  tiger"  statute  (Ga. 
Civ.  Code  1910,  §  5335),  which  declares  that 
"any  place  commonly  known  as  a  blind 
tiger,  where  spirituous,  malt,  or  intoxi- 
cating liquors  are  sold  in  violation  of  law, 
shall  be  deemed  a  nuisance,  and  the  same 
may  be  abated  or  en.ioined  as  such,"  etc. 
Howard  v.  Acme  Brewing  Co.  (Ga.) 
1917A-91.  (Annotated.) 

111.  Exclusiveness  of  Abatement  Pro- 
ceeding. That  Tenn.  Acts  1913  (2d  'Ex. 
Sess.),  c.  2,  declaring  a  saloon  a  nuisance, 
provides  a  method  for  its  abatement, 
merely  furnishes  a  cumulative  remedy,  and 
does  not  abrogate  any  other  remedy  or 
affect  a  sheriff's  duties.  State  v.  Reich- 
man  (Tenn.)  1918B-889. 


INVENTIONS. 


See  Patents. 


INVITEE. 
See  Idcensee. 

Personal   injuries,   see   Negligence,    10-12, 
21,  23-28. 

INVOLUNTARY  MANSLAUGHTER. 
See  Automobiles,  63;  Homicide,  1,  5-7. 

IRRESISTIBLE  IMPULSE. 
See  Insanity,  23. 

IRRIGATION. 

1.  Irrigation  Companies. 

2.  Priorities  and  Rights  of  Appropriators. 

a.  Actions   to   Fix   Eights   of   Appro- 

priation. 

(1)  Proof  of  Eights. 

(2)  Decree. 

b.  Injunction  to  Protect  Rights. 

3.  Injury  to  Property  of  Others. 

1,     IRRIGATION  COMPANIES. 

1.  Contract  for  Water  Rights.  Plaintiff 
transferred  to  an  irrigation  company  cer- 
tain water  rights  under  a  contract  pro- 
viding that  the  purchaser  agreed  tc  meas- 
ure the  water  which  might  be  secured  by 


IRRIGATION. 


473 


certain  ditches,  determine  what  was  the 
full  one-third  thereof,  and  pay  plaintiff 
annually  $6  per  million  cubic  feet  for  all 
of  the  third  of  the  water  delivered  by 
these  ditches  in  excess  of  the  one  amount 
furnished  for  the  irrigation  of  plaintiff's 
land.  It  is  held  that,  under  such  contract, 
plaintiff  was  only  entitled  to  one-third  of 
the  water  derived  from  the  appropriations 
which  he  transferred,  and  hence  could  not 
object  to  the  ditch  company's  deduction 
from  the  volume  carried  by  one  of  the 
ditches  for  water  derived  from  another  ap- 
propriation. Divide  Canal,  etc.  Co.  v. 
Tenney  (Colo.)  1917D-346. 

2.    PEIOEITIES  AND  EIGHTS  OF  AP- 
PEOPEIATORS. 

a.    Actions  to  Fix  Eights  of  Appropriation. 

(1)     Proof  of  Eights. 

2.  Evidence  Immaterial.  In  an  action 
to  enjoin  injury  to  plaintiffs'  prior  water 
rights,  alleging  that  defendants  had  di- 
verted water  when  needed  and  demanded 
by  plaintiff,  evidence  as  to  the  acreage 
irrigated  in  the  district  from  year  to  year, 
the  annual  rainfall,  and  the  amount  of 
water  stored  by  certain  reservoirs  without 
decree,  is  immaterial.  Eogers  v.  Nevada 
Canal  Co.   (Colo.)  1917C-669. 

3.  Violation  of  Appropriator's  Right — 
Evidence  of  Excuse.  In  an  action  to  en- 
join injury  to  plaintiffs'  prior  water  rights, 
alleging  concert  between  the  water  com- 
missioners and  certain  defendants,  evi- 
dence for  a  defendant  that  at  one  time 
a  certain  headgate  of  its  ditches  was 
washed  out,  tending  to  show  that  the  head- 
gate  could  not  be  shut  down  then  in  ac- 
cordance with  the  direction  of  the  water 
oflScers,  is  admissible.  Eogers  v.  Nevada 
Canal  Co.   (Colo.)   1917C-669. 

4.  Certificate  of  Adjudication.  In  such 
action,  a  certificate  of  the  proper  court  of 
certain  facts  in  the  adjudication  of  plain- 
tiffs' water  rights  established  by  the  de- 
cree of  such  court  is  admissible  under  the 
express  provision  of  Colo.  Eev.  St.  1908, 
§§  3284,  3285,  as  prima  facie  evidence  of 
so  much  of  the  decree  as  was  recited 
therein.  Eogers  v.  Nevada  Canal  Co. 
(Colo.)  19170-669. 

5.  Declarations  of  Defendants.  In  such 
action,  testimony  of  the  division  engineer, 
the  state  engineer,  and  an  officer  of  the 
district  court,  who  served  restraining  or- 
ders, as  to  certain  statements  made  by  the 
water  commissioner  and  by  some  of  the 
defendants,  explaining  why  an  order  of 
distribution  had  not  been  carried  out,  and 
supporting  plaintiffs'  allegation  of  con- 
certed action  on  the  part  of  the  water 
users,  their  control  of  the  water  commis- 
sioners, and  their  intention  to  use  waters, 
without  regard  to  plaintiffs'  superior  rights, 
is  admissible.  Rogers  v.  Nevada  Canal 
Co.  (Colo.)  1917C-669. 


(2)    Decree. 

6.  Priority  of  Appropriation — ^Decree  as 
Ees  Judicata.  The  volume  of  the  priority 
awarded  a  ditch  in  adjudication  proceed- 
ings is  res  judicata,  and  the  facts  upon 
which  such  award  is  based  cannot  be  in- 
quired into  in  a  collateral  proceeding. 
Eogers  v.  Nevada  Canal  Co.  (Colo.) 
1917C-669. 

7.  Extraterritorial  Effect.  The  decrees 
entered  in  one  irrigation  division,  until 
modified  in  accordance  with  law,  must  be 
considered  as  an  entirety,  and  the  water 
of  natural  streams  thereof  distributed  in 
accordance  therewith,  although  the  diver- 
sion and  use  of  the  water  are  made  at 
points  beyond  the  territorial  limits  of  the 
particular  water  district  in  which  the  de- 
crees were  entered.  Eogers  v.  Nevada 
Canal  Co.  (Colo.)  1917C-669. 

8.  Finality  of  Adjudication.  After  four 
years  from  a  final  decree  in  any  water  dis- 
trict, appropriatora  in  different  districts 
taking  water  from  the  same  stream  are 
barred  from  an  independent  action  against 
another  appropriator  to  determine  their 
relative  rights,  although  the  respective 
appropriations  sought  to  be  readjudicated 
were  obtained  in  several  statutory  pro- 
ceedings in  different  districts,  and  such 
appropriators  have  not  joined  in  either 
proceeding,  Eogers  v.  Nevada  Canal  Co. 
(Colo.)  1917C-&69. 

b.     Injunction  to  Protect  Rights. 

9.  Protection  by  Injunction.  The  taking 
of  the  water  of  a  stream  by  users  whose 
rights  of  appropriation  were  junior  to 
those  of  the  plaintiffs,  and  who  had  no 
legal  right  to  use  it  until  the  plaintiffs' 
superior  rights  were  supplied,  constituted 
an  injury  to  plaintiffs'  rights;  and  where  no 
relief  was  sought  against  the  owners  of 
reservoirs,  who  were  designated  merely  to 
disclose  the  manner  in  which  the  water  offi- 
cers neglected  to  obey  former  decrees,  th« 
fact  that  such  officers,  who  were  also  de- 
fendants, had  not  distributed  water  ac- 
cording to  law,  does  not  relieve  the  de- 
fendants from  an  injunction  against  their 
appropriation.  Rogers  v.  Nevada  Canal 
Co.  (Colo.)  1917C-669. 

10.  Increase  of  Acreage  by  Plaintiff.  In 
an  action  to  enjoin  injury  to  the  water 
rights  of  plaintiffs  as  prior  appropriators, 
where  there  was  no  claim  that  the  quan- 
tity of  water  diverted  was  greater  than 
that  to  which  plaintiffs'  respective  decrees 
entitled  them,  evidence  that  somfe  of  the 
plaintiffs,  subsequent  to  their  decrees,  had 
enlarged  their  acreage,  is  inadmissible. 
Rogers  v.  Nevada  Canal  Co.  (Colo.) 
1917C-669. 

3.     INJTTEY  TO  PEOPEETY  OF  OTHEES. 

11.  Injury  from  Construction  of  Ditch. 
An  owner  of  land  lying  below  an  irrigation 


474 


DIGEST. 

1916C— 1918B. 


ditch  cannot  recover  for  damage  to  his 
land  caused  by  seepage,  without  showing 
that  the  ditch  was  negligently  constructed, 
since  Colo.  Rev.  St.  1908,  §§  993,  3233, 
which  require  the  owner  of  a  ditch  to  keep 
it  in  good  condition  and  carefully  main- 
tain its  jembankment  so  that  waters  there- 
from shall  not  damage  premises  of  others, 
do  not  make  the  owner  absolutely  liable. 
North  Sterling  Irr.  Dist.  v,  Dickman 
(Colo.)  1916D-973.  (Annotated.) 

12.  Colo,  Const,  art.  2,  §  15,  providing 
that  private  property  shall  not  be  taken  or 
damaged  for  public  or  private  use  with- 
out just  compensation,  is  limited  to  emi- 
nent domain  proceedings,  and  does  not 
make  the  owner  of  a  ditch  absolutely  lia- 
ble for  damages  resulting  from  its  con- 
struction to  land,  no  part  of  which  was 
taken.  North  Sterling  Irr.  Dist.  v.  Dick- 
man   (Colo.)   1916D-973.  (Annotated.) 

Note. 
Liability   of   owner   of   irrigation   ditch 
for  damages  arising  from  its  construction 
and  maintenance.    1916D-981. 

ISSX7E  OF  STOCK. 
See  Corporations,  56,  73. 

ISSUES. 
See  Pleadings,  88-102. 

ITINERANT  VENDESa 
See  Hawkers  and  Peddlers. 

JAILS. 
See  Prisoners. 

JANITOR. 

As  within  Workmen's  Compensation  Act, 
see  Master  and  Servant,  258,  259. 

JEOPARDY  FOR  THE  SAME  OFFENSE. 
Meaning,  see  Former  Jeopardy,  2. 

JEWS. 

Appeal  to  race   prejudice,  see  Argument 
and  Conduct  of  Counsel,  22. 

JITNEYS. 
See  Carriers  of  Passengers,  84-91. 
Prevention     of     competition    with    street 

cars,  see  Injunctions,  3. 
As  nuisances,  see  Nuisances,  13. 

JOINDER  OF  CAUSES. 
See  Actions  and  Proceedings,  9-12:  Plead- 
ing, 7,  8. 

JOINDER  OF  COUNTS. 

See  Pleading,  8. 


JOINDER  OF  OFFENSES. 
See  Indictments  and  Informations,  16. 

JOINDER  OF  PARTIEa 
See  Parties  to  Actions,  3-10. 

JOINT  ADVENTURES. 

Joint  tortfeasors,  judgment  against  one  as 

bar,  see  Torts,  11. 
One   jointly   indicted   with   defendant,   as 

witness,  see  Witnesses,  4. 

1.  Liability  for  Materials  —  Evidence 
Sufficient.  Evidence,  in  an  action  on  a 
subscription  agreement  of  stockholders  of 
a  corporation,  to  recover  on  claims  for 
materials  furnished,  or  services  per- 
formed at  the  request  of  their  agent  is 
held  to  sustain  a  finding  that,  under  the 
agreement,  the  agents  of  all  the  sub- 
scribers operated  the  company's  mill  in 
attempting  to  repay  the  subscribers,  and 
in  so  doing  incurred  liability  for  the  mate- 
rials, etc.  Hannah  v.  Knuth  (Wis.) 
1917C-681. 

2.  In  such  case,  it  is  not  necessary  to 
prove  each  of  the  assigned  claims  by  the 
testimony  of  the  person  who  did  the  work 
or  furnished  the  material,  although  such 
testimony  was  competent;  but  the  testi- 
mony of  the  agent  who  incurred  such 
obligations  was  suflScient.  Hannah,  v. 
Knuth  (Wis.)  1917C-681. 

3.  In  such  case,  the  minutes  of  a  meet- 
ing of  subscribers  are  in  the  nature  of  ad- 
missions, and  competent  as  afiBrmatively 
showing  that  a  certain  number  of  the  sub- 
scribers were  present  at  that  meeting, 
hearing  the  minutes  of  the  directors' 
meeting  and  choosing  a  committee  to  act 
as  an  advisory  board  to  the  board  of 
directors.  Hannah  v.  Knuth  (Wis.) 
1917C-681. 

4.  Formation  of  Joint  Adventure — Evi- 
dence. In  such  case,  the  minutes  of  the 
directors'  meeting,  accepting  such  sub- 
scription agreement,  are  competent  as 
part  of  the  res  gestae.  Hannah  v.  Knuth 
(Wis.)    1917C-681. 

5.  Eights  of  Parties — Withdrawing  from 
Enterprise.  The  stockholders  of  a  mining 
company,  who  subscribed  an  agreement  to 
raise  a  fund  to  buy  the  material,  etc., 
necessary  to  operate  its  mill,  and  to  pay 
its  pressing  bills  by  having  them  assigned 
to  their  representative,  the  balance  to  be 
used  to  operate  the  mine  and  mill,  pro- 
vided that  the  directors  pledge  them 
enough  of  the  production  to  repay  the 
subscription  and  guarantee  that  none  of 
the  money  received  from  operation  should 
be  used  except  to  run  the  mill,  until  they 
wers  repaid,  and  that  the  property  pur- 
chased should  remain  their  property,  who 
understood  they  were  to  be  represented 
by  some  one  in  purchasing  materials,  pay- 


JOINT  DEPOSITS— JOINT  TENANTS. 


475 


ing  bills,  and  operating  the  mine,  could 
not  thereafter  disable  the  other  signers 
from  proceeding  with  the  enterprise  by 
merely  neglecting  or  refusing  to  take  any 
part  in  meetings  for  the  selection  or 
authorization  of  such  agents,  but  would 
be  bound  by  the  action  of  their  associates 
in  creating  such  agency.  Hannah  v. 
Knuth  (Wis.)   1917C-681. 

6.  Obligation  in  Favor  of  Husband  and 
Wife — Survivorship.  Where  an  obliga- 
tion is  in  favor  of  a  husband  and  wife 
such  joint  security  or  chose  in  action  sur- 
vives to  the  wife  as  against  the  personal 
representative  of  the  husband,  though  the 
consideration  therefor  passed  from  the 
husband.  Smith  t.  Haire  (Tenn.)  1916D- 
529.  (Annotated.) 

7.  Legal  Meaning  of  "Any."  Conn. 
Gen.  St.  1887,  §  1954,  providing  that 
"every  such  corporation"  may  increase  or 
reduce  its  capital  and  the  number  and 
par  value  of  its  shares,  provided  that 
within  thirty  days  after  reduction  a  cer- 
tificate signed  by  a  majority  of  the 
directors  shall  be  published,  and  provided 
that,  in  case  of  the  reduction  of  the  capi- 
tal stock  of  "any  corporation"  by  any 
mode  which  shall  render  it  insolvent,  the 
stockholders,  assenting  thereto,  shall  be 
liable  for  the  debts  of  the  corporation,  in- 
cluded in  chapter  120,  entitled  "Joint- 
Stock  Corporations,"  and  originally  passed 
by  Pub.  Acts  1880,  c.  97,  dealing  with 
joint-stock  corporations,  section  11  of 
which  is  the  same  as  section  1954,  applies 
only  to  joint-stock  corporations,  and  the 
quoted  words  "any  corporation"  must  be 
limited  to  joint-stock  corporations.  Bar- 
ber T.  Morgan  (Conn.)  1916E-102. 

(Annotated.) 

8.  Joint  Stock  Companies  —  Definition. 
A  joint-stock  corporation  is  one  organ- 
ized under  a  general  statute  authoriz- 
ing the  creation  of  such  corporations 
and  providing  the  procedure  for  creating 
it,  and  is  distinguished  from  a  cor- 
poration created  by  special  resolution  or 
act  of  the  legislature,  which  resolution 
or  act  is  the  charter  of  the  corporation, 
when  accepted,  and  the  corporation  organ- 
ized thereunder,  and  the  corporation  is  a 
chartered  corporation,  as  distinguished 
from  a  joint-stock  corporation.  Barber  v. 
Morgan   (Conn.)    1916E-102. 

9.  Trustees  of  Joint-stock  Company — 
Power  to  Sell  Shares.  Where  the  owners 
of  land,  in  order  to  promote  the  sale 
thereof  as  a  town  site,  convey  the  land 
to  trustees  under  a  trust  agreement  pro- 
viding that  the  same  shall  be  divided  into 
1,000  shares,  to  be  sold  for  the  benefit  of 
the  owners  and  their  associates,  the  hold- 
ers of  the  certificates  to  become  a  joint- 
stock  company  to  further  control  the 
enterprise,  the  shares  do  not  belong  to  the 
company;  and  hence  the  fact  that  the 
trustees  thereafter  conveyed  the  land  to 


the  stock  company's  directors  does  not 
deprive  them  of  authority  to  continue  to 
sell  unsold  shares  and  issue  trust  certifi- 
cates to  represent  the  same.  Yeaman  v. 
Galveston  City  Co.   (Tex.)  1917E-191. 

10.  Joint-Stock  Companies — Issuance  of 
Certificate.  Issuance  of  a  certificate  is  not 
essential  to  constitute  membership  in  a 
joint-stock  company.  Yeaman  v.  Oalyes- 
ton  City  Co.  (Tex.)  1917E-191. 

JOINT  DEPOSITS. 

See  Banks  and  Banking,  29-37,  43,  44,  56. 

JOINT   EEMAlNDERlVrEN. 
See  Remainders  and  Eeversions,  20. 

JOINT-STOCK  CORPORATION. 

Defined,  see  Joint  Adventures,  8. 

JOINT  TENANTS. 

See  Tenants  in  Common,  1-4. 
In  bank  deposit,  see  BcUiks  and  Banking, 
29-37. 

1.  The  common  law  doctrine  of  sur- 
vivorship as  between  joint  tenants  is  re- 
pudiated in  Connecticut.  Allen  v.  Almy 
(Conn.)    1917B-112.  (Annotated.) 

2.  Survivorship — Rights  of  Creditors  of 
Deceased.  On  the  death  of  the  first  of 
joint  tenants,  her  creditors  have  no  rights 
in  the  property  as  against  the  survivors, 
who  take  not  from  her,  but  directly  from 
the  grantor  in  the  deed  creating  the 
tenancy.  Wood  v.  Logue  (Iowa)  1917B- 
116. 

3.  Estates — Creation — Joint  Tenancy  or 
Tenancy  in  Common.  An  estate  of  joint 
tenancy  may  be  created  by  apt  words, 
Iowa  Code,  §  2923,  merely  providing  that 
a  conveyance  to  several  persons  creates  a 
tenancy  in  common,  "unless  a  contrary  in- 
tent is  expressed."  Wood  v.  Logue  (Iowa) 
1917B-116.  (Annotated.) 

4.  Survivorship  —  Nature  of  Devolution 
of  Title.  Upon  the  death  of  one  joint 
tenant,  the  other  takes  the  whole  estate, 
not  by  descent  as  the  heir  at  law  of  the 
other,  nor  under  the  laws  regulating  in- 
testate succession,  but  as  the  sole  surviv- 
inj?  tenant.  Attorney  General  v.  Clark 
(Mass.)  1917B-119. 

5.  Creation  of  Joint  Tenancy.  Where 
two  sisters  receive  property  by  convey- 
ance as  joint  tenants,  and  also  make  de- 
posits in  a  savings  bank  for  their  joint 
use  and  benefit,  and  purchase  certain 
securities  which  are  issued  to  them  aa 
joint  tenants,  their  estate  includes  the 
right  of  survivorship,  and  the  estate  in 
all  the  properties  is  a  joint  tenancy.  At- 
torney General  v.  Clark  (Mass.)  191 7B- 
119.  (Annotated.) 


476 


DIGEST. 

1916G— 1918B. 


6.  Tenninatlon.  A  joint  tenant  may  al- 
ways terminate  the  joint  tenancy  by 
transfer  or  conveyance  of  his  interest. 
Attorney  General  t.  Clark  (Mass.)  1917B- 
119. 

7.  Joint  Tenancy  in  Personalty.  A 
joint  tenancy  is  not  confined  to  real  es- 
tate, but  may  also  exist  in  personal  prop- 
erty. Attorney  General  ▼.  Clark  (Mass.) 
1917B-119. 

8.  Fraud — Creation  of  Joint  Tenancy. 
Where  a  joint  tenancy  is  created  by  con- 
tract, it  is  prima  facie  for  valuable  con- 
sideration, and  in  the  absence  of  fraud 
or  showing  of  bad  faith  such  an  agree- 
ment is  valid.  Attorney  General  ▼.  Clark 
(Mass.)   1917B-119. 

9.  Evidence  held  to  show  that  the  crea- 
tion of  a  joint  tenancy  in  two  sisters  was 
in  good  faith  and  without  fraud.  Attor- 
ney General  v.  Clark   (Mass.)   1917B-119. 

10.  Eight  to  Create.  Section  2966  of 
the  Kan.  Gen.  St.  of  1909,  abolishing  joint 
tenancies  and  survivorship,  does  not  make 
it  unlawful  for  a  grantor  to  convey  an 
estate  to  two  grantees  or  the  survivor  of 
the  two;  and  the  survivor  may  lawfully 
take  the  entire  fee  under  such  a  convey- 
ance. Withers  t.  Barnes  (Kan.)  1917B- 
55.  (Annotated.) 

JOINT  TORTFEASORS. 

Joint  and  several  liability  of  a  number 
for  defamation,  see  Libel  and  Slander, 
74. 

JTmGES. 

1.  Appointment  and  Election,  476. 

2.  Compensation,  476. 

3.  Disqualification,  477. 

a.  In   General,   477. 

b.  Pecuniary  Interest,  478. 

c.  Kelationship  to  Parties,  478. 

Death  of  judge,  bill  of  exceptions,  see  Ap- 
peal and  Error,  61. 

Misconduct  as  judge  ground  for  disbar- 
ment, see  Attorneys,  55-57. 

Conduct  and  remarks  in  criminal  trial, 
see  Criminal  Law,  98-105, 

Removal  for  intemperance,  see  Public 
Officers,  49. 

Salary  taxable  as  income,  see  Taxation, 
199. 

Conduct  and  remarks  on  trial,  see  Trial, 
53-56. 

1.    APPOINTMENT     AND    ELECTION. 

1.  Municipal  Court  —  Manner  of  Elect- 
ing Judge — Validity  of  Statute  Establish- 
ing Branch  of  Court.  It  was  the  inten- 
tion of  Laws  Minn.  1913,  c.  102,  that  the 
preferential  system  of  voting  for  which 
provision  was  made  in  the  Duluth  home 
rule  charter  of  1912  should  apply  to  the 
election   of   the  municipal  judges   of  the 


city;  and  said  act,  though  not  passed  by 
a  two-thirds  vote,  legally  provided  an 
assistant  judge,  and  a  branch  or  division 
of  the  court,  and  fixed  the  terms  of  office 
and  times  of  election  of  the  judges  and 
otherwise  regulated  the  court  and  pro- 
ceedings therein.  Brown  v.  Smallwood 
(Minn.)  1917C-474. 

2.  Special  Judge  —  Selection  by  Agree- 
ment. An  agreement  made  pursuant  to 
section  11,  chapter  112,  serial  section  4558, 
W.  Va.  Code  1913,  selecting  a  special 
judge  to  try  a  cause,  purporting  to  be 
signed  by  counsel  for  all  the  parties,  is 
not  void  because  not  signed  by  a  guardian 
ad  litem  for  infant  defendants.  Mankin 
V.  Dickinson  (W.  Va.)  1917D-120. 

2.  COMPENSATION. 

3.  Power  to  Increase  or  Diminish.  Un- 
der Wis.  Const,  art.  4,  §  26,  declaring  that 
the  compensation  of  a  public  officer  shall 
not  be  increased  or  diminished  during  his 
term,  a  circuit  judge  is  a  "public  officer." 
State  V.  Nygaard  (Wis.)   1917A-1065. 

4.  Increase  of  Compensation  —  Allow- 
ance for  Expenses.  S.  Dak.  Laws  1911, 
c.  239,  provides  that  when  a  judge  of  the 
supreme  court,  not  legally  resident  at  the 
state  capital  shall  have  changed  his  actual 
residence  thereto,  there  shall  be  paid  to 
such  judge,  for  his  increased  expenses  of 
living,  the  fixed  sum  of  $50  a  month,  pay- 
able on  the  certified  vouchers  of  such 
judge.  Const,  art.  21,  §  2,  fixing  the  sala- 
ries of  supreme  court  judges,  provides  that 
they  shall  receive  no  fees  or  perquisites 
whatever  for  the  performance  of  any 
duties  connected  with  their  office,  and 
that  the  legislature  may  not  increase  their 
salaries,  except  as  provided  in  the  consti- 
tution itself.  Article  .5,  §  30,  provides 
that  the  judges  of  the  supreme  court  shall 
receive  such  salary  as  may  be  provided  by 
law  consistent  with  the  constitution,  and 
no  such  judge  shall  receive  any  compensa- 
tion, perquisite,  or  emolument  for  or  on 
account  of  his  office,  in  any  form  what- 
ever, except  such  salary.  The  state  au- 
ditor refused  to  pay  to  the  presiding  judge 
of  the  supreme  court  an  amount  due  him 
under  the  statute,  and  such  judge  sought 
mandamus  in  the  supreme  court  to  com- 
pel the  issuance  of  a  warrant  covering 
the  amount.  It  is  held  that  the  allow- 
ance of  expenses  incident  to  the  perform- 
ance of  his  duty  by  a  judicial  or  other 
officer  was  not  violative  of  constitutional 
prohibitions  against  the  allowance  of  per- 
quisites to  public  officers,  for  the  only  ob- 
ject of  an  allowance  of  expenses  is  to 
preserve  the  officer's  salary  to  him  free 
of  encroachments  thereon,  through  ex- 
penses imposed  by  his  official  position; 
such  payments  covering  expenses  not  be- 
ing "compensation,"  "perquisites,"  or 
"emolument?,"  within  the  constitutional 
inhibition;  a  "perquisite"  being  a  gain  or 


JUDGES. 


477 


profit  incidentallj  made  from  employ- 
ment in  addition  to  regular  salary  or 
wages,  something  gained  by  a  place  or 
office  beyond  the  legal  salary  or  fee,  while 
the  word  "emolument"  includes  "perqui- 
site," "salary,"  "compensation,"  "pay," 
"wages,"  and  "fees,"  which  do  not  include 
an  allowance  for  expenses,  incident  to  the 
discharge  of  the  duties  of  a  public  office 
— such  an  allowance  not  being  an  "in- 
crease of  salary,"  a  "perquisite,"  or  an 
"emolument  of  office."  McCoy  v.  Hand- 
lin  (S.  Dak.)  1917A-1046. 

5.  Construction  of  Statute.  Mo.  Rev. 
St.  1909,  §  10695,  prescribing  the  fees  of 
judges  of  probate  courts,  but  declaring 
that,  after  deducting  reasonable  and 
necessary  expenses  for  clerk  hire,  the 
amount  of  fees  collected,  exceeding  the 
compensation  for  a  judge  of  the  circuit 
court,  must  be  paid  into  the  county  treas- 
ury, must  be  strictly  construed  against  a 
probate  judge,  and  a  probate  judge,  who 
performs  clerical  work  himself,  is  not  en- 
titled to  compensation  therefor  in  excess 
of  that  prescribed  in  determining  the 
amount  he  must  pay  into  the  county  treas- 
ury. Greene  County  v.  Lydy  (Mo.) 
1917C-274. 

6.  Mo.  Rev.  St.  1909,  §  10695,  fixing  the 
fees  of  probate  courts  and  requiring  the 
payment  of  a  part  thereof  into  the  county 
treasury  for  the  benefit  of  the  school 
fund,  is  a  general  law,  applicable  to  every 
probate  judge,  where  the  statutory  condi- 
tions arise.  Greene  County  v.  Lydy 
(Mo.)   1917C-274. 

7.  Compensation  of  Probate  Judge.  A 
probate  judge  elected  before  the  enact- 
ment of  Laws  Mo.  1911,  p.  304,  fixing 
compensation  for  circuit  judges  acting  as 
members  of  the  jury  commission  created 
thereby,  is  not  entitled  to  have  the  com- 
pensation considered  in  determining  the 
amount  of  fees  he  may  retain  under  Rev. 
St.  §  10695,  based  on  the  increase  the  cir- 
cuit judges  will  receive,  and  thereby  in- 
crease his  salary  during  his  term,  in  viola- 
tion of  Const,  art.  14,  §  8.  Greene  County 
V.  Lydy  (Mo.)  1917C-274. 

8.  Judges  of  probate  courts  are  not 
"county  officers,"  within  Mo.  Const,  art.  9, 
§  12,  authorizing  the  legislature,  by  a  law 
uniform  in  its  operation,  to  provide  for 
and  regulate  the  fees  of  county  officers. 
Greene  County  v.  Lydy  (Mo.)  1917C-274. 

S.     DISQUALIFTCATIOIT. 
a.    tn  General. 

9.  Disqualification  of  Judge  —  Prior 
Suspension  of  Officer.  In  a  proceeding  to 
oust  public  officers  under  Tenn.  Pub.  Acts 
1915,  c.  11,  the  fact  that  the  judge  before 
whom  proceeding  was  begun  suspended 
defendants  from  office  does  not  preclude 


him  from  sitting  in  the  trial  on  the 
merits;  the  practice  being  as  where  a 
chancellor  in  an  injunction  suit  issues  an 
interlocutory  order.  State  v.  Howse 
(Tenn.)  1917C-1125. 

10.  Disqualification  of  Judge  to  Review 
His  Own  Acts.  In  the  absence  of  a  stat- 
ute to  the  contrary,  a  judge  is  not  dis- 
qualified to  review  his  own  judicial  acts. 
MeConnell  v.  Goodwin  (Ala.)    1917A-839. 

(Annotated.) 

11.  Probate  Judge  —  Condemnation 
Proceeding.  Ala.  Code  1907,  §  5423,  ex- 
cepting a  probate  judge  from  disqualifica- 
tion as  to  any  instrument  which  by  law  ia 
required  to  be  prepared  by  him,  has  no 
bearing  on  his  disqualification  in  a  county 
condemnation  proceeding,  where  it  does 
not  appear  that  there  are  any  such  instru- 
ments to  be  heard  or  determined  by  him. 
MeConnell  v.  Goodwin    (Ala.)    1917A-839.. 

12.  Necessity  of  Action  by  Interested 
Judge.  S.  Dak.  Laws  1911,  c.  239,  pro- 
vides that  whenever  a  judge  of  the  su- 
preme court,  not  legally  resident  at  the 
state  capital,  shall  have  changed  his 
actual  residence  to  the  capital,  there  shall 
be  paid  to  such  judge,  in  consideration  of 
his  increased  expenses  the  fixed  sum  of 
$50  a  month,  payable  on  the  certified 
vouchers  of  the  judge.  The  state  auditor 
refused  to  issue  warrants  to  the  members 
of  the  supreme  court  for  the  amounts  due 
under  the  statute,  and  plaintiff,  the  pre- 
siding judge  of  such  court,  sought  man- 
damus in  such  court  to  compel  issuance  to 
him.  It  is  held  that  the  court  was  not 
disqualified  because  of  financial  interest, 
since  where  a  disqualification  for  interest, 
if  permitted  to  prevail,  leaves  no  tribunal 
at  which  relief  may  be  sought,  thus  de- 
priving a  litigant  of  his  constitutional 
right  to  sue,  the  disqualified  judge  or 
judges  may  decide  the  cause;  in  the  in- 
stant case,  the  supreme  court  being  the 
only  tribunal  open  to  the  plaintiff,  for, 
although  the  circuit  court  had  jurisdic- 
tion, an  appeal  would  lie  to  the  supreme 
court,  and  before  an  appeal  of  the  circuit 
court  could  have  been  determined  by  the 
supreme  court,  the  current  appropriation 
to  meet  the  payment  sought  to  be  en- 
forced would  have  lapsed,  thus  rendering 
ineffective  the  writ,  while,  in  determining 
the  constitutionality  of  the  law,  the  cir- 
cuit court  judge  would  have  been  inter- 
ested because  his  decision  would  have  es- 
tablished a  precedent  upon  his  right  to 
traveling  expenses,  etc.,  under  Laws  1907, 
c.  49.  McCoy  v.  Handlin  (S.  Dak.) 
1917A-1046.  (Annotated.) 

Notes. 

Necessity  as  justifying  action  by  dis- 
qualified judge  or  officer  exercising  judi- 
cial power.     1917A-1061. 

Disqualification  of  judge  to  review  his 
own  acts.     1917A-840. 


478 


b.    Pecuniary  Interest. 
13.  Interest     in     Legal     Question     In- 


volved. Wis.  St.  1913,  §  2579,  provides 
that  a  judge  of  any  court  of  record  inter- 
ested in  any  proceeding  therein  shall 
have  no  power  to  hear  or  determine  it, 
except  with  the  consent  of  the  parties 
thereto,  and  Const,  art,  1,  §  9,  declares 
every  person  entitled  to  a  certain  remedy 
in  law  for  injury  in  his  person  or  prop- 
erty, and  that  he  ought  to  obtain  justice 
freely,  without  denial  or  delay,  con- 
formably to  the  laws.  Relator  brought 
certiorari  to  set  aside  an  income  tax 
assessed  on  his  salary  as  circuit  judge, 
and  appealed  from  a  judgment  of  the 
superior  court  that  it  was  taxable.  Held, 
that  the  "interest"  which  disqualifies  must 
be  a  pecuniary  one,  and  that,  though  the 
judges  of  the  supreme  court  were  inter- 
ested in  the  decision  of  the  question 
raised,  it  was  their  duty  to  hear  and  de- 
cide the  case,  that  there  be  no  denial  of 
justice.  State  v.  Nygaard  (Wis.)  1917A- 
1065.  (Annotated.) 

Note. 

Disqualification  of  judge  by  interest  in 
legal  question  involved  in  litigation. 
1917A-1069. 

c.     Relationship  to  Parties. 

14.  Participation  of  Judge's  Partner  as 
Counsel.  A  judge  of  a  criminal  court  of 
record  is  not  disqualified  from  trying  a 
criminal  case  within  the  jurisdiction  of 
his  court  by  the  fact  that  the  law  firm  of 
which  he  is  a  partner  are  the  legal  ad- 
visers of  the  board  of  county  commis- 
sioners who  have  charge  and  supervision 
of  the  public  roads  of  the  county,  and 
such  convict  is  sentenced  to  fine  and  im- 
prisonment in  the  county  jail  at  hard 
labor,  and  is  placed  by  said  county  com- 
missioners at  work  under  guards  upon  the 
public  roads  of  the  county.  Neither  is  he 
so  disqualified  by  the  fact  that  his  law 
partner  is  the  state's  attorney  for  the 
judicial  circuit  in  which  his  county  is 
located;  such  state's  attorney  having 
nothing  to  do  with  prosecutions  before 
such  criminal  court  of  record  that  has  a 
prosecuting  officer  of  its  own  who  attends 
to  all  prosecutions  on  behalf  of  the  state 
in  such  criminal  court  of  record.  Coleman 
V.  Fisher  (Pla.)   1917A-1229. 

(Annotated.) 

15.  PartldpatloB  in  Proceeding  as  Pub- 
lic Officer.  Under  Ala.  Code  1907,  §  3860, 
giving  the  probate  court  jurisdiction  in 
proceedings  by  the  county  to  condemn 
land  for  public  uses,  in  spite  of  the  fact 
that  the  probate  judge  is  by  law  an  ex 
officio  member  of  the  court  of  county  com- 
missioners, by  whose  authority  alone 
such  proceedings  can  be  initiated  under 
the  general  statutes,  and  in  view  of  Loc. 
Acts  1911,  p.  240,  vesting  jurisdiction  of 
public  roads  in  a  county  in  a  road  com- 
mission,  of    which  the  probate  judge   is 


DIGEST. 

1916C— 1918B. 

ex  officio  a  member  and  its  clerk,  a  pro- 
bate judge  is  not  disqualified,  in  a  pro- 
ceeding in  his  court  by  the  road  super- 
visor in  the  name  of  the  county  to  estab- 
lish a  public  road,  because  as  a  member 
he  advises  and  consents  to  the  proceeding, 
since  it  would  be  unreasonable  to  sup- 
pose the  existence  of  disqualifying  preju- 
dice therefrom,  and  since  the  result  does 
not  even  remotely  or  contingently  aifeet 
his  personal  or  pecuniary  interest.  Mc- 
Connell  v.  Goodwin  (Ala.)   1917A-839. 

16.  Eelationslilp  to  Persons  Remotely 
Interested.  In  a  proceeding  filed  in  the 
probate  court  by  a  road  supervisor  in  the 
name  of  a  county  for  the  establishment 
of  a  public  road,  the  fact  that  near  rela- 
tives of  the  probate  judge  are  promoting 
its  establishment  by  contributions  does 
not  render  him  incompetent  to  conduct  the 
proceeding,  since  they  are  not  parties  to 
the  record,  or  parties  in  interest  in  any 
legal  sense,  having  only  a  general  and 
remote  interest,  such  as  pertains  to  the 
general  public.  McConnell  v.  Goodwin 
(Ala.)   1917A-839. 

Note. 


Participation  as  or  relationship  to  coun- 
sel in  action  as  disqualifying  judge. 
1917A-1231. 

JUDGMENTS. 

1.  Order  Distinguished,  479. 

2.  Requisites  and  Validity  in  General,  479. 

3.  Rendition  and  Entry,  4S0. 

a.  Effect   of   Rendition    and    Entry, 

480. 

b.  Record  Entry,  480. 

4.  Construction,  480. 

5.  Conformity  to  Pleadings,  480. 

6.  Judgment  Non  Obstante  Veredicto,  480. 

7.  Judgment  on  Pleadings,  480. 

8.  Judgment  on  Evidence,  480. 

9.  Lien,  481. 

a.  After-acquired  Property,  481. 

b.  Effect  of  Assignment,  481. 

c.  Action  to  Enforce,  481. 

d.  Abatement  and  Revival,  481. 

10.  Vacating  and  Setting  Aside,  481. 

11.  Consent  Judgments,  -182. 

12.  Default  Judgments,  482. 

a.  Time  of  Entry.  482. 

b.  Necessity  for  Hearing,  483, 

c.  Opening  Default,  483. 

(1)  In   General,  483. 

(2)  Grounds,  483. 

13.  Amendment  and  Correction,  483. 

14.  Satisfaction,  483. 

15.  Res   Judicata,  481. 

a.  Issues  not  Litigated,  484. 

b.  Dissolution     of     Provisional     In- 

junction, 484. 

c.  Judgment    or    Decree    on    Issue 

Voluntarily  Submitted,  484. 

d.  Decision  Without  Judgment,  484. 

e.  Persons   Concluded,  184. 

f.  Criminal    Judgment    as    Bar    to 

Civil  Action,  485. 

g.  Matters  Concluded,  485. 


JUDGMENTS. 


479 


16.  Direct  Attack,  486. 

17.  Collateral  Attack,   When   Permissible, 

486. 

See  Divorce,  52-57,  62-64;  Ejectment,  5, 
6;  Quieting  Title,  12,  13;  Eeplevin, 
16. 

Modification  of  -decree,  see  Alimony,  5-8. 

Appealable  orders  and  judgments,  see  Ap- 
peal and  Error,  26-39. 

Presumptions  on  appeal,  see  Appeal  and 
Error,  201,  202. 

Judgment  based  on  wrong  theory  upheld, 
see  Appeal  and  Error,  453. 

Modification  on  appeal,  see  Appeal  and 
Error,  472. 

Modification  of  judgment  of  appellate 
court,  see  Appeal  and  Error,  473,  474. 

Motion  to  set  aside  order,  general  appear- 
ance, see  Appearances,  6. 

Consent,  authority  of  attorney,  see  Attor- 
neys, 11. 

Attorney's  lien,  see  Attorneys,  37,  42,  43. 

Tort  claim  as  set-off  against  judgment,  see 
Bankruptcy,  7,  8,  11. 

Eeview  of  confirmation,  see  Bankruptcy, 
23. 

"Wilful  and  malicious  tort,  effect  of  bank- 
ruptcy, see  Bankruptcy,  25. 

In  action  on  joint  note,  see  Bills  and 
Notes,  96. 

In  action  on  building  contract,  see  Con- 
tracts, 97. 

Decrees,  see  Ectuity,  31-34. 

On  award  in  condemnation,  see  Eminent 
Domain,  101. 

Order  to  sell  land,  defective  description, 
see  Executors  and  Administrators,  41. 

Tort  judgment  as  "debt,"  see  Imprison- 
ment for  Debt  and  in  Civil  Cases,  2. 

Decree  in  action  to  fix  appropriation 
rights,  see  Irrigation,  6-8. 

Vacation  of  invalid  justice's  judgment, 
see  Justices  of  the  Peace,  2. 

Action  on  judgment,  when  cause  accrues, 
see  Limitation  of  Actions,  32. 

In  foreclosure  of  mechanics'  liens,  see 
Mechanics'  Liens,  58,  60. 

Trial  by  military  as  bar  to  civil  liability 
of  'militiaman,  see  Militia,  17,  18. 

Decree  on  foreclosure  as  bar  to  right  to 
pro  tanto  release  of  mortgage,  see 
Mortgages  and  Deeds  of  Trust,  21. 

Second  foreclosure  against  parties  not 
joined  in  first,  see  Mortgages  and 
Deeds  of  Trust,  25. 

On  foreclosure,  see  Mortgages  and  Deeds 
of  Trust,  28. 

Deficiency  on  mortgage  foreclosure,  see 
Mortgages  and  Deeds  of  Trust,  2,  28. 

Judgment  on  pleadings,  see  Pleading,  104. 

Judgment  on  pleadings,  see  Quo  Warranto, 
3. 

Order  of  reference,  see  Beferees,   1. 

Decree  for  cancellation,  see  Rescission, 
Cancellation  and  Reformation,  34.  35. 

Motion  to  set  aside,  other  action  pending, 
,  see  Seduction,  1. 

Rights  of  owner  of  land  subject  to  lien, 
on  paying  judgment,  see  Subrogation, 
8. 


Entry  on  holiday,  see  Sundays  and  Holi- 
days, 8. 

Judgment  against  one  joint  tortfeasor  as 
bar  to  action  against  another,  see 
Torts,  11. 

Judgment  on  verdict,  see  Verdicts,  10. 

1.     ORDER  DISTINGUISHED. 

1.  In  What  Proceedings  Entered — Spe- 
cial Proceeding.  A  special  proceeding  ter- 
minates in  an  order,  instead  of  a  judg- 
ment. Matter  of  City  of  New  York 
(Court  House)    (N.  Y.)    1917D-157. 

2.  "Order  of  Court"— What  Constitutes. 
Where  an  instrument  consisting,  first,  of 
a  petition  of  a  guardian  to  the  judge  for 
an  order  to  lease  the  ward's  property,  and 
second,  the  lease  upon  which  is  indorsed 
"Approved  3/3/07.  Thomas  C.  Humphry, 
Judge" — the  same  does  not  constitute  an 
"order  of  court,"  as  required  by  the  stat- 
ute. Fisher  v.  McKeemie  (Okla.)  1917C- 
1039.  (Annotated.) 

Note. 
What     constitutes     "order     of     Court." 
1917C-1041. 


2.     REQUISITES    AND    VALIDITY    IN 
GENERAL. 

3.  Signature — ^Effect  of  Omlssloru  Where 
the  record  entry  contains  all  the  essential 
elements  of  a  judgment,  it  is  not  neces- 
sary to  the  validity  of  the  judgment  that 
it  should  be  signed  by  the  judge;  the  re- 
quirement as  to  signing  the  judgment 
being  merely  directory.  Brown  v.  Hard- 
ing (N.  Car.)  1917C-548. 

4.  Decree  on  Insufficient  Service.  Where 
jurisdiction  of  a  defendant  has  not  been 
acquired,  a  decree  rendered  against  him 
in  the  cause  is  not  binding  upon  him. 
Myakka  Co.  v.  Edwards  (Fla.)  1917B-201. 

5.  Want  of  Jurisdiction — Effect.  A  de- 
cree entered  by  a  court  which  has  no  ju- 
risdiction of  the  subject-matter  is  void  ab 
initio  and  may  be  disregarded  by  the  par- 
ties.    People  V.  Clark   (111.)    1916D-785. 

6.  Personal  Judgment  Against  Nonresi- 
dent. Despite  the  ordinary  rule  that  no 
judgment  in  personam  can  be  recovered 
against  a  nonresident,  except  upon  appear- 
ance, unless  personally  served  within  the 
jurisdiction,  a  valid  judgment  may  be  ob- 
tained where  the  property  of  a  nonresident 
is  attached,  in  which  case  the  court  may, 
for  the  purpose  of  adjudicating  the  rights 
to  the  property,  consider  claims  against  the 
nonresident.  Johnson  v.  Whilden  (N.  Car.) 
1916C-7S3. 

7.  Sufficiency  of  Record — Affirmative 
Showing  of  Jurisdiction.  Jurisdiction 
must  be  affirmatively  shown  by  the  record, 
where  the  parties  defendant  are  shown  to 
be  nonresidents  and  constructive  service 
is  doTDended  on  for  jurisdiction.  Myakka 
Co.  V.  Edwards   (Pla.)   1917B-201. 


480 


DIGEST. 

1916C— 1918B. 


8.  Right  to  Bender  Personal  Judgment — 
Constructive  Service.  A  personal  decree 
against  nonresident  defendants,  not  served 
otherwise  than  by  publication,  and  not 
appearing  to  the  proceeding,  is  erroneous. 
Grant  v.  Swank  (W.  Va.)   19170-286. 

9.  Form — Against  Several  Defendants. 
In  such  case,  where  the  court  finds  for 
plaintifif,  it  properly  orders  judgment 
against  the  joint  property  of  all  the  de- 
fendants and  the  separate  property  of 
eacU,  except  as  to  one  not  served  with  pro- 
cess, and  who  did  not  appear  in  the  action. 
Hannah  t.  Knuth  (Wis.)  1917C-681. 

10.  Against  Defendant  not  Served — 
Who  may  Object.  The  judgment  in  a 
negligence  case  is  not  invalidated,  as 
against  the  only  defendant  who  was  sum- 
moned or  appeared  and  defended,  because 
also  in  form  against  others.  Rosenberg 
V.  Dahl  (Ky.)  1916E-1110. 

11.  Approval  of  Lease — What  Consti- 
tutes. Where  a  lease  has  indorsed 
thereon:  "Antlers,  I.  T.  Mar.  3,  1907.  I 
have  carefully  examined  the  within  lease 
and  respectfully  recommend  the  approval 
of  the  same.  F.  D.  Capping,  Probate  Mas- 
ter" and  "Approved  3/3/07.  Thomas  C. 
Humphry,  Judge" — the  same  is  not  suffi- 
cient to  show  an  appointment  of  a  master, 
his  report  thereon,  and  confirmance 
thereof  by  the  court,  and  the  same  does 
not  amount  to  an  order  of  the  court  ap- 
proving or  authorizing  the  lease.  Fisher 
V.  McKeemie  (Okla.)  1917C-1039. 

3.     RENDITION    AND    ENTRY. 
a.     Effect  of  Rendition  and  Entry. 

12.  For  the  purpose  of  its  enforcement, 
a  judgment  is  evidence  of  its  own  exist- 
ence immediately  on  rendition  and  entry 
as  provided  by  law.  Sweetser  v.  Fox 
(Utah)  1916C-620.  (Annotated.) 

13.  When  Enforceable.  A  judgment 
may  be  enforced  either  by  execution  or  ac- 
tion, immediately  after  rendition,  unless 
execution  be  stayed.  Sweetser  v.  Fox 
(Utah)  19160-620. 

b.     Record  Entry. 

14.  Iowa  Oode,  §  3784,  declares  that  all 
judgments  must  be  entered  on  the  record 
of  the  court,  and  section  288,  par.  1,  pro- 
vides for  the  entry  of  the  proceedings  of 
the  court  in  a  book  known  as  a  record 
book.  Paragraph  2  provides  for  a  judg- 
ment docket  containing  abstracts  of  the 
judgment;  while  paragraph  6  provides  for 
an  appearance  docket,  and  authorizes  the 
keeping  of  a  combination  docket,  which 
shall  include  the  entries  to  be  made  in  the 
judgment  docket  and  fee  docket.  Held, 
that  this  did  not  include  the  record  book 
required  by  paragraph  1,  and  hence  copies 
of  the  entries  in  the  combination  docket 
will  not  establish  the  rendition  of  a  judg- 


ment, but  the  judgment,  to  be  valid,  must 
be  entered  in  the  record  book,  which  is 
the  record  of  the  court.  Rudolph  Hard- 
ware Co.  V.  Price  (Iowa)  1916D-850. 

4.     OONSTRUOTION. 

15.  When  Full  Faith  alid  Credit  At- 
taches. The  full  faith  and  credit  clause 
of  the  federal  constitution  applies  as  soon 
as  a  judgment  is  enforceable  and  not 
merely  after  the  time  to  appeal  has 
elapsed.  Sweetser  v.  Fox  (Utah)  19160- 
620. 

16.  Ownership — Presumption.  The  pre- 
sumption is  that  the  plaintiff  in  a  judg- 
ment is  the  owner  of  it,  and  the  burden 
of  proof  is  on  the  one  who  alleges  the  con- 
trary. Brown  v.  Harding  (N.  Oar.) 
19170-548. 

5.     CONFORMITY  TO  PLEADINGS. 

17.  Sufficiency.  A  judgment  based  on  a 
plea  of  guilty  "as  charged,"  the  informa- 
tion charging  only  voting  twice  at  an  elec- 
tion, though  merely  directing  confinement 
for  "illegal  voting,"  is  sufficient.  In  re 
Siegel  (Mo.)  19170-684. 

6.     JUDGMENT  NON  OBSTANTE  VER- 
EDICTO. 

18.  Motion  After  Entry  of  Judgment. 
A  motion  for  judgment  notwithstanding 
verdict,  invoking  no  discretion  and  being 
interposed  after  entry  of  judgment,  must 
be  denied.  Hillis  v.  Kessinger  (Wash.) 
1917D-757. 

19.  When  Authorized.  The  laws  of 
this  state  authorize  a  judgment  notwith- 
standing the  verdict  only  in  cases  where 
it  is  clear  upon  the  whole  record  that  the 
moving  party  is,  as  a  matter  of  law,  en- 
titled to  judgment  on  the  merits.  First 
State  Bank  v.  Kelly  (N.  Dak.)  1917D- 
1044. 

20.  Such  judgment  is  not  warranted  on 
the  ground  merely  that  the  evidence  was 
variant  from  and  inadmissible  under  the 
allegations  of  the  defendant's  answer,  but 
it  must  further  appear  that  no  amend- 
ment of  the  answer  can  properly  be  made 
making  such  testimony  competent.  First 
State  Bank  v.  Kelly  (N.  Dak.)  1917D- 
1044. 

7.  JUDGMENT  ON  PLEADINGS. 

21.  Motion  for  Judgment — Description 
of  Instrument  Sued  On.  In  a  notice  of 
motion  for  judgment  the  description 
of  the  instrument  sued  on  as  a  "prom-  ■ 
issory  note"  is  good  as  far  as  it  goes,  and 
its  incompleteness  in  no  way  prejudices 
the  defendant.  Collev  v.  Summers  Par- 
rott  Hardware  Co.  (Va.)  1917D-375. 

8.  JUDGMENT  ON  EVIDENCE. 

22.  Taking  Case  from  Jury,  Judgment 
on  the  evidence  should  not  be  rendered  by 


JUDGMENTS. 


481 


•  trial  court  wlien  a  jury  is  a  matter  of 
right  and  there  is  evidence  sufficient  to 
submit  to  the  jury.  O'Neal  v.  Bainbridge 
(Kan.)  1917B-293. 

9.     LIEN, 
a.     After-acquired   Property. 

23.  Judgments  became  liens  on  the 
after-acquired  realty  of  the  judgment 
debtor  received  by  inheritance  from  his 
father  at  the  time  of  its  acquisition  by  the 
debtor.  Hulbert  v.  Hulbert  (N.  Y.) 
1917D-180. 

b.     Effect  of  Assignment. 

24.  Effect  of  Assignment  to  Judgment 
Debtor.  If  a  judgment  is  assigned  to  the 
judgment  debtor's  wife  and  by  her  will 
given  to  the  judgment  debtor,  it  is  ex- 
tinguished, as  the  two  antagonistic  rights 
of  creditor  and  debtor  merge  in  one  and 
the  same  person.  Brown  v.  Harding 
(N.  Car.)  1917C-548.  (Annotated.) 

Note. 
Effect  on  judgment  lien  of  assignment 
of  judgment  or  execution  issued   thereon 
to    or    for    benefit    of    judgment    debtor. 
1917C-557. 

c.    Action  to  Enforce. 

25.  Prerequisites  to  Sale  Under  Judg- 
ment— Establishment  of  Priorities.  Plain- 
tiff recovered  two  judgments  against  P, 
who  subsequently  conveyed  part  of  a  tract 
of  land  owned  by  him  to  B  and  later  con- 
veyed th^  rest  to  his  son.  The  land  was 
subject  to  a  superior  judgment,  and  the 
then  owner  of  the  superior  judgment  quit- 
claimed to  B  the  land  conveyed  to  her  by 
P.  In  a  suit  by  plaintiff  to  enforce  the 
lien  of  his  judgments  against  the  land 
conveyed  to  B,  there  were  conflicting  con- 
tentions that  the  superior  judgment  had 
never  been  paid  but  was  still  a  charge  on 
the  lands  of  P,  that  it  had  been  assigned 
to  P's  wife  and  by  her  will  given  to  P, 
and  that  it  had  been  assigned  to  P's  son. 
It  is  held  that  these  questions  as  to  the 
status  of  the  superior  judgment  must  be 
determined  before  a  sale  of  any  of  the 
land  in  order  that  the  land  could  be  sold 
and  the  proceeds  distributed,  and  also  in 
order  to  remove  the  cloud  from  the  title 
and  obtain  a  sound  price  for  the  land,  and, 
as  plaintiff  had  an  interest  in  the  settle- 
ment of  such  matters,  he  would  not  be  de- 
layed or  embarrassed  by  requiring  that 
the  land  last  sold  by  P  should  be  first  sold 
for  the  satisfaction  of  plaintiff's  judg- 
ments before  resorting  to  the  land  sold  to 
B.  Brown  v.  Harding  (N.  Car.)  1917C- 
548. 

26.  Eight  of  Nominal  Party  to  Enforce 
Judgment.  In  an  action  to  enforce  the 
lien  of  judgments  against  land  formerly 
owned  by  the  judgment  debtor,  it  is  no 

31 


concern  of  the  defendants  that  the  person 
in  whose  name  the  judgments  were  taken 
is  not  the  beneficial  owner  of  the  judg- 
ments, as  defendants  will  be  protected  by 
payment  to  the  plaintiff  of  record.  Brown 
V.  Harding   (N.  Car.)    1917C-548. 

d.     Abatement  and  Eevival. 

27.  Duration.  The  lien  of  a  judgment, 
the  debt  secured  by  which  is  due  and  pay- 
able at  its  date,  though  against  the  per- 
sonal representative  of  a  decedent,  not  be- 
ing extended  by  scire  facias  or  otherwise 
within  the  10  years  limited,  by  Eev.  Code 
1852,  amended  to  1893,  p.  814  (19  Del, 
Laws,  c.  778),  for  its  existence,  expires  at 
the  end  of  such  time,  and  not  being  there- 
after revived,  no  longer  exists.  Cohen  v. 
Tuff  (Del.)  19170-596. 

28.  A  bona  fide  purchaser  from  a  devisee 
of  a  judgment  defendant  being,  by  provi- 
sion of  19  Del.  Laws,  e.  778,  §  4,  not  "in 
any  manner  affected"  by  the  lien  of  the 
judgment,  after  being  lost,  being  revived 
by  scire  facias,  so  that  the  land  cannot  be 
reached  by  proceedings  directly  on  the 
judgment,  it  for  the  same  reason  cannot 
be  reached  by  an  order  of  the  orphans' 
court  to  sell  lands  to  pay  the  judgment  of 
the  deceased  judgment  defendant.  Cohen 
V.  Tuff  (Del.)  1917C-596. 

29.  Bights  of  Interim  Purchaser.  19 
Del.  Laws,  c.  778,  §  4,  providing  that  when 
the  lien  of  a  judgment  is  lost  or  inter- 
rupted, and  it  is  thereafter  revived  by 
scire  facias  it  shall  not  "affect  any  prior 
bona  fide  purchaser  from  such  (in  the 
original  judgment)  defendant  or  terre- 
tenant,"  means  a  purchaser  from  such  de- 
fendant "or  from"  a  terre-tenant,  and  so 
protects  a  purchaser  from  the  devisee  of 
the  original  defendant.  Cohen  v.  Tuff 
(Del.)  1917C-596. 

10.     VACATING  AND  SETTING  ASIDE. 

30.  Vacation    for    Fraud — Evidence.    A 

judgment  will  not  be  stricken  on  the 
ground  that  it  was  obtained  through  fraud, 
in  the  absence  of  proof  of  plaintiff's  fraud 
and  deceit.  Malone  v.  Topfer  (Md.) 
1916E-1272. 

31.  A  judgment  will  not  be  stricken 
without  reasonable  proof  of  circumstances 
which  make  it  inequitable.  Malone  v. 
Topfer  (Md.)  1916E-1272. 

32.  Existence  of  Defense — Failure  to 
Present.  A  judgment  will  not  be  vacated 
on  the  theory  that  defendant  had  a  meri- 
torious defense,  where  he  did  not  claim 
to  have  been  surprised  and  at  trial  made 
no  effort  to  present  it.  Malone  v.  Topfer 
(Md.)   1916E-1272. 

33.  Vacation  After  Term.  A  decree  can- 
not be  vacated  on  motion  after  the  expira- 
tion of  the  term,  except  for  clerical  error 
or  matter  of  form.  People  v.  Clark  (HI.) 
1916D-785. 


34.  Motion  to  Vacate — Madd  "but  not 
Granted  During  Term.  A  motion  to  set 
aside  a  final  judgment,  entertained,  ar- 
gued and  docketed  at  the  same  term  of 
the  court,  and  submitted  to  and  taken 
nnder  consideration  by  the  court,  but  with- 
out final  action  thereon  at  that  term,  will 
Btand  continued  until  the  next  term,  with- 
out other  order  of  continuance  by  virtue 
of  section  12,  chapter-  114,  W.  Va.  Code 
1906.     Cole  ▼.  State  (W.  Va.)  1916D-1256. 

(Annotated.) 

35.  If  a  motion  to  set  aside  a  final  judg- 
ment be  made,  entertained,  docketed  and 
taken  under  consideration  by  the  court  at 
the  same  term  at  which  it  is  pronounced, 
and  be  so  continued  by  operation  of  law, 
jurisdiction  is  thereby  reserved  to  set  the 
same  aside  at  a  subsequent  term.  Cole  v. 
State  (W.  Va.)  1916D-1256. 

(Annotated.) 

36.  Judgment  Affecting  Infant.  In  the 
absence  of  fraud  or  collusion,  minors  prop- 
erly represented  in  an  action  are  bound  as 
fully  as  persons  of  full  age  by  a  judgment 
rendered  therein.  The  only  grounds  for 
vacating  such  a  judgment  are  the  grounds 
which  are  sufficient  to  vacate  a  judgment 
affecting  an  adult,  Burke  v.  Northern  Pa- 
cific E.  Co.  (Wash.)  1917B-919. 

(Annotated.) 

37.  Proof  of  Fraud.  Fraud  which  will 
justify  the  vacating  of  a  judgment  or  de- 
cree must  be  actual  and  positive,  not 
merely  constructive,  and  the  proof  of  fraud 
must  be  clear  and  satisfactory.  Burke  v. 
Northern  Pacific  B.  Co.  (Wash.)  1917B- 
919. 

38.  Constructive  Fraud.  Where  a  con- 
sent judgment  was  entered  in  favor  of  in- 
fants in  an  action  in  which  they  were  rep- 
resented by  a  guardian  ad  litem,  who  ap- 
peared and  was  examined  by  the  court  as 
to  the  benefit  of  the  compromise  to  the  in- 
fants, the  failure  of  the  guardian  to  call 
other  witnesses  to  testify  as  to  the  cir- 
cumstances of  their  father's  death,  which 
were  fully  known  to  the  guardian  ad  litem, 
is  not  constructive  fraud  which  authorizes 
the  setting  aside  of  the  judgment.  Burke 
V.  Northern  Pacific  R.  Co.  (Wash.)  1917B- 
919. 

39.  Ground  for  Vacation  of  Judgment — 
Action  in  Wrong  County.  It  is  not  ground 
for  setting  aside  judgments  on  motion  that 
the  actions  in  which  they  were  rendered 
were  brought  in  the  wrong  county,  as  an 
objection  to  the  venue  should  be  made  be- 
fore judgment,  and  is  waived  by  plead- 
ing to  the  merits.  Brown  v.  Harding 
(N.  Car.)  1917C-548. 

40.  Venue  of  Motion.  A  motion  to  set 
aside  judgments  for  irregularities  should 
be  made  in  the  superior  court  of  the  county 
where  they  were  rendered,  and  not  in  an 
action  in  another  county  to  enforce  the 
lien  of  the  judgment  against  land  in  such 


DIGEST. 

1916C— 1918B. 

county.     Brown    t.    Harding     (N.     Car.^ 
1917C-548. 


'  41.  Vacation  for  Irregularity — Time  for 
Application.  A  motion  to  set  aside  for  ir- 
regularities judgments  rendered  in  1870 
comes  too  late  when  made  in  an  action 
commenced  in  1913  to  enforce  the  lien  of 
such  judgments  against  the  former  home- 
stead of  the  judgment  debtor.  Brown  v, 
Harding  (N.  Car.)  1917C-548. 

42.  Grounds  for  Opening — Mistake  of 
Attorney.  On  an  appeal  from  an  order  re- 
lieving defendant  from  a  default  judg- 
ment suffered  by  reason  of  an  excusable 
mistake  of  fact  on  the  part  of  his  attor- 
ney and  permitting  a  defense  to  be  inter- 
posed, held,  under  the  record  of  facts,  that 
the  trial  court  in  granting  such  relief  did 
not  abuse  the  discretion  vested  in  it  in 
such  cases.  Murtha  v.  Big  Bend  Land  Co. 
(N.  Dak.)  1917A-706.  (Annotated.) 

Notes. 

Advice  of  counsel  as  ground  for  opening 
default  judgment.     1917A-709. 

Vacation  of  judgment  affecting  infant 
duly  represented.     1917B-922. 

Power  of  court  to  amend  or  set  aside 
judgment  at  subsequent  term  where  pro- 
ceeding therefor  is  commenced  during  term 
at  which  judgment  is  rendered.  1916I>- 
1260. 

11.  CONSENT  JUDGMENTS. 

43.  Jurisdiction  of  Subject-matter. 
Where  there  is  want  of  jurisdiction  of  the 
subject-matter,  a  judgment  is  void,  and 
consent  of  the  parties  cannot  impart  val- 
idity to  it.  State  v.  Dunlap  (Idaho) 
1918A-546. 

44.  Decree  on  Invalid  Consent  of  Attor- 
ney. Where,  in  a  proceeding  to  which  in- 
fants were  parties,  the  court,  after  refer- 
ence to  a  master,  rendered  a  decree,  it  will 
be  upheld,  and  is  binding  on  the  infants, 
though  there  was  a  stipulation  that  such 
decree  might  be  entered  by  consent  at 
chambers,  for  the  decree  was  based  on  the 
action  of  the  court,  and  not  the  consent, 
which  was  not  binding  on  the  infants,  be- 
ing signed  by  their  attorney,  who  was  rep- 
resenting interests  antagonistic  to  them. 
Glover  v.  Bradley  (Fed.)  1917A-921. 

45.  Presumption.  In  the  absence  of  a 
showing  to  the  contrary,  it  will  be  pre- 
sumed that  a  judge  who  entered  a  consent 
judgment  on  the  compromise  of  an  in- 
fant's claim  made  the  inquiry  as  to  its 
benefit  to  the  infant  which  his  duty  re- 
quired. Burke  v.  Northern  Pacific  B.  Co. 
(Wash.)  1917B-919. 

12.  DEFAULT   JUDGMENTS. 

a.     Time  of  Entry. 

46.  Default  After  Attempt  to  Remove. 
It  is  held,  under  the  facts  of  this  case,  that 


JUDGMENTS. 


483 


the  default  was  not  prematurely  fentered. 
State  V.  American  Surety  Co.  (Idaho) 
1916E-209. 

47.  After  Remand  from  Federal  Court. 
Where  a  defendant  has  been  sued  in  a 
state  court,  and  summons  has  been  served 
upon  him,  and,  prior  to  the  expiration  of 
the  term  within  which  he  is  required  to  an- 
swer under  the  statute  and  without  appear- 
ing or  answering,  he  files  a  petition  for  a 
removal  to  the  federal  court,  and  an  order 
denying  the  removal  is  made  by  the  state 
court,  and  the  record  is  thereafter  trans- 
ferred by  the  defendant  to  the  federal 
court,  when,  on  motion  in  the  latter  court, 
the  cause  is  remanded  to  the  state  court 
for  want  of  jurisdiction  in  the  federal 
court,  and  the  clerk  of  the  district  court 
enters  the  default  of  the  defendant  for 
failure  to  appear  and  answer,  it  is  held, 
that  the  action  of  the  clerk  in  entering 
the  default  of  the  defendant  is  regular  and 
valid  and  within  the  authority  and  direc- 
tion of  sections  4140  and  4360  Idaho  Rev. 
Codes,  and  that  such  default  is  not  void 
for  want  of  jurisdiction.  State  v.  Amer- 
ican Surety  Co.  (Idaho)  1916E-2aa. 

b.    Necessity  for  Hearing. 

48.  Where  the  default  has  been  entered 
by  the  clerk  against  the  defendant,  as  was 
done  in  this  case,  the  court  has  jurisdiction 
to  hear  the  proofs  submitted  by  the  plain- 
tiff and  to  enter  judgment  thereon.  State 
v.  American  Surety  Co.  (Idaho)  1916E- 
209. 

c.     Opening  Default. 

(1)     In  General. 

49.  Under  the  above  facts,  where  the  de- 
fendant moves  to  have  the  default  vacated 
on  the  ground  of  inadvertence,  surprise,  or 
excusable  neglect,  it  is  held,  that  under  the 
excuse  presented  and  the  facts  of  this  case, 
as  shown  by  the  record,  the  trial  court  did 
not  err  in  refusing  to  set  aside  said  de- 
fault. State  V.  American  Surety  Co. 
(Idaho)  1916E-209. 

(2)     Grounds. 

60.  Section  4140,  Idaho  Rev.  Codes,  fixes 
the  time  within  which  a  defendant  shall 
appear  and  answer,  and  the  fact  that,  prior 
to  the  expiration  of  that  time,  the  defend- 
ant undertook  to  have  the  cause  removed 
to  the  federal  court,  and  it  was  thereafter 
remanded,  such  action  on  the  part  of  the 
defendant  to  change  the  forum  will  not 
serve  to  extend  the  time  for  answer  in  the 
state  court,  and  will  not  relieve  the  de- 
fendant from  a  default  which  it  thus  al- 
lows to  be  entered  against  it.  State  v. 
American  Surety  Co.  (Idaho)  19I6E-209. 

13.     AMENDMENT  AND  CORRECTION. 

51.  Amendment  Nunc  Pro  Tunc.  If  such 
final  judgment  be  in  fact  pronounced  and 


directed  at  one  term  of  the  court,  but  by 
inadvertence  or  misprision  of  the  clerk  it 
is  omitted,  the  court  at  a  subsequent  term 
on  sufficient  evidence  may  correct  or  sup- 
ply the  record  thereof  by  a  nunc  pro  tune 
order,  and  if  the  fact  of  such  judgment  be 
not  impeached  by  some  bill  of  exception  or 
other  part  of  the  record,  such  nunc  pro 
tunc  order  will  be  accepted  as  conclusive 
evidence  of  the  facts  recited  therein.  Cole 
V.  State  (W.  Va.)  1916D-1256. 

52.  Premature  Entry  by  Clerk.  Where 
the  court  took  the  case  under  advisement 
and  intimated  that  it  would  decide  for  de- 
fendant, and  the  clerk  then  without  proper 
authority  made  a  judgment  entry  for  de- 
fendant on  the  minutes,  the  court  is  not 
thereby  precluded  from  changing  its  mind 
and  ordering  a  judgment  entry  for  plain- 
tiff, and  the  judgment  so  entered  is  valid 
where  the  court  then  on  motion  and  hear- 
ing ordered  the  incorrect  entry  expunged. 
Shaughnessy  v.  Northland  Steamship  Co. 
(Wash.)  1918B-655. 

14.     SATISFACTION. 

53.  Marshaling  of  Assets — Inverse  Order 
of  Alienation — Effect  of  Prejudice  to 
Creditor,  Where  there  is  a  judgment  lien 
on  land,  part  of  which  is  sold  by  the 
debtor,  the  remaining  portion  will  be  first 
sold  in  satisfaction  of  the  judgment  before 
resorting  to  the  land  first  sold,  and  the  rule 
extends  to  a  purchaser  of  the  remaining 
land  from  the  judgment  debtor,  but  this 
equity  is  never  enforced  against  the  credi- 
tor when  he  will  in  any  substantial  way  be 
prejudiced  by  it.  Brown  v.  Harding 
(N.  Car.)   1917C-548. 

54.  Redemption— To  Whom  Title  Passes. 
But  if  a  redemption  is  made  by  a  judgment 
creditor  whose  right  to  make  it,  though 
good  on  the  face  of  the  record,  has,  in  fact, 
been  destroyed  by  the  tender  of  the  pay- 
ment of  the  judgment,  the  title  of  the  pur- 
chaser at  the  sale  nevertheless  passes  to 
him,  if  the  holder  thereof  accepts  the  re- 
demption money  with  full  knowledge  of 
the  tender.  Orr  r.  Sutton  (Minn.)  1916C- 
527.  (Annotated.) 

55.  A  tender  by  the  judgment  debtor  of 
the  full  amount  due  on  a  judgment,  under 
which  the  judgment  creditor  has  filed  an 
intention  to  redeem  land,  before  the  ar- 
rival of  the  time  when  the  judgment  could 
be  used  for  such  purpose,  and  under  cir- 
cumstances clearly  disclosing  that  both 
parties  appreciated  the  purpose  of  such 
tender,  destroys  the  right  of  the  judgment 
creditor  to  thereafter  use  the  judgment  as 
a  basis  for  redeeming  such  land.  Orr  v. 
Sutton  (Minn.)  1916C-527. 

(Annotated.) 

56.  To  destroy  a  judgment  creditor's 
right  to  use  the  judgment  as  a  means 
for  obtaicing  certain  land  through  re- 
demption,   it    is    not    indispensable    that 


484 


DIGEST. 

1916C— 1918B. 


the  judgment  creditor,  in  addition  to  ten- 
der of  payment,  bring  suit  to  compel  satis- 
faction of  the  judgment  and  deposit  the 
money  tendered  in  court.  Orr  v.  Sutton 
(Minn.)    1916C-527.  (Annotated.) 

57.  Tender  of  l»ayment  of  Judgment. 
No  one  in  the  line  of  redemptioners,  nor 
an  intermeddler,  may  by  tender  of  pay- 
ment of  a  judgment  impair  or  destroy  a 
judgment  creditor's  right  to  use  the  judg- 
ment to  eflfect  redemption.  Orr  v.  Sutton 
(Minn.)  1916C-527.  (Annotated.) 

Note. 
Effect  of  tender  of  amount  due  on  judg- 
ment.   1916C-536. 

15.    EES  JUDICATA. 
a.    Issues  not  Litigated. 

58.  Matters  Wliich  Might  Have  Been 
Litigated.  While  a  judgment  is  final  and 
conclusive  upon  the  parties  not  only  as  to 
the  issues  actually  determined,  but  every 
other  question  which  might  or  ought  to 
have  been  litigated,  a  judgment  awarding 
plaintiff  damages  for  a  libel  printed  in  de- 
fendant's evening  paper  was  not  a  bar  to  a 
subsequent  action  for  the  printing  of  the 
same  libel  in  defendant's  morning  paper; 
the  causes  of  action  being  wholly  separate, 
and  plaintiff  not  being  bound  to  unite 
them  in  one  suit.  Cook  v.  Conners  (N.  Y.) 
1917A-248. 

59.  Issues  not  Identical.  A  judgment 
that  a  sum  received  by  a  firm  of  attorneys 
for  services  rendered  in  procuring  a  set- 
tlement of  the  estate  of  a  testator  must 
be  refunded  because  of  the  invalidity  of 
the  settlement  is  not  res  judicata  as  to 
the  rights  of  the  partners  as  between  them- 
selves and  as  to  the  right  of  a  partner  re- 
funding the  entire  amount  to  contribution 
from  his  copartners.  Estate  of  Eyan 
(Wis.)  1916D-840. 

60.  Matters  not  in  Issue.  A  claim  suit 
between  a  chattel  mortgagee  and  a  third 
party  resulting  in  favor  of  the  third  party, 
and  instituted  after  the  levy  of  an  attach- 
ment by  the  chattel  mortgagee  on  the 
mortgaged  property  as  the  property  of  the 
mortgagor  is  not  res  judicata  in  a  detinue 
suit  by  the  mortgagee  against  the  mort- 
gagor as  to  the  same  property.  Ex  parte 
Logan  (Ala.)  1916C-405. 

61.  Issues  Concluded — Judgment  in  Bem. 
The  judgment  in  an  action  in  rem 
does  not  establish,  even  prima  facie,  a  fact 
not  involved  in  the  issues  or  determined 
by  the  judgment.  Werner  v.  Fraternal 
Bankers'  Eeserve  Soc.  (Iowa)  1918A-1005. 

b.     Dissolution  of  Provisional  Injunction. 

62.  Under  the  rule  that  a  superior  court 
may  not  revoke,  modify,  or  otherwise  dis- 
turb its  judgments  and  orders,  regularly 
made  in  pursuance  of  plain  statutory  pro- 
visions, where  the  statute  prescribed  the 


method  by  which  such  judgments  and  or- 
ders may  be  reviewed,  except  as  author- 
ized by  statute,  a  suspension  of  the  opera- 
ation  of  a  temporary  injunction  absolutely 
restraining  the  commission  of  certain  acts 
pendente  lite  constitutes  a  prohibited  re- 
versal of  an  order.  United  Eailroads  v. 
Superior  Court  (Cal.)  1916E-199. 

(Annotated.) 

c.    Judgment  or  Decree  on  Issue  Volun- 
tarily Submitted. 

63.  Where,  in  a  suit  for  partition,  the 
widow  of  one  of  the  heirs  was  complain- 
ant and  her  adopted  daughter  a  defendant, 
and  in  that  suit  the  widow  voluntarily  sub- 
mitted her  rights,  as  against  such 
daughter,  to  adjudication,  and  the  court 
having  jurisdiction  of  the  parties  and  sub- 
ject-matter erroneously  determined  that 
the  adopted  daughter  was  enfitled  to  in- 
herit a  part  of  the  land  from  her  father, 
such  decree,  not  having  been  appealed 
from,  and  the  time  to  appeal  having  ex- 
pired, is  conclusive  end  res  judicata  of 
that  issue.  Fisher  y.  Browning  (Miss.) 
1917C-466. 

d.     Decision  Without  .Judgment. 

64.  Finding  of  Facts— Effect  of  Future 
Developments.  An  opinion  of  the  re- 
corder's court,  in  a  prosecution  for  a  ferry 
company's  violation  of  the  smoke  ordi- 
nance, that  there  is  then  no  known  appli- 
ance which  can  be  used  upon  marine  boil- 
ers to  prevent  the  emission  of  dense  smoke, 
is  not  res  judicata  as  to  whether  subse- 
quently known  appliances  to  prevent  such 
smoke  are  practical.  People  v.  Detroit, 
etc.  Ferry  Co.  (Mich.)  1918B-170. 

65.  Finding  in  Action  to  Cancel  Conclu- 
sive in  Action  on  Instrument.  In  an  ac- 
tion on  checks,  findings,  in  a  suit  to  cancel 
the  checks  and  enjoin  the  holders  from 
transferring  same  or  suing  thereon,  that 
the  contract  pursuant  to  which  the  checks 
were  given  had  been  performed  are  con- 
clusive, though  the  supreme  court,  in  sus- 
taining the  action  of  the  circuit  court  in 
dismissing  the  suit  in  equity  upon  the  mer- 
its, inadvertently  added  that  no  reason 
appeared  why  any  party  to  such  suit  had 
not  an  adequate  remedy  at  law;  and,  it  is 
not  error  to  exclude  evidence  of  facts  in- 
consistent with  such  findings,  or  to  refuse 
to  relieve  defendant  from  the  effect  of  a 
stipulation  of  facts  filed  in  the  suit  in 
equity,  Lnmro  Townsite  Co.  v.  Bank  ot 
Dallas  (S.  Dak.)  1917C-346. 

e.     Persons  Concluded. 

66.  Wife  of  Judgment  Debtor.  A  wife 
is  not  bound  by  judgment  in  an  action 
against  her  husband  to  which  she  was 
not  a  party.  Dale  v.  Marvin  (Ore.)  1917C- 
557. 

67.  Failure  to  Appeal,  Where  plaintiff, 
who  held  land  as  trustee,  did  not  appeal 


JUDGMENTS. 


485 


from  the  judgment  in  a  suit  to  remove  a 
cloud  from  his  title,  he  is  concluded  by  the 
verdict  which  found  that  defendant  was 
the  owner  of  the  equitable  interest  of 
plaintiff's  cestui  que  trust.  Johnson  ▼. 
^"hilden  (N.  Car.)   1916C-783. 

68.  Effect  of  Judgment  on  Grantor  of 
Party.  Intervener  in  this  action,  cfaiming 
certain  rights  and  interests  in  the  land  in 
controversy,  conveyed  the  same  to  a  third 
person  to  enable  such  third  person  to  per- 
fect the  title;  such  third  person  thereupon 
brought  an  action  to  quiet  title  to  the  land, 
making  defendants  Stubler,  under  whom 
intervener  now  claims,  parties  defendant; 
judgment  was  rendered  to  the  effect  that 
defendants  were  the  owners  of  the  land 
free  and  clear  of  all  claims  on  the  part  of 
plaintiff  in  the  action,  who  was  prosecuting 
the  same  in  the  interests  of  intervener.  It 
is  held  that  the  judgment  forever  barred 
and  extinguished  all  rights  intervener  may 
have  had  in  or  to  the  land,  including  the 
right  to  terminate  the  Stubler  title  by  re- 
demption as  their  mortgagor.  Telford  v. 
McGillis  (Minn.)  1916E-157. 

(Annotated.) 

69.  Conclusiveness  of  Judgment  Settling 
Title — Persons  Concluded.  A  judgment  in 
an  action  to  determine  the  title  to  real 
property  is  conclusive  of  the  rights  of  all 
parties  to  the  action  and  those  in  privity 
with  them,  and  includes  all  rights  or  in- 
terests in  the  property  which  were  or 
could  have  been  litigated  therein.  Tel- 
ford  V.   McGillis    (Minn.)    1916E-157. 

70.  Conclusiveness  as  to  Persons  not 
Parties.  A  former  adjudication,  to  be 
available  as  a  plea  in  bar,  must  have 
been  a  determination  of  the  same  issue 
between  the  same  parties  or  their  privies, 
though  it  is  not  always  necessary,  for  the 
person  sought  to  be  bound  should  have 
been  a  party  to  the  record  in  the  former 
suit,  but  it  is  enough  if  he  had  a  right 
to  control  the  litigation  and  appeal  from 
the  judgment.  Pish  v.  Vanderlip  (N.  Y.) 
1916E-150. 

71.  Third  Person  Assisting  Defense. 
Where  a  party  of  underwriters  insured  a 
vessel  by  a  contract  making  the  liability 
of  each  party  several,  and  not  joint,  a- 
judgment  against  the  insured  in  his  ac- 
tion against  one  of  the  insurers,  in  which 
the  defendant  and  other  insurers  openly 
participated  in  the  defense  and  contrib- 
uted to  the  expense  thereof,  is  not  a  bar 
to  a  subsequent  action  against  the  de- 
fendant, as  he  was  not  a  party  to,  and 
could  not  properly  have  been  made  a 
party  in,  the  former  action.  Fish  v. 
Vanderlip   (N.  Y.)    1916E-150. 

(Annotated.) 

Notes. 

Estoppel  by  judgment  as  applicable  to 
person  assisting  prosecution  or  defense 
of  action.     1916E-154. 


Judgment  settling  title  to  land  as  con- 
clusive betweeij  successful  claimant  and 
grantor  of  defeated  claimant.  1916E- 
161. 

f.    Criminal    Judgment    as    Bar  to  Civil 

Action. 

72.  Conviction  on  Plea  of  Guilty — 
Effect  in  Civil  Action.  Where  defendant 
railroad  ejected  plaintiff  passenger  from 
its  train,  arresting  and  imprisoning  him  in 
the  city  jail  for  being  drunk  and  drinking 
on  its  car,  plaintiff's  plea  of  guilty  to  a 
charge  of  being  drunk  and  disorderly  in 
the  city  has  no  conclusive  effect  in  his 
subsequent  civil  action  for  his  arrest  and 
ejection  by  the  road.  Spain  v.  Oregon- 
Washington  E.  etc.  Co.  (Ore.)  1917B- 
1104.  •  (Annotated.) 

g.    Matters  Concluded. 

73.  Action  by  Insurer  on  Bights  by 
Subrogation.  Where  the  subrogee  pro- 
ceeds in  the  first  instance  against  the  in- 
sured and  in  that  proceeding  it  appears 
that  the  damages  for  which  a  tortfeasor 
is  liable  to  an  insured  exceeds  the  sum  for 
which  the  insured  settled  with  him,  and 
that  a  sufficient  sum  remains  unpaid  to 
satisfy  the  subrogee,  such  a  conclusion  is 
final  between  the  parties  to  the  record. 
Fire  Assoc,  v.  Wells  (N.  Y.)   1917A-1296. 

74.  Matters  Concluded.  A  judgment  is 
conclusive  between  the  parties  and  their 

•  privies  upon  all  matters  embraced  within 
the  issues  in  the  action  which  were  or 
might  have  been  litigated  therein,  and  it 
is  immaterial  whether  issues  are  joined 
by  an  answer  to  the  complaint  or  ten- 
dered by  the  plaintiff  and  left  unan- 
swered. Tax  Lien  Co.  v.  Schultze 
(N.  Y.)   19160-636. 

75.  Scope  of  Issues.  In  an  action  Pur- 
suant to  Greater  New  York  Charter  (Laws 
N.  Y.  1901,  c.  466,  §§  1035-1039,  as 
amended  by  Laws  1908,  c.  490,  and  Laws 
1911,  c.  65)  to  foreclose  a  tax  lien,  where 
the  complaint  alleged  that  owners  of  ad- 
joining lands,  not  necessary  parties  de- 
fendant, but  made  parties  defendant,  had 
or  might  have,  and  the  plaintiff  believed 
that  they  had  or  might  have,  an  interest 
in  or  claim  upon  the  described  premises 
by  way  of  easement,  etc.,  there  is  no  issue 
as  to  whether  such  defendants  had  prior 
easements  in  the  premises  superior  to  the 
tax  lien;  and  hence,  as  to  such  easements, 
they  are  not  concluded  by  the  judgment 
therein.  Tax  Lien  Co.  v.  Schultze  (N.  Y.) 
1916C-636. 

76.  Such  rule  applies  as  well  to  a  judg- 
ment by  default,  when  the  facts  stated 
warrant  the  relief  sought,  as  to  one  ren- 
dered after  contest.  Tax  Lien  Co.  v. 
Schultze   (N.  Y.)    1916C-636. 

77.  Jurisdictional  Facts.  Where  a  judg- 
ment  in  personam   against   a   nonresident 


486 


DIGEST. 

1916C5— 1918B. 


was  sought  to  be  snstained  on  the  ground 
that  property  interests  of  the  nonresident 
had  been  attached,  the  judgment  is  not 
conclusive  upon  the  validity  of  the  attach- 
ment for,  if  the  attachment  were  invalid, 
tue  court  had  no  jurisdiction.  Johnson  v. 
Whilden  (N.  Car.)  1916C-783. 

78.  Claims  for  Wrongful  Attachment. 
Under  the  rule  established  in  Idaho,  a 
judgment  concludes  all  claims  for  wrong- 
ful attachment  in  the  action  in  which  the 
judgment  is  obtained.  Pindel  v.  Holgate 
(Fed.)  1916C-983. 

79.  Matters  Concluded  by  Decree  Quiet- 
ing Title.  Where  L,  sued  plaintiff  to  quiet 
title  to  land,  and  plaintiff,  claiming  to  own 
the  land  under  a  deed  from  L,  the  deliv- 
ery of  which  was  disputed,  answered  and 
asked  that  his  title  be  quieted  and  recov- 
ered a  judgment  quieting  title  in  him,  such 
judgment  did  not  establish  the  delivery  of 
the  deed  as  against  parties  claiming  under 
a  mortgage  from  L.  executed  and  recorded 
several  months  before  the  action  was  com- 
menced in  which  such  judgment  was  ren- 
dered, as  a  mortgagee  or  his  assigns  are 
not  bound  by  a  judgment  against  the  mort- 
gagor in  a  suit  commenced  by  third  par- 
ties subsequent  to  the  execution  and  re- 
cording of  the  mortgage,  unless  the  mort- 
gagee or  some  one  authorized  to  represent 
him  is  made  a  party  to  the  litigation. 
Coe  V.  Wormell  (Wash.)   I917C-679. 

16.     DIRECT  ATTACK. 

80.  Direct  Attack — ^What  Constitutes. 
A  suit  in  equity  to  set  aside  a  judgment 
and  have  declared  invalid  a  sale  thereun- 
der and  hftve  all  proceedings  in  the  action 
and  the  order  confirming  the  sale  canceled, 
was  a  direct  attack  on  the  judgment. 
Ford  V.  Clendenin   (N,  Y.)   1917A-658. 

17.     COLLATERAL     ATTACK,     WHEN 
PERMISSIBLE. 

81.  Collateral  Attack — Judgment  on  Con- 
structive Service.  The  jurisdiction  of  the 
court  may  be  attacked  collaterally  when 
it  is  dependent  upon  constructive  service. 
Myakka  Co.  v.  Edwards  (Fla.)  1917B-201. 

82.  Grounds  —  Defect  .  of     Parties.     A 

judgment  cannot  be  questioned  collater- 
ally in  an  action  to  enforce  the  lien 
thereof  against  certain  land  of  the  judg- 
ment debtor,  on  the  ground  that  the  plain- 
tiff in  the  judgment  had  no  right  to  sue 
on  the  notes  on  which  the  judgments  were 
rendered,  as  an  objection  for  defect  of 
parties  must  be  taken  by  answer  or  de- 
murrer or  it  will  be  considered  as  waived. 
Brown  v.  Harding  (N.  Car.)  1917C-548. 

JUDGMENT    NON    OBSTANTE    VERE- 
DICTO. 

See  Judgments,  18-20. 


JUDICIAL  ACTS. 
Mandamus  to  compel,  see  Mandamus,  4-7. 

JUDICIAL  NOTICE. 
See  Evidence,  1-19,    • 

•  .    JUDICIAL  POWER. 
Defined,  see  Constitutional  Law,  12. 

JUDICIAL  SALES. 

1.  Conduct  of  Sale. 

2.  Rights  and  Liabilities  of  Purchaser. 

a.  In  General. 

b.  Title. 

Contract  to  suppress  bids,  see  Contr£u:ts, 
30. 

1.     CONDUCT  OF  SALE. 

1.  Advertisement — Misnomer  of  Party — 
Effect.  An  advertisement  of  a  sheriff's 
sale  on  execution  reciting  judgment  in 
favor  of  a  creditor  against  certain  debt- 
ors, the  levy  upon  all  their  right,  title, 
and  interest  in  the  real  property  described 
by  legal  subdivisions,  divests  the  debtors 
of  any  title  to  the  property;  the  use  of  the 
name  "Hattie  Brown,"  instead  of  "Kittie 
Brown,"  not  vitiating  a  prior  suflScient  de- 
scription, and  this  independently  of  Ore. 
L.  O.  L.  §  241,  subd.  4,  which  expressly 
makes  a  confirmation  of  sale  a  conclusive 
determination  of  the  regularity  of  the  pro- 
ceedings for  sale.  Brown  v.  Farmers'  etc. 
National  Bank  (Ore.)   1917B-1041. 

(Annotated.) 

2.  Sale  Under  Junior  Execution.  Un- 
der Rem.  &  Bal.  Wash.  Code,  §  515, 
requiring  the  sheriff  to  indorse  upon  an 
execution  the  time  when  he  received  it,  a 
sheriff  who  holds  two  executions  against 
the  same  property  and  sells  the  property 
under  the  junior  execution  is  liable  to  the 
senior  creditor,  as  the  law  contemplates 
a  sale  under  the  first  writ,  with  the  privi- 
lege to  the  execution  creditor  to  bid  at 
his  own  sale,  thus  protecting  his  interests, 
and  it  is  not  sufBcient  that  the  proceeds 
of  the  sale  are  applied  on  his  judgment. 
Continental  Distributing  Co.  v.  Hays 
(Wash.)  1917B-708.  (Annotated.) 

Note. 

Misnomer  of  party  in  advertisement  or 
notice  of  sale  as  affecting  validity  of  judi- 
cial sale.     1917B-1046. 

2.     RIGHTS     AND     LIABILITIES     OP 
PURCHASER. 

a.  In  General. 

3.  Time  to  Examine  Title.  A  master  in 
chancery  in  selling  land  under  a  decree 
only  allowed  the  purchaser  three  hours  in 
which  to  comply  with  the  terms  of  sale, 
and,  upon  noncompliance  within  that  time. 


JUNK  DEALERS  AND  JUNK  SHOPS— JURY. 


487 


resold  the  property.  Held,  that  the  pur- 
<!haser  was  not  allowed  a  reasonable  time 
to  examine  the  title,  and  hence  the  resale 
was  a  nullity.  Smith  t.  Smith  (S.  Car.) 
1916C-763.  (Annotated.) 

Notes. 

Bight  of  purchaser  at  judicial  sale  to 
reasonable  time  to  examine  title.  1916C- 
764. 

Eights  of  parties  on  sale  under  junior 
attachment  or  execution.     1917B-710. 

b.     Title. 

4.  Sale  Under  Junior  Writ — Bights  of 
Parties.  A  sale  of  personal  property  un- 
der a  junior  execution  will  convey  good 
title  to  the  purchaser.  Continental  Dis- 
tributing Co.  V.  Hays  (Wash.)  1917B-708. 

(Annotated.) 

5.  Sale  of  Curtesy  Interest.  A  sheriff's 
cleed  on  sale  under  execution  against  one's 
curtesy  interest  in  land  conveyed  to  his 
deceased  wife  and  "her  natural  heirs" 
would  be  a  «loud  on  her  son's  title. 
Maynard  v.  Henderson  (Ark.)  1917A-1157. 

JUNK  DEALEBS  AND  JUNK   SHOPS. 

1.  "Dealer' — Meaning  of  Term— Junk 
Dealer.  One  who  sells  junk  and  old  met- 
als on  sixteen  different  dates  within  two 
months  may  be  found  to  be  a  "dealer" 
within  Mass.  Rev.  Laws,  c.  102,  §  29,  im- 
posing a  license  on  dealers  in  junk  and 
old  metals.  Commonwealth  v.  Silverman 
(Mass.)   1917A-948.  (Annotated.) 

2.  A  licensed  junk  dealer  in  one  town 
who  makes  sales  of  junk  and  old  metals 
in  another  town  without  a  license  therein, 
may  be  convicted  of  violating  Mass.  Rev. 
Laws,  c.  102,  §  29,  providing  for  the  licens- 
ing of  dealers  in  junk  and  old  metals,  for 
in  construing  the  word  "dealer"  there  is 
no  distinction  between  one  who  sells  and 
one  who  buys.  Commonwealth  v.  Silver- 
man  (Mass.)    1917A-948.         (Annotated.) 

JUBISDICTION. 

See  Admiralty,  1-3;  Adoption  of  Children, 
3,  4;  Bastardy,  8,  14;  Courts,  2-20; 
Creditors'  Bills,  4-6 ;  Death  by  Wrong- 
ful Act,  7-9;  Equity,  1-6;  Partition, 
3;  Quieting  Title,  2;  States,  1,  2. 

Of  appellate  courts,  see  Appeal  and  Error, 
8-25. 

Jurisdiction  of  appellate  court  after  re- 
mand, see  Appeal  and  Error,  475. 

Special  appearance  to  object  to  jurisdic- 
tion, see  Appearances,  2. 

Disbarment  proceedings,  see  Attorneys,  45, 
49. 

Action  against  foreign  corporation,  see 
Corporations,  166. 

Of  offenses,  see  Criminal  Law,  3,  4. 

Of  divorce  suits,  see  Divorce,  1-7. 

Of  election  contest,  see  Elections,  82. 

Appointment  of  executors  and  administra- 
tors, see  Executors  and  Administra- 
tors, 1,  2. 


Investment  outside  forum,  see  Guardian 
and  Ward,  15. 

In  habeas  corpus  proceedings,  see  Habeas 
Corpus,  8. 

Effect  of  want  of  jurisdiction  on  decree, 
see  Judgments,  4-10,  43. 

Decree  on  insufficient  service,  validity,  see 
Jujjgments,  4,  6,  8-10. 

To  issue  writ  of  mandate,  see  Mandamus. 
22. 

Extra-territorial  powers  of  cities,  see 
Municipal  Corporations,  45. 

Time  of  motion  for  new  trial  jurisdic- 
tional, see  New  Trial,  27. 

Plea  to  jurisdiction,  see  Pleading,  52,  53. 

In  prohibition  proceedings,  see  Prohibi- 
tion, 5. 

Of  Railroad  Commission,  see  Eailroads,  13. 

Appointment  of  receivers,  see  Beceivers,  2. 

Proceeding  with  case  after  void  attempt 
to  remove,  see  Bemoval  of  Causes,  2. 

Of  taxing  power,  see  Taxation,  3,  12,  13. 

Of  probate  of  wills,  see  Wills,  114-120. 

JUBOB. 

Juror  in  former  trial  as  witness,  see  Wit- 
nesses,  3. 

JUBY. 

1.  Right  to  Jury  Trial,  488. 

a.  In  General,  488. 

b.  Criminal  Cases,  488. 

c.  Civil  Cases,  488. 

(1)  Proceedings  to  Enforce  Liens, 

488. 

(2)  Proceedings   for   Bemoval  of 

Officer,  488. 

(3)  Appeals,  488. 

d.  Waiver  and  Loss  of  Bight  to  Jury 

Trial,  488. 

2.  Exclusion  from  Service,  488. 

3.  Summoning  and  Attendance  of  Jurors, 

489. 

a.  Selection  and  Summoning  of  Reg- 

ular Panel,  489. 

b.  Special  Venire,  489. 

4.  Competency  of  Jurors,  489. 

a.  Bias  or  Prejudice,  489. 

b.  Pecuniary  Interest,  489. 

c.  Business    Connections    With   Party, 

489. 

d.  Opinion  Previously  Formed,  489. 

5.  Challenges  and  Objections,  490. 

a.  In  General,  490. 

b.  Peremptory  Challenges,  490. 

e.  Challenge  for  Cause,  490. 

(1)  What  Constitutes,  490. 

(2)  Waiver,  490. 

(3)  Review  of  Findings,  490. 

(a)  Discretion       of       Trial 
Court,  490. 

6.  Custody  and  Conduct  of  Jury,  490. 

a.  Custodian,  490. 

b  Communication  With  Court,  490. 

c.  Separation  of  Jurors,  491. 

d.  Misconduct  of  .Jurors,  491. 

(1)  Use  of  Intoxicants,  491. 

(2)  Taking  Papers  and  Exhibits 

to  Jury  Room,  491. 


488 


DIGEST. 

1916C— 1918B. 


(3)  Reading  Newspapers,  491. 

(4)  AflSdavit  of  Jurors  to  Prov© 

Misconduct,  491. 
7.  Duty  to  Follow  Instructions,  491. 
Harmless    error   in    submitting   issue,    see 

Appeal  and  Error,  325. 
Jury  fees  as  costs,  see  Costs,  8. 
Submission  of  issues  to  jury,  see  Equity, 

30. 
Duty  of  eoort  in  instructing,  see  Instruo- 

tions,  1. 
Disqualification  of  juror  as  ground  for  new 

trial,  see  New  Trial,  12,  29. 
Removal  from  office,  jury  trial,  see  Public 

Officers,  54. 
Number    requisite    for    civil    verdict,    see 

Verdicts,  5,  6, 

L    RIGHT  TO  JURY  TRIAL, 
a.     In  General. 

1.  Constitutional  Eight  to  Jury  Trial — 
Fourteentli  Amendment.  Trial  by  jury  is 
not  embraced  in  the  rights  secured  by  the 
14th  Amendment  to  the  federal  constitu- 
tion. New  York  Central  R.  Co.  v.  White 
(U.  S.)   1917D-629. 

2.  Trial  by  jury  is  not  embraced  in  the 
rights  secured  by  the  14th  Amendment  to 
the  federal  constitution.  Hawkins  v. 
Bleakly  (U.  S.)  1917D-fl37. 

3.  Effect  of  Ordinance  of  1787.  Iowa 
was  not  a  part  of  the  northwest  territory, 
and  was  therefore  unaffected  by  the  guar- 
anty in  the  Ordinance  of  July  13,  1787 
(1  Stat,  at  K  51,  note,  8  Fed.  St.  Ann. 
17),  for  the  government  of  that  territory, 
that  the  inhabitants  thereof  shall  always 
be  entitled  to  the  benefits  of  trial  by  jury. 
Hawkins  v.  Bleakly  (U.  S.)   1917D-637. 

4.  The  admission  of  Iowa  to  the  Union 
under  the  Acts  of  March  3,  1845  (5  Stat. 
at  L.  742,  789,  cc.  48  and  76);  August  4, 
1846  (9  Stat,  at  L.  52,  c.  82) ;  and  Decem- 
ber 28,  1846  (9  Stat,  at  L.  117,  c.  1),  upon 
an  equal  footing  with  the  original  states, 
and  the  adoption  of  a  state  constitution, 
abrogated  any  extension  to  Iowa  of  the 
guaranties  of  the  Ordinance  of  July  13, 
1787  (1  Stat,  at  L.  51,  note,  8  Fed.  St. 
Ann.  17),  for  the  government  of  the  north- 
west territory,  including  the  right  to  trial 
by  jury,  which  may  have  been  affected  bj» 
the  Act  of  June  12.  1838  (5  Stat,  at  L. 
235,  c.  96),  establishing  a  territorial  gov- 
ernment for  Iowa.  Hawkins  t.  Bleakly 
(U.  S.)  1917D-637. 

5.  Scope  of  Constitutional  Guaranty. 
Const,  art.  §§  1,  5,  providing  that  the  right 
of  "trial  by  jury"  shall  remain  inviolate, 
merely  guarantees  such  right  to  a  jury 
trial  as  existed  before  Wisconsin  became  a 
state,  which  was  a  trial  in  a  court  of  com- 
petent jurisdiction  by  a  jury  of  twelve 
men  impartially  selected.  Reliance  Auto 
Repair  Co.  v.  Nugent  (Wis.)  1917B-307. 

6.  Const.  TJ.  S.  Amend.  7,  as  to  trial  by 
jury,  does  not  limit  state  action.  Middle- 
ton  v.  Whitridge  (N.  Y.)  1916C-856. 


b.     In  Criminal  Cases. 


7.  Petty  Offenses.  Neither  the  constitu- 
tion nor  the  statutes  of  this  state  give 
the  right  of  trial  by  jury  to  persons 
charged  with  petty  offenses  under  the  ordi- 
nances of  a  city.  St.  Paul  v.  Robinson 
(Minn.)  1916E-845. 

e.     Civil  Cases. 
(1)     Proceedings  to  Enforce  Liens. 

8.  Attorney's  Lien.  In  an  action  in- 
volving the  right  of  attorneys  to  a  lien 
a  jury  trial  cannot  be  demanded  as  of 
right  on  the  issue  of  the  attorneys'-  fees. 
McCracken  v.  Joliet  (111.)  19171^-144. 

(2)     Proceedings  for  Removal  of  Officer. 

9.  A  proceeding  to  deprive  of  office  a 
person  procuring  his  election  thereto  by 
corrupt  practices  is  not  criminal,  and  an 
act  providing  therefor  is  not  invalid  be- 
cause it  does  not  allow  a  jury  trial.  Diehl 
v.  Totten  (N.  Dak.)  1918A-884. 

(3)     Appeals. 

10.  Denial  of  Jury  Trial — Appeal  not 
Triable  by  Jury.  Const,  art.  1,  §  5,  provid- 
ing that  the  right  to  jury  trial  shall  re- 
main inviolate,  guarantees  only  one  jury 
trial;  hence  the  Wis.  Civil  Court  Act 
(Laws  1909,  c.  549),  which  provides  for 
jury  trial  in  the  civil  court  of  Milwaukee, 
but  authorizes  the  circuit  court  on  appeal 
to  affirm  or  modify  judgments  of  that  tri- 
bunal without  jury  trial,  is  valid.  Reli- 
ance Auto  Reoair  Co.  v.  Nugent  (Wis.) 
1917B-307. 

d.     Waiver   and    Loss    of   Right    to   Jury 
Trial. 

11.  Validity  of  Statute  Permitting 
Waiver.  Jury  trial  is  not  a  universal 
right,  existing  in  all  proceedings  and  .is 
to  all  litigation.  Moreover,  it  may  be 
waived,  and  the  acceptance  of  statutes 
which  contain  provisions  for  the  settle- 
ment of  difficulties  without  a  jury  operates 
as  such  waiver.  Hunter  v.  Colfax  Con- 
solidated Coal  Co.  (Iowa)  1917E-803. 

12.  Effect.  Submission  of  an  action  of 
assumpsit  to  the  court  in  lieu  of  a  jury 
upon  evidence  so  brought  into  the  case,  is 
equivalent  to  a  joinder  in  a  demurrer  to 
evidence,  and  the  judgment,  upon  a  writ 
of  error  thereto  is  treated  and  dealt  with 
as  a  judgment  upon  a  demurrer  to  evi- 
dence. Wilson  V.  Shrader  (W.  Va.)  1916D- 
886. 

2.     EXCLUSION  FROM  SERVICE. 

13.  A  summary  order  barring  persons 
from  serving  as  jurors,  because  they  re- 
turned a  verdict  of  acquittal,  where  it  ;s 
thought  by  the  public  that  there  should 


JURY. 


489 


have  heen  a  conviction,  is  void,  no  law 
authorizing  it,  even  under  the  maxim  sains 
populi  suprema  lex;  it  not  being  neces- 
sary, or  useful,  for  exclusion  of  unfit 
jurors  from  juror  service,  and  the  inflic- 
tion of  Punishment  not  being  permissible, 
unless  denounced  by  the  legislature,  and 
unless  preceded  by  triah  Teat  v.  Land 
<La.)   1916C-1208.  (Annotated.) 

Note. 

Power  of  court  to  exclude  person  from 
jury  service.     1916C-1209. 

3.     SUMMONING    AND    ATTENDANCE 
OF  JUROE. 

a.     Selection  and  Summoning  of  Eegular 
Panel. 

14.  Pajiel  Temporarily  Excused — Right 
to  Recall.  "Where  jurors  of  the  original 
panel  have  not  been  finally  discharged  but 
have  merely  been  temporarily  excused  and 
have  drawn  their  compensation  for  ser- 
vices rendered,  they  can  be  required  to  re- 
turn and  sit  in  any  case  properly  before 
the  court.  State  v.  Giudice  (Iowa)  1917C- 
1160. 

b.    Special  Venire. 

15.  Drawing  Additional  Jurors — Power 
in  Vacation.  Under  Iowa  Code,  §  347,  au- 
thorizing the  judge  either  before  or  dur- 
ing the  term  to  order  additional  jurors,  an 
order  directing  the  drawing  of  additional 
jurors  is  within  the  court's  discretion, 
though  made  in  vacation.  State  v.  Giudice 
(Iowa)  1917C-1160. 

4.     COMPETENCY  OF  JURORS, 
a.     Bias  or  Prejudice. 

16.  Prejudice  Against  Race  of  Accused. 

A  juror  who  entertains  a  prejudice  against 
the  nationality  of  accused  but  none  against 
accused  personally,  and  who  insists  that 
he  can  accord  him  a  fair  and  impartial 
trial,  is  not  necessarily  disqualified,  though 
it  is  advieable  to  sustain  a  challenge 
against  him  for  cause.  State  v.  Giudice 
(Iowa)  1917C-1160.  (Annotated.) 

17.  Reading  Newspaper  Accounts.  Jurors 
who  have  read  newspaper  accounts  of  the 
offense  charged  and  accused's  connection 
therewith  and  have  formed  an  opinion,  but 
who  are  not  acquainted  with  accused  and 
who  do  not  entertain  any  bias  or  preju- 
dice against  him,  and  who  have  no  per- 
sonal knowledge  of  the  facts,  and  who  as- 
sert that  they  can  accord  accused  a  fair 
and  impartial  trial,  are  not,  as  a  matter 
of  law,  disqualified,  and  the  trial  court 
overruling  challenges  for  cause  does  not 
abuse  its  discretion.  State  v.  Giudice 
(Iowa)   1917C-1160. 

18.  Newspaper  Publication.  The  mere 
fact   that   a   newspaper   article   has   been 


published  in  relation  to  a  case  under  con- 
sideration, and  contains  a  misstatement, 
does  not  itself  disqualify  a  juryman,  even 
though  he  may  have  read  the  same.  News- 
paper reports  are  ordinarily  regarded  as 
too  unreliable  to  influence  a  fair-minded 
man  when  called  upon  to  pass  upon  the 
merits  of  a  case  in  the  light  of  evidence 
given  under  oath;  and  a  juror,  although 
he  may  have  formed  an  opinion  from 
reading  such  reports,  is  competent  if  he 
states  that  he  is  without  prejudice  and 
can  try  the  case  impartially,  according  to 
the  evidence,  and  the  court  is  satisfied 
that  he  will  do  so.  State  v.  Gordon 
(N.  Dak.)  1918A-442. 

Note. 
Prejudice  against  race  or  color  of  party 
to  action  as  disqualifying  juror.     19170- 
1167. 

b.     Pecuhiary  Interest. 

19.  Loan    to    Assist    Prosecution.    One 

who  loans  money  to  another  for  the  pur- 
pose of  paying  counsel  to  assist  the  solici- 
tor general  in  the  prosecution  of  a  case  of 
the  state  against  one  charged  with  murder 
is  not  disqualified  to  serve  as  a  juror  on 
the  trial  of  such  a  case,  where  it  does  not 
appear  that  the  juror  has  any  interest  in 
the  prosecution  or  is  otherwise  disqualified. 
Bird  v.  State  (Ga.)  1916C-205. 

c.     Business  Connections  With  Party. 

20.  In  an  action  by  one  dealer  in  auto- 
mobiles against  another,  for  damages  sus- 
tained in  a  collision  between  their  cars, 
a  juror  testified  on  his  voir  dire  that  he 
had  dealt  with  plaintiff's  firm  at  various 
times;  that  he  owed  plaintiff  nothing  at 
that  time;  and  that  he  owned  no  car  and 
was  not  negotiating  with  plaintiff  for  a 
car.  It  appeared  that  he  had  ordered  a 
car  from  plaintiff's  firm,  for  which  he  was 
to  give  his  notes  upon  delivery,  but  whifth 
had  not  been  delivered  at  the  time  of  the 
trial.  Held  that,  where  the  trial  court 
was  satisfied  that  the  juror  was  competent 
and  fair,  he  properly  denied  a  new  trial, 
especially  as  the  juror's  answers  were  lit- 
erally true.  Dishmaker  v.  Heck  (Wis.) 
1917A-400. 

d.     Opinion  Previously  Formed. 

21.  Member  of  Grand  Jury  Indicting  De- 
fendant. One  who  served  on  the  grand 
jury  which  returned  an  indictment  is  dis- 
qualified for  service  as  a  petit  juror  on  the 
trial  of  a  person  therebv  accused.  State 
V.  Cooper  (W.  Va.)  1917D-453. 

(Annotated.) 
Note. 

Qualification  as  juror  of  member  of 
grand  jury  indicting  defendant.  1917D- 
458. 


490 


5. 


DIGEST. 

1916C— 1918B, 


CHALLENGES    AND    OBJECTIONS, 
a.     In  General. 

22.  Procedure  in  Challenging.  Where  12 
jnrors  are  called  and  sworn  on  their  voir 
dire  and  examined,  and  part  of  them  ex- 
cused for  cause,  and  both  the  state  and 
the  defendant  are  required  to  exercise  or 
waive  their  right  to  peremptorily  chal- 
henge  the  jurors  remaining  in  the  jury 
box,  leaving  those  not  challenged  to  be 
sworn  to  try  the  case  before  any  addi- 
tional jurors  should  be  called  to  take  the 
place  of  those  challenged  and  excused,  the 
procedure  is  proper.  State  v.  Mewhinney 
(Utah)  1916C-537. 

b.     Peremptory  Challenges. 

23.  Where  plaintiff  sued  two  saloon 
keepers  and  the  surety  to  recover  on  their 
bonds  for  injuries  inflicted  upon  her  by 
her  father  when  intoxicated,  the  allow- 
ance of  two  peremptory  challenges  to  each 
defendant  is  proper,  since  the  three  de- 
fendants may  not  present  a  joint  defense, 
as  the  surety  company  can  escape  liability 
aa  never  having  executed  its  bond,  etc., 
defenses  not  open  to  the  individual  de- 
fendants. Yonkus  V.  McKay  (Mich.) 
1917E-458.  (Annotated.) 

24.  Though  by  the  court  deemed  quali- 
fied upon  voir  dire  and  sworn  as  such 
juror,  he  not  then  recalling  such  former 
service,  it  is  not  error  to  excuse  him  from 
the  panel  of  twelve,  and  in  his  stead  to 
substitute  another  who  upon  examination 
was  ascertained  to  be  free  from  disqualifi- 
cation. State  T.  Cooper  (W.  Va.)  1917D- 
453.  (Annotated.) 

Note. 
Eight  and   manner  of  exercise  of  per- 
emptory challenges  by  joint  parties  in  civil 
actions.     1917E-461. 

«.    Challenge  for  Cause. 
(1)     What  Constitutes. 

25.  What  Constitutes.  A  mere  objec- 
tion to  the  withdrawal  of  a  disqualified 
juror  and  the  substitution  of  another  upon 
due  examination  adjudged  free  from  ob- 
jection is  not  a  challenge  for  cause.  State 
V.  Cooper  (W.  Va.)  1917D-453. 

(2)     Waiver. 

26.  Failure  to  Object.  One  accused  of 
a  felony  waives  his  right  of  challenge,  and 
will  not,  after  verdict,  be  heard  to  com- 
plain, if,  with  knowledge  of  the  disqualifi- 
cation, he  remains  silent  or  refuses,  when 
afforded  an  opportunity,  to  exercise  his 
right  thereto.  State  v.  Cooper  (W.  Va.) 
1917D-453. 

(3)     Eeview  of  Findings, 
(a)     Discretion  of  Trial  Court. 

27.  Finding  on  Challenge  —  Eeview. 
Where  it  appears  on  error  assigned  to  the 


refusal  to  sustain  certain  challenges  for 
bias  that  the  court  might  have  found  that 
the  jurors  challenged  were  fair,  impartial, 
and  conscientious  men,  the  action  of  trial 
court  in  overruling  the  challenges  will  not 
be  disturbed.  State  v.  Mewhinney  (Utah) 
1916C-537.  ' 

28.  Withdrawing  Juror — Surprise — Evi- 
dence as  to  Nature  of  Injuries.  Where 
plaintiff  was  injured  internally,  it  is  not 
an  abuse  of  discretion  to  refuse  to  with- 
draw a  juror,  after  defendant  claims  sur- 
prise because  there  was  no  allegation  in 
statement  of  claim  of  an  internal  injury, 
where  no  bill  of  particulars  was  asked  for, 
and  the  statement  is  broad  enough  to  cover 
the  injuries  proved  at  the  trial.  Cohen  v. 
Philadelphia  Eapid  Transit  Co.  (Pa.) 
1917D-350. 

6.    CUSTODY  AND  CONDUCT  OF  JUEY. 
a.     Custodian. 

29.  Bailiff  Member  of  Former  Jury. 
Where,  in  a  city's  action  against  an  auc- 
tioneer to  recover  the  statutory  penalty 
for  conducting  his  business  without  a 
license,  one  who,  upon  a  former  trial  in 
which  the  jury  disagreed,  had  been  a  mem- 
ber thereof,  and  had  voted  for  conviction, 
acted  as  bailiff,  in  the  absence  of  showing 
that  he  influenced  the  jury,  or  that  the 
rights  of  defendant  were  prejudiced  in 
any  manner,  there  is  no  error.  Kimmins 
V.  Montrose  (Colo.)  1917A-407. 

30.  Witness  for  Prosecution  as  Bailiff. 
It  is  manifestly  improper  for  one  who  is  a 
material  witness  for  the  state  in  a  prosecu- 
tion for  murder,  to  have  charge  as  bailiff 
of  the  jury  impaneled  to  try  the  case,  or 
to  be  with  or  have  any  communications 
with  such  jury.  Especially  is  this  true 
when  such  party  continues  to  remain  with 
such  jury  after  he  has  been  removed  as 
such  bailiff  by  the  court,  at  the  instance 
of  the  defendant  on  trial,  Owens  v.  State 
(Fla.)  1917B-252.  (Annotated.) 

Note. 
Prejudice  of  oflicer  as  disqualifying  him 
from  acting  as  custodian  of  jury.     1917B- 
254. 

b.     Communication  With  Court. 

31.  In  an  action  in  which  the  court  sub- 
mitted a  question  as  to  punitive  damages, 
the  jury,  after  retiring  to  deliberate,  were 
unable  to  decipher  the  word  "punitive,"  in 
such  question,  and  thereupon  the  foreman 
entered  the  courtroom,  where  another  iase 
was  on  trial,  and  asked  the  meaning  of  the 
word,  to  which  the  judge  replied,  "puni- 
tive, by  way  of  punishment."  These  pro- 
ceedings in  the  courtroom  were  in  an  ordi- 
nary tone  of  voice,  and  were  heard  and 
taken  down  by  the  official  reporter.  Held, 
that  while  all  communications  between  the 
court  and  jury  should  be  in  the  open  court- 
room, and  free  from  even  a  suspicion  of 


JURY. 


491 


secrecy,  there  was  nothing  in  the  facts 
stated  requiring  a  new  trial.  Dishmaker 
V.  Heek  (Wis.)  1917A-400. 

(Annotated.) 
Note. 
Private   communication   by   trial   judge 
with  jury  during  deliberations  as  ground 
for  new  trial.     1917A-403. 

€.     Separation  of  Jurors. 

32.  Exclusion  of  Jury  During  Argument 
of  Law  Question.  It  is  not  a  violation  of 
the  right  to  trial  by  jury  guaranteed  by 
tne  Kan.  Const,  art.  1,  §  2,  for  the  court 
to  exclude  the  jury  from  the  courtroom 
during  the  argument  as  to  the  admissibil- 
ity of  evidence.  People  v.  Becker  (Kan.) 
1917A-600. 

33.  Necessity  of  Excluding  Outside  In- 
fluences. An  impartial  jury,  selected  and 
kept  free  from  all  outside  or  improper  in- 
fluences, is  necessary  to  a  fair  and  impar- 
tial trial.  Owens  v.  State  (Fla.)  1917H- 
252. 

34.  In  a  prosecution  for  crime  which  has 
resulted  in  a  conviction,  where  it  is  made 
to  appear  that  the  jury  was  not  kept  free 
from  outside  or  improper  influences,  and 
there  is  a  sharp  conflict  in  the  evidence 
upon  material  points,  the  judgment  may  be 
reversed.  Owens  v.  State  (Fla.)  I917B- 
252. 

35.  Separation  of  Jury.  As  the  Ky. 
Civil  Code  does  not  confer  upon  the  court 
authority  to  put  a  jury  in  charge  of  an 
ofiicer  and  require  them  to  remain  together 
until  the  case  has  been  finally  submitted, 
it  is  discretionary  with  the  court  if  it  has 
the  inherent  power  to  do  so,  and  hence  a 
party  cannot  complain  that  the  jury  were 
allowed  to  separate  for  the  evenings  and 
for  meals  up  to  submission.  Smith's  Admx. 
V,  Middlesboro  Electric  Co.  (Ky.)  1917A- 
1164. 

d.     Misconduct  of  Jurors. 

(1)     Use  of  Intoxicants. 

36.  The  occasional  taking  of  intoxicants 
in  a  moderate  quantity  by  jurors  is  not 
misbenavior,  warranting  the  granting  of  a 
new  trial.  Smith's  Admx.  v.  Middlesboro 
Electric  Co.  (Ky.)   1917A-1164. 

37.  The  intoxication  of  a  single  juror, 
coupled  with  other  scandalous  behavior, 
where  not  shown  to  have  been  procured  by 
respondent,  is  not,  where  the  juror  was 
not  intoxicated  at  the  hearing  or  when  the 
cause  was  submitted,  ground  for  new  trial. 
Smith's  Admx.  v.  Middlesboro  Electric  Co. 
(Ky.)  1917A-1164. 

(2)     Taking  Papers  and  Exhibits  to  Jury 
Eoom. 

38.  Examination  of  Articles  not  in  Evi- 
dence.    In  a  trial  for  felony,  if  the  bailiff 


in  charge  of  the  jury,  with  the  help  of 
some  of  the  jurors  and  without  the  order 
of  the  court  removes  a  quantity  of  miscel- 
laneous articles  of  which  some  as  exhibits 
have  been  received  in  evidence,  and  some 
have  not,  from  the  courtroom  to  the  jury 
room,  and  such  articles  are  there  examined 
and  considered  by  the  jury  in  arriving  at 
their  verdict,  such  conduct  will  vitiate 
the  verdict,  and  a  new  trial  should  be 
awarded.  Roberts  v.  State  (Neb.)  1917E- 
1040. 

39,  Taking  Out  Papers — Calculation  of 
Damages.  The  matter  of  permitting  plain- 
tiff to  send  out  to  the  jury  a  calculation 
of  items  of  damages  claimed,  is  within  the 
trial  court's  discretion,  where  the  paper 
contains  no  items  not  supported  by  evi- 
dence and  the  jury  are  instructed  that  the 
calculations  are  not  evidence  but  are 
merely  to  be  used  as  an  aid  to  their  own 
calculation.  Armstrong  v.  Philadelphia 
(Pa.)   1917B-1082. 

(3)     Reading  Newspapers. 

40.  Under  Ariz.  Pen.  Code  1913,  §  1063, 
providing  that  the  jury  may  be  placed  in 
charge  of  officer,  whose  duty  it  is  to  keep 
jurors  together  until  reconvention  of  court, 
to  suffer  no  person  to  speak  to  them,  nor 
to  do  so  himself  on  any  subject  connected 
with  the  trial,  and  section  1064,  requiring 
the  jury  to  be  admonished  not  to  converse 
among  themselves  on  any  subject  con- 
nected with  the  trial,  or  to  anyone  else, 
or  to  form  or  express  any  opinion  unril 
the  cause  is  finally  submitted,  it  is  error 
to  permit  one  juror  to  have  in  his  posses- 
sion and  read  to  the  others  a  newspaper 
account,  reciting  a  former  charge  of  lar- 
ceny against  one  of  the  defendants.  Babb 
V.  State  (Ariz.)  1918B-925. 

(Annotated.) 


(4)     Affidavit  of  Jurors  to  Prove  Miscon- 
duct. 

41.  Affidavits  held  not  to  show  attempt 
to  corrupt  the  jury,  or  any  misconduct  on 
the  part  of  the  jury  warranting  new  trial. 
Smith's  Admx.  v.  Middlesboro  Electric  Co. 
(Ky.)    1917A-1164. 

42.  Affidavits  of  jurors  are  not  admis- 
sible to  show  misconduct,  although  they 
can  be  received  to  show  there  was  no  mis- 
conduct. Smith's  Admx.  v.  Middlesboro 
Electric  Co.  (Ky.)  1917A-1164. 


7.     DUTY  TO  FOLLOW  INSTRUCTIONS. 

43.  Duty   to   Follow   Instructions.     The 

instructions  of  the  court,  right  or  wrong, 
are  binding  upon  the  jury,  if  applicable 
within  the  issues.  Smith  v.  Barnes 
(Mont.)   1917D-330. 


492 

JTJBY  TRIAIi. 
Bight  to  jury  trial,  see  Jury,  1-12. 


DIGEST. 

1916C— 1918B. 


JUSTICES  OF  THE  PEACE. 
Bias  as  ground  for  change  of  venue,  see 
Venue,  5. 

1.  Defect  in  Bemoval  Proceedings — Ef- 
lect.  The  defect  in  proceedings  for  the 
removal  of  a  cause  from  a  justice's  court 
to  the  circuit  court,  which  will  operate  to 
the  exclusion  of  a  defendant  from  the 
benefit  of  the  statute  as  to  the  trial  in  the 
circuit  court,  cannot  be  raised  hj  request 
for  a  general  affirmative  charge.  Phillips 
V.  Phillips  (Ala.)   1916D-994. 

2.  Invalid  Judgment — Precedure  for  Va- 
cation. "Where  judgment  is  rendered  by  a 
justice  of  the  peace  on  insufficient  service, 
defendant's  remedy  is  by  motion  to  vacate 
before  the  justice  who  tried  the  case.  S. 
Lowman  &  Co.  v.  Ballard  (N.  Car.)  1917B- 
899. 

3.  Bemoval  of  Cause — Verification  of 
Petition.  Under  Ala.  Code  1907,  §4283, 
providing  that  any  defendant  in  a  suit  for 
forcible  entry  and  detainer  may  remove 
the  action  from  a  justice  to  the  circuit 
court  on  filing  a  sworn  petition,  it  is  not 
necessary  tor  all  of  several  defendants  to 
sign  and  verify  the  petition,  but  it  is  suf- 
ficient where  the  petition  shows  the  re- 
quired facts  verified  by  any  defendant. 
Phillips  v.  PhUUps  (Ala.)  1916D-994. 

JUSTIFIABLE  HOMICIDE. 
6ee  Homicide,  2. 

JUSTIFICATION. 
How  pleaded,  see  Pleading,  24. 

JUVENILE  COUBTS. 

Proceedings  in,  see  Infants,  26-38. 


See  Notice. 


KNOWLEDGE. 


KNOWLEDGE  OF  LAW. 
Presumption  as  to,  see  Evidence,  137, 

LABOB. 
See  Work  and  Labor. 

LABOB  AGENTS. 
See  Labor  Laws,  23. 

LABOB  COMBINATIONS. 

1.  Legality  of  Labor  Unions. 

2.  Strikes. 

3.  Boycotts. 

4.  Agreements  With  Employer. 

5.  Blacklisting. 

6.  Forbidding  Membership. 


Injunction  to  restrain,  see  Injunctions, 
30-31. 

Suit  to  enjoin  officers,  see  Parties  to  Ac- 
tions, 7-9. 

1.    LEGALITY  OF  LABOR  UNIONS. 

1.  A  combination  to  procure  concerted 
breaches  of  contract  by  plaintiff's  em- 
ployees constitutes  a  violation  of  plain- 
tiff's legal  rights,  though  the  measures 
resorted  to  stop  short  of  physical  violence 
or  coercion  through  fear  of  such  violence. 
Hitchman  Coal,  etc.  Co.  v.  Mitchell 
(U.  S.)   1918B-461.  (Annotated.) 

2.  Workingmen  have  a  right  to  form 
unions  and  to  enlarge  their  membership 
by  inviting  other  workingmen  to  join,  but 
this  right,  like  all  other  rights,  must  be 
exercised  with  reasonable  regard  for  the 
conflicting  rights  of  others.  Hitchman 
Coal,  etc.  Co.  v.  Mitchell  (U.  S.)  191SB- 
461.  (Annotated.) 

2.     STRIKES. 

3.  The  right  of  employees  to  strike 
gives  no  right  to  a  third  party  having  no 
agency  for  the  employees  to  instigate  a 
strike,  even  though  they  have  a  griev- 
ance. Hitchman  Coal,  etc.  Co.  v.  Mitchell 
(U.  S.)    1918B-461.  (Annotated.) 

3.     BOYCOTTS. 

4.  Sufficiency  of  Complaint.  In  a  com- 
plaint for  the  wrongful  publication  of  a 
false  statement  that  plaintiff  was  dis- 
charged from  defendant's  employment  as 
locomotive  engineer  for  intimidating 
other  employees,  the  use  of  the  word 
"boycott,"  which  means  "a  conspiracy 
formed  and  intended  directly  or  indirectly 
to  prevent  the  carrying  on  of  any  lawful 
business  or  to  injure  the  business  of  any 
one  by  wrongfully  preventing  those  who 
would  be  customers  from  buying  anything 
from  or  employing  the  representatives  of 
such  business,  by  threats,  intimidation,  or 
other  forcible  means,"  is  insufficient  to 
charge  a  definite  actionable  wrong,  in  the 
absence  of  allegations  of  what  constituted 
the  boycott.  Dick  v.  Northern  Pacific  R. 
Co.  (Wash.)  1917A-638.  (Annotated.) 

4.     AGREEMENTS    WITH   EMPLOYER. 

5.  Plaintiff  was  operating  a  nonunion 
mine  under  a  mutual  agreement,  assented 
to  by  every  employee,  that  it  would  not 
recognize  the  union,  and  that  if  any  man 
wanted  to  become  a  member  of  the  union 
he  might  do  so,  but  could  not  be  a  mem- 
ber and  remain  in  its  employ.  Defend- 
ants, with  full  notice  of  this  working 
agreement  and  without  any  agency  for 
the  employees,  but  as  representatives  of 
an  organization  of  mine  workers  in  other 
states  and  in  order  to  require  the  opera- 
tion of  the  mine  as  a  union  mine,  sent 
their   agent    to    the    mine,    who    with    full 


LABOR  COMBINATIONS. 


493 


notice  of  and  tor  the  very  purpose  of  sub- 
verting the  status  arising  from  the  work- 
ing agreement  and  subjecting  the  mine  to 
union  control,  proceeded,  without  physical 
violence,  but  by  persuasion  accompanied 
by  deceptive  statements,  to  induce  the 
employees  to  join  the  union,  and  at  the 
same  time  to  break  their  agreement  with 
plaintiff  by  remaining  in  its  employ  after 
joining,  and  this  was  done,  not  for  .the 
purpose  of  enlarging  the  membership  of 
the  union,  but  of  coercing  plaintiff 
through  a  strike,  or  the  threat  of  one,  into 
recognition  of  the  union.  It  is  held  that 
the  purpose  and  the  methods  resorted  to 
were  unlawful  and  not  justified  as  a  fair 
exercise  of  the  right  to  increase  the 
membership  of  the  union,  and  plaintiff 
was  entitled  to  an  injunction  against  such 
acts;  the  damage  resulting  from  a  strike 
being  regarded  as  irremediable  at  law. 
Hitchman  Coal,  etc.  Co.  v.  Mitchell 
(U.  S.)    1918B-461.  (Annotated.) 

5.     BLACKLISTING. 

6.  While  the  violation  of  Kem.  &  Bal. 
Wash.  Code,  §  6565,  making  blacklisting 
punishable  as  a  misdemeanor,  and  defin- 
ing the  term,  is  a  sufficient  basis  for  a 
civil  action  for  damages,  the  mere  allega- 
tion that  plaintiff  has  been  blacklisted  is 
not  sufficient,  without  alleging  facts  con- 
stituting the  act  of  blacklisting  as  ..defined 
by  the  statute,  and  that  such  actjj^;  have 
caused  the  injury  charged.  Dick  v. 
Northern  Pacific  E.  Co.  (Wash.)  1917A- 
638.  (Annotated.) 

7.  In  a  complaint  for  the  publication  of 
false  statements  as  to  the  cause  of  plain- 
tiff's discharge  as  a  locomotive  engineer, 
the  use  of  the  word  "blacklist,"  which 
means  a  "list  of  persons  marked  out  for 
special  avoidance,  antagonism,  or  enmity 
on  the  part  of  those  who  prepare  the  list, 
or  those  among  whom  it  is  intended  to 
circulate,"  is  insufficient  to  charge  a  defin- 
ite actionable  wrong,  where  there  is  no 
allegation  that  defendant  made,  kept,  or 
circulated  such  list,  or  that  plaintiff's 
name  was  entered  thereon.  Dick  v.. 
Northern  Pacific  R.  Co.  (Wash.)  1917A- 
638.  (Annotated.) 

8.  Complaint  Insufficient.  A  complaint, 
in  an  action  for  the  wrongful  publication 
of  a  false  statement,  that  plaintiff  was 
discharged  from  defendant's  employment 
as  locomotive  engineer  for  intimidating 
other  employees  while  in  the  performance 
of  their  duties,  which  alleged  that  the  let- 
ter containing  the  statement  was  circu- 
lated with  intent  to  injure  plaintiff,  de- 
stroy his  reputation,  and  deprive  him  of 
confidence,  and  for  the  purpose  of  pre- 
venting   him    from    seeking    or    securing 


employment,  and  to  ruin  him  in  his  pro- 
fession, but  which  failed  to  allege  that 
such  effects  were  actually  produced,  that 
plaintiff  was  ever  refused  employment  by 
reason  of  the  false  record,  that  the  dam- 
ages alleged  resulted  from  the  acts  of 
defendant  as  charged  in  the  complaint, 
that  defendant  and  other  companies  had 
conspired  to  furnish  information  to  each 
other,  or  that  defendant  had  furnished 
any  information  to  others,  and  containing, 
as  the  only  allegation  charging  defendant 
with  conduct  damaging  plaintiff,  that  de- 
fendant had  refused  to  furnish  plaintiff 
with  a  clearance  which  would  enable  him 
to  secure  other  employment,  but  setting 
out  no  facts  raising  a  legal  duty  to  fur- 
nish it,  is  insufficient  to  state  a  cause  of 
action  on  the  case  for  a  wrongful  inter- 
ference with  plaintiff's  pursuit  of  an 
occupation.  Dick  v.  Northern  Pacific  E. 
Co.   (Wash.)   1917A-638'.  (Annotated.) 

Note. 

Legality     of     Blacklisting     Agreement. 
19I7A-644. 


6.     FOEBIDDING  MEMBERSHIP. 

9.  Right  of  Employer  to  Forbid  Mem- 
bership. An  employer  is  acting  within 
his  lawful  rights  in  making  nonmember- 
ship  in  a  union  a  condition  of  employ- 
ment, and  no  explanation  or  justification 
for  such  course  is  needed.  Hitchman 
Coal,  etc.  Co.  v.  Mitchell  (U.  S.)  1918B- 
461. 

10.  The  right  of  an  employer  to  make 
nonmembership  in  a  union  a  condition  of 
employment  is  a  part  of  the  constitutional 
rights  of  personal  liberty  and  private 
property  which  cannot  be  taken  away 
even  by  legislation,  unless  through  some 
proper  exercise  of  the  paramount  police 
power.  Hitchman  Coal,  etc.  Co.  v. 
Mitchell  (U.  S.)   1918B-461. 

11.  Injunction  Against  Officer  —  Possi- 
bility of  Injury  to  Complainant.  Where ' 
one  attempting  to  organize  the  employees 
of  a  mine  was  acting  as  agent  of  an 
organized  body  of  men  united  in  a  pur- 
pose to  close  the  mine  unless  the  pro- 
prietor would  make  it  a  union  mine,  and 
who  lacked  the  power  to  carry  out  that 
purpose  only  because  they  had  not,  as  yet, 
persuaded  a  sufficient  number  of  the 
miners  to  join  with  them,  and  employed 
such  agent  with  the  very  object  of  secur- 
ing the  support  of  the  necessary  number 
of  miners,  the  right  to  an  injunction 
against  his  activities  is  not  dependent  on 
whether  he  had  power  or  authority  to  shut 
down  the  mine.  Hitchman  Coal,  etc.  Co. 
V.  Mitchell    (U.   S.)    1918B-461. 


494 


DIGEST. 

1916C— 1918B. 


LABOR  LAWS. 


1.  In  General,  494. 

2.  Limiting     Hoars     of     Employment     of 

Women,  494. 

3.  Limiting  Hours  of  Labor,  494, 

4.  Begulation  of  Wages,  496. 

5.  Labor  Agents,  496. 

6.  Weekly  Kest  Day,  496. 

1.     IN  GENERAL. 

1.  The  right  to  labor  and  to  employ 
labor  is  subject  to  reasonable  limitations 
necessary  to  promote  the  health,  general 
welfare,  and  intelligence  of  the  citizens, 
and  the  peace  and  good  order  of  the 
state;  U.  S.  Const.  Amend.  14,  not  being 
designed  to  limit  the  right  of  the  state 
under  its  police  power  to  prescribe  such 
regulations.  State  r.  Bunting  (Ore.) 
1916C-1003.  (Annotated.) 

2.  Immigration  —  Importation  of  Con- 
tract Labor — Allen  Seaman.  It  is  not  a 
violation  of  Immigration  Act  of  Feb.  20, 
1907,  c.  1134,  §  4,  34  Stat.  900  (3  Fed.  St. 
Ann.  [2d  ed.]  654)  making  it  a  mis- 
demeanor to  prepay  the  transportation  or 
assist  in  the  importation  of  contract 
laborers  into  the  United  States,  for  the 
operators  of  a  merchant  vessel  flying  the 
American  flag  to  bring  aliens  from  China 
to  the  port  of  San  IVancisco  under  con- 
tract to  join  the  crew  of  such  vessel,  since, 
while  the  public  and  private  vessels  of 
every  nation,  while  on  the  high  seas  and 
without  the  territorial  limits  of  any  state, 
are  subject  to  the  jurisdiction  of  the 
state  to  which  they  belong  and  are  in 
many  respects  considered  a  part  of  its 
territory,  a  merchant  vessel  flying  the 
American  flag  is  not  a  part  of  the  United 
States  within  the  immigration  laws,  nor  is 
a  sailor  whose  home  is  on  the  sea  a  con- 
tract laborer  within  those  laws.  Sehar- 
renberg  v.  Dollar  Steamship  Co.  (Fed.) 
19170-258.  (Annotated.) 

Notes. 

Soliciting  or  importing  alien  contract 
labor  as  crime.     1917C-261. 

Validity  of  statute  regulating  employ- 
ment of  adult  females  in  other  respects 
than  number  of  hours  of  labor.  191 6D- 
1065. 

2.     LIMITING     HOURS     OF    EMPLOY- 
MENT OP  WOMEN. 

3.  A  statute  prohibiting  night  work  for 
women  will  not  be  adjudged  unconstitu- 
tional merely  because  some  of  the  women, 
within  the  protection  of  the  statute,  op- 
pose the  protection.  People  v.  Charles 
Schweinler  Press   (N.  Y.)   1916D-1059. 

(Annotated.) 

4.  A  statute  prohibiting  night  work  for 
women  cannot  be  adjudged  invalid  merely 
because  in  exceptional  cases  it  may  pre- 
vent employment  of  some  women  at  night 


under  such  conditions  as  would  be  produc- 
tive of  no  substantial  harm,  for  the  legis- 
lature must  legislate  in  general  terms. 
People  V.  Charles  Schweinler  Press 
(N.   Y.)   1916D-1059.  (Annotated.) 

5.  Prohibition  of  Night  Work  by 
Women  —  Validity,  N.  Y.  Labor  Law 
(Consol.  Laws,  c.  31)  §  93b,  added  by 
Laws  1913,  c.  83,  prohibiting  any  woman 
from  being  employed  or  permitted  to 
work  in  any  factory  before  6  o'clock  in 
the  morning  or  after  10  o'clock  in  the 
evening,  is  a  valid  exercise  of  the  police 
power  to  protect  the  health  of  women, 
rendered  necessary  as  disclosed  by  the 
commission  created  by  the  legislature  to 
consider  and  report  on  the  subject  report- 
ing a  widespread  belief  that  such  work  is 
so  injurious  to  the  health  of  woman  that 
it  ought  to  be  prohibited  both  for  their 
own  sakes  and  for  the  sake  of  their  oflF- 
spring,  and  is  not  invalid  as  depriving 
one  of  liberty  or  property  without  due 
process  of  law,  or  as  denying  the  equal 
protection  of  the  law.  People  r.  Charles 
Schweinler  Press  (N.  Y.)    1916D-1059. 

(Annotated.) 

3.    LIMITING  HOURS  OF  LABOR. 

6.  Ore.  Laws  1913,  c.  102,  prohibiting  the 
employment  of  any  person  in  any  mill,  fac- 
tory, or  manufacturing  establishment  more 
than  10  hours  in  a  day,  can  be  sustained 
only  Ader  the  police  power,  since  the  right 
to  labor  or  employ  labor  on  terms  stipulated 
by  the  parties  is  a  property  right  guaran- 
teed by  U.  S.  Const.  Amend.  14,  providing 
that  no  state  shall  make  any  law  abridg- 
ing the  privileges  or  immunities  of  citi- 
zens of  the  United  States,  nor  deprive  any 
person  of  property  without  due  process  of 
law,  nor  deny  the  equal  protection  of  the 
law.  State  v.  Bunting  (Ore.)  1916C- 
1003.  (Annotated.) 

7.  The  limitation  of  Ore.  Laws  1913. 
c.  102,  prohibiting  employment  of  labor 
for  more  than  10  hours  in  one  day  to  mills, 
factories,  and  manufacturing  establish- 
ments, is  not  an  unconstitutional  discrim- 
ination. State  v.  Bunting  (Ore.)  1916C- 
1003.  (Annotated.) 

8.  In  Ore.  Laws  1913,  c.  102,  prohibiting  ■ 
the  employment  of  labor  in  mills,  fac- 
tories, and  manufacturing  'establishments 
for  more  than  10  hours  per  day,  a  proviso 
permitting  employees  to  work  overtime 
not  to  exceed  three  hours  in  a  day  at  the 
rate  of  time  and  a  half  the  regular  wage 
does  not  render  the  whole  act  void.  State 
V.  Bunting  (Ore.)  1916C-1003. 

(Annotated.) 

9.  Ore.  Laws  1913,  c.  102,  prohibiting 
the  employment  of  any  person  in  any 
mill,  factory,  or  manufacturing  establish- 
ment for  more  than  10  hours  in  one  day, 
except  night  watchmen,  persona   engage^ 


LABOR  LAWS. 


495 


In  making  necessary  repairs,  and,  in  cases 
of  emergency,  providing  that  employees 
may  work  overtime  not  to  exceed  three 
hours  in  a  day  at  the  rate  of  time  and 
one-half  of  the  regular  wage,  is  a  proper 
police  regulation,  and  does  not  violate  the 
constitution  of  the  United  States  or  of 
the  state.  State  v.  Bunting  (Ore.)  1916C- 
1003.  (Annotated.) 

10.  Contract  to  Work  More  Tlian  Legal 
Day.  A  city  employee,  who  entered  into 
a  special  contract  to  work  ten  hours  per 
day  for  extra  wages,  cannot,  after  accept- 
ing such  wages  without  protest,  seek  to 
recover  additional  compensation  on  quan- 
tum meruit  on  the  ground  that  he  could 
not  be  legally  required  to  work  more  than 
eight  hours.  Woods  v.  Woburn  (Mass.) 
1917A-492. 

11.  Mass.  St.  1899,  c.  344,  §  1,  establish- 
ing the  eight  hour  day  for  city  employees, 
which  is  substantially  the  same  as  the 
federal  statute,  must  be  given  the  con- 
struction previously  given  to  the  federal 
statute,  that  it  does  not  prohibit  a  spe- 
cial agreement  between  the  city  and  its 
employees  for  a  longer  day's  work. 
Woods  v.  Woburn  (Mass.)  1917A-492. 

13.  Public  Works.  The  legislature  can 
determine  the  number  of  hours  which 
shall  constitute  a  day's  work  for  cities 
and  other  governmental  subdivisions. 
Woods  V.  Woburn  (Mass.)  1917A-492, 

13.  Power  of  State.  The  hours  of  labor 
in  industries  in  which  too  many  hours  of 
service  in  one  day  would  be  injurious  to 
the  health  and  well-being  of  the  opera- 
tives may  be  reasonably  regulated  by  the 
state  under  the  police  power,  and  this 
power  legitimately  exercised  can  neither 
be  limited  by  contract  nor  bartered  away 
by  legislation.  State  v.  Bunting  (Ore.) 
1916C-1003.  (Annotated.) 

14.  Construction  of  Statute.  A  special 
agreement  by  a  city  employee  to  work 
ten  hours  per  day,  instead  of  eight  hours, 
as  provided  by  Mass.  St.  1899,  c.  344,  §  1, 
was  not  affected  by  the  subsequent  eight 
hour  laws  (St.  1906,  c.  517,  §  5;  St.  1907, 
c.  570;  St.  1909,  c.  514,  §  41;  and  Eev. 
Laws,  c.  106,  §  20),  since  statutes  are  con- 
strued to  apply  only  to  the  future,  and 
not  to  the  past,  unless  a  contrary  purpose 
is  indicated  by  express  language  or  neces- 
sary implication,  and  there  is  nothing  in 
those  acts  to  indicate  an  intent  to  apply 
them  to  existing  contracts.  Woods  v. 
Woburn   (Mass.)    1917A-492. 

15.  Impairing  Obligation  of  Contract — 
Contract  of  Municipality.  Where  a  city 
owns  and  operates  its  water  plant  as  a 
private  commercial  venture,  the  property 
is  held  in  its  strictly  proprietary  capac- 
ity, and  its  contracts  with  relation  thereto 
are  probably  protected  by  the  constitu- 
tional provisions  for  the  protection  of  con- 


tracts of  individuals,  and  it  will  not  be 
presumed,  in  the  absence  of  plain  lan- 
guage requiring  it,  that  the  legislature  in- 
tended subsequent  eight  hour  acts  to  ap- 
ply to  an  existing  contract  with  an  em- 
ployee of  the  waterworks  department  and 
thereby  to  raise  a  serious  constitutional 
question.  Woods  v.  Woburn  (Mass.) 
1917A-492. 

16.  The  eight-hour  laws  (St.  Mass.  1906, 
c.  517;  St.  1907,  c.  570;  St.  1909,  e.  514, 
§§  37-43),  which  apply  only  to  cities 
which  have  accepted  the  provisions  of 
Eev.  Laws,  c.  106,  §  20,  do  not  apply  to  a 
city  which  had  accepted  the  earlier  stat- 
ute (St.  1899,  c.  344).  Woods  v.  Woburn 
(Mass.)   1917A-492. 

17.  Validity  of  Statute.  An  hours-of- 
service  law  may  be  limited  to  employees- 
in  mills,  factories,  or  manufacturing  es- 
tablishments, as  is  done  by  Ore.  Laws 
1913,  c.  102,  §  2,  without  invalidating  the 
law  as  making  an  unconstitutional  dis- 
crimination. Bunting  v.  Oregon  (U.  S.) 
1918A-1043,  (Annotated.) 

18.  A  regulation  of  hours  of  service — 
not  of  wages — and  one,  therefore,  which 
the  state,  in  the  exercise  of  its  police 
power,  could  consistently  with  due  process 
of  law  enact,  is  what  was  made  by  the 
provisions  of  Ore.  Laws  1913,  c.  102,  §  2, 
purporting  to  have  been  enacted  as  a 
health  measure,  that  "no  person  shall  be 
employed  in  any  mill,  factory,  or  manu- 
facturing establishment  in  this  state  more 
than  ten  hours  in  any  one  day  except 
watchmen  and  employees  when  engaged 
in  making  necessary  repairs  or  in  case 
of  emergency  where  life  or  prooerty  is  in 
imminent  danger,"  notwithstanding  a  pro- 
viso to  such  section  that  "employees  may 
work  overtime  not  to  exceed  three  hours 
in  any  one  day,  conditioned  that  payment 
be  made  for  such  overtime  at  the  rate  of 
time  and  one-half  of  the  regular  wage." 
Bunting  y.  Oregon   (U,  S.)   1918A-1043. 

(Annotated.) 

19.  Eight  Hour  Railway  Law.  Inter- 
state railway  carriers  are  not  denied  the 
due  process  of  law  guaranteed  by  U.  S. 
Const.  5th  Amend.  (9  Fed.  St.  Ann.  288) 
by  the  provisions  of  the  Act  of  September 
3,  5,  1916  (39  Stat.  L.  721,  c.  436,  Fed.  St. 
Ann.  Pamph.  Supp.  No.  8,  p.  139),  fixing  a 
permanent  eight-hour  standard  workday 
for  employees  engaged  in  the  operation  of 
trains  upon  such  railways,  creating  a  com- 
mission to  observe  during  a  period  of  not 
less  than  six  nor  more  than  nine  months 
the  operation  and  effect  of  such  standard 
workday  and  to  report  its  findings  to  the 
President  and  Congress  within  thirty  days 
thereafter,  and  forbidding  the  carriers, 
pending  such  report,  and  for  a  period  of 
thirty  days  thereafter,  to  pay  such  em- 
ployees for  eiffht  hours'  work  a  wage  less 
than    the    existing   standard   day's   wage. 


496 


DIGEST. 

1916C— 1918B. 


with  pro  rata  pay  for  all  necessary  over- 
time.    WUson  V.  New  (U.  S.)  1918A-1024. 

(Annotated.) 

20.  Singling  out  employees  engaged  in 
the  movement  of  trains,  as  is  done  by  the 
Act  of  September  3,  5,  1916  (39  Stat.  L. 
721,  c.  436,  Fed.  St.  Ann.  Pamph.  Supp. 
No.  8,  p.  139),  fixing  a  permanent  eight- 
hour  standard  working  day  for  such  em- 
ployees of  interstate  railway  carriers,  and 
temporarily  regulating  their  wages,  does 
not  render  the  statute  invalid  as  denying 
the  equal  protection  of  the  laws,  where 
such  employees  were  those  concerning 
whom  alone  a  dispute  as  to  wages  existed, 
out  of  which  arose  the  threat  of  the  inter- 
ruption of  interstate  commerce  by  a  strike, 
to  prevent  which  the  statute  was  enacted. 
Wilson  V.  New  (U.  S.)   1918A-1024. 

(Annotated.) 

21.  The  exemption  of  railways  independ- 
ently owned  and  operated,  not  exceeding 
100  miles  in  length,  electric  street  rail- 
ways and  electric  interurban  railways, 
from  the  operation  of  the  provisions  of 
the  Act  of  September  3,  5,  1916  (39  Stat. 
L.  721,  c.  436,  Fed.  St.  Ann.  Pamph.  Supp. 
No.  8,  p.  139),  fixing  a  permanent  eight- 
hour  standard  working  day  for  employees 
engaged  in  the  operation  of  trains  upon 
interstate  railway  carriers,  and  tempo- 
rarily regulating  the  wages  of  such  em- 
ployees, does  not  invalidate  the  act  as 
denying  the  equal  protection  of  the  laws. 
Wilson  V.  New  (U.  S.)  1918A-1024. 

(Annotated.) 

4.     REGULATION  OF  WAGES. 

22.  Regulation  of  Wages  of  Employees 
of  Carriers  —  Validity.  Congress,  con- 
fronted with  the  imminent  interruption  of 
interstate  commerce  by  a  threatened  gen- 
eral strike  of  railway  employees,  the  out- 
come of  a  dispute  over  a  wage  standard, 
can,  in  the  exercise  of  its  power  over  com- 
merce, fix  such  a  permanent  standard 
working  day  for  employees  engaged  in 
the  operation  of  trains  upon  interstate 
railway  carriers,  and  make  such  a  tempo- 
rary wage  regulation,  as  is  done  by  the 
Act  of  September  3,  5,  1916  (39  Stat.  L. 
721,  c.  436,  Fed.  St.  Ann.  Pamph.  Supp. 
No.  8,  p.  139),  which  establishes  a  perm.^- 
nent  eight-hour  standard  for  a  day's  work 
by  such  employees,  creates  a  commission 
to  observe  during  a  period  of  not  less  than 
six  nor  more  than  nine  months  the  opera- 
tion and  effect  of  such  standard  workday 
and  to  report  its  findings  to  the  President 
and  Congress  within  thirty  days  there- 
after, and  forbids  the  carriers,  pending 
such  report,  and  for  a  period  of  thirty 
days  thereafter,  to  pay  such  employees  for 
eight  hours'  work  a  wage  less  than  the 
existing  standard  day's  wage,  with  pro 
rata  for  all  necessary  overtime.  Wilson 
V.  New  (U.  S.)  1918A-1024. 

(Annotated.) 


5.     LABOR  AGENTS. 


23.  Emplojrment  Agencies — Regulation — 
Scope  of  Act.  The  Wash.  Employment 
Agency  Law  (Laws  1915,  p.  1),  entitled 
"An  act  to  prohibit  the  collection  of  fees 
for  the  securing  of  employment  or  furnish- 
ing information  leading  thereto  and  fixing 
a  penalty  for  violation  thereof,"  .provides 
in  section  1  that  the  welfare  of  the  state 
depending  on  the  welfare  of  its  workers 
demands  that  they  be  protected  from  con- 
ditions that  result  in  their  being  liable  to 
imposition  and  extortion.  Section  2  makes 
it  unlawful  for  any  employment  agent  or 
his  representative,  or  any  other  person,  to 
demand  or  receive  from  any  person  seek- 
ing employment  any  remuneration  or  fee 
for  furnishing  employment  or  information 
leading  thereto;  while  section  3  makes 
such  act  an  offense.  It  is  held  that,  as  a 
"worker"  is  one  who  performs  manual 
labor,  and  as  the  statute,  if  it  applied  to 
agencies  for  the  employment  of  persons 
in  the  professions,  might  be  unconstitu- 
tional as  exceeding  the  police  power,  the 
statute  does  not  apply  to  the  operator  of 
a  teachers'  agency  whereby,  for  a  percen- 
tage of  the  year's  salary  and  a  small  filing 
fee,  position  were  sfecured.  Huntworth  v. 
Tanner   (Wash.)    1917D-676. 

(Annotated.) 

6.     WEEKLY  REST  DAY. 

24.  N.  Y.  Laws  1913,  c.  740,  §  Sa,  giving 
to  laborers  in  factories  and  mercantile  es- 
tablishments one  day  of  rest  in  seven,  is 
not  rendered  unconstitutional  by  the  un- 
constitutionality of  Laws  1914,  c.  396, 
amending  it,  and  providing  for  exemption 
from  its  operation  certain  classes  of  em- 
ployees in  the  discretion  of  the  commis- 
sioner of  labor.  People  v.  C.  Klinck  Pack- 
ing Co.  ^N.  Y.)  1916D-1051. 

(Annotated.) 

25.  The  legislature  may  confer  upon  an 
administrative  board  or  official  the  duty 
to  determine  whether  in  any  case  condi- 
tions exist  upon  which  an  exemption  from 
N.  Y.  Laws  1913,  c.  740,  §  8a,  giving  labor- 
ers in  factories  and  mercantile  establish- 
ments one  day  of  rest  in  seven,  is  based, 
and  \o  prescribe  some  standard  by  which 
the  board  or.  official  is  to  decide.  People 
V.  C.  Elinck  Packing  Co.  (N.  Y.)  1916D- 
1051.  (Annotated.) 

26.  N.  Y.  Laws  1914,  c.  396,  exempting 
from  the  operation  of  Laws  1913,  c.  740, 
§  8a,  giving  laborers  in  factories  and  mer- 
cantile establishments  one  day  of  rest  in 
seven,  "if  the  commissioner  of  labor  in  his 
discretion  approves,  [employees]  engaged 
in  the  work  of  any  industrial  or  manufac- 
turing process  necessarily  continuous,  in 
which  no  employee  is  permitted  to  work 
more  than  eight  hours  in  any  calendar 
day,"  is  unconstitutional,  as  a  general 
delegation  of  legislative  power  to  the  com- 


LABORER— LACHES. 


497 


missioner  of  labor;  he  being  authorized  to 
decide  as  to  the  exemption  of  employees 
in  his  discretion,  and  subject  to  no  re- 
straining rules  imposed  by  the  statute. 
People  V.  C.  Klinck  Packing  Co.  (N.  Y.) 
1916D-1051.  (Annotated.) 

27.  N.  Y.  Laws  1914,  c.  388,  exempting 
from  the  operation  of  Laws  1913,  c.  740, 
§  8a,  giving  to  laborers  in  factories  and 
mercantile  establishments  one  day  of  rest 
in  seven,  "employees  in  dairies,  creamer- 
ies, milk  condensaries,  milk  powder  fac- 
tories, milk  sugar  factories,  milk  shipping 
stations,  butter  and  cheese  factories,  ice 
cream  manufacturing  plants,  and  milk 
bottling  plants,  where  not  more  than  seven 
persons  are  employed,"  is  within  the  legis- 
lative power  as  being  based  on  a  reason- 
able classification,  since  so  long  as  there 
is  real  difference  in  the  situation,  interest, 
and  capacity  of  different  classes  of  citi- 
zens, such  difference  may  be  made  tha 
basis  of  legislative  classification.  People 
V.  C.  Klinck  Packing  Co.  (N.  Y.)  ,1916D- 
1051.  (Annotated.) 

28.  In  determining  the  constitutionality 
of  N.  Y.  Laws  1913,  c.  740,  §  8a,  giving 
to  laborers  in  factories  and  mercantile  es- 
tablishments one  day  of  rest  in  seven,  the 
court  cannot  determine  whether  the  statute 
is  the  wisest  and  best  way  to  effect  the 
legislative  purpose,  but  can  merely  ascer- 
tain whether  the  provision  on  its  face 
seems  reasonable,  and  whether  its  natural 
consequences  will  be  in  the  direction  of 
the  betterment  of  the  public  health  and 
welfare.  People  v.  C.  Hinck  Packing  Co. 
(N.  Y.)  1916D-1051.  (Annotated.) 

29.  The  question  what  measure  of  leis- 
ure should  be  given  to  laborers  in  fac- 
tories and  mercantile  establishments,  for 
the  promotion  of  public  health  and  welfare, 
was  for  the  legislature,  in  enacting  N.  Y. 
Laws  1913,  c.  740,  §  8a,  giving  such  lab- 
orers one  day  of  rest  in  seven,  and  is  not 
subject  to  revision  by  the  courts,  unless 
its  determination  was  palpably  unreason- 
able. People  v.  C.  Klinck  Packing  Co. 
(N.  Y.)  1916D-1051.  (Annotated.) 

30.  Laws  N.  Y.  1914,  c.  512,  exempting 
from  the  operation  of  Laws  1913,  c.  740, 
§  8a,  giving  laborers  in  factories  and  mer- 
cantile establishments  one  day  of  rest  in 
seven,  when  necessary  to  preserve  prop- 
erty, life,  or  health,  subject  to  determina- 
tion by  the  industrial  board,  employees  in 
"power  houses,  generating  plants,  barns, 
storage  houses,  sheds  and  other  structures, 
owned  or  operated  by  a  public  service  cor- 
poration, other  than  construction  or  repair 
sho]is  subject  to  the  jurisdiction  of  the 
public  service  commission  under  the  pub- 
lic service  commission  law,"  is  an  exemp- 
tion of  employees  based  on  obvious  rea- 
sons nnd  grounds  of  classification,  and  is 

.  constitutional;    the    powers    conferred    on 
/     the  industrial  board  being  so  limited  in  ex- 
''        tent   and    so   governed  by   the   rules   pre- 
32 


scribed  by  the  statute  itself  as  to  be 
clearly  within  the  power  of  the  legislature. 
People  V.  C.  Klinck  Packing  Co.  (N.  Y."> 
1916D-105L  (Annotated.) 

31.  Validity.  Ni  Y.  Laws  1913,  c,  740, 
§  8a,  providing  for  one  day  of  rest  in 
seven  for  all  laborers  m  factories  and  mer- 
cantile establishments,  and  that  only  cer- 
tain specified  classes  of  employees  may 
labor  on  Sunday,  cannot  be  sustained  as 
constitutional  as  a  statute  enforcing  the 
religious  observance  of  any  day.  People 
V.  C.  Klinck  Packing  Co.  (N.  Y.)  1916D- 
1051.  (Annotated.) 

32.  N.  Y.  Laws  1913,  c.  740,  §  8a,  provid- 
ing for  one  day  of  rest  in  seven  for  lab- 
orers in  factories  and  mercantile  establish- 
ments, is  not  so  disconnected  with  the 
probable  promotion  of  public  health  and 
welfare,  and  so  extravagant  and  unreason- 
able, that  its  enactment  is  beyond  the  ju- 
risdiction of  the  legislature  in  the  exercise 
of  its  legitimate  police  power.  People  v. 
C.  Klinck  Packing  Co.  (N.  Y.)  1916D-1051. 

(Annotated.) 
Note. 
Validity  of  statute  requiring  weekly  rest 
day  for  employees.     1916D-1058. 

ULBOBEK 
Defined,  see  Mechanics'  Liens,  10. 

IiASOBEB'S  UEN. 

See  Liens,  4. 

LABOB  ITNIONS. 
See  Laboj  Combiiiations. 

LACHES. 
See  Limitation  of  Actions. 
As  defense  against  setoff,  see  Bankruptcy, 

8. 
As    defense    to   reformation   of   deed,    see 

Bescission,  Cancellation  and  Beforma- 

tion,  5. 
As  defense  to  cancellation,  see  Bescission, 

Cancellation  and  Beformation,  18-20. 

1.  Setting  Aside  Gift.  Where  plaintiffs, 
in  a  suit  to  set  aside  a  gift  causa  mortis, 
knew  as  much  about  the  facts  12  years 
before  as  when  suit  was  commenced,  their 
acquiescence  in  the  gift  for  that  time  was 
laches.  Baber  v.  Caples  (Ore.)  1916C- 
1025. 

2.  Delay  in  Proceeding  Against  Nui- 
sance. "Where  conditions  creating  a  nui- 
sance by  the  operation  of  a  brick  manu- 
facturing plant  over  a  period  of  many 
years  are  gradual  and  cumulative  in  fheir 
character,  and  the  nuisance  is  a  continu- 
ing one.  laches  do  not  defeat  injunctivd 
relief.     Face  v.  Cherry  (Va.)  1917E-418. 

3.  Proof  Obscured  by  Delay.  He  who, 
without  adequate  excuse,  delays  asserting 
his  rights  until  the  proofs  respecting  the 


498 


transaction  out  of  which  he  claims  his 
rights  arose,  are  so  indeterminate  and  ob- 
scure that  it  is  impossible  for  the  court  to 
see  whether  what  is  asserted  to  be  justice 
to  him  is  not  injustice  to  his  adversary, 
has  no  right  to  relief.  Soper  v.  Cisco  (N. 
J.)   1918B-452. 

4.  What  Constitutes — Delay  in  Conclud- 
ing Suit.  The  plaintiff  in  an  action  in  the 
nature  of  a  creditor's  bill,  is  not  guilty 
of  laches  in  reducing  his  claim  to  judg- 
ment, where  he  has  been  diligent  in  prose- 
cuting his  claim,  although  more  than  ten 
years  have  elapsed  before  judgment  is  ob- 
tained. Underwood  v.  Fosha  (Kan.) 
1917A-265. 

LANDLORD  AND  TENANT. 

1.  Creation    and    Existence    of    Relation, 

498. 

2.  Leases,  498. 

a.  In  General,  498. 

b.  Implied  Covenants,  498. 

3.  Possession  and  Use  of  Premises,  499. 

a.  Tenant's  Right  to  Possession  Gen- 

erally, 499. 

b.  Condition  of  Premises,  499. 
c  Use  of  Premises,  499. 

(1)  Use  of  Walls  for  Advertising 

Purposes,  499. 

(2)  Use  by  Lessor,  499, 

d.  Building  Restrictions,  499. 

e.  Repairs,  499. 

f.  Injury    to    Tenant's    Property    by 

Fire,  500. 

g.  Liability    of    Lessor    for    Personal 

Injuries,  500. 
h.  Duty  to  Light,  500. 

4.  Assignment  or  Subletfing,  500. 

5.  Rent,  501. 

a.  Rights  and  Liabilities  in  General, 

501. 

b.  Determination  of  Amount,  501. 

c.  Exemptions  from  Seizure,  50L 

d.  Actions,   501. 

(1)  Right  to  Maintain,  SOL 

(2)  Defenses,  502. 

(3)  Evidence,  502. 

6.  Termination  of  Lease,  502. 

a.  Eviction,  502. 

(1)  Remedy  of  Tenant,  502. 

(2)  Damages,  502. 

b.  Surrender  of  Premises,  502. 
_e.  Option  to  Terminate.  502. 

d.  Notice  to  Quit  for  Nonpayment  of 

Rent,  502. 

e.  Destrurtion  of  Building,  503. 

7.  Renewal  of  Lease,  503. 

8.  Estoppel    of    Lessee    to    Deny   Lessor's 

Title,  503. 

See  Adverse  Possession,  25. 

Provision  in  lease  for  attorney's  fees,  see 
Costs,  9. 

Parol  evidence  to  vary  lease,  see  Evi- 
dence. 117. 

Executor's  sale  of  leased  land,  rights  of 
le^isee.  see  Executors  and  Adminis- 
trators, 35. 


DIGEST. 

1916C— 1918B. 

Guardian's  lease,  necessity  of  confirma- 
tion, see  Guardian  and  Ward,  17,  18. 

Right  to  lien  for  improvements  by  tenant, 
see  Mechanics'  Liens,  3-8. 

Mining  Leases,  see  Mines  and  Minerals, 
4-7. 

Effect  of  ordinance  on  prior  city  lease,  see 
Municipal  Corporations,  54. 

Liability  of  lessee  for  injury  by  defects  in 
dock,  see  Negligence,  10-12. 

Liability  of  landlord  for  injury  to  ten- 
ant's guest,  see  Negligence,  83. 

Rents,  nature  of,  see  Property,  1. 

Taxation  of  lease,  see  Taxation,  22. 

Taxation  of  rents,  see  Taxation,  23. 

Duty  to  patrons  of  lessee  of  amusement 
device,  see  Theaters  and  Amusements, 
9. 


1.    CREATION    AND    EXISTENCE    OF 
RELATION. 

1.  Occupant  of  House  as  Servant  or 
Tenant.  The  relation  of  landlord  and 
tenant  does  not  exist  between  an  em- 
ployer and  an  employee  who  is  furnished 
a  house  as  part  compensation  for  his 
services,  and,  where  he  voluntarily  leaves 
the  employment,  his  right  to  the  use  of 
the  house  immediately  ends.  Lane  v. 
Au  Sable  Electric  Co.  (Mich.)  1916C- 
1108.  (Annotated.) 

Notes. 

Person  occupying  premises  of  employer 
as  part  of  compensation  as  tenant  of 
owner.     1916C-1111. 

Legal  status  of  owner  of  apartment 
house.    1917A-256. 


2.     LEASES. 
a.    In  General. 

2.  Oil  and  Gas — Nature  of  Leases — Ap- 
plicability of  General  Sta];utes.  Gas  and 
oil  leases  and  contracts  are  apart  by 
themselves.  They  partake  of  the  nature 
of  both  "sale"  and  "lease";  and  they  have 
features  which  may  not  be  applied  to 
either.  The  law  referring  to  sales  and 
leases  found  in  the  code  cannot  be  un- 
reservedly applied  to  them.  Gulf  Refining 
Co.  V.  Hayne  (La.)  1917D-130. 

3.  But  the  law  in  the  code  will  be  ap- 
plied to  oil  and  gas  leases  by  the  courts  in 
cases  where  it  can  be  applied.  Gulf  Re- 
fining Co.  V.  Hayne  (La.)   1917D-130. 

b.    Implied  Covenants. 

4.  Quiet  Enjojrment.  As  against  a  les- 
sor, or  any  one  holding  under  him,  a  cove- 
nant of  quiet  enjoyment  of  the  premises 
is  implied  in  a  lease  silent  on  that  subject. 
Stewart  v.  Murphy  (Kan.)  1917C-612. 

(Annotated.) 

5.  A  written  lease  which  recites  that 
the  lessor  "doth  hereby  let "  and  which 
contains  a  covenant  against  subletting  by 


LANDLORD  AND  TENANT. 


499 


the  lessee,  that  the  lessee  will  not  "let  or 
demise,  or  in  any  manner  dispose  of  the 
hereby  demised  premises,  or  any  part 
thereof,  for  all  or  any  part  of  the  term 
hereby  granted,  to  any  person  or  persons 
whatever,"  does  not  create  an  implied 
covenant  for  quiet  enjoyment.  May  v. 
Levy  (N.  J.)  1917C-619.  (Annotated.) 

6.  In  case  of  a  demise,  a  covenant  of 
quiet  enjoyment  is  implied  for  from  the 
fact  of  the  letting,  it  will  be  presumed 
that  the  landlord  had  the  right  to  lease, 
and  that  he  agreed  to  protect  the  lessee 
against  eviction,  either  by  title  para- 
mount or  his  own  acts.  Northern  Brew- 
ery Co.  V.  Princess  Hotel  (Ore.)  1917C- 
621.  (Annotated.) 

7.  The  implied  covenant  of  quiet  enjoy- 
ment arising  in  case  of  a  lease  is  not  iii 
violation  of  Ore.  L.  O.  L.  §  7105,  declar- 
ing that  no  covenant  shall  be  implied  in 
any  conveyance  of  real  estate,  for  a  lease 
of  land  is  not  a  conveyance.  Northern 
Brewerv  Co.  v.  Princess  Hotel  (Ore.) 
1917C-621.  (Annotated.) 

Note. 
Implication  of  covenant  for  quiet  enjoy- 
ment in  lease.    1917C-615. 

3.     POSSESSION  AND  USE  OF  PEEM- 

ISES. 

a.     Tenant's    Right    to    Possession    Grcn- 

erally. 

8.  Duty  to  Put  Tenant  into  Possession. 
Where,  at  the  time  plaintiffs  leased  cer- 
tain premises  to  defendants,  plaintiffs 
were  in  actual  possession  of  the  whole, 
being  owners  in  fee  of  a  portion  and 
holding  over  as  lessees  of  the  residue, 
they  were  not  bound  to  put  defendants 
into  actual  possession,  but  it  was  suffi- 
cient that  they  had  the  premises  open  to 
entry  without  any  obstacle  in  the  form  of 
a  superior  right  to  prevent  defendants 
from  obtaining  actual  possession.  Mc- 
Ghee  v.  Cox  (Va.)   1916E-842. 

9.  Putting  Lessee  into  Possession  — 
What  Constitutes.  A  lessee,  working 
upon  the  leased  premises  on  the  first  day 
of  his  term,  does  not  thereby  obtain 
possession  thereof,  where  the  premises 
are  in  the  rightful  possession  of  a  prior 
tenant.  Stewart  v.  Murphy  (Kan.)  1917C- 
612. 

b.     Condition  of  Premises. 

10.  Liability  of  Landlord.  A  landlord 
ordinarily  owes  no  duty  to  look  after  the 
safety  of  the  leased  premises,  but  where 
he  retains  possession  and  control  of  com- 
mon passageway,  he  must  keep  them  as 
safe  as  they  were  or  appeared  to  be  at 
the  commencement  of  the  tenancy.  Galla- 
gher V.  Murphy  (Mass.)  1917E-594. 

Note. 
Duty  to  maintain  fire  escapes.     1916E- 
629. 


c.     Use  of  Premises. 
(1)     Use  of  Walls  for   Advertising  Pur- 
poses. 

11.  Bights  of  Tenant.  Where  a  lease  is 
of  "the  lower  floor  and  shed"  of  a  brick 
building,  the  lessee  has  the  right  to  use 
reasonably  the  columns  or  walls  of  the 
building  for  advertising  his  business,  as 
by  painting  a  sign  thereon,  etc.,  unless 
such  use  is  unusual,  unreasonable,  or 
harmful  as  against  the  objection  by  the 
landlord  that  he  wishes  himself  to  use 
the  columns  for  advertising  his  own  busi- 
ness in  the  same  building.  Snyder  v 
Kulesh  (Iowa)  1916C-481. 

(Annotated.) 
Note. 

Eight  of  tenant  of  building  to  use  of 
front  wall  for  advertising  purposes. 
1916C-482. 

(2)     Use  by  Lessor. 

12.  Bights  of  Tenant  —  Particular  Use 
of  Premises  —  Occupying  Premises  at 
Night.  A  lease  of  premises  on  shares,  re- 
serving to  the  lessor  two  rooms  in  the 
dwelling  on  the  premises  untU  a  dwelling 
could  be  rented  or  a  place  secured  for 
storage,  under  which  the  lessor's  furni- 
ture, etc.,  was  moved  into  two  rooms,  and 
the  key  to  the  outside  door  of  one  of 
which  was  kept  by  him,  did  not  give  the 
lessor  the  right  to  occupy  the  rooms  as  a 
residence  or  for  sleeping  purposes,  or  any 
purpose,  except  to  care  for  or  remove  the 
property,  during  reasonable  hours;  and 
hence  he  had  no  right  to  be  there  with  a 
lighted  lamp  between  7:30  and  8  o'clock 
in  the  evening  to  arrange  the  furniture 
for  removal.  Oleson  v.  Fader  (Wis.) 
1917D-314. 

d.     Building  Eestrictions. 

13.  Duty  to  Provide  Fire  Escape. 
Wash.  Laws  of  1909,  p.  43,  regulating 
buildings  used  for  hotels,  section  11 
(Eem.  &  Bal.  Code,  §  6040)  of  which  im- 
poses a  penalty  upon  every  owner,  man- 
ager, agent,  or  person  in  charge  of  a  hotel 
for  failure. to  comply  with  the  act,  does 
not  require  the  owner  of  a  building, 
leased  for  a  long  term  to  a  tenant  who  is 
conducting  a  hotel  on  the  premises,  under 
a  lease  which  did  not  require  the  owner 
to  make  repairs  or  equip  the  building  for 
such  purpose,  to  pay  for  the  installation 
of  a  fire  escape,  as  required  by  the  city 
under  the  authority  of  that  act;  the  term 
"owner  of  the  hotel"  referring  to  the 
owner  of  the  hotel  business  and  not  to 
the  owner  of  the  building  in  which  it 
was  conducted.  Clarke  v.  Yukon  Invest- 
ment Co.  (Wash.)  1916E-625. 

(Annotated.) 

e.     Eepairs. 

14.  Eight  of  Tenant  to  Repair  at  Land- 
lord's Expense — Waiver.     Under  Cal.  Civ. 


500 


DIGEST. 

1916C— 1918B. 


Code,  §  1942,  providing  that  if  within  a 
reasonable  time  after  notice  to  the  lessor 
of  dilapidations  which  he  ought  to  repair, 
he  iieglects  to  do  so,  the  lessee  may  re- 
pair them  himself  if  the  cost  is  not 
greater  than  one  month's  rent,  and  deduct 
the  expense  from  the  rent,  this  right  to 
make  repairs  at  the  expense  of  the  lessor 
is  waived  by  an  express  provision  to  that 
effect  in  the  lease.  Arnold  v.  Krigbaum 
(Cal.)  1916D-370. 

15.  Duty  of  Landlord  to  Bepair.  In  the 
absence  of  a  covenant  to  repair  or  to 
keep  the  property  in  condition  for  in- 
tended use,  there  is  no  liability  upon  the 
lessor  to  do  so.  Clarke  v.  Yukon  Invest- 
ment Co.   (Wash.)  1916E-625. 

f.  Injury  to  Tenant's  Property  by  Fire. 

16.  A  tenant,  occupying  a  part  of  a 
building  under  a  written  lease,  may  con- 
tinue to  hold  under  the  lease,  although  the 
part  occupied  has  become  uninhabitable 
by  reason  of  a  partial  destruction  by  fire. 
O'Neal  V.  Bainbridge  (Kan.)   1917B-293. 

g.  Liability     of     Lessor     for     Personal 

Injuries. 

17.  Injury  to  Third  Person.  The  pro- 
visions of  the  Housing,  Town  Planning, 
etc.,  Eng.  Act  of  1909,  by  virtue  of  which 
a  landlord  is  required  to  keep  the  premises 
in  habitable  condition,  are  for  the  sole 
benefit  of  the  tenant,  and  the  landlord  is 
not  liable  to  a  third  person  injured  by 
reason  of  the  defective  condition  of  the 
premises.  Eyall  v.  Kidwell  (Eng.)  1916C- 
815.  (Annotated.) 

18.  A  tenant's  g^est  may  recover  for 
injuries  due  to  the  negligence  of  the  land- 
lord. Gallagher  v.  Murphy  (Mass.)  1917E- 
594. 

19.  At  the  expiration  of  a  tenancy, 
whether  with  or  without  actual  change  of 
possession,  a  landlord  may  lawfully  enter 
and  make  necessary  repairs;  and  his 
neglect  so  to  do  renders  him  liable  for 
injuries  resulting  from  defects  then  exist- 
ing in  the  premises  demised.  Hill  v.  Nor- 
ton (W.  Va.)    1917D-489. 

h.     Duty  to   Light. 

20.  Duty  to  Light  Common  Hallways. 
In  the  absence  of  a  contract  or  statutory 
obligation  to  do  so,  the  landlord  of  a  tene- 
ment house  need  not  light  common  pas- 
sageways. Gallagher  v.  Murphy  (Mass.) 
1917E-594.  (Annotated.) 

Note. 
Duty   of  landlord   to   light   passageway 
common  to  tenants.     1917E-596. 

4.     ASSIGNMENT   OR   SUBLETTING. 

21.  Effect  of  Assignment  —  Liability  of 
Lessee  for  Bent.     A  lessee,  who  has  not 


agreed  to  pay  rent  on  assignment  with 
the  landlord's  consent,  is  relieved  of  fur- 
ther obligation  to  pay  rent,  which  is 
thereafter  due  from  the  assignee  who  has 
come  into  privity  of  estate  with  the  land- 
lord, but  the  liability  of  a  lessee  who 
expressly  agrees  to  pay  rent  remains,  not- 
withstanding an  assignment  with  the 
landlord's  consent,  since  there  is  no 
privity  of  contract  between  the 'landlord 
and  the  assignee,  and  he  is  a  surety  for 
the  assignee's  payment  of  rent;  the  term 
"express  agreement"  meaning,  not  merely 
a  promise  in  exact  words  to  pay  a  given 
sum  as  rental,  but  language  necessarily 
importing  the  lessee's  undertaking  to  pay 
the  rent.  Samuels  v.  Ottinger  (Cal.) 
1916E-830.  (Annotated.) 

22.  Under  a  lease  for  the  term  of  ten 
years  at  a  monthly  rental  payable  in  ad- 
vance, providing  that  the  lessee  shall  pay 
all  bills  for  water,  gas,  and  electricity 
and  all  taxes  on  improvements,  and  re- 
quiring the  lessee  to  insure  for  the  joint 
benefit  of  himself  and  the  lessor  to  secure 
payment  of  rent;  that  improvements  shall 
be  security  for  rent,  that  the  lessee  hold- 
ing over  shall  be  a  tenant  from  month  to 
month  paying  rent  as  under  the  lease  and 
with  the  right  to  sublease,  there  is  a  con- 
tract or  covenant  to  pay  a  stipulated 
rental  from  the  obligation  of  which  the 
lessee  is  not  released  by  his  assignment, 
so  that  he  is  liable  for  the  rent  with  in- 
terest from  the  day  it  fell  due.  Samuels 
v.  Ottinger  (Cal.)  1916E-830. 

(Annotated.) 

23.  If  a  lessor,  with  knowledge  of  a 
breach  by  the  lessee  of  the  restriction 
against  assignment  of  the  lease,  permits 
the  assignee  to  remain  in  possession  of 
the  premises  and  accepts  subsequently 
accruing  rents  from  him,  the  breach  is 
waived.  Kanawha-Gauley  Coal,  etc.  Co. 
V.  Sharp   (W.  Va.)   1916E-786. 

24.  Although  a  lessee  assigns  the  lease 
with  the  lessor's  assent,  he  nevertheless 
remains  liable  on  his  express  covenant  to 
pay  rent,  notwithstanding  rent  is  accepted 
from  the  assignee,  unless  the  lessor  ex- 
pressly agrees  to  release  him  and  substi- 
tute the  new  tenant  in  his  stead.  Kana- 
wha-Gauley Coal,  etc.  Co.  v.  Sharp  (W. 
Va.)   1916E-7S6.  (Annotated.) 

25.  "Where  a  lease  was  assigned  without 
the  consent  of  the  lessor,  in  violation  of  a 
covenant  therein,  but  the  lessor,  with 
knowledge  of  the  assignment,  thereafter 
received  rents  due  from  the  lessee  for 
several  months,  and  until  it  elected  to  ter- 
minate the  lease  by  giving  notice  accord- 
ing to  its  terms,  and  made  no  objection 
to  the  subletting  or  assignment,  the  cove- 
nant was  waived.  McGhee  v.  Cox  (Va.) 
1916E-842. 

26.  Since  a  covenant  against  assignment 
of  a  lease  without  the  lessor's  consent  is 


LANDLORD  AND  TENANT. 


501 


for  the  sole  benefit  of  the  lessor  and  his 
assigns,  a  breach  of  the  restriction  by  the 
lessee  is  not  available  to  an  assignee  of 
the  lease  in  defense  to  an  action  for  rent. 
McGhee  v.  Cox   (Va.)    1916E-842. 

(Annotated.) 

27.  While  the  mortgagee  of  a  term 
after  foreclosure  is  regarded  as  the  as- 
signee and  is  liable  on  the  real  covenants, 
the  right  to  hold  him  on  such  covenants 
should  be  clearly  established,  since  other- 
wise great  hardship  may  be  imposed  on 
the  mortgagee,  and  this  is  especially  true 
in  a  suit  in  equity,  which  is  the  landlord's 
only  remedy  on  such  covenants  after  the 
assignee  has  gone  out  of  possession. 
Gibbs  T.  Didier  (Md.)   1916E-833. 

(Annotated.) 

28.  Where  a  mortgage  of  a  leasehold 
which  required  the  lessee  to  pay  taxes 
left  the  title  in  the  mortgagor  until  de- 
fault, and  there  was  no  default  until  the 
taxes  for  a  certain  year  became  legally 
payable,  the  landlord  cannot  hold  the 
mortgagee,  as  assignee  of  the  lease,  for 
those  taxes.  Gibbs  v.  Didier  (Md.) 
1916E-833.  (Annotated.) 

29.  The  owner  of  a  building  leased  same 
to  a  corporation  for  a  period  of  three 
years  at  a  stipulated  rental  of  $75  per 
month.  The  lessee,  after  the  expiration 
of  about  one  year,  by  parol  agreement,  as- 
signed the  lease.  The  assignee  took 
possession  of  the  demised  premises,  paid 
the  purchase  price  for  the  lease,  and  per- 
formed the  covenants  thereof  by  paying 
for  a  time  the  monthly  rentals  to  the 
lessor,  as  provided  in  the  lease  contract; 
but,  before  the  expiration  of  the  lease,  the 
assignee  abandoned  the  premises  and  re- 
fused to  pay  the  rents  for  the  unexpired 
term.  Held,  that  the  assignment  of  the 
lease  was  in  violation  of  the  statute  of 
frauds,  and  void  (section  1089,  Comp. 
Laws  Okla.  1909),  but  that  the  acts  of 
the  assignee  relieved  it  from  the  opera- 
tion of  the  statute,  and  that  the  assignee 
was  liable  to  the  lessor  for  the  full  term 
of  the  lease.  Tyler  Commercial  College  v. 
Stapleton   (Okla.)    1916E-837. 

(Annotated.) 

30.  The  assignee  of  a  lease  is  liable  to 
the  lessor  by  reason  of  privity  of  estate 
for  rents  on  the  demised  premises,  so 
long  as  the  privity  of  estate  continues. 
Tvler  Commercial  College  v.  Stapleton 
(Okla.)   1916E-837.  (Annotated.) 

31.  An  assignee  cannot,  by  mere  aban- 
donment of  possession  of  the  premises, 
without  an  assignment  of  the  lease,  avoid 
liability  for  rents.  Tyler  Commercial 
CoUege  v.  Stapleton    (Okla.)    1916E-837. 

(Annotated.) 
Note, 

Effect  of  assignment  of  lease  or  sub- 
lease bv  tenant  on  liability  for  rent. 
1916E-788. 


5.    RENT. 

a.     Rights  and  Liabilities  in  General. 

31i.  Transfer  of  Eeversion  —  Right  to 
Bent.  Transfer  of  the  reversion  will  not 
carry  rents  already  accrued.  Barber  v. 
Watch  Hill  Fire  District  (E.  L)  1916D- 
191-  (Annotated.) 

32.  Implied  Contract  to  Pay  Rent.     An 

obligation  to  pay  rent,  without  an  express 
agreement  thereto,  arises  from  the  mere 
occupancy  of  the  premises  as  tenant. 
Samuels  v.  Ottinger  (Cal.)  1916E-830. 

Note. 
Person  to  whom  rent  is  payable,  in  ab- 
sence of  governing  statute,  in  case  of  sale, 
mortgage    or    other    grant    of    reversion. 
1916D-192. 

b.     Determination   of  Amount. 

33.  Effect  of  Eviction  of  Tenant. 
Where,  at  the  suit  of  the  landlord,  the 
tenant  was  evicted,  and  a  receiver,  ap- 
pointed by  the  court,  took  possession  of 
the  premises,  the  tenant's  liability  for 
rent  then  ceased,  and  the  landlord  can,  on 
foreclosure  of  a  chattel  mortgage  to 
secure  the  rent,  recover  only  that  already 
accrued.  Northern  Brewery  Co.  v.  Prin- 
cess Hotel  (Ore.)  1917C-621. 

34.  Effect  of  Re-entry  by  Lessor — Rents 
Subsequently  Accruing.  Under  Md.  Code 
Pub.  Civ.  Laws,  art.  75,  §  73,  providing 
that  where  there  is  one-half  year's  rent  in 
arrears  and  the  lessor  has  the  right  to 
re-enter  for  the  nonpayment  he  may, 
without  formal  demand  or  re-entry,  serve 
a  copy  of  a  declaration  in  ejectment  for 
the  recovery  of  the  premises,  the  landlord 
cannot,  in  an  action  thereunder,  recover 
as  rent  instalments  falling  due  after  the 
copy  of  the  declaration  was  served,  but 
the  right  to  the  rent  and  taxes  due  prior 
to  that  time  is  not  extinguished  by  the 
action.    Gibbs  v.  Didier  (Md.)  1916E-833. 

c.  Exemptions  from  Seizure. 

3.5.  Exemptions  —  What  Constitutes 
"Tool  or  Instrument" — Wagon.  A  wagon 
used  by  a  teamster  in  making  his  living 
is  a  "tool  or  instrument,"  exempt  from 
seizure  for  rent,  under  article  2705  of  the 
La.  Civil  Code.  Schwartz  v.  Dennis  (La.) 
1917D-94.  (Annotated.) 

d.     Actions. 

(1)     Right  to  Maintain. 

36.  Understanding  That  Compensation 
is  Expected.  Where  plaintiff,  suing  for 
the  rent  of  a  fence  on  his  land  by  the 
defendant  for  advertising  purposes,  had 
made  no  contract  or  such  use  with  the 
defendant  who  immediately,  upon  notice 
that  he  would  be  charged  compensation, 
ceased  to  make  use  of  the  fence,  plaintiff 


502 


DIGEST. 

1916C— 1918B. 


cannot  recover,  since,  to  maintain  assump- 
sit for  the  use  and  occupation  of  land, 
something  in  the  nature  of  a  demise  must 
be  shown,  or  some  evidence  establishing 
the  relation  of  landlord  and  tenant,  which 
can  only  spring  from  agreement,  express 
or  implied.  Stevenson  v.  Donnelly  (Mass.) 
1917E-932. 

(2)  Defenses. 

37.  Mortgage  of  Beversion  —  Bight  to 
Bent.  A  tenant  of  the  mortgagor  under 
a  lease  executed  subsequently  to  the 
mortgage,  upon  which  mortgage  default 
has  been  made,  by  attornment  and  pay- 
ment of  the  rent  accruing  subsequently 
to  the  mortgagee,  disentitles  the  mort- 
gagor from  recovering  such  rent  from  the 
tenant.    Hinck  v.  Cohn  (N.  J.)  1916D-200. 

38.  Failure  to  Bepair.  A  lessor's  cove- 
nant to  repair  and  the  lessee's  covenant 
to  pay  rent  are  usually  considered  as  in- 
dependent covenants,  and  unless  the  cove- 
nant to  repair  is  expressly  or  impliedly 
made  a  condition  precedent  to  the  cove- 
nant to  pay  rent,  the  breach  of  the  lessor's 
covenant  does  not  justify  the  nonpayment 
of  rent.  Arnold  v.  Krigbaum  (Cal.) 
1916D-370. 

39.  Disturbance  of  Possessiom.  Plain- 
tiffs, being  lessees  of  a  quarry  on  a  rail- 
road right  of  way,  assigned  the  same  to 
defendants,  and  shortly  thereafter  the 
railroad  company  refused  to  permit  fur- 
ther operations,  unless  defendants  paid 
the  wages  of  a  watchman  while  work  was 
being  done  in  the  quarry.  This  defend- 
ants refused  to  do,  and  thereupon  ceased 
operating  the  quarry,  and  alleged  such 
fact  as  a  breach  of  plaintiffs'  contract  in 
defense  of  an  action  for  rent.  Held,  that 
defendant's  rights  as  to  the  operation  of 
the  quarry  with  or  without  a  watchman 
depended  on  the  construction  of  the  writ- 
ten contract  between  plaintiffs  and  the 
railroad  company,  and  not  on  the  conten- 
tion of  either  party  with  reference  there- 
to, and  hence  the  railroad  company's  claim 
constituted  no  defense  to  defendant's 
liability  for  rent.  McGhee  v.  Cox  (Va.) 
1916E-842. 

(3)  Evidence. 

40.  In  a  suit  for  rent  where  the  defend- 
ant in  his  specification  of  defenses  set  up 
that  there  was  no  such  person  as  the  al- 
leged plaintiff  in  the  suit,  the  evidence  is 
held  not  to  justify  a  finding  that  the 
plaintiff  was  a  fictitious  person.  Baldauf 
V.  Nathan  Russell  (N.  J.)  1917D-1191. 

(Annotated.) 

6.     TERMINATION"  OF  LEASE. 

a.    Eviction. 

(1)     Remedy  of  Tenant. 

41.  Bights  of  Transferee  of  Beversion — 
Entry  for  Nonpayment  of  Bent.     A  pur- 


chaser of  the  reversion  is  liable  for  tres- 
pass in  removing  the  property  of  a  tenant 
for  the  nonpayment  of  rent  accruing  be- 
fore the  transfer.  Barber  v.  "Watch  Hill 
Fire  District  (R.  I.)  1916D-191. 

Note. 
Right  of  tenant  to  recover  damages  in 
case     of     eviction     by     title     paramount. 
I916D-1147. 

(2)     Damages. 

42.  Damages — Refusal  to  Permit  Tenant 
to  Occupy  —  Loss  of  Profits.  Loss  of 
profits,  when  they  can  be  ascertained,  is 
a  proper  measure  of  damages  for  wrong- 
fully refusing  to  permit  a  tenant  to  oc- 
cupy the  premises  covered  by  a  lease. 
O'Neal  v.  Bainbridge   (Kan.)   1917B-293. 

43.  Eviction  by  Title  Paramount — Dam- 
ages. Where  a  lessor  understood,  at  the 
time  of  the  making  of  the  lease,  the  use 
which  the  lessee  intended  to  make  of  the 
premises,  and  knew  that  alterations  and 
repairs  were  made  in  pursuance  of  that 
understanding,  the  lessor  is  liable  to  the 
lessee,  evicted  by  a  third  person  having 
superior  title,  for  the  necessary  expenses 
incurred  in  making  the  alterations  and  re- 
pairs. "Wolf  V.  Megantz  (Mich.)  1916D- 
1146.  (Annotated.) 

b.     Surrender  of  Premises, 

44.  Termination  by  Consent.  The  can- 
cellation of  a  lease,  by  act  of  the  parties, 
must  have  the  consent  of  both  lessor  and 
lessee.  O'Neal  v.  Bainbridge  (Kan.) 
1917B-293. 

e.    Option  to  Terminate. 

45.  "Written  notice,  on  which  a  lease 
provides  that  the  lessee  may  terminate  it, 
is  waived,  where  the  lessee  gives  oral 
notice,  and  the  lessor  does  not  object 
thereto,  and  by  his  words  and  conduct 
leads  the  lessee  reasonably  to  believe  the 
informality  is  waived.  Citizens'  Bank 
Bldg.  V.  L.  &  E.  "Wertheimer  (Ark.) 
1917E-520.  (Annotated.) 

46.  Construction.  Under  a  lease  for  a 
saloon  providing  that  if  prohibition  be 
established,  the  lessee  may  at  his  option 
terminate  it,  petition  of  adult  inhabitants 
for  issuance  of  license  being  filed  on  the 
day  the  statute  became  operative,  notice 
of  termination  given  within  ten  days  af- 
ter withdrawal  of  the  petition  is  in  a  rea- 
sonable time.  Citizens'  Bank  Bldg.  v.  L. 
&  E.  "Wertheimer  (Ark.)  1917E-520. 

(Annotated.) 

d.     Notice    to    Quit    for   Nonpayment    of 
Rent. 

47.  Notice  to  Quit  —  Sufficiency,  A 
notice  to  a  tenant  to  pay  rent  overdue  or 
surrender  possession,  under  Cal.  Code  Civ. 


LAPSING  OF  LEGACIES— LARCENY. 


503 


Proc.  §  1161,  signed  by  tlie  lessor's  "attor- 
ney," is  not  insufficient  because  of  its 
failure  to  show  whether  the  person  sign- 
ing it  is  the  lessor's  attorney  at  law,  or 
her  attorney  in  fact.  Arnold  v.  Krig- 
baum    (Cal.)    1916D-370. 

e.     Destruction  of  Building. 

48.  Whether  or  not  a  building  has  been 
totally  destroyed  is  ordinarily  a  question 
of  fact  for  the  jury.  O'Neal  v.  Bain- 
bridge  (Kan.)  1917B-293. 

Note. 

Right  to  interpose  set-off  or  counter- 
claim in  action  by  landlord  to  recover 
demised  premises.    1916D-372. 

7.     EENBWAL  OF  LEASE. 

49.  Holding  Over  —  Benewal  of  Cove- 
nants. "Where  a  lessee  for  years  holds 
over  after  the  expiration  of  his  term,  and 
becomes  a  tenant  from  year  to  year,  the 
tenancy  is  subject  to  all  the  covenants 
and  stipulations  contained  in  the  original 
lease,  so  far  as  they  are  applicable  to  the 
new  condition  of  things.  Barber  v.  Watch 
Hill  Fire  District  (R.  I.)  1916D-191. 

50.  Covenant  for  Perpetual  Benewal  of 
Lease.  Covenants  in  a  lease  for  continual 
renewals,  while  not  favored,  because  tend- 
ing to  create  a  perpetuity,  are  valid  and 
enforceable  if  explicit  and  clear.  Burns 
V.  New  York  (N.  Y.)  1916C-1093. 

(Annotated.) 

51.  A  covenant  in  a  lease  by  a  city  for 
21  years  to  renew  it  at  its  expiration  for 
21  years,  "with  a  like  covenant  for  future 
renewals  of  the  lease  as  is  contained  in 
this  indenture,"  is  one  for  future  renewals 
in  perpetuity.  Burns  v.  New  York 
(N.  Y.)  1916C-1093.  (Annotated.) 

52.  Four  renewals  of  a  lease  for  21 
years  are  a  practical  construction  of  a 
covenant  of  the  original  lease,  to  be  given 
great  weight  by  a  court,  as  one  for  future 
renewals  in  perpetuity.  Burns  v.  New 
York  (N.  Y.)  1916C-1093.        (Annotated.) 

Note. 

Construction  of  covenant  in  lease  for 
renewal  as  covenant  for  perpetual  re- 
newal.    1916C-1096. 


8.     ESTOPPEL    OF  LESSEE   TO   DENY 
LESSOR'S   TITLE. 

53.  Right  to  Crops.  Where  on  a  con- 
veyance of  leased  land  the  landlord's  in- 
terest in  a  growing  crop  is  reserved,  the 
rule  that  a  tenant  cannot  deny  his  land- 
lord's title  does  not  prevent  the  tenant 
from  defending  an  action  by  the  grantee 
for  the  value  of  such  crop  on  the  ground 
that  it  has  been  delivered  to  the  grantor. 
Willard  v.  Higdon   (Md.)    1916C-339. 


Note. 
Necessity    that    tenant    surrender    pos- 
session  before   asserting  title  adverse   to 
landlord.     1917D-548. 

LAPSING  OF  UIGACIES. 

See  Wills,  249,  250. 

LAECENT. 

1.  Subjects  of  Larceny,  503, 

2.  Prosecutions,  503. 

a.  Indictment,  503. 

b.  Evidence,  503. 

c.  Variance,  504. 

d.  Questions  for  Jury,  504. 

1.     SUBJECTS  OF  LARCENY. 

1.  Animals  ferae  naturae,  while  they 
are  reclaimed,  are  the  subject  of  larceny. 
Graves  v.  Dunlap  (Wash.)  1917B-944. 

(Annotated.) 

2.    PROSECUTIONS, 
a.     Indictment. 

2.  Duplicity.  A  count  of  an  indictment 
charging  that  defendant,  "at  the  time  and 
place  named,  nineteen  head  of  calves,  of 
the  goods,  chattels,  and  property  of 
owners  to  the  grand  jury  unknown,  then 
and  there  being  found,  did  then  and  there 
unlawfully,  etc.,  steal,  take,"  etc.,  is  not 
bad  for  duplicity,  as  it  prima  facie  dis- 
closes that  the  larceny  occurred  at  the 
same  time  and  place,  and  constituted  but 
a  single  transaction.  State  v.  Klasner 
(N.  Mex.)    1917D-824. 

3.  Indictment  Sufficient.  An  indictment 
charging  that  defendant  and  others  did 
unlawfully  and  feloniously  take,  steal, 
and  carry  away,  of  the  personal  goods 
and  chattels  of  a  railroad  company,  bailee, 
4,500  pounds  of  clover  seed,  of  the  aggre- 
gate value  of  $600,  sufficiently  charges 
grand  larcpny.  Levi  v.  State  (Ind.) 
1917A-654. 

b.    Evidence. 

4.  In  a  prosecution  against  an  employee 
for  larceny  of  his  employer's  corn,  evi- 
dence that  the  employee  was  trusted  with 
property  of  his  employer  is  outside  the 
issues.  State  v.  Pitt  (N.  Car.)  1916C- 
422. 

5.  An  exception  to  a  charge  that  an  in- 
tent to  steal  may  be  inferred  from  the 
larceny  alone  as  being  improper  under  the 
circumstances  of  the  case  is  not  sufficient 
to  direct  the  court's  attention  to  a  com- 
plaint that  the  court  charged  that  the 
only  way  the  intent  can  be  determined  is 
from  the  surrounding  circumstances,  thus 
excluding  from  consideration  the  defend- 
ant's testimony  concerning  his  intent. 
State  v.  Lapoint  (Vt.)  1916C-318. 


501 


DIGEST. 

1916C— 1918B. 


c.     Variance. 


LAW. 


6.  Owner  of  Property  Alleged  to  be  XTn- 
known.  Where,  upon  the  trial,  witnesses 
testify  that  certain  known  parties  owned 
the  alleged  stolen  animals,  and  the  indict- 
ment charges  that  the  owners  of  the  ani- 
mals are  unknown  to  the  grand  jury,  it  is 
incumbent  upon  the  state  to  prove  that 
the  names  of  the  owners  were  unknown 
to  the  grand  jury  and  could  not,  by  rea- 
sonable diligence,  have  been  ascertained. 
State  V.  Klasner  (N.  Mex.)   1917D-824. 

7.  Materiality.  Although  proof  of 
ownership  of  a  stolen  cow  in  A.  B.,  Jr., 
is  deemed  a  variance  from  an  indictment 
alleging  ownership  in  A.  B.,  it  is  not 
ground  for  reversal  under  Wyo.  Comp.  St. 
1910,  §  6166,  prohibiting  acquittal  on  the 
ground  of  variance  unless  material.  Har- 
ris V.  State  (Wyo.)   1917A-1201. 

8.  Name  of  Person  Aggrieved  Alleged 
to  be  Unknown.  Where  the  name  of  the 
owner  of  an  alleged  stolen  animal  is  al- 
leged in  the  indictment  to  be  unknown, 
it  is  not  incumbent  upon  the  state  to 
prove,  in  the  first  instance,  affirmatively, 
that  such  fact  was  unknown  to  the  grand 
jury;  but  it  must  show  that  such  name  is 
unknown,  or  prove  such  a  statement  of 
facts  or  circumstances  as  render  the  al- 
leged unknown,  fact  uncertain,  in  which 
event  such  fact  is  presumed  to  have  been 
unknown  to  the  grand  jury.  But  if 
there  is  evidence  tending  to  show  that 
the  grand  jury  did  know,  or  could  by  the 
exercise  of  reasonable  diligence  have 
known  or  ascertained,  the  name  of  the 
true  owner,  or  that  it  was  negligent  or 
perverse  in  not  alleging  what  was  at  its 
command  to  know,  then  the  burden  is 
upon  the  state  to  show  that  the  grand 
jury  did  not  know  such  alleged  unknown 
name.  State  v.  Klasner  (N.  Mex.)  1917D- 
824. 

d.     Questions  for  Jury. 

9.  "Eecent" — ^Meaning  of  Term.  Where 
pieces  of  cloth  and  several  pairs  of 
trousers  were  stolen  from  a  tailor  shop, 
the  question  whether  their  possession  by 
the  defendant  over  a  month  later  was  so 
recent  as  to  justify  an  inference  of  guilt 
was  for  the  jury.  State  v.  Stanton 
(Iowa)  1918A-813.  (Annotated.) 

LARD. 
Begnlating  sale  of,  see  Food,  14-17. 

LAST  CLEAB  CHANCE. 

See  Negligence,  46.  47. 

Instruction     not    following    doctrine,     see 

Negligence,  121. 
In    street    railway    accidents,    see    Street 

Eailwa3rs,  27-32. 

LATERAL  SUPPORT. 
See  Adjoining  Landowners,  1,  9-11. 


Constitution  is  a  law,  see  Constitutional 
Law,   2. 

Ordinance  as  law,  see  Municipal  Corpora- 
tions, 49,  51,  52. 

LAWFUL  ACT   DONE   WITH  MALICE. 
Liability  for,  see  Torts,  4,  9. 

LAWFUL  HEIRS. 

Meaning,  see  Wills,  184,  188. 

LAW  OF  OVERRULING-  NECESSITY. 
Police  power,  see  Constitutional  Law,  25. 

LAW  OF  THE  CASE. 
See  Appeal  and  Error,  478-480. 

LAW  OF  THE  ROAD. 

See  Automobiles,  15;  Streets  and  High- 
ways, 17,  18. 


See  Statutes. 


LAWS. 


LAWYERS. 


See  Attorneys. 

LEADING  QUESTIONS. 

On    examination     of     witness,     see    Wit- 
nesses, 50-54. 

LEASES. 

See  Landlord  and  Tenant,  2-7. 
Assignments  of  leases,  see  Landlord  and 
Tenant,  21-31. 


See  Wills. 


Bee  Wills. 


LEGACIES. 


LEGATEE. 


LEGISLATURE. 


See    Investigating     Committees;     States; 

Statutes;  Territories. 
Legislative     powers,     see     Constitutional 

Law,  6-9. 
Eeasonableness    for    legislature,   see   Con- 
stitutional Law,  21. 
Wisdom     of     legislation     no     concern     of 

courts,   see  Constitutional  Law,    157- 

167. 
Proposal    of    constitutional    amendments, 

see  Constitutional  Law,  184. 
Defamation   of  legislature,  see   Contempt, 

7. 
Judicial  notice  of  journals,  see  Evidence, 

3-5. 
Power  to  regulate  food,  see  Food,  2. 
Exemption    from    service    of    process,    see 

Process,  4,  5. 
Power  over  officers,  see  Public  Officers,  9. 
Delegation  of  powers,  see  Public  Service 

Commissions,  19,  20. 


LESSOR  AND  LESSEE— LIBEL  AND  SLANDER. 


505 


Control  of  schools,  see  Schools,  1. 

Power  over  realty  titles,  see  States,  1. 

Sufficiency  of  title  of  statute,  see  Stat- 
utes, 6. 

Definitions  of  legislature  adhered  to,  sea 
Statutes,  63-65. 

1.  Scope  of  Legislative  Power.  The 
Legislature  is  intrusted  with  the  general 
power  to  make  laws  at  its  discretion,  and 
is  not  a  special  agency  for  the  exercise  of 
specifically  defined  legislative  powers. 
Gherna  v.  State   (Ariz.)    1916D-94. 

2.  Power  of  Legislature  Generally.  The 
legislature  has  plenary  power  in  all  mat- 
ters of  legislation,  except  as  limited  by 
the  constitution.  Idaho  Power,  etc.  Co.  T. 
Blomquist  (Idaho)  1916E-282. 

LESSOB  AND  LESSEE. 
See  Landlord  and  Tenant. 

LETTERS. 

As  evidence,  see  Evidence,  46-47,  101,  102. 

Presumptions  as  to,  see  Evidence,  135, 
136,  145i. 

As  evidence  in  action  for  criminal  con- 
versation, see  Husband  and  Wife,  65. 

LEVY. 

See  Attachment,  5. 

LEVY  AND  SEIZUBE. 
See  Execution. 

LEWDNESS. 
See  Disorderly  Hquscs;  Prostitution. 

LIABILITIES. 
Meaning,  see  Sales,  14. 

LIABILITY. 

Notice  a  prerequisite,  when,  see  Notice, 
1. 

LIABILITY  INSURANCE. 
See  Insurance,  40-43. 

LIBEL  AND  SLANDER. 

1.  Nature  and  Elements,  506. 

a.  In  General,  506. 

b.  Publication,  506. 

c.  Malice,  506. 

d.  Damages,  506. 

2.  Words    Constituting   Libel    or    Slander, 

507. 

a.  In  General,  507. 

b.  Construction  of  Words,  507. 

c.  Charging  Commission  of  Crime,  507. 

d.  Holding   up   to   Ridicule   and   Con- 

tempt, 508. 

e.  Affecting   Trade,   Business   or  Pro- 

fession,  508. 
£.  Political  Criticism,  508. 


g.  Defaming  a  Dead  Person,  509. 

h.  Imputing  Unchastity  to  Male,  509. 

3.  Privileged  Communications,  509. 

a.  In   General,  509. 

b.  In    Respect    to    Judicial    Proceed- 

ings, 509. 
e.  Concerning    Candidate    for    Office, 
510. 

d.  Communication     by     One     Owing 

Duty  to  Another,  510. 

e.  Communications    Between    Mercan- 

tile Agency  and  Subscriber,  511. 

f.  Loss  of  Privilege,  511. 

g.  Communications  Between  Husband 

and  Wife,  511. 
h.  Communications     by     Creditor     to 

Debtor,   511. 
L  Application    to    Public    Officer    or 

Body,  511. 
j.  Matters  of  Public  Interest,  512. 
k.  Character  of  Servant  or  Employee, 

512. 

4.  Actions,  512. 

a.  Who  may  Maintain,  512. 

b.  Persons  Liable,  512. 

(1)  In  General,  512. 

(2)  Joint  Liability,  513. 

c.  Defenses,  513. 

d.  Pleading,  513. 

(1)  Complaint  of  Declaration,  513. 

(2)  Plea  or  Answer,  515. 

(3)  Issues,    Proof   and    "Variance, 

515. 

e.  Trial,  515. 

f.  Evidence,  516. 

(1)  Presumptions  and  Burden  of 

Proof,   516. 

(2)  Admissibility     of     Evidence, 

516. 

(3)  Sufficiency  of  Evidence,  517. 

g.  Province  of  Court  and  Jury,  517. 
h.  Instructions,  518. 

i.  Damages,  519. 
j.  Appeal  and  Error,  519. 

5.  Criminal  Liability,  519. 

a.  Actionable  Words,  519. 

b.  Indictment,  520. 

6.  Slander  of  Title.  520. 

In  admiralty  proceedings,  see  Admiralty. 

Error  in  opening  statement,  see  Argu- 
ment and  Conduct  of  Counsel,  4,  9. 

Disbarment  for  slander  of  court,  see  At- 
torneys, 58,  59. 

Liberty  of  speech,  see  Constitutional  Law, 
82-84. 

Liability  of  corporation  for  slander,  see 
Corporations,  26,  27. 

Excessiveness  of  damages,  see  Damages, 
■       41-42. 

Prevention  of  publication,  see  Injunc- 
tions, 8,  9. 

When  cause  of  action  accrues,  see  Limita- 
tion of  Actions,  27. 

Amendment  stating  new  cause  of  action, 
see  Limitation  of  Actions,  39,  41,  42. 

Communication  by  caption  to  colonel  as 
privileged,  see  Militia,  4. 

New  trial  for  newly  discovered  evidence 
of  privilege,  see  New  Trial,  19. 


506 


DIGEST. 

1916C— 1918B. 


1.    NATUEE   AND   ELEMENTS. 

a.  In  General. 

1.  Liberty  of  Speech  —  Criminal  Libel 
Statute.  Rem.  &  Bal.  Wash.  Code,  §  2424, 
is  not  violative  of  Const.  U.  S.  Amend.  1, 
providing  that  Congress  shall  make  no 
law,  abridging  the  freedom  of  speech  or 
of  the  press,  which  imposes  a  limitation 
upon  the  power  of  Congress  only.  State 
V.  Haffer  (Wash.)  1917E-229. 

2.  Bern.  &  Bal.  Wash.  Code,  §  2424,  does 
•not  violate  Const,  art.  1,  §  5,  providing 
that  every  person  may  freely  speak,  write, 
and  publish  on  all  subjects,  being  respon- 
sible for  the  abuse  of  that  right.  State  v, 
Haflfer  (Wash.)  1917E-229. 

3.  Libel  or  Slander  of  Corporation. 
The  distinction  between  libel  and  slander 
obtains  as  fully  with  respect  to  corpora- 
tions as  to  individuals.  Axton  Fisher 
Tobacco  Co.  v.  Evening  Post  Co.  (Ky.) 
1918B-560. 

4.  Defamatory  Words  —  Language  not 
Imputing  Crime.  A  libel,  as  applicable  to 
individuals,  is  a  malicious  publication,  ex- 
pressed either  in  printing  or  writing,  or 
by  signs  or  pictures,  tending  either  to 
blacken  the  memory  of  one  dead  or  the 
reputation  of  one  alive,  and  to  expose 
him  to  public  hatred,  contempt,  or  ridi- 
cule; any  written  slander,  though  merely 
tending  to  render  the  party  liable  to  dis- 
grace, ridicule,  or  contempt,  being  suflS- 
cient  to  constitute  a  libel  though  it  does 
not  impute  any  definite  infamous  crime. 
Brown  v.  Elm  City  Lumber  Co.  (N.  Car.) 
1916E-631. 

Note. 
Newspaper  cartoon  as  libel.  1917E-190. 

b.  Publication. 

5.  Every  repetition  of  a  slander,  or  the 
publication  thereof  by  a  newspaper,  is  a 
republication,  rendering  each  person  so 
repeating  or  republishing  liable,  as  well 
as  the  ftiitial  one.  Age-Herald  Publishing 
Co.  V.  Waterman  (Ala.)   1916E-900. 

6.  Dictation  to  Stenographer.  The  dic- 
tation of  a  letter  to  a  stenographer  em- 
ployed by  a  person  or  corporation  in  its 
business  is  not  a  sufficient  publication  of 
matters  therein  alleged  to  be  libelous  per 
se,  in  the  absence  of  any  repetition  by  the 
person  or  stenographer  to  other  persons. 
Cartwright-Caps  Co.  v.  Fischel  (Miss.) 
1917E-9S5,  (Annotated.) 

7.  What  Constitutes.  Where  complain- 
ant sought  to  collect  a  claim  through  a 
firm  of  attorneys  against  defendant,  the 
sending  of  a  letter  containing  an  alleged 
libel  by  defendant  to  complainant's  attor- 
neys constituted  a  sufficient  publication. 
Brown  v.  Elm  City  Lumber  Co.  (N.  Car.) 
1916E-631. 


Notes. 

Publication  of  libel  by  communication 
to  stenographer.     1917E-987. 

Liability  of  author  of  libel  or  slander 
for  repetition  or  republication  by  others. 
1916E-908. 

e.    Malice. 

8.  Malice  as  Essential  to  Libel.  Malice 
is  not  an  essential  element  of  civil  libel, 
as  the  civil  action  for  libel  is  an  action 
for  damages  in  which  compensatory  dam- 
ages only  are  recoverable,  which  would 
be  the  same,  regardless  of  the  motive  of 
the  publication.  Wilson  v.  Sun  Pub.  Co. 
(Wash.)   1917B-442. 

9.  In  a  civil  action  for  libel,  malice  is 
material  only  on  the  question  of  punitive 
or  exemplary  damages.  Wilson  v.  Sun 
Pub.  Co.  (Wash.)   1917B-442. 

10.  False  Statement  to  Defeat  Candi- 
date. A  slanderous  charge  which  injured 
the  professional  reputation  of  a  candidate 
for  office  may  be  made  with  actual  malice 
which  implies  a  desire  and  intention  to 
injure,  although  defendant's  only  desire 
was  to  defeat  the  candidacy.  Pattangall 
V.  Mooers  (Me.)  1917D-689. 

11.  What  Constitutes  Malice.  "Malice" 
in  fact,  which  destroys  the  defense  of 
privileges,  means  that  the  defamatory 
words,  though  spoken  on  a  privileged  oc- 
casion, were  not  spoken  pursuant  to  the 
right  and  duty  which  created  the  privi- 
lege, but  from  some  other  motive;  the 
term  "duty"  in  this  connection  including 
both  legal  and  social  obligations,  which 
cannot  be  performed,  unless  creating  a 
privileged  occasion.  Doane  v.  Grew 
(Mass.)    1917A-338. 

12.  The  "malice"  imputed  to  a  publisher 
of  a  libel  is  not  personal  ill  will,  but 
merely  legal  malice  implied  from  wilfully 
and  wantonly  doing  an  unlawful  act 
which  results  in  injury  to  another.  Flana- 
gan V.  Nicholson  Pub.  Co.  (La.)  1917B- 
402. 

Note. 

Malice  as  essential  element  of  cause  of 
action  for  slander  of  title.    1916D-317. 

d.     Damages. 

13.  Eepetition  by  Others.  The  initial 
slanderer  or  libeler  is  not  responsible,  in 
an  action  of  slander  or  libel,  for  such 
repetitions  and  republications  of  the  libel 
or  slander.  Age-Herald  Publishing  Co.  v. 
Waterman  (Ala.)  1916E-900. 

(Annotated.) 

14.  Loss  of  Election  as  Element  of 
Damage.  Special  damages  cannot  be 
predicated  upon  failure  of  election  to 
office,  as  damages  in  such  connection  are 
necessarily  too  remote  and  speculative  to 


LIBEL  AND  SLANDER. 


507 


justify   serious    consideration.      Taylor   v. 
Moseley  (Ky.)  1918B-1125. 

(Annotated.) 

15.  Special  Damages  for  Libel.  Where 
the  language  of  an  alleged  libel  is  not  ac- 
tionable per  se,  the  plaintiff  can  recover 
only  upon  proof  of  special  damages  which 
are  the  natural,  immediate,  and  legal 
consequence  of  the  charge,  and  due  ex- 
clusively to  its  publication  by  defendant. 
Taylor  t.  Moseley  (Ky.)  1918B-1125. 

2.    WOEDS  CONSTITUTING  LIBEL  OB 
SLANDEH. 

a.     In  General. 

16.  To  render  a  publication  concerning 
a  corporation  "libelous  per  se,"  it  must 
reasonably  and  naturally  appear  that  it 
was  of  a  nature  to  deprive  the  corporation 
of  patronage  or  trade,  or  to  render  it 
odious  and  contemptible  in  the  estimation 
of  those  with  whom  it  did  have  or  might 
reasonably  expect  to  have  business  deal- 
ings, but  it  is  not  necessary  that  the  pub- 
lication misrepresent  the  character  or  con- 
dition of  the  corporation's  marketable 
products,  the  methods  by  which  its  inter- 
nal affairs  are  conducted,  its  capacity,  or 
business  dealings  toward  the  public,  or 
its  products,  its  attitude,  its  business,  or 
its  stability,  so  as  to  affect  its  credit. 
Axton  Fisher  Tobacco  Co.  v.  Evening 
Post  Co.  (Ky.)  1918B-560. 

17.  A  publication,  charging  that  a 
tobacco  company  placed  a  negro  foreman 
over  white  girls,  that  they  quit  work  and 
reported  the  trouble  to  the  union,  was 
libelous  per  se.  Axton  Fisher  Tobacco 
Co.  V.  Evening  Post  Co.  (Ky.)  1918B-560. 

18.  Charge  That  Name  of  Employer  was 
on  "Unfair  List."  A  charge  that,  on  re- 
fusal of  a  toba'cco  company  to  remove  a 
negro  foreman  placed  over  white  girls, 
the  company  was  placed  on  the  unfair  list 
by  the  local  union,  and  this  action  was 
ratified  by  the  tobacco  workers'  inter- 
national union,  and  that  the  advertising 
cards  of  the  company  were  printed  in 
"scab"  shops,  so  as  to  display  its  contempt 
for  organized  labor,  in  connection  with 
matter  of  inducement  that  the  company 
employed  only  union  labor,  that  it  re- 
ceived from  the  union  the  right  to  place 
its  label  on  its  products,  and  had  obli- 
gated itself  to  patrojiize  only  union  shops, 
that  it  dealt  fairly  with  its  employees  and 
had  a  good  reputation  with  organized 
labor  and  wage-earners,  and  innuendo 
that  the  effect  of  these  publications  was 
to  destroy  the  company's  good  reputation 
with  organized  labor  and  the  public,  as 
the  operator  of  a  union  factory,  is  libel- 
ous. Axton  Fisher  Tobacco  Co.  v.  Even- 
ing Post   Co.    (Ky.)    1918B-560. 

(Annotated.) 


19.  Words  Libelous  Per  Se.  If  a  writ- 
ten or  printed  publication  tends  to  de- 
grade a  person,  that  is,  to  reduce  his  char- 
acter or  reputation  in  the  estimation  of 
his  friends  or  acquaintances,  or  the  pub- 
lic, or  to  disgrace  him,  or  to  render  him 
odious,  ridiculous,  or  contemptible,  it  is 
"libelous  per  se,"  though  spoken  words  are 
"slanderous  per  se"  only  if  they  falsely 
impute  the  commission  of  a  crime  involv- 
ing moral  turpitude,  an  infectious  disease, 
or  unfitness  to  perform  duties  of  an  office 
or  employment,  prejudice  him  in  his  pro- 
fession or  trade,  or  tend  to  disinherit  him. 
Axton  Fisher  Tobacco  Co.  v.  Evening 
Post  Co.   (Ky.)    1918B-560. 

20.  In  determining  whether  particular 
words  are  actionable  per  se,  the  same  rule 
does  not  apply  to  libel  as  to  slander. 
Dwyer  v.  Libert  (Idaho)  1918B-973. 

(Annotated.) 

21.  A  written  communication  of  a  char- 
acter conducive  to  blacken  the  reputation 
of  the  person  referred  to,  or  excite  ridi- 
cule or  wrath  against  him,  or  destroy 
public  confidence  in  him,  is  actionable, 
without  proof  of  special  damage.  Dwyer 
V.  Libert  (Idaho)  1918B-973. 

b.     Construction  of  Words. 

22.  Interpretation  of  Language — ^Under- 
standing of  Hearers.  Defamatory  lan- 
guage is  to  be  interpreted  as  it  would  be 
actually  understood  by  the  hearers,  tak- 
ing   into     consideration    the     surrounding 

.  circumstances.       Pattangall      v.      Mooers 
(Me.)    1917D-689. 

23.  Interpretation  of  Defamatory  Lan- 
guage.  Where  a  newspaper  published  an 
article  concerning  plaintiff,  who  was  a 
resident  of  New  Orleans  and  an  inter- 
national vice-president  of  a  labor  union, 
and  who  used  his  influence  at  Washington 
to  assist  San  Francisco  to  obtain  the 
Panama  Fair  as  against  New  Orleans, 
stating  that  he  was  a  traitor  and  a  dan- 
gerous and  suspicious  character  and 
should  be  driven  out  of  town  and  given 
the  cold  shoulder  by  all  self-respecting 
Orleanians,  the  words  must  be  construed 
in  the  connection  in  which  they  were 
used,  and  not  given  the  meaning  they 
ordinarily  possess.  Flanagan  v.  Nichol- 
son Pub.  Co.  (La.)  1917B-402. 

c.     Charging  Commission  of  Crime. 

24.  Actionable  Words  —  Imputation  of 
Crime.  If  words  are  used  imputing  the 
commission  of  a  crime,  they  are  action- 
able per  se,  and  may  be  made  the  basis  of 
recovery  of  general  damages  without 
alleging  and  proving  special  damages. 
Viss  V.  CalUgan  (Wash.)  1918A-819. 

25.  Imputation  of  Forgery  —  Language 
Construed.     To  say  to  an  attorney,  "the 


508 


DIGEST. 

19160— 1918B. 


contract  you  claim  to  have  with  this  man 
was  not  signed  by  him,  and  he  is  here  to 
tell  you,"  is  not  actionable  per  se,  as 
imputing  a  forgery.  Fensky  v.  Mary- 
land Casualty  Co.  (Mo.)   1917D-963. 

Note. 
Sending   anonymous   letter   as   criminal 
offense.     1917C-699. 

d.  Holding  up  to  Eidicule  and  Contempt. 

26.  Charge  of  Hypocrisy  as  Libel.  It  is 
libelous  per  se  to  charge  falsely  that  a 
person  is  a  hypocrite.  Newby  v.  Times- 
Mirror  Company   (Cal.)   1917E-186. 

27.  Charging  Wilful  Falsehood.  A  writ- 
ten publication,  charging  one  with  wilful 
falsehood  in  the  matter  of  a  serious  busi- 
ness transaction,  must  necessarily  expose 
him  to  contempt  and  lower  him  in  the 
common  estimation  of  citizens,  and  is 
therefore  actionable  per  se.  Dwyer  v. 
Libert  (Idaho)  19I8B-973. 

e.  Affecting     Trade,     Business     or     Pro- 

fession. 

28'.  The  publication  of  a  false  report  by 
a  mercantile  agency  to  its  patrons,  to  the 
effect  that  a  company  with  but  $50,000 
capital  had  been  sued  for  $230,000  on  ac- 
count of  "money  advanced,"  can  have  no 
other  result  than  that  of  casting  doubt 
and  suspicion  on  the  financial  standing  of 
such  company,  and  consequently  injuring 
its  business.  Pacific  Packing  Co.  v.  Brad- 
street  Co.  (Idaho)   1916D-761. 

29.  Criticism  of  Condition  of  Bestaur- 
ant.  Under  Rem.  &  Bal.  Wash.  Code, 
§  2424,  defining  libel  against  a  living  per- 
son as  every  publication  by  writing, 
printing,  etc.,  tending  to  expose  him  to 
hatred,  contempt,  or  ridicule,  or  to  de- 
prive him  of  the  benefit  of  public  confi- 
dence, or  to  injure  any  person  or  associa- 
tion in  his  business  or  occupation,  a 
newspaper  publication  charging  that 
plaintiffs'  cafeteria  was  unclean,  unsani- 
tary, and  not  well  ventilated,  that,  if  it 
were  not  for  the  big  rotary  fan  in  the 
kitchen,  nothing  could  live,  not  even  a 
microbe,  that  its  tables,  floors,  etc.,  were 
damp  and  covered  with  food  scraps,  tluit 
its  ice  box  and  fish  box  were  old,  satur- 
ated wooden  traps  filled  with  a  general 
mixture  of  eatables,  tends  to  injure  the 
plaintiffs  in  their  partnership  business 
by  implying  that  their  cafe  was  an  un- 
wholesome place  and  unfit  for  public 
patronage  and  is  libelous  per  se.  Wilson 
V.  Sun  Pub.  Co.  (Wash.)  1917B-442. 

30.  Imputation  of  Fraudulent  Dealing. 
A  complaint  in  an  action  for  libel 
against  a  newspaper,  alleged  that  defend- 
ant, in  purporting  to  report  the  proceed- 
ings had  before  the  referee  in  bankruptcy 
in  the  matter  of  the  bankruptcy  of 
Knight,    Yancey    &    Co.,    which    company 


was  reported  to  have  issued  and  disposed 
of  spurious  bills  of  lading  for  cotton, 
stated  that  a  witness  testified  that  Mr. 
Knight  intimated  that  others  knew  of  the 
fake  bills  of  lading,  that  the  witness 
"was  closely  questioned  as  to  a  loan  of 
$5,000  made  to  a  Mr.  Waterman  [plain- 
tiff], agent  for  a  Mobile  steamship  line. 
It  developed  that  the  general  belief  is 
that  Waterman  is  abroad  and  does  not 
intend  to  return,"  and  that  "the  informa- 
tion disclosed  that  several  large  ship- 
ments of  cotton  had  been  made  by  the 
way  of  /  the  line  represented  by  Water- 
man. It  is  also  brought  to  light  that 
several  spurious  bills  of  lading  are  held 
upon  which  cotton  was  supposed  to  have 
been  routed  via  the  lines  represented  by 
Waterman" — and  alleged  that  the  article 
implying  that  plaintiff  was  a  fugfitive, 
etc.,  was  false,  etc.,  that  it  was  given 
wide  circulation,  and  plaintiff  was  greatly 
damaged  in  his  business  as  shipping 
agent,  and  deprived  of  the  opportunity  of 
completing  profitable  and  honorable  busi- 
ness connections  with  the  organization  of 
a  steamship  company,  etc.  Held,  that  the 
complaint  stated  a  cause  of  action  for 
libel.  Age-Herald  Publishing  Co.  v. 
Waterman    (Ala.)    1916E-900. 

31.  Charge  of  Unfair  Treatment  of 
Labor.  A  publication,  charging  that  a 
tobacco  company  paid  an  average  wage 
less  than  its  competitors,  required  its 
employees  to  work  a  greater  number  of 
hours  per  day,  and  that  the  sanitary  con- 
ditions of  its  rivals  were  better  than  those 
of  the  company,  is  not  libelous  per  se. 
Axton  Fi.sher  Tobacco  Co.  v.  Evening  Post 
Co.   (Ky.)    1918B-560. 

32.  Prejudice  to  Attorney  in  Profession. 
Slanderous  words  directly  tending  to  the 
prejudice  of  one  in  his  profession  are  ac- 
tionable per  se,  though  not  applied 
directly  by  the  speaker  to  the  party's 
profession;  hence  a  slanderous  charge 
that  an  attorney  who  was  seeking  politi- 
cal preferment,  and  who  had  represented 
and  opposed  measures  pending  before  the 
legislature,  received  a  sum  of  money  from 
the  supporters  of  a  measure  to  procure 
its  passage,  and  thereafter  received  a 
sum  of  money  from  the  opponents  to  de- 
feat its  passage,  and  did  so,  is  slanderous 
per  se,  tending  directly  to  destroy  all 
confidence  in  him  as  an  attornev.  Pat- 
tangall  v.  Mooers  (Me.)   1917D-689.  . 

Note. 
Publication     that     employer    has    been 
placed  on  "unfair  list"  of  labor  union  as 
libelous.    1918B-570. 

f.     Political    Criticism. 

33.  Language  Libelous  Per  Se  —  At- 
tributing Statement  to  Candidate  for 
Office.  In  a  suit  for  libel,  the  language  of 
an  affidavit  stating  that  plaintiff,  a  candi- 


LIBEL  AND  SLANDER. 


509 


date  for  office,  had  said  that  he  had  been 
pandering  to  the  Catholics  as  long  as  he 
was  going  to,  but  that  if  he  did  run 
again  he  could  give  the  priests  $10  for 
their  picnics  and  they  would  see  to  it 
that  he  got  all  the  votes,  is  not  action- 
able per  se.  Taylor  v.  Moseley  (Ky.) 
1918B-1125. 

g.     Defaming  a   Dead  Person. 

34.  Defajnation  of  Deceased  Person. 
Eem.  &  Bal.  Wash.  Code,  §  2424,  providing 
that  every  malicious  publication  other- 
wise than  by  mere  speech,  which  shall 
tend  to  expose  the  memory  of  one  de- 
ceased to  hatred,  contempt,  etc.,  shall  be 
libel,  and  declaring  such  publication  a 
misdemeanor,  eliminates  common-law  and 
statutory  limitations  existing  at  the  time 
it  was  passed,  and  the  offense  is  com- 
mitted though  the  libelous  publication 
concerns  one  who  died  before  birth  of 
any  one  now  living,  regardless  of  whether 
it  injures  living  relatives  and  friends. 
State  V.  Haffer  (Wash.)  1917E-229. 

(Annotated.) 
Note. 
Liability    for    defamation    of    deceased 
person.     1917E-234. 

35.  As  used  in  Rem.  &  Bal.  Wash.  Code, 
§  2424,  the  word  "memory"  means  memory 
of  a  person  existing  in  the  minds  of  the 
living,  whether  or  not  such  memory  rests 
upon  the  actual  personal  knowledge  of 
the  living  or  upon  historical  or  traditional 
knowledge.  State  v.  Haffer  (Wash.) 
1917E-229.  (Annotated.) 

h.    Imputing  TTnchastity  to  Male. 

36.  Imputing  Adultery  to  Man.  Spoken 
words  imputing  to  a  male  school  teacher 
the  commission  of  adultery,  not  spoken  of 
him  in  respect  to  his  calling,  are  not  ac- 
tionable in  the  absence  of  special  damage. 
Jones  V.  Jones   (Eng.)    1917A-1032. 

(Annotated.) 
Note. 
Words  imputing  immoral  conduct  to  man 
as    actionable    libel    or    slander.      1917A- 
1043. 

3.     PEIVILEGED      COMMUNICATIONS, 
a.     In    General. 

37.  Political  Criticism.  A  libelous 
newspaper  article  is  not  privileged  within 
Cal.  Civ.  Code,  §  47,  subd.  3,  merely  be- 
cause about  a  person  active  in  promoting 
his  own  political  views.  Newby  v.  Times- 
Mirror  Company  (Cal.)   1917E-186. 

b.     In  Respect  to  Judicial  Proceedings. 

38.  Statement  by  Attorney  in  Judicial 
Proceedings.  The  parties  were  members 
of  the  bar.  Words  clearly  slanderous 
were   addressed   to    the    plaintiff    by    the 


defendant  in  a  pending  proceeding  in  a 
police  court.  The  defendant  justifies 
upon  the  ground  that  they  were  uttered 
by  him  as  counsel  in  a  cause  then  and 
there  pending,  and  as  such  were  privi- 
leged. Held,  that  the  rule  of  privilege 
invoked  and  enunciated  in  the  case  of 
Munster  v.  Lamb,  11  Q.  B.  Div.  588,  com- 
monly designated  as  the  English  rule,  has 
been  quite  generally  repudiated  in  this 
country,  and  is  not  the  law  of  this  state. 
La  Porta  t.  Leonard  (N.  J.)   1917E-167. 

(Annotated.) 

39.  Held,  further,  that  the  privilege  in- 
voked does  not  extend  to  the  limit  of 
protecting  counsel  in  giving  utterance  to 
slanderous  expressions  against  counsel, 
parties,  or  witnesses,  which  expressions 
have  no  relation  to  or  bearing  upon  the 
issue  or  subject-matter  before  the  court. 
La  Porta  v.  Leonard  (N.  J.)  1917E-167. 

(Annotated.) 

40.  Held,  further,  that  where  it  ap- 
peared upon  the  trial  that  the  plaintiff 
had  previously  at  the  same  hearing  given 
utterance  to  slanderous  remarks  concern- 
ing the  defendant,  it  was  proper  to  have 
such  remarks  considered  by  the  jury,  upon 
the  question  of  the  existence  of  malice  or 
provocation  in  mitigation  of  damages, 
and  that  the  refusal  of  the  trial  court  to 
so  charge  was  error.  La  Porta  v.  Leonard 
(N.  J.)    1917E-167.  (Annotated.) 

41.  Testimony  of  Witness.  Words 
spoken  in  the  course  of  a  judicial  pro- 
ceeding, though  such  as  to  impute  a  crime 
to  plaintiff,  and  therefore  actionable  per 
se  if  spoken  elsewhere,  are  not  actionable 
if  they  are  applicable  and  pertinent  to 
the  subject  of  inquiry.  Viss  v.  Calligan 
(Wash.)  1918A-819.  (Annotated.) 

42.  Words  spoken  voluntarily  for  the 
purpose  of  defamation,  and  not  in  re- 
sponse to  questions  propounded,  are  not 
privileged,  although  used  in  the  course  of 
a  judicial  proceeding.  Viss  v.  Calligan 
(Wash.)  1918A-819.  (Annotated.) 

43.  Complaint  to  Magistrate.  If  the 
defendant  in  good  faith  stated  that  he 
wanted  plaintiff  arrested  immediately  for 
stealing  his  stand  of  bees,  and  was  dis- 
closing what  he  believed  to  be  the  facts 
for  the  purpose  of  advising  the  justice  of 
the  peace  in  whose  presence  the  statement 
was  made,  he  would  be  protected  by  the 
rule  of  privilege,  but  the  rule  is  otherwise 
if  the  statements  were  made  in  bad  faith. 
Viss   V.   Calligan   (Wash.)    1918A-819. 

44.  Complaint  Against  Public  Officer. 
Where  a  complaint  has  been  made  against 
D.,  a  public  officer,  who  thereupon  re- 
quests that  the  complaint  be  filed  in 
writing,  in  order  that  he  may  be  heard 
thereon,  he  thereby  creates  a  privilege  in 
the  paintiff,  conditioned  upon  good  faith 
and  the  absence  of  malice.  Dwyer  v. 
Libert  (Idaho)  1918B-973.        (Annotated.) 


510 


DIGEST. 

1916C— 1918B. 


Notes. 

Statement  in  response  to  extra  judicial 
assertion  of  civil  liability  as  actionable 
libel  or  slander.     1916E-633. 

Privilege  of  attorney  from  prosecution 
for  libel  or  slander  for  statements  made 
in  judicial  proceedings.     1917E-169. 

Testimony  of  witness  as  privileged 
within  law  of  libel  and  slander.  191SA- 
822. 

c.     Concerning  Candidate  for  Office. 

45.  Criticism  of  Candidate— Malice.  If 
defendants  in  good  faith  and  believing 
them  true,  uttered  false  statements  con- 
cerning plaintiff,  a  candidate  for  gov- 
ernor, no  express  malice  is  shown,  despite 
the  falsity  of  the  statement  and  their 
intention  to  injure  plaintiff,  for  defend- 
ants had  the  right  to  use  their  utmost 
endeavors  to  defeat  plaintiff's  candidacy. 
Egan  v.  Dotson  (S.  Dak.)  1917A-296. 

46.  S.  Dak.  Const,  art.  6,  §  5,  declares 
that  every  person  may  freely  speak,  write, 
and  publish  on  all  subjects,  being  respon- 
sible for  the  abuse  of  that  right;  while  in 
all  trials  for  libel  the  truth,  when  pub- 
lished with  good  motive  and  for  justifiable 
ends,  shall  be  sufficient  defense.  S.  Dak. 
Civ.  Code,  §  29,  defines  "libel"  as  a  false 
and  unprivileged  commimication  exposing 
any  person  to  hatred,  contempt,  ridicule, 
or  obloquy,  or  which  has  a  tendency  to 
injure  him  in  his  occupation,  while  section 
31,  subd.  3,  defines  a  "privileged  communi- 
cation" as  one  without  malice,  to  a  person 
interested  therein,  or  by  one  who  is  also 
interested,  or  by  one  who  stands  in  such 
relation  as  to  afford  a  reasonable  ground 
for  supposing  the  motive  for  the  com- 
munication innocent.  Held  that,  under 
the  statute,  a  charge  made  against  a  can- 
didate for  public  office  is  privileged  if  the 
person  making  it  believes  in  the  truth  of 
the  charge  and  has  probable  ground  for 
his  belief,  Egan  v.  Dotson  (S.  Dak.) 
1917A-296.  (Annotated.) 

47.  When  a  person  becomes  a  candidate 
for  a  public  office,  his  qualifications,  and 
fitness  may  be  freely  and  fully  discussed, 
and  such  discussion  and  criticism,  so  long 
as  it  is  made  in  good  faith  without  ex- 
press malice,  is  privileged,  but  the  publi- 
cation of  false  charges  of  specific  acts  of 
culpable  dishonesty  against  an  attorney 
who  is  a  candidate  for  office  which  tend 
directly  to  injure  him  in  his  profession 
and  defame  his  reputation  for  integrity 
is  not  nrivilegpd.  Pattangall  v,  Mooers 
(Me,)    1917D-689.  (Annotated.) 

d.  Communication  by  One  Owing  Duty 
to  Another, 
48.  Common  Interest  in  Subject-matter. 
"Qualified  privilege"  extends  to  all  com- 
munications made  in  good  faith  upon  any 
Bubject-mattei   in   which   the    party    com- 


municating has  an  interest  or  in  reference 
to  which  he  has  a  duty  to  a  person  having 
a  corresponding  interest  or  duty,  although 
the  duty  be  not  a  legal  one,  but  of  a  moral 
or  social  character  of  imperfect  obliga- 
tion; and  it  arises  from  the  necessity  of 
full  and  unrestricted  communication  con- 
cerning a  matter  in  which  the  parties 
have  an  interest  or  dutv.  Southern  Ice 
Co.  V.  Black  (Tenn.)  1917E-695. 

49.  Statement  in  Eesponse  to  Assertion 
of  Claim,  Defendant  lumber  company 
haying  shipped  a  car  load  of  hay  to  com- 
plainant, he  claimed  a  shortage  and 
placed  his  claim  with  attorneys  for  collec- 
tion. They  wrote  defendant  lumber  com- 
pany, and  in  reply  received  a  communica- 
tion denying  any  shortage  and  closing 
with  a  statement  that  it  was  just  a  case 
where  the  writer  thought  complainant 
wanted  to  get  $10  allowance  on  a  car  of 
hay.  Held,  that  such  statement  was  not 
only  strictly  true,  but  was  not  an  im- 
proper manner  of  characterizing  complain- 
ant's claim,  and  was  not  therefore  libel- 
ous. Brown  v.  Elm  City  Lumber  Co. 
(N.  Car.)    1916E-631.  (Annotated.) 

50.  Where  a  complainant,  through  his 
attorneys,  made  claim  on  defendant  lum- 
ber company  for  a  shortage  in  a  shipment 
of  hay  and  defendant  company  replied, 
denying  any  shortage  and  stating  that  in 
its  opinion  it  was  just  a  case  where  com- 
plainant wanted  to  get  $10  allowance  on 
a  car  of  hay,  the  case  was  one  of  qualified 
privilege,  and  complainant  could  not  re- 
cover for  an  alleged  libel  contained  in 
the  letter  to  his  attorneys,  in  the  absence 
of  proof  of  malice.  Brown  v.  Elm  City 
Lumber  Co,   (N.  Car.)   1916E-631. 

(Annotated,) 

51.  Altercation  Over  Property  Rights, 
A  communication  made  in  the  course  of 
an  altercation  concerning  personal  or 
property  rights  and  bearing  some  reason- 
able relation  to  the  subject-matter  of  the 
controversy,  is  privileged,  and  it  should 
be  left  to  the  jury  to  say  whether  the  de- 
fendant has  abused  his  privilege.  Alder- 
son  V.  Kahle  (W',  Va.)  1916E-561. 

52.  Statement  by  Guardian  In  Interest 
of  Estate.  False  statements  made  by  a 
guardian  of  an  insane  ward  to  relatives 
of  his  ward,  imputing  dishonesty  and 
crime  to  another  who  is  making  a  claim 
against  the  ward  and  his  estate,  are  not 
within  the  rule  of  absolute  privilege. 
Marney  v.  Joseph  (Kan.)   1917B-225. 

(Annotated.) 

53.  Neither  will  the  false  statements 
above  referred  to  be  conditionally  privi- 
leged if  they  were  not  written  or  spoken 
in  good  faith  in  the  performance  of  the 
guardian's  duty  and  without  a  malicious 
purpose,  nor  if  the  statements  include 
libelous  matter  not  pertinent  to  the  sub- 
ject  within    the    privilege    of    the   guard- 


LIBEL  AND  SLANDER. 


511 


ian    to    write    and    publish.      Marney    v. 
Joseph  (Kan.)  1917B-2S5. 

(Annotated.) 

Notes. 

Statement  by  fiduciary  with  respect  to 
subject-matter  of  trust  as  privileged  with- 
in law  of  libel  and  slander.    1917B-227. 

Communication  to  relative  or  member 
of  family  as  privileged  within  law  of  libel 
and  slander.     1917E-895. 

ft.     Communications    Between    Mercantile 
Agency  and  Subscriber. 

54.  Credit  Report.  The  secretary  of  an 
unincorporated  association  of  tradesmen 
organized  for  the  exchange  of  credit  in- 
formation among  its  members  acts  in  an- 
swering an  inquiry  by  a  member  as  the 
confidential  agent  of  the  individual 
member  and  a  qualified  privilege  attaches 
to  his  report.  London  Association  v. 
Greenlands   (Eng.)    1916E-535. 

(Annotated.) 

55.  Report  of  Mercantile  Agency.  The 
report  of  a  mercantile  agency  to  its 
patrons  on  the  credit  and  financial  stand- 
ing of  a  business  concern  is  not  a  privi- 
leged communication.  One  who  conducts 
the  business  of  selling  information  con- 
cerning the  affairs  of  others  is  responsi- 
ble for  the  consequences  of  his  acts,  and 
liable  in  damages  for  the  publication  of 
libelous  matter.  Pacific  Packing  Co.  t. 
Bradstreet   Co.    (Idaho)    1916D-761. 

(Annotated.) 

Note. 
Report   of   mercantile   agency   as   privi- 
leged   within    law    of    libel    and    slander. 
1916D-764. 

f.    Loss  of  Privilege. 

56.  Effect  of  Presence  of  Bystanders. 
Where  the  presence  of  bystanders  at  a 
conversation  between  husband  and  wife  is 
a  mere  casual  incident,  not  in  any  sense 
sought  for  by  the  defendant,  the  latter 
will  not  be  deprived  of  the  privilege. 
Conrad  t.  Roberts  (Kan.)  1917E-891. 

57.  Presence  of  Person  not  Interested. 

In  action  for  oral  slander  by  statement  of 
one  servant  to  another  in  the  course  of 
his  employment  that  plaintiff  was  dis- 
honest, the  privilege  was  not  lost  because 
of  the  presence  of  the  bookkeeper  and 
his  assistant;  they  being  present  because 
Ihey  were  keeping  the  books  in  which 
would  be  entered  the  settlement  based  on 
the  alleged  dishonest  act.  Southern  Ice 
Co.  V.  Black  (Tenn.)  1917E-695. 

Note. 
Fact  that  conversation  is  overheard  by 
third    person    as     affecting    privilege     of 
communication    within    law    or    slander. 
1917E-699. 


g.     Communications      Between      Husband 
and  "Wife. 

58.  Communication  Between  Husband 
and  Wife  as  Privileged.  In  an  action  for 
slander  the  defendant  pleaded  a  qualified 
privilege  that  the  words  were  spoken  in 
a  conversation  with  her  husband  at  a 
time  when  she  understood  her  husband 
was  liable  to  be  arrested  for  his  conduct 
with  the  plaintiff  and  another  woman 
where  he  lived,  and  that  it  would  result 
in  disgrace  being  brought  upon  their 
family,  and  that  she  desired  to  warn  him  ' 
in  the  protection  of  his  own  interests  as 
well  as  that  of  the  family.  Held,  that  an 
instruction  charging  that  if  a  third  per- 
son overheard  what  was  said  the  matter 
was  not  privileged  unless  such  person  was 

a  mere  eavesdropper,  was  error.     Conrad 
V.  Roberts  (Kan.)  1917E-891. 

(Annotated.) 

h.     Communications       by       Creditor       to 
Debtor. 

59.  Letter  Mailed  to  Person  Defamed 
Thereby.  A  letter  written  by  defendant 
corporation  to  plaintiff  concerning  a  busi- 
ness transaction  between  them,  and  ur- 
ging payment  for  machinery  sold  to  plain- 
tiff, sent  under  seal  and  for  plaintiff's 
inspection  alone,  is  privileged,  and  alleged 
libelous  statements  therein  does  not  con- 
stitute actionable  libel.  Cartwright- 
Caps  Co.  V.  Fishel  (Miss.)  1917E-985. 

i.     Application  to  Public  Officer  or  Body. 

60.  Petition  to  Revoke  License.  Such 
petitions  are  privileged  only  in  the  ab- 
sence of  malice  on  the  part  of  the  peti- 
tioners. McKee  v.  Hughes  (Tenn.)  1918A- 
459.  (Annotated.) 

61.  Where  a  number  of  residents  of  a 
town  petitioned  the  mayor  and  board  of 
aldermen  to  revoke  the  defendant's  license 
as  a  general  merchant  on  the  ground  that 
his  store  was  a  public  nuisance,  pursuant 
to  which  the  board  illegally  revoked  the 
license,  but  the  petition  was  signed  and 
presented  without  malice  and  in  the  hon- 
est belief  that  the  board  had  power  to 
act,  defendants  are  not  liable  for  plain- 
tiff's loss  occasioned  by  the  revocation, 
since  their  action  was  a  lawful  exercise 
of  the  right  to  apply  by  address  to  gov- 
ernment authorities  for  the  redress  of 
grievances  secured  by  Const.  Tenn.  art,  1, 
§  23.  McKee  v.  Hughes  (Tenn.)  1918A- 
459.  (Annotated.) 

62.  Complaint  Against  Public  Officer. 
A  complaint  against  a  public  officer,  filed 
with  a  body  having  a  right  to  discharge 
him,  is  conditionally  privileged  upon 
good  faith  and  the  absence  of  malice. 
Dwyer  v.  Libert  (Idaho)   1918B-973. 

(Annotated.) 
Note. 
Petition    for    legislative     or    executive 
action    as   privileged   within   law   of   libel 
and  slander.     1918A-462. 


512 


DIGEST. 

1916C— 1918B. 


j.    Matters  of  Public  Interest. 

63.  Sanitary  Condition  of  Eestaurant. 
Defendant's  newspaper  publication  that 
plaintiffs'  cafeteria  was  unclean,  unsani- 
tary, and  not  well  ventilated  does  not  fall 
within  the  rule  of  qualified  privilege,  so  as 
not  to  be  libelous  per  se,  as  the  publica- 
tion is  not  of  matters  relating  to  appeals 
for  public  patronage,  which  class  relates 
to  those  who  are  in  a  sense  public  char- 
acters, such  as  seekers  for  office,  artists, 
inventors,  showmen,  and  such  others  as  by 
appeal  to  the  public  by  advertisement  in 
the  special  sense  directly  challenge  public 
criticism  of  their  claims.  Wilson  v.  Sun 
Pub.  Co.  (Wash.)  1917B-442. 

(Annotated.) 

64.  Report  on  Charges  Against  Army 
Officer.  A  report  of  the  Army  Council 
vindicating  an  army  officer  from  charges 
made  publicly  against  him  is  of  such  pub- 
lic interest  that  a  privilege  attaches  to  its 
general  publication  by  the  council. 
Adam  v.  Ward  (Eng.)  1917D-249. 

(Annotated.) 

65.  Comment  on  Matter  of  Public  In- 
terest. Where  plaintiff,  a  resident  of  New 
Orleans,  and  an  international  vice-presi- 
dent of  a  labor  union,  used  his  influence  at 
Washington  to  aid  San  Francisco  to 
secure  the  Panama  Fair  as  against  New 
Orleans,  which  contest  attracted  great 
public  interest  in  New  Orleans  and  in  the 
state,  severe  comment  on  such  acts,  which 
included  a  designation  of  plaintiff  as 
traitor  by  a  New  Orleans  newspaper,  was 
privileged  as  comment  on  a  news  matter 
of  general  public  interest  and  on  the  acts 
of  one  who  had  in  that  connection  made 
himself  a  public  figure  subject  to  such 
attack.  Flanagan  v.  Nicholson  Pub.  Co. 
(La.)   1917B-402.  (Annotated.) 

Note. 
Comment  on   matter  of   public  interest 
as  libel  or  slander.     1917B-409. 

k.     Character  of  Servant  or  Employee. 

66.  Where  a  former  employer  is  asked 
as  to  the  character  of  the  servant,  and 
makes  a  statement  that  he  has  informa- 
tion as  to  a  fact,  as  distinguished  from 
a  statement  that  the  fact  exists,  his  privi- 
lege does  not  depend  on  whether  he  in 
good  faith  believes  the  fact,  or  ought  to 
have  believed  it,  or  was  reckless  and  care- 
less in  believing  it;  his  statement  being 
entirely  privileged  if  it  is  to  the  effect 
that  information  has  come  to  him  and  is 
honestly  made,  his  good  faith  not  consist- 
ing in  believing  the  fact,  but  in  giving 
the  information  that  the  needs  of  the 
privileged  occasion  demand.  Doane  v. 
Grew  (Mass.)  1917A-338. 

(Annotated.) 

67.  Statement  as  to  Character  of  Ser- 
vant.    When  inquiry  is  made  of  a  person 


as  to  the  character  and  "capabilities  of  a 
former  servant,  the  privileged  occasion  is 
not  confined  to  facts  of  which  the  former 
employer  knows  of  his  own  knowledge, 
nor  to  the  giving  of  information  which 
he  has  fully  investigated,  but  extends  to 
hearsay,  which  the  person  inquired  of 
honestly  believes  to  be  true.  Doane  v. 
Grew  (Mass.)  1917A-338.        (Annotated.) 

68.  Where  inquiries  are  made  as  to  the 
character  and  capabilities  of  a  former 
servant,  the  occasion  is  privileged,  and 
privilege  is  a  defense  to  an  action  for 
slander,  though  the  words  spoken  are  not 
in  fact  true,  unless  malice  is  shown. 
Doane  v.  Grew  (Mass.)  1917A-338. 

(Annotated.) 
Note. 

Statement  with  respect  to  character  of 
domestic  servant  as  privileged.  I917A- 
842. 

4.     ACTIONS. 

ft.     Who  may  Maintain. 

69.  A  corporation  may  maintain  an  ac- 
tion for  slander  or  libel,  but  only  when 
the  words  complained  of  injure  it  in  a 
business  way,  since  it  is  only  in  respect 
to  business  that  a  corporation  can  be  af- 
fected or  injured.  Axton  Fisher  Tobacco 
Co.  V.  Evening  Post  Co.  (Ky.)  1918B-560. 

70.  Person  Inaccurately  Designated. 
When  a  publication  as  a  whole  is  plainly 
directed  at  a  person  or  corporation,  the 
person  or  corporation  so  assailed  may 
maintain  an  action  for  libel  as  if  he  or  it 
were  particularly  named  or  described, 
though  the  name  has  not  been  accurately 
designated  in  the  publication.  Axton 
Fisher  Tobacco  Co.  T.  Evening  Post  Co. 
(Ky.)   1918B-560. 

71.  Right  of  Action  by  Owner.  A  libel- 
ous publication  relating  to  plaintiffs'  part- 
nership business,  designating  the  name 
under  which  it  was  carried  on,  did  not 
state  a  cause  of  action  in  favor  of  the 
plaintiffs  as  individuals,  but  as  partners, 
and  the  publisher  cannot  escape  liability 
for  libel  because  it  did  not  mention  the 
name  of  either  plaintiff.  Wilson  v.  Sun 
Pub.  Co.  (Wash.)   1917B-442. 

Note. 
Eight  to  maintain  separate  actions  for 
separate  statements  of  same  libel  or  slan- 
der by  same  person.     1917A-250. 

b.     Persons  Liable. 
(1)     In   General. 

72.  A  corporation  is  not  liable,  without 
proof  of  malice,  for  damages  for  slander 
spoken  by  one  servant  to  another  while 
acting  within  the  scope  of  his  authority 
and  in  the  interest  of  the  master,  but 
not  actually  authorized  to  speak  the  slan- 
derous   words;    such    words    being    quail- 


LIBEL  AND  SLANDER. 


513 


fiedly  privileged.  Southern  Ice  Co.  v.  Black 
(Tenn.)   1917E-695. 

73.  Liability  of  Corporation.  A  corpo- 
ration may  be  liable  in  a  civil  action  for 
damages  for  publishing  a  malicious  libel. 
Southern  Ice  Co.  v.  Black  (Tenn.)  1917E- 
695. 

Note. 
Liability    of    corporation    for    libel    or 
slander.     1917D-967. 

(2)     Joint  Liability. 

74.  Where  a  number  of  persons  working 
together  to  a  common  end  publish  a  libel, 
they  are  jointly  liable,  as  well  as  sever- 
ally. Finnish  Temperance  Soc.  v.  Eia- 
vaaja  Pub.  Co.  (Mass.)  1916D-1087. 

e.    Defenses. 

75.  Statutory  Action.  The  common-law 
defenses  of  privilege  in  actions  for 
defamation  are  available  in  actions  for 
statutory  slander.  Alderson  y.  Kahle 
(W.  Va.)   1916E-561. 

76.  Truth  as  Defense.    At  common  law, 

the  truth  of  a  Ubelous  charge  is  usually 
a  complete  defense  in  a  civil  action  for 
damages.  Wilson  v.  Sun  Pub.  Co.  (Wash.) 
1917B-442. 

77.  Humorous  Publication.  That  a 
libelous  newspaper  article  tends  to  cause 
merriment  or  is  a  facetious  rejoinder  to 
adverse  criticism  by  others  does  not  jus- 
tify it.  Newby  v.  Times-Mirror  Company 
(Cal.)   1917E-186. 

78.  Truth  as  Justification — ^Proof  of  Act 
Without  Criminal  Intent.  As  regards 
truth  of  the  assertion  of  an  alleged  libel 
that  the  plaintiff  was  accused  of  a  felony 
in  altering  a  public  record,  it  is  enough 
that  at  his  request  the  judgment  book 
clerk  marked  out  a  satisfaction  of  judg- 
ment though  for  the  purpose  of  bringing 
about  justice  and  preventing  a  fraud;  the 
intent  in  defacing  the  record  being,  under 
Cal.  Pen.  Code,  §§  113,  114,  immaterial. 
Newby  v.  Times-Mirror  Company  (Cal.) 
1917E-186. 

d.     Pleading. 

(1)     Complaint  or  Declaration. 

79.  That  the  complaint,  in  an  action  for 
libel,  is  objectionable  for  indetiniteness 
as  to  the  manner  of  the  publication,  is 
not  ground  for  demurrer,  but  it  is  amen- 
able to  a  motion  to  make  more  specific. 
Dick  v.  Northern  Pacific  R,  Co.  (Wash.) 
1917A-638. 

80.  Complaint  Sufficient.  A  complaint, 
in  an  action  for  publishing  false  state- 
ments as  to  the  cause  of  plaintiff's  dis- 
charge from  defendant's  employment  as  a 
locomotive  engineer,  setting  out  a  letter 
stating  that  he  was  discharged  for  in- 
timidating   other    employees    in    the    per- 

33 


formance  of  their  duties,  states  a  cause  of 
action  for  libel;  the  words  of  the  letter 
being  actionable  per  se.  Dick  v.  North- 
ern Pacific  E.  Co.  (Wash.)   1917A-638. 

81.  Necessity  of  Alleging  Special  Dam- 
ages. Where  libelous  statements  are  ac- 
tionable per  se,  plaintiff  is  entitled  to  such 
general  damages  for  humiliation,  injured 
feelings,  and  mental  sufferings  as  would 
naturally  result  from  the  publication,  but 
cannot  recover  special  damages  without 
alleging  them.  Dick  v.  Northern  Pacific 
E.  Co.  (Wash.)  1917A-638. 

82.  IJinuendo  Defined.  An  innuendo  in 
a  complaint  for  libel  means  the  same  as 
"id  est,"  "scilicet,"  or  "aforesaid,"  being 
merely  explanatory  of  the  subject-matter 
BuflBeiently  expressed  before.  Age-Herald 
Publishing  Co.  v.  Waterman  (Ala.) 
1916E-900. 

83.  In  a  complaint  for  libel,  the  office  of 
the  innuendo  is  to  explain  the  subject- 
matter,  and  hence,  if  the  language  averred 
to  have  been  used  does  not  itself  consti- 
tute a  libel,  no  words  contained  in  the 
innuendo  can  make  it  actionable.  Age- 
Herald  Publishing  Co.  v.  Waterman 
(Ala.)  1916E-90a. 

84.  Inducement  and  Colloquium.    In  an 

action  for  libel,  matters  of  inducement 
and  colloquium  averred  by  way  of  intro- 
duction must  be  facts  and  circumstances, 
and  not  mere  statements,  arguments,  or 
conclusions,  which  show  that  the  words  in 
question  are  actionable.  Age-Herald  Pub- 
lishing Co.  V.  Waterman  (Ala.)  1916B- 
900. 

85.  Where  the  words  set  out  in  the  com- 
plaint in  an  action  for  libel  are  not  ac- 
tionable per  se,  the  complaint  must  allege 
facts  as  inducements  and  colloquia  to  show 
the  sense  in  which  the  language  was  used, 
etc.  Age-Herald  Publishing  Co.  v.  Water- 
man  (Ala.)   1916E-900. 

86.  Action  by  Partnership  for  Libel.  In 
an  action  for  a  newspaper  libel  relating 
to  a  cafeteria  conducted  by  plaintiffs,  a 
complaint  in  the  name  of  the  plaintiffs  as 
copartners  is  not  a  misjoinder,  and  the 
defendant,  without  demurring  for  mis- 
joinder, is  entitled  to  construe  it  as  an 
action  for  damages  to  the  partnership 
business.  Wilson  t.  Sun  Pub.  Go.  (Wash.) 
1917B-442. 

87.  Amendment  —  Complaint  for  Libel, 
in  an  action  for  libel,  the  court  may 
properly  permit  plaintiff  to  amend  his 
complaint  so  as  to  allege  by  way  of  in- 
ducement his  trade,  business,  etc.  Age- 
Herald  Publishing  Co.  v.  Waterman  (Ala.) 
1916E-900. 

88.  Necessity  of  Specifying  Offense.  It 
suffices,  in  a  common-law  count  for 
defamation  to  charge  in  appropriate  terms 
and  connection,  the  use  of  such  words  as 


514 


DIGEST. 

1916C— 1918B. 


"thief"  and  "robber,"  and  it  is  not  neces- 
sary to  charge  accusation  of  the  commis- 
sion of  a  specific  offense.  Alderson  v. 
Kahle  (W.  Va.)  1916E-561. 

.  89.  Necessity  of  Colloquiam.  If  words 
used  are  not  actionable  per  se,  the  pleader, 
by  way  of  colloquium,  must  state  such 
extrinsic  facts  as  will  show  the  slanderous 
meaning  of  the  words  used.  Fensky  v. 
Maryland  Casualty  Co.   (Mo.)   1917D-963. 

90.  Office  of  Innuendo.  It  is  not  the 
purpose  of  an  innuendo,  in  a  petition  for 
slander,  to  enlarge  the  words  actually 
used,  but  its  office  is  to  state  in  what 
meaning  the  language  was  used.  Fensky 
V.  Maryland  Casualty  Co.  (Mo.)  1917D- 
963. 

91.  Sufficiency  of  Colloquiiim — Showing 
Imputation  of  Forgery.  A  petition  by  an 
attorney  for  slander,  alleging,  by  way  of 
colloquium,  that  plaintiff  was  asserting 
rights  under  a  contract  signed  by  M,  and 
that  this  contract  evidenced  a  lien  which 
plaintiff  had  on  a  cause  of  action  on 
which  M  had  against  a  corporation,  and 
that  defendant  was  vitally  interested  in 
such  cause  of  action  as  indemnitor,  and 
that  defendant  had  knowledge  of  plain- 
tiff's contract,  and  that  agents  of  defend- 
ant, in  the  course  of  their  employment, 
while  calling  on  plaintiff  in  reference  to 
the  contract,  stated  that  "the  contract  you 
claim  to  have  with  this  man  was  not 
signed  by  him,  and  he  is  here  to  tell  you," 
is  sufficient  to  show  a  charge  of  forgery 
or  a  claim  of  right  under  a  known  forged 
instrument,  and  hence  states  a  cause  of 
action.  Fensky  v.  Maryland  Casualty  Co. 
(Mo.)   1917D-963. 

92.  Amendment — Addition  of  Innuendo. 
If  words  originally  charged  are  not  ac- 
tionable per  se,  they  cannot  by  amend- 
ment be  enlarged  in  their  meaning  merely 
bv  addition  of  an  innuendo.  Irvine  ▼. 
Barrett   (Va.)    1917C-62. 

93.  Necessity  of  Alleging  Special  Dam- 
age. Where  publications  are  libelous 
per  se,  it  is  not  essential  to  a  good  cause 
of  action  that  special  damage  should  be 
alleged;  but,  if  the  publication  is  not  so 
obviously  defamatory  that  the  inference 
of  injury  may  be  drawn,  it  can  only  be 
made  actionable  when  the  complaining 
party  pleads  and  proves  that  it  has  in 
fact  damaged  him.  Axton  Fisher  Tobacco 
Co.  V.  Evening  Post  Co.  (Ky.)  191SB-560. 

94.  Allegation  of  Time  and  Place  of 
Slander.  Mo.  Rev.  St.  1909,  §  1837,  pro- 
viding that  the  petition  in  an  action  for 
slander  need  not  state  any  extrinsic  facts 
to  show  the  application  to  the  plaintiff 
of  the  defamatory  matter,  but  it  shall  be 
sufficient  to  state  generally  that  the  same 
was  snoken  of  or  published  concerning 
plaintiff,  does  not  so  change  the  common- 
law  rule  as  to  relieve  plaintiff  from  the 


necessity  of  alleging  when  and  dofinitelj 
stating  where  the  publication  was  made^ 
and,  where  the  petition  is  defective  in 
this  respect,  plaintiff  may  be  required,  on 
motion  to  make  more  definite  and  certain, 
to  set  forth  when  and  where  and  to  whom 
the  alleged  defamatory  words  were  pub- 
lished. Anderson  v.  Shockley  (Mo.) 
1918B-500.  (Annotated.) 

95.  Suit  in  Several  Publications — Neces- 
sity of  Separate  Counts.  Where  plaintiff,, 
in  an  action  for  slander,  desires  to  rely  on 
separate  publications  of  defamatory 
words,  he  must  separately  plead  every 
such  publication  in  separate  counts  of  the 
petition.  Anderson  v.  Shockley  (Mo.) 
1918B-500. 

96.  Necessity  of  Pleading  Publication. 

In  an  action  for  slander,  there  can  be  no 
recovery  for  a  publication  which  is  not 
pleaded.  Anderson  v.  Shockley  (Mo.) 
1918B-500. 

97.  Splitting  Cause  of  Action  —  Several 
Publications  of  Same  Libel.  Every  sepa- 
rate publication  of  a  libel  is  a  distinct 
offense  for  which  a  separate  action  will 
lie,  and  the  rule  prohibiting  the  splitting 
of  causes  of  action  does  not  require  a 
party  to  unite  his  several  rights  of  action 
for  distinct  publications.  Cook  t.  Con- 
ners  (N.  Y.)   1917A-248. 

(Annotated.) 

98.  Allegatiom  of  Falsity.  Where  the 
matter  published  is  libelous  per  se,  it  is 
not  incumbent  upon  the  plaintiff  to  allege 
its  falsity;  that  being  a  matter  of  defense 
which,  under  Rem.  &  Bal.  Wash.  Code, 
§  293,  must  be  alleged  and  proven  as  such. 
Wilson  V.  Sun  Pub.  Co.  (Wash.)  I917B- 
442. 

99.  Complaint  for  Libel  Sufficient. 
Held  that,  under  the  liberal  rule  of  plead- 
ing adopted  in  this  state,  the  demurrer  to 
the  complaint  in  this  case  should  have 
been  overruled,  as  the  allegations  of  the 
complaint  are  sufficient  to  put  the  defend- 
ant corporation  on  its  defense.  Pacific 
Packing  Co.  v.  Bradstreet  Co.  (Idaho) 
1916D-761. 

100.  Defamatory  Language  —  Eeport  of 
Mercantile  Agency.  Language  in  the  re- 
port of  a  mercantile  agency  as  follows: 
"The  Pacific  Packing  Company  has  been 
sued  in  the  superior  court  of  Los  Angeles 
county,  California,  by  the  Pacific  Fruit 
Auction  Company  for  the  sum  of  $230,000 
for  money  advanced" — if  false  and  malici- 
ously made,  is  libelous,  and  therefore  ac- 
tionable, without  alleging  in  the  com- 
plaint any  other  than  general  damages. 
Pacific  Packing  Co.  r.  Bradstreet  Co. 
(Idaho)    1916D-761. 

101.  Office  of  Inducement  and  Innuendo. 
In  determining  whether  a  publication 
charging  that  a  tobacco  company  was 
placed  on  the  unfair  list  and  had  its  ad- 


LIBEL  AND  SLANDER. 


515 


vertising  printed  in  scab  shops,  is  libelous 
per  se,  the  court  will  consider  matter  in 
the  petition  set  out  by  way  of  inducement 
and  innuendo.  Axton  Fisher  Tobacco  Co. 
V.  Evening  Post  Co.   (Ky.)   1918B-560. 

(Annotated.) 
Note. 
SuflBciency   of   complaint   in  -  action   for 
slander  with  respect  to  averments  of  pub- 
lication and  of   time  and  place.     1918B- 
504. 

(2)     Plea  or  Answer. 

102.  Rumors  as  to  Truth  of  Charge— Ad- 
missibility. The  presumption  of  malice 
arising  from  the  publication  of  a  false 
defamatory  charge  is  not  rebutted  by 
proof  that  the  publisher  had  reason  to 
believe  the  charge  was  true;  hence  evi- 
dence of  rumors  of  the  truth  of  the 
charge  is  properly  rejected.  Pattangall 
V.  Mooers  (Me.)  1917D-689. 

(3)     Issues,  Proof  and  Variance. 

103.  That  defendant  repeated  an  al- 
leged slander  concerning  plaintiff  to  per- 
sons who  were  confessedly  acting  as 
plaintiff's  agent  and  at  her  request  was 
admissible  to  prove  malice,  though  not 
actionable  in  itself.  Doane  v.  Grew 
(Mass.)    1917A-338. 

104.  Where  the  petition,  in  an  action 
for  slander,  charges  that  the  defamatory 
words  were  spoken  at  a  particular  time 
and  place  in  the  presence  of  a  particular 
person,  evidence  that  defendant,  in  the 
presence  of  persons  other  than  this  per- 
son, at  a  different  time  and  place,  spoke 
of  and  concerning  plaintiff  defamatory 
words  of  like  import  to  those  charged,  is 
competent  as  tending  to  show  express 
malice  in  augmentation  of  damages. 
Anderson  v.   Shockley    (Mo.)    1918B-500. 

105.  Where  the  defense  consists  of  a 
general  denial  and  a  plea  that  the  matter 
was  privileged,  the  defendant  may,  not- 
withstanding neither  justification  nor 
mitigating  circumstances  has  been 
pleaded,  prove  the  truth,  or  may  prove 
conduct  of  the  plaintiff  justifying  the 
utterance  of  the  words.  Conrad  v.  Eob- 
erts   (Kan.)   1917E-891. 

106.  Truth  of  Charge  —  Proof  Under 
General  Denial.  In  such  an  action  where 
the  plaintiff  for  the  purpose  of  showing 
malice  proves  the  utterance  of  words  not 
alleged  in  the  petition,  the  defendant  may 

.  then  prove  the  truth  of  these  matters  un- 
-  der    a   general    denial,   or   may   offer   evi- 
idence    showing    conduct    of    the    plaintiff 
which    would    excuse    or   justify    the    lan- 
guage.    Conrad  v.  Eoberts  (Kan.)  1917E- 
891. 

107.  Proof  of  Colloquium  and  Innuendo. 
In  actions  for  libel  and  slander,  facts  al- 


leged as  inducement  or  colloquia  are  trav- 
ersable, and  must  be  proved,  while  the 
innuendo  is  not  traversable,  and  hence 
need  not  be  proved.  Age-Herald  Publish- 
ing Co.  V.  Waterman  (Ala.)   1916E-900. 

108.  Libel  on  Partnership  —  Damage  to 
Individual  Members.  In  an  action  for  a 
newspaper  libel  relating  to  a  cafeteria 
operated  by  plaintiffs  as  copartners,  to 
recover  damages  for  injury  l^o  their  busi- 
ness, evidence  as  to  the  standing  and  repu- 
tation of  one  of  the  plaintiffs  and  of  his 
family  in  the  community  is  immaterial, 
since  injury  to  the  reputation  and  feel- 
ings of  either  partner,  as  an  individual,  is 
not  an  issue.  Wilson  v.  Sun  Pub.  Co. 
(Wash.)  1917B-442. 

109.  Malice  —  How  Proved.  Malice  in 
fact  may  be  proved,  not  only  by  evidence 
that  defendant  made  the  alleged  untrue 
defamatory  statements  out  of  hatred  for 
plaintiff,  but  by  evidence  that  defendant 
under  circumstances  of  privilege  went 
outside  the  privilege.  Doane  v.  Grew 
(Mass.)    1917A-338. 

110.  Proof   of    Time   and   Place.     The 

plaintiff,  in  an  action  for  slander,  should 
not  be  held  to  strict  accuracy  in  his  proof 
of  the  time  of  publication,  so  long  as  the 
variance  between  his  proof  and  the  alle- 
gation does  not  bring  the  case  within  the 
statute  of  limitations,  or  mislead  defend- 
ant to  his  injury,  or  amount  to  a  palpa- 
ble fraud  on  the  court.  Anderson  y. 
Shockley  (Mo.)   1918B-500. 

111.  Where  the  petition,  in  an  action 
for  slander,  charges  that  the  defamatory 
words  were  spoken  at  a  certain  place,  on 
a  certain  date,  in  the  presence  and  hear- 
ing of  a  certain  witness,  plaintiff  cannot 
recover,  unless  the  evidence  shows  that 
the  words  were  spoken  as  charged,  though 
it  appears  that  the  same  words  were 
spoken  to  other  parties  at  different  times 
and  places.  Anderson  v.  Shockley  (Mo.) 
1918B-500. 

e.    Trial. 

112.  Amendment  as  Ground  for  Con- 
tinuance. In  an  action  for  libel,  a  trial 
amendment  by  a  specific  allegation  that 
the  publication  was  false  presented  no 
new  issue,  where  rhe  complaint  averred 
the  opposite  of  the  published  charges  and 
the  answer  alleged  their  truth,  so  that 
the  defendant's  motion  for  a  continuance 
is  properly  denied.  Wilson  v.  Sun  Pub. 
Co.    (Wash.)    1917B-442. 

113.  How  Urged  at  Trial.  In  slander 
action,  the  question  of  qualified  privilege, 
although  not  expressly  urged  upon  the 
trial  judge,  is  properly  raised  by  motion 
for  directed  verdict  for  defendant,  as 
such  motion  presented  the  question  of  lia- 
bility upon  the  entire  record.  Southern 
Ice  Co.  V.  Black  (Tenn.)   1917E-695. 


516 


DIGEST. 

19160— 1918B. 


f.    Evidence. 


(1)     Presumptions  and  Burden  of  Proof. 

114.  Burden  of  Proof  as  to  Malice. 
Where  defendant  pleads  privilege  as  a  de- 
fense to  slander,  the  burden  is  on  plain- 
tiff to  prove  malice,  and  not  on  defendant 
to  show  that  the  words  were  privileged, 
for  which  she  was  not  answerable. 
Doane  v.  Grew  (Mass.)  1917A-338. 

115.  Right  of  Recovery — Nominal  Dam- 
ages Presumed-  Plaintiffs,  in  an  action  for 
the  publication  of  words  actionable  per  se, 
are  at  least  entitled  to  nominal  damages, 
unless  the  published  charges  were  true. 
Wilson  V.  Sun  Pub.  Co.  (Wash.)  1917B- 
442. 

116.  Malice  —  Imputation  as  Between 
Editor  and  Publisher.  Where  the  editor 
and  publisher  of  a  newspaper  were  both 
sued  for  libel,  and  it  did  not  appear  that 
they  had  entered  into  a  conspiracy,  proof 
of  actual  malice  on  the  part  of  one  of 
them  will  not  be  imputed  as  to  the  other; 
for  one  might  have  published  the  libel  in 
good  faith,  while  the  other  was  actuated 
by  malice.  Egan  v.  Dotson  (S.  Dak.) 
1917A-296. 

117.  Borden  of  Proving  Truth  of  Charge. 
In  a  libel  case  the  defendant  has  the  bur- 
den of  proving  the  truth  of  the  charges. 
Egan  V.  Dotson  (S.  Dak.)  1917A-296. 

118.  Judicial  Notice  of  Unions.  The 
court  will  take  notice  that  union  labor 
constitutes  a  large,  influential,  and  well- 
organized  body  of  the  laboring  people  of 
the  state  and  country,  that  the  wage- 
earners,  including  those  who  are  members 
of  the  union,  compose  a  large  part  of 
the  population,  and  that  labor  unions  have 
adopted  and  promulgated  rules  and  regu- 
lations for  the  protection  and  guidance 
of  labor,  which  are  carefully  observed  by 
the  members.  Axton  Fisher  Tobacco  Co. 
V.  Evening  Post  Co.  (Ky.)   1918B-560. 

(Annotated.) 

119.  Malice  Avoiding  Privilege  —  Bur- 
den of  Proof.  In  slander  action,  where 
defendant  has  a  qualified  privilege,  the 
burden  of  proof  is  on  the  plaintiff  to  show 
that  the  words  were  used  to  express 
malice  toward  him.  Southern  Ice  Co.  v. 
Black   (Tenn.)    1917E-695. 

120.  Presumption  of  Damages.  The  law 
presumes  damages  resulting  from  the  ut- 
terance of  insulting  words,  made  action- 
able by  the  statute,  as  it  does  where  the 
words  are  actionable  per  se;  so  that,  to 
recover,  proof  of  actual  or  pecuniary  loss 
is  unnecessary.  Boyd  v.  Boyd  VVa.) 
1916D-1173. 

121.  Presumption  Against  Malice.  In 
addressing  such  a  petition  to  the  munici- 
pal authorities,  the  petitioners  are  pre- 
sumed to  act  without  malice;  the  burden 
being  on  the  party  complaining  to  show 


the  contrary.     McKee  v.  Hughes  (Tenn.) 
1918A-459.  (Annotated.) 

122.  The  presumption  of  knowledge  of 
the  law  cannot  be  made  the  basis  of  im- 
puted bad  faith  on  defendants'  part  in 
presenting  such  petition  to  the  board  for 
the  abatement  of  a  condition  not  a  nui- 
sance per  se  which  could  be  legally  abated 
only  by  judicial  proceedings.  McKee  v. 
Hughes   (Tenn.)    1918A-459. 

(Annotated.) 

(2)     Admissibility  of  Evidence. 

123.  Reputation  of  Plaintiff— Receiving 
Proof  Out  of  Order.  In  an  action  for 
slander  plaintiff  was  permitted  over  de- 
fendant's objections  to  offer  evidence  in 
chief  of  her  reputation  and  character. 
Held,  that  the  evidence  was  not  admissi- 
ble in  chief,  but  since  it  only  tended  to 
prove  a  fact  which  the  law  will  presume, 
its  admission  was  not  material.  Conrad 
V.  Roberts  (Kan.)  1917E-891. 

124.  Republication  by  Others.  In  an 
action  against  a  newspaper  for  libel,  evi- 
dence that  the  alleged  libelous  article 
was  republished  by  other  newspapers  is 
not  admissible,  and  is  not  rendered  so  be- 
cause the  same  reporter  who  reported  to 
defendant  also  reported  it  to  the  other 
papers.  Age-Herald  Publishing  Co.  v. 
Waterman  (Ala.)  1916E-900. 

(Annotated.) 

125.  Evidence  as  to  Damages  Inadmissi- 
ble. In  such  action,  evidence  that  one  of 
the  plaintiffs  had  bought  his  half  interest 
for  $6,500,  and  that  the  latter,  when  he 
sold,  received  "for  the  whole  outfit" 
$3,500,  without  indicating  whether  that 
represented  one-half  of  the  sale  price  or 
the  whole  sale  price,  is  inadmissible,  espe- 
cially where  it  appeared  that,  prior  to 
the  publication,  plaintiffs'  business  was 
already  falling  off  at  a  rate  not  accel- 
erated by  the  publication.  Wilson  v.  Sun 
Pub.  Co.  (Wash.)  1917B-442. 

126.  Relevancy — Justification  of  Reflec- 
tion of  Chastity  of  Female.  On  a  trial  for 
delivering  to  a  15-year  old  girl  an  anony- 
mous letter  reflecting  on  her  integrity, 
chastity,  etc.,  evidence  that  on  the  night 
before  the  delivery  of  the  letter  accused 
was  seen  hugging  and  kissing  such  girl 
is  properly  excluded,  in  the  absence  of 
any  showing  that  this  was  with  her  con- 
sent or  permission,  as  otherwise  such  con- 
duct would  not  have'  reflected  on  her. 
Bradfield  v.  State  (Tex.)    1917C-696. 

127.  Identity  of  Person  Libeled  —  Evi- 
dence— Testimony  of  Readers  as  to  Their 
Understanding.  In  case  of  doubt  as  to 
the  person  intended  by  the  writer  of  a 
libel,  it  is  competent  to  show  the  under- 
standing of  persons  to  whom  it  was  pub- 
lished as  to  the  person  referred  to;  the 
question  being  not  what  person  the  writer 


LIBEL  AND  SLANDER. 


517 


in  his  own  mind  intended  to  mention,  but 
what  person  the  readers  of  the  libel  were 
reasonably  caused  to  understand  was 
therein  intended.  Garrison  v.  Newark 
Call  Printing,  etc.  Co.  (N.  J.)   1917C-33. 

(Annotated.) 

128.  Such  understanding  may  be  shown 
by  the  testimony  of  the  persons  to  whom 
the  libel  was  published.  Quaere,  whether 
it  may  be  shown  by  evidence  of  their 
declarations.  Garrison  t.  Newark  Call 
Printing,  etc.  Co.  (N.  J.)  1917C-33. 

(Annotated.) 

129.  On  this  point  it  was  competent  to 
show  that  plaintiflF,  claiming  to  have  been 
libeled  as  to  her  matrimonial  fidelity, 
found  it  necessary  to  appear  oftener  with 
her  husband  in  public  than  ordinarily 
would  have  been  required.  Garrison  v. 
Newark  Call  Printing,  etc.  Co.  (N.  J.) 
1917C-33. 

130.  Evidence  of  Damage.  In  an  action 
of  libel,  evidence  otherwise  competent 
and  tending  to  show  that  by  reason  of 
the  publication  plaintiff  became  the  sub- 
ject of  an  unsavory  publicity  is  proper. 
Garrison  v.  Newark  Call  Printing,  etc. 
Co.  (N.  J.)  1917C-33. 

131.  Previous  Discussion  of  Subject- 
matter  of  Libel.  On  the  question  of  dam- 
ages for  a  newspaper  libel,  it  was  compe- 
tent to  show  that  a  scandal  with  which 
the  libel  connected  plaintiff  had  been  a 
matter  of  public  notoriety  and  newspaper 
comment  when  it  first  occurred.  Garrison 
V.  Newark  Call  Printing,  etc.  Co.  (N.  J.) 
1917C-33. 

132.  Other  Publications.  Where  defend- 
ants assert  that  their  charges  concerning 
plaintiff,  a  candidate  for  office,  were  privi- 
leged, because  made  in  good  faith  and 
under  a  belief  of  truth,  evidence  showing 
other  publications  of  the  charge  should 
be  received  not  only  in  mitigation  of 
damages,  but  in  support  of  the  claim  of 
privilege.  Egan  v.  Dotson  (S.  Dak.) 
1917A-296. 

133.  Where,  in  an  action  for  slander, 
the  court  instructed  that,  to  entitle  plain- 
tiff to  recover,  the  evidence  must  show 
that  the  defamatory  words  stated  in  the 
petition  were  spoken  by  defendant  of  and 
concerning  plaintiff  at  the  time  and  place 
and  in  the  presence  of  the  witness  alleged, 
the  refusal  of  an  instruction  that  evidence 
of  defendant's  having  spoken  concerning 
plaintiff,  at  a  different  time  and  place  and 
in  the  presence  of  others,  defamatory 
words  similar  to  those  charged,  could  be 
considered  as  tending  to  prove  express 
malice,  required  reversal  of  a  judgment 
for  defendant.  Anderson  v.  Shockley 
(Mo.)  1918B-500. 

Note. 
Admissibility    of   testimony    of   readers 
or  hearers  of  libel  or  slander  as  to  their 


understanding  of  identity  of  person  de- 
famed.    1917C-36. 

(3)     Sufficiency  of  Evidence. 

134.  Malice — ^Evidence  too  Bemote.    In 

an  action  for  alleged  slander,  evidence 
that  plaintiff,  on  applying  for  a  position 
as  nurse  to  certain  persons,  and  referring 
them  to  defendant  for  character,  received 
word  in  each  case  that  her  services  were 
not  required,  was  too  remote  to  show  de- 
fendant's state  of  mind  toward  plaintiff. 
Doane  v.  Grew  (Mass.)  1917A-338. 

135.  Evidence  of  Malice  Sufficient.  In 
an  action  for  slander,  in  which  defendant 
claimed  privilege,  evidence  held  to  require 
submission  of  the  question  of  defendant's 
malice  to  the  jury.  Doane  v.  Grew 
(Mass.)   1917A-338. 

136.  Repetition  by  Initial  Libeler.     In 

an  action  for  libel,  a  repetition  by  de- 
fendant of  the  libelous  words  is  evidence 
of  malice,  and  may  thereby  aggravate 
the  damages.  Age-Herald  Publishing  Co. 
T.  Waterman  (Ala.)  1916E-900.  » 

137.  Evidence  of  Damage  Insufficient. 
In  an  action  for  a  newspaper  libel  charg- 
ing plaintiffs'  partnership  cafe  was  hot, 
dirty,  unsanitary,  and  poorly  ventilated, 
evidence  considered  and  held  not  to  show 
any  actual  damages  to  plaintiffs*  busi- 
ness. Wilson  V.  Sun  Pub.  Co.  (Wash.) 
1917B-442. 

138.  Evidence  of  Malice  —  Conclusive^ 
ness.  That  defendants  disliked  plaintiff, 
a  candidate  for  public  office,  whom  they 
charged  with  offenses  and  moral  turpi- 
tude, does  not  show  malice,  although  it  is 
competent  evidence  on  that  question. 
Egan  V.  Dotson  (S.  Dak.)  1917A-296. 

139.  Truth  as  Justification  —  Charge  of 
Hypocrisy.  Evidence  in  libel  that  at 
plaintiff's  request  to  frustrate  fraud  of  a 
party,  satisfaction  of  judgment  against 
whom  plaintiff  had  just  entered,  the  clerk 
marked  out  the  satisfaction,  is  insufficient 
to  sustain  any  implied  ^finding  that  plain- 
tiff was  a  hypocrite  or  in  the  habit  of 
altering  public  records,  but  merely  shows 
he  was  in  error  as  to  the  lawful  method 
of  correcting  the  attempted  fraud.  New- 
bv  V.  Times-Mirror  Companv  (Cal.) 
1917E-186. 

g.     Province  of  Court  and  Jury. 

140.  The  question  of  good  faith  and 
malice  is  one  for  the  jury.  Dwyer  v. 
Libert  (Idaho)  1918B-973. 

(Annotated.) 

141.  Words  Used  in  Qualified  Sense — 
Question  for  Jury.  The  sense  in  which 
actionable  words  were  used,  when  the 
utterance  thereof  has  been  attended  by 
facts  and  circumstances  indicating  their 
use   in   a   qualified  sense,   so   as   to   make 


518 


DIGEST. 

1916C5— 1918B. 


them  convey,  to  those  who  heard  them, 
a  meaning  different  from  the  one  ordi- 
narily accorded  them,  is  a  question  for 
jury  determination.  Alderson  v.  Kahle 
(W.  Va.)   1916E-561. 

142.  Question  for  Jury — Truth  of  Libel 
— Conflicting  Evidence.  In  an  action  for 
a  newspaper  libel,  where  there  was  con- 
flicting evidence  as  to  the  truth  of  the 
charges  set  up  in  justification,  their  truth 
is  a  question  for  the  jury.  Wilson  v.  Sun 
Pub.  Co.  (Wash.)  1917B-442. 

143.  Exceeding  Privilege — Question  for 
Jury.  On  an  issue  as  to  whether  slanderous 
words  were  in  excess  of  a  privileged  occa- 
sion, the  question  for  the  jury  in  each 
case  depends  or  may  depend  on  the  form 
in  which  the  defamatory  words  have  been 
put  by  the  defendant,  taken  in  connection 
with  the  knowledge  or  information  which 
defendant  had  as  to  the  defamatory  state- 
ments. Doane  v.  Grew  (Mass.)  1917A- 
338. 

h.     Instructions. 

144.  In  an  action  against  a  newspaper 
for  libel,  it  is  error  to  charge,  "I  charge 
you  .that  under  the  law  of  Alabama  this 
defendant,  the  Age-Herald  Publishing 
Company,  is  responsible  for  the  publica- 
tion of  any  libel  which  may  result  in  ac- 
tionable injury",  since  it  authorized  a 
recovery  for  publications  made  by  other 
newspapers  than  defendant.  Age-Herald 
Publishing  Co.  v.  Waterman  (Ala.)  1916E- 
900.  (Annotated.) 

145.  Repetition  of  Libel.  In  the  ab- 
sence of  evidence  that  one  to  whom  de- 
fendant spoke  slanderous  words  repeated 
them  to  any  other  person,  requested  in- 
struction precluding  recovery  for  repeti- 
tion by  such  person  is  properlv  refused. 
Viss  v.  Calligan  (Wash.)  1918A-819. 

146.  As  to  Privilege.  In  an  action  by  a 
candidate  for  ofiice  for  libel  published 
concerning  him,  instructions  that  defend- 
ants, who  pleaded  privilege,  set  up  in 
their  answer  various  grounds  which  did 
not  constitute  a  defense,  but  might  be 
considered  in  mitigation  of  damages,  and 
that  any  evidence  which  does  not  prove 
the  truth  of  the  charge  can  be  considered 
only  in  mitigation  of  damages,  being  con- 
trary to  other  instructions  and  to  the  rule 
of  law  which  makes  such  a  communication 
privileged  if  made  in  good  faith  on  rea- 
sonable grounds,  are  prejudicial.  Egan 
V.  Dotson  (S.  Dak.)  1917A-296. 

(Annotated.) 

147.  Instruction  as  to  Malice  Mislead- 
ing. An  instruction  that,  to  constitute 
actual  or  express  malice,  which  plaintiff,  a 
candidate  for  office,  who  claimed  to  have 
been  libeled,  must  show  to  recover,  he 
must  establish  that  in  publishing  the  ar- 
ticles the  defendants  made  use  of  the 
privilege  v/hich  is  accorded  to  all  news- 


papers to  discuss  the  moral  character  of 
candidates  for  a  public  office  as  governor 
as  a  cover  for  publishing  false  statements, 
is  misleading.  Egan  v.  Dotson  (S.  Dak.) 
1917A-296. 

148.  Assumption  of  Fact.  An  instruc- 
tion in  a  libel  case  which  assumed  the 
falsity  of  the  publication  was  erroneous. 
Egan  V.  Dotson  (S.  Dak.)   1917A-296. 

149.  Privilege  of  Political  Criticism. 
In  an  action  for  slander,  where  defendant 
claims  thnt  the  statements  were  privileged 
comment  on  plaintiff's  qualifications  as  a 
candidate  for  oflBce,  an  instruction  that 
every  man  has  a  right  honestly  and  truth- 
fully to  comment  about  any  person,  that 
public  interest  demands  that  the  qualifi- 
cations of  candidates  may  be  openly  dis- 
cussed, but  that  the  privilege  does  not 
protect  false  statements  maliciously  made, 
or  untrue  accusations  uttered  for  the  pur- 
pose of  character  injury,  or  false  charges 
of  dishonesty  in  the  man's  profession 
made  with  reckless  indifference  as  to 
its  truth  and  a  desire  to  injure,  is  suflS- 
ciently  favorable  to  defendant.  Pattan- 
gall  v.  Mooers  (Me.)  1917D-689. 

150.  Eequested  Instructions  Covered  by 
Charge.  In  an  action  for  slander,  the 
court  refused  defendant's  request  charg- 
ing that  it  was  for  the  jury  to  determine 
whether  the  words  were  spoken  concern- 
ing plaintiff's  profession  as  an  attorney  at 
law,  remarking  that  he  had  covered  that 
point,  and  informing  the  jury  that  they 
should  construe  the  slanderous  charge  ac- 
cording to  its  ordinary  meaning.  Defend- 
ant further  requested  charges  that  the  v 
fact  that  plaintiff  was  a  candidate  for 
office  rendered  the  communication  made 
with  reference  to  such  candidacy  quali- 
fiedly  privileged,  and  plaintiff  could  re- 
cover only  by  showing  actual  malice,  and 
that  plaintiff  could  not  recover  if  defend- 
ant spoke  the  words  in  good  faith.  In 
passing  on  these  requests  the  court  re- 
marked that  the  jury  had  heard  the  testi- 
mony and  arguments  of  counsel  upon  the 
request,  and  that  it  was  for  them  to  show 
under  the  instructions  given  how  those 
words  were  spoken  and  for  what  purpose. 

It  is  held  that,  in  view  of  the  other  in- 
structions and  the  remarks  of  the  court, 
the  refusal  of  defendant's  request  was  not 
error.  Pattangall  v.  Mooers  (Me.)  1917D- 
689. 

151.  Mitigation  of  Damages.  Instruc- 
tions given  in  an  action  for  slander  so 
drawn  as  to  limit  the  effect  of  mitigating 
circumstances  to  the  inquiry  as  to  the  ex- 
istence of  actual  malice,  deprive  the  de- 
fendant of  the  benefit  of  the  considera- 
tion of  such  facts  by  the  jury  in  the 
ascertainment  of  the  amount  of  the 
damages  and  are  erroneous.  Alderson  v. 
Kahle   (W.  Va.)   1916E-561. 

152.  Ignoring  Defense  of  Privilege. 
Where,  in  an  action  for  libel,  there  were 


LIBEL  AND  SLANDER. 


519 


special  pleas  by  defendant  alleging  that 
the  matter  was  privileged  and  evidence 
io  support  them,  charges  to  find  for  plain- 
tiff if  the  jury  were  reasonably  satisfied 
that  plaintiff  had  been  injured  in  the 
manner  averred  in  the  complaint  are  erro- 
neous. Age-Herald  Publishing  Co.  v. 
Waterman    (Ala.)    1916E-900. 

153.  Newspaper  Cartoon  as  Libel.     An 

implied  finding  that  a  newspaper  cartoon 
would  not  to  an  ordinary  reader  bear  the 
meaning  that  plaintiff  in  libel  was  a  hypo- 
crite posing  as  a  reformer  is  unwarranted, 
it  being  headed,  "And  These  are  Our 
Leading  'Keformers,' "  below  it  being, 
^'All  hypocrites  are  sinners,  but,  thank 
God,  all  sinners  are  not  hypocrites,"  and 
the  persons,  other  than  plaintiff,  shown, 
being  portrayed  as  engaged  in  transac- 
tions disreputable,  dishonest,  or  ridicu- 
lous, and  plaintiff  with  a  sinister  expres- 
sion. Newby  v.  Times-Mirror  Company 
(Cal.)    1917E-186.  (Annotated.) 

i.     Damages. 

154.  Mental  Distress.  Mental  distress 
resulting  from  the  speaking  of  words 
actionable  per  se  is  a  proper  element  of 
general  damages.  Viss  v.  Calligan 
(Wash.)    1918A-819. 

155.  Excessiveness   of  Damages.    There 

is  no  exact  rule  by  which  general  dam- 
ages for  libel  or  slander  can  be  measured, 
and  the  amount  must  be  left  largely  to 
the  judgment  of  the  jury,  so  that,  unless 
the  damages  are  so  large  that  the  court 
can  say  that  the  jury  was  actuated  by 
passion  or  prejudice,  the  amount  found  by 
the  jury  will  not  be  disturbed.  Viss  v. 
Calligan  (Wash.)  1918A-819. 

156.  Libel  Causing  Defeat  of  Candidate. 
The  only  damages  plaintiff  can  recover  are 
those  contemplated  by  S.  Dak.  Code,  §  29, 
defining  libel  as  a  false  unprivileged  com- 
munication, exposing  a  person  to  hatred, 
contempt,  ridicule,  or  obloquy,  or  which 
causes  him  to  be  shunned,  or  which  tends 
to  injure  him  in  his  occupation,  and  a 
libeled  candidate  for  office  cannot  recover 
damages  because  the  charges  prevented 
him  from  receiving  the  nomination. 
Egan  V.  Dotson  (S.  Dak.)   1917A-296. 

157.  Mitigation  of  Damages — Bad  Repu- 
tation of  Plaintiff.  In  an  action  for  slan- 
der, defendant  may  in  mitigation  of  dam- 
ages show  that  plaintiff's  reputation  as  a 
man  of  integrity  was  bad.  Pattangall  v. 
Mooers  (Me.)  1917D-6S9. 

158.  In  an  action  for  slander,  where 
defendant  desired  to  show  the  bad  repu- 
tation of  plaintiff  in  mitigation  of  dam- 
ages it  must  be  proven  by  testimony  as  to 
his  general  reputation,  and  not  by  evi- 
dence of  specific  accusations  of  miscon- 
duct. Pattangall  v.  Mooers  (Me.)  1917D- 
689. 


159.  Intoxication  as  Mitigation.  In 
such  cases,  intoxication  of  the  defendant 
at  the  time  of  his  use  of  the  slanderous 
words  is  a  mitigating  circumstance,  proper 
for  the  consideration  of  the  jury  in  esti- 
mating the  damages.  Alderson  v.  Kahle 
(W.  Va.)  1916E-561.  (Annotated.) 

160.  Provocation  as  Mitigation.  Pro- 
vocation by  the  plaintiff,  inducing  the  ut- 
terance of  the  slanderous  words,  is  a  miti- 
gating circumstance  also.  Alderson  v. 
Kahle  (W.  Va.)  1916E-561. 

161.  Damage  to  Partnership  Business. 
In  an  action  for  a  libelous  newspaper  pub- 
lication relating  to  a  cafeteria  conducted 
by  plaintiffs  as  copartners,  where  there  is 
little  evidence  of  injury  to  the  reputation 
of  either  partner,  as  an  individual,  and 
no  evidence  as  to  the  injury  of  the  sep- 
arate business  of  either,  the  only  damages 
recoverable  are  such  as  resulted  in  injury 
to  the  partnership  business  itself  and  to 
the  partners  in  their  joint  capacity.  Wil- 
son V.  Sun  Pub.  Co.   (Wash.)    1917B-442, 

162.  Punitive  Damages — When  Allowed. 
Punitive  or  exemplary  damages  are  not  re- 
coverable, except  where  specifically  au- 
thorized by  statute.  Wilson  v.  Sun  Pub. 
Co.  (Wash.)  1917B-442. 

Notes. 

Intoxication  as  justification  or  mitiga- 
tion of  slander.     1916E-564. 

Loss  of  election  or  appointment  to  office 
as  element  of  damages  for  libel  or  slander. 
I918B-1130. 

j.     Appeal  and  Error. 

163.  Physical  Effect  of  Libel  on  Plain- 
tiff— Evidence  Held  Harmless.  Evidence 
that  the  plaintiff  was  rendered  "nervous" 
as  a  result  of  a  libel  held  not  harmful,  in 
view  of  its  being  restricted  at  the  trial 
and  in  the  instructions  to  the  jury,  to 
mental  agitation  and  disturbance.  Gar- 
rison v.  Newark  Call  Printing,  etc.  Co. 
(N.  J.)    1917C-33. 

164.  Harmless  Error  In  Instruction. 
Where  the  controversy  is  as  to  whether 
slanderous  words  were  spoken,  an  instruc- 
tion that,  if  the  words  were  material  or 
relevant  to  any  issue  involved  in  the  trial 
during  which  they  were  spoken,  there 
could  be  no  recovery,  is  not  prejudicial, 
even  if  erroneous.  Viss  v.  Calligan 
(Wash.)    1918A-819.  (Annotated.) 

5.     CEIMINAL    LIABILITY, 
a.     Actionable  Words. 

165.  Anonymous  Letters — Criminal  Lia- 
bility for  Sending — What  Constitutes 
Sending.  Pen.  Code  Tex.  1911,  art.  1182, 
providing  that  if  any  person  shall  send, 
or  cause  to  be  sent,  deliver,  or  cause  to  be 
delivered,  to  any  other  person  any  anonj- 


520 


DIGEST. 

1916C— 1918B. 


mouk  letter  reflecting  upon  the  integritj, 
chastity,  virtue,  etc.,  of  such  person  or 
any  other  person,  the  person  so  "sending" 
the  letter  shall  be  guilty  of  a  misde- 
meanor, is  violated  where  the  writer  of 
the  letter  himself  delivers  it  to  the  person 
to  whom  it  is  addressed,  in  view  of  Code 
Cr.  Proc.  1911,  art.  25,  requiring  its  pro- 
visions to  be  liberally  construed  to  attain 
the  object  intended;  Rev.  St.  1911,  art. 
5502,  subd.  6,  requiring  the  court  to  look 
to  the  intention  of  the  legislature;  Pen. 
Code  1911,  art.  9,  requiring  that  code  and 
all  other  criminal  laws  to  be  construed 
according  to  the  plain  import  of  the  lan- 
guage without  regard  to  the  usual  distinc- 
tion between  penal  and  other  laws;  and 
article  10,  providing  that  words  specially 
defined  shall  be  understood  in  that  sense, 
and  other  words  in  the  sense  in  which  they 
are  understood  in  common  language. 
Bradfield  ▼.  State  (Tex.)  1917C-696. 

(Annotated.) 

b.     Indictment. 

166.  Description  of  Letter  Sent  by  Ac- 
cused. Under  Tex.  Pen.  Code  1911,  art. 
1182,  making  it  a  misdemeanor  to  send  an 
anonymous  letter  "reflecting"  on  the  in- 
tegrity, chastity,  etc.,  of  any  person,  a 
complaint  and  information  charging  the 
sending  of  a  letter  which  "reflects"  upon 
a  person  named  is  not  defective.  Brad- 
field  v.  State  (Tex.)  1917C-696. 

167.  A  complaint  and.  information  for 
sending  an  anonymous  letter  reflecting 
upon  a  person's  integrity,  chastity,  etc., 
need  not  contain  the  letter,  in  view  of 
Tex.  Code  Cr.  Proc.  1911,  art.  453,  requir- 
ing only  such  certainty  as  will  enable  ac- 
cused to  plead  the  judgment  in  bar  of  an- 
other prosecution;  article  460,  providing 
that  it  shall  be  sufficient  to  charge  the 
offense  in  ordinary  and  concise  language 
and  with  such  certainty  as  will  give  de- 
fendant notice  of  the  offense  charged  and 
enable  the  court  to  pronounce  judgment; 
and  article  474,  providing  that  it  is  suffi- 
cient to  use  other  words  conveying  the 
same  meaning  as  the  words  used  in  a  stat- 
ute or  including  the  sense  of  the  statutory 
words.  Bradfield  v.  State  (Tex.)  1917C- 
696. 

6.     SLANDER  OF  TITLE. 

168.  Slander  of  Title — Malice  as  Es- 
sential. "Slander  of  title"  being  defama- 
tion of  title  to  property  by  one  who 
falsely  and  maliciously  disparages  it, 
thereby  causing  its  owner  some  special 
pecuniary  loss  or  damages,  one  taking  a 
deed  of  property  as  security,  merely  care- 
lessly relying  on  the  grantor's  false  rep- 
resentation that  he  had  an  interest 
therein,  is  not  liable  for  such  slander; 
malice  being  lacking.  Fearon  v.  Fodera 
(Cal.)    1916D-312.  (Annotated.) 


LICENSE. 

Revocation  of  license  to  sever,  see  Fix- 
tures, 6,  7. 

Liability  of  railroad  for  injury  to  en- 
gineer's guest,  see  Master  and  Ser- 
vaat,  367. 

Injury  to  licensee  on  wharf,  see  Negli- 
gence, 14-16,  21. 

Duty  toward  licensee,  see  Railroads,  78-81. 

Rights  of  ticket  holder,  see  Theaters  and 
Amusements,  5. 

1.  Owners  of  Premises — ^Licensees — Chil- 
dren. A  child  of  an  employee  of  a  cotton 
mill,  falling  into  a  drain  into  which  the 
mill  discharged  the  hot  waters  from  the 
boilers  when"  cleaning  them,  is  a  licensee, 
where  the  drain  is  situated  in  an  open 
square,  made  by  the  buildings  and  em- 
ployees' tenement  houses,  in  which  the 
employees  and  children  are  wont  to  con- 
gregate, though  the  drain  is  obscured  by 
slag  and  briars.  Thompson  v.  Alexander 
City  Cotton  Mills  Co.  (Ala.)  1917A-721. 

LICENSES. 

See  Automobiles,  6-14;  Hawkers  and  Ped- 
dlers, 2;  Intoxicating  Liquors,  2,  16, 
44-46,  51-53,  70-75;  Physicians  and 
Surgeons,  3,  12,  13. 

Dog  licenses,  see  Animals,  10. 

Practicing  without  license,  see  Attorneys, 
6,  7. 

Conducting  auction  without  license.  Bee 
Auctions  and  Auctioneers,  3. 

Tax  on  foreign  corporations,  see  Corpora- 
tions, 160. 

Excessive  penalty,  see  Fines  and  Penal- 
ties, 1. 

Hunting  licenses,  see  Fish  and  Game,  4-9,' 
15,  18. 

Itinerant  food  venders,  see  Food,  8-12. 

Wholesale  dealer  in  soft  drinks,  see  Inter- 
state Commerce,  4. 

Dealer,  meaning  of,  see  Junk  Dealers  and 
Junk  Shops,  1,  2. 

Colorable  license  as  sale,  see  Monopolies, 
9. 

Recovery  of  fee  paid  by  mistake,  see  Pay- 
ment, 12. 

Payment  of  taxes  as  prerequisite  to  li- 
cense, see  Taxation,  86. 

1.  Discretionary  Power  of  Legislature — 
Discrimination.  The  state  has  a  wide  dis- 
cretionary power  in  imposing  license  taxes, 
and  unless  there  can  be  no  substantial 
basis  for  discriminations  made  in  classifi- 
cations and  in  fixing  the  amount  of  license 
taxes,  so  that  such  discriminations  must 
be  regarded  as  purely  arbitrary  and  un- 
reasonable under  every  conceivable  con- 
dition in  practical  affairs,  the  courts  will 
not  interfere  with  legislative  regulations 
of  such  matters.  State  v.  Philips  (Fla.) 
1918A-238. 

2.  Occupations  Subject  to  Tax — ^Extract- 
ing Turpentine.     Miss.  Laws  1912,  c.  110, 


LICENSES. 


521 


levying  a  "privilege  tax"  or  "occupation 
fee"  upon  persons  pursuing  the  business 
of  extracting  turpentine  from  standing 
trees  amounting  to  one-fourth  of  one  cent 
each  year  for  each  cup  or  box,  is  in  effect 
a  "property  tax,"  and  violates  Const.  1890, 
§  112,  declaring  that  taxation  shall  be  uni- 
form and  equal  throughout  the  state,  and 
that  property  shall  be  taxed  in  propor- 
tion to  its  value.  Thompson  v.  McLeod 
<Miss.)    1918A-674.  ~     (Annotated.) 

3.  Transient  Merchants'  License  Tax — 
Validity.  Acts  35th  Gen.  Assem.  c.  62, 
imposing  license  taxes  upon  transient  mer- 
chants, declares  that,  upon  complaint  to 
the  county  auditor  that  any  person  is  do- 
ing business  as  a  transient  merchant  in 
any  city  or  to"wn  of  such  county,  the  au- 
ditor shall  require  of  such  merchant  and 
he  shall  furnish  a  bond  in  the  sum  of 
$1,000,  conditioned  that,  if  he  do  not 
continue  business  for  the  period  of  a  year, 
he  shall  pay  the  license  fee  and  all  claims 
against  him  growing  out  of  such  business, 
but  that,  if  he  shall  continue  to  conduct 
the  particular  business  for  the  period  of 
one  year,  he  shall  be  held  to  be  a  perma- 
nent merchant  not  subject  to  the  tax. 
There  was  no  provision  as  to  who  might 
make  the  complaint,  as  to  its  verification, 
nor  was  hearing,  notice,  or  opportunity  of 
defense  provided  for.  It  is  held  that, 
while  "due  process  of  law"  does  not  neces- 
sarily mean  judicial  proceedings,  it  always 
means  some  prescribed  course  of  legal  pro- 
ceedings, and  hence  the  act  is  bad  a» 
tending  to  take  property  without  due  pro- 
cess of  law,  for  any  merchant  upon  the 
complaint  of^any  person  might  be  required 
to  give  a  bond  or  pay  the  license  tax,  and 
in  such  case  to  avoid  payment  of  the  li- 
cense tax  could  not  dispose  of  his  business 
within  a  year.  State  v.  Osborne  (Iowa) 
1917E-497.  (Annotated.) 

4.  Iowa  Acts  35th  Gen.  Assem.  c.  62,  de- 
claring that,  whenever  it  appears  that  a 
stock  of  goods  has  been  brought  into  any 
county  by  a  person  who  has  not  previously 
conducted  a  merchant  business  therein  and 
it  is  claimed  that  such  stock  is  to  be 
closed  out  at  reduced  prices,  such  fact 
shall  be  prima  facie  evidence  that  such 
person  is  a  transient  merchant,  is  discrimi- 
natory in  so  far  as  it  does  not  apply  the 
same  test  to  merchants  if  the  merchant 
has  ever  in  the  past  conducted  a  business 
in  the  county,  and  thus  may  impose  a  li- 
cense tax  on  one  transient  merchant,  and 
not  on  the  other.  State  v.  Osborne  (Iowa) 
1917E^97.  (Annotated.) 

5.  While  the  legislature  may  impose  oc- 
cupation taxes  upon  merchants  of  a  par- 
ticular class,  Iowa  Acts  35th  Gen.  Assem. 
c.  62,  which  attempted  to  impose  license 
taxes  upon  transient  merchants  only  when 
doing  business  in  cities  and  towns,  is  bad 
because  unequal.  State  t.  Osborne  (Iowa) 
1917E-497.  (Annotated.) 


6.  Iowa  Acts  35th  Gen.  Assem.  c.  62, 
§§  2,  5,  8,  imposing  license  taxes  upon 
transient  merchants  and  including  all  per- 
sons, firms,  and  corporations,  both  princi- 
pal and  agent,  who  do  and  transact  any 
temporary  or  transient  business  in  one  lo- 
cality or  more,  or  by  traveling  from  place 
to  place  sell  goods,  wares,  or  merchandise, 
expressly  excepts  from  its  operation  the 
selling  of  goods  by  commercial  travelers 
and  by  "selling  agents"  in  the  usual  course 
of  business,  and  also  the  selling  of  farm 
and  garden  products.  No  standard  is 
fixed  by  which  the  officer  issuing  the  li- 
cense may  differentiate  between  the  agent 
who  by  sections  2  and  5  is  forbidden  to 
transact  a  temporary  business  without  a 
license  and  the  selling  agent  who  by  sec- 
tion 8  is  exempted  from  such  obligation. 
It  is  held  that  the  statute  is  bad  because 
making  an  unauthorized  delegation  of 
legislative  powers  to  the  license  officer,  for 
an  agent  employed  by  a  traveling  or  tran- 
sient merchant  to  sell  his  goods  is  cer- 
tainly a  "selling  agent."  State  v.  Osborne 
(Iowa)    1917E-497.  (Annotated.) 

7.  Iowa  Acts  35th  Gen.  Assem.  c.  62, 
§  2,  requiring  any  transient  merchant  de- 
siring to  do  business  in  any  county  to  first 
procure  a  license,  and  in  sections  1  and  5 
limiting  its  scope  to  transient  merchants 
seeking  to  do  business  in  cities  and  towns, 
and  who  for  the  purpose  of  carrying  on 
such  business  hire,  lease,  or  occupy  a 
building,  structure,  or  car  for  the  exhibi- 
tion and  sale  of  goods,  is  bad,  as  discrimi- 
natory, because  not  applying  to  the  sim- 
ilar merchants  selling  goods  from  vacant 
lots,  etc.  State  v.  Osborne  (Iowa)  1917E- 
497.  (Annotated.) 

8.  The  manner  and  method  provided  for 
the  enforcement  of  an  act  providing  for 
license  taxes  must,  whether  it  be  intended 
to  raise  revenue  or  establish  a  police  reg- 
ulation, be  consistent  with  due  process  of 
law.     State  v.  Osborne  (Iowa)  1917E-497. 

9.  Under  the  bill  of  rights,  guarantee- 
ing all  persons  the  right  to  acquire,  pos- 
sess, and  enjoy  property,  license  taxes 
upon  merchants  cannot  be  upheld  under 
guise  of  the  police  power,  where  they  are 
so  exorbitant  as  to  deprive  owners  of 
property  of  the  right  to  dispose  of  it. 
State  v.  Osborne  (Iowa)  1917E-497. 

10.  Where  a  license  tax  imposed  under 
guise  of  the  police  power  is  intended  to 
raise  revenue  or  accomplish  some  ulterior 
motive,  the  courts  will  hold  it  unauthor- 
ized and  void.  State  v.  Osborne  (Iowa) 
1917E-497. 

11.  A  license  fee  enacted  as  a  police 
regulation  for  an  occupation  of  a  harmless 
nature  must  have  some  fair  relation  to 
the  cost  of  issuing  the  license  and  ex- 
pense of  police  supervision.  State  v.  Os- 
borne  (Iowa)   1917E-497. 

12.  Excessive  License  Taxes.  Where  li- 
cense taxes  are  imposed  upon  an  oecupa- 


t)li2 


DIGEST. 

1916C5— 1918B. 


tion  of  harmless  character  under  the  guise 
of  the  police  power,  the  license  fee  must 
not  be  so  exorbitant  or  oppressive  as  to 
prohibit  the  occupation  or  create  a  mono- 
poly for  the  benefit  of  a  few.  State  v. 
Osborne   (Iowa)    1917E-497. 

13.  Necessity  of  Uniformity  of  License 
Taxes.  Where  the  classification  of  occupa- 
tions subjected  to  license  taxes  is  valid, 
the  taxes  must,  under  Iowa  Const,  art.  1, 
§§  1,  6,  and  art.  3,  §  30,  be  uniform  and 
bear  equally  upon  each  individual  or  per- 
son subjected  to  the  tax.  State  v.  Osborne 
(Iowa)  I917E-497. 

14.  Power  to  Classify  Occupations. 
While  the  legislature  has  discretion  to  se- 
lect and  classify  the  occupations  or  differ- 
ent kinds  of  business  for  which  license 
fees  shall  be-  exacted,  the  classification 
should  not  be  unnatural  or  unreasonable. 
State  V.  Osborne  (Iowa)  1917E-497. 

15.  Peddler's  License  Tax — Validity. 
An  ordinance  imposing  a  license  on  ped- 
dlers having  no  regular  place  of  business 
in  the  city,  but  who  solicit  therein  orders 
for  the  sale  and  future  delivery  of  tea, 
coffee,  spices,  etc.,  cannot  be  sustained  as 
an  exercise  of  the  police  power.  Ideal 
Tea  Co.  v.  Salem  (Ore.)  1917D-684. 

16.  Power  of  Municipality — Discrimina- 
tion Against  Nonresidents.  Iowa  Const, 
art.  1,  §  20,  forbidding  laws  granting  to 
any  citizen  or  class  of  citizens  privileges 
or  immunities  which  on  the  same  terms 
shall  not  equally  belong  to  all  citizens,  re- 
stricts the  legislature  and  is  a  limitation 
on  the  common  council  of  a  city,  and  pre- 
vents any  discrimination  against  nonresi- 
dents of  a  city  in  occupation  or  license 
taxes.  Ideal  Tea  Co.  v.  Salem  (Ore.) 
1917D-684. 

17.  Employment  Agencies — ^Validity  of 
Begulation.  The  enforcement  by  the  at- 
torney general  and  county  prosecuting  at- 
torney of  the  provisions  of  the  Washing- 
ton employment  agency  law  (Wash.  Laws 
1915,  c.  1),  making  it  criminal  to  collect 
fees  from  workers  for  furnishing  them 
with  employment  or  with  information 
leading  thereto,  may  be  restrained  by  a 
coui-t  of  equity  at  the  instance  of  persons 
conducting  employment  agencies  under 
municipal  licenses  who  assert  that  their 
business  will  be  destroyed,  contrarv  to 
U.  S.  Const.  14th  Am^nd.  (9  Fed.  St.  Ann. 
392)  by  the  enforcement  of  such  statute. 
Adams  v.  Tanner  (U.  S.)  1917D-973. 

(Annotated.) 

18.  Prohibition,  not  regulation,  is  what 
is  accomplished  by  the  provisions  of  the 
Washington  agency  law  (Wash.  Laws 
1915,  c.  1),  making  it  criminal  to  collect 
fees  from  workers  for  furnishing  them 
with  employment  or  information  leading 
to  such  employment,  although  fees  may 
still  be  collected  from  those  seeking  work- 
ers.    Adams  v.  Tanner  (U.  S.)  1917D-973. 

(Annotated.) 


19.  The  right  of  the  individual  under 
U.  S.  Const.  14th  Amend.  (9  Fed.  St.  Ann. 
392)  to  engage  in  a  useful  and  lawful 
business  is  unwarrantably  infringed  by 
the  provisions  of  the  Washington  employ- 
ment agency  law  (Wash.  Laws  1915,  c.  1),  ' 
enacted  in  the  purported  exercise  of  the 
police  power,  which  make  it  criminal  to 
demand  or  receive,  either  directly  or  in- 
directly, from  any  person  seeking  employ- 
ment, or  from  any  person  on  his  or  her 
behalf,  any  remuneration  or  fee  for  fur- 
nishing such  person  with  employment  or 
with  information  leading  thereto.  Adams 
V.  Tanner  (U.  S.)  1917r)-973. 

(Annotated.) 

20.  Trading  Stamps— Imposition  of  Li- 
cense Tax— Validity.  There  is  such  a  dif- 
ference between  the  selling  of  goods  ac- 
companied by  coupons,  profit-sharing  cer- 
tificates, or  other  evidences  of  indebted- 
ness or  liability  redeemable  in  premiums, 
and  the  selling  of  goods  without  such  in- 
ducements to  purchasers,  that  the  imposi- 
tion upon  the  former  business  of  an  addi- 
tional license  tax  for  each  place  in  each 
and  every  county  in  which  said  business 
is  conducted,  as  is  done  by  Florida  Laws 
1913,  c.  6421,  §  35,  does  not  offend  against 
the  equal  protection  of  the  laws  clause  of 
the  federal  constitution.  East  v.  Van 
Deman,  etc.  Co.  (U.  S.)  1917B-455. 

(Annotated.) 

21.  The  permission,  if  any,  granted  by 
the  amendment"  of  the  Act  of  Julv  1, 
1902  (32  Stat,  at  L.  715,  c.  1371,  3  Fed. 
St.  Ann.  748),  §  2,  to  U.  S.  Rev.  Stat. 
§  3394,  to  inclose  in  packages  of  tobacco 
redeemable  coupons,  profit-sharing  certi- 
ficates, etc.,  does  not  extend  to  retail  sales 
of  such  packages  within  a  state  so  as  to 
invalidate  state  restrictions  upon  such 
sales.  Bast  v.  Van  Deman,  etc.  Co.  (U. 
S.)    1917B-455.  (Annotated.) 

22.  The  delivery  by  a  Florida  mer- 
chant of  coupons,  profit-sharing  certifi- 
cates, or  other  evidence  of  indebtedness  or 
liability  redeemable  in  premiums,  in  con- 
nection with  sales  of  merchandise  at  re- 
tail, is  not  interstate  commerce  so  as  to 
be  protected  against  the  imposition  of  a 
state  license  tax,  although  the  coupons 
may  have  been  inserted  in  the  retail  pack- 
ages by  the  manufacturer  or  shipper  out- 
side the  state,  and  are  redeemable  outside 
the  state,  cither  by  such  manufacturer  or 
shipper,  or  by  some  other  agency  outside 
the  state.  Rast  v.  Van  Deman,  etc.  Co. 
(U.  S.)   1917B-455.  (Annotated.) 

23.  Detectives — Bond  of  Private  Detec- 
tive—Right of  Third  Person  to  Sue.     Un-    ' 
der    Mass.    Rev.    Laws,    c.    108,  §§  36,    37, 
respectively,   providing   for    the    licensing 
of   private   detectives   and   the   giving   of 

a  bond  for  the  proper  discharge  of  the 
services  which  they  may,  by  virtue  of  such 
licenses,  have,  making  it  a  misdemeanor 
to  engage  in  the  business  of  private  detec> 


LICENSES. 


523 


tive  work  without  license,  the  bond  is ' 
solely  for  the  benefit  of  the  detective's 
employees,  and  a  third  person,  with  no 
contractual  relations  with  the  detective, 
cannot  recover  against  his  bondsman. 
Frost  V.  American  Surety  Co.  (Mass.) 
1917A-583.  (Annotated.) 

24.  "Wholesale  Vender"  —  Meaning  of 
Term.  A  person  engaged  in  the  business 
of  purchasing  cattle,  slaughtering  them, 
and  selling  the  beef  and  other  products 
from  the  slaughtered  animals  to  dealers, 
is  a  "wholesale  vender"  of  merchandise, 
within  the  Pa.  Act  of  May  2,  1899  (P.  L. 
184),  which  imposes  a  mercantile  license 
tax  on  wholesale  venders.  Common- 
wealth V.  Consolidated  Dressed  Beef  Co, 
(Pa.)   1917A-966. 

25.  "Dealer"  —  Meaning  of  Term.  A 
purchaser  of  material  for  resale  is  a 
"dealer"  within  the  Pa.  Act  of  May  2, 
1899  (P.  L.  194),  providing  for  the  imposi- 
tion of  a  mercantile  license  tax  upon 
dealers  in  goods,  wares,  and  merchandise. 
Commonwealth  v.  Consolidated  Dressed 
Beef  Co.  (Pa.)   1917A-966. 

(Annotated.) 

26.  Complaint  for  Violation  of  Act 
Negativing  Exceptions.  The  fact  that  the 
complaint  upon  which  applicant  was  con- 
victed contained  an  allegation  that  de- 
fendant (applicant)  was  not  an  ex  soldier 
or  sailor  of  the  United  States  honorably 
discharged  does  not  warrant  the  granting 
of  the  writ  of  habeas  corpus,  since,  as 
the  proviso  relating  to  such  persons  does 
not  relieve  them  from  payment  of  the 
state  license  tax  imposed  by  the  act,  but 
merely  from  local  license  fees,  such  allega- 
tions are  mere  surplusage.  Matter  of  Gil- 
strap  (Cal.)  1917A-1086. 

27.  Necessity  of  Uniformity.  The  pro- 
visions of  the  constitution  requiring  all 
taxes  to  be  uniform  and  to  be  levied  and 
collected  under  general  laws,  which  shall 
prescribe  such  regulations  as  shall  insure 
a  just  valuation  of  all  property,  refer  to 
taxation  according  to  the  commonly  ac- 
cepted meaning  of  that  term,  and  do  not 
apply  to  license  or  registration  fees. 
Matter  of  Kessler  (Idaho)   1917A-228. 

28.  Occupations  Subject  to  —  Hotel  or 
Lodging-house.  The  business  of  keeping 
a  hotel,  lodging-house,  or  rooming-house 
is  one  so  far  affecting  the  public  health, 
morals,  or  welfare  that  it  is  competent 
for  the  legislature,  in  the  exercise  of  the 
police  power,  to  authorize  municipal 
authorities  to  require  persons  conducting 
such  a  business  to  obtain  a  license.  Cut- 
singer  V.  Atlanta  (Ga.)  1916C-280. 

(Annotated.) 

29.  The  conferring  by  the  legislature,  in 
general  terms,  of  the  power  to  grant  or 
refuse  licenses  of  the  character  mentioned 
in  the  preceding  headnote,  in  the  discre- 
tion of  the  municipal  council,  without  pre- 


scribing the  bounds  of  such  discretion, 
will  not  ipso  facto  render  the  grant  of 
power  void,  as  being  an  effort  to  confer 
arbitrary  power,  but  will  be  treated  as 
authorizing  the  municipal  authorities  to 
exercise  a  reasonable  discretion  in  the 
grant  or  refusal  of  such  licenses.  Cut- 
singer  V.  Atlanta  (Ga.)  1916C-280. 

(Annotated.) 

30.  After  the  thirteenth  section  of  the 
Ga.  act  approved  August  19,  1912  (Acts 
1912,  pp.  562,  573),  had  provided  that  the 
keepers  of  hotels,  lodging-houses,  and 
rooming-houses  in  Atlanta  should  apply 
to  the  mayor  and  general  council  for  a 
license,  which  might  be  granted  or  re- 
fused in  the  discretion  of  that  body,  if 
by  the  further  provision  that  "their  action 
in  the  premises  shall  be  final"  it  was  in- 
tended to  confer  arbitrary  power  upon  the 
mayor  and  general  council,  by  declaring 
that  even  for  an  arbitrary  or  capricious 
use  of  such  power  there  eould  be  no  re- 
sort to  the  courts  for  relief,  it  would  be 
violative  of  the  Fourteenth  Amendment  to 
the  constitution  of  the  United  States,  and 
also  of  the  clause  of  the  state  constitution 
which  declares  that  no  person  shall  be  de- 
prived of  life,  liberty,  or  property  except 
by  due  process  of  law.  If  it  be  construed 
to  mean  that  the  municipal  officers  can 
use  a  reasonable  administrative  discretion 
in  regard  to  the  granting  or  refusing  of 
the  licenses  mentioned  (which  are  licenses 
under  the  police  power),  and  that  their 
action  shall  be  final  in  the  sense  that  no 
appeal  lies  to  any  other  body  or  court  for 
the  purpose  of  reviewing  their  y^tion,  the 
provision  will  not  be  violative  of  the 
clauses  of  the  state  and  federal  constitu- 
tions mentioned. 

Applying  the  rule  that  where  an  act  of 
the  legislature  is  susceptible  of  two  con- 
structions, under  one  of  which  it  would 
be  unconstitutional  and  under  the  other 
constitutional  the  latter  is  to  be  pre- 
ferred, the  construction  last  hypotheti- 
cally  stated  in  the  preceding  note  will  be 
placed  upon  the  clause  of  the  act  under 
consideration.  Cutsinger  v.  Atlanta  (Ga.) 
1916C-280.  (Annotated.) 

31.  Blue  Sky  Law.  The  equal  protec- 
tion of  the  laws  is  not  denied  bv  the- pro- 
visions of  Ohio  Gen.  Code,  §§  6373-1  to 
6373-24,  forbidding  dealing  in  corporate 
or  quasi  corporate  securities  without  a 
license,  by  reason  of  the  fact  that  the 
statute  discriminates  between  cases  where 
more  or  less  than  50  per  cent  of  an  issue 
of  bonds  is  included  in  a  sale  to  one  per- 
son; between  securities  which  have  and 
those  which  have  not  been  authorized  by 
the  state  public  service  commission;  be- 
tween securities  issued  by  certain  corpora- 
tions organized  under  the  state  laws  and 
those  which  are  not;  between  an  owner 
who  sells  his  securities  in  a  single  trans- 
action and  one  who  disposes  of  them  in 


524 


DIGEST. 

1916C5— 1918B. 


Bnccessive  transactions;  between  a  bank 
or  trust  company  that  sells  at  a  commis- 
sion of  not  more  than  2  per  cent  and  one 
which  sells  at  a  higher  commission;  be- 
tween securities  which  have  and  those 
whiieh  have  not  been  published  in  regular 
market  reports;  between  single  sales  of 
$5,000  or  more  and  smaller  transactions; 
between  securities  upon  which  there  has 
and  has  not  been  a  default  as  to  principal 
or  interest;  between  cases  where  the  in- 
formation required  is  or  is  not  contained 
in  a  standard  approved  manual;  between 
cases  in  which  the  vendor  proposes  to  sell 
securities  for  which  he  has  and  those  for 
which  he  has  not  paid  90  per  cent  of  his 
selling  price;  and  discriminates  against 
securities  when  any  part  of  the  proceeds 
is  to  be  applied  in  payment  for  patents, 
services,  good  will,  or  for  property  outside 
of  the  state;  against  securities  issued  by 
taxing  subdivisions  of  other  states; 
against  securities  which  have  not  from 
time  to  'time  for  six  months  been  pub- 
lished in  the  regular  market  reports  or 
the  news  columns  of  a  daily  newspaper  of 
general  circulation  in  the  state;  and  dis- 
criminates where  the  securities  are  or  are 
not  of  manufacturing  or  transportation 
companies  in  the  hands  of  bona  fide  pur- 
chasers on  a  specified  date  if  such  com- 
panies were  on  that  date  and  at  the  time 
of  sale  going  concerns;  where  the  disposal 
is  or  is  not  made  for  a  commission  of  less 
than  1  per  cent  by  a  licensee  who  is  a 
member  of  a  stock  exchange  and  who  is 
conducting  an  established  and  lawful 
business  in  the  state,  regularly  open  for 
public  patronage;  where  the  securities  are 
or  are  not  those  of  a  common  carrier  or  of 
a  company  organized  under  the  state  laws 
and  engaged  principally  in  the  business  of 
manufacturing,  transportation,  etc.,  and 
the  whole  or  a  part  of  the  property  upon 
which  securities  are  based  is  located 
within  the  state;  and  provides  for  such 
delays  in  the  issue  of  a  license  and  in  the 
subsequent  conduct  of  business  thereunder 
as  to  hinder  substantially,  and  in  many 
cases  to  prevent,  sales.  Hall  v.  Geiger- 
Jones  Co.  (U.  S.)   1917C-643. 

(Annotated.) 

52.  Congressional  inaction  leaves  the 
state'  free  to  impose  such  an  indirect  or 
incidental  burden  upon  interstate  com- 
merce as  may  result  from  the  provisions 
of  Ohio  Gen.  Code,  §§  6373-1  to  6373-24, 
forbidding  dealers  from  disposing  or  offer- 
ing to  dispose  of  corporate  or  quasi  cor- 
porate securities  "within  the  state"  with- 
out first  having  obtained  a  license  from  a 
specified  state  official.  Hall  v.  Geiger- 
Jones  Co.  (U.  S.)  1917C-643. 

(Annotated.) 

33.  Dealing  in   corporate   or   quasi   cor- 

fiorate  securities  without  first  securing  a 
icense  from  a  specified  state  official,  ob- 
tainable only  upon  an  application  setting 


t)ut  certain  information  respecting  the 
applicant's  business,  with  references  estab- 
lishing good  repute,  may  be  forbidden  by 
a  state,  in  the  exercise  of  its  police  power, 
as  is  done  by  Ohio  Gen.  Code,  §§  6373-1 
to  6373-24,  notwittistanding  the  declara- 
tions of  U.  S.  Const.  14th  Amend.  (9  Fed. 
St.  Ann.  416,  538),  that  no  person  shall 
be  deprived  of  his  life,  liberty,  or  prop- 
erty without  due  process  of  law,  or 
denied  the  equal  protection  of  the  laws. 
Hall  V.  Geiger-Jones  Co.  (U.  S.  1917C-643. 

(Annotated.) 

34.  Dealers  in  corporate  securities  can- 
not successfully  urge  against  the  validity 
of  the  provisions  of  Ohio  Gen.  Code, 
§§  6373-1  to  6373-24,  making  a  license  a 
condition  precedent  to  dealing  in  corpo- 
rate or  quasi  corporate  securities,  that 
while  the  statute  in  form  prohibits  sales, 
it  at  the  same  time  necessarily  prevents 
purchases,  and  thereby  shields  contemplat- 
ing purchasers  from  the  loss  of  property 
by  the  exercise  of  their  own  defective 
judgment,  and  puts  them,  as  well  as  the 
sellers,  under  guardianship.  Hall  t. 
Geiger-Jones  Co.  (U.  S.)  1917C-643. 

(Annotated.) 

35.  Merchants — ^Validity  of  Begulation. 
The  Wash.  Commission  Merchants'  Law 
(Eem.  &  Bal.  Code,  §§  7024-7035)  is  not 
invalid  because  requiring  a  small  license 
fee  from  such  person;  the  fee  not  being 
oppressive.  State  v.  Bowen  &  Co. 
(Wash.)    1917B-625.  (Annotated.) 

36.  Failure  to  Pay  License  Fee — Injunc- 
tion  Against  Continuing  Business.  Where 
it  appeared  that  the  manager  of  the  de- 
fendant telegraph  company  had  been  con- 
victed for  not  paying  the  city  license  as 
required,  and  it  was  not  shown  wherein 
an  action  at  law  to  recover  the  license 
would  prove  ineffective,  a  bill  to  enjoin 
the  company  from  carrying  on  intrastate 
business  from  that  office  until  payment  of 
the  license  is  without  equity,  and  should 
be  dismissed.  Postal  Telegraph-Cable  Co. 
V,  Montgomery  (Ala.)   191SB-554. 

37.  Provisions  for  Eevocation — Validity. 
Section  6346-1  et  seq..  General  Code 
(106  Ohio  Laws,  p.  281),  is  a  constitu- 
tional exercise  of  police  power  by  the  gen- 
eral assembly  of  Ohio.  The  provision  in 
section  6364-2  of  said  act,  in  so  far  as 
it  relates  to  the  revocation  of  a  license 
issued  pursuant  to  the  act,  is  reserved  for 
future  consideration  in  cases  in  which 
such  questioA  may  properly  be  raised. 
Wessell  V.  Timberlake  (Ohio)    1918B-402. 

(Annotated.) 

38.  Construction  of  Statute.  If  the 
body  of  an  act  relating  to  occupation 
licenses  is  in  its  terms  broad  enough  to 
cover  county  as  well  as  territorial  licenses, 
the  fact  that  one  proviso  attached  thereto 
is  limited  to  territorial  licenses  does  not 
require  the  limitation  of  a  second  proviso 


LICENSE  TAXES— LIENS. 


525 


which    is    general    in    its    terms.      In    re 
Kalana  (Hawaii)  1916D-1094. 

Notes. 

Validity  of  statute  or  ordinance  licens- 
ing or  regulating  hotels,  lodging  or  room- 
ing houses,  or  the  like.     1916C-290. 

Private  detectives.    1917A-584. 

Meaning  of  "deal"  or  "dealer."  191 7 A- 
949. 

Right  of  person  entitled  to  license  w 
evidence  thereof  to  do  act  for  which, 
license  is  required.     1917B-145. 

State  Or  municipal  regulation  of  tran- 
sient merchants.     1917E-o05. 

Validity  of  license  tax  imposed  on 
owner  of  premises  for  extracting  mineral 
or  turpentine  therefrom  or  cutting  timber 
thereon.     1918A-678. 

LICENSE  TAXEa 
See  Licenses. 

LIENS. 

See  Mechanics'  Liens. 

Of  attorneys,  see  Attorneys,  36-42. 

Effect  of  bankruptcy,  see  Bankruptcy,  16. 

Of  chattel  mortgage,  see  Chattel  Mort- 
gages, 15-28. 

Of  execution,  see  Executions,  6,  7. 

Discharge  of  lien  by  minor's  disaffirmance, 
see  Infante,  14. 

Innkeeper's  lien,  see  Innkeepers,  11. 

Judgment  lien,  see  Judgments,  23-29. 

No  jury  as  of  right  in  suit  to  enforce,  see 
Jury,  8. 

Bights  of  owner  of  land  subject  to  lien, 
on  paying  lien,  see  Subrogation,  10, 
11. 

Liens  for  taxes,  see  Taxation,  87-89. 

Of  special  assessments,  priority,  see  Taxa- 
tion, 124,  125. 

Vendor's  lien,  see  Vendor  and  Purchaser, 
16-19. 

1.  For  Advancements  —  Subsequently 
Acquired  Property.  Advancements  made 
on  the  faith  of  certain  property  may  give 
rise  to  an  equitable  lien,  and  such  a  lien 
may  attach  to  property  to  be  created,  and 
not  in  being  at  the  time  of  the  agreement, 
and  does  not  depend  upon  possession,  but 
may  exist  by  implication  growing  out  of 
facts  and  circumstances  creating  the 
equitable  right.  Sieg  v.  Greene  (Fed.) 
1917C-1006. 

2.  Fine  and  Costs.  Kirby's  Ark.  Dig. 
§  2467,  providing  that  the  real  and  per- 
sonal   property    of    one    charged    with    a 

•  criminal  offense  shall  be  bound  from  the 

•  time  of  his  arrest  or  the  finding  of  an 
indictment  against  him,  whichever  shall 
first  happen,  for  the  payment  of  all  fines 
and  costs  which  he  may  be  adjudged  to  pay, 
creates  a  lien  upon  such  property,  not  only 
in  the  hands  of  accused,  but  in  the  hands 
of  any  other  person  possessing  or  holding 


it,  after  the  arrest  or  indictment  found, 
until  accused  is  discharged  or  fines  and 
costs  adjudged  against  him  are  paid, 
which  lien  also  attaches  to  the  accused's 
after-acquired  property.  Western  Tie, 
etc.  Co.  V.  Campbell  (Ark.)  1916C-943. 

3.  Failure  to  Secord  —  Subjection  to 
Subsequent  Liens.  Under  Kirby's  Ark. 
Dig.  §  2467,  binding  the  property  of  an 
accused  from  the  time  of  his  arrest  or  the 
finding  of  an  indictment  against  him  to 
the  payment  of  fines  and  costs  adjudged 
against  him,  and  section  5396  providing 
that  every  mortgage  shall  be  a  lien  on  the 
mortgaged  property  from  the  time  it  is 
filed  in  the  recorder's  office  for  record,  the 
state  after  indictment  had  a  valid  lien  for 
fines  and  costs  prior  to  a  mortgage  of 
property  of  accused,  executed  after  the 
indictment,  but  not  recorded  until  several 
months  after  execution.  Western  Tie,  etc. 
Co.  V.  Campbell  (Ark.)  1916C-943. 

3^.  Removal  of  Property  Subject  to  Lien 
— ^Validity  of  Statute.  Section  5140  of 
the  Idaho  Revised  Codes,  which  provides 
for  the  recovery  of  damages  from  any  one 
who  eloigns  certain  property  on  which  -a 
lien  exists  for  labor  performed,  is  consti- 
tutional and  valid.  Anderson  v.  Great 
Northern  R.  Co.  (Idaho)   1916C-191, 

4.  A  statute  (Idaho  Rev.  Codes,  §  5125) 
which  confers  a  lien  in  favor  of  laborers 
who  perform  work  upon  or  aid  in  obtain- 
ing or  securing  "sawlogs,  spars,  piles, 
cordwood,  or  other  timber,"  is  sufficiently 
broad  and  comprehensive  to  confer  a  lien 
in  favor  of  persons  who  work  upon  or  as- 
sist in  obtaining  or  securing  railroad  ties, 
and  the  words  "other  timber"  are  suffi- 
ciently comprehensive  to  include  ties. 
Anderson  v.  Great  Northern  R.  Co. 
(Idaho)    1916C-191.  (Annotated.) 

5.  The  purpose  and  intent  of  section 
5140  of  the  Idaho  Revised  Codes  is  to  ren- 
der every  person  who  injures,  destroys,  or 
removes  any  of  the  property  therein 
described  on  which  a  lien  exists  liable  for 
the  amount  of  the  claim  held  against  the 
property,  or,  if  the  property  be  of  less 
value  than  the  lien  claimed,  then  it  al- 
lows the  claimant  the  damages  which  he 
has  sustained  by  reason  of  the  removal  or 
destruction  of  the  particular  property. 
Anderson  v.  Great  Northern  B.  Co. 
(Idaho)    1916C-191. 

6.  Persons  Furnishing  Supplies — Valid- 
ity of  Statute.  Chapter  226,  Idaho  Sess. 
Laws  1911,  giving  a  lien  on  logs  in  favor 
of  a  person  furnishing  supplies,  groceries 
or  feed  to  a  contractor  or  board  to  an 
employee  is  invalid,  void,  and  inoperative, 
for  the  reason  that  it  does  not  provide 
for  any  notice  to  the  owner  of  the  prop- 
erty on  which  the  lien  is  to  attach,  and 
affords  him  no  means  or  method  of  pro- 
tecting himself  against  such  claim,  and 
does  not   provide  a  method  of  procedure 


526 


DIGEST. 

1916C— 1918B. 


for  taking  his  property  for  such  claim 
by  "due  process  of  law,"  and  does  not 
give  such  property  owner  the  "equal  pro- 
tection of  the  law."  Anderson  v.  Great 
Northern  E.  Co.  (Idaho)   1916C-191. 

7.  The  statute  (Rev,  Idaho  Codes, 
§  5125),  confers  the  same  lien  in  favor  of 
every  person  "performing  labor  upon" 
sawlogs,  etc.,  as  it  confers  on  every  per- 
son who  assists  in  "obtaining  or  securing" 
such  material.  Anderson  v.  Great  North- 
ern R.  Co.  (Idaho)  1916C-191. 

(Annotated.) 

8.  Logger's  Lien  —  Persons  Entitled. 
Section  5125  of  the  Idaho  Revised  Codes, 
which  provides  that  "every  person  per- 
forming labor  upon,  or  who  shall  assist  in 
obtaining  or  securing,  sawlogs,  spars, 
piles,  cordwood,  or  other  timber,  or  in  ob- 
taining or  securing  the  same,"  is  suffi- 
ciently broad  and  comprehensive  to  confer 
a  lien  upon  laborers  who  work  in  the 
employ  of  a  contractor  in  moving  a  large 
quantity  of  railroad  ties  a  distance  of  a 
couple  hundred  feet  from  the  place  where 
they  were  piled  upon  the  railroad  com- 
pany's right  of  way  and  loading  thom 
upon  cars  for  transportation.  Anderson 
v.  Great  Northern  B.  Co.  (Idaho)  1916C- 
191.  (Annotated.) 

9.  Loan  of  Purchase  Money.  A  lien 
upon  land  is  acquired  by  one  who  lends 
money  for  its  purchase,  under  a  promise 
that  he  is  to  receive  a  mortgage,  and  in 
the  meantime  is  given  the  undelivered 
deed  to  hold  as  security  for  the  perform- 
ance of  that  agreement.  Warren  Mort- 
gage Co.  v.  Winters  (Kan.)  1916C-956. 

Notes. 

By  whom  and  for  what  labor  or  services 
logger's  lien  may  be  claimed.     1916C-198. 

Priority  as  between  purchase-money 
mortgage  and  other  lien  or  claim.  I916C- 
945. 

LITE  ESTATES. 

Acceleration    of    remainder,    see    Eemaln- 
ders  and  Beversions,  18. 

1.  Right  to  Recover  for  Injury  to  In- 
heritance. While  the  life  tenant  may 
recover  for  injury  by  negligence  of  a 
stranger  not  only  to  the  life  estate,  but 
to  the  remainder,  it  is  not  on  the  theory 
of  waste,  but  of  trusteeship.  Rogers  v. 
Atlantic,  etc.  Co.  (N.  Y.)  1916C-877. 

(Annotated.) 

2.  Right  of  Life  Tenant  to  Recover  for 
Taxes  and  Improvements.  Where  the  sur- 
viving spouse  is  tenant  for  life  of  the 
homestead  of  the  deceased  spouse  and 
also  administrator  of  her  estate,  he  can- 
not charge  the  estate  with  taxes  paid  by 
him  upon  the  homestead  nor  with  the 
value  of  improvements  placed  bj*  him 
thereon.  Nordlund  v.  Dahlgren  (Minn.) 
1917B-941.  (Annotated.) 


3.  Duty  to  Pay  Taxes.  It  is  the  duty 
of  a  tenant  for  life  in  possession,  and  en- 
joying the  rents  and  profits  of  land,  to 
pay  the  taxes  thereon.  Jinkiaway  v. 
Ford   (Kan.)    1916D-321. 

4.  Conveyance  by  Life  Tenant.  A  life 
tenant's  purported  conveyance  of  a  fee  is 
effective  to  pass  the  life  interest  of  the 
grantor.  Vidmer  v.  Lloyd  (Ala.)  1917A- 
576.  (Annotated.) 

5.  The  recognized  exception  to  the  prin- 
ciple that  provisions  against  alienating 
life  interests  are  void  is  in  the  case  of  a 
conveyance  for  the  benefit  of  a  married 
woman  for  her  separate  estate.  Lee  v. 
Gates   (N.  Car.)   1917A-514. 

Notes. 

"Validity  of  conveyance  of  life  estate. 
1917A-579. 

Right  of  life  tenant  to  recover  damages 
for  injury  both  to  life  estate  and  to  in- 
heritance.    1916C-881. 

LIFE  INSURANCE. 

1.  Insurable  Interest,  526. 

2.  Payment  of  Premiums,  528. 

3.  Warranties  and  Representations,  528. 

4.  Construction  of  Policy,  628. 

a.  In  General,  528. 

b.  Beneficiaries,  528. 

c.  Incontestable  Clause,  529. 

d.  Cause  of  Death,   530. 

e.  Control  of  Policy,  530. 

5.  Proof  of  Death,  531. 

6.  Assignment  of  Policy,  531. 

a.  In  General,  531. 

b.  Assignee      Having     No     Insurable 

Interest,  532. 

7.  Action  on  Policy,  532. 

a.  Pleading,  532. 

b.  Findings,  532. 

c.  Defenses,  532. 

Interest  in  policy  aa  asset  of  bankrupt, 
see  Bankruptcy,  10. 

Contracts  of  associations,  see  Beneficial 
Associations,  1-7. 

Maintaining  policy  of  lunatic,  see  Insan- 
ity, 17. 

1.     INSURABLE  INTEREST. 

1.  Insurable  Interest  —  Necessity.  One 
who  has  no  insurable  interest  in  the  life . 
of  another  cannot  be  the  beneficiary  in  a' 
policy  issued  upon  his  life  and  cannot 
collect  the  insurance  upon  the  insured's 
death.  Metropolitan  L.  Ins.  Co.  v.  Nelson 
(Ky.)   1918B-1182. 

2.  Insurable  Interest  of  Creditor.  A 
creditor,  to  the  extent  of  his  debt,  ha.s  an 
insurable  interest  in  the  life  of  his  debtor. 
Metropolitan  L.  Ins.  Co.  v.  Nelson  (Ky.) 
1918B-1182. 

3.  Payment  of  Premiums  by  Beneficiary 
— Lack    of    Insurable    Interest.      Where 


LIFE  INSURANCE. 


527 


there  was  no  understanding  between  in- 
sured procuring  a  life  policy,  and  the 
beneficiary  having  no  insurable  interest  at 
the  time  of  the  issuance  of  the  policy,  the 
beneficiary,  paying  some  of  the  premiums 
until  the  death  of  insured,  can  recover  on 
the  policy  as  against  the  objection  that  it 
was  a  wagering  contract.  Langford  v. 
National  Life,  etc.  Ins.  Co.  (Ark.)  1917A- 
1081.  (Annotated.) 

4.  Necessity — ^Policy  Taken  Out  by  In- 
sured. One  may  take  out  a  life  policy  on 
his  life  and  make  it  payable  to  one  having 
no  insurable  interest  in  his  life.  Lang- 
ford  V.  National  Life,  etc.  Ins.  Co.  (Ark.) 
1917A-1081. 

5.  Where  a  person  procures  insurance 
upon  the  life  of  another,  it  is  the  general 
rule  that  he  must  prove  an  insurable  in- 
terest in  such  life  in  order  to  recover  upon 
such  policy;  but,  where  a  person  insures 
his  own  life  and  appoints  another  to  re- 
ceive the  proceeds  of  such  insurance,  the 
appointee  establishes  a  prima  facie  right 
to  recover  by  proving  the  contract  of  in- 
surance and  the  happening  of  the  event 
upon  which  it  is  to  become  payable.  If 
facts  exist  which  preclude  such  recovery 
they  are  matters  of  defense.  Christenson 
v.  Madson  (Minn.)  1916C-584. 

(Annotated.) 

6.  Necessity  and  Nature  of  Insurable 
Interest.  One  taking  out  a  policy  of  in- 
surance in  the  life  of  another  person  for 
his  own  benefit  must  have  an  interest  in 
the  continuance  of  the  life  of  the  insured; 
an  "insurable  interest"  being  such  an  in- 
terest arising  from  the  relations  of  the 
parties  as  will  justify  a  reasonable  ex- 
pectation of  advantage  or  benefit  from 
+he  continuance  of  the  insured's  life 
though  it  is  not  necessary  that  such  ad- 
vantage be  capable  of  pecuniary  estima- 
tion. Crismond's  Admx.  v.  Jones  (Va.) 
1917C-155. 

7.  Son-in-Law    and    Father-in-Law.      A 

son  has  an  insurable  interest  in  his 
father's  life,  so  that  the  father's  assign- 
ment of  a  policy  in  consideration  that  the 
?on  assume  the  payments  thereon,  prior  to 
Va.  Code,  1904,  §  2859a,  permitting  assign- 
ment of  a  policy  for  a  valuable  considera- 
tion without  regard  to  the  assignee's  in- 
surable interest,  is  valid;  but  a  son-in-law 
has  no  insurable  interest  in  his  father-in- 
law's  life,  and  hence  the  assignment  of  a 
policy  to  him  in  consideration  that  he 
assume  the  payments  thereon  is  invalid, 
except  in  so  far  as  acquiesced  in  by  the 
adult  children  of  insured  uniting  with 
him  in  thr-  assignment.  Crismond's  Admx. 
V.  Jones  (Va.)   1917C-155.       (Annotated.) 

8.  As  Between  Spouses  or  Parent  and 
Child.  Based  exclusively  upon  affinity^  a 
wife  has  an  insurable  interest  in  her  huH- 
hand  and  the  husband  in  his  wife;  and 
based   exclusively   upon   consanguinity,    a 


father  has  an  insurable  interest  in  his 
child  and  a  child  in  the  life  of  its  father. 
Crismond's  Admx.  v.  Jones  (Va.)  1917C- 
155. 

9.  As  Between  Husband  and  Wife.  In 
such  case  the  wife  is  entitled  to  reim- 
bursement from  the  proceeds  of  the  policy 
for  the  amount  of  the  premiums  paid  by 
her  with  interest;  the  benefit  thereof  hav- 
ing been  obtained  by  the  husband  in  con- 
sideration of  and  by  reason  of  the  mar- 
riage. Schauberger  v.  Morel's  Admr. 
(Ky.)   1917C-265.  (Annotated.) 

10.  Divorce  Between  Insured  and  Bene- 
ficiary—Eflfec*.  Under  Ky.  St.  §  2121,  pro- 
viding that  upon  final  judgment  of  divorce 
from  the  bond  of  matrimony  the  parties 
shall  be  restored,  such  property  not  dis- 
posed of  at  the  commencement  of  tho  ac- 
tion as  either  obtained  from  or  through 
the  other  before  or  during  the  marriage 
in  consideration  thereof,  and  Civ.  Code 
Prac.  §  425,  requiring  every  such  judg- 
ment to  contain  an  order  restoring  such 
property,  where  a  husband  procures  a  life 
insurance  policy  on  his  own  life  naming 
his  wife  as  beneficiary,  but  reserving  to 
himself  the  right  to  change  the  bene- 
ficiary, and  the  parties  are  afterward 
divorced  by  a  judgment  of  a  court  of 
competent  jurisdiction,  the  wife  is  there- 
by divested  of  all  interest  in  the  policy, 
and  cannot  claim  the  proceeds  upon  the 
husband's  death,  though  all  of  the  prem- 
iums thereon  were  paid  by  her.  Schau- 
berger V.  Morel's  Admr.  (Ky.)  1917C- 
265.  (Annotated.) 

11.  Effect  of  Divorce.  Where  a  woman, 
after  the  termination  of  her  insurable  in- 
terest by  divorce  from  her  husband,  never- 
theless continued  until  his  death  to  pay 
premiums  on  a  policy  on  his  life  in  which 
she  had  been  beneficiary,  she  is  entitled, 
on  his  death,  to  recover  from  the  insur- 
ance company  only  the  amounts  paid  by 
her  as  premiun^s,  with  interest.  Western, 
etc.  Life  Ins.  Co.  v.  Webster  (Ky.)  1917C- 
271. 

12.  Where  a  woman,  living  with  a  man 
as  his  wife  under  a  formal  but  illegal 
m-irriage,  had  him  procure  a  policy  on 
his  life  containing  a  change  of  bene- 
ficiary clause  and  she  paid  the  premiums 
therefor,  a  judgment  annulling  her  mar- 
riage as  void  ad  initio  terminates  her 
insurable  interest  in  his  life;  Ky.  St. 
§  2121,  as  to  restoration  of  property  to 
either  spouse  upon  divorce'  "from  the  bond 
of  matrimony,"  not  applying.  Western, 
etc.  Life  Ins.  Co.  v.  Webster  (Ky.)  1917C- 
271. 

13.  What  Relationship  Creates  Insuivable 
Interest.  "Insurable  interest"  is  no>  de- 
pendent upon  who  pays  the  premiums,  but 
solely  upon  the  relationship  which  the 
parties  bear  toward  each  other,  wMch 
must  be  such  as  will  justify  a  reasonable 


B28 


expectation  of  advantage  or  "benefit,  to 
the  party  obtaining  the  insurance,  from 
the  continuance  of  the  insured  life.  West- 
ern, etc.  Life  Ins.  Co.  v.  Webster  (Ky.) 
1917C-271.  * 

14.  What  Constitutes  Insurable  Interest 
— Putative  Wife,  Where  a  man  and 
woman  life  together  as  husband  and  wife, 
either  has  an  insurable  interest  in  the  life 
of  the  other  irrespective  of  whether  there 
is  a  valid  marriage.  Western,  etc.  Life 
Ins.  Co.  V.  Webster  (Ky.)  1917C-271. 

(Annotated.) 

15.  Wagering  Contracts.  A  policy  taken 
out  on  the  life  of  another;  by  one  who 
pays  all  the  premiums,  is  void  unless  the 
person  taking  it  out  has  at  that  time  an 
insurable  interest  in  the  life  of  the  other, 
since  otherwise  it  would  be  a  wagering 
contract  and  against  public  policy.  West- 
ern, etc.  Life  Ins.  Co.  t.  Webster  (Ky.) 
1917C-271. 


Notes. 

Relationship  by  aflBnity  as  supporting 
insurable  interest  in  life.     1917C-158. 

Eflfect  of  divorce  upon  rights  of  bene- 
ficiary in  insurance.     1917C-269. 

Selection  by  insured  of  beneficiary  not 
having  insurable  interest  in  former's 
life  as  against  public  policy.     1916C-587. 

Bight  of  insurance  beneficiary  having 
no  insurable  interest  in  life  of  insured 
to  keep  contract  alive  for  his  own  bene- 
fit. 1917A-1085. 

2.     PAYMENT  OP  PREMIUMS. 

16.  Effect  of  Failure  to  Pay  Premiums. 
The  obligation  of  a  life  insurance  con- 
tract, in  the  absence  of  contract  or  stat- 
ute otherwise  providing,  is  conditional 
upon  the  payment  of  premiums  as  they 
become  due,  and  if  the  policy  be  allowed 
to  lapse,  no  recovery  can  be  had  thereon, 
Burke  v.  Prudential  Ins.  Co.  (Mass.) 
1917E-641. 

3.     WARRANTIES  AND  REPRESENTA- 
TIONS. 

17.  "Serious  Illness."  A  representation 
by  insured  in  his  application  that  he  has 
not  had  any  "serious  illness"  means  more 
than  an  illness  which  is  temporary  in  its 
duration  and  not  attended  or  likely  to  be 
attended  by  a  permanent  impairment  of 
the   health   or  the   constitution,  and  more 

-  than  an  illness  which  was  thought  to  be 
serious  at  the  time  of  its  occurrence  and 
might  have  resulted  in  permanently  im- 
pairing the  health.  Schas  v.  Equitable 
Life  Assurance  Soc.  (N.  Car.)  1918A-679.. 

(Annotated.) 

18.  Where,  in  an  action  on  a  life  in- 
surance policy,  the  defense  is  that  in- 
sured's statement  in  his  application  that 


DIGEST. 

1916C— 1918B. 

he  had  not  had  any  serious  illness  was 
false,  and  the  evidence  was  conflicting  on 
whether  he  had  been  a  victim  of  self- 
pollution,  causing  his  health  to  be  seri- 
ously impaired  at  the  time  of  making  the 
application,  the  question  whether  he  mis- 
stated the  condition  of  his  health  is  for 
the  jury.  Schas  v.  Equitable  Life  Assur- 
ance Soc.   (N.  Car.)   1918A-679. 

(Annotated.) 

19.  Fraudulent  Misrepresentation — ^As  to 
Interest  of  Beneficiary  —  Question  for 
Jury.  Whether  insured,  procuring  a  life 
policy  payable  to  one  having  no  insurable 
interest,  perpetrated  a  fraud  on  insurer  in 
his  application  stating  that  the  bene- 
ficiary was  a  relative,  held  under  the  evi- 
dence for  the  jury.  Langford  v.  National 
Life,  etc.  Ins.  Co.  Ark.  1917A-1081. 

20.  Misstatement  of  Age  of  Applicant. 
Under  the  express  provisions  of  Code 
1906,  §  2676,  a  misstatement  in  a  contract 
of  life  insurance,  certificate,  or  policy  of 
insured's  age  does  not  invalidate  the  con- 
tract, but  merely  limits  the  recovery  to 
the  amount  which  the  premiums  paid 
would  have  purchased  at  insured's  actual 
age,  reckoning  according  to  the  rate 
tables  of  the  company.  Coplin  v.  Wood- 
men of  the  World  (Miss.)    1916D-1295. 


Notes. 

Meaning  of  term  "severe"  or  "serious" 
illness  in  application  for  life  insurance 
policy,     191SA-682, 

Misstatement  of  name  in  application  for 
insurance  as  avoiding  policy.  1916D- 
1297. 

4.     CONSTRUCTION  OF  POLICY, 
a.     In  General. 

21.  Construction  of  Policy  Against  In- 
surer. Ambiguous  provisions  of  a  life  in- 
surance policy  will  be  construed  most 
strongly  against  the  insurer,  and  in  favor 
of  the  insured.  Krebs  v.  Philadelphia 
Life  Ins.  Co.  (Pa.)  1917D-1184. 

b.     Beneficiaries. 

22.  Beneficiary  —  Persons  Included  in 
Term  "Family."  The  deceased  member 
was  the  stepfather  of  plaintiff,  the  desig- 
nated beneficiary;  they  were  members  of 
the  same  household,  when  the  certificate 
issued  and  at  the  time  of  the  member's 
death;  and  he  had  voluntarily  assumed  to 
contribute  to  the  support  of  the  house- 
hold. It  is  held  that  plaintiff  was  a 
proper  beneficiary  as  one  of  the  family 
of  the  deceased  member  and  within  the 
class  of  permitted  beneficiaries  under  the 
Illinois  statute.  Anderson  v.  Royal 
League  (Minn.)  1917C-691. 

(Annotated.) 

23.  Defendant's  by-law  is  not  more  re- 
strictive  than    the   statute,   and,   given   a 


LIFE  INSURANCE. 


529 


liberal  construction,  its  designation  of  an 
adopted  child  as  a  proper  beneficiary  em- 
braces a  stepdaughter  who  is  of  the  same 
household  with  the  member.  But  even 
were  it  held  restrictive,  the  evidence 
shows  the  by-law  to  have  been  waived 
and  defendant  estopped  from  asserting 
that  it  excludes  plaintiff.  Anderson  v. 
Eoyal  League   (Minn.)   1917C-691. 

(Annotated.) 

24.  Change  of  Beneficiary.  Under  a 
life  insurance  policy  reserving  to  insured 
the  right,  without  the  consent  of  the  bene- 
ficiary, to  change  the  beneficiary,  the 
beneficiary  had  no  vested  right,  but  only 
a  mere  expectancy  during  the  lifetime  of 
insured,  and  insured's  control  over  the 
policy  was,  subject  to  its  terms,  as  com- 
plete as  if  he  himself  had  been  the  bene- 
ficiary. Mutual  Benefit  Life  Ins.  Co.  v. 
Swett  (Fed.)   1917B-298. 

25.  Under  an  ordinary  policy  of  life  in- 
surance, in  which  there  is  no  reservation 
of  the  right  to  cut  off  or  modify  the  in- 
terest of  the  beneficiary,  the  policy  and 
the  money  to  become  due  thereunder  be- 
long, from  the  time  it  is  issued,  to  the 
person  named  in  it  as  the  beneficiary,  and 
insured  is  without  power  by  deed,  assign- 
ment, will,  surrender  of  the  policy  for  a 
new  one,  or  by  any  other  act  of  his,  to 
transfer  to  any  other  person  the  interest 
of  the  person  so  named  as  beneficiary. 
Mutual  Benefit  Life  Ins.  Co.  v.  Swett 
(Fed.)  1917B-298. 

Note. 

Persons  included  within  the  term 
"family"  when  used  to  designate  bene- 
ficiaries in  insurance  policy  or  benefit 
certificate.     1917C-694. 

c.     Incontestable  Clause. 

26.  Incontestable  Clause — Application  to 
Suicide — Time  from  Wliich  Incontestable 
Clause  Operates.  Where  a  life  insurance 
policy,  dated  October  Ist,  had  an  indorse- 
ment written  thereon  by  the  company's 
secretary,  stating  that  the  amount  of  the 
insurance  would  be  carried  as  te»m  insur- 
ance from  August  1st  to  October~lst,  all 
the  provisions  of  the  policy  not  incon- 
sistent with  that  writing  must  be  read 
into  the  contract  for  term  insurance, 
since  the  writing  was  not  a  complete  con- 
tract in  itself,  and,  if  any  of  the  provi- 
sions are  read  into  it,  all  consistent  ones 
must  be,  so  that  the  year  during  which 
by  the  terms  of  an  incontestable  clause 
the  company  did  not  assume  the  risk  of 
suicide  by  the  insured  began  to  run  from 
the  date  of  the  term  insurance,  not  from 
October  1st,  and  after  the  lapse  of  one 
year  from  that  date  the  suicide  of  the 
insured  is  no  defense.  Krebs  v.  Philadel- 
phia Life  Ins.  Co.  (Pa.)  1917D-1184. 

(Annotated.) 

34 


27.  Bisks  Included — ^Legal  Execution  of 
Insured.  An  ordinary  life  policy,  which 
contained  a  provision  that  it  should  be 
incontestable  within  two  years  after  date 
of  issue,  provided  premiums  have  been 
paid,  and  except  for  fraud,  does  not  cover 
death  of  insured  as  the  result  of  execu- 
tion for  crime,  though  such  risk  was  not 
excepted.  Scarborough  v.  American 
National  Ins.  Co.  (N.  Car.)  1917D-1181. 

28.  Effect  of  Incontestable  Clause.  A 
clause  in  an  ordinary  life  policy,  provid- 
ing that  it  should  be  "incontestable"  after 
two  years  from  its  date,  except  for  fraud, 
providing  premiums  have  been  paid, 
merely  means  that  the  provisions  of  the 
policy  will  not  be  contested,  and  is  not  a 
waiver  by  the  insurance  company  of  the 
right  to  defend  against  a  risk,  as  that  of 
execution  of  insured  for  crime,  which  was 
never  assumed.  Scarborough  v.  American 
National  Ins.  Co.   (N.  Car.)   1917D-1181. 

(Annotated.) 

29.  Effect — ^Frand  of  Insured.  A  pro- 
vision in  a  life  policy  that  it  shall  be  in- 
contestable after  one  year  from  its  date, 
except  for  nonpayment  of  premiums  and 
except  as  otherwise  provided  in  the 
policy,  does  not  expressly  or  impliedly 
except  an  action  or  defense  based  on 
fraud  by  insured,  though  the  policy  pro- 
vides that,  in  the  absence  of  fraud,  all 
statements  in  the  application  shall  be 
deemed  representations  and  not  warran- 
ties, and  no  such  statement  shall  avoid 
the  policy  unless  contained  in  the  writ- 
ten application.  Dibble  v.  Beliance  Life 
Ins.  Co.  (Cal.)  1917E-34. 

30.  Words  and  Phrases  —  "All  Con- 
tracts." Cal.  Civ.  Code,  §  1688,  providing 
that  "all  contracts"  which  have  for  their 
object  the  exemption  of  anyone  from  re- 
sponsibility for  his  own  fraud  are  against 
the  policy  of  the  law,  includes  life  insur- 
ance policies,  but  does  not  render  invalid 
a  clause  declaring  that  a  policy  shall  be 
incontestable  after  one  year  from  its  date, 
though  construed  to  preclude  the  defense 
of  fraud  by  insured,  for  the  object  of  the 
clause  is  only  to  provide  a  shorter  term 
for  maintaining  a  claim  on  the  ground  of 
fraud  than  is  prescribed  by  limitations. 
Dibble  v.  Beliance  Life  Ins.  Co.  (Cal.) 
1917E-34.  (Annotated.) 

31.  Effect  —  Breach  of  Warranty.  A 
provision  in  a  life  policy  that  it  shall  be 
incontestable  after  one  year  from  its  date, 
except  for  nonpayment  of  premiums,  pre- 
cludes any  defense  after  the  stipulated 
period  on  account  of  false  statements  war- 
ranted by  insured  to  be  true,  though  the 
statements  were  fraudulently  made,  unless 
fraud  is  expressly  or  impliedly  exceoted 
from  the  effect  of  the  provision.  Dibble 
V.  Reliance  Life  Ins.  Co.  (Cal.)  1917E- 
34. 

32.  Illness  of  Insured  at  Issuance  of 
Policy.     A  provision  in  a  life  policy  that 


§30 


DIGEST. 

1916C— 1918B. 


it  shall  not  be  contested  after  one  year 
from  its  date,  except  for  nonpayment  of 
premiums,  prevents  insurer  from  contest- 
ing the  policy  after  one  year,  on  the 
ground  that  insured,  -when  applying  for 
insurance  and  at  all  times  thereafter,  was 
seriously  ill,  though  the  policy  also  pro- 
vides that  it  shaU  not  take  effect  until  the 
premium  is  paid,  while  insured  is  in  good 
health,  and  the  policy  shall  have  been 
duly  issued.  Dibble  v.  Eeliance  Life  Ins. 
Co.  (Cal.)   1917E-34. 

33.  Policy  Issued  to  Employee  of  In- 
surer. An  incontestable  clause  in  a  life 
policy  issued  to  a  trusted  employee  of  in- 
surer is  as  binding  on  insurer  as  if  the 
policy  had  been  issued  to  a  stranger,  for 
the  parties  sustain  the  same  relation  as  in 
the  ordinary  case  of  life  insurance. 
Dibble  v.  Reliance  Life  Ins.  Co.  (Cal.) 
1917E-34. 

34.  Defense  Based  on  Fraud.  A  clause 
in  a  policy  of  life  insurance,  providing 
that  "this  policy  is  incontestable  from 
its  date,  except  for  nonpayment  of  pre- 
miums," precludes  any  defense  after  the 
stipulated  period  on  account  of  false  state- 
ments in  the  application  for  the  policy, 
even  though  they  were  fraudulently  made. 
Duvall  v.  National  Ins.  Co.  (Idaho) 
1917E-1112.  (Annotated.) 

35.  Statute  Making  Policy  Incontesta- 
ble— Modification  by  Contract.  Under 
the  provisions  of  section  42,  Idaho  Sess. 
Laws  1911.  p.  748,  as  amended  by  Laws 
of  1913,  p.  406,  §  22,  it  is  provided  that 
an  insurance  policy,  so  far  as  it  relates 
to  life  or  endowment  insurance  shall  be 
incontestable  after  two  years  from  the 
date  of  issue,  except  for  nonpayment  of 
premiums  and  except  for  violation  of  the 
conditions  of  the  policy  relating  to  mili- 
tary or  naval  service  in  time  of  war,  etc. 
That  provision  of  the  statute  does  not 
prohibit  the  parties  from  contracting  that 
the  period  of  contestability  shall  be  less 
than  two  years,  nor  from  agreeing  that 
the  policy  shall  not  be  contestable  after 
its  delivery.  Duvall  v.  National  Ins.  Co. 
(Idaho)    1917E-1112. 

36.  Effect  on  Attack  for  Fraud.  Where 
a  life  policy  provides  that  it  shall  be  in- 
contestable, except  for  nonpayment  of 
premiums,  after  one  year  from  date,  the 
insurer,  after  the  expiration  of  the  year, 
cannot  maintain  a  suit  against  the  in- 
sured and  the  beneficiary  to  cancel  the 
policy  for  the  defendant's  alleged  fraud 
in  procuring  it.  Philadelphia  Life  Ins. 
Co.  V.  Arnold  (S.  Car.)  1916C-706. 

(Annotated.) 

37.  Validity.  A  life  policy,  providing 
that  it  shall  be  incontestable,  except  for 
nonpayment  of  premiums,  after  one  year 
from  its  date,  is  not  objectionable  as  in 
conflict  wnth  the  state  statute  of  limita- 
tions, but  is  valid.  Philadelphia  Life  Ins. 
Co.  V.  Arnold  (S.  Car.)  1916C-706. 


Notes. 

Effect  of  incontestable  clause  in  life  in« 
surance  policy  in  case  of  legal  execution 
of  insured.     1917D-1183. 

Effect  of  incontestable  clause  in  life 
policy  on  provision  against  suicide. 
1917D-1186. 

d.     Cause  of  Death. 

38.  A  fraternal  benefit  certificate  pro- 
vided that,  if  the  holder  died  in  conse- 
quence of  the  violation  of  the  laws  of  the 
state,  the  certificate  should  be  void.  In 
an  action  on  the  policy  the  defense  was 
interposed  that  the  holder  came  ^  to  his 
death  by  a  gunshot  wound  inflicted  by 
another  in  self-defense  when  attacked  by 
the  insured.  It  was  disputed  who  fired 
the  first  shot  and  who  brought  on  the 
difficulty,  and  whether  assured  acted  in 
self-defense.  It  is  held  that,  uuder  the 
evidence,  the  question  as  to  whether  de- 
ceased met  bis  death  in  consequence  of  a 
violation  of  the  state's  criminal  laws  was 
for  the  jury.  Bounds  v.  Sovereign  Camp 
(S.    Car.)    1917C-589.  (Annotated.) 

39.  Violation  of  Law.  Under  a  certifi- 
cate of  fraternal  life  insurance  void  if 
the  member  die  in  consequence  of  a  vio- 
lation of  the  state  laws,  if  the  facts  are 
admitted,  the  question  whether  death  was 
so  caused  is  one  of  law;  but,  if  the  facts 
are  denied  or  disputed,  the  question  is 
one  of  fact.  Bounds  v.  Sovereign  Camp 
(S.  Car.)  1917C-589.  (Annotated.) 

40.  Effect  of  Suicide  on  Liability  of 
Association— ^Meaning  of  "Suicide."  Un- 
der the  laws  of  Missouri  (Rev.  St.  1909, 
§  694-5)  providing  that,  in  all  suits  upon 
policies  of  life  insurance  issued  by  any 
company  doing  business  in  that  state  to 
citizens  of  that  state,  it  shall  be  no  de- 
fense that  insured  committed  suicide,  un- 
less it  is  shown  that  he  contemplated 
suicide  when  applying  for  the  policy, 
"suicide"  is  not  used  in  its  technical  sense, 
but  in  its  popular  meaning  of  death  by 
one's  own  hand,  irrespective  of  mental 
condition,  and  includes  all  cases  of  self- 
destruction.  Travelers'  Protective  Assoc. 
V.  Smith  (Ind.)  1917E-1088. 

Note. 
Death  while   engaged   in   violating  law 
within  exception  in  life  insurance  policy. 
1917C-592. 

e.     Control  of  Policy. 

41.  "Where  a  life  policy,  taken  out  by  a 
father  on  the  life  of  his  minor  son,  was 
made  payable  to  the  executors,  adminis- 
trators or  assigns  of  the  son,  the  father 
and  mother,  as  guardians  by  nature,  are 
not  authorized  to  consent  to  a  cancella- 
tion of  the  policy  or  to  a  change  to  a 
paid-up  policy,  before  forfeiture  for  non- 


LIFE  INSURANCE. 


531 


payment  of  premiums.     Burke  v.  Pruden- 
tial Ins.  Co.  (Mass.)  1917E-641. 

(Annotated.) 

42.  By  Parent  on  Life  of  Child — Eight 
to  Control  Policy.  Under  a  policy  taken 
out  by  a  father  on  the  life  of  his  minor 
son,  payable  to  the  "executors,  adminis- 
trators or  assigns  of  the  insured,"  the  son 
is  the  person  insured  and  the  beneficiary, 
with  the  right  to  custody  of  the  policy  in 
the  father.  Burke  v.  Prudential  Ins.  Go. 
(Mass.)   1017E-641.  (Annotated.) 

Note. 

Eight  of  parties  in  case  of  insurance 
procured  by  parent  on  life  of  minor  child. 
1917E-643. 

5.     PROOF  OP  DEATH. 

43.  Waiver  of  Defects.  Where,  after 
plaintiff's  husband  had  been  absent  from 
home  for  more  than  seven  years,  she 
stated  the  case  to  the  fraternal  death 
benefit  association  of  which  he  was  a 
member  as  a  proof  of  his  death,  such 
association  not  objecting  to  the  proof  as 
unsatisfactory  or  insufficient  until  it  was 
offered  in  evidence  on  trial,  the  board  of 
directors  having  rejected  plaintiff's  claim 
generally,  and  not  having  specifically 
pointed  out  any  defect  in  the  proof,  any 
defect  in  such  proof  is  waived  when  the 
board  received  and  retained  it,  giving  no 
notice  that  it  was  not  satisfactory,  calling 
for  no  further  proof,  and  rejecting  the 
claim  in  toto  upon  the  proof  made,  since 
defendant's  right  to  a  proof  of  loss  such 
as  was  required  by  its  contract  of  insur- 
ance was  one  it  could  and  did  waive  by 
pursuing  a  line  of  conduct  justifying  the 
conclusion  that  it  was  not  intending  to 
insist  on  a  full  compliance  with  the  re- 
quirements. Werner  v.  Fraternal  Bank- 
ers' Reserve  Soc.  (Iowa)   1918A-100o. 

44.  Waiver  of  Proofs  of  Loss  —  By 
Denial  of  Liability.  A  beneficiary  certifi- 
cate provided  that  no  action  upon  it 
should  be  brought  until  proofs  of  death 
and  of  claimant's  claim  have  been  filed 
and  passed  upon  by  the  executive  com- 
mittee of  the  order,  nor  unless  brought 
within  one  year  from  the  date  of  such 
action  by  the  committee.  Where  the 
wrongful  act  of  defendant  dispenses  with 
such  proofs  and  there  is  accordingly  no 
action  by  the  committee,  the  contract  pro- 
vision has  no  application.  Denial  of  lia- 
bility in  a  pleading  in  a  former  action  did 
not  operate  to  set  the  contract  limitation 
in  motion.  Dechter  v.  National  Council 
(Minn.)   1917C-142. 

6.     ASSIGNMENT  OP  POLICY, 
a.     In   General. 

45.  Necessity  That  Assignee  Have  In- 
surable Interest.    The  assignee  of  a  policy 


of  life  insurance  or  of  the  proceeds  there- 
of must  have  an  insurable  interest  in  the 
life  of  the  insured.  Crismond's  Admx.  v. 
Jones   (Va.)    1917C-155. 

46.  Assignment  by  Wife  of  Insurance  in 
Her  Favor.  As  a  wife  designated  as  bene- 
ficiary in  a  policy  on  her  husband's  life, 
which  reserved  to  the  husband  the  right 
to  change  the  beneficiary,  had  no  vested 
right,  but  a  mere  expectancy  only,  she  did 
not,  by  joining  in  her  husband's  assign- 
ment of  the  policy  as  security  for  his  in- 
debtedness, become  a  surety  for  him;  the 
absolute  right  to  assign  the  policy  being 
lodged  in  him,  and  it  was  not  necessary 
that  she  should  receive  a  consideration  for 
joining  in  the  assignment  in  order  to  bind 
her.  Mutual  Benefit  Life  Ins.  Co.  v. 
Swett  (Fed.)  1917B-298.         (Annotated.) 

47.  Power  to  Make  Second  Assignment. 
Where,  though  an  assignment  of  a  $15,000 
life  insurance  policy  as  security  for  a  debt 
recited  that  it  was  to  secure  an  indebted- 
ness of  $15,000,  it  was  the  intention  to 
protect  the  assignee  as  to  insured's  entire 
liability  to  it,  a  letter  subsequently  writ- 
ten the  assignee  by  him,  directing  that 
in  case  of  his  death  the  proceeds,  after 
the  satisfaction  of  a  $10,000  note,  should 
be  applied  to  relieve  an  accommodation 
indorser  from  liability  on  account  of  an- 
other note  for  $6,000,  was  explanatory 
and  confirmatory  of  the  original  intent, 
and  passed  by  way  of  assignment  what- 
ever value  the  policy  possessed  after  the 
delivery  of  the  first  assignment,  as  in- 
sured was  not  restricted  to  a  single  as- 
signment of  the  policy,  which  by  its  terms 
was  assignable.  Mutual  Benefit  Life  Ins. 
Co.  v.  Swett  (Fed.)  1917B-298. 

48.  Distinction  Between  Assignment  and 
Change  of  Beneficiary.  An  "assignment" 
of  a  life  insurance  policy  and  a  "change 
of  beneficiary"  are  different  things,  as  an 
"assignment"  is  the  transfer  by  one  of  his 
right  or  interest  in  property  to  another, 
and  rests  upon  contract,  and,  generally 
speaking,  the  delivery  of  the  thing  as- 
signed is  necessary  to  its  validity,  while 
the  power  to  change  the  beneficiary  is  the 
power  to  appoint,  and  must  be  exercised 
in  the  manner  agreed  upon  in  the  contract 
of  insurance.  Mutual  Benefit  Life  Ins. 
Co.  V.  Swett  (Fed.)  1917B-298. 

49.  Eight  of  Assignee  to  Eeassign. 
Where  insured,  who  had  assigned  the 
policy  to  secure  an  indebtedness  to  the  as- 
signee, wrote  the  assignee,  directing  it,  in 
case  of  his  death,  to  apply  the  proceeds 
in  payment  of  a  $10,000  note,  and  the 
balance  to  relieve  an  accommodation  in- 
dorser from  liability  on  another  $6,000 
note,  such  letter  was  sufficient  authoriza- 
tion to  the  assignee  to  assign  an  interest 
in  the  policy  to  the  executors  of  the  ac- 
commodation indorser,  who  had  been  com- 
pelled to  pay  the  note  on  which  they  were 


532 


DIGEST. 

1916C— 1918B. 


liable,  and  thej  thereby  acquired  such  a. 
title  as  was  necessary  to  enable  them  to 
hold  the  policy  as  collateral  security  for 
the  debt  which  they  had  paid,  and  to 
sustain  an  action  upon  the  policy.  Mutual 
Benefit  Life  Ins.  Co.  v.  Swett  (Fed.) 
1917B-298. 

50.  Where  a  policy  was  assigned  to 
secure  certain  notes  held  by  the  assignee, 
an  assignment  of  an  interest  therein  to 
the  executors  of  an  accommodation  in- 
dorser  on  one  of  the  notes,  who  were 
required  to  pay  the  note,  was  valid  and 
binding  on  the  beneficiary,  in  the  absence 
of  any  authorization  from  insured  to  make 
such  assignment;  the  policy  having  re- 
served the  right  to  insured  to  change  the 
beneficiary.  Mutual  Benefit  Life  Ins. 
Co.  V.  Swett  (Fed.^   1917B-298. 

51.  Benewal  of  Notes  Secured  by  As- 
signment— Effect.  Where  a  life  insurance 
policy  was  assigned  to  a  bank  to  secure 
insured's  notes  held  by  it,  the  renewal 
of  such  notes  did  not  destroy  the  assign- 
ment, in  the  absence  of  any  intention  on 
the  part  of  the  insured  and  the  bank  that 
the  renewal  should  have  that  effect. 
Mutual  Benefit  Life  Ins.  Co.  v.  Swett 
(Fed.)  1917B-298. 

52.  Validity  of  assignment — Consent  of 
Insurer — Right  of  Third  Person  to  Urge 
Nonconsent.  Where,  after  the  assign- 
ment of  an  insurance  policy  to  secure  an 
indebtedness,  insured  wrote  the  assignee 
relative  to  the  disposition  of  the  proceeds 
of  the  policy  in  case  of  his  death,  such 
letter,  considered  as  an  additional  assign- 
ment, was  not  ineffective  as  against  a 
beneficiary,  though  neither  it  nor  a  copy 
of  it  was  filed  with  or  assented  ^o  by  the 
company,  as  required  by  the  policy,  as 
the  provision  in  the  policy  requiring  notice 
to  the  compaiiy  was  for  its  protection, 
and  could  not  be  set  up  by  any  one  else 
to  defeat  an  assignment  made  without 
compliance  therewith.  Mutual  Benefit 
Life  Ins.  Co.  v.  Sw^ett  (Fed.)  1917B-298. 

Note. 
"Validity   and   effect   of    assignment   by 
wife  of  insurance  in  her  favor  on  life  of 
husband.     1917B-302. 

b.     Assignee     Having    no     Insurable     In- 
terest. 

53.  Effect  of  Want  of  Insurable  Inter- 
est— Good  Faith.  While  an  assignment  of 
a  policy  of  insurance  must,  in  any  case, 
be  characterized  by  good  faith,  yet  good 
faith  alone  is  not  sufficient  to  sustain  a 
policy  of  insurance,  taken  out  upon  the 
life  of  another  by  one  who  has  no  interest 
in  the  continuance  of  such  life.  Cris- 
mond's  Admx.  v.  Jones  (Va.)   1917C-155. 


o4.  Assignee  Without  Insurable  Inter- 
est. The  rule  of  insurance  law  relative  to 
insurable  interest  applies  with  equal 
force  after  a  life  policy  is  issued,  and  the 
beneficiary  is  changed  by  assignment  or 
otherwise  as  it  does  to  the  naming  of  the 
beneficiary  at  the  time  of  procuring  the 
insurance.  Metropolitan  L.  Ins.  Co.  T. 
Nelson  (Ky.)   1918B-1182. 


7.    ACTION  ON  POLICY. 

a.  Pleading. 

55.  Sufficiency.  A  count,  in  an  answer 
in  an  action  on  a  life  policy  which  denies 
the  issuance  of  the  policy  in  consideration 
of  an  annual  premium,  is  good  as  against 
a  demurrer.  Dibble  v.  Reliance  Life  Ins. 
Co.  (Cal.)   1917E-34. 

b.  Findings. 

56.  Immoral  Belation  Between  Insured 
and  Beneficiary.  Under  the  evidence  in 
this  case,  the  court  did  not  err  in  refusing 
to  find  that  immoral  relations  existed  be- 
tween the  insured  and  his  beneficiary. 
Christenson    v.    Madson    (Minn.)     1916C- 

5a4. 

c.  Defenses. 

57.  Suldde  While  Insane.  Where  in- 
surer, when  sued  on  a  life  policy,  proved 
the  suicide  of  insured  while  sane,  the 
beneficiary  could  prove  that  insured  was 
insane  when  committing  suicide,  and 
thereby  defeat  the  defense  of  suicide. 
Security  Life  Ins.  Co.  v.  Dillard  (Va.) 
1917D-1187. 

68.  The  defense  of  suicide  of  insured 
while  sane  is  based  on  public  policy,  and 
cannot  be  waived  intentionally  or  unin- 
tentionally by  stipulations  or  defects  in 
pleadings.  Securitv  Life  Ins.  Co.  v.  Dil- 
lard (Va.)  1917D-1187.  (Annotated. 

59.  Effect  of  Saiclde  of  Insnred.  Sui- 
cide of  insured  while  sane  defeats  a  re- 
covery on  the  policy  by  the  beneficiary, 
his  wife,  whether  the  suicide  was  or  was 
not  in  contemplation  of,  or  in  any  way 
dealt  with  by,  the  parties  as  a  risk  cov- 
ered by  the  policy.  Security  Life  Ins.  Co. 
V.  Dillard  (Va.)  'l917D-1187. 

(Annotated.) 

LIGHT  AND  AIB. 

Extinguishment   of   right,   see   Easements, 
6. 


LIGHTING  COMPANIES. 
See  Electricity;  Gaa. 


LIMITATION  OF  ACTIONS. 


533 


LIMITATION  or  ACTIONS. 

1.  Nature,    Validity    and   Construction    of 

Statutes,  533. 

2.  What  Law  GovernP,  533. 

3.  Statutes   Applicable   to   Particular  Ac- 

tions, 534. 

4.  Computation  of  Time,  534. 

a.  When  Statute  Begins  to  Run,  534. 

(1)  In  General,  534. 

(2)  Fraud  or  Concealment,  535. 

(3)  Trover,  535. 

(4)  Action   to   Eecover   Property 

Given   in  Consideration   of 
Marriage,  535. 

(5)  Action    for    Continuous    Ser- 

vices, 535. 

(6)  Action  to  Enforce  Trust,  535. 

(7)  Action  for  Libel  or  Slander, 

536. 

(8)  Action  for  Breach  of  Agree- 

ment to  Devise,  536. 

(9)  Stockholder's  Action,  536. 
'10)  Action    to    Eecover  Usurious 

Interest,  536. 
(11)  Action  on  Judgment,  536. 

b.  Suspension      or      Interruption      of 

Operation  of  Statute,  536. 

(1)  Absence  from  State,  536. 

(2)  Nonresidence    of    Party,    537. 

(3)  Commencement     of      Action, 

537. 

5.  Rerival  of  Causes  of  Action,  537. 

a.  Acknowledgment  or  New  Promise, 

537. 

b.  Part  Payment,  537. 

6.  Actions,  538. 

a.  Pleadings  of  Plaintiff,  538. 

b.  Pleadings  of  Defendant,  538. 

7.  Who  may  Plead  Statute,  588. 

See  Death  by  Wrongful  Act,  10-13;  Quiet- 
ing Title,  3,  4. 

Contract  limiting  time  for  suit,  see  Acci- 
dent Insurance,  6,  7.. 

Statute  inoperative  against  grantee  when, 
see  Adverse  Possession,  29. 

Acknowledgment  of  debt  for  fees,  see  At- 
torneys, 35. 

Action  against  bailee  for  loss,  see  Bail- 
ment, 5. 

Contracts  fixing  time,  see  Beneficial  Asso- 
ciations. 

Stockholder's  action  against  corporation, 
see  Corporations,  25. 

Action  against  director  for  negligence, 
see  Corporations,  44. 

Stockholder's  liability,  see  Corporations, 
135,  136. 

Stockholder's  suit,  see  Corporations,  140- 
141. 

Actions  against  foreign  corporations,  see 
Corporations,  178. 

Interruption  by  conveyance,  see  Ease- 
ments, 12. 

Against  executors  and  administrators,  see 
Executors  and  Administrators,  90-92. 

Foreclosure  of  mechanics'  liens,  see 
Mechanics'  Liens,  41,  42, 


1.     NATURE,     VALIDITY     AND     CON- 
STRUCTION OF  STATUTES. 

1.  Effect  of  Bar  —  Statutory  Right  of 
Action.  Where  a  right  of  action  is  given 
by  statute,  which  further  provides  that 
suit  shall  be  commenced  within  a  specified 
time,  or  the  right  of  action  shall  be  ex- 
tinguished, the  right  to  recover  depends 
on  the  action  being  commenced  within  the 
time  limited,  and,  if  it  is  not,  not  only 
the  remedy  but  the  right  is  extinguished. 
Osborne  v.  Grand  Trunk  R.  Co.  (Vt.) 
1916C-74. 

2.  Retroactive  Amendment  of  Statute 
— ^Validity.  It  is  within  the  power  of  the 
legislature  to  amend  a  statute  of  limita- 
tion by  shortening  the  time  in  which 
an  existing  cause  of  action  may  be  barred, 
provided  a  reasonable  time  is  given  for 
the  commencement  of  an  action  before 
the  bar  takes  effect.  Milboume  v.  Kelley 
(Kan.)   1916D-389.  (Annotated.) 

3.  Retroactive  Operation.  A  statute  of 
limitation  operates  prospectively,  unless 
a  legislative  intent  to  give  it  a  retro- 
spective operation  is  clear.  State  r.  Gen- 
eral Accident,  etc.  Assurance  Corp. 
(Minn.)   1918B-6i5. 

4.  The  postponement  of  the  time  when  a 
limitation  statute  becomes  effective  evi- 
dences an  intent  to  make  it  of  retrospec- 
tive operation.  State  v.  General  Acci- 
dent, etc.  Assurance  Corp.  (Minn.)  1918B- 
615. 

2.     WHAT  LAW  GOVERNS. 

5.  Civ.  Code  Quebec,  §  1053,  provides  that 
every  person  capable  of  discerning  right 
from  wrong  is  responsible  for  the  damage 
caused  by  his  fault  to  another,  whether 
by  positive  act,  imprudence,  neglect,  or 
want  of  skill,  and  article  17,  §  11,  declares 
that  the  word  "person"  includes  bodies 
politic  and  corporate.  The  laws  of  Que- 
bec also  provide  that  an  action  for  in- 
juri-es  under  such  statute  shall  be  brought 
within  one  year.  Held,  that  the  limita- 
tion'applied  to  the  right  as  well  as  to  the 
remedy,  and  hence,  where  plaintiff  sued  in 
Vermont  under  the  statute  for  an  injury 
occurring  in  Quebec,  the  action  was  gov- 
erned by  the  lex  loci,  and,  if  not  brought 
within  the  time  specified,  was  unsustain- 
able. Osborne  v.  Grand  Trunk  R.  Co. 
(Vt.)   1916C-74. 

6.  Limitations  Applicable  —  Statutory 
Cause  of  Action.  It  is  not  essential  that 
a  limitation  affecting  a  statutory  right  of 
action  not  existing  at  common  law  should 
be  incorporated  in  the  act  creating  the 
right;  but  it  is  sufl^cient  if  the  limitation 
in  another  statute  is  so  directed  to  the 
new  liability  so  specifically  as  to  warrant 
the  conclusion  that  it  qualifies  the  right. 
Osborne  v.  Grand  Trunk  R.  Co.  (Vt.) 
1916C-74. 


534 


DIGEST. 

1916C— 1918B. 


7.  Nature  of  Action  —  Bill  in  Nature  of 
Bill  of  Eeview.  Where,  after  the  death 
of  the  life  beneficiary  of  a  trust,  her  heirs, 
without  notice  to  complainant,  who  was  her 
husband,  obtained  a  decree  terminating 
the  trust  and  directing  distribution  of  the 
trust  fund  to  them,  a  subsequent  bill 
brought  by  complainant  to  set  aside  such 
decree  and  to  recover  the  property  on  the 
ground  that  it  was  distributable  to  him, 
alleging  that  he  had  no  knowledge  of  the 
existence  of  the  trust  and  had  not  been 
made  a  party  to  the  prior  proceedings  be- 
cause of  fraudulent  concealment  on  the 
part  of  the  beneficiary's  heirs  of  the  fact 
that  she  died  leaving  a  living  husband, 
and  that,  on  discovering  the  facts,  he  pro- 
ceeded diligently  to  take  action,  is  not  a 
bill  of  review,  but  a  bill  in  the  nature  of 
a  bill  of  review,  and  is  therefore  not  ob- 
jectionable because  not  filed  within  a  year 
from  the  entry  of  the  final  decree.  Quinn 
v.  Hall.  (R.  I.)  1917C-373. 

8.  Recovery  of  Excessive  Allowance  to 
Executor.  Where  an  executor  resigned  in 
1899  and  was  discharged  of  all  liability  on 
account  of  the  estate,  the  owner  of  the 
residuary  estate  learning  in  March,  1909, 
that  excessive  commissions,  costs,  and  al- 
lowances had  been  awarded  the  executor 
by  the  surrogate  upon  his  yearly  account- 
ings, which  the  executor  received  in  good 
faith,  such  owner's  action  to  recover  such 
excessive  allowances  is  not  one  "to  pro- 
cure a  judgment,  other  than  for  a  sum  of 
money,  on  the  ground  of  fraud,  in  a  case 
which,  on  the  thirty-first  day  of  Decem- 
ber, 1846,  was  cognizable  by  the  court  of 
chancery,"  which  N.  Y.  Code  Civ.  Proc. 
§  382,  subd.  5,  provides  is  not  barred  until 
six  years  after  the  discovery  by  the  plain- 
tiff of  the  facts  constituting  the  fraud, 
since,  as  the  executor  acted  in  good  faith, 
the  surrogate's  decrees,  if  void  in  respect 
to  the  illegal  allowances,  are  so,  not  be- 
cause procured  by  fraud,  but  only  because 
beyond  the  surrogate's  jurisdiction. 
Spallholz  V.  Sheldon  (N.  Y.)  1917C-1017. 

3.     STATUTES  APPLICABLE  TO  PAR- 
TICULAR ACTIONS. 

9.  Time  to  Attack  Conveyance.  Under 
Ky.  St.  §  1911,  providing  that  all  fraudu- 
lent and  preferential  transfers  shall  bo 
subject  to  the  control  of  courts  of  equity, 
upon  petition  filed  wthin  six  months, 
where  more  than  six  months  elapsed  be- 
tween the  sale  and  transfer  of  corporate 
securities  and  the  institution  of  an  action 
by  the  assignee  of  the  judgment  creditor 
of  the  transferor,  such  sale  and  transfer 
cannot  be  thereafter  attacked  by  the 
assienee.  Husband  v.  Linehan  (Ky.) 
1917I>-954. 

10.  Action  to  Set  Aside  —  Fraudulent 
Conveyance.  Plaintiff,  who  loaned  mouoy 
to  defendant  in  1892,  and  who,  after  fore- 
closure  and  purchase  of  the  property  for 


$200  in  1897,  recovered  judgment  for  the 
balance,  and  whose  suit  to  set  aside  the 
judgment  debtor's  alleged  fraudulent  con- 
veyance to  his  wife  made  in  1895,  and 
confirmed  by  deed  in  1898,  was  not 
brought  until  eleven  years  after  judgment, 
is  barred,  either  by  the  ten-year  statute 
of  limitations,  N.  Car.  Revisal  1905, 
§§  391,  399.  or  the  three-year  statute,  sec- 
tion 395,  subsec.  9.  Ewbank  v.  Lyman 
(N.  Car.)    1917A-272. 

11.  Trespass.  The  right  of  action  for 
trespass  is  barred  in  six  years.  Rollins  v. 
Blackden  (Me.)  1917A-875. 

12.  Action  on  Benefit  Certificate.  The 
statutes  governing  the  time  of  bringing 
suits  upon  policies  of  insurance  have  no 
apiUication  in  determining  whether  a  suit 
upon  a  death  benefit  certificate  of  a  fra- 
ternal society  was  prematurely  bro,IJ^ht. 
Werner  v.  Fraternal  Bankers'  Reserve 
Soc.    (Iowa)    1918A-1005. 

13.  Action  for  Assault  With  Felonious 
Intent.  A  civil  action  for  assault  with  in- 
tent to  rape  is  an  action  for  damages  for 
an  assault  and  battery  with  circumstances 
of  aggravation  which  must,  under  section 
13  of  the  code,  be  begun  within  one  }  ear 
after  the  cause  of  action  accrued.  Bor- 
chert  V.  Bash  (Neb.)  1917A-116. 

(Annotated.) 
Notes. 
Application  of  statute  of  limitations  as 
between    trustee    and,  beneficiary    of    ex- 
press trust.     1917C-1018. 

What  is  civil  action  for  assault  within 
statutory  limitation  applicable  thereto. 
1917A-118. 

4.     COMPUTATION  OF  TIME. 

a.     When   Statute  Begins   to   Run. 

(1)     In  General. 

14.  N.  Y.  Code  Civ.  Proc.  §  388,  requir- 
ing  actions  not  otherwise  specially  pro- 
vided for  to  be  commenced  within  tea 
years  after  the  cause  of  action  accrues, 
applies  to  every  form  of  equitable  action. 
Ford  V.  Clendenin  (N.  Y.)  1917A-6o8. 

(Annotated.) 

15.  When  Statute  Begins  to  Bun.  Utah 
Comp.  Laws  1907,  §  3490,  provides  that 
an  action  is  pending  from  its  commence- 
ment until  final  determination  upon  ap- 
peal, "or  until  the  time  for  appeal  has 
passed,  unless  the  judgment  is  sooner 
satisfied";  section  3307  provides  that  an 
appeal  from  a  judgment  or  order  direct- 
ing the  payment  of  money  does  not  stay 
execution,  unless  a  written  undertakin„'  be 
given;  and  section  3320  provides  for 
restitution  in  case  judgment  is  reversed 
or  modified  on  appeal  after  its  enforce- 
ment. Held,  that  a  judgment  became  final 
so  as  to  start  the  eight-year  limitation 
against   an   action   thereon  from   the   time 


LBIITATION  OF  ACTIONS. 


535 


it  was  rendered,  where  no  appeal  was 
taken,  and  not  from  expiration  of  the  six 
months  within  which  an  appeal  might 
have  beun  taken;  actions  remaining  pend- 
ing after  judgment  only  for  the  purpose  of 
enforcing  them  or  to  institute  proceed- 
ings to  review.  Sweetser  t.  Fox  j^Utah) 
1916C-620.  (Annotated.) 

16.  A  cause  of  action  arises  the  moment 
an  action  may  be  maintained  to  enforce 
the  legal  right  so  "that  the  statute  of 
limitat'on  then  begins  to  lun.  Sweetser  v. 
Fox  (Utah)   1916C-G20. 

(Annotated.) 

(2)     Fraud  or  Concealment. 

17.  Record  as  Constructive  Notice  of 
Fraud.  While  the  mere  registration  of 
the  judgment  debtor's  deed,  alleged  to 
have  been  made  in  fraud  of  creditors, 
will  not  usually  be  constructive  knowl- 
edge, yet  where  the  deed  under  which  the 
grantee  claims,  to  hold  has  been  on  the 
registry  for  more  than  eleven  years  before 
the  action  was  commenced,  the  creditor 
who  has  herself  foreclosed  a  deed  of  trust 
on  the  part  of  the  debtor's  property,  and 
who  has  not  been  able  to  collect  her 
judgment  for  the  balance,  and  who  knew 
of  the  debtor's  embarrassed  financial  con- 
dition, is  negligent  in  not  having  sooner 
examined  the  record  and  discovered  the 
conveyance.  Ewbank  v.  Lyman  (N.  Car.) 
1917A-272.  (Annotated.) 

18.  Eight  to  Sue  —  Necessity  of  Prior 
Equitable  Belief.  That  equitable  relief 
must  be  secured  before  the  party  entitled 
thereto  can  sue  at  law  does  not  of  itself 
suspend  the  running  of  the  six  year  stat- 
ute of  limitations  (N.  Y.)  Code  Civ.  Proc. 
§  3S2,  subd.  5),  providing  that  a  cause  of 
action  "other  than  for  a  sum  of  money, 
on  the  ground  of  fraud,  in  a  case  which, 
on  the  thirty-first  day  of  December,  1846, 
was  cognizable  by  the  court  of  chancery," 
is  not  deemed  to  have  accrued  until  the 
discovery  by  the  plaintiff  of  the  facts  con- 
stituting the  fraud.  Spallholz  v.  Shel- 
don (N.  Y.)  1917C-1017. 

19.  Discovery  of  Fraud.  N.  Car.  Ee- 
visal  1905,  §  S95,  subscc.  9,  providing  that 
actions  for  relief  on  the  ground  of  fraud 
or  mistake  shall  be  barred  in  three  years, 
applies  to  an  action  to  set  aside  a  judg- 
ment debtor's  alleged  fraudulent  convey- 
ance, and  the  provision  that  the  action  is 
not  to  be  deemed  to  have  accrued  until  the 
discovery  ojf  the  facts  constituting  the 
fraud,  etc.,  means  until  the  impeaching 
facts  are  known  or  should  have  been  dis- 
covered in  the  exercise  of  reasonable 
business  prudence.  Ewbank  v.  Lyman 
(N.  Car.)   1917A-272. 

Note. 
Eecord    of    instrument    as    constructive 
notice  of  fraud.     1917A-267. 


(3)     Trover. 

20.  "When  Cause  of  Action  Accrues. 
The  right  of  action  in  trover  for  the  con- 
version of  money  deposited  by  an  agent 
with  the  principal's  consent  does  not  ac- 
crue, within  the  meaning  of  the  statute  of 
limitations,  until  there  is  a  demand  of 
the  agent  for  the  money  and  a  refusal  by 
him.  Williams  v.  Williams  (Me.)  1916D- 
928. 

(4)     Action  to  Recover  Property  Given  in. 
Consideration  of  Marriage. 

21.  Limitations  do  not  begin  to  run 
against  the  rights  of  a  husband  to  recover 
real  estate  conveyed  for  the  benefit  of  his 
vnfe  in  consideration  of  marriage  until 
judgment  of  divorce  is  entered.  Anheier 
V.  De  Long  (Ky.)  1917A-1239. 

(5)     Action  for  Continuous  Services. 

22.  Where  plaintiff  agreed  to  board  de- 
cedent in  return  for  his  promise  to  leave 
her  realty,  and,  when  plaintiff  moved  to 
another  home,  the  contract  was  not 
mutually  abandoned,  plaintiff  can  recover, 
on  the  special  contract,  for  her  services 
in  boarding  decedent  up  to  the  time  she 
moved,  as  the  three-year  statute  of  limi- 
tations does  not  bar  her  cause  of  action, 
which  did  not  accrue  until  decedent's 
death.  McCurry  v,  Purgason  (N.  Car.) 
1918A-907.  (Annotated.) 

23.  Continuing  Contract.  A  contract 
binding  one  to  rear  and  maintain  an- 
other's child  until  the  child's  maturity  is 
a  continuing  one,  and  the  compensation 
under  it  becomes  due  and  payable  at  the 
termination  of  the  child's  minority  within 
the  statute  of  limitations.  Myers  v. 
Saltry  (Ky.)   1916E-1134. 

24.  In  an  action  against  an  estate  to 
recover  for  services  to  decedent,  where 
the  services  extended  over  a  period  of 
more  than  five  years  preceding  the  filing 
of  the  claim,  but  were  continuous  up  to 
within  a  year  of  the  commencement  of 
the  action,  the  services  rendered  more 
than  five  years  before  filing  of  the  claim 
are  not  barred  by  the  statute  of  limita- 
tions, since  under  such  circumstances  the 
statute  did  not  begin  to  run.  Estate  of 
Oldfield  (Iowa)  1917D-1067. 

(6)     Action  to  Enforce  Trust. 

25.  Running  of  Limitations  Against 
Trustee — Termination  of  Trust.  Where 
an  executor  resigned  in  1899.'  his  letters 
being  revoked  and  the  estate  transferred 
to  his  successors,  the  surrogate  court 
awarding  him  excessive  costs,  allowances, 
and  fees,  which  he  retained  without 
actual  fraudulent  intention,  the  owner  of 
the   residuary   estate   being  aware   of  the 

.termination  of  the  trust,  her  cause  of  ac- 
tion against  the  executor  on  the  ground 


536 


DIGEST. 

1916C— 1918B. 


that  he  was  a  constructive  trustee  for  her 
as  to  the  excessive  fees  retained  by  hina 
was  barred  in  1909,  whether  the  six  or 
the  ten  year  statute  of  limitations  ap- 
plied, since,  where  a  trust  ends,  and  the 
trustee  yields  the  trust  to  a  successor, 
the  statute  of  limitations  begins  to  run  in 
his  favor,  though,  where  a  trustee  sub- 
sists and  has  not  been  renounced,  the  stat- 
ute does  not  run,  Spallholz  v.  Sheldon 
(N.  Y.)  1917C-1017.  (Annotated.) 

26.  The  six  years'  limitation  prescribed 
by  Minn.  Laws  1905,  §  4076,  for  actions  to 
enforce  a  trust,  does  not  begin  to  run 
against  a  suit  by  a  monastic  brotherhood 
to  enforce  its  equitable  ownership  under 
the  constitution  of  the  Order  in  the  gains 
and  acquisitions  of  a  member  until  the 
latter's  death,  where  there  is  no  repudia- 
tion of  the  trust  during  his  lifetime. 
Order  of  St.  Benedict  v.  Steinhauser 
(U.  S.)  1917A-463. 

(7)     Action  for  Libel  or  Slander. 
Note. 
Kunning     of     statute     of     limitations 
against     action     for     libel     or     slander. 
19170-64. 


<8)     Action  for  Breach  of  Agreement  to 
Devise. 

27.  Breach  of  Agreement  to  Devise. 
Where  services  are  to  be  performed  for 
another  in  consideration  of  an  oral  agree- 
ment by  the  terms  of  which  the  person  is 
to  be  compensated  by  a  devise  in  the  will 
of  the  person  for  whom  the  services  have 
been  or  are  to  be  performed,  the  cause  of 
action  does  not  accrue  until  the  death  of 
the  promisor  and  his  failure  to  make  the 
devise  according  to  the  terms  of  the  con- 
tract. Gordon  ▼.  Spellman  (Ga.)  1918A- 
852. 

28.  Agreement  to  Compensate  by  WllL 
Where  plaintiff,  in  return  for  decedent's 
agreement  to  leave  her  realty,  agreed  to 
board  him,  and  thereafter  left  her  home 
and  moved  to  another,  the  contract  being 
mutually  abandoned  by  the  parties,  any 
cause  of  action  in  the  nature  of  a  quantum 
meruit  accrues  to  plaintiff  at  the  time  of 
the  abandonment,  and  her  action  for  ser- 
vices rendered  will  be  barred  in  three 
years  therefrom.  McCurry  v.  Purgason 
(N.  Car.)   1918A-907.  (Annotated.'^ 

(9) .   Stockholder's  Action. 

29.  Action  by  Stockholder  for  Divi- 
dends. The  obligation  of  a  corporation  to 
pay  a  declared  dividend  to  a  stockholder 
is  not  subject  to  limitations  until  there 
has  been  a  demand  on  the  corporation  and 
a  refusal  to  pay.  Yeanian  v.  Galveston 
City  Co.  (Tex.)  1917E-I91. 


(10)     Action    to    Eecover    Usurious    In- 
terest. 

30.  Recovery  of  Usurious  Interest  — 
When  Right  of  Action  Accrues.  The  mere 
assignment  of  a  usurious  obligation  does 
not  set  the  statute  of  limitations  running 
against  an  action  to  recover  back  payment 
of  usurious  interest  because  it  is  the  same 
usurious  obligation,  and  no  transaction 
occurred  sufficient  to  make  a  novation 
which  could  be  deei6ed  a  payment  of  the 
obligation.  Taulbee  v.  Hargis  (Ky.) 
1918A-762. 

31.  Recovery  of  Usurious  Payments  — 
When  Cause  of  Action  Arises.  The  cause 
of  action  for  the-  reclamation  of  usurious 
interest  arises  when  it  has  been  paid. 
Taulbee  v.  Hargis  (Ky.)  1918A-762. 

(11)     Action  on  Judgment. 

32.  When  Statute  of  Limitation  Begins 
to  Run.  Utah  Comp.  Laws  1907,  §  2S74, 
requiring  an  action  on  a  judgment  to  be 
commenced  within  eight  years,  means 
eight  years  from  the  time  the  cause  of  ac- 
tion has  arisen.  Sweetser  v.  Fox  (Utah) 
1916C-620.  (Annotated.) 

Notes. 

When  statute  of  limitations  begins  to 
run  against  action  on  judgment.  1916C— 
625. 

Running  of  statute  of  limitations 
against  action  for  services  performed  in 
consideration  of  oral  agreement  to  com- 
pensate by  will.     1918A-912. 

b.     Suspension  or  Interruption  of  Opera- 
tion of  Statute. 

(1)     Absence  from  State. 

33.  Absence  from  Jurisdiction.  Under 
N.  Y.  Code  Civ.  Proc.  §  401,  providing 
that,  if  when  a  cause  of  action  accrues 
against  a  person  he  is  without  the  state, 
the  action  may  be  commenced  within  the 
time  limited  therefor  after  his  return  to 
the  state,  with  certain  exceptions  as  to 
designations  by  foreign  corporations, 
there  is  no  distinction  between  a  limita- 
tion prescribed  by  statute  and  one  pre- 
scribed by  contract.  Comey  v.  United 
Surety  Co.  (N.  Y.)  1917E-424. 

34.  Pa.  Act  May  22,  1895  (P.  L.  112), 
providing  that  defendant,  becoming  a  non- 
resident after  the  cause  of  action  has 
arisen,  shall  not  have  the  benefit  of  any 
statute  for  the  limitation  of  actions  dur- 
ing the  period  of  such  residence  without 
the  state,  contemplates  that,  where  a  resi- 
dent of  the  state  incurs  an  indebtedness 
and  becomes  a  nonresident  so  that  he  can- 
not be  served  with  process,  limitations  do 
not  run  in  his  favor.  Hunter  v.  Bremer 
(Pa.)    1918A-152. 


LIMITATION  OF  ACTIONS. 


53T 


85.  Absence  as  Question  of  Fact.    In  an 

action  on  notes,  whether  defendant  at  the 
time  the  cause  of  action  arose  had  been  a 
resident  in  this  state  under  Pa.  Act  May 
22,  1895  (P.  L.  112),  and  whether  he  sub- 
sequently abandoned  it,  and,  if  so,  for 
how  \ong,  are  questions  for  the  jury. 
Hunter  r.  Bremer  (Pa.)  1918A-152. 

36.  Absence  of  Creditor.  N.  Car.  Ee- 
visal  1905,  §  366,  referring  to  the  absence 
of  the  debtor  from  the  state  beyond  the 
jurisdiction  of  the  court  and  its  process, 
has  no  application  to  the  absence  of  a 
creditor,  since  he  may  go  into  the  terri- 
tory of  the  debtor's  residence  and  sue  in 
the  courts  whenever  he  may  desire. 
Ewbank  v.  Lyman   (N.  Car.)   1917A-272. 

(2)     Nonresidence  of  Party. 

37.  Words  and  Phrases  —  "Eesidence." 
In  action  on  notes,  an  instruction  as  to 
right  of  a  nonresident  defendant  to  the 
benefit  of  the  statute  of  limitations,  to  the 
effect  that  residence  did  not  necessarily 
involve  the  idea  of  an  intention  of  re- 
maining at  the  place  of  his  residence,  is 
construed,  with  reference  to  its  context,  to 
mean  and  to  have  been  understood  as  if 
the  word  "permanently"  had  been  used 
therein  before  the  word  "remaining"  and 
as  so  construed  is  held  to  be  correct. 
Hunter  v.  Bremer  (Pa.)  1918A-152. 

(Annotated.) 

(3)     Commencement  of  Action. 

38.  Amendment  of  Pleading.  In  an  ac- 
tion for  the  death  of  an  employee  in- 
cinerated when  defendant's  premises 
burned,  a  count  in  the  original  declaration 
averred  that  defendant  negligently  ob- 
structed the  passageway  to  the  only  fire 
escape.  Other  allegations  were  made  in 
combination  with  such  averments.  It  is 
held  that  the  count  defectively  stated  a 
cause  of  action  under  the  111.  Factory  Act, 
§  14,  requiring  adequate  fire  escapes  to  be 
furnished  in  mills,  mercantile  establish- 
ments, etc.,  and  so  an  additional  count, 
correctly  stating  a  cause  of  action  under 
the  act,  was  not  subject  to  plea  of  limita-  • 
tion.  Lichtenstein  v.  L.  Fish  Furniture 
Co.   (111.)   1918A-1087. 

39.  Action  for  Slander  —  Effect  of 
Amendment  Introducing  New  Cause  of 
Action-  In  action  for  slander,  an  order 
sustaining  demurrer  to  the  complaint  sub- 
stantially found  that  the  words  were  not 
actionable  per  se.  After  demurrer  to  the 
amended  complaint  was  sustained,  plain- 
tiff again  amended,  charging  specific 
words  actionable  per  se,  but  such  amend- 
ment was  filed  eighteen  months  after  the 
alleged  slander.  It  was  held  that  the.  ac- 
tion was  barred  by  limitations.  Irvine  v. 
Barrett  (Va.)    1917C-62. 

40.  Where  an  action  for  wrongful  death, 
was    instituted    against    a    railroad    com- 


pany within  the  one-year  limitation  period 
prescribed  by  20  Del.  Laws,  c.  594,  by  fil- 
ing a  praecipe,  and  the  declaration  filed 
against  that  deceased  was  all  employee  of 
the  defendant  company,  the  cause  of  ac- 
tion stated  by  an  amended  declaration, 
filed  after  the  expiration,  of  the  year, 
alleging  that  he  was  an  employee  of  the 
Pullman  Company,  and  charging  the  de- 
fendant company  with  the  duties  owed  to 
a  stranger,  was  not  barred  by  such  stat- 
ute; an  action  at  law  being  commenced  in 
this  state,  so  as  to  stop  the  running  of 
limitations,  by  praecipe,  and  not  by  the 
plaintiff's  declaration,  as  in  many  states. 
Philadelphia,  etc.  E.  Co.  v.  Gatta  (Del.) 
1916E-1227.  (Annotated.) 

41.  In  an  action  against  a  newspaper 
for  libel,  an  amendment  to  the  complaint 
setting  up  a  republication  of  the  libelous 
article  by  other  newspapers,  and  charging 
that  they  were  induced  or  caused  by  de- 
fendant, states  a  different  cause  of  action, 
and  hence,  being  filed  more  than  a  year 
after  the  publication,  is  expressly  barred 
by  Ala.  Code  1907,  §  4840.  Age-Herald 
Publishing  Co.  v.  Waterman  (Ala.) 
1916E-900. 

42.  Tolling  Statute  of  Limitations — Ef- 
fect of  Subsequent  Slander.  Words  to  the 
effect  that  plaintiff  stole  $1,500  are  eo 
dissociated  from  those  that  defendant's 
business  was  short  $1,500  for  which  he 
could  not  account,  when  not  alleged  to 
have  been  spoken  at  the  same  time  or  to 
the  same  person,  as  to  constitute  a  new 
cause  of  action  and  do  not  toll  the  statute 
of  limitations  as  to  the  original  cause  of 
actioiL    Irvine  v.  Barrett  (Va.)  1917C-62: 

(Annotated.) 

5.     EEVIVAL  OF  CAUSES  OF  ACTION. 
a.     Acknowledgment  or  New  Promise. 

43.  Listing  of  Debt  by  Executor.  An 
aflBdavit  for  probate  made  by  an  executor, 
containing  a  list  of  the  debts  of  the  tes- 
tator is  not  such  an  acknowledgment  of 
a  claim  included  therein  as  will  remove 
the  bar  of  the  statute  of  limitations. 
Lloyd  v.  Coote  &  Ball  (Eng.)  1916E-434. 

b.     Part  Payment. 

44.  Tolling  Statute  —  Payment  by  One 
of  Several  Makers.  A  payment  of  inter- 
est on  a  past  due  note  by  one  of  two 
makers  without  the  knowledge  or  consent 
of  the  other  will  start  the  statute  of  limi- 
tations- running  anew  as  to  the  latter. 
Macaulay  v.  Schurmann  (Hawaii)  1916E— 
1206.  (Annotated.) 

45.  Payments  made  on  a  note  either  of 
interest  or  principal  before  the  note  is 
barred  by  limitations  tolls  the  statute  as 
to  the  party  making  the  payment  and 
starts  the  statute  afresh  from  the  date  of 
payment.  Nicholas  v.  Porter  (Ind.) 
1916D-326. 


538 


46.  Payment  T)y  Principal  —  Effect  on 
Liability  of  Surety  —  Consent  by  Surety. 
Payment  of  interest  by  the  principal 
debtor  with  the  knowledge  and  consent  of 
the  surety  tolls  the  statute  of  limitations 
as  to  the  surety.  Nicholas  v.  Porter 
(Ind.)   19l6D-32fi.  (Annotated.) 

NotO. 
Part  payment  by  principal  with  consent 
of  surety  as  suspending  statute  of  Umita- 
tionfl  as  to  surety.    1916D-327.  . 

6.    ACTIONS, 
a.    Pleadings  of  Plaintiff. 

47.  Continuing  Publication.  Under 
Rem.  &  Bal.  Wash.  Code,  §  160,  providing 
that  an  action  for  libel  must  be  com- 
menced within  two  years  after  the  cause 
of  action  accrues,  a  complaint  charging 
continued  publication  up  to  the  time  of 
the  commencement  of  the  action  is  not 
vulnerable  to  a  demurrer  raising  the  bar 
of  the  statute;  each  publication  constitut- 
ing a  separate  libel.  Dick  v.  Northern 
Pacific  K.  Co.  (Wash.)   1917A-638. 

48.  Effect  of  Amendment  —  Raising 
Question  by  Demurrer.  Demurrer  to  a 
plea  of  limitations  to  a  count  as  amended 
presents  the  question  of  law  whether  the 
cause  of  action  set  up  by  the  amended 
count  was  other  and  different  than  that 
set  up  by  the  original  count.  Wende  v. 
Chicago  City  R.  Co.  (111.)  1918A-222. 

b.     Pleadings  of  Defendant. 

49.  Where,  in  an  action  for  injuries  un- 
der a  provision  of  the  Canadian  Code,  de- 
fendant pleads  generally  that  the  action 
is  barred  by  the  laws  of  the  province  of 
Quebec  requiring  that  the  action  be 
brought  within  a  year,  on  which  plaintiff 
joins  issue,  he  cannot  thereafter  object 
that  the  plea  was  insufficient  because  it 
did  not  set  out  verbatim  the  statute  re- 
lied on,  though,  if  a  demurrer  had  been 
filed  to  the  plea,  it  would  probably  have 
been  sustained.  Osborne  v.  Grand  Trunk 
R.  Co.  (Vt.)   1916C-74. 

50.  Overruling  demurrer  to  a  plea  of 
limitations  to  an  amended  count  of  the 
declaration  is  a  holding  that  the  amended 
count  set  up  another  and  different  cause 
of  action  than  that  in  the  original  count. 
Wende  v.  Chicago  City  R.  Co.  (111.) 
1918A-222. 

51.  Necessity  of  Pleading  Statute.  De- 
fendant has  a  right  to  waive  the  statute 
of  limitations  if  he  desires  to  do  so,  and 
if  he  would  avail  himself  of  lapse  of  time 
as  a  peremptory  bar  to  an  action  against 
him,  he  must  interpose  the  statute  bv  plea. 
Taulbee  v.  Hargis  (Ky.)  1918A-762.     ' 

7.     WHO  MAY  PLEAD  STATUTE. 

52.  Action  by  Administrator.  Since  an 
administrator    succeeds    to    the    rights    of 


DIGEST. 

1916C— 1918B. 

his  intestate,  derives  his  title  from  him, 
and  in  an  action  endeavors  to  enforce  a 
right  which  belonged  to  the  intestate,  the 
bar  of  limitations,  if  available  against  the 
intestate,  is  ordinarily  available  against 
the  administrator.  Causev  v.  Seaboard 
Air  Line  B.  Co.  (N.  Car.)  i916C-707. 


LIMITATION  OF  LIABILITT. 

Under  Employers'  Liability  Act,  see  Mas- 
ter and  Servaat,  73. 


LIMITING  LIABILITT. 

See  Carriers,  18;  Carriers  of  Goods,  11-14; 
Carriers  of  Livestock,  3;  Master  and 
Servant,  38,  39. 


LIQUIDATED  DAMAGES. 
See  Contracts,  63-73,  75. 

LIQUORS. 
See  Intoxicating  Liquors. 

LIS  PENDENS. 

1.  Scope  of  Lis  Pendens  Statute.  Such 
statute  does  not  apply  to  a  case  where 
a  person  sells,  leases,  or  encumbers  realty 
not  his  own  and  which  he  never  had 
owned.  Tennis  Coal  Co,  v.  Sackett  (Ky.) 
1917E-629. 

2.  Effect  of  Suit  in  Federal  Court,  Ky. 
St.  §  2358a,  providing  that  no  action  in 
which  the  title  or  possession  of  realty  is 
involved,  nor  any  order  or  judgment 
therein,  or  sale  thereunder,  shall  affect  the 
right  or  title  of  any  subsequent  purchaser 
for  value  and  without  notice  thereof,  ex- 
cept from  the  time  there  shall  be  filed  in 
the  office  of  the  clerk  of  the  county  court 
in  which  the  realty  lies  a  memorandum 
stating  the  style  and  number  of  the  ac- 
tion, the  court  in  which  it  is  pending,  the 
name  of  the  person  whose  interest  is  in- 
volved, and  a  description  of  the  realty, 
must  be  followed  in  order  that  the  action, 
sale,  or  judgment  may  affect  the  title  or 
interest  of  a  subsequent  purchaser,  etc., 
of  realty  situated  in  the  state  involved  in 
a  suit  in  the  federal  court.  Tennis  Coal 
Co.  v.  Sackett  (Ky.)   1917E-629. 

LIVESTOCK. 
See  Animals;  Carriers  of  Livestock. 

LOAN  ASSOCIATIONS. 
See.  Building  and  Loan  Associations. 

LOAN  BROKERS. 

See  Brokers,  14;  Pawnbrokers. 


LOANS— LOST  INSTRUMENTS. 


539 


LOANS. 

See  Banks  and  Banking,  57-60;  Building 
and  Loan  Association,  3,  4;  Pawn 
Brokers;  Pledges. 

Obtaining  loan,  see  False  Pretenses,  5. 

To  infant,  validity,  see  Infants,  6. 

LOATHSOME  DISEASE. 

As  defense  to  action,  see  Breach  of 
Promise  of  Marriage,  1,  5-8. 


Note. 
Territory  affected  by  adoption  of  local 
option  law.    1917C-512. 

LODGING-HOUSES. 
Bee  Innkeepers;  Licenses. 

LOGGER'S  LIEN. 
See  Liens,  6-8. 


LOCAL  AND   TRANSITOET  ACTIONS. 
Jurisdiction,  see  Courts,  5-7.  * 

LOCAL  ASSESSMENT. 

Special  assessments  for  improvements,  see 
Taxation,  116-145. 

LOCAL  OPTION. 

1.  Election — Presumption  of  Begularity. 
Where  an  election  adopting  prohibition  in 
a  county  was  not  contested  within  the 
statutory  time,  the  court  must  conclu- 
sively presume,  on  a  trial  for  violating 
the  prohibition  law,  that  all  the  steps 
taken  to  enact  prohibition  in  the  county 
were  legal.  Longmire  v.  State  (Tex.) 
1917A-726. 

2.  Local  Option  Election — Proof  of  Re- 
sult—  Eecord  Book.  Under  111.  Anti- 
Saloon  Territory  Act  (Laws  1907,  p.  297), 
§  7,  providing  that  the  clerk  shall  record 
in  a  well-bound  book,  to  be  kept  in  his 
office  by  himself  and  his  successor,  the 
result  of  the  vote  on  the  proposition  of 
the  political  subdivision  becoming  anti- 
saloon  territory,  and  such  result  may  be 
proved  by  such  record  or  by  the  official 
certificate  of  the  clerk,  and,  where  it 
shows  that  a  majority  of  the  votes  were 
"yes,"  it  shall  be  prima  facie  evidence 
that  the  political  subdivision  has  become 
anti-saloon  territory,  it  is  not  necessary 
to  make  such  record  proof  that  it  be 
shown  that  it  was  in  the  exclusive  posses- 
sion of  the  clerk.  People  v.  Elliott  (111.) 
1918B-391. 

3.  Effect  of  Vote  —  Village  Included 
Within  Town.  Under  the  local  option 
statutes,  if  a  town  votes  upon  the  license 
question  and  a  village  located  within  the 
town  and  not  separated  therefrom  for  all 
purposes  has  not  voted  thereon  as  an  in- 
dependent municipality,  the  vote  of  the 
town  determines  the  question  for  all  the 
territory  of  the  town,  including  that 
within  the  village;  but  if  the  village  itself 
as  an  independent  municipality  votes 
upon  the  question,  the  vote  of  the  village 
determines  such  question  for  the  Territory 
within  the  village  regardless  of  the  vote 
of  the  town.  State-White  (Minn.)  1917C- 
510.  (Annotated.) 


LOGGING. 

See  Trees  and  Timber,  22-25. 

LOGS  AND   LUMBEB. 
See  Trees  and  Timber. 

LOOKOUT  LAW. 
See  Ballroads,  52,  53. 

LOSS  OF  ABM. 

What  constitutes,  see  Master  and  Servant, 
205. 

LOSS  OF  EYE. 

What  constitutes,  see  Master  and  Servant, 
204. 

LOSS  OF  FINGEB. 

What  constitutes,  see  Master  and  Servant 
203. 

LOSS  OF  HAND. 

Includes,  loss  by  amputation,  see  Accident 
Insurance,  19. 

LOSS  OF  SERVICES. 

Parent's    action    for    child's    services,   see 
Parent  and  Child,  3. 

LOST  INSTRUMENTS. 

Parol  proof,  see  Evidence,  126-128. 
Sufficiency  of  proof,  see  Evidence,  154. 
Parol    proof    of    lost    memorandum,    see 
Frauds,  Statute  of,  24, 

1.  Actions — Loss  of  note.  When  it  is 
proven  that  a  note  declared  on  has  subse- 
quently been  lost,  secondary  evidence  of  its 
contents  is  admissible.  Austin  v.  Calloway 
(W.  Va.)   1916E-112. 

2.  Loss  of  a  note,  occurring  after  it  has 
been  declared  on,  does  not  alsate  the  suit 
or  require  amendment  of  pleadings.  Aus- 
tin V.  Calloway  (W.  Va.)  1916E-112. 

3.  A  court  of  law  has  jurisdiction  of  an 
action  to  recover  upon  a  lost  note,  when 
it  is  clearly  established  that  plaintiff  had 
title  to  such  note  and  that  its  loss  occurred 
after  it  became  payable.  Austin  v.  Cal- 
loway (W.  Va.)  1916E-112. 


540 


DIGEST. 

1916C— 1918B. 


4.  Actions — ^Effect  of  Discovery  of  In- 
strument. If  after  diligent  and  unavail- 
ing search  therefor  plaintiff  sues,  when 
allowable,  in  equity,  upon  a  lost  bond,  its 
discovery  and  production  thereafter  is  im- 
material upon  his  right  to  relief  in  a  suit 
then  pending.  Clark  ▼.  Nickell  (W.  Va.) 
1917A-1286. 

5.  Jurisdiction  of  Action  on  Lost  Instru- 
xnent.  Equity  has  jurisdiction  to  enforce 
the  liability  of  the  obligors  on  the  lost 
bond  of  a  defaulting  bank  cashier.  Clark 
V.  Nickell  (W.  Va.)  1917A-1286. 

(Annotated.) 
Note. 
Jurisdiction    of    action    on    lost    instru- 
ment.    1917A-1289. 

LOST  PROPEBTY. 

1.  Sights  of  Finder  of  Mislaid  Property. 
Plaintiff,  who  rented  a  safe  deposit  box, 
while  using  the  customer's  private  room, 
discovered  an  envelope  lying  on  the  corner 
of  the  desk  containing  bills  to  the  amount 
of  $180,  and  delivered  it  to  the  officers  of 
the  company,  and  after  diligent  effort  by 
them  and  failure  to  find  the  rightful  owner, 
brought  suit  for  its  return.  It  is  held  that 
the  money,  when  discovered  by  plaintiff, 
was  in  the  possession  of  the  deposit  com- 
pany, which  owed  a  duty  towards  it,  and 
which,  as  against  plaintiff,  was  entitled  to 
its  possession  and  custody  subject  to  the 
rights  of  the  real  owner.  Foster  v.  Fidel- 
ity Safe  Deposit  Co.  (Mo.)  19I7D-798. 

(Annotated.) 

2.  Bigbts  of  Finder  of  Lost  Property. 
The  finder  of  lost  property  is  entitled  to 
possession  against  every  one  but  the  true 
owner.  Foster  v.  Fidelity  Safe  Deposit 
Co.  (Mo.)  1917D-798. 

3.  Distinction  Between  Lost  and  Mislaid 
Property.  Property  to  be  "lost"  must 
have  been  unintentionally  or  involuntarily 
parted  with,  and  money  discovered  in  the 
highway  or  on  the  ground  or  the  floor  will 
be  considered  as  having  been  casually  and 
unknowingly  dropped,  and  thus  lost;  but 
where  it  is  intentionally  put  down,  as  in  a 
drawer  or  on  a  table,  and  the  owner  for- 
gets where  he  left  it  and  cannot  find  it,  it 
is  not  in  a  legal  sense  lost.  Foster  v.  Fidel- 
ity Safe  Deposit  Co.  (Mo.)  1917D-798. 

(Annotated.) 

4.  Bights  of  Parties  as  to  Mislaid  Prop- 
erty. Where  a  person  goes  into  another's 
public  place  of  business  to  transact  busi- 
ness with  him  and  places  his  money  on  a 
table  or  desk  and  comes  away,  forgetting 
that  he  has  done  so,  it  is  left  in  the  pos- 
session of  the  owner,  or  within  the  pro- 
tection of  the  house  or  place,  and  in  the 
legal  sense  is  not  lost.  Foster  v.  Fidelity 
Safe  Deposit  Co.   (Mo.)   1917D-798. 

5.  Mo.  Rev.  St.  1909,  §  8268  et  seq..  de- 
fining the  duty  of  persons  finding  lost  prop- 


erty, relates  only  to  the  duties  of  a  finder 
of  lost  property  who  does  not  know  the 
true  owner,  and  provides  a  method  for 
the  acquisition  of  title,  and  is  inappli- 
cable to  a  safety  deposit  company  ob« 
taining  constructive  possession  of  money 
placed  by  a  customer  on  a  desk  provided 
by  the  company  for  the  use  of  its  custom- 
ers, and  it  is  the  lawful  custodian  of  the 
money  for  the  true  owner,  and  must  exer- 
cise due  care  to  discover  him  and  deliver 
the  property  to  him.  Foster  v.  Fidelity 
Safe  Deposit  Co.  (Mo.)  I917D-798. 

(Annotated.) 
Note. 

Bights  of  parties  with  respect  to  mislaid 
property  as  distinguished  from  lost  prop- 
erty.    1917D-803. 

LOTTEBT. 
Defined,  see  Oamiug,  2. 

LUMBEB. 
See  Trees  and  Timber. 


See  Insanity. 


LUNATIOa 


LYINQ  IN  WAIT. 

Meaning,  see  Homicide,  60. 

MACHINIST. 

Ab  within    Federal     Employers'   Liability- 
Act,  see  Master  and  Servant,  52. 

MACHINIST'S  HELPEB. 

As   within   Employers'   Liability   Act,   see 
Master  and  Servant,  64. 

MAILABLE   MATTEB. 
See  Postofflce,  1,  2. 

MAIL  CABBIEB. 
Status,  see  Public  Officers,  7. 


See  Postofflce. 


MAILS. 


MAINTENANCE. 
See  Champerty  and  Maintenance. 

MAJOBITY. 

Power  to  bind  firm,  see  Partnership,  18-20. 

MALICE. 

Charging  malice,  see  Indictments  and  In- 
formations, 12,  13. 

In  civil  action  for  libel,  see  Libel  and 
Slander,  8-12,  103,  109,  114,  116,  119, 
121,  122,  133,  134,  136,  138,  140,  147. 


MALICE  AFORETHOUGHT— MALICIOUS  PROSECUTION.     541 


Malice  essential  for  liability,  see  Malicious 

Prosecution,  7.. 
Giving    redelivery  bond    as  evidence,  see 

Bepleviu,  11. 
As  essential  to  assault,  see  Trespass,  4. 

MALICE  AFORETHOUGHT. 
Defined,  see  Bobbery,  1. 

MAUCIOUS  AC5T. 
Defined,  see  Torts,  2. 

MAIilCIOUS     INTERFERENCE     WITH 

CONTRACT. 
Procuring  discharge  of  servant,  see  Torts, 
6-9. 

MALICIOUS  MISCHIEF. 
Charging  malice,  see  Indictments  and  In- 
formations, 12,  13v 

MALICIOUS  MOTIVE. 

As  affecting  liability,  see  Torts,  4. 

MALICIOUS  PROSECUTION. 

1.  Nature  and  Grounds  of  Liability,  541. 

a.  In  General,  541. 

b.  Termination  of  Prosecution,  541. 

c.  Malice,  541. 

d.  Probable  Cause,  542. 

(1)  In  General,  542. 

(2)  Advice  of  Counsel,  542* 

2.  Actions,  542. 

a.  Pleading,    542. 

b.  Admissibility  of  Evidence,  542. 

c.  Sufficiency  of  Evidence,  542. 

d.  Questions  for  Jury,  540. 

e.  Instructions,  543. 

f.  Damages,  543. 

g.  Verdict,  544. 
h.  Defenses,  544. 

Excessiveness  of  verdict,  see  Damages,  54, 
55. 

1.     NATURE  AND   GROUNDS  OF  UA- 
BILIT-X. 

a.  In  General. 

1,  Nature  of  Prosecution — Proceeding  to 
Abate  Nuisance.  An  action  for  malicious 
prosecution  will  not  lie  for  the  malicious 
filing  of  a  complaint  under  the  E'ng,  Public 
Health  Act  against  the  occupier  of  prem- 
ises to  compel  the  cleaning  and  disinfect- 
ing thereof.  Wiffen  v.  Bailey  (Eng.) 
19x6E-4S9.  (Annotated.) 

2.  Elements  of  Tort.  The  elements  nec- 
essary to  support  an  action  for  malicious 
prosecution  are  the  institution  of  proceed- 
ings without  probable  cause,  with  malice, 
that  they  have  terminated  in  plaintiff's 
favor,  and  that  she  suffered  damage  there- 
from. Mcintosh  V.  Wales  (Wyo.)  1916C- 
273. 


3.  Writs — Damages  on  Dissolution.  Dam- 
ages will  not  be  allowed  on  the  dissolu- 
tion of  ordinary  conservatory  writs,  in 
the  absence  of  statutory  authority  there- 
for.    Harvey  v.  Gartner  (La.)   1916D-900. 

4.  What  Constitutes  —  Bankruptcy  Pro- 
ceeding. A  petition  in  bankruptcy  filed  by 
bona  fide  creditors,  without  malice,  with- 
out libelous  and  slanderous  charges,  with 
reasonable  grounds  for  believing  the  alle- 
gations contained  in  the  petition,  with 
probable  cause,  and  upon  legal  advice,  al- 
though not  successfully  prosecuted,  will 
not  sustain  an  action  for  damages  in  the 
courts  of  the  state.  Harvey  v.  Gartner 
(La.)  1916D-900.  (Annotated.) 

Notes. 

Liability  as  for  malicious  prosecution 
of  one  advising  or  procuring  third  person 
to  institute  proceeding.     1918A-485. 

Liability  as  for  malicious  prosecution  of 
one  who  states  facts  to  magistrate,  public 
prosecutor  or  executive  officer.  1918A- 
492.  / 

Instituting  bankruptcy  or  insolvency 
proceeding  as  ground  for  action  for  mali- 
cious prosecution.     1916D-909. 

Institution  of  proceeding  to  abate  nui- 
sance as  ground  for  action  for  malicious 
prosecution.     1916E-493. 

■b.    Termination  of  Prosecution. 

5.  Dismissal.  Where  defendants  fur- 
nished information  under  oath,  on  which  a 
justice  of  the  peace  issued  a  warrant  charg- 
ing plaintiff  with  cattle  theft,  the  fact 
that  the  prosecuting  attorney  thereafter 
caused  the  proceedings  to  be  dismissed 
•without  submitting  any  evidence  does  not 
render  such  dismissal  any  the  less  a  ter- 
mination of  the  proceedings  in  plaintiff's 
favor,  Mcintosh  v.  Wales  (Wyo.)  19160- 
273. 

6.  Plaintiff,  by  showing  the  dismissal  of 
the  prosecution,  establishes  a  prima  facie 
case  of  want  of  probable  caus3,  but,  if  such 
ease  is  overcome  by  proof  of  probable 
cause,  the  issue  of  malice  becomes  imma-  . 
terial,  as  proof  of  probable  cause  is  a  com- 
ple'te  defense.  Hightower  v.  Union  Sav- 
ings, etc.  Co.  (Wash.)  1918A-489. 

c.     Malice. 

7.  Distinction  Between  Malice  and  Want 
of  Probable  Cause.  Probable  cause,  to 
■justify  a  criminal  prosecution,  may  exist, 
though  the  prosecuting  witness  acts  ma- 
liciously, if  the  charge  is  true,  and,  even 
if  not  true,  if  the  witness  acts  honestly 
and  in  good  faith,  basing  his  charge  on 
facts  which  he  in  good  faith  believes  to 
be  true,  and  which  afterward  turn  out  to 
be  false;  "probable  cause"  not  depending 
on  the  guilt  or  innocence  of  accused  in 
fact,  but  on  the  honest  and  reasonable  be- 


542 


DIGEST. 

19160— 1918B. 


lief  of  the  party  commencing  the  prosecu- 
tion. Mcintosh  V.  Wiales  (Wyo.)  1916C- 
273. 

d.    Probable  Cause. 
(1)     In  General. 

8.  Probable  Cause  Question  for  Court. 
What  facts,  and  whether  particular  facts, 
constitute  probable  cause,  is  for  the  court. 
Williams  t.  Pullman  Co.  (Minn.)  1916l!3- 
374. 

9.  Necessity  of  Aflarpaative  Proof.  The 
want  of  probable  cause  cannot  be  inferred 
from  the  existence  of  malice,  but  must  be 
expressly  shown,  so  that  evidence  of  malice 
ifl  inadmissible  to  show  the  want  of  prob- 
able cause.  Hightower  v.  Union  Savings, 
etc.  Co.  (Wash.)  1918A-489. 

10.  Probable  Cause  as  Question  of  Law 
or  Fact.  The  existence  of  the  facts  neces- 
sary to  establish  probable  cause  is  a  ques- 
tion for  the  jury,  but  the  facts  necessary 
to  establish  probable  cause  are  for  me 
court;  and  if  the  existence  of  facts  suffi- 
cient to  establish  probable  cause  is  not 
disputed  or  is  sufficiently  shown,  there  is 
nc  question  for  the  jury,  and  the  court 
should  hold,  as  a  matter  of  law,  that  there 
is  probable  cause  and  dismiss  the  action. 
Hightower  v.  Union  Savings,  etc.  Co. 
(Wash.)  1918A-489. 

Note. 
Advice  of  magistrate  or  layman  as  de- 
fense to  action  for  malicious  prosecution. 
1918A-498. 

(2)     Advice  of  Counsel. 

11.  Defendant,  who  was  sued  for  ma- 
licious prosecution,  cannot  testify  that  he 
was  not  actuated  by  malice,  where  he  did 
not  consult  an  attorney  before  instituting 
the  prosecution,  but  merely  submitted  the 
facts  to  a  magistrate's  clerk,  who  was  an 
attorney  at  law,  and  the  representations 
to  the  clerk  were  not  shown,  for  there  was 
no  foundation  for  the  testimony.  Morin  v. 
Moreau  (Me.)   1918A-497. 

12.  Advice  of  Magistrate.  Where  a 
complainant  consults  an  attorney  at  law, 
making  a  full,  fair,  and  truthful  disclosure, 
and  solicits  his  deliberate  opinion,  and  the 
advice  obtained  is  favorable  to  a  prosecu- 
tion, such  advice  will  go  far,  in  the  absence 
of  other  facts,  to  show  probable  cause  and 
to  negative  malice  in  an  action  for  ma- 
licious prosecution,  but  it  does  not  negative 
malice  or  show  probable  cause  that  tlie  de- 
fendant consulted  a  magistrate  or  a  magis- 
trate's clerk,  who  was  an  attorney  at  law, 
before  beginning  a  prosecution.  (Morin 
V.  Moreau  (Me.)  1918A-497. 

(Annotated.) 

13.  Details  of  Statement  to  Counsel. 
Where  defendant,  in  an  action  for  mali- 
cious prosecution,  desires  to  show  that  he 
acted  upon  the  advice  of  counsel  to  nega- 


tive malice  and  show  probable  cause,  the 
details  of  the  statement  he  made  to  his 
counsel  before  instituting  the  prosecution 
are  admissible.  Morin  v.  Moreau  (Me.) 
1918A-497. 

2.     ACTIONS. 
a.     Pleading. 

14.  Joinder  of  Causes  of    Action.     Two 

causes  of  action,  each  for  malic. ous  prose- 
cution, held  to  arise  out  of  transactions 
connected  with  the  subject  of  action,  and 
each  to  affect  all  the  parties  to  the  action, 
and  therefore  to  be'properly  united  in  one 
complaint.  Price  v.  Minnesota  etc.  R.  Co. 
(Minn.)   1916C-267. 

b.     Admissibility  of  Evidence. 

15.  Reputation    of    Plaintiff.    In    such 

suits,  the  bad  reputation  of  the  now  plain- 
tiff is  a  circumstance  bearing  on  the  state 
of  mind  of  the  defendant  going  to  show 
that  the  prosecutor  had  reasonable  grounds 
and  acted  in  good  faith.  Calhoun  v.  Bell 
(La.)  191CD-1165.  (Annotated.) 

16.  Evidence  of  Damages — Injury  to 
Credit.  Where,  in  an  action  for  malicious 
prosecution,  plaintiff  claimed  that  her 
credit  was  injured  at  a  bank  by  her  ar- 
rest, such  injury  can  be  proved  by  plaintiff 
as  well  as  by  the  bank  officials.  Mcintosh 
V.  Wales   (Wyo.)   1916C-273. 

17.  Defendant's  Wealth.  Where,  in  an 
action  for  malicious  prosecution,  plaintiff 
claims  that  defendant,  J.,  had  instituted 
the  prosecution  in  order  that  he  might  get 
plaintiff  and  her  husband  out  of  the  coun- 
try, and  so  have  freer  access  to  a  range 
for  his  cattle,  and  plaintiff  prays  to  re- 
cover punitive  damages,  evidence  of  J.'s 
financial  condition  and  the  extent  of  his 
land  holdings,  etc.,  is  admissible.  Mc- 
intosh V.  Wales   (Wyo.)   1916C-273. 

18.  Evidence  —  Hearsay.  In  an  action 
for  malicious  prosecution,  testimony  of  the 
prosecuting  attorney  as  to  what  had  been 
hold  him  by  the  officers  of  the  bank  and 
others  concerning  transactions  between  the 
bank's  manager  and  the  plaintiff,  and  that, 
in  his  opinion,  the  plaintiff  was  guilty  of 
grand  larceny,  is  not  within  the  hearsay 
law,  but  is  admissible  on  the  issues  of  good 
faith  and  probable  cause.  Hightower  v. 
Union  Savings,  etc.  Co.  (Wash.)  1918A-489. 

Note. 

Admissibility  of  evidence  of  plaintiff's 
character  in  action  for  malicious  prosecu- 
tion.    1916D-1167. 

c.    Sufficiency  of  Evidence. 

19.  Proof  of  Want  of  Probable  Cause — 
Acquittal.  In  an  action  to  recover  dam- 
ages for  malicious  criminal  prosecution, 
proof  of  an  acquittal  upon  a  trial  for  the 
crime  charged  is  not  prima  facie  evidence 


MALICIOUS  PROSECUTION. 


543 


of  want  of  probable  cause  for  the  institu- 
tion of  the  prosecution.  Williams  v.  Pnll- 
maa  Co.  (Minn.)  1916E-374.  (Annotated.) 

20.  Evidence  Insufficient.  The  facts  in 
this  case  upon  plaintiff's  own  testimony 
do  not  prove  want  of  probable  cause  for 
his  arrest  and  prosecution  upon  the  charge 
of  drunk  and  disorderly.  Williams  v.  Pull- 
man Co.  (Minn.)   1916E-374. 

21.  Want  of  Probable  Cause — Termina- 
tion of  Original  Prosecution  as  Evidence. 

Dismissal  of  a  criminal  prosecution  against 
plaintiff  at  the  instance  of  the  prosecuting 
attorney  without  submitting  any  evidence, 
while  admissible  to  show  a  termination  of 
the  proceedings  in  plaintiff's  favor,  is  not 
evidence  of  malice  or  want  of  probable 
cause.  Mcintosh  v.  Wales  (Wyo.)  I916C- 
273. 

22.  Evidence  Sufficient.  The  determina- 
tion of  the  trial  court  and  jury  that  there 
was  no  probable  cause  is  held  correct. 
Price  V.  Minnesota,  etc.  R.  Co.  (Minn.) 
1916C-267. 

23.  Proof  of  Want  of  Probable  Cause 
Insufficient.  Where,  in  an  action  for  ma- 
licious prosecution,  one  of  defendants  was 
plaintiff's  uncle,  and  had  known  her  in  the 
community  from  childhood,  and  there  was 
other  proof  that  plaintiff's  reputation  for 
honesty  and  integrity  was  good,  and  she 
testified  that  she  never  had  stolen  any 
calves  from  defendants  or  either  of  them, 
as  alleged,  the  proof  is  sufficient  to  raise 
a  prima  facie  case  of  want  of  probable 
cause.  Mcintosh  v,  Wales  (Wyo.)  1916C- 
273. 

24.  Inference  of  Malice.  Malice  may  be 
inferred  from  a  showing  of  want  of  prob- 
able cause,  but  want  of  probable  cause 
will  not  be  inferred  from  proof  of  malice 
alone.  Mcintosh  v.  Wales  (Wyo.)  1916C- 
273. 

2.J.  Persons  Liable — Instigating  Prosecu- 
tion by  Third  Person.  That  defendant  in 
a  malicious  prosecution  suit,  not  only  coun- 
tenanced and  approved,  but  in  fact  insti- 
gated, the  prosecution,  and  caused  the 
arrest  of  plaintiff,  his  tenant,  for  taking 
away  a  cotten  crop,  when  there  had  been 
no  settlement,  and  in  fact  there  was  no 
rent  due  him,  and  there  was  enough  cotton 
on  the  place  to  pay  any  balance  claimed 
bv  him,  warrants  a  verdict  for  plaintiff. 
Gordon  v.  McLearn  (Ark.)  1918A-482. 

(Annotated.) 
Note. 

Acquittal  in  criminal  prosecution  as  evi- 
dence, in  action  for  malicious  prosecution, 
of  want  of  probable  cause.     1916E-376. 

d.  Questions  for  Jury. 
26.  The  defense  of  advice  of  counsel  was 
properly  for  the  jury  to  determine,  and  the 
evidence  sustains  the  verdict  on  this  issue. 
Price  V.  Minnesota,  etc.  E.  Co.  (Minn,) 
3916C-267. 


e.     Instructions. 

27.  Probable  Cause — Question  of  Law  or 
Fact.  The  existence  of  facts  tending  to 
show  probable  cause  for  the  institution  of  a 
criminal  prosecution  is  for  the  jury,  but 
their  legal  effect  is  for  the  court,  and  in- 
structions advising  the  jury  with  respect 
thereto  should  be  given.  Carroll  v.  Parry 
(D.  C.)   1916E-971. 

28.  Trial-— Instructions  Approved.  There 
was  no  prejudicial  error  in  the  rulings  on 
evidence,  in  the  charge  or  in  the  refusal 
to  give  requested  instructions.  Price  v. 
Minnesota,  etc.  E.  Co.  (Minn.)  1916C-267. 

f.    Damages. 

29.  Elements    of   Damage    Eecoverable. 

The  circumstances  of  aggravation,  bodily 
pain,  mental  anguish,  and  injury  to  reputa- 
tion, and  expenses  of  litigation  less  tax- 
able costs,  are  proper  elements  of  damages 
for  malicious  prosecution.  Seidler  v.  Burns 
(Conn.)  1916C-266. 

30.  Excessiveness  of  Damages.  Where 
plaintiff  suing  for  malicious  prosecution 
shows  that  he  was  arrested  about  5  o'clock 
in  the  afternoon  and  taken  through  the 
public  streets  lo  the  police  station,  where 
he  was  kept  in  a  cell  until  the  nexit  morn- 
ing, that  his  case  was  then  adjourned  until 
the  following  day  when  he  was  acquitted, 
and  there  is  evidence  that  the  acts  of  de- 
fendant were  wanton  and  malicious,  a  ver- 
dict of  $500  will  not  be  disturbed  as  ex- 
cessive. Seidler  v.  Burns  (Conn.)  191 6C- 
266.  (Annotated.) 

31.  The  damages  are  not  excessive  with- 
in the  rule  guiding  this  court  in  cases  of 
this  kind.  Price  v.  Minnesota,  etc.  E.  Co. 
(Minn.)  1916C-267.  (Annotated.) 

32.  Punitive  Damages.  Where  there  is 
evidence  of  actual  malice  in  an  action  for 

.malicious  prosecution,  plaintiff  may  recover 
punitive  damages.  Mcintosh  v.  Wales 
(Wyo.)   1916C-273. 

33.  Recovery  of  Attorney's  Fee.  In  a 
prosecution  for  malicious  prosecution, 
plaintiff  may  recover  a  reasonable  attor- 
ney's fee  for  services  rendered  in  procur- 
ing her  release  from  the  prosecution.  -  Mc- 
intosh V.  Wales  (Wyo.)  1916C-273. 

34.  Compensatory  or  Punitive  Damages. 
Where  the  jury  finds  that  defendant  in 
a  malicious  prosecution  suit  has  acted  will- 
fully, in  a  wanton  and  oppressive  manner, 
and  in  conscious  disregard  of  his  civil 
obligations  and  of  plaintiff's  rights,  it  miy 
properly  assess  punitive  damages.  Gordon 
V.  McLearn  (Ark.)   1918A^82.  i 

35.  No  punitive  damages  in  a  malicious 
prosecution  suit  may  be  assessed,  unless 
compensatory  damages  are  also  ass^FS'^d, 
although  punitive  damages  may  largely  ex- 
ceed the  compensatory  damages.  Gordon 
V.  McLearn    (Ark.)    1918A-482. 


544 


g.     Verdict. 

36.  The  finding  of  the  jury  that  there 
was  malice  is  sustained  by  the  evidence. 
Price  V.  Minnesota,  etc.  R.  Co.  (Minn.) 
1916C-267. 

37.  Judgmwt  Against  One  Defendant 
Only.  In  an  action  for  malicious  prosecu- 
tion against  two  defendants,  alleging  that 
they  conspired  to  cause  the  arrest  of  thS 
plaintiff  on  a  false  charge,  the  individual 
liability  of  a  single  defendant  does  not  de- 
pend upon  the  proof  of  the  existence  of  a 
conspiracy,  and  a  verdict  for  one  defendant 
does  not  discharge  the  other  from  liability. 
Gordon  v.  McLearn  (Ark.)  1918A-482. 


Note. 

What  is  excessive  or  inadequate  verdict 
in  action  for  malicious  prosecution.  19160- 
250. 

h.    Defenses. 

38.  Original  Proceeding  —  Jurisdiction 
and  Process.  In  suits  for  damages  for 
malicious  prosecutions  and  false  arrest,  it 
is  not  material  that  the  plaintiff  was  pros- 
ecuted on  an  insuflBicient  process,  or  be- 
fore a  court  without  jurisdiction.  Cal- 
houn v.  Bell  (La.)  1916D-1165. 

39.  Insufficiency  of  Original  Complaint. 
Where  plaintiff  was  actually  arrested  and 
held  under  a  warrant  issued  on  a  sworn 
complaint,  the  fact  that  such  complaint 
did  not  in  fact  state  a  criminal  offense  is 
no  defense  to  an  action  for  malicious  pros- 
ecution. Mcintosh  V.  Wales  (Wyo.) 
19160-273. 

40.  Persons  Liable — Statement  of  Facts 
to  Public  Prosecutor.  That  defendant  in 
an  action  for  malicious  prosecution  made 
to  the  prosecuting  attorney  a  full  and  true 
statement  of  all  the  facts  concerning  the 
crime  within  his  knowledge,  and  acted 
upon  the  attorney's  advice  that  a  prosecu- 
tion be  instituted,  or  made  the  disclosure, 
and  the  prosecuting  officer  himself  insti- 
tuted the  prosecution,  constitutes  a  good 
defense.  Hightower  v.  Union  Savings,  etc. 
Co.  (Wash.)  1918A-489.  (Annotated.) 

MAUPEACTICE. 
See  Physicians  and  Surgeons,  19-45. 

MANAGES. 

Authority  of  bank  manager,  see  Banks  and 
Banking,  11,  12, 

MANDAMUS. 

1.  Nature  and  Grounds  of  Relief,  544. 

2.  Nature  of  Acts  Compellable,  544. 

a.  Exercise   of  Discretionary  Powers, 

544. 

b.  Acts*  of  Judicial  Officers,  545. 

(1)  In  General,  545. 

(2)  Compelling  Action.  545. 

(3)  Ministerial  or  Arbitrary  Acts, 

545. 


DIGEST. 

1916C— 1918B. 

c.  Right  to  Office,  545. 

d.  Acts  of  Private  Corporation,  545. 

e.  Issuance  to  Private  Person,  546. 

f .  Ministerial  Acts,  546. 

g.  Duty  Imposed  by  Law,  546. 
h.  Useless  Act,  546. 

3.  Procedure.  546. 

a.  Jurisdiction,  546. 

b.  Who  may  Obtain  Writ,  546. 

c.  Parties  Defendant,  547. 

d.  Abatement,  547. 

e.  Pleading,  547. 

f .  Fiat  for  Writ,  547. 

g.  Peremptory  Wb-it,  547. 
h.  Appeal  and  Error,  547. 

To  compel  refund  of  taxes  erroneously  col- 
lected, see  Taxation,  108. 


1.  NATURE    AND    GROUNDS   OF   BE- 

LIEF. 

1.  Effect  of  Existence  of  Statutory  Bem- 
edy.  The  remedy  given  by  section  39, 
chapter  39,  W.  Va.  Code  1899,  against  a 
sheriff,  for  failure  to  pay  county  orders 
drawn  on  him,  that  remedy  not  being  as 
competent  to  afford  relief  on  the  very 
subject-matter,  and  one  equally  as  con- 
venient, beneficial,  and  effective,  is  not  ex- 
clusive of  the  remedy  by  mandamus;  it  is 
cumulative  only  of  that  common-law  rem- 
edy. Eureka  Pipe  Line  Co.  v.  Biggs  (W. 
Va.)  1918A-995. 

2.  S.  Dak.  Laws  1911,  c.  239,  provides 
that  when  a  judge  of  the  supreme  court, 
not  legally  resident  at  the*  state  capital, 
shall  have  changed  his  actual  residence 
thereto,  there  shall  be  paid  to  such  judge, 
for  his  increased  expenses,  the  fixed  sum 
of  $50  a  month,  payable  on  the  certified 
vouchers  of  such  judge.  The  state  auditor 
refused  to  issue  warrants  to  the  members 
of  the  supreme  court  covering  the  amounts 
claimed  by  them  to  be  due  under  the  stat- 
ute for  a  certain  month  and  the  presiding 
judge  of  such  court  sought  mandamus 
tlicrein  to  compel  issuance  to  him.  An  ac- 
tion at  law  by  the  judge  against  the  state, 
under  Code  Civ.  Proc.  §  25,  could  not  have 
been  prosecuted  to  final  judgment  prior  to 
a  date  when  the  appropriation  for  the  pay- 
ment would  have  lapsed.  It  is  held  that 
the  relief  by  ordinary  suit  at  law  was  not 
plain,  adequate,  and  speedy,  since  such 
remedy,  to  prevent  mandamus,  must  be 
equally  convenient  and  beneficirfl,  and  as 
effective  as  mandamus,  placing  the  relator 
in  the  same  position  he  would  have  occu- 
pied had  the  duty  soua^ht  to  be  coerced 
been  performed,  (McCoy  v.  Handlin  (S. 
Dak.)  1917A-1046. 

2.  NATURE  OF  ACTS  COMPELLABLE, 
a.     Exercise  of  Discretionary  Powers. 

3.  Subjects  of  Belief — Denial  of  Liquor 
License.  Mandamus  will  not  lie  to  control 
or  restrict  the  discretion  given  to  a  city 
council  in  respect  to  the  issuance  of  a 
liquor  license,  but  in  the  present  case  it 


1 


MANDAMUS. 


545 


sufficiently  'appears  that  tlie  license  was 
refused  solely  because  its  issuance  had 
been  prohibited  by  an  ordinance  adopted 
under  the  initiative  provisions  of  the  city 
charter,  and  not  in  the  exercise  of  the  dis- 
cretion reposed  in  the  council.  State  t. 
Duluth  (Minn.)   1918A-683. 

(Annotated.) 
Note. 
Mandamns  to  control  issuance  of  liquor 
license.     1918A-687. 

h.    Acts  of  Judicial  Officers. 
(1)     In  General. 

4.  Where  an  applicant  for  registration 
as  a  trained  nurse  appealed  from  the  de- 
cision of  the  state  board  of  nurse  exam- 
iners to  the  state  association  of" graduated 
nurses  as  authorized  by  Mont.  Laws  1913, 
c.  50,  §  11-,  she  cannot  thereafter  ask  man- 
damus against  the  board,  even  though  the 
association  acted  capriciously  and  without 
the  full  hearing  required  in  denying  relief 
to  her,  since  the  board  cannot  be  held  re- 
sponsible for  the  failure  of  the  association 
to  do  its  duty.  State  v.  District  Court 
(Mont.)  1917C-164. 

5.  Right  to  Eemedy — Controlling  Action 
of  Licensing  Board.  Under  Mont.  Laws 
1913,  c.  50,  providing  for  the  registration 
of  nurses,  the  state  board  of  examiners  for 
nurses  is  a  public  board  and  cannot  be 
compelled  by  mandamus  to  certify  an  ap- 
plicant to  the  governor  for  registration, 
since  the  determination  of  the  qualifica- 
tions of  applicants  is  a  quasi-judicial  func- 
tion, which,  if  honestly  exercised,  cannot 
be  subject  to  judicial  review,  though  the 
honest  performance  of  such  duty  can  be 
commanded.  State  v.  District  Court 
(Mont.)   1917C-164. 

(2)     Compelling  Action. 

6.  Where  a  judge  is  incompetent,  on 
statutory  or  common-law  grounds,  to  try  a 
cause  pending  before  him,  mandamus  is 
the  proper  remedy  to  compel  him  to  certify 
his  incompetency  as  a  preliminary  to  the 
selection  of  a  qualified  judge  in  his  stead. 
McConnell  v.  Goodwin   (Ala.)    1917A-830. 

7.  The  fact  that  a  relator,  who  allege;! 
that  her  application  for  registration  as  a 
nurse  was  rejected  by  the  board  arbitrarily 
and  not  in  the  exercise  of  its  honest  judg- 
ment, asked  for  mandamus  to  compel  the 
board  to  certify  her  name  to  the  governor, 
does  not  prevent  the  court  from  issuing 
mandamus  to  compel  the  board  to  pass 
upon  her  qualifications  according  to  its 
honest  judgment.  State  v.  District  Court 
(Mont.)  1917C-164.  ^ 

(3)     Ministerial  or  Arbitrary  Acts. 

8.  To     Court  —  Exceeding    Jurisdiction. 

Mandamus  is  the  proper  remedy  where  a 
federal     district    court    has    exceeded    its 
35 


power  by  ordering  that  the  execution  of 
a  sentence  to  imprisonment  imposed  by  it 
upon  a  plea  of  guilty  be  suspended  in- 
definitely during  good  behavior  upon  con- 
siderations wholly  extraneous  to  the  con- 
viction. Ex  parte  United  States  (U.  S.) 
1917B-355. 

9.  Grounds  for  Belief — To  Compel  Dis- 
missal  of  Action.  Where,  under  the  stat- 
utes, defendant  is  entitled  to  dismissal  of 
plaintifiPa  action  for  want  of  prosecution, 
roandamus  to  compel  the  lower  court  to 
order  dismissal  will  not  be  denied  on  the 
ground  that  the  writ  is  discretionary,  and 
will  not  be  issued  where  it  will  cause  in- 
justice. Larkin  v.  Superior  Court  (Cal.) 
1917D-670. 

c.     Eight  to  Office. 

10.  Enforcement  of  Preferential  Sight  to 
Appointment.  Mandamus  is  not  the  proper 
remedy  to  enforce  the  appointment  by  the 
governor  of  an  honorably  discharged  sol- 
dier to  a  position  on  the  board  of  public 
health  and  medical  examiners,  under  S. 
Dak.  Pol.  Code,  §  3242,  providing  that  in 
every  public  department  and  upon  all  pub- 
lic works,  honorably  discharged  Union 
soldiers  shall  be  preferred  for  appointment, 
since  a  disregard  of  such  statute  does  not 
violate  the  legal  rights  of  any  particular 
person  so  as  to  enable  him  to  maintain  civil . 
proceedings  in  his  own  behalf.  Phelps  v. 
Byrne  (S.  D.)   1918B-996. 

11.  Restoration  to  Office.  A  petition  for 
mandamus  is  appropriate  to  compel  the 
restoration  to  office  of  a  rightful  incum- 
bent who  has  been  wrongfully  removed. 
Chaee  v.  City  Council  (R.  L)  1916C-1257. 

12.  Subjects  of  Relief — Reinstatement  of 
Teacher.  In  such,  case,  mandamus  is  avail- 
able as  a  remedy,  for  reinstatement.  Rich- 
ards V.  District  School  Board  (Ore.)  1917D- 
266. 

13.  Preventing    Removal  '  from     Office. 

Mandamus  is  an  appropriate  remedy  to 
compel  the  mayor  of  a  city  to  refrain  from 
attempting  to  remove  the  commissioner  of 
public  safety  from  his  office  without  au- 
thority, as  the  commissioner's  tenure  and 
removal  so  intimately  affect  the  public  ser- 
vice  and  municipal  interest  that  the  writ 
may  be  invoked  to  secure  the  proper  exe- 
cution of  the  laws.  Cunningham  v.  Mayor 
(Mass.)  1917C-1100. 

d.     Acts  of  Private  Corporation. 

14.  Corporations — Election  of  Officers — 
Mandamus  to  Test  Validity.  Mandamus 
affords  the  appropriate  relief  to  test  the 
validity  of  an  election  to  offices  in  a  Mas- 
sachusetts business  corporation,  though  it 
is  not  the  purpose  of  the  court  to  extend 
the  writ  into  new  fields.  Longyear  v. 
Hardman  (Mass.)   1916D-1200. 

15.  Contractual  Duty  to  Municipality. 
A  city,  by  ordinance,  leases  land  owned  by 


546 


it  to  a  private  corporation  for  a  wharfage 
business,  and  therein  reserves  the  right, 
within  a  period  specified,  to  purchase  all 
buildings  and  appliances  constructed  and 
used  by  the  lessee  in  the  business,  the  price 
thereof  to  be  fixed  by  appraisers,  two 
chosen  by  each  of  the  contracting  parties 
and  the  fifth  by  those  thus  selected.  The 
city,  within  the  time  limited,  elects  to 
purchase,  and,  after  due  notice,  appoints 
two  appraisers  to  act  on  its  behalf;  but 
the  lessee  declines  to  make  any  selection 
of  appraisers  or  to  consummate  the  pur- 
chase. 

Held,  mandamus  is  not  the  proper  rem- 
edy to  compel  compliance  by  the  lessee 
with  the  provisions  of  the  ordinance  and 
contract  relating  to  such  purchase  by  the 
city.  Huntington  v.  Huntington  Wharf, 
etc.  Co.  (W.  Va.)  1918A-913. 

(Annotated.) 

e.    Issuance  to  Private  Person. 

16.  Duties  Enforceable — Contract  Obli- 
gation. Mandamus  does  not  lie  to  enforce 
purely  contractual  obligations.  Hunting- 
ten  V.  Huntington  Wharf,  etc.  Co.  (W. 
Va.)   1918A-913. 

Note. 
Mandamus  as  remedy  in  behalf  of  mu- 
Enicipality  to  compel  performance  of  con- 
tractual obligation.     1918A-915. 

f.     Ministerial  Acts. 

17.  Mandamus  to  Compel  Return.  The 
duty  of  tae  county  canvassing  boaid,  inde- 
pendently of  the  Wis.  Law  of  1911,  is 
purely  ministerial;  it  is  required  to  obtain 
possession  of  the  district  returns  witnin 
the  time  specified;  it  may  have  a  remedy 
by  mandamus  to  enable  it  to  do  so,  if 
necessary,  and  may  be  compelled  by  man- 
damus, if  necessary,  to  complete  its  work 
within  the  required  time.  State  v.  Board 
of  State  Canvassers  (Wis.)  1916D-159. 

18.  Enforcing  Payment  of  Allowance  to 
Judge.  S.  Dak.  Laws  1911,  c,  239,  pro- 
vides  that  where  a  supreme  court  judge, 
not  a  legal  resident  of  the  state  capital, 
ihall  remove  thereto  he  shall  be  paid  $50 
monthly  in  consideration  of  increased  ex- 
pens  ?3  incident  to  the  removal.  The  state 
tiuditor  refused  to  issue  warrants  to  the 
members  of  the  supreme  court  for  the 
amount  for  a  certain  month,  and  the  pre- 
siding judge  of  the  court  sought  mandamus 
therein  to  compel  the  issuance  of  such  a 
warrant  to  him  under  Code  Civ.  Proc.  §  764, 
providing  that  the  writ  of  mandamus  may 
be  issued  by  the  supreme  court  to  any  in- 
ferior  tribunal,  board,  or  person  to  compel 
the  performance  of  an  act  specially  en- 
joined as  a  duty  resulting  from  an  office, 
trust,  or  station.  The  auditor  contended 
that  the  plaintifTs  remedy  was  by  action 
at  law  apai"st  the  state  in  the  supreme 
court,  as  Code  Civ,  Proc.  §  25  et  seq.,  pro- 


DIGEST. 

1916C— 1918B. 

vide  that  any  person  aggrieved  by  the  re- 
fusal of  the  state  auditor  to  allow  any 
just  claim  may  sue  the  state  in  the  supreme 
court.  It  is  held  that  since  there  was  no 
dispute  as  to  the  amount  to  be  paid,  if  any- 
thing, the  payment  was  a  ministerial  duty, 
imposed  by  statute,  involving  no  discre- 
tion, and  the  writ  of  mandamus  was  the 
proper  remedy  as  the  procedure  under  sec- 
tion 25  et  seq.,  was  to  determine  the 
amount  of  claims  disputed  as  to  amount, 
not  a  means  to  compel  payment  of  those 
a?  to  which  the  state  does  not  dispute- 
the  amount.  McCoy  v.  Handlin  (S.  Dak.) 
1917A-1046. 


g.    Duty  Imposed  by  Law. 

19.  A  mandamus  will  lie  to  compel  a 
railroad  company  to  make  the  necessary 
repairs  to  its  road  running  through  the 
streets  of  a  city  or  town,  so  as  to  keep- 
the  same  free  for  the  use  of  the  public, 
and  clear  of  all  obstructions.  La.  Rev.  St. 
§  691,  as  amended  by  Acts  No.  204  of  1902, 
p.  395,  and  No.  157  of  1910,  p.  236;  Act 
No.  193  of  1912,  p.  381.  State  v.  Louis- 
iana, etc.  R.  Co.  (La.)  1916C-1170. 

(Annotated.) 

20.  Under  Iowa  Code,  §  4341,  providing 
for  writ  of  mandamus  to  compel  an  inferior 
body  or  tribunal  to  execute  a  duty  imposed 
by  law,  a  writ  of  mandamus  is  the  proper 
remedy  to  compel  the  board  of  supervisors 
to  perform  a  duty  imposed  by  law.  Com- 
mercial Nat.  Bank  v.  Board  of  Supervisors 
(Iowa)   1916C-227. 

h.     Useless  Act. 

21.  To  Compel  Canvass  of  Votes.  Man- 
damus will  not  issue  to  compel  a  city  coun- 
cil to  canvass  votes  at  a  city  election,^ 
where  the  ballots  were  void  for  uncer- 
tainty; since  the  writ  will  not  issue  to- 
compel  the  performance  of  an  act  which 
can  accomplish  no  useful  purpose.  Wilson, 
v.  Blake  (Cal.)  1916D-205. 

3.     PROCEDURE, 
a.     Jurisdiction. 

22.  Issuance  in  Vacation.  The  writ  of 
mandamus  and  incidental  prohibition,  be- 
ing peremptory  in  character,  is  void  when 
issued  in  vacation,  and  was  properly 
quashed,  and  the  fiat  under  which  the  writ 
vas  issued  by  the  clerk  was  void  for  the 
same  reason.  McConnell  v.  Goodwin 
(Ala.)  1917A-839. 

b.     Who  May  Obtain  Writ. 

23.  Persons  Entitled  to  Apply  for  Writ — 
Enactment  of  Statute.  One  having  a 
special  interest  in  tMe  publication  of  a 
legislative  act  may  institute  mandamus 
against  the  secretary  of  state  to  compel 
its  publication  amonor  the  acts  of  the  legis- 
lature. Arkansas  State  Fair  Assoc,  v.. 
Hodges  (Ark.)  1917C-829. 


MANDATORY  AND  PERMISSIVE  STATUTES— LIANUFACTURER.    547 


c.     Parties  Defendant. 

24.  A  rule  to  show  cause  why  mandamus 
should  not  issue  where  a  federal  district 
court  has  exceeded  its  power  by  ordering 
that  the  execution  of  a  sentence  to  im- 
prisonment imposed  by  it  upon  a  plea  of 
guilty  be  suspended  indefinitely  during 
good  behavior  upon  considerations  wholly 
extraneous  to  the  legality  of  the  conviction 
is  properly  directed  to  the  judge,  to  com- 
pel the  vacation  of  the  order  of  suspen- 
sion, rather  than  to  the  clerk  of  the  court, 
to  compel  him  to  issue  a  commitment.  Ex 
parte  United  States  (U.  S.)  1917B-355. 

«[.    Abatement. 

25.  Against  Officer — Effect  of  Expiration 
of  Term.  A  suit  in  mandamus  against  a 
sheriff  by  the  holder  of  such  order  of  ex- 
oneration, to  compel  the  former  to  repay 
him  excess  of  taxes  collected,  does  not 
abate  by  the  officer's  death,  resignation,  or 
expiration  of  his  term,  if  it  be  shown  that, 
by  the  fault  of  the  county  court,  or  other- 
wise, he  has  failed  to  pay  such  order,  and 
at  the  expiration  of  his  term  he  has  paid 
over  to  his  successor  the  money  which  he 
should  have  paid  to  relator,  and  such  sum 
has  gdne  into  the  treasury  to  the  credit 
of  the  county  fund,  the  district  fund,  and 
to  the  boards  of  education.  In  such  case 
the  suit  may  be  revived,  and  the  incumbent 
in  office  cited  into  court  and  required  to 
respond  to  the  writ,  as  upon  original  pro- 
cess. Eureka  Pipe  Line  Co.  v.  Eiggs  (W. 
Va.)  1918A-995,  (Annotated.) 

26.  The  facts  in  this  case  call  for  the 
proper  application  of  the  rule  of  practice 
just  seated.  Eureka  Pipe  Line  Co.  v.  Riggs 
(W.  Va.)   1918A-995.  (Annotated.) 

Note. 

Abatement  of  mandamus  by  termination 
of    respondent's    office.     1918A-1000. 

e.     Pleading. 

27.  Application  for  Writ  —  Allegations 
on  Information  and  Belief.  Where  it  is 
obvious  that  the  reason  for  the  action  of 
the  council  is  not  within  the  personal 
knowledge  of  the  relator,  he  may  allege 
such  reason  upon  information  and  belief. 
State  v.  Duluth  (Minn.)    1918A-6S3. 

f.     Fiat  for  Writ. 

28.  Definiteness.  A  fiat  to  the  circuit 
clerk  of  a  county,  directing  him  to  issue 
mandamus  "or  other  remedial  writ"  re- 
quiring the  judge  of  probate  to  certify  his 
disqualification,  is  bad,  in  that  it  leaves 
the  selection  of  the  appropriate  writ  to 
the  discretion  of  the  clerk,  a  judicial 
authority  which  cannot  be  thus  delegated. 
McConnell  t.  Goodwin  (Ala.)   1917A-839. 


g.     Peremptory  Writ. 

29.  Right  to  Peremptory  Writ— Alterna- 
tive Writ  Erroneous  in  Part.  The  rul« 
that  where  an  alternative  writ  is  awarded 
for  a  purpose,  partly  proper  and  partly 
improper,  the  court  will  not  grant  per- 
emptory mandamus,  is  not  an  iron-bound 
one,  but  is  to  be  applied  with  principles  of 
justice.  Larkin  v.  Superior  Court  (Cal.) 
1917D-670.  , 

30.  Where  one  of  several  defendants  de- 
faulted, and  the  others  were  entitled  to 
dismissal  for  want  of  prosecution,  and 
the  defendants  who  answered  moved  for 
a  dismissal  as  to  them,  their  application 
for  a  writ  of  mandamus  to  compel  the 
trial  court  to  order  dismissal  will  not  be 
denied  under  the  rule  that  a  petitioner 
for  mandamus  is  concluded  by  the  terms 
of  the  alternative  writ,  and,  as  the  alter- 
native writ  prayed  a  dismissal  of  "the 
action,"  it  was  not  wholly  authorized. 
Larkin  v.  Superior  Court  (Cal.)  1917D- 
670. 

h.     Appeal  and  Error. 

31.  Findings  of  Fact.  The  supreme 
court  is  not  bound  by  the  findings  of  fact 
made  by  its  commissioner  in  mandamus, 
and  will  examine  the  facts  when  chal- 
lenged, whether  formal  exceptions  are 
filed  or  not.  State  v.  Jost  (Mo.)  1917I>- 
1102. 


MANDATORY    AND    PERMISSIVE 
STATUTES. 

See  Statutes,  18-20. 


MANDATORY  INJUNCTION. 

See  Injunctions. 

MANIA, 
Defined,  see  Wills,  59. 

MANN  ACT. 
See  Prostitution,  14,  15,  21. 

MAN  OF  STRAW. 

Liability  for  deficiency  judgment,  see 
Mortgages,  28. 

MANSLAUGHTER. 
See  Automobiles,  63;  Homicide. 

MANUFACTURER. 

Liability  for  injuries,  see  Automobiles, 
58-62. 

Liability  for  explosion  of  gasoline  light- 
ing system,  see  Negligence,  90,  99. 


548 


DIGEST. 

19160— 1918B. 


MAPS. 


As  evidence,  see  Evidence,  91,  92. 

Parol  proof  to  explain,  see  Evidence,  12L 

MARINE  INSURANCE. 
See  Insurance;  Ships  and  SMpping. 

1.  Action  —  Joinder  of  Underwriters, 
Where  a  number  of  underwriters  insure  a 
vessel  by  a  contract  expressly  declaring 
that  they  bound  themselves  severally,  and 
not  jointly,  for  its  performance,  the  in- 
sured cannot  maintain  a  single  action 
against  all  the  insurers  to  recover  an  ag- 
gregate amount  of  the  policy.  Fish  v. 
Vanderlip  (N.  Y.)   1916E-150. 

2.  Constructive  Total  Loss— Frustration 
of  Voyage.  A  vessel  which  is,  at  the 
breaking  out  of  war,  bound  to  a  port  of 
one  of  the  belligerents  and  is  warned  that 
capture  is  inevitable  if  an  attempt  is 
made  to  reach  that  port,  may  put  into  a 
friendly  port,  and  the  owners  may  there 
abandon  the  ship  and  cargo  to  the  under- 
writers and  claim  a  constructive  total  loss, 
if  the  policy  insures  against  capture  or 
"restraint  of  princes."  British,  etc. 
Marine  Ins.  Co.  v.  Sfinday  (Eng.)  1916D- 
876.  (Annotated.) 

Note. 
Frustration  of  voyage  because  of  exist- 
ence   of    war    as    constructive    total    loss 
within    marine    insurance    policy.     1916D- 
884. 

MARITIME  EMPLOYEES. 

As  within  "Workmen's  Compensation  Act, 
see  Master  and  Servant,  243-2i7,  262. 

MARK. 
Ab  a  signature,  see  Wills,  14,  16-18. 

MARKET  PRICE. 
Meaning,  see  Sales,  4. 

MARRIAGE. 

1.  Nature  and  Validity,  548. 

a.  Statutory  Regulation,  548. 

b.  Eights  and  Obligations  of  Parties, 

548'. 
«,  Validity,  548. 

(1)  Prohibited   Degrees   of   Rela- 

tionship, 548. 

(2)  Prior  Existing  Marriage,  549. 

(3)  Common-law  Marriage,  549. 

2.  Sufficiency  of   Evidence,  549. 

3.  Annulment.  549. 

a.  Grounds,  549. 

b.  Jurisdiction,  549. 

c.  Evidence,  549. 

See  Adultery;  Alimony  and  Suit  Money; 
Bigamy;  Breach  of  Promise  of  Mar- 
riage; Divorce;  Husband  and  Wife; 
Incest;  Polygamy. 


Expatriation  by  marriage,  see  Aliens,  15, 

16. 
Effect   of  bigamy   on   first   marriage,   see 

Bigamy,  1. 
How  proved,  see  Husband  and  Wife,  71- 

74. 
Sufficiency  of  proof,  see  Incest,  1. 
Cohabitation     after     statute     forbidding 

marriage,  see  Incest,  2. 
As  affecting  widow's  compensation  under 

Workmen's     Compensation     Act,     see 

Master  and  Servant,  278. 
Ground     for     removal     of     teacher,     see 

Schools,  32. 
As  revocation  of  will,  see  WiUs,  106-110. 
Testamentary  provisions  in  restraint,  see 

Wills,  229-236. 

1.    NATURE   AND  VALIDITY. 
a.     Statutory  Regulation. 

1.  'Tather" — Meaning  of  Term  —  Step- 
father not  Included.  Under  X.  Car.  Re- 
visal  1905,  §  2088,  providing  that,  where 
cither  party  to  a  .proposed  marriage  is  un- 
der 18  and  resides  with  the  father, 
mother,  uncle,  etc.,  the  register  of  deeds 
shall  not  issue  a  license  for  such  marriage 
until  the  consent  in  writing  of  the  r.elation 
with  whom  the  infant  resides  shall  be  de- 
livered to  him,  while  the  consent  of  the 
persons  named,  and  in  the  order  named, 
must  be  obtained,  and  where  the  infant  is 
living  with  the  father  and  mother  the 
written  consent  of  the  father  is  necessary, 
where  the  infant  is  living  with  her 
mother  and  stepfather,  the  mother's  con- 
sent is  sufficient,  and  the  stepfather's 
consent  is  not  required,  since  the  words 
"father"  and  "stepfather"  are  in  general 
use  and  well  understood,  the  difference  in 
the  relationship  and  the  marked  distinc- 
tion between  their  duties  and  liabilities 
are  well  known,  and  the  word  "father" 
does  not  include  a  "stepfather,"  defined 
as  the  husband  of  one's  mother,  who  is 
not  one's  father.  Owens  v.  Munden  (N. 
Car.    1917B-1117.  (Annotated.) 

b.     Rights   and   Obligations   of   Parties. 

2.  Intent  not  to  Perform  Marital  Obli- 
gations. The  statement  of  a  man  at  the 
time  of  his  marriage  that  he  would  not 
live  with  the  woman  does  not  render  the 
marriage  void.  Wimbrough  v.  Wim- 
brough  (Md.)  1916E-920.         (Annotated.) 

c.     Validity. 
(1)     Prohibited   Degrees   of  Relationship. 

3.  Persons  Related  Within  Prohibited 
Degree— Validity.  S.  Car.  Civ.  Code  1912, 
§  3743,  declares  that  no  man  shall  marry 
his  sister's  daughter,  and  that  no  woman 
shall  marry  her  mother's  brother.  Section 
3752  provides  that  either  party  to  a  mar- 
riage, the  validity  of  which  is  doubted, 
may    institute    a    suit    to    determine    the 


MARRIAGE. 


549 


validity.  Section  3753  provides  tliat  the 
court  of  common  pleas  may  determine  any 
issue  affecting  the  validity  of  contracts  of 
marriage.  Defendant  in  1882  married  the 
daughter  of  his  half-sister.  It  is  held  that 
the  statute  included  relatives  of  the  half 
blood;  that  the  marriage  was  not  void,  but 
voidable,  the  distinction  being  that  a 
"void  marriage"  is  one  not  good  for  any 
legal  purpose,  the  invalidity  of  which 
may  be  maintained  in  any  proceeding  be- 
tween any  parties,  while  a  "voidable  mar- 
riage" is  one  where  there  is  an  imperfec- 
tion which  can  be  inquired  into  only  dur- 
ing the  lives  of  both  of  the  parties  in  a 
proceeding  to  obtain  a  sentence  declaring 
it  void,  so  that  until  set  aside  it  is  prac- 
tically valid,  and  when  set  aside  is  ren- 
dered void  from  the  beginning.  State  v. 
Smith  (S.  Car.)   1917C-149.     (Annotated.) 

Note. 
Whether    marriages    within    prohibited 
degrees  of  relationship  voidable  or  void. 
1917C-151. 

(2)     Prior  Existing  Marriage. 

4.  Validity  —  Within  Proscribed  Time 
After  Divorce.  Where  a  man  and  woman, 
within  six  months  after  his  divorce,  left 
Washington  for  Canada  only  to  have  a 
marriage  performed,  immediately  return- 
ing, having  had  no  intention  to  change 
their  domicil,  the  marriage  ceremony  is 
void  in  law,  and  its  issue  illegitimate. 
Peerless  Pacific  Co.  v.  Burckhard  (Wash.) 
19.18B-247. 

(3)     Common-law  Marriage. 

5.  N.  Y.  Laws  1907,  e.  742,  repealing 
Laws  1901,  c.  339,  §  6,  declaring  invalid 
marriages  contracted  otherwise  than  as 
therein  provided,  renders  common-law 
marriages  valid  again,  although  Laws 
1901,  c.  339,  §  2,  requiring  solemnization 
by  certain  persons,  was  not  repealed. 
Ziegler  v.  P.  Cassidy's  Sons  (N.  Y.) 
19a7E-248.  (Annotated.) 

6.  Prior  to  1901  common-law  marriages 
were  valid  in  New  York.  Ziegler  v.  P. 
Cassidy's  Sons  (N.  Y.)  1917E-248. 

(Annotated.) 

7.  N.  Y.  Laws  1901,  c.  339,  §  2,  providing 
that  marriages  must  be  solemnized  by  cer- 
tain persons,  and  section  6,  providing  that 
no  marriages  contracted  otherwise  than  as 
provided  shall  be  valid,  rendered  common- 
law  marriages  invalid,  although  section  2 
alone  would  have  been  insufficient  for 
that  purpose.  Ziegler  v.  P.  Cassidy's  Sons 
(N.  Y.)    1917E-248.  (Annotated.) 

8.  Statutory  provisions,  requiring  writ- 
ten contracts  of  marriage  to  be  acknowl- 
edged a  certain  way;  that  the  marriage 
statutes  shall  not  invalidate  marriages 
among  Quakers,  etc.,  nor  should  failure  to 
procure  a  license  invalidate  them,  do  not, 
by  necessary  implication,  render  common- 


law  marriages  void.    Ziegler  v.  P.  Cassidy's 
Sons  (N.  Y.)  1917E-248.         (Annotated.) 

9.  The  fact  that  the  marriage  law  pro- 
vision, recognizing  marriages  contracted 
in  the  manner  theretofore  used,  was 
stricken  out  when  common-law  marriages 
were  prohibited  and  not  reinserted  when 
the  common-law  marriage  prohibition  was 
repealed,  does  not  indicate  a  legislative 
intent  to  continue  the  prohibition  of  com- 
mon-law marriages.  Ziegler  v.  P.  Cas- 
sidy's Sons  (N.  Y.)  1917E-248. 

*  (Annotated.) 

10.  A  statute  will  not  be  construed  to 
prohibit  common-law  marriages  where  the 
interpretation  is  doubtful.  Ziegler  v. 
P.  Cassidy's  Sons  (N.  Y.)   1917E-248. 

(Annotated.) 

2.    SUFFICIENCY  OF  EVIDENCE. 

11.  Evidence  Insufla.cient.  In  a  habeas 
corpus  proceeding  to  obtain  the  release  of 
a  juvenile  delinquent  from  the  custody  of 
the  superintendent  of  the  state  industrial 
school,  evidence  held  insufficient  to  estab- 
lish any  legal  marriage  between  the  de- 
linquent and  plaintiff.  Stoker  v.  Gowans 
(Utah)  1916E-1025. 

3.     ANNULMENT, 
a.     Grounds. 

12.  Duress — Mairiage  to  Escape  Prosft. 
cution.  Where  a  man  marries  to  escape 
arrest  or  imprisonment  for  seduction  or 
bastardy  he  cannot  avoid  the  marriage  on 
the  ground  of  duress,  nor  is  a  marriage  in- 
duced by  threats  of  lawful  prosecution, 
arrest,  or  imprisonment,  to  redress  or 
punish  a  wrong,  open  to  impeachment  on 
that  ground.  Wimbrough  v.  Wimbrough 
(Md.)   1916E'-920. 

b.     Jurisdiction. 

13.  Annulment  —  Power  of  Equity. 
Though  Md.  Code  Pub.  Civ.  Laws,  art. 
62,  §  14,  provides  that  circuit  courts  and 
the  superior  court  of  Baltimore  city  upon 
petition,  and  the  circuit  courts  and  the 
criminal  court  of  Baltimore  on  indictment, 
may  inquire  into  the  validity  of  any  mar- 
riage and  declare  any  marriage  contrary 
to  that  article,  or  any  second  marriage, 
the  first  subsisting,  null  and  void,  the 
authority  of  courts  of  equity  to  determine 
the  validity  of  a  marriage  charged  to  have 
been  procured  by  abduction,  terror,  fraud, 
or  duress,  rests  upon  their  general  juris- 
diction to  set  aside  contracts  affected  by 
fraud,  etc.  Wimbrough  v.  Wimbrough 
(Md.)  1916E-920. 

c.'     Evidence. 

14.  The  jurisdiction  of  equity  to  set 
aside  a  marriage  for  fraud,  duress,  etc., 
should  be  exercised  with  extreme  caution, 
and  only  on  clear,  distinct,  and  satisfac- 
torv  evidence.  Wimbrough  v.  Wimbrough 
(Md.)  1916E-920. 


550 


DIGEST. 

1916C— 1918B. 


15.  Evidence  of  Duress  Insufficient.  In 
a  tusband's  action  to  annul  a  marriage, 
evidence  held  insufficient  to  show  duress 
on  the  part  of  the  wife's  father,  justify- 
ing the  annulment  of  the  marriaj,'e. 
Wirabrough  v.  Wimbrough  (Md.)  1916E- 
920. 

MAEEIED  WOMEN. 
Liability    for    husband's    negligence,    see 

Automobiles,  24,  32. 
Liability  for  injury  caused  by  herself,  see 

Automobiles,  25)  49. 
Renewal  of  note  after  disability  removed, 

effect,  see  Bills  and  Notes.  38. 
Contracts  of,  see  Husband  and  Wife,  1-13. 
Convpyance   by   of   life    estate,   see   Idfe 

Estates,  5. 

MABSHAUNQ  ASSETS. 

See  Equity,  6. 

On  foreclosure  of  mortgage,  see  Mortgages 
and  Deeds  of  Trust,  29,  31. 

MARTIAL  LAW. 
See  MlUtla. 

1.  Power  to  Declare — Scope  of  Military 
Power  —  Suppression  of  Newspaper.  By- 
virtue  of  the  authority  vested  in  the  gov- 
ernor by  the  constitution  and  laws  of  the 
state,  he  has  authority  as  commander  in 
chief  of  the  military  forces,  pending  the 
existence  of  martial  law  covering  any  por- 
tion of  the  state's  territory,  to  cause  to 
be  arrested  and  imprisoned,  until  peace  is 
restored,  any  person  whom  he  has  good 
reason  to  believe  is  aiding  or  encouraging 
disorder  and  rioting;  and  he  may  also 
temporarily  suppress  any  newspaper  pub- 
lished in  the  state,  having  a  circulation 
in  the  martial  zone,  and  containing  arti- 
cles which  he  has  reason  to  believe  will 
encourage  a  continuation  of  the  disorder 
therein.  Hatfield  v.  Graham  (W.  Va.) 
1917C-1. 

MASONIC  BENEFIT  SOCIETIES. 
Sec  Benevolent  Associations. 

MASSEURS. 
See  Phjnsicians  and  Surgeons,  12,  13. 

MASTER  AND  SERVANT. 

1.  Contract  of  Employment,  551. 

a.  Duration  of  Hiring,  551. 

b.  Discharge,  551. 

(1)  Question  of  Law  or  Fact,  551. 

(2)  Admissibility     of     Evidence, 

551. 

c.  Compensation,  551.  • 

d.  Credentials,  551. 

2.  Liability  of  Master  for  Injury  to  Ser- 

vant, 551. 

a.  Duty    to    Furnish    Safe    Place    to 

"Work,  551. 

(1)  In  General,  551. 


b. 


(2)  Railroad   Cars   and   Premises, 
552. 
Duty   to   Furnish   Safe    Appliances 
and  Machinerv,  552. 

(1)  In    General,   552. 

(2)  Guarding  Machinery,  552. 

(3)  Work  Animals,  552. 

Duty    to    Warn    and    Instruct   Ser- 
vant, 553. 
Promulgation  of  Rules,  553. 
Violation  of  Statute,  553. 
Acts  of  Fellow  Servants,  553. 

(1)  Who  Are,  553. 

(2)  Nature  of  Liability,  553. 

(3)  Effect  of  Statutes,  553. 
Assumption  of  Risk,  553. 

(1)  Violation  of  Statute,  553. 

(2)  Promise  to  Repair,  554. 

(3)  Assumption  by  Contract,  554. 
Contributory  Negligence,  554. 

(1)  In    General,    554. 

(2)  Violation  of  Rules,  554. 

(3)  Questions  of  Law  and  Fact, 

554. 
Limiting  Liability  by  Contract,  554. 
Employers'  Liability  Acts,  555. 

(1)  Nature  and  Scope,  555. 

(2)  Constitutionality,  555. 

(3)  Injuries  Arising  "Out  of"  and 

"In  Course  of"  Employment, 
556. 

(4)  Employees     Within     Federal 

Employers'     Liability     Act, 
556. 

(5)  Employers  Within  Act,  558. 

(6)  Contributory  Negligence,  558. 

(7)  Negligence  of  Fellow  Servant, 

558. 

(8)  Assumption  of  Risk,  558. 

(9)  Limitation   of  Recovery,   559. 

(10)  Persons  Entitled  to  Sue,  559. 

(11)  What  Law  Governs,  559. 

(12)  Pleading,  560. 

(13)  Evidence,   560. 

(14)  Instructions,   560. 

(15)  Damages,  561. 

(16)  Verdict,  561. 

(17)  Review,  561. 

Workmen's  Compensation  Acts,  562. 

(1)  Nature  and  Purpose,  562. 

(2)  Constitutionality,  562. 

(3)  Construction  Generallv,  563. 

(4)  Operation  Without  State,  570. 

(5)  Election  Under  Optional  Act, 

570. 

(6)  Exclusiveness  of  Remedy,  571. 

(7)  "Accident"  and  "Personal  In- 

jury,"  571. 

(8)  Injuries  Arising  "Out  of"  and 

"In     Course     of"     Employ- 
ment, 573. 

(9)  Serious    and    Wilful    Miscon- 

duct of  Employee,  575. 

(10)  Notice  to  Employer,  575. 

(11)  Employees  Within  Act,  576. 

(12)  Dependents,  579. 

(13)  Compensation,  579. 

(14)  Proceedings  Under  Act,  581. 

(15)  Effect  of  Settlement,  583. 


MASTER  AND  SERVANT. 


551 


(16)  Increase  of  Award,  583. 

(17)  Keview,  583. 

1.  Actions  for  Injuries,  585. 

(1)  Pleading,  585. 

(2)  Presumptions  and  Burden  of 

Proof,  585. 

(3)  Admissibility     of     Evidence, 

586. 

(4)  Sufficiency  of  Evidence,  586. 

(5)  Defenses,  586. 

(6)  Questions  for  Jury,  586. 

(7)  Instructions,  588. 

(8)  Verdict,  588. 

8.  Liability  of  Master  for  Acts  of  Ser- 
vant, 589. 

a.  Existence  of  Eelation,  589. 

b.  Nature    and    Extent    of    Liability, 

589. 

c.  Pleading,  589. 

See  Independent  Contractors. 

Servant's  admission  of  negligence,  see 
Admissions    and   Declarations,    7. 

Evidence,  res  gestae,  see  Admissions  and 
Declarations,  16. 

Authority  to  engage  physician  for  injured 
servant,  see  Agency,  12. 

Fellow-servant  doctrine  inapplicable  to 
attornej's,  see  Attorneys,  70. 

Liability  of  owner  for  acts  of  chauffeur, 
see  Automobiles,  23. 

Compulsory  insurance,  see  Constitutional 
Law,  112. 

Injunction  to  prevent  breach  of  employ- 
ment contract,  see  Injunctions,  12. 

Eelation  of  landlord  and  tenant  distin- 
guished, see  Landlord  and  Tenant,  1. 

Privileged  communication  to  prospective 
employer,  see  Libel  and  Slander,  66- 
68. 

Action  under  Federal  Liability  Act,  see 
Removal  of  Causes,  1. 

Liability  for  wrongfully  procuring  dis- 
charge of  servant,  see  Torts,  6-9. 

1.     CONTRACT  OF  EMPLOYMENT, 
a.     Duration   of   Hiring. 

1.  Benewal  of  Contract — Continuing  in 
Service.  As  plaintiff  after  his  original  em- 
ployment for  the  year  1910  continued  in 
the  service  of  defendant  without  further 
contract  and  received  one  increase  of 
salary,  whether  he  was  employed  by  the 
month  or  by  the  year  in  1914,  when  he 
loft  plaintiff's  service,  is  held  to  be  for 
the  jury.  Conrad  v.  EUison-Harvev  Co. 
(Va.)   1918B-1171.  (Annotated.) 

2.  The  fact  of  plaintiff's  subsequent  em- 
ployment implies  some  sort  of  a  contract, 
from  the  continuance  in  service,  depend- 
ing upon  the  intention  of  the  parties,  and 
there  is  a  rebuttable  presumption  that  he 
was  again  emplovcd  for  a  like  term.  Con- 
rad v.  Ellison-Harvey  Co.  (Va.)  1918B- 
1171.  (Annotated.) 

Note. 
Term  of  employment  and  rate  of  com- 
pensation   of    one    continuing    in    service 


after    termination    of    contract.      1918B- 
1176. 

b.    .Discharge. 
(1)     Question    of   Law   or  Fact. 

3.  Question  for  Jury.  In  a  discharged 
bookkeeper's  action  on  the  common  counts 
in  assumpsit  for  salary,  the  question 
whether  the  plaintiff  was  discharged  or 
quit  the  service  of  defendant  of  his  own 
accord  is  held  to  be  for  the  jury.  Conrad 
V.  Ellison-Harvey  Co.  (Va.)   1918B-1171. 

(2)     Admissibility  of  Evidence. 

4.  Plaintiff  is  entitled  to  show  the  cir- 
cumstances and  negotiations  under  which 
he  began  his  original  term  of  service,  to 
be  considered  with  the  original  contract 
itself  in  determining  the  probable  inten- 
tion of  the  parties  to  continue  in  the  rela- 
tion after  the  first  year  expired.  Conrad 
V.  Ellison-Harvey   Co.   (Va.)    1918B-1171. 

(Annotated.) 

5.  Action  for  Discharge  —  Contract  for 
Previous  Term.  The  original  written  con- 
tract of  employment  for  one  year  is  ad- 
missible to  show  the  terms  of  the  original 
hiring.  Conrad  v.  Ellison-Harvey  Co. 
(Va.)  1918B-1171. 

c.     Compensation. 

6.  Seaman's  Wages — "Loss  of  the  Ship" 
— Detention  by  Enemy.  The  seizure  and 
detention  of  a  vessel  in  the  enemy's  port 
at  the  outbreak  of  war  is  not  a  "loss  of 
the  ship"  within  the  E'ng.  Merchant  Ship- 
ping Act  of  1894  which  will  terminate  a 
seaman's  right  to  wages.  Horlock  v.  Beal 
(Eng.)    1916D-670.  (Annotated.) 

7.  On  the  ground  of  impossibility  of 
performance  of  the  contract,  the  seaman's 
right  to  wages  terminate  by  the  seizure  of 
the  ship.  Horlock  v.  Beal  (Eng.)  1916D- 
670.  (Annotated.) 

Notes. 

What  constitutes  "loss"  within  meaning 
of  statute  terminating  seamen's  wages 
upon  loss  of  vessel.     1916D-688. 

Tips  as  part  of  earnings  or  wages. 
1918B-1122. 

d.     Credentials. 

8.  Duty  to  Furnish  Certificate  of  Char- 
acter. In  the  absence  of  statute,  there  is 
no  legal  duty  on  the  part  of  an  employer 
to  furnish  a  servant  discharged  or  leaving 
his  service  with  any  certificate  of  char- 
acter. Dick  V.  Northern  Pacific  E.  Co. 
(Wash.)  1917A-638. 

2.     LIABILITY    OF   MASTER    FOE    IN- 
JURY TO  SEEVANT. 

a.     Duty  to  Furnish  Safe  Place  to  Work. 

(1)     In  General. 
•  9.  It  has  always  been  the  law  that  it  is 
the  master's   duty  to  furnish  his  servant 


552 


DIGEST. 

19160— 1918B. 


a  safe  place  to  work,  and  if  for  any  rea- 
son the  place  was  unsafe  the  master  is 
liable  for  resultant  injuries.  Kimbol  v. 
Industrial  Accident  Commission  (Cal.) 
1917E-312. 

10.  Duty  as  Qualified  or  Absolute.  Ex- 
cept where  the  law  absolutely  enjoins  the 
doing  of  a  thing  as  a  duty,  it  is  the  mas- 
ters duty  to  exercise  reasonable  care  to 
furnish  his  ,  servant  a  reasonably  safe 
place  to  work  and  reasonably  safe  ap- 
pliances; but,  when  the  statute  enjoins 
the  doing  of  things  absolutely,  his  duty 
is  imperative.  Correll  v.  Williams,  etc.  Co. 
(Iowa)  1918A-117. 

(2)  Railroad  Cars  and  Premises. 

11.  Negligence  of  Eailroad  Company — 
Dangerous  Obstruction  Near  Track.  A 
railroad  company  is  guilty  of  actionable 
negligence  to  its  employees  in  operating  a 
train  upon  its  own  track  or  one  belonging 
to  another  road  past  an  obstruction 
located  dangerously  near  the  track,  if  it 
knew,  or  by  the  exercise  of  ordinary  care 
could  have  known,  of  the  dangerous  ob- 
struction. Devine  v.  Delano  (111.)  1918A- 
689. 

12.  Such  rule  applies  where  the  dan- 
gerous obstruction  is  alongside  the  track 
on  the  premises  of  a  manufacturing 
plant.  Devine  v.  Delano  (111.)  1918A- 
689. 

13.  Unnecessary  Dangers.  Where  no 
necessity  exists  for  the  operation  of  a 
railroad  under  dangerous  conditions,  and 
where  it  only  requires  care  and  skill  to 
make  such  conditions  safe,  the  road's  em- 
ployee may  not  be  subjected  to  such  dan- 
gers, wholly  unnecessary  to  th&  proper 
operation  of  the  road's  business,  because 
railroad  work  is  inherently  dangerous. 
Devine  v.  Delano  (111.)  1918A-689. 

14.  Negligence  of  Railroad  Company — 
Post  Near  Track.  A  railroad  daily  oper- 
ating trains  along  a  switch  track,  running 
into  a  manufacturing  plant  dangerously 
near  which  a  post  stood,  which  had  been 
in  the  same  position  for  a  year  and  a  half 
before  it  injured  a  switchman,  was 
chargeable  with  knowledge  of  the  post's 
dangerous  proximitv  to  the  track.  Devine 
V.  Delano  (lU.)  19i8A-689. 

15.  A  railroad  was  liable  for  the  death 
of  its  switchman,  killed  by  being  struck, 
when  riding  on  a  train,  by  a  post  stand- 
ing, to  the  road's  knowledge,  in  dangerous 
proximity  to  a  switch  track.  Devine  v. 
Delano   (111.)  1918A-689. 

16.  A  railroad,  which  operated  trains  on 
a  switch  track  past  a  post  dangerously 
near  thereto,  was  guilty  of  negligence  in 
so  doing,  if  it  knew,  or  should  have 
known,  the  dangerous  proximity,  that  its 
switchman  was  not  informed  of  the  fact, 
and  it  failed  to  inform  him.  Devine  v; 
Delano  (Dl.)   1918A-689. 


17.  Liability  for  Injury  —  Diversion 
from  Employment  —  Going  for  Drink. 
Where  deceased,  employed  by  one  railroad 
as  a  switching  fireman,  is  killed  by  an 
engine  of  the  defendant  railroad  while  he 
is  away  from  his  engine,  though  in  the 
yards,  he  :s  not  a  trespasser  or  licensee, 
but  is  at  the  time  engaged  in  his  employ- 
ment, so  that  the  defendant  owes  him  the 
duty  of  active  care,  although  he  has  gone 
across  the  yards  to  get  some  milk,  and  is 
returning  to  his  engine  when  struck. 
Ingram's  Admx.  v.  Rutland  R.  Co.  (Vt.) 
191SA-1191.  (Annotated.) 

Notes. 

Effect  on  relation  of  employee  as  such 
of  his  stopping  work  temporarily  for  his 
own  purposes.     1918A-1194. 

Location  of  mail  crane  near  railroad 
track  »8  actionable  negligence.  1916E- 
717. 

b.    Duty  to  Furnish  Safe  Appliances  and 

Machinery. 

(1)     In  General. 

18.  Negligence — Safe  Appliances — ^Mari- 
time Employee.  Where  a  stevedore  re- 
turning to  work  in  the  hold  of  a  ship  was 
required  to  pass  down  the  ladder  from  a 
hatchway  so  located  that  he  had  to  take 
hold  either  of  the  hatch  coaming,  or  of 
a  rope  just  above  it,  which  rope  was  ap- 
parently firmly  fixed  to  stanchions,  and 
on  his  taking  hold  of  such  rope  one  of  the 
stanchions  pulled  loose,  it  cannot  be  said 
as  a  matter  of  law  that  the  master  was 
free  from  negligence  in  having  the  rope 
less  secure  than  it  appeared  to  be. 
Shaughnessy  v.  Northland  Steamship  Co. 
(Wash.)   1918B-655. 

(2)  Guarding  Machinery. 

19.  Duty  to  Guard  Dangerous  Machin- 
ery— Statute  —  Effect  of  Noncompliance. 
Under  Iowa  Code  Supp.  1913,  §  4999a2, 
requiring  every  owner,  agent,  superin- 
tendent, etc.,  in  charge  of  any  place  where 
machinery  is  used  to  furnish  b»lt  shifters, 
and,  wherever  possible,  loose  pulleys,  and 
requiring  that  all  saws,  machinery,  etc., 
shall  be  properly  guarded,  it  is  the  mas- 
ter's affirmative  duty  to  provide  such  pro- 
tection, and  his  failure  to  do  so  is  action- 
able negligence.  Correll  v.  Williams,  etc. 
Co.  (Iowa)  1918A-H7. 

(3)     Work  Animals. 

20.  Where  an  animal  is  used  by  an  em- 
ployer to  carry  on  work  under  his  direc- 
tion, he  is  bound  to  use  reasonable  dili- 
gence to  provide  a  safe  animal,  and  is 
bound  by  what  he  knew  or  with  reason- 
able diligence  might  have  known  as  to  the 
docility  of  the  animal.  Marks  v.  Colum- 
bia County  Lumber  Co.  (Ore.)   1917A-306. 

(Annotated.) 


MASTER  AND  SERVANT. 


553 


Note. 
Duty  and  uability  of  master  to  servant 
with  respect  to  animal  furnisiied,  by  him 
to  servant.     1917A-309. 

c     Duty  to  Warn   and  Instruct   Servant. 

21.  Though  ordinarily  it  is  a  miner's 
duty  to  look  after  the  safety  of  the  roof 
of  the  room  in  which  he  works  and  the 
employer  is  only  required  to  furnish  props 
necessary  for  propping  the  roof,  where  its 
foreman  undertakes  to  make  an  inspection 
as  to  the  safety  or  soundness  of  the  roof, 
it  is  the  employer's  duty  to  exercise  or- 
dinary care  to  ascertain  the  true  condi- 
tion of  the  roof  and  inform  the  miner  of 
the  facts  that  an  ordinarily  careful  in- 
spection would  have  revealed.  Hall  v. 
Manufacturers'  Coal,  etc.  Co.  (Mo.)  19160- 
375. 

d.    Promulgation  of  Bules. 

22.  Habitual  Disregard  of  Eule.  Habit- 
ual violation  of  a  rule  of  a  railroad  com- 
pany with  its  knowledge  and  acquiescence 
abrogates  it,  regardless  whether  the  ser- 
vants charged  with  its  enforcement  con- 
sented or  acquiesced.  St.  Louis,  etc.  R. 
Co.  v.  Blaylock  (Ark.)  1917A-563. 

23.  Duty  to  Inform  Servant.  It  is  the 
duty  of  the  master  to  make  known  its  rules 
to  the  employee,  and  there  is  no  affirm- 
ative duty  upon  the  employee  to  ascertain 
their  existence.  St.  Lrouis,  etc.  B.  Co.  v. 
Blaylock  (Ark.)   1917A-563. 

e.    Violation  of  Statute. 

24.  Delegation    of    Statutory    Duty.     A 

master  delegating  the  discharge  of  his 
statutory  duties  to  his  servants  cannot 
thereby  escape  liability  for  a  failure  of  the 
agent  to  perform  such  duty,  nor  by  his 
discharge  of  such  duty  in  a  negligent  or 
careless  mannet.  Correll  v.  Williams,  etc. 
Co.  (Iowa)   1918A-117. 

f.     Acts  of  Fellow  Servants. 
(1)     Who  Are. 

25.  Engineer  and  Track  Repairer.  Ex- 
cept as  modified  by  statute,  an  engineer 
and  a  track  repairer,  though  in  different  de- 
partments of  the  railroad  company,  are  fel- 
low servants  engaged  in  the  same  common 
work  or  enterprise,  and  where  such  track 
repairer,  while  riding  on  the  engine  in 
charge  of  such  engineer  to  the  place  where 
sach  track  repairer  has  to  work,  received 
injuries  by  reason  of  the  negligence  of  such 
engineer  in  operating  the  engine,  there  can 
be  no  recovery  by  the  track  repairer 
against  the  railroad  company,  the  engineer 
not  sustaining  a  representative  relation, 
such  as  vice  principal,  to  the  defendant 
company.  Ingram-Dekle  Lumber  Co.  v. 
Geiger  (Fla.)  1918A-971. 


(2)     Nature  of  Liability. 

26.  At  the  common  law  where  the  master 
himself  has  performed  his  duty,  he  is  not 
liable  to  one  of  his  servants  for  personal 
injuries  received  by  such  servant  in  the 
course  of  his  employment,  through  the  neg- 
ligence of  a  fellow  servant  or  employee  of 
such  servant,  when  engaged  in  the  same 
undertaking  or  common-work  or  enterprise, 
unless  such  fellow  servant  or  coemployee 
sustains  a  representative  relation,  such  as 
vice-principal,  to  the  master.  Tuis  com- 
mon-law principle  is  in  force  in  this  state, 
except  as  modified  by  sections  3148,  3149, 
3150,  of  the  Fla,  General  Statutes  of  1906, 
and  chapter  6521  of  the  Acts  of  1913.  In- 
gram-Dekle Lumber  Co.  v.  Geiger  (Fla.) 
1918A-971.  (Annotated.) 

(3)     Effect  of  Statutes. 

•  27.  Abrogation  of  Fellow-servant  Doc- 
trine— Railroads.  A  corporation  or  com- 
pany engaged  in  the  operation  of  a  sawmill, 
and  as  an  incident  to  such  business  oper- 
ates a  steam  railroad  about  six  or  seven 
miles  long,  commonly  known  as  a  log  road, 
is  not  "a  railroad  company"  within  the 
term  and  meaning  of  sections  3148,  3149 
and  3150  of  the  Fla.  General  Statutes  of 
1906.  Ingram-Dekle  Lumber  Co,  v.  Geiger 
(Fla.)  1918A-971. 

28.  What  Constitutes  "Superintendence." 
Ala.  Code  1907,  §  3910,  subd.  2,  makes  em- 
ployers liable  for  injuries  to  employees 
caused  by  the  negligence  of  any  person  in 
the  employer's  service  who  has  any  super- 
intendence intrusted  to  him  while  in  the 
exercise  of  such  superintendence.  In  a 
railway  employee's  action  for  injuries  the 
evidence  showed  that  B.,  a  mechanic,  was 
sent  to  F.  to  repair  a  locomotive;  that 
plaintiff  was  sent  by  his  foreman  to  help 
13.  work  on  the  engine-  that  his  duties  did 
not  include  work  of  this  character,  but 
required  his  service  about  a  coal  shute 
and  in  the  transfer  of  baggage;  and  that 
E.  directed  plaintiff  to  do  certain  things 
connected  with  the  repair  of  the  engine. 
It  is  held  that  the  evidence  did  not  make 
a  prima  facie  case  of  B.'s  superintendence, 
as  "superintendence,"  within  the  statute,  is 
the  creature  of  power  or  authority  con- 
ferred by  the  master,  and,  though  there  are 
positions  in  a  master's  service  naturally 
importing  a  character  of  superintendence 
reposed  in  the  employee  serving  in  that 
position,  B.'s  service  or  station  was  not  of 
tiiat  type.  Louisville,  etc.  R.  Co.  v.  Carter 
(Ala.)   1917E^292. 

g.     Assumption  of  Risk. 
(1)     Violation  of  Statute. 

29.  Breach  of  Statutory  Duty  of  Master, 
Under  Iowa  Code  Supp.  I9l3,  §  4999a2,  re- 
quiring owners,  etc.,  of  places  where  ma- 


554 


DIGEST. 

19160— 1918B. 


chinery  is  used  to  guard  all  saws,  machin- 
ery, etc.,  aud  section  4999a3  providing  that 
where  the  master's  machinery  or  appliances 
are  defective,  and  where  it  is  his  duty  to 
furnish  reasonably  safe  machinery  and 
place  for  work,  the  servant  by  continuing 
the  work  shall  not  assume  the  risk  growing 
out  of  such  defects  of  which  be  may  have 
had  knowledge  when  the  master  also  knows 
of  such  defect,  except  when  it  is  the  ser- 
vant's duty  to  remedy  defects,  and  that 
under  such  conditions  the  servant  shall  not 
be  deemed  to  have  waived  the  negligence, 
if  any,  unless  the  danger  is  so  imminent 
that  a  reasonably  prudent  man  would  not 
have  continued  in  the  work,  and  that  tne 
statute  shall  not  be  construed  to  include 
risks  incident  to  the  employment,  the  con- 
ditions referred  to  are  those  created  by  the 
master's  negligence,  and  which  it  is  the 
duty  of  the  servant  in  the  ordinary  course 
of  his  employment  to  remedy,  so  that  when 
the  master  fails  in  his  duty,  the  servant 
does  not  assume  the  risk  by  continuing  in 
the  work,  except  when  it  is  his  duty  to 
remedy  the  defects,  and  even  then  he  does 
not  assume  the  risk,  unless  the  danger  is 
so  imminent  that  a  reasonably  prudent  per- 
son would  not  continue  therein.  Correll  v. 
WiUiams,  etc.  Co.  (Iowa)  1918A-117. 

(Annotated.) 

(2)     Promise  to  Repair. 

30.  Liability  of  Automobile  Owner  to 
Chauffeur.  Where,  in  a  chauffeur's  action 
for  injuries  sustained  while  replacing  a 
punctured  automobile  tire,  in  consequence 
of  a  defect  in  the  iron  retaining  ring, 
which  blew  out  while  the  tire  was  being 
pumped,  the  evidence  was  conflicting  as  to 
whether  the  defendant  owner  had  notice  of 
the  defect  and  promised  to  correct  it,  the 
question  of  assumption  of  risk  is  for  the 
jury.  Eichardson  v.  Flower  (Pa.)  1916K- 
1088.  (Annotated.) 

(3)     Assumption   by   Contract. 

31.  Validity  of  Contract.  A  clause  of  a 
Bwitchm-an's  contract  of  employment, 
whereby  he  assumed  the  risk  of  the  great 
danger  of  his  duty,  was  contrary  to  public 
policy,  so  far  as  purporting  to  charge  the 
switchman  with  assuming  any  risk  or  dan- 
ger caused  by  the  road's  negligence.  De- 
vine  V.  Delano  (III.)  1918A-689. 

h.     Contributory  Negligence. 
(1)     In   General. 

32.  Contributor^  Negligence  of  Miner. 
Where  the  danger  of  the  roof  of  a  mine 
falling  is  not  so  obvious  and  glaring  that  a 
reasonably  prudent  man  would  not  have 
continued  to  work  there,  a  miner  is  not 
negligent  as  a  matter  of  law  in  continuing 
work  in  reliance  upon  his  foreman's  assur- 
ance that  the  roof  is  safe.  Hall  v.  Manu- 
facturers' Coal,  etc,  Co.  (Mo.)   1916C-375. 


(2)     Violation  of  Rules. 


33.  Using  Hand  Car  at  Night.  Plain- 
tiff's evidence  showed  that  his  intestate,  a 
section  foreman,  was  negligently  killed  at 
night  by  defendant's  engine  running  with- 
out lights,  which  struck  the  intestate  while 
riding  on  his  hand  car  returning  from  a 
neighboring  town  where  he  had  been  on 
business.  There  was  nothing  in  plaintiff's 
evidence  to  show  that  such  use  of  the  hand 
car  was  improper,  but  defendant's  evidence 
showed  that  it  was  in  violation  of  a  rule  of 
the  company  against  the  use  of  hand  cars 
at  night.  It  is  held  that  a  nonsuit  on  the 
ground  of  contributory  negligence  was  im- 
properly granted,  since  such  judgment  can 
be  entered  only  where  contributory  negli- 
gence clearly  appears  from  plaintiff's  evi- 
dence. Home  V.  Atlantic  Coast  Line  B. 
Co.  (N.  Car.)  1918A-1171. 

(3)     Questions  of  Law  and  Fact. 

34.  Question  for  Jury.  Where  deceased, 
employed  as  a  ^reman  by  one  railroad,  was 
at  the  station  to  get  a  drink,  and  hearing 
a  call  from  his  engine  started  to  run  ac-oss 
the  unlighted  yard  to  it,  and  was  struck 
by  the  car  of  the  defendant  railroad,  it  is  a 
fair  inference  that  he  saw  the  approaching 
car,  but  judged  its  speed  erroneously  owing 
to  darkness  and  the  fact  that  the  car  bore 
no  lights,  and,  as  an  error  of  judgment 
does  not  necessarily  show  lack  of  care,  the 
question  of  his  care  is  for  the  jury.  In- 
gram's Admx.  V.  Rutland  R.  Co.  (Vt.) 
1918A-1191. 

35.  Engine  Without  Headlight.  Conced- 
ing that  the  intestate  was  negligent  in 
using  the  hand  car  in  violation  of  such 
rule,  the  case  should  be  submitted  to  the 
jury  on  the  question  of  proximate  cause, 
since  though  he  was  wrongfully  on  the 
track,  defendant  owed  the  intestate  the 
duty  to  have  a  headlight  on  the  engine 
whereby  he  might  have  seen  it  approach- 
ing in  time  to  avoid  injury.  Home  v.  At- 
iKntic  Coast  Line  R.  Co.  (N.  Car.)  1918A- 
1171.  (Annotated.) 

36.  Contributory  Negligence.  The  ques- 
tion whether  plaintiff's  contributory  neg- 
ligence was  proven  by  defendant's  evidence 
is  held  to  have  been  exclusively  for  the 
jury.  Home  v.  Atlantic  Coast  Line  R.  Co. 
(N.  Car.)  1918A-1171. 

37.  In  such  case,  it  could  not  be  said  as 
a  matter  of  law  that  the  servant  was  guilty 
of  contributory  negligence  in  using  the 
rope  for  support.  Shaughnessv  v.  North- 
land Steamship  Co.   (Wash.)   1918B-6o5. 

i.    Limiting  Liability  by  Contract. 

38.  A  contract  between  an  employer  and 
an  employee,  which  nullifies  or  lessens  any 
legal  duty  that  the  employer  owes  to  the 
employee  relative  to  safeguarding  the  life, 
limb,  safety,  health  or  welfare  of  the  lat- 


MASTER  AND  SERVANT. 


555 


ter,  is  contrary  to  public  policy,  and,  there- 
fore, null  and  void.  Such  void  contract  be- 
tween employer  and  employee  is  not  vali- 
dated by  any  subsequent  assignment, 
whereby  the  assignee  is  relieved  or  ac- 
quitted from  liability  for  any  or  all  negli- 
gent acts  causing  death  or  any  personal 
injury  to  said  employee,  though  with  full 
knowledge  of  all  the  facts  to  all  the  par- 
ties. Pittsburgh,  etc.  E.  Co.  v.  Kinney 
(Ohio)  1918B-286.  (Annotatsd.) 

39.  Mary  Kinney,  a  car  cleaner,  entered 
into  a  contract  of  employment  in  writing 
with  the  Pullman  Company,  in  which  con- 
tract it  was  provided,  among  other  things, 
that  Mary  Kinney,  in  consideration  of  her 
employment  and  wages  therefor  by  the 
Pullman  Company,  would  assume  all  risks 
of  accident  or  casualty  incident  to  such 
employment  and  would  release  the  Pullman 
Company  from  all  liability  therefor.  Said 
contract  further  recited  that  the  Pullman 
Company  had  a  contract  of  carriage  with 
the  railway  company,  whereby  the  Pullman 
Company  had  promised  and  agreed  to  pro- 
tect the  defendant  railway  company  from 
any  and  all  liability  arising  out  of  the  neg- 
ligence of  the  defendant  railway  company, 
or  its  employee^,  in  causing  death  or  in- 
juries to  any  of  the  employees  of  the  Pull- 
man Company.  Said  contract  between 
Mary  Kinney  and  the  Pullman  Company 
recited  the  substantial  terms  of  such  re- 
lease in  the  contract  between  the  railway 
company  and  the  Pullman  Company,  and 
further  contained  the  provision  that  the 
Pullman  Company  might  assign  its  release 
on  the  part  of  Mary  Kinney  to  any  rail- 
road company  carrying  the  Pullman  Com- 
pany's cars.  Held:  Said  contract  between 
Mary  Kinney  and  the  Pullman  Company, 
so  far  as  it  undertook  to  release  the  latter, 
or  any  railroad  company,  from  negligent 
acts  causing  death  or  injury  to  said  Mary 
Kinney,  was  invalid  because  contrary  to 
public  policy.  Pittsburgh,  etc.  R.  Co.  v. 
Kinney  (Ohio)  19-18B-286., 

(Annotated.) 
Note. 
Liability  of  master  to  domestic  servant. 
1917D-499. 

j.     Employers'  Liability  Acts. 
(1)     Nature  and  Scope. 

40.  Scope  of  Act.  Ore.  Employers'  Lia- 
bility Act  1910  is  not  limited  to  construc- 
tion work  but  applies  also  to  factories  and 
mills,  including  failure  of  owners  to  pro- 
tect dangerous  machinery.  Cameron  v.  Pa- 
cific Line,  etc.  Co.  (Ore.)  1916E-769. 

41.  Application  to  Railroad.  Ore.  Em- 
ployers' Liability  Act  March  2,  1911  (Laws 
1911,  c.  88),  which  by  section  1  is  made  to 
apply  to  employers  of  five  or  more  persons 
engaged  in  business,  trade,  or  commerce, 
applies  to  railroads;  "business"  being  thal^ 
which  occupies  the  time,  attention,  or  labor 
of   man  for  the   purpose   of  profit,  or  im- 


provement as  their  principal  concern,  while 
"commerce"  is  traffic,  including  the  means 
and  vehicles  by  which  traffic  is  accom- 
plished, and  also  intercourse,  or  transporta- 
tion, though  there  was  already  in  force  a 
statute  fixing  the  liability  of  railroads  to 
their  employees.  Vancjalia  Bailroad  Co.  v. 
Stillwell  (Ind.)  1916D-258. 

42.  Statutes  Repealed.  Ore.  Employers' 
Liability  Law  of  1910  (Laws  1911,  p.  16) 
does  not  in  terms  repeal  the  factory  in- 
spection act  (Laws  1907,  p.  302),  but  only 
so  much  thereof  as  is  inconsistent  with  the 
employers'  liability  law,  the  primary  pur- 
pose of  the  factory  inspection  act  being 
to  safeguard  dangerous  machinery,  the  lia- 
bility provided  in  section  8  thereof  being 
based  on  the  neglect  of  the  employer  to 
safeguard  any  machinery  or  the  usfe  of  it 
after  receipt  of  notice  to  guard  it,  but 
when  the  injury  is  the  proximate  result  of 
an  omission  to  guard,  and  there  is  a  liabil- 
ity concerning  matters  in  conflict  with  the 
Employers'  Liability  Act,  the  latter  con- 
trols, and  the  limitation  of  liability  con- 
tained in  the  factory  inspection  act  has  no 
application.  Cameron  v.  Pacific  Lime,  etc. 
Co.  (Ore.)  1916E-769.  (Annotated.) 

Note. 
What  statutes  are  impliedly  repealed  by 
State  Employers'  Liability  or  Workmen's 
Compensation  Act.     1916E-773. 

(2)     Constitutionality. 

43.  Emrloyers*  Liability  Act.  Whether 
Ind.  Employers'  Liability  Act  March  2, 
1911  (Laws  1911,  c.  88)  §  7,  providing  that 
all  questions  of  assumption  of  risk,  negli- 
gence, or  contributory  negligence  shall  be 
for  the  jury,  unless  the  case  is  tried  with- 
out a  jury,  when  they  ghall  be  questions 
of  fact  for  the  court,  is  invalid  as  depriv- 
ing courts  of  judicial  functions,  would  not 
be  determined,  where  under  the  first  para- 
graph of  the  complaint  the  evidence  maae 
a  question  for  the  jury  as  to  negligence, 
while  under  the  second  paragraph  there 
was  no  question  of  defendant's  liability. 
Vandalia  Railroad  Co.  v.  Stillwell  (Ind.) 
1916D-258.  (Annotated.) 

44.  The  statute  creates  no  liabilitv  on 
the  part  of  an  employer  where  there  is  no 
negligence,  and  hence  does  not  deprive  em- 
ployers of  liberty  or  property  without  due 
process  of  law.  Vandalia  Railroad  Co.  v. 
Stillwell  (Ind.)  1916D-258. 

45.  Ind.  Employers'  Liability  Act  March 
2,  1911  (Laws  1911,  c.  88),  is  not  invalid 
as  denying  the  equal  protection  of  the  laws 
because  it  applies  only  to  employers  of  five 
or  more  persons,  since  there  is  some  basis 
in  reason  for  distinguishing  between  an 
employer  of  a  large  number  of  employees 
and  one  employing  but  a  few  employees, 
and  it  cannot  be  said  that  it  was  unreason- 
able to  separate  employers  into  those  em- 
ploying five  or  more  persons  and  those  em- 


556 


DIGEST. 

1916C— 1918B. 


ploying  less  than  fiye.    Vandalia  Railroad 
Co.  V,  StUlweU  (Ind.)  1916D-258. 

(Annotated.) 

(3)  Injuries   Arising   "Out   of"    and   "In 

Course  of"  Employment. 

46.  The  Federal  Employers'  Liability  Act 
(Fed.  St.  Ann.  1909  Supp.  p.  584)  does  not 
permit  recovery  upon  a  mere  showing  that 
the  employee  was  injured  while  engaged  in 
interstate  commerce,  regardless  of  whether 
it  was  in  the  course  of  his  employment  or 
rot,  but  the  usual  rules  for  such  recovery 
apply,  Byram  v.  Illinois  Central  R.  Co. 
(Iowa)  1918A-1067.  (Annotated.) 

47!  Liability  to  Injured  Servant — Acts 
Outside  Course  of  Employment.  The  evi- 
dence is  held  to  show  that  the  acts  in  do- 
ing which  the  plaintiff  servant  was  injured 
were  not  within  the  course  of  his  employ- 
ment, so  that  the  master  .was  not  liable. 
Byram  v.  Illinois  Central  R.  Co.  (Iowa) 
1918A-1067. 

48.  An  accident  arises  out  of  the  employ- 
ment of  an  injured  servant,  where  it  is 
something  the  risk  of  which  might  have 
been  contemplated  by  a  reasonable  person 
when  entering  the  employment  as  incident 
to  it.  Byram  v.  Illinois  Central  R.  Co. 
(Iowa)  1918A-1067. 

49.  An  engine  hostler  has  by  virtue  of 
his  position  no  impli,ed  authority  to  call  as- 
sistance in  the  absence  of  an  emergency, 
80  that  a  fireman  who  responded  to  such 
a  call  could  not  recover  for  injuries  re- 
ceived while  rendering  the  assistance 
asked.  Byram  v.  Illinois  Central  R.  Co. 
(Iowa)  1918A-1067. 

50.  If  a  servant  voluntarily  undertakes 
the  performance  of  a  duty  for  which  he 
was  not  employed,  he  acts  at  his  own  peril, 
and  cannot  recover  for  injuries.  Bvram 
V.  Illinois  Central  R.  Co.  (Iowa)  19i8A- 
1067. 

Note. 
Necessity    that    servant    be    acting    in 
pourse  of  employment  when  injured  in  or- 
der to  recover  under  Employers'  Liability 
Act.     1918A-1070. 

(4)  Employees   Within   Federal    Employ- 

ers' Liability  Act. 

51.  Car  Repairer..  An  injury  received  by 
a  car  repairer,  while  raising  a  fallen  draw- 
head  to  standard 'height  during  the  tempo- 
rary stoppage  of  the  car  for  that  purpose 
while  in  interstate  transit,  falls  within  the 
Federal  Employers'  Liability  Act  (Act 
April  22.  1908,  c.  149,  35  Stat.  65  [Fed.  St. 
Ann.  1909  Supp.  p.  584]),  regulating  the  li- 
ability of  interstate  carriers  to  employees. 
Loriek  v.  Seaboard  Air  Line  Ry.  (S.  Car.) 
1917D-920. 

52.  Machinist  in  Repair  Shop.  Under 
the  Federal  Emplovers'  Liability  Act  April 
22,  1908,  c.  149,  35  Stat.  65  (Fed.  St.  Ann. 


1909  Supp.  p.  584),  making  every  common 
carrier  by  railroad  engaged  in  interstate 
commerce  liable  in  damages  to  any  person 
injured  while  he  is  employed  by  such  carrier 
in  such  commerce  from  the  negligence  of 
the  carrier's  oflScers,  agents,  or  employees, 
or  from  any  defect  in  its  appliances  and 
equipments,  an  employee  of  a  railroad 
which  was  engaged  in  interstate  and  intra- 
state commerce  working  as  a  mechanic 
principally  in  running  a  machine  where  he 
shaped  parts  to  be  used  in  the  repair  of 
locomotives  in  immediate  need  of  repair, 
and  generally,  but  not  exclusively,  in  the 
repair  of  locomotives  used  in  interstate 
commerce,  while  engaged  on  Sunday  in 
moving  the  countershaft,  which  supplied 
power  to  the  shaping  machine,  and  whose 
hand,  while  over  the  rail  on  a  girder  which 
he  was  drilling,  was  cut  off  by  the  wheels 
of  a  traveling  crane  moving  on  the  girders, 
is  not  employed  in  interstate  commerce, 
and  cannot  recover.  Shanks  v.  Delaware, 
etc.  R.  Co.  (N.  Y.)  1916E-467. 

53.  Carpenter   Extending   Repair   Shop. 

"Where  the  partition  between  the  extension 
of  railroad  repair  shops  and  the  old  part  of 
the  shops  had  been  torn  out  and  tracks  laid 
in  the  extension,  machinery  installed,  and 
several  engines  used  in  interstate  com- 
merce run  into  it  and  there  stored  tempo- 
rarily, the  extension  was  beinj  used  as  an 
instrumentality  of  interstate  commerce, 
though  yet  incomplete;  and  hence  a  car- 
penter injured  while  working  on  such  ex- 
tension is  injured  while  working  in  Hid  of 
interstate  commerce.  Thompson  v.  (  mcin- 
nati,  etc.  Co.   (Ky.)   1917A-1266. 

54.  Engine  Mover.  Moving  an  •'ngine 
nsed  in  interstate  commerce  prepa  "atory 
to  attaching  it  to  cars  is  an  act  in  inter- 
state commerce,  so  that  negligence  (f  fel- 
low servants  in  so  moving  the  eugino  will 
entitle  the  injured  servant  to  recover  un- 
der the  Federal  Employers*  Liability  Act 
(Act  April  22,  1908,  c.  149,  35  Stat.  L.  65 
[Fed.  St.  Ann.  1909  Supp.  p.  584]).  By- 
rcm  v.  Illinois  Central  R.  Co.  (Iowa) 
1918A-1067. 

55.  Niiht  Watchman.  A  night  watch- 
man in  the  employ  of  a  railway  company, 
injured  while  in  the  performance  of  his 
duty  to  guard  tools  and  materials  intended 
to  be  used  in  the  construction  of  a  new 
railway  station  and  new  tracks,  is  not  then 
engaged  in  interstate  commerce  within  the 
meaning  of  the  Federal  Employers'  Liabil- 
ity Act  of  April  22,  1908  (Fed.  St.  Ann. 
1909  Supp.  p.  584),  §  8657,  although  such 
station  and  tracks  were  designed  for  use, 
when  finished,  in  interstate  commerce. 
New  York  Central  R.  Co.  v.  White  (U.  S.) 
1917D-629. 

56.  EfTect  of  Suing  on  State  Statute.  As 
the  Federal  Employers'  Liability  Act  (Act 
April  22,  1908,  c.  149,  35  Stat.  65  [Fed.  St. 
Ann.  1909  Supp.  p.  584,  1912  Supp.  p.  335]) 
Supersedes  a  state  enactment  in  the  same 
field  and  governs  exclusively  all  cases  fall- 


MASTER  AND  SERVANT. 


557 


ing  within  its  eeope,  and  as  an  employee 
injured  under  circumstances  subjecting  Ma 
claim  for  damages  to  the  federal  statute 
cannot  properly  recover  therefor  under 
counts  declaring  on  the  state  statute,  a 
defendant  is  entitled  to  general  affirmative 
instructions  in  its  favor  with  respect  to 
such  counts  if  the  evidence  shows  that  the 
employee  was  engaged  in  interstate  com- 
merce at  the  time  of  the  injury,  although 
such  defendant  requested  the  general  af- 
firmative charge  as  to  a  count  based  on  the 
federal  statute  on  the  ground  that  plain- 
tiff, when  injured,  was  not  engaged  in  in- 
terstate commerce.  Louisville,  etc.  E.  Co. 
V.  Carter  (Ala.)  1917E-2&2.     (Annotated.) 

57.  Employee  Repairing  Locomotive.    A 

railroad  employee  injured  while  assist- 
ing in  repairing  a  locomotive  which  was 
being  used  or  to  be  used  wholly  within 
s+ate  of^  Alabama  in  drawing  a  work 
train  engaged  in  repairing  the  railroad 
company's  interstate  track  is  not  within 
the  Federal  Employers'  Liability  Act, 
and  was  entitled  to  sue  under  the  state 
statute,  since  the  federal  act  is  only 
applicable  to  those  in  the  employment  of 
interstate  carriers  who  at  the  time  of  the 
injury  are  engaged  in  work  immediately 
related  and  directly  contributory  to  inter- 
state commerce,  and,  while  such  relation 
exists  when  his  service  is  in  or  about  the 
maintenance  or  repair  of  agencies  already 
devoted  to  or  immediately  capable  of  faci- 
litating some  essential  feature  of  interstate 
commerce,  the  engine  in  question  was  not 
an  instrumentality  of  such  commerce  nor 
an  immediately  or  directly  applied  means 
to  the  maintenance  or  repair  of  any  indis- 
pensable feature  of  interstate  transporta- 
tion, but  was  only  brought  into  a  second- 
ary relation  to  an  interstate  instrumental- 
ity. Louisville,  etc.  R.  Co.  v.  Carter  (Ala.) 
1P17E-292. 

58.  The  purpose  to  devote  in  future  an 
agency  capable  of  use  in  interstate  com- 
merce to  that  service  will  not  bring  it 
within  the  operation  of  the  Federal  Em- 
ployers' Liability  Act,  though  the  physical 
preparation  of  the  agency  for  immediate 
use  in  such  commerce  may  suffice.     Louis- 


nay 


ville,  etc.  R.  Co,  v.  Carter  (Ala.)  l9l7E-2i)2. 

59.  Maritime  Employees.  Congress  did 
not  establish  a  rule  of  liability  with  re- 
spect to  injuries  received  by  an  employee 
on  an  ocean-going  ship  plying  between 
ports  of  different  states,  owned  and  oper- 
ated by  a  corporation  which  is  also  an  in- 
state railway  carrier,  by  enacting  the  pro- 
visions of  the  Employers'  Liability  Act  of 
;  April  22,  1908  (35  Stat,  at  L.  65.  c.  149, 
'Fed.  St.  Ann.  1909  Supp.  p.  584).  giving  a 
right  of  recovery  against  interstate  car- 
riers by  railroad  for  the  death  or  injury 
of  employees  while  engaged  in  interstate 
commerce,  caused  by  the  negligence  of  the 
carriers'  officers,  agents,  or  employees,  or 
by  any  defect  or  insufficiency,  due  to  its 


negligence,  in  its  "cars,  engines,  appli- 
ances, machinery,  track,  roadbed,  works, 
boats,  wharves,  or  other  equipment."  The 
word  "boats"  in  the  statute  refers  to  ves- 
sels which  may  be  properly  regarded  as  in 
subst£^nce  part  of  a  railroad's  extension  or 
equipment,  as  understood  and  applied  in 
common  practice.  Southern  Pacific  Co.  v. 
Jensen  (U.  S.)  1917E-900. 

60.  Employee  of  Interstate  Railroad. 
The  operation  of  the  Federal  Employers' 
Liability  Act  of  April  22,  1908  (35  Stat. 
L.  65,  c.  149-,  Fed.  St.  Ann.  1909  Supp.  p. 
584),  governing  the  liability  of  interstate 
railway  carriers  for  the  death  or  injury  of 
their  employees  while  employed  in  inter- 
state commerce,  cannot  be  interfered  with 
by  a  state  either  by  putting  the  carriers 
and  their  employees  to  an  election  between 
the  provisions  of  that  statute  and  a  state 
workmen's  compensation  act,  as  is  at- 
tempted by  N.  f.  Laws  1911,  c.  95,  or  by 
imputing  such  an  election  to  them  by  a 
statutory  presumption.  Erie  R.  Co.  v. 
Winfield  (U.  S.)  1918B-662.     (Annotated.) 

61.  Engineer  of  Switch  Engine.  An  em- 
ployee of  an  interstate  railway  carrier  in 
charge  of  a  switch  engine  who  is  killed 
while  leaving  the  yards  after  his  day's 
work,  which  includes  employment  in  both 
interstate  and  intrastate  commerce  is  em- 
ployed in  interstate  commerce  within  the 
meaning  of  the  Federal  Employers'  Liabil- 
ity Act  of  April  22,  1908  (35  Stat.  L.  65, 
c.  149,  Fed.  St.  Ann.  1909  Supp.  p.  584), 
governing  the  liability  of  such  carriers 
for  the  death  or  injury  of  their  employees 
when  employed  in  interstate  commerce. 
Erie  R.  Co.  v.  Winfield  (U.  S.)  1918B-662. 

62.  Existence  of  Relation.  The  Federal 
Employers'  Liability  Act  (Act  April  22, 
190.8,  c.  149,  35  Stat.  65  [Fed.  St.  Ann. 
1909  Supp.  p.  584])  has  no  application  to 
an  employee  who  incurs  an  injury  whila 
not  engaged  in  interstate  commerce,  or  an 
injury  incurred  by  a  person  who  is  not  an 
employee  of  the  railroad  at  the  time. 
Chesapeake,  etc.  R.  Co.  v.  Harmon's  Adm'r. 
(Ky.)  1918B-41.  (Annotated.) 

63.  Student  Fireman.  A  "student"  fire- 
man, who  receives  no  wages  or  other  re- 
turn, except  information,  for  his  services, 
performed  by  virtue  of  a  permit  authoriz- 
ing him  to  ride  on  the  engine  only  of  de- 
fendant's trains  at  his  pleasure,  although 
an  employee  and  entitled  to  a  reasonably 
safe  place  to  work  in  places  where  he  must 
necesssarily  be  while  performing  the  duties 
contemplated  by  the  arrangement,  is  not 
an  "employee"  within  the  Federal  Employ- 
ers' Liability  Act,  when  killed  in  a  rear- 
end  collision  while  in  the  caboose  after 
having  abandoned  his  duties  temporarily. 
Chesapeake,  etc.  R.  Co.  v.  Harmon's  Adm'r. 
(Ky.)  1918B-41.  (Annotated.) 

64.  Machinist  in  Roundhouse.  A  ma- 
chinist's helper,  engaged,  while  making  re- 
pairs in   the   roundhouse,  upon   an   engine 


558 


DIGEST. 

1916C— 1918B. 


which  had  been  used  in  hauling  over  the 
railway  company's  lines  freight  trains 
carrying  both  intrastate  and  interstate 
freight,  and  which  was  used  in  the  same 
way  after  the  accident,  is  not  then  em- 
pjoyed  in  interstate  commerce  within  the 
meaning  of  the  Federal  Employers'  Liabil- 
ity Act  of  AprU  22,  1908  (35  Stat.  L.  65, 
c.  149  [Fed.  St.  Ann.  1909  Supp.  p.  584]), 
governing  the  liability  of  an  interstate 
carrier  for  injuries  to  its  employees  when 
employed  in  interstate  commerce.  Minne- 
apolis, etc.  R.  Co.  V.  Winters  (U.  S.) 
1918B-54.  (Annotated.) 

65.  Clearing  Wreckage  from  Track.  An 
employee  of  an  interstate  railway  carrier 
assisting  in  clearing  up  a  wreck  which 
was  blocking  the  movement  of  cars  in  in- 
terstate commerce,  who,  while  carrying 
blocks  on  his  shoulder  which  were  to  be 
used  in  jacking  up  a  wrecked  car  and  re- 
placing it  upon  the  track,  stumbled  over 
some  large  clinkers  which  were  on  the 
roadway  near  the  track,  and  in  stumbling 
struck  his  foot  on  some  old  cross  ties,  over- 
grown with  grass,  as  a  result  of  which 
he  was  seriously  injured,  is  employed  in 
interstate  commerce  within  the  meaning 
of  the  Employers'  Liability  Act  of  April 
22,  190S  (35  Stat.  L.  65,  c.  149,  Fed.  St. 
Ann.  1909  Supp.  p.  584),  as  amended  by 
the  Act  of  April  5,  1910  (36  Stat.  L.  291, 
c.  143,  Fed.  St.  Ann  1912  Supp.  p.  335), 
giving  a  right  of  recovery  against  the  car- 
rer  for  injury  to  an  employee  while  so 
employed,  although  his  primary  object  may 
have  been  the  rescue  of  a  fellow  employee, 
pinned  beneath  the  ear.  Southern  E.  Co. 
V.  Puckett  (U.  S.)  1918B-69. 

(Annotated.) 

Notes. 

Employees  entitled  to  protection  under 
Federal  Employers'  Liability  Act.  1916E- 
472. 

Employees  entitled  to  protection  under 
Federal  Employers'  Liability  Act.  1918B- 
55. 

Existence  of  relation  of  employer  and 
employee  under  Federal  Employers'  Lia- 
bility  Act.     1918B-46. 

Maritime  employees  as  within  purview 
of  Workmen's  Compensation  Act.  1918B- 
661. 

(5)     Employers  Within  Act. 

66.  Ind.  Employers'  Liability  Act  March 
2,  1911  (Laws  1911,  c.  88)  §3,  which  by 
section  1  is  made  to  apply  only  to  employ- 
ers of  five  or  more  persons,  providing  that 
an  employee  shall  not  be  held  to  have 
assumed  the  risk  of  any  defect  in  the  place 
of  work  or  in  the  tool,  implement,  or  ap- 
pliance furnished  him  by  the  employer, 
where  such  defect  prior  to  the  injury  was, 
or  by  ordinarj'  care  might  have  been, 
known  to  the  employer  in  time  to  have  re- 
paired it,  or  discontinued  its  use,  does  not 


require  employers  of  five  or  more  persons 
to  exercise  a  higher  diligence  than  those 
of  less  than  five,  since  at  common  law  it 
js  the  employer's  duty  to  furnish  or  exer^ 
cise  ordinary  care  to  see  that  tools,  im- 
plements, or  places  of  work  are  reason- 
ably safe,  and  that  rule  still  obtains  as  to 
all  employers.  Vandalia  Kailroa  i  Co.  v. 
Stillwell  (Ind.)  1916D-2o8.      (Annotated.) 

(6)     Contributory  Negligence. 

67.  Contributory  Negligence.  In  an  ac- 
tion for  injuries  to  a  servant  under  Ore. 
Employers'  Liability  Act  1910,  contribu- 
tory negligence  is  not  a  defense,  but  may 
be  considered  in  fixing  damages.  Cam- 
eron V.  Pacific  Lime,  etc.  Co.  (Ore.)  1916E- 
769. 

68.  Contributory  Negligence  as -Defense 
Under  Federal  Act.  Under  th|  Federal 
Employers'  Liability  Act  (Fed.  St.  Ann. 
1909  Supp.  p.  584),  which  adopts  the  com- 
parative negligence  doctrine,  plaintiff's 
contributory  negligence  does  not  defeat  nis 
action.  Byram  v,  Illinois  Central  E.  Co. 
(Iowa)  1918A-1067. 

(7)     Negligence   of   Fellow    Servant. 

69.  Assumption  of  Bisk — Negligence  of 
Another  Servant.  A  servant  does  not  as- 
sume the  risk  arising  out  of  the  negligence 
of  another  employee;  for  against  such  risk 
he  cannot  guard,  nor  can  he  anticipate  it. 
Byram  v.  Dlinois  Central  E.  Co.  (Iowa) 
1918A-1067. 

(8)     Assumption   of   Eisk. 

70.  The  Oregon  Employers'  Liability  Act 
abrogates  the  doctrine  of  assumption  of 
risk  in  actions  coming  within  its  scope. 
Marks  v.  Columbia  County  Lumber  Co. 
(Ore.)  1917-306. 

71.  Whether  a  car  repairer  who  con^ 
tinned  at  work  after  complaining  of  the 
luck  of  a  certain  tool,  on  the  master's 
promise  to  supply  it,  assumed  the  risk  of 
working  without  it  so  as  to  bar  an  action 
under  the  Federal  Employers'  Liability  Act 
(Fed.  St.  Ann.  1909  Supp.  p.  584)  is  held 
to  be  for  the  jury.  Lorick  v.  Seaboard 
Air  Line  Ey.  (S.  Car.)  1917D-920. 

(Annotated.) 

72.  Construction  —  Changes  in  Existing 
Law.  Ind.  Employers'  Liability  Act 
March  2,  1911  (Laws  1911.  c.  S8)  §  1, 
makes  employers  of  more  than  five  per- 
sons liable  for  injuries  to,  or  the  death  of, 
an  employee  due  to  its  negligence,  or  the 
negligence  of  its  agents,  servants,  etc. 
Section  2  places  the  burden  of  proving 
that  the  injured  employee  did  not  use  due 
care  and  diligence  on  the  employer,  and 
provides  that  no  such  employee  shall  be 
held  negligent  by  reason  of  the  assumption 
of  the  risk,  where  the  violation  of  any  or- 
dinance,   statute,    or    rule,   regulation,    or 


MASTER  AND  SERVANT. 


559 


direction  of  any  public  officer,  bureau,  or 
commission  was  the  cause  of  the  injury  or 
death;  that  it  shall  not  be  a  defense  that 
the  dangers  inherent  or  apparent  in  the 
employment  contributed  to  the  injury;  that 
the  employee  shall  not  be  held  negligent 
where  the  injury  results  from  his  obedience 
to  any  order  of  the  employer,  or  of  any 
employee  whose  orders  he  was  bound  to 
obey,  although  such  order  was  a  deviation 
from  other  rules  or  orders  previously  made. 
Section  3  contains  similar  provisions  as  to 
assumption  of  risk,  and  provides  that  the 
employee  shall  not  be  held  to  have  as- 
sumed the  risk  of  any  defect  in  the  place 
of  work,  or  in  the  tool,  etc.,  furnished  him, 
where  the  defect  was  prior  to  the  injury 
known  to  the  employer,  or  by  ordinary 
care  might  have  been  known  to  him,  in 
time  to  have  repaired  it  or  discontinued 
its  use,  and  that  the  burden  of  proving 
that  he  did  not  know  of  such  defect  or 
was  not  chargeable  with  knowledge  thereof 
sha'U  be  on  the  employer.  Held,  that  the 
statute  did  not  change  the  law  as  it  form- 
erly existed,  as  to  when  an  employee  as- 
sumes the  risk,  or  is  negligent,  or  as  to  the 
burden  of  proof  as  to  negligence,  but  did 
destroy  the  fellow-servant  rule,  and  change 
the  rule  as  to  burden  of  proof  as  to  knowl- 
edge, or  constructive  knowledge  of  the  de- 
fect in  the  place,  tool,  or  appliance.  Van- 
dalia  Railroad  Co.  v.  Stillwell  (Ind.) 
1916D-258. 

(9)     Limitation  of  Eecovery. 

73.  Liability  for  Death  by  Wrongful  Act 
— Idmit  on  Recovery  Removed.  Ore.  Em- 
ployers' Liability  Act  1910  (Laws  1911, 
p.  17)  §  4,  removes  the  limitation  of  recov- 
ery in  an  action  for  death  of  a  servant, 
brought  under  such  act,  prescribed  in  cases 
of  wrongful  death  by  L.  O.  L.  §  380.  Cam- 
eron V.  Pacific  Lime,  etc.  Co.  (Ore.)  1916E- 
769. 

(10)     Persons  Entitled  to  Sue. 

74.  Federal  Employers'  Liability  Act — 
Who  is  "Dependent."  Under  the  Federal 
Employers'  Liability  Act  (April  22,  1908, 
c,  149,  35  Stat.  65  [Fed.  St.  Ann.  1909 
Supp.  p.  584])  giving  a  right  of  action  for 
wrongful  death  for  the  benefit  of  the  de- 
pendent next  of  kin,  ai;i  elder  sister  of  a 
deceased  employee,  suing  as  his  adminis- 
tratrix who  is  married  and  in  comfortable 
circumstances,  and  who  boarded  deceasea, 
in  return  for  which  he  made  monthly  con- 
tributions for  about  two  years  prior  to  his 
death,  was  not  "dependent"  upon  deceased, 
and  cannot  recover.  Southern  R.  Co.  v. 
Vessell  (Ala.)   1917D-892.        (Annotated.) 

75.  Illegitimacy — Persons  Entitled  to  Re- 
cover for  Death  of  Dlegltimate  Child.  Un- 
der the  Federal  Employers'  Liability  Act 
(Act  April  22,  1908,  c.  149,  §  9,  35  Stat.  65, 
amended  by  Act  April  5,  1910,  c.  143,  §  2, 
36  Stat.  291  [Fed.  St.  Ann.  1912  Supp.  p. 
335]),    giving   a    right    of   action    for    the 


death  of  an  employee  for  the  benefit  of 
the  surviving  widow,  husband,  children,  or 
parents,  and,  if  none,  then  of  the  next  of 
kin  dependent  upon  such  employee,  the  next 
ol  kin  are  to  be  determined  by  the  law 
of  the  state  in  which  the  action  is  brought, 
and  under  Eevisal  1905,  §  137,  and  section 
1556,  rule  10,  providing  that  illegitimate 
children  of  the  same  mother  shall  be  con- 
sidered legitimate  as  between  themselves 
and  their  representatives,  and  that  their 
personal  estates  shall  be  distributed  as  if 
they  had  been  born  in  lawful  wedlock,  and 
that,  in  case  of  the  death  of  any  such  child 
without  issue,  hia  estate  shall  be  distrib- 
uted among  his  mother  and  such  persons 
as  would  he  his  next  of  kin,  if  all  such 
children  had  been  born  in  lawful  wedlock, 
a  suit  can  be  maintained  for  the  death  of 
an  illegitimate  child,  whose  mother  ia 
dead,  for  the  benefit  of  his  mother's  legiti- 
mate children,  who  are  dependent  upon 
him.  Kenney  v.  Seaboard  Air  Line  R.  Co. 
(N.  Car.)  1916E-^5Q.  (Annotated.) 

(11)     What  Law  Governs. 

76.  Election  Between  Federal  Act  and 
State  Law.  Where  the  petition  in  a  rail- 
road employee's  action  for  injuries,  while 
working  on  an  extension  of  a  repair  shop, 
alleged  a  cause  of  action  under  the  state 
law  and  also  under  the  Federal  Employers' 
Liability  Act  (Act  April  22,  1908,  c.  149, 
35  Stat.  65  [Fed.  St.  Ann.  1909  Supp.  p. 
584]),  the  court  should  require  plaintiff  to 
elect  under  which  law  he  will  prosecute  his 
action.  Thompson  v.  Cincinnati,  etc.  Co. 
(Ky.)   1917A-1266.  (Annotated.) 

77.  Effect  of  Federal  Act — Superseding 
State  Statutes.  The  Federal  Employers' 
Liability  Act  (Act  April  22,  1908,  e.  149, 
35  Stat.  65  [Fed.  St.  Ann.  1909  Supp.  p. 
584])  in  the  cases  to  which  it  applies  is 
necessarily  supreme.  Howard  v.  Nashville, 
etc.  R.  Co.   (Tenn.)   1917A-844. 

78.  Applicability  of  Federal  Act.  Where 
a  railroad  repair  shop  was  used  for  en- 
gines engaged  in  interstate  commerce,  an 
extension  thereof  designed  to  make  it 
more  effective  for  such  use  was  in  aid  of 
interstate  commerce;  and  hence  a  carpenter 
injured  while  working  on  the  extension  is 
injured  while  engaged  in  aid  of  interstate 
commerce,  regardless  of  whether  the  ex- 
tension was  itself  being  used  as  an  instru- 
mentality of  interstate  commerce.  Thomp- 
son V.  Cincinnati,  etc  Co.  (Ky.)  1917A- 
1266. 

79.  Where  plaintiff  in  such  action  elects 
to  proceed  under  the  Federal  Employers' 
Liability  Act,  the  court  should  dismiss  the 
action  as  against  two  individual  defend- 
ants who  were  plaintiff's  coemnloyees;  no 
provision  being  made  by  the  Federal  Em- 
ployers* Liability  Act,  expressly  or  by  im- 
plication, for  recovery  by  one  employee 
against  his  coemployee.  Thompson  v. 
Cincinnati,  etc.  Co.  (Ky.)  1917A-1266. 


560 


80.  Federal  Act  as  Exclusive 
intended  the  Employers'  Liability  Act  of 
April  22,  1908  (35  Stat.  L.  65,  c.  149,  Fed. 
St.  Ann.  1909  Supp.  p.  584),  regulating  the 
liability  of  an  interstate  railway  carrier 
in  case  of  the  injury  or  death  of  an  em- 
ployee when  employed  in  interstate  com- 
merce, to  be  as  comprehensive  of  those  in- 
stances in  which  it  excludes  liability,  i.  «., 
where  there  is  no  causal  negligence  for 
which  the  carrier  is  responsible,  as  of  those 
in  which  liability  is  imposed,  and  in  both 
classes  such  act  is  paramount  to,  and  ex- 
clusive of,  state  regulation.  Erie  B.  Co. 
V.  Winfield  (U.  S.)  1918B-662. 

Note. 
Necessity   of  election   between  Federal 
Employers'  Liability  Act  and  state  statute 
or  common  law.     1917A-1270. 

(12)  Pleading. 

81.  Pleading  Damage.  In  such  action 
there  should  be  pleadings  averring  the 
pecuniary  losses  which  plaintiffs  expect  to 
prove.  Nashville,  etc.  By.  v.  Anderson 
(Tenn.)  1917D-902. 

82.  Necessity  of  Pleading  Federal  Act. 
A  complaint  against  a  railroad  company 
for  injury  to  its  fireman  sufficiently  states 
a  case  within  the  Federal  Employers'  Lia- 
bility Act  (Act  April  22,  1908,  c.  149.  35 
Stat.  65,  Fed.  St.  Ann.  1909  Supp.  p.  584), 
as  amended  April  5,  1910  (Act  April  5, 
1910,  c.  143,  36  Stat.  291,  Fed.  St.  Ann. 
1912  Supp.  p.  335),  though  that  act  is  not 
s]  ecifically  referred  to,  where  it  states  that 
plaintiff  was  a  resident  of  Wisconsin,'  and 
that,  when  injured,  he  was  employed  by 
the  defendant  as  a  fireman  on  a  passenger 
train  running  from  Chicago  to  Milwaukee. 
Rowlands  v.  Chicago,  etc.  E.  Co.  (Wis.) 
1916E-U4. 

(13)  Evidence. 

83.  Necessity  of   Proving  Damage.    Tn 

such  action  there  must  be  evidence  of  pe- 
cuniary damage  to  his  beneficiaries  before 
such  dp'^age  can  be  allowed.  Nashville, 
etc.  By.  V.  Anderson    (Tenn.)    1917D-902. 

84.  Subsequent  Installation  of  Safety 
Device.  Where,  in  an  action  for  injuries 
to  a  servant  by  his  foot  and  leg  becoming 
caught  in  an  unguarded  conveyor  in  a 
gypsum  mill,  the  complaint  alleged  that  the 
conveyor  could  and  should  have  been  cov- 
eted, without  interfering  with  its  efficiency, 
and  would  have  secured  protection  to  plain- 
tiff, which  allegation  was  specifically  de- 
nied in  the  answer,  and  the  jury  during 
the  trial  visited  the  premises,  at  which 
time  the  conveyor  was  covered,  evidence 
that  it  was  covered  after  the  accident  was 
admissible.  Cameron  v.  Pacific  Lime,  etc. 
Co.  (Ore.)   1916E-769. 

85.  Tndemnltv  Insurance — Proof  on  Per- 
sonal Injury  Tral — Prejudice.  Where,  in 
an  action  for  injuries  to  a  servant,  plain- 


DIGEST. 

1916C— 1918B. 
Congress       tiflf's  counsel  intentionally  pursued  a  wit 


ness  on  recross-examination  until  he  ob- 
tained an  answer  disclosing  that  defendant 
carried  employers'  liability  insurance  cov- 
ering the  accident,  the  admission  of  such 
evidence  over  objection  is  error.  Cameron 
V.  Pacific  Lime,  etc.  Co.  (Ore.)  1916E-769. 

(Annotated.) 

86.  Burden  of  Proof.  In  an  action 
against  a  railroad  company  under  Pa.  Em- 
ployers' Liability  Act  April  22,  1908,  c. 
149,  35  Stat.  65  (Fed.  St.  Ann.  1909  Supp. 
p.  584),  and  Safety  Appliance  Act  March 
2,  1893,  e.  196,  27  Stat.  531  (6  Fed  St. 
Ann.  p.  752),  for  death  of  plaintiffs  hus- 
band, the  burden  is  on  plaintiff  to  prove 
violation  of  the  federal  statutes,  and  that 
decedent  was  engaged  in  interstate  com- 
merce, or  with  its  instrumentalities,  at  the 
time  of  the  accident.  Hench  v.  Pennsyl- 
vania E.  Co.  (Pa.)  1916D-230. 

(Annotated.) 

87.  In  an  action  for  injuries  resulting 
in  the  death  of  a  brakeman,  evidence 
merely  that  from  time  to  time  cars  con- 
taining both  intrastate  and  interstate  com- 
merce were  received,  stored,  shifted,  and 
reloaded  in  the  yaVd  in  which  the  accident 
occurred  creates  no  presumption  that  the 
cars  being  shifted  at  the  time  of  the  acci- 
dent were  intended  for  use  in  interstate 
commerce.  Hench  v.  Pennsylvania  B.  Co. 
(Pa.)   1916D-230.  (Annotated.) 

88.  In  an  action  against  a  railroad  com- 
pany under  federal  statutes  for  death  of 
plaintiff's  husband,  who  was  fatally  injured 
while  coupling  cars,  failure  of  defendant 
to  produce  records  showing  what  particular 
cars  were  being  moved  in  the  freight  yard 
on  the  night  of  the  accident  creates  no 
presumption  that  the  cars  therein  were 
being  used  in  interstate  commerce,  where 
defendant's  clerk,  who  kept  certain  records 
of  cars,  testifies  that  he  has  no  such  rec- 
ords. Hench  v.  Pennsylvania  R.  Co.  (Pa.) 
1916D-230.  (Annotated.) 

89.  The  relation  of  master  and  servant 
must  be  based  upon  a  contract,  either 
express  or  implied,  and  the  terms  and  con- 
ditions of  the  contract  must,  in  a  large 
measure,  be  looked  to,  to  determine  the 
duties  which  each  owes  to  the  other,  so 
that  it  may  be  ascertained  what  acts  of 
the  employer  may  or  may  not  constitute 
negligence,  as  applied  to  the  employee. 
Chesapeake,  etc.  E.  Co.  v.  Harmon's  Adm'r. 
(Ky.)  19I8B^1.  (Annotated.) 

(14)     Instructions. 

90.  Elements  of  Damages — Testimony  to 
Support.  In  an  action  under  the  Federat 
Employers'  Liability  Act  of  April  22,  1908 
(Fed.  'St.  Ann.  1909  Supp.  p.  584).  for 
death  of  a  railroad  employee,  where  there 
was  no  proof  as  to  what  portion  of  dece- 
dent's earnings  his  widow  and  child  might 
have  reasonably  expected  to  receive,  charge 
telling  the  jury  that  they  might  find  as 


MASTER  AND  SERVANT. 


561 


damages  a  sum  equal  to  the  entire  amount 
of  the  probable  earnings  of  decedent  is  er- 
roneous. Nashville,  etc,  Ky.  v.  Anderson 
(Tenn.)   1917D-&02. 

91.  Where  there  is  no  proof  as  to  the 
value  of  decedent's  customary  contribu- 
tions to  the  support  of  his  widow  and 
minor  child,  and  nothing  to  indicate  what 
they  might  reasonably  have  expected  from 
him  for  support,  there  being  no  evidence 
as  to  proof  of  his  personal  qualities  and 
the  interest  he  took  in  his  family,  the  sub- 
mission to  the  jury  of  such  matters  as  a 
basis  of  damages  is  improper.  Nashville, 
etc.  Ry.  V.  Anderson  (Tenn.)  1917D-902. 

92.  Action  for  Injuries — Instruction  not 
Misleading.  In  a  railway  brakeman's  ac- 
tion for  injuries,  in  which  the  first  para- 
graph of  the  complaint  charged  negligance 
of  the  engineer  in  backing  against  the  car 
on  which  he  was  riding  in  the  course  of  his 
duty,  and  the  second  paragraph  alleged  a 
cause  of  action  under  Ind.  Employers'  Lia- 
bility Act  (Laws  1911,  c.  88),  and  under 
the  evidence  his  place  of  work  became  un- 
safe either  through  the  engineer's  negli- 
gence, or  through  the  giving  of  a  negligent 
order  requiring  him  to  be  at  that  place, 
an  instruction  that  as  defendant  was  a 
corporation  and  could  not  discharge  in  per- 
son the  obligation  of  furnishing  its  em- 
ployees a  reasonably  safe  place  to  work, 
and  appliances  with  which  to  work,  but 
must  provide  some  agent  to  take  its  place, 
the  agent  to  whom  it  delegated  this  duty 
stood  in  its  place  and  stead,  is  not  mis- 
leading, where  the  charge  is  otherwise 
proper,  though  there  is  no  allegation  of  a 
failure  to  furnish  a  reasonably  safe  place 
or  appliances  with  which  to  work,  since  it 
was  negligence,  and  not  the  place  of  work, 
which  produced  the  injury.  Vandalia  Rail- 
road Co.  V.  Stillwell  (Ind.)  1916D-258. 

(15)  Damages. 

93.  Proof  of  Damage— Iioss  of  Support — 
Amount.  Where  there  is  proof  of  the  earn- 
ing capacity  of  decedent  and  his  expect- 
ancy of  life,  but  nothing  to  show  what  his 
beneficiaries,  his  widow  and  minor  child, 
might  reasonably  have  expected  to  receive 
from  him  for  their  support,  only  a  recovery 
for  nominal  damages  can  stand.  Nash- 
ville, etc.  Ry.  V.  Anderson  (Tenn.)  1917I>- 
902. 

94.  Computation  of  Damage — Life  Ex- 
pectancy of  Beneficiary.  In  such  action 
damages  to  the  widow  should  be  calculated 
on  the  basis  of  her  expectancy  of  life  as 
well  as  her  husband's.  Nashville,  etc.  Ry. 
T.  Anderson  (Tenn.)   1917D-902. 

(16)  Verdict. 

95.  In  such  action,  where  there  is  no 
proof  as  to  what  portion  of  decedent's 
earnings  his  widow  and  child  might  reason- 
ably have  expected  to  receive,  it  is  error 

26 


to  instruct  that  the  jury  may  find  damages 
to  be  the  net  value  of  his  earnings  after 
payment  of  his  personal  expenses.  Nash- 
ville, etc.  Ry.  V.  Anderson  (Tenn.)  1917D- 

902. 

96.  Res  Judicata — Action  Under  Federal 
Employers'  Liability  Act — Effect  on  Other 
Bemedy.  The  decisdon  on  appeal  that  de- 
cedent's administrator  had  no  right  of 
action  for  decedent's  death  under  the  Fed- 
eral Employers'  Liability  Act  does  not  pre- 
clude his  seeking  remedy  under  state  law 
if  he  has  any.  Chesapeake,  etc.  R.  Co.  v. 
Harmon's  Adm'r.   (Ky.)   1918B-41. 

97.  Majority  Verdict  —  Action  Under 
Federal  Statute.  The  requirement  of  U.  S. 
Const.,  7th  Amend.,  that  trials  by  jury  be 
according  to  the  course  of  the  common  law, 
i.  e.,  by  a  unanimous  verdict,  does  not  con- 
trol the  state  courts,  even  when  enforcing 
rights  under  a  federal  statute  like  the  Em- 
ployers' Liability  Act  of  April  22,  1908 
(35  Stat,  at  L.  65,  c.  149,  Fed.  St.  Ann. 
19'09  Supp.  p.  584),  and  such  courts  may, 
therefore,  give  effect  in  actions  under  that 
statute  to  a  local  practice  permitting  a  less 
than  unanimous  verdict.  Minneapolis,  etc. 
R.  Co.  v.  BomboUs  (U.  S.)  1916E-505. 

(Annotated.) 

(17)     Review. 

98.  Federal  Employers'  Liability  Act — 
Applicability — Saving  Question  for  Be- 
view.  Error,  if  any,  in  basing  a  recovery 
in  a  personal  injury  action  upon  the  Fed- 
eral Employers'  Liability  Act  of  April  22, 

1908  (35  Stat.  L.  65,  e.  149  [Fed.  St.  Ann. 

1909  Supp.  p.  584]),  does  not  entitle  the 
defendant  to  have  the  judgment  reversed, 
where  such  defendant  in  no  way  saved  its 
rights  to  deny  that  the  parties  were  en- 
gaged in  interstate  commerce  at  the  time 
of  the  accident,  or  to  object  to  the  appli- 
cation of  the  federal  statute,  but,  on  the 
contrary,  invoked  and  relied,  without  quali- 
fication, upon  that  statute  and  the  rights 
that,  because  of  that  statute,  it  supposed 
itself  to  possess.  Minneapolis,  etc.  R.  Co. 
V.  Winters  (U.  S.)  1918B-54. 

99.  Action  Under  Federal  Act — Be  view 
— Scope  of  Decision — ^Bights  at  Common 
Law.  Where  the  only  question  before  th  v 
court  on  an  appeal  from  an  action  under 
the  Federal  Employers'  Liability  Act  April 
22,  1908,  c.  149,  35  Stat.  65  (Fed.  St.  Ann. 
1909  Supp.  p.  584),  was  whether  an  em- 
ployee was  engaged  in  interstate  commerce 
when  killed,  which  was  decided  adversely, 
it  is  not  necessary  to  decide  whether  a 
common-law  right  of  action  existed. 
Chesapeake,  etc."  R.  Co.  v.  Harmon's  Adm'r. 
(Ky.)  1918B-41. 

100.  Review  hy  Federal  Court  of  State 
Decision — Negligence  —  Clinkers  on  Right 
of  Way.  The  federal  supreme  court  will 
not  disturb  the  concurrent  conclusion  of 
two  state  courts  in  an  action  brought  un- 
der the  Employers'  Liability  Act  of  April 


562 


22,  1908   (35  Stat.  L, 

Ann.  1909  Supp.  p.  584),  as  amended  by 
the  Act  of  April  5,  1910  (36  Stat.  L.  291, 
c.  143,  Fed.  St.  Ann.  1912  Supp.  p.  335), 
that  there  was  sufficient  ground  for  attrib- 
uting negligence  to  the  railway  carrier  be- 
cause of  the  presence  of  large  clinkers  in 
the  path  along  which  an  employee  was 
called  upon  to  pass  in  the  course  of  his 
duty,  and  over  which  he  stumbled  while 
carrying  some  blocks  to  be  used  in  jacking 
up  a  wrecked  car.  Southern  B.  Co.  v. 
Puckett  (U.  S.)  1918B-69. 

k.    "Workmen's  Compensation  Acts. 
(1)     Nature  and  Purpose. 

101.  Theory  of  Liability.  In  a  case  aris- 
ing under  the  N.  Y.  "Workmen's  Compen- 
sation Act  (Consol.  Laws,  c.  67)  the  doc- 
trine of  respondeat  superior  has  no  appli- 
cation, nor  do  the  rules  of  employers' 
liability  for  negligence  control,  but  com- 
pensation is  awarded  workmen  injured  in 
certain  enumerated  occupations.  Dale  v. 
Saunders  (N.  Y.)   1918B-703. 

102.  Commission  Substituted  for  Em- 
ployer. Wash.  Laws  1911,  c.  74,  is  neither 
an  employer's  liability  nor  a  workmen's 
compensation  act,  but  an  industrial  insur- 
ance law,  withdrawing  from  private  con- 
troversy all  phases  of  injury  to  workmen; 
and  compensation  flows  from  the  commis- 
sion, which  must  be  sued  rather  than  the 
employer,  if  it  rejects  a  claim.  Stertz  v. 
Industrial  Ins.  Commission  (Wash.)  1918B- 
354. 

103.  Scope  of  Act.  A  carpenter  hired  in 
the  state  of  Ehode  Island,  and  while  en- 
gaged in  the  master's  work  in  the  state  of 
Connecticut,  was  injured.  He  sought  re- 
covery under  R.  I.  "Workmen's  Compensa- 
tion Act  (Pub.  Laws  1911-12,  c.  831).  Ar- 
ticle 2,  §  21,  declares  that  an  employee 
shall,  after  injury,  at  reasonable  times 
during  the  continuance  of  his  disability, 
if  requested  by  his  employer,  submit  him- 
self to  an  examination  by  a  physician  or 
surgeon  authorized  to  practice  medicine 
under  the  laws  of  the  state,  and  declares 
that,  if  the  employee  refuses  to  submit  to 
such  examination,  his  right  of  compensa- 
tion shall  be  suspended,  and  compensation 
during  the  period  of  suspension  shall  be 
forfeited.  Article  2,  §  1,  in  broad  terms 
gives  employees  compensation  for  personal 
injuries  by  accident  arising  out  of  and  in 
the  due  course  of  employment,  while  ar- 
ticle 3,  §  16,  declares  that  proceedings  shall 
be  brought  either  in  the  county  where  tho 
employer  or  employee  lives  or  has  his  usual 
place  of  business,  and  that  changes  of 
venue  may  be  granted.  Pub.  Laws  1915, 
c.  1268,  provides  for  a  report  of  injuries. 
It  is  held  that,  as  the  act  was  obviously 
intended  to  furnish  a  comprehensive 
scheme  for  the  compensation  of  injured 
employees,  it  governed  injuries  received 
by  the  employee,  hired  in  the  state,  while 


DIGEST. 

1916C— 1918B. 
65    c.  149,  Fed.  St.       at  work  for  the  master  without  the  state. 


Grinnell  v.  Wilkinson    (K.  I.)    1918B-618. 

(Annotated.) 

104.  The  general  purpose  of  the  111. 
"Workmen's  Compensation  Act  of  1913  is  to 
provide  a  method  by  which  injuries  re- 
ceived by  employees  in  certain  classes  of 
occupations  may  be  quickly  adjusted  so 
that  something  shall  be  received  according 
to  fixed  rules  for  determining  compensation 
in  said  cases.  Victor  Chemical  "V\'orks  v. 
Industrial  Board  (111.)  1918B-627. 

105.  The  Workmen's  Compensation  Act 
is  applicable  only  to  those  relations  of  em- 
ployer and  employee  which  are  in  the 
legislative  control  of  the  state,  untram- 
meled  by  the  laws  of  the  United  States. 
Shaughnessy  v.  Northland  Steamship  Co. 
(Wash.)   1918B-655. 

106.  Purpose  of  Act.  The  N.  Y.  Em- 
ployers' Liability  Act  was  intended  to  pro- 
tect and  safeguard  the  interests  of  em- 
ployees. "Whiley  v.  Solvay  Process  Co. 
(N.  Y.)   1917A-314. 

107.  Basis  of  Liability — Negligence  and 
Contributory  Negligence.  Under  Acts  Md. 
1914,  c.  800,  regulating  workmen's  compen- 
sation, compensation  for  injuries  or  death 
is  not  dependent  on  negligence  of  the  em- 
ployer nor  denied  by  reason  of  contribu- 
tory negligence.  American  Ice  Co.  v.  Fitz- 
hugh   (Md.)    1917r)-33. 

108.  Compulsory  Nature  of  Statute. 
While  a  compensation  statute  might  be 
unduly  compulsory,  though  professing  to  be 
wholly  voluntary,  and  might  attacn  such 
penalties  to  nonacceptance  as  to  compel 
acceptance  by  undue  means,  a  statute 
which  attaches  no  penalties  for  failure  to 
accept  its  provisions,  save  taking  away 
what  may  arbitrarily  be  taken,  constitu- 
tionally is  not  exercising  undue  compul- 
sion. What  the  legislature  may  take  at 
its  will,  it  may  allow  retention  of  upon 
condition.  If  it  may  eliminate  a  defense 
at  will,  it  does  not  violate  the  constitution 
to  take  it  upon  refusal  to  accept  an  arbi- 
tration statute.  Hunter  v.  Colfax  Consoli- 
dated Coal  Co.  (Iowa)  1917E-803. 

(Annotated.) 

109.  The  act  does,  in  essence,  go  beyond 
obtaining  an  aajreement  by  acceptance  of 
its  provisions  that  an  arbitration  shall  de- 
termine summarily  and  speedily  that  com- 
pensation shall  be  made  by  applying  a 
statute  schedule,  and  that  recovery  for 
injury  shall  be  neither  greater  nor  smaller 
than  provided  in  said  schedules.  And  it 
has  never  been  seriously  questioned  that 
the  legislature  could  require,  or  parties 
agree  upon  arbitration  and  upon  a  limit 
of  recovery  for  injury  or  death.  Hunter 
V.  Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803.  (Annotated.) 

(2)     Constitutionality. 

110.  Validity  of  Act.  If  the  Mich. 
Workmen's  Compensation  Act  (Pub.  Acts 
1912  [Ex.  Sess.]  No.  10)  be  held  to  apply 


MASTER  AND  SERVANT. 


063 


to  occupational  diseases,  such  provisions 
are  invalid,  not  being  within  the  scope  of 
the  title  as  required  by  Const,  art.  5,  §  21, 
providing  that  no  law  shall  embrace  more 
than  one  subject,  which  shall  be  expressed 
in  its  title.  Adams  v.  Acme  White  Lead, 
etc.  Works  (Mich.)  1916D-689. 

(Annotated.) 

111.  Said  law  does  not  violate  the  due 
process  of  law  clause  of  the  constitution 
by  compelling  compensation  of  workmen 
for  injuries  due  to  acts  of  third  persons, 
against  whose  acts  the  employer  should, 
have  every  inducement  to  guard.  Stertz 
v.    Industrial    Ins,     Commission     (Wash.) 

,  1918B-354. 

112.  It  would  not  be  a  violation  of  the 
due  process  of  law  clause  of  the  constitu- 
tion to  make  the  master  the  insurer  of 
the  workman  while  on  the  prfemises. 
Stertz  V.  Industrial  Ins.  Commission 
(Wash.)  1918B-354. 

113.  Nor  is  the  act  special  legislation 
within  the  meaning  of  Ky.  Const.  §  59, 
since  "special  legislation"  applies  to  par- 
ticular places  or  persons  as  distinguished 
from  classes  of  places  or  persons.  Greene 
V.  Caldwell  (Ky.)  1918B-604. 

(Annotated.) 

114.  Nor  is  such  act  unconstitutional  as 
class  legislation  in  violation  of  Ky.  Const. 
§  59,  providing  that  the  general  assembly 
shall  not  pass  local  or  special  acts  con- 
cerning a  number  of  subjects  therein  men- 
tioned, since  the  classification  made  is 
reasonable.  Greene  v.  Caldwell  (Ky.) 
1918B-604.  (Annotated.) 

115.  The  title  to  such  act  does  not  vio- 
late Ky.  Const.  §  51,  requiring  the  subject 
of  a  law  to  be  expressed  in  the  title. 
Greene  v.  Caldwell  (Ky.)  1918B-604. 

(Annotated.) 

116.  Nor  is  it  unconstitutional  because 
not  allowing  a  jury  trial,  since  the  parties 
accepting  it  thereby  agree  to  trial  with- 
out jury.  Greene  v.  Caldwell  (Ky.) 
1918B-604.  (Annotated.) 

117.  Such  act  does  not  violate  Ky. 
Const.  §  135,  forbidding  establishment  of 
courts  not  provided  for  in  the  constitu- 
tion, since  the  compensation  board  is  not 
a  "court"  within  the  constitution,  and  the 
act  provides  in  section  52  for  appeal  from 
its  decision,  so  that  its  members  are  arbi- 
trators within  Const.  §  250,  providing  that 
arbitrators  shall  be  chosen  by  the  parties, 
the  acceptance  of  the  act  by  employer 
and  employee  constituting  a  consent  that 
the  board  act  as  "arbitrators."  Greene  v. 
Caldwell  (Ky.)  1918B-604.       (Annotated.) 

118.  The  constitutionality  of  the  act  as 
a  whole  is  not  affected  by  the  validity  or 
invalidity  of  section  22  thereof,  as  to 
compensation  to  alien  widows,  children, 
and  relatives,  since  this  section  is  separa- 


ble    from     the     remainder     of     the     act. 
Greene  v.  Caldwell   (Ky.)   1918B-604. 

(Annotated.) 

119.  Nor  is  the  act  invalid  as  making, 
by  section  11  thereof,  radical  changes  in 
the  law  of  parent  and  child,  since  there 
is  no  constitutional  restraint  on  such  ac- 
tion by  the  legislature.  Greene  v.  Cald- 
well (Ky.)   1918B-604.  (Annotated.) 

120.  Such  act  is  not  unconstitutional  as 
a  depriving  of  property  -without  due 
process  of  law,  contrary  to  Const.  U.  S. 
Amend.  14  (9  Fed.  St.  Ann.  416)  because 
taking  from  a  nonaccepting  employer  cer- 
tain defenses,  since  the  employer  has  no 
vested  rights  in  these  defenses,  and  the 
legislature  could  take  them  away  without 
giving  any  election  at  all.  Greene  v. 
Caldwell  (Ky.)  1918B-604.       (Annotated.) 

121.  Nor  is  the  act  unconstitutional  un- 
der Ky.  Const.  §  196,  forbidding  a  com- 
mon carrier  to  contract  for  relief  from 
its  common-law  liability.  Greene  v. 
Caldwell  (Ky.)  19'18B-604.       (Annotated.) 

122.  The  Workmen's  Compensation  Act 
of  1916  (Laws  Ky.  1916,  c.  33),  is  not  un- 
constitutional, under  Const.  §  54,  forbid- 
ding limitation  of  amount  of  recovery  for 
injuries,  as  being  compulsory  on  em- 
ployees, since  by  section  74  it  provides 
for  their  election  to  accept  the  provisions 
of  the  act,  notwithstanding  section  76b, 
providing  that  as  to  nonaccepting  em- 
ployee, the  employer  may  use  the  defenses 
of  contributory  negligence,  fellow  servant, 
and  assumed  risk.  Greene  v.  Caldwell 
(Ky.)   191SB-604.  (Annotated.) 

123.  Such  act  so  construed  is  not  un- 
constitutional as  being,  in  effect,  com- 
pulsory by  giving  an  unreasonably  short 
time — from  June  28th  to'  July  1st — for 
election  by  employers  whether  or  not  to 
come  under  the  act.  Victor  Chemical 
Works  V.  Industrial  Board  (111.)  1918B- 
627. 

124.  The  compulsory  compensation 
scheme  of  the  New  York  Workmen's  Com- 
pensation Act  (N.  Y.  Laws  1913,  c.  816; 
Laws  1914,  cc.  41  and  316),  which,  in  lien 
of  the  common-law  liability  confined  to 
cases  of  negligence,  imposes  a  liability 
upon  employers  to  make  compensation  for 
disabling,  or  fatal  accidental  personal 
injuries  received  by,  employees  in  the. 
course  of  their  employment  in  certain 
gainful  occupations  denominated  "hazard- 
ous employments,"  without  regard  to  fault 
as  a  cause,  except  where  the  injury  or 
death  is  occasioned  by  the  employee's  wil- 
ful intention  to  produce  it,  or  where  the 
injury  results  solely  from  his  intoxication 
while  on  duty,  graduating  the  compensa- 
tion for  disability  according  to  a  pre- 
scribed scale  based  upon  loss  of  earning 
power,  having  regard  to  the  previous 
wage  and  the   character  and  duration  of 


564 


DIGEST. 

1916C— 1918B. 


the  disability,  and  measuring  the  death 
benefits  according  to  the  dependency  of 
the  surviving  wife,  husband,  or  infant 
children, — does  not  contravene  U.  S. 
Const.  14th  Amend,  as  taking  property 
without  due  process  of  law,  or  unwar- 
rantably limiting  freedom  of  contract, 
whether  considered  from  the  standpoint 
of  employer  or  employee,  but  is  a  valid 
exercise  of  the  police  power  of  the  state. 
New  York  Central  B.  Co.  v.  White  (U.  S.) 
1917D-629.  (Annotated.) 

125.  The  exclusion  of  farm  laborers  and 
domestic  servants  from  the  compulsory 
compensation  scheme  of  the  New  York 
Workmen's  Compensation  Act  (N.  Y.  Laws 
1913,  c.  816;  Laws  1914,  cc.  41  and  316) 
is  not  such  an  arbitrary  classification  as 
to  contravene  the  equal  protection  of  the 
laws  clause  of  U.  S.  Const.  14th  Amend., 
since  it  reasonably  may  be  considered  that 
the  risks  inherent  in  these  occupations 
are  exceptionally  patent,  simple,  and 
familiar.  New  York  Central  R.  Co.  v. 
White  (U.  -S.)   1917D-629.       (Annotated.) 

126.  The  requirement  of  the  New  York 
Workmen's  Compensation  Act  (N.  Y.  Laws 
1913,  c.  816;  Laws  1914,  cc.  41  and  316), 
§  50,  that  the  employer  shall  secure  pay- 
ment of  the  compulsory  compensation 
prescribed  by  that  act  either  by  (a)  state 
insurance,  (b)  insurance  with  an  author- 
ized insurance  corporation  or  association, 
or  (c)  by  furnishing  satisfactory  proof  of 
his  financial  ability  to  pay  the  compensa- 
tion, and  depositing  securities  for  that 
purpose,  cannot  be  said  to  contravene 
U.  S.  Const.  14th  Amend.,  since  self-insur- 
ance under  the  third  method  presumably 
is  open  to  all  solvent  employers  on  rea- 
sonable terms.  New  York  Central  R.  Co. 
V.  White  (U.  3.)   1917D-629. 

(Annotated.) 

127.  Employers  are  not  denied  the  equal 
protection  of  the  laws,  contrary  to  U.  S. 
Const.  14th  Amend,  by  the  provisions  of 
the  Iowa  Workmen's  Compensation  Act 
(Iowa  Laws  35th  Gen.  Assem.  c.  147),  §  5, 
that  where  both  employer  and  employee 
reject  the  act,  the  liability  of  the  em- 
ployer shall  be  the  same  as  though  the 
employee  had  not  rejected  it,  thus  leaving 
a  rejecting  employer  liable,  whether  the 
employee  on  his  part  accepts  or  rejects 
the  act,  for  personal  injuries  sustained  by 
an  employee  arising  out  of  and  in  the 
usual  course  of  the  employjnent,  with  no 
right  to  avail  himself  of  the  fello-n«ser- 
vant  rule  or  the  defenses  of  contributory 
negligence  or  assumption  of  risk,  while  by 
§  3b,  if  the  employee  rejects  the  act  and 
the  employer  accepts  it,  the  latter  may 
avail  himself  of  such  common-law  rules 
and  defenses.  Hawkins  v.  Bleakly  (U.  S.) 
1917D-637.  (Annotated.) 

128.  There  is  nothing  repugnant  to  U.  S. 
Const.  14th  Amend,  in  the  provision  of 
the    Iowa    Workmen's    Compensation    Act 


(Iowa  Laws  35th  Gen.  Assem.  e.  147)  that 
where  an  employee  elects  to  reject  the 
act  he  shall  state  in  an  affidavit  who,  if 
anybody,  requested  or  suggested  that  he 
should  do  80,  and  that  if  it  be  found  that 
the  employer  or  his  agent  made  such  re- 
quest or  suggestion,  the  employee  shall 
be  conclusively  presumed  to  have  been  un- 
duly influenced  and  his  rejection  of  the 
act  shall  be  void.  Hawkins  v.  Bleakly 
(U.  S.)   1917D-637.  (Annotated.) 

129.  The  scheme  adopted  by  the  Iowa 
Workmen's  Compensation  Act  (Iowa  Laws 
35th  Gen.  Assem.  c.  147),  for  the  adjust- 
ment of  compensation  when  the  employer 
accepts  its  provisions,  is  not  in  contra- 
vention of  U.  S.  Const.  14th  Amend,  as 
clothing  an  administrative  body  with  an 
arbitrary  discretion  inconsistent  with  due 
process  of  law,  where  the  act  provides  the 
measure  of  compensation,  the  circum- 
stances under  which  it  is  to  be  made, 
establishes  administrative  machinery  for 
applying  the  statutory  measure  to  the 
facts  of  each  particular  case,  and  provides 
for  a  hearing  before'  an  administrative 
tribunal,  and  for  judicial  review  upon  all 
fundamental  jurisdictional  questions. 
Hawkins  v.  Bleakly   (U.  S.)    1917D-637. 

(Annotated.) 

130.  The  right  to  trial  by  jury,  guar- 
anteed by  U.  S.  Const.  7th  Amend.,  cannot 
be  said  to  be  infringed  by  the  Washing- 
ton Workmen's  Compensation  Act  (Wash. 
Laws  1911,  c.  74),  on  the  theory  that  if 
such  act  be  valid,  it  must  be  followed  in 
the  federal  courts  in  cases  that  are  within 
its  provisions,  where  there  is  nothing  in 
such  act  that  excludes  trial  by  jury  in  any 
private  rights  of  action  which  are  pre- 
served, and,  as  between  employer  and  em- 
ployee, the  act  abolishes  all  right  of  recov- 
ery in  ordinary  cases,  and  therefore  leaves 
nothing  to  be  tried  by  a  jury.  Mountain 
Timber  Co.  v.  Washington  (U.  S.)  1917D- 
642.  (Annotated.) 

131.  A  state  may  consistently  with 
U.  S.  Const.  14th  Amend,  substitute  a 
system  of  compulsory  compensation  for 
disabling  or  fatal  accidental  personal  in- 
juries received  by  employees  in  the  course 
of  their  employment  in  certain  so-called 
hazardous  employments  without  regard 
to  fault  of  the  employer,  in  lieu  of  the 
existing  right  to  maintain  actions  for 
damages  in  cases  of  the  employers'  negli- 
gence, in  which  the  latter  may  assert  im- 
munity for  the  negligence  of  ■  a  fellow 
servant  and  the  defenses  of  contributory 
negligence  and  assumed  risk.  Mountain 
Timber  Co.  v.  Washington  (U.  S.)  1917EX- 
642.  (Annotated.) 

132.  The  exaction,  under  the  Washing- 
ton Workmen's  Compensation  Act  (Wash. 
Laws  1911,  c.  74),  from  employers  in  cer- 
tain industries  denominated  "extrahazard- 
ous," without  regard  to  any  wrongful  act 
on  their  part,  or  to  whether  injuries  have 


MASTER  AND  SERVANT. 


565 


befallen  their  own  employees  or  not,  of 
periodical  contributions  based  upon  per- 
centages of  pay  rolls  to  a  state  fund  from 
which  compensation  shall  be  made  for 
disabling  or  fatal  injuries  received  by  em- 
ployees in  the  course  of  their  employment 
in  such  industries,  is  not  inconsistent  with 
the  due  process  of  law  and  equal  protec- 
tion of  the  laws  clauses  of  U.  S.  Const. 
14th  Amend.,  but  such  exaction  is  a  valid 
exercise  of  the  state's  police  power,  there 
being  no  claim  that  the  scale  of  compensa- 
tion is  unduly  large,  and  the  schedule  of 
contribution  evidencing  an  intent  to  pro- 
portion the  various  percentages  according 
to  the  hazard  of  each  of  the  groups  into 
which  the  industries  are  divided,  and  to 
limit  the  burden  to  the  requirements  of 
each  industry.  Mountain  Timber  Co.  v. 
Washington  (U.  S.)  1917r)-642. 

(Annotated.) 

133.  The  evident  purpose  of  the  Wash- 
ington Workmen's  Compensation  Act 
(Wash.  Laws  1911,  c.  74),  to  classify  the  , 
various  occupations  according  to  the  re- 
spective hazard  of  each,  is  a  suflGLcient  an- 
swer (there  being  no  particular  showing 
of  erroneous  classification)  to  the  objec- 
tion, founded  on  U.  S.  Const.  14th  Amend, 
that  the  statute  goes  too  far  in  classifying 
as  hazardous  large  numbers  of  occupations 
that  are  not  hazardous  in  their  nature. 
Mountain  Timber  Co.  v.  Washington 
(U.  S).  1917D-642.  (Annotated.) 

134.  The  federal  supreme  court  will  not 
assume,  in  the  absence  of  an  actual  deci- 
sion of  the  state  court,  that  the  provision 
of  the  Washington  Workmen's  Compensa- 
tion Act  (Wash.  Laws  1911,  c.  74),  mak- 
ing it  unlawful  for  the  employer  to  deduct 
any  part  of  his  compulsory  contribution 
to  the  state  fund  created  by  that  act  from 
the  wages  or  earnings  of  his  workmen, 
will  be  so  broadly  construed  as  to  bring 
it  in  conflict  with  the  federal  constitution. 
Mountain  Timber  Co.  v.  Washington 
(U.  S.)  1917D-642.  (Annotated.) 

135.  There  is  no  denial  of  due  process 
of  law  in  the  provisions  of  the  Iowa  elec- 
tive Workmen's  Compensation  Act  (Iowa 
Laws  35th  Gen.  Assem.  c.  147),  that  an 
employer  rejecting  the  compensation  feat- 
ures of  that  act  shall  not  escape  liability 
for  personal  injury  sustained  by  an  em- 
ployee arising  out  of,  or  in  the  usual 
course  of,  the  employment,  because  the 
employee  assumed  the  risk  of  the  employ- 
ment, or  because  of  the  employee's  negli- 
gence, unless  this  was  wilful  and  with  the 
intent  to  cause  the  injury,  or  was  the  re- 
sult of  intoxication,  or  because  the  injury 
was  caused  by  the  negligence  of  a  co- 
employee,  and  that  in  an  action  against 
such  rejecting  employer  it  shall  be  pre- 
sumed that  the  injury  was  the  direct 
result  of  his  negligence,  and  that  he  must 
assume  the  burden  of  proof  to  rebut  such 
presumption.  Hawkins  v.  Bleakly  (U.  S.) 
1917D-637.  (Annotated.) 


136.  Rights  of  employees  under  U.  S. 
Const.  14th  Amend,  are  not  invaded  by 
the  abolition,  under  the  Washington 
Workmen's  Compensation  Act  (Wash. 
Laws  1911,  c.  74),  of  private  rights  of  ac- 
tion for  damages  in  case  of  disabling  or 
fatal  accidental  personal  injuries  received 
by  employees  in  certain  employments 
denominated  "extrahazardous"  (and  in 
any  other  industry,  at  the  option  of  em- 
ployer and  employees),  and  the  substitu- 
tion of  a  system  of  compensation  to  in- 
jured workmen  and  their  dependents  out 
of  a  public  fund  established  and  main- 
tained by  contributions  required  to  be 
made  by  the  employers  in  proportion  to 
the  hazards  of  each  class  of  occupation. 
Mountain  Timber  Co.  v.  Washington 
(U.  S.)   1917D-642.  (Annotated.) 

137.  Workmen's  Compensation  Act,  giv- 
ing employer  and  employee  an  option  to 
accept  or  reject  it,  is  not  unconstitutional 
as  denying  to  parties  who  have  accepted 
it  the  right  of  trial  by  jury,  as  under  Iowa 
Code,  §  3650,  providing  that  the  right  ex- 
ists only  if  it  be  not  waived,  the  right  to 
jury  trial  can  be  waived.  Hunter  v.  Col- 
fax Consolidated  Coal  Co.  (Iowa)  1917E- 
803.  Annotated.) 

138.  The  Iowa  Workmen's  Compensa- 
tion Act,  §  26,  provides  that  an  agreement 
between  an  employer  and  an  employee  as 
to  compensation,  filed  with  the  commis- 
sioner, is  not  to  be  approved  unless  its 
terms  conform  to  the  provisions  of  the 
act,  and  section  1,  last  paragraph,  pro- 
vides that  where  the  parties  have  not 
given  notice  of  an  election  to  reject,  every 
contract  of  hire  shall  be  construed  as  an 
implied  agreement  to  accept  compensation 
as  provided  by  the  act.  It  is  held  that 
the  statute  was  not  unduly  coercive. 
Hunter  v.  Colfax  Consolidated  Coal  Co. 
(Iowa)  1917E'-803.  (Annotated.) 

139.  Iowa  Const,  art.  5,  §  1,  provides 
that  the  judicial  power  shall  be  vested  in 
the  supreme  court,  district  court,  and  such 
inferior  courts  as  the  general  assembly 
may  establish.  Iowa  Workmen's  Com- 
pensation Act,  §§  25-35,  provide  for  the 
determination  of  the  amount  of  compen- 
sation to  be  awarded  an  injured  workman 
by  a  committee  of  arbitration,  and  that 
there  shall  be  no  appeal  on  questions  of 
fact  from  the  decree  of  the  district  court 
approving  the  committee's  award  of 
course.  It  is  held  that  the  act  was  not 
unconstitutional  under  the  rule  that  con- 
tracts by  which  the  parties  undertake  to 
deprive  themselves  in  toto  of  the  right  to 
resort  to  the  courts  to  settle  controversies 
between  them  are  invalid.  Hunter  v.  Col- 
fax Consolidated  Coal  Co.  (Iowa)  1917E- 
803.  (Annotated.) 

140.  Cal.  Const,  art.  6,  §  1,  provides  that 
the  judicial  power  of  the  state  shall  be 
vested  in  the  senate,  certain  named  courts, 
and  such  inferior  courts  as  the  legislature 


566 


DIGEST. 

1916C— 1918B. 


may  establish.  Const,  art.  20,  §  21, 
adopted  in  1911.  authorizes  the  legislature 
to  create  and  enforce  a  liability  on  the 
part  of  all  employers  to  compensate  their 
employees  for  any  injury  incurred  by 
them  in  the  course  of  their  employment 
and  to  provide  for  the  settlement  of  any 
disputes  arising  under  the  legislation  by 
arbitration  or  by  an  industrial  accident 
board,  by  the  courts  or  by  either  or  any 
or  all  of  these  agencies.  Cal.  Workmen's 
Compensation,  Insurance  and  Safety  Act 
(St.  1913,  p.  279),  §§22,  23,  24a,  25,  26,, 
73a,  78,  84,  and  84c,  give  the  industrial 
accident  commission  power  to  hear  appli- 
cations by  employees  or  their  dependents, 
after  notice  is  served  on  the  other  party, 
to  issue  subpoenas,  take  testimony,  punish 
for  contempt,  make  findings  which  are 
conclusive  and  "full  power,  authority,  and 
jurisdiction  to  try  and  finally  determine 
all  proceedings  for  the  recovery  of  com- 
pensation," subject  only  to  a  limited  right 
of  review  by  certiorari.  It  is  held  that 
the  act  confers  on  the  commission  judicial 
power,  which  is  the  power  to  decide  and 
make  binding  orders  between  persons  who 
bring  cases  for  decision,  an^  therefore 
violates  article  6,  §  1,  of  the  constitution 
unless  within  the  authority  of  article  20, 
§21.  Western  Metal  Supply  Co.  v.  Pills- 
bury  (Cal.)  1917E-390.  (Annotated.) 

141.  Cal.  Const,  art.  20,  §  21,  authoriz- 
ing the  legislature  to  create  and  enforce  a 
liability  on  the  part  of  all  employers  to 
compensate  their  employees  for  any  injury 
incurred  by  the  said  employees  in  the 
course  of  their  employment  and  to  pro- 
vide for  the  settlement  of  disputes  aris- 
ing thereunder  by  arbitration,  by  an  in- 
dustrial accident  board  or  by  the  courts, 
when  construed  in  the  light  of  its  purpose 
to  substitute  a  system  of  compensation 
for  all  injuries  for  the  common-law  liabil- 
ity of  the  master  for  negligence,  and  in 
the  light  of  the  uniform  scope  of  previous 
workmen's  compensation  acts,  authorizes 
the  legislature  to  provide  for  the  compen- 
sation of  those  dependent  on  a  workman 
killed  in  the  course  of  his  employment  as 
well  as  to  an  injured  employee  himself, 
since  "compensation  to  employees"  may 
be  fairly  held  to  mean,  not  merely  money 
payments  to  them,  but  also  providing 
medical  and  surgical  treatment  and  sup- 
port for  those  who  ordinarily  look  to  the 
employee  for  support.  Western  Metal 
Supply  Co.  V.  Pillsbury  (Cal.)   1917E-390. 

(Annotated.) 

142.  The  fact  that  the  dependents  of  a 
workman,  killed  in  the  course  of  his  em- 
ployment, may  be  nonresidents  of  the 
state  and  nation,  does  not  show  that  no 
public  purpose  is  to  be  served  by  requir- 
ing such  compensation  to  be  made  so  as  to 
deprive  that  provision  of  the  act  of  its 
validity  as  an  exercise  of  the  police 
nower.  Western  Metal  Supplv  Co.  v. 
Pillsbury  (Cal.)  1917E-390.     (Annotated.) 


143.  Workmen's  Compensation  Act,  tak- 
ing from  the  employer  who  rejects  the  act 
the  defense  that  the  servant's  own  negli- 
gence contributed  to  his  injury,  is  not 
unconstitutional  therefor,  since  the  act 
has  in  fact  added  to  the  defense  of  con- 
tributory negligence,  as  under  Iowa  Code 
of  1915,  Supplemental  Supp.  §  3953a,  all 
contributory  negligence  would  be  avail- 
able in  mitigation  only,  there  being,  under 
the  compensation  statute,  the  right  to 
plead  contributory  negligence  in  mitiga- 
tion, plus  the  right  to  plead  certain  con- 
tributory negligence,  such  as  intoxication 
of  the  servant,  in  bar.  Hunter  v.  Colfax 
Consolidated  Coal  Co.  (Iowa)   1917E-803, 

(Annotated.) 

144.  Workmen's  Compensation  Act,  pro- 
viding that  the  burden  of  proof  shall  rest 
upon  the  employer  who  rejects  the  act  to 
rebut  the  presumption  that  the  injury  to 
his  servant  was  the  result  of  his  negli- 
gence, is  not  unconstitutional,  since  rules 
as  to  presumptions  and  burden  of  proof 
have  been  established  by  the  decisions  of 
the  court  and  can  be  changed  or  abrogated 
by  the  legislature.  Hunter  v.  Colfax  Con- 
solidated Coal  Co,  (Iowa)  1917E-803. 

(Annotated.) 

145.  Workmen's  Compensation  Act, 
abolishing,  as  against  an  employer  who  re- 
jects it,  the  defense  that  the  injury  to  his 
servant  was  due  to  the  negligence  of  a 
fellow  servant,  is  not  unconstitutional 
thereby  as  an  illegal  classification  or  for 
any  other  reason,  since  the  defense,  hav- 
ing been  evolved  by  the  courts,  may  prop- 
erly be  abrogated  by  the  legislature,  as 
no  one  has  a  vested  interest  in  common- 
law  rules.  Hunter  v.  Colfax  Consolidated 
Coal  Co.  (Iowa)  1917E-803.     (Annotated.) 

146.  Workmen's  Compensation  Act, 
abolishing,  as  against  an  employer  reject- 
ing it,  various  defenses  resting  on  risks 
assured  by  the  employee,  is  not  unconsti- 
tutional therefor,  since  as  such  defen.ces 
of  assumption  of  risk  have  been  evolved 
by  the  courts,  they  may  be  properly  abro- 
gated by  the  legislature,  as  no  one  has  a 
vested  interest  fh  common-law  rules. 
Hunter  v.  Colfax  Consolidated  Coal  Co. 
(Iowa)    1917E-803.  (Annotated.) 

147.  Workmen's  Compensation  Act, 
abolishing  the  defenses  of  assumption  of 
risk,  contributory  negligence,  etc.,  is  not 
unconstitutional  as  denying,  without  a  re- 
peal of  Iowa  Code,  §  3650,  providing  that 
issues  of  fact  in  an  ordinary  action  must 
be  tried  by  jury  unless  the  same  is 
waived,  the  right,  to  an  employer  who  has 
rejected  the  act,  of  trial  by  jury  of  issues 
of  fact  in  his  servant's  action  against  him 
for  injuries.  Hunter  v.  Colfax  Consoli- 
dated Coal  Co.   (Iowa)   1917E-803. 

(Annotated.) 

148.  The  Workmen's  Compensation  Act, 
if  it  imposes  a  tax,  imposes  it  for  a  public 
purpose   sustained     by    the   police    power. 


MASTER  AND  SERVANT. 


567 


Hunter   v.   Colfax   Consolidated   Coal   Co. 
(Iowa)    1917E-803.  (Annotated.) 

149.  There  is  nothing  in  the  provision 
of  the  act  with  reference  to  insurance  to 
be  effected  by  the  employer  which  unlaw- 
fully abridges  the  right  to  contract.  Hun- 
ter V.  Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803.  (Annotated.) 

150.  Though  the  insurance  provisions  of 
the  act  are  treated  as  a  compulsory  tax, 
such  taxation  is  an  authorized  exercise  of 
the  police  power.  Hunter  v.  Colfax  Con- 
solidated Coal  Co.  (Iowa)  1917E-803. 

(Annotated.) 

151.  If  it  is  true  that  the  insurance  pro- 
visions of  the  statute  have  induced  and 
enabled  insurance  associations  to  combine 
for  the  exaction  of  unduly  high  premiums, 
that  will  not  render  the  statute  unconsti- 
tutional. Hunter  v.  Colfax  Consolidated 
Coal  Co.  (Iowa)  1917E-803.     (Annotated.) 

152.  Iowa  Workmen's  Compensation  Act, 
§§  25-35,  provide  generally  for  a  committee 
of  arbitration;  that  if  a  claim  for  review 
is  filed,  the  commissioner  shall  revise  the 
decision  of  the  committee,  or  refer  the 
matter  back  for  further  findings  of  fact; 
that  any  party  in  interest  may  present  a 
certified  copy  of  the  order  of  the  commis- 
sioner or  decision  of  the  committee  or  a 
memorandum  of  agreement  approved  to  the 
district  court,  which  shall  render  decree  in 
accordance  therewith.  It  is  held  that  the 
specified  sections  do  not  work  an  improper 
delegation  of  judicial  power.  Hunter  v. 
Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803.  (Annotated.) 

153.  Provisions  in  effect  providing  for 
arbitration,  for  decree  upon  the  award,  and 
for  a  limited  review  of  this  decree  upon 
appeal,  are  not  necessarily  a  delegation  of 
judicial  power,  and  are  at  least  as  much  a 
delegation  of  legislative  as  of  judicial 
power,  and  may  be  upheld  on  that  ground. 
Hunter  v.  Colfax  Consolidated  Coal  Co. 
(Iowa)    1917E-803.  (Annotated.) 

154.  Provisions  for  such  arbitration  and 
review  are  authorized  by  the  police  power, 
though  they  may,  in  a  sense,  clothe  an  ad- 
ministrative body  with  quasi-judicial  func- 
tions in  some  respects,  as  to  amount  to  a 
delegation  of  some  judicial  power,  and 
though  in  some  eases  this  operates  to  dmy 
the  right  of  trial  by  jury.  Hunter  v.  Col- 
fax Consolidated  Coal  Co.  (Iowa)  1917E- 
803.  (Annotated.) 

155.  Even  if  acceptance  of  the  act  con- 
stitute a  contract  to  oust  the  courts  of  all 
jurisdiction,  it  would  not  invalidate  the 
statute,  since,  while  such  contracts  are  con- 
demned, it  is  on  grounds  of  public  policy, 
and  a  contract  which  is  expressly  sanc- 
tioned by  or  effectuated  through  a  statute 
cannot  be  against  public  policy,  as  the 
legislature  is  the  supreme  judge  of  what 
constitutes  public  policy.  Hunter  v.  Col- 
fax Consolidated  Coal  Co.  (Iowa)  1917E- 
803.  (Annotated.) 


156.  Iowa  Workmen's  Compensation  Act, 
§  42,  provides  that  every  employer  subject 
to  its  provisions  shall  insure  his  liability 
under  the  act  in  some  organization  ap- 
proved by  the  state  department  of  insur- 
ance, while  other  provisions  afford  methods 
by  which  the  insurance  can  be  carried  by 
mutual  arrangement  between  the  employer 
and  employee,  or  under  which  the  employer 
may  carry  his  own  risk,  while  there  are 
various  provisions  as  to  carrying  insurance, 
etc.  It  is  held  that  the  insurance  scheme 
was  not  invalid  as  an  unauthorized  use 
of  the  taxing  power.  Hunter  v.  Colfax 
Consolidated  Coal  Co.  (Iowa)  1917E-803. 

(Annotated.) 

157.  While  the  consequences  of  rejection 
of  the  Workmen's  Compensation  Act  by  the 
employer  and  by  the  employee,  respect- 
ively, are  not  identical,  they  are  suffi- 
ciently so  as  that,  especially  in  view  of 
the  difference  in  situation,  the  difference 
created  is  not  arbitrary  classification. 
Hunter  v.  Colfax  Consolidated  Coal  Co. 
(Iowa)  1917E-803.  (Annotated.) 

158.  Iowa  Workmen's  Compensation  Act, 
§  5,  provides  that  where  both  employer  and 
employee  reject  the  act  the  liability  of  the 
employer  shall  be  the  same  as  though  the 
employee  had  not  rejected.  Section  3,  par^ 
"b,"  provides  that,  if  the  employee  rejects, 
the  employer  may  plead  all  defenses,  in- 
eluding  those  at  common  law,  and  con- 
tributory negligence,  assumption  of  risk, 
and  fellow  servant.  Section  10  provides 
that  compensation  under  the  act  is  to  be 
awarded  only  if  both  employer  and  em- 
ployee have  accepted  the  act.  It  is  held 
that  the  act  was  not  unconstitutional  as 
containing  an  improper  classification  and 
an  arbitrary  differentiation.  Hunter  v. 
Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803.  (Annotated.) 

159.  The  Iowa  Workmen's  Compensation 
Act  is  not' within  the  rule  of  eases  in  which 
statutes  impairing  the  right  freely  to  con- 
tract as  to  hours  of  labor,  and  statutes 
forbidding  discharge  because  an  employee 
is  a  member  of  a  labor  union,  and  the  like, 
were  held  unconstitutional,  because  it 
leaves  both  parties  at  liberty  to  accept  or 
reject  the  provisions  of  the  act,  and  be- 
cause it  is  a  proper  exercise  of  the  police 
power  in  so  far  as  it  regulates  agreement 
between  employer  and  employee.  Hunter 
V.  Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803.  (Annotated.) 

160.  Workmen's  Compensation  Act,  ex- 
cepting from  its  operation  household  or 
domestic  servants,  farm  or  other  laborers 
engaged  in  agricultural  pursuits,  and 
casual  employees,  is  not  unconstitutional 
as  class  legislation,  as  the  power  to  class- 
ify is  primarily  in  the  legislature,  and 
courts  accord  to  it  the  widest  latitude  m 
performing  this  function,  so  that  a  classi- 
fication adopted  by  it  will  be  sustained, 
unless  it  is  so  palpably  arbitrary  as  that 
there  is  no  room  for  doubt  this  discretion 


568 


DIGEST. 

1916C— 1918B. 


has  been  abused;  and  excepting  from  the 
act  household  or  domestic  servants,  farm 
laborers  engaged  in  agricultural  pursuits, 
and  those  in  an  employment  f  a  casual 
nature,  is  no  arbitrary  classification,  to 
say  nothing  of  being  palpably  arbitrary. 
Hunter  v.  Colfax  Consolidated  Coal  Co. 
(Iowa)    1917E-803.  (Annotated.) 

161.  Parties  other  than  such  employees 
cannot  urge  against  the  validity  of  a 
workmen's  compensation  act  that  it  inter- 
feres with  exclusive  jurisdiction  of  fed- 
eral courts  of  actions  for  injury  of  em- 
ployees of  railroads;  and,  in  any  event,  the 
act  guards  against  this  very  interference 
with  federal  law.  Mere  academic  possi- 
bilities will  not  avail  to  make  a  statute 
unconstitutional.  Hunter  v.  Colfax  Con- 
solidated Coal  Co.  (Iowa)   1917E-803, 

162.  The  Iowa  Workmen's  Compensation 
Act,  §  51,  provides  that  part  1  of  the  act 
shall  take  effect  from  and  after  July  1, 
1914,  and  parts  2  and  3  from  and  after 
July  4,  1913,  and  that  if  either  employer 
or  employee  serves  notice  to  reject  not  less 
than  thirty  days  before  July  1,  1914,  when 
part  1  takes  effect,  such  notice  shall  have 
the  same  force  and  effect  as  though  part  1 
had  taken  effect  July  4,  1913.  Acts  3oth 
Oen.  Assem.  c.  148,  provides  that  the 
Workmen's  Compensation  Act  shall  not 
apply  to  injuries  sustained  prior  to  the 
times  when  the  compensation  act  takes 
effect  in  all  its  parts.  It  is  held  that  the 
act  was  not  unconstitutional  as  impairing 
the  obligation  of  existing  contracts,  as  a 
statute  which  provides  expressly  that  ex- 
isting contracts  are  not  to  be  affected  is 
not  open  to  the  objection  that  it  impairs 
the  right  of  contract.  Hunter  v.  Colfax 
Consolidated  Coal  Co.  (Iowa)  1917E-803. 

(Annotated.) 

163.  Iowa  Workmen's  Compensation  Act, 
§§  8,  13,  18,  are  constitutional,  since  the 
sections  cited  are  mere  guards  against  con- 
tracts to  reduce  the  employer's  liability  for 
negligence,  and  statute  provisions  prohib- 
iting the  making  of  contracts  intended  to 
evade  obligations  created  by  the  statute 
are  not  an  impairment  of  the  right  to  con- 
tract, but  a  method  of  preventing  evasions 
of  contract  obligations.  Hunter  v.  Colfax 
Consolidated  Coal  Co.    (Iowa)    1917E-803. 

(Annotated.) 

164.  Iowa  Workmen's  Compensation  Act, 
§  3,  provides  that  if  any  request  be  made  by 
an  employer  that  an  employee  shall  exer- 
cise his  right  to  reject  the  act,  there  shall 
arise  a  conclusive  presumption  that  the 
employee  was  unduly  influenced.  Section 
19  provides  that  any  agreement  made  by 
any  employer  with  any  employee  or  other 
beneficiary  as  to  any  claim  under  the  act 
made  within  twelve  days  after  injury, 
shall  be  presumed  fraudulent.  It  is  held 
that  the  act  was  constitutional.  Hunter 
v.  Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803.  (Annotated.) 


165.  Iowa  Workmen's  Compensation  Act, 
§§3,  8,  13,  18,  19,  leave  both  the  employer 
and  the  employee  the  liberty  to  accept 
or  reject  its  provisions,  while  its  require- 
ments in  case  of  acceptance  constitute  such 
an  exercise  of  the  state's  police  power  as 
will  sustain  compulsory  acceptance,  as  the 
legislature  in  an  honest  exercise  of  the 
police  power  may  validly  impair  the  obli- 
gations of  contracts.  Hunter  v.  Colfax 
Consolidated  Coal  Co.  (Iowa)  1917E-803, 

(Annotated.) 

166.  Iowa  Workmen's  Compensation  Act, 
providing  for  the  assessment  of  an  injured 
workman's  compensation  by  an  executive 
board,  is  not  unconstitutional,  in  that  the 
statute  violated  the  guaranties  of  the  fed- 
eral constitution  of  due  process  of  law,  and 
equal  protection  of  laws,  and  effected  a 
wrongful  abridgment  of  the  privileges  and 
immunities  of  citizenship.  Hunter  v.  Col- 
fax Consolidated  Coal  Co.  (Iowa)  1917E'- 
803.  (Annotated.) 

167.  The  m.  Workmen's  Compensation 
Act  of  1911  (Laws  1911  p.  315)  is  consti- 
tutional. Devine  v.  Delano  (111.)  191 8A- 
689. 

Notes. 
Workmen's  Compensation  Act  as  appli- 
cable to  injury  received  in  another  juris- 
diction.    1918B-625. 

Constitutionality  of  Workmen's  Compen- 
sation Act.     1918B-611. 

(3)     Construction  Generally. 

168.  Construction,  Mich.  Employers' 
Liabilitv  and  Workmen's  Compensation 
Act  (Pub.  Acts,  Extra  Sess.  1912,  No,  10), 
providing  compensation  for  injuries  to  and 
death  of  workmen  while  engaged  in  their 
employment,  independent  of  the  question 
of  negligence,  is  in  derogation  of  the  com- 
mon law,  and  should  be  strictly  construed, 
though  the  act  provides  a  remedy  against 
a  person  who  would  not  otherwise  be  lia- 
ble. Andrejwski  v.  Wolverine  Coal  Co. 
(Mich.)   1916D-724. 

169.  Construction  of  Act  —  Depriving 
Court  of  Jurisdiction.  The  legislature,  in 
adopting  Wlash.  Laws  1911,  c.  74.  as  to 
workmen's  compensation,  having  said  posi- 
tively that  jurisdiction  of  courts  in  contro- 
versies over  injuries  to  employees  is  ended, 
the  courts  must  liberally  construe  such  pro- 
vision as  well  as  other  portions  of  the 
law.  Stertz  v.  Industrial  Ins.  Commission 
(Wash.)   1918B-354. 

170.  Although  it  employs  the  word  "acci- 
dent" in  administrative  portions  of  the  act, 
it  does  not  thereby  limit  the  words  "for- 
tuitous event"  used  in  the  clause  granting 
compensation,  since  general  intent  will  not 
control  positive  definitions.  Stertz  v.  In- 
dustrial Ins.  Commission  (Wash.)  1918B- 
354. 

171.  Effect — Dispensing  With  Judicial 
Controversy.     The  Wash.  Workmen's  Com- 


MASTER  AND  SERVANT. 


569 


pensation  Act  (Laws  1911,  c.  74),  by  omit- 
ting the  words  "accident"  and  "arising  out 
of  and  in  the  course  of  employment,"  and 
substituting  therefor  "fortuitous  event" 
and  "injured  in  extrahazardous  work,"  de- 
parts from  prevailing  systems  and  awards 
compensation  without  judicial  controver- 
sies. Stertz  v.  Industrial  Ins.  Commission 
(Wash.)   1918B-354. 

172.  Workmen's  Compensation  Act  as 
Eetroactive.  Where  the  amending  statute 
materially  changes  the  statute  amended, 
making  desirable  a  postponement  of  its 
operation  to  permit  an  adjustment  to 
changed  provisions,  the  argument  that  the 
limitation  was  intended  to  be  retrospective 
is  less  cogent;  and  when  such  limitation, 
if  retrospective,  is  radical  and  harsh^  and 
the  changes  in  the  substantive  provisions 
of  the  statute  furnish  an  adequate  reason 
for  a  postponement,  such  postponement 
should  not  be  held  to  show  an  intent  to 
make  the  statute  retrospective.  And  it  is 
held  that  chapter  209,  Laws  Minn.  1915, 
approved  April  21,  1915,  and  effective  July 
1,  1915,  amending  the  Workmen's  Compen- 
sation Act  of  1913  (Laws  1913,  c.  467),  and 
providing  a  limitation  of  one  year  after 
injury  in  which  a  workman  may  commence 
his  action,  the  effect  being,  if  the  act  is 
retrospective,  to  require  accrued  causes  of 
action  to  be  brought  within  seventy  days 
after  the  passage  of  the  statute,  was  not 
retrospective.  State  v.  General  Accident, 
etc.  Assurance  Corp.  (Minn.)  1918B-615. 

(Annotated.) 

173.  Definition  of  Terms — Elevator  as 
"Vehicle."  An  elevator  is  not  a  "vehicle" 
within  the  classification  of  group  41  of  N. 
Y.  Workmen's  Compensation  Law.  (Consol. 
Laws,  c.  67),  which  embraces  the  operation 
"otherwise  than  on  tracks,  of  cars,  trucks, 
wagons,  and  other  vehicles,"  etc.  Wilson 
v.  Dorflinger  (N.  Y.)   1917D-38. 

174.  Plant — Definition  of  Term — As  Used 
in  Employers'  Liability  Act.  Under  the 
N.  Y.  Employers'  Liability  Act  (Consol. 
Laws,  c.  31,  §  200,  as  amended  by  Laws 
1910,  c.  352),  making  an  employer  liable 
for  personal  injury  to  an  employee  in  the 
exercise  of  due  care,  by  any  defect  in  the 
condition  of  the  ways,  works,  machinery, 
01  plant,  connected  with  or  used  iu  the 
business  of  the  employer,  and  arising  from, 
or  not  discovered  and  remedied  owing  to, 
the  negligence  of  the  employer  or  any  one 
intrusted  by  him  with  seeing  that  the 
ways,  etc.,  are  in  proper  condition,  the 
word  "plant,"  used  in  connection  with  and 
relating  to  a  business,  includes  everything, 
other  than  supplies  and  stock  in  trade, 
requisite  to  the  carrying  on  of  the  busi- 
ness; whatever  apparatus  is  used  by  a  busi- 
ness man  for  carrying  on  his  business — 
not  his  stock  in  trade  which  he  buys  or 
makes  for  sale — but  all  goods  and  tools, 
fixed  or  movable,  which  he  keeps  for  per- 
manent employment  in  his  business;  any- 
thing regularly  used  in  the  conduct  of  an 


employer's  business,  without  which  it  could 
not  be  carried  on  in  the  usual  manner;  and 
there  is  a  "defect"  when  any  part  of  the 
plant  is  not  in  a  proper  condition  for  the 
purpose  for  which  it  was  intended,  or  when 
it  is  so  incomplete  that  the  use  of  the 
plant  is  dangerous  by  reason  of  the  failure 
to  furnish  reasonably  necessary  parts  for 
the  purpose  for  which  it  is  used.  Wlhiley 
V.  Solvay  Process  Co.  (N.  Y.)  1917A-314. 

(Annotated.) 

175.  AlMlition  of  Defenses — ^Assumption 
of  Bisk.  The  common-law  rule  that  an  em- 
ployee continuing  in  the  work  of  his  em- 
ployer with  full  knowledge  of  the  dangers 
incident  thereto  assumes  such  risks  has  not 
been  changed  by  the  N.  Y.  Employers' 
Liability  Act  (Consol.  Laws,  c.  31,  §§  200- 
204),  defining  the  employers'  liability,  un- 
less notice  is  given  as  provided  by  that 
act,  and  the  employee  is  entitled  to  recover 
under  its  terms.  Wiley  v.  Solvay  Process 
Co.  (N.  Y.)  1917A-314. 

176.  Assumption  of  Bisk — ^Abolition  of 
Defense — Effect.  Though  some  authorities 
hold  that  the  defense  of  assumption  of  in- 
herent risks  presents  the  claim  that  the 
employer  is  wholly  free  from  blame,  many 
more  authorities  define  this  defense  of  as- 
sumption otherwise.  Since,  therefore,  the 
legislature  is  not  obliged  to  hold  that  de- 
fending with  assumption  of  inherent  risk 
is  necessarily  defending  with  total  freedom 
from  blame,  and  since  the  one  is  neither 
necessarily  nor  universally  held  to  be  the 
equivalent  of  the  other,  the  taking  away 
of  the  defense  of  assumption  is  not  neces- 
sarily an  elimination  of  the  defense  of 
total  want  of  fault,  especially  where  the 
act  expressly  provides  carefully  worked 
out  methods  for  litigating  whether  the 
master  was  shown  to  be  wholly  blameless. 
Hunter  v.  Colfax  Consolidated  Coal  Co. 
(Iowa)  1917E-803. 

177.  When  at  a  time  at  which  a  statute 
is  passed  the  authorities  are  greatly  at 
variance  as  to  what  is  presented  by  the 
defense  that  the  employee  assumed  the 
risks  inherent  in  the  employment,  and  the 
statute  enacted  contains  a  well-considered 
provision,  putting  the  burden  of  proof  upon 
the  employer  that  he  was  wholly  free  from 
fault,  the  statute  should  not  be  construed 
into  taking  away  the  defense  that  the  em- 
ployer is  wholly  blameless,  merely  because 
the  statute  eliminates  such  assumption  of 
risk  as  a  defense.  Hunter  v.  Colfax  Con- 
solidated Coal  Co.  (Iowa)   1917E-803. 

178.  Absolute  Liability.  Because  of  the 
presumption  that  the  legislature  has  in 
mind  the  state  of  the  law  on  the  subject 
of  a  statute  when  it  enacts  the  same,  and 
because  at  the  time  this  statute  was  en- 
acted there  was  at  least  room  for  reason- 
able difference  of  opinion  on  whether  a 
statute  making  the  employer  respond,  when 
wholly  free  from  blame,  is  valid,  and  be- 
cause of  the  rule  that  courts  will  not  so 
construe  a  statute  as  to  render  it  uncon- 


570 


DIGEST. 

19160— 1918B. 


etitutional,  or  as  to  raise  serious  doubts 
as  to  its  validity,  if  any  other  construction 
is  within  the  bounds  of  reason  possible, 
the  statute  under  consideration  is  held  not 
to  create  such  absolute  liability.  Hunter 
V.  Colfax  Consolidated  Coal  Co.  (Iowa) 
1917E-803. 

Notes. 

Meaning  of  phrase  "average  weekly 
earnings"  in  Workmen's  Compensation  or 
similar  act.     1918B-640. 

Workmen's  Compensation  Act  as  retro- 
active in  operation.     1918B-617. 

(4)     Operation  Without  State. 

179.  Injury  Outside  State  Where  Con- 
tract of  Employment  was  Made.  The  only 
actions  to  secure  workmen's  compensation 
under  a  foreign  statute  which  the  courts 
of  Connecticut  cannot  enforce  are  those 
where  right  and  remedy  are  so  united  that 
the  right  cannot  be  enforced  except  in  the 
manner  and  before  the  tribunal  designated 
by  the  act.  Douthwright  v.  Champlin 
(Conn.)   1917E-512.  (Annotated.) 

180.  Pub.  Acts  Conn.  1913,  e,  138,  as  to 
workmen's  compensation,  provides  compeu- 
b-'tion  for  nonresidents  as  well  as  resi- 
dents, and  under  all  contracts  of  employ- 
ment wherever' and  by  whomsoever  made. 
Douthwright  v.  Champlin  (Conn.)  1917E- 
512.  (Annotated.) 

181.  Where  the  act  is  rejected  the  courts 
are  in  no  sense  deprived  of  jurisdiction, 
although  the  procedure  before  them  is 
changed,  and  certain  defenses  are  elimin- 
ated. Hunter  v.  Colfax  Consolidated  Coal 
Co.  (Iowa)   1917E-803.  (Annotated.) 

182.  If  the  act  is  accepted,  there  is  thus 
a  contract  which  takes  some  powers  from 
the  edurt,  but  still  is  not  an  agreement  to 
oust  them  of  all  jurisdiction.  Their  in- 
herent powers  are  left  quite  largely  un- 
touched, even  where  the  statute  is  ac- 
cepted. Hunter  v.  Colfax  Consolidated 
Coal  Co.  (Iowa)  1917E-803. 

(Annotated.) 

183.  Where  master  and  servant  lived  in 
Massachusetts,  where  the  master's  prin- 
cipal place  of  business  was,  and  there  made 
a  contract  for  employment,  and  the  servant 
was  injured  while  working  for  the  master 
in  Connecticut,  both  having  accepted  Pub. 
Acts  1913,  c.  138,  pt.  B,  as  to  workmen's 
compensation,  the  courts  of  Connecticut 
can  enforce  compensation,  since  the  Massa- 
chusetts act  has  no  extraterritorial  effect, 
and  the  Workmen's  Compensation  Act  of 
Connecticut  must  be  read  into  the  contract. 
Douthwright  v.  Champlin  (Conn.)  191 7E- 
512.  (Annotated.) 

(5)     Klection  Under  Optional  Act. 

184.  Time  for  Election.  111.  Workmen's 
Compensation  Act  approved  .Tune  2S,  1913, 
and  going  into  effect  July  1,  1913  (Laws 


1913,  p.  337),  providing  that  every  em- 
ployer enumerated  in  section  3,  par.  6,  shall 
be  conclusively  presumed  to  have  filed  no- 
tice of  election  to  come  under  the  act  un- 
less and  until  notice  to  the  contrary  is 
filed  with  the  industrial  board,  and  that 
every  employer  who  has  elected  to  eomo 
under  the  act  shall  be  bound  by  it  until 
January  of  the  next  succeeding  year,  but 
may  elect  to  withdraw  from  the  operation 
of  the  act  after  the  end  of  such  year  by 
filing  notice  with  the  board  at  least  sixty 
days  prior  to  the  end  of  the  year,  is  held 
to  have  given  employers  not  affirmatively 
filing  notice  to  come  under  the  act  at  least 
until  November,  1913,  to  withdraw  from 
the  same  by  giving  notice.  Victor  Chem- 
ical Works  V.  Industrial  Board  (111.) 
1918B-627. 

185.  Necessity  —  Nonhazardous  Employ- 
ment. HI.  Workmen's  Compensation  Act, 
§1  (Hurd's  Bev.  St.  1913,  c.  48,  §126), 
gives  to  all  employers  in  the  state  the 
right  to  elect  to  pay  compensation  to  their 
employees  according  to  the  provisions  ot 
the  act.  Section  3  (section  128)  provides 
that  in  certain  enumerated  extrahazardous 
occupations,  it  shall  be  presumed  that  the 
employer  has  elected  to  come  under  the 
act,  and  if  he  elects  not  to  do  so,  he  is 
denied  the  defenses  of  assumption  of  risk, 
contributory  negligence,  and  negligence  of 
fellow  servants  in  actions  by  his  employees 
for  injuries.  It  is  held  that  the  voluntary 
election  under  section  1  applies  to  all  em- 
ployees in  any  branch  of  the  employer's 
business,  but  the  presumed  election  under 
section  3  applies  only  to  those  employees 
engaged  in  an  extrahazardous  occupation, 
so  that  a  farm  hand  employed  on  the  farm 
of  a  corporation  which  had  made  no  elec- 
tion under  the  act  and  which  operated  a 
warehouse  and  office  in  the  city  cannot  re- 
cover compensation  for  injuries  received 
while  doing  ordinary  farm  work,  though 
the  corporation's  employees  in  the  city 
might  be  within  the  terms  of  the  act. 
Vaughan's  Seed  Store  v.  Simonini  (111.) 
1918B-713.  (Annotated.) 

186.  Eight  of  Election.  Neither  the 
master  nor  the  servant  has  any  right  of 
election  whether  he  will  come  under  the 
111.  Workmen's  Compensation  Act  (Laws 
1911,  p.  345  [Rem.  Code  1914,  §§  6604—1  to 
6604 — 32]),  if  engaged  in  the  kind  of  work 
wEich  falls  thereunder,  and  neither  can 
exempt  himself  from  the  burdens  imposed, 
nor  waive  the  benefits.  Shaughnessv  v. 
Northland  Steamship  Co.  (Wash.)  19i8B- 
655. 

187.  Effect  of  Failure  to  Accept — De- 
fenses Abolished,  The  111.  Workmen's 
Compensation  Act  (Acts  Both  Gen.  As^em- 
c.  147)  provides  that  the  rejecting  em- 
ployer, in  suit  against  him  by  a  servant 
for  personal  injuries,  may  not  avail  him- 
self of  the  defenses  of  assumption  of  risk, 
or  that  the  employer  used  reasonable  care 
in    employing    reasonably  competent    em- 


MASTER  AND  SERVANT. 


571 


ployees,  or  that  the  injury  was  caused 
by  the  negligence  of  a  fellow  servant.  An 
employer  which  had  rejected  the  act  and 
was  sued  for  personal  injuries  was  not  per- 
mitted to  present  to  the  jury  the  defense 
that  the  injury  was  due  to  the  employee's 
negligence.  It  is  held  that  the  provision  of 
the  act  establishing  the  presumption  that 
the  injury  was  the  result  of  the  employer's 
negligence  did  not  abolish  the  defense  of 
contributory  negligence;  it  merely  forcing 
the  employer  to  show  affirmatively  that  he 
h  blameless.  Hunter  v.  Colfax  Consoli- 
dated Coal  Co.  (Iowa)  1917E-803. 

188.  Election  to  Reject — Authority  of 
Receiver.  Where  the  United  States  court 
for  the  eastern  district  of  Missouri,  by  the 
order  appointing  receivers  for  a  railroad, 
authorized  them  "to  run,  manage,  main- 
tain, and  operate  said  railroads  and 
property  wheresoever  situated  or  found, 
whether  in  this  state,  judicial  circuit,  or 
elsewhere,  and  to  use,  manage,  and  conduct 
such  business  in  such  manner  as  in  their 
judgment  will  produce  the  best  results,  and 
to  this  end  exercise  the  authority  and 
franchise  of  said  railroad  company  and 
discharge  all  the  public  duties  obligatory 
upon  it,  and  manage  and  operate  said  rail- 
roads and  property  according  to'  the  re- 
quirements of  the  valid  laws  of  the  various 
states  in  which  the  same  are  situated,  and 
in  the  same  manner  that  the  defendant 
railroad  company  would  be  bound  to  do  it 
in  possession,"  the  receivers  had  author- 
ity to  reject  the  Workmen's  Compensation 
Act  in  the  southern  district  of  Illinois 
without  obtaining  a  special  order  of  court 
for  that  purpose,  since  a  court  in  a  prin- 
cipal railroad  receivership  action  has  gen- 
eral authority  over  the  entire  system,  even 
as  to  parts  not  within  the  district  in  which 
the  court  sits,  while  the  authority  of  the 
receivers  under  the  order  was  ample.  De- 
vine  V.  Delano  (HI.)  1918A-689. 

(Annotated.) 

189.  Right  to  Compensation  of  Minor 
Employes — Effect  on  Rights  of  Parent. 
The  111.  Workmen's  Compensation  Act  (St. 
1911,  c.  751),  while  intended  to  take  away 
from  injured  employees,  who  shall  become 
subject  to  its  provisions,  all  common-law 
rights  of  action,  does  not  affect  the  right 
of  action  of  the  parent  of  a  minor  ser- 
vant, who  was  injured,  for  the  injury  not 
only  gives  rise  to  one  cause  of  action  in 
favor  of  the  minor,  but  to  another  in  favor 
of  his  parents,  and  the  parent's  action  is 
in  no  way  consequential  on  that  of  the 
minor,  being  based  on  loss  of  services  dur- 
ing minority  and  expenses  necessitated  by 
che  injury.  King  v.  Viscoloid  Comnany 
(Mass.)    1916D-1170.  (Annotated.) 

(6)     Exclusiveness  of  Remedy. 

190.  The  provision  of  the  111.  Workmen's 
Compensation  Act  (St.  1911,  c.  751)  that 
the  right  of  action  of  an  injured  employee 
chall  be  waived,  unless  he  gives  notice 
that    he    claims     his     common-law    rights, 


shows  that  the  employee  cannot,  if  he  be  a 
minor,  waive  his  parent's  right  of  action 
for  the  same  injuries.  King  v,  Viscoloid 
Company  (Mass.)  1916D-1171. 

(Annotated.) 

191.  The  right  of  action  of  a  parent  of  an 
injured  minor  servant  is  not  barred  by  an 
allowance  to  the  servant  under  the  Mass. 
Workmen's  Compensation  Act  (St.  1911, 
c.  751),  on  the  theory  that  the  compen- 
sation is  really  a  payment  of  wages  to 
which  the  parent  is  entitled,  for  part  2, 
§  11,  clearly  shows  that  the  allowance, 
though  based  on  salary^  is  also  for  perma- 
nent injuries.  King  v.  Viscoloid  Company 
(Mass.)  1916D-1170.  (Annotated.) 

192.  The  provision  in  the  Mass.  Work- 
men's Compensation  Act  (St.  1911,  c.  751, 
pt.  2,  §  5)  that  the  insurer  shall  pay  part 
of  the  medical  expenses  incurred  does  not, 
where  there  is  no  issue  of  estoppel,  affect 
the  right  of  action  of  the  parent  of  an  in- 
jured minor  servant  against  the  master, 
although  the  parent  could  not  recover  for 
expenses  paid  by  another.  King  v.  Visco- 
loid Company  (Mass.)  1916D-1170. 

(Annotated.) 

Notes. 

Award  to  minor  under  Workmen's  Com- 
pensation Act  as  affecting  right  of  action 
by  parent.     1916D-1172. 

Eight  to  and  effect  of  election  with  re- 
spect to  acceptance  of  provisions  of  Work- 
men's Compensation  Act.     1918B-715. 


(7)     "Accident"  and  "Personal  Injury." 

193.  Disease  as  Accident — Typhoid  from 
Impure  Drinking  Water.  Under  Wis. 
Workmen's  Compensation  Act  (St.  1913, 
§§  2384—1-2394—31),  §  2394—3,  declaring 
that  liability  for  the  compensation  pro- 
vided for  in  lieu  of  other  liability  shall 
exist  against  an  employer  for  any  personal 
injury  accidentally  suffered  by  an  em- 
ployee, where  an  employee  is  performing 
a  service  growing  out  of  and  incidental  to 
his  employment,  the  right  to  compensation 
for  the  death  of  an  employee  resulting 
from  typhoid  fever  caused  by  the  furnifh.- 
iug  of  polluted  drinking  water  falls  within 
the  act;  the  disease  being  incurred  as  an 
incident  to  the  employment.  Vennen  v. 
New  Dells  Lumber  Co.  (Wis.)   1918B-293. 

(Annotated.) 

194.  Where  an  employee  contracts  ty- 
phoid fever  by  reason  of  impure  drinking 
water  furnished  by  the  master,  his  death 
from  the  disease  is  an  "accident,"  within 
Wis.  St.  1913,  §  2394—3,  making  the  em- 
ployer liable  for  injuries  proximately 
caused  by  accident;  the  term  "accident" 
being  used  in  its  popular  significance,  as 
including  injuries  produced  by  negligence. 
Vennen  vl  New  Dells  Lumber  Co.  (Wis.) 
1918B-293.  (Annotated.) 


572 


DIGEST. 

1916C— 1918B. 


195.  What  Constitutes  Accident — Occu- 
pational Disease.  Mich.  Workmen's  Com- 
pensation Act  (Pub.  Acts  1912  [Ex.  Sess.] 
No.  10),  providing  for  compensation  for 
the  accidental  injury  to,  or  death  of,  em- 
ployees provides,  in  part  1,  §  5,  subd.  2, 
that  every  person  having  any  one  in  his 
service  who,  prior  to  the  time  of  the  acci- 
dent to  the  employee,  shall  have  elected 
to  become  subject  to  the  provisions  of  the 
act,  and  shall  not  have  effected  a  witn- 
drawal,  is  subject  to  the  act.  By  Pub. 
Acts  1911,  No.  245,  the  legislature  created 
a  commission  to  provide  for  compensation 
for  accidental  in3uries  or  death  of  work- 
men in  their  employment,  and  the  Work- 
men's Compensation  Act  as  prepared  by 
the  committee  was  adopted  without  change. 
Held  that,  as  an  accident  is  an  unforeseen 
event  occurring  without  design,  the  Work- 
men's Compensation  Act  does  not  apply  to 
occupational  diseases,  which  are  diseases 
arising  from  causes  incident  to  certain  oc- 
cupations and  do  not  occur  suddenly,  this 
conclusion  being  strengthened  by  the  re- 
quirements of  part  3,  §  17,  that  the  em- 
ployer give  notice  to  the  industrial  acci- 
dent board  within  ten  days  alter  the  oc- 
currence of  accident;  for  in  the  case  of 
an  occupational  disease  th«  employer  might 
uot  be  able  to  give  the  notice  because  not 
informed  that  a  workman  who  had  left  his 
employ  was  afliicted  with  an  occupational 
disease.  Adams  v.  Acme  White  Lead,  etc. 
Works  (Mich.)  1916D-689.      (Annotated.) 

196.  What  Constitutes  Injury.  Section 
?i  providing  that  "injury  refers  only  to 
injury  resulting  from  fortuitous  event  as 
distinguished  from  contraction  of  disease," 
all  injuries  are  intended  to  be  compensated 
tor  unless  wilfully  incurred,  since  only 
disease  is  excluded.  Stertz  v.  Industrial 
Ins.  Commission  (Wash.*)  1918B-354. 

(Annotated.) 

197.  Disease  as  Accident.  No  compensa- 
tion can  be  recovered  under  the  Workmen's 
Compensation  Act  by  the  dependents  of 
a  workman  who,  having  sustained  an  acci- 
dental injury,  became  insane  from  de- 
spondency over  his  slow  recovery  and  com- 
mitted suicide,  there  being  no  direct  causal 
connection  between  the  insanity  and  the 
injury.  Withers  v.  London,  etc.  R.  Co. 
(Eng.)  1918B-341.  (Annotated.) 

198.  Where  a  hack  driver  in  the  employ- 
ment of  defendant  stable  company,  which 
had  elected  to  become  subject  to  the  Work- 
men's Compensation  Act  (Pub.  Laws  R.  I. 
1912,  c.  831),  was  pitched  from  his  seat 
by  the  motion  of  the  hack  while  driving 
and  while  helpless  from  dizziness  or  un- 
consciousness, occasioned  by  a  disease 
from  which  he  was  suffering,  he  is  entitled 
to  compensation  for  the  resulting  injuries, 
since  his  fall  was  an  "accident  arising  out 
of  his  employment"  within  the  meaning 
of  article  I,  §  1,  of  the  act.  Carroll  v. 
What  Cheer  Stables  Co.  (R.  I.)  1918B-316. 

(Annotated.) 


199.  Accident  In  Course  of  Employment 
— Disobedience  of  Orders.  A  workman  in- 
jured while  engaged  in  performing  a  duty 
of  his  employment  is  none  the  less  within 
the  Workmen's  Compensation  Act  because 
in  entering  on  that  work  he  disobeyed  an 
order  to  perform  first  another  duty.  Wil- 
liams V.  Llandudno  Coaching,  etc.  Co. 
(Eng.)  1918B-682. 

200.  What  Constitutes  Accident — Bheu- 
matism.  Rheumatism  contracted  by  a 
workman  as  the  result  of  an  emergency 
employment  wherein  he  was  required  to 
stand  for  several  hours  in  water,  is  an  acci- 
dent arising  out  of  and  in  the  course  of 
the  employment  within  the  meaning  of  a 
workmen's  compensation  act.  Glasgow 
Coal  Co.  V.  Welsh  (Eng.)  1916E-161. 

(Annotated.) 

201.  Proof  of  Accidental  Injury — Sufl- 
clency.  Proof  that  a  workman  engaged  in 
an  employment  wherein  accidental  bruises 
and  abrasions  were  of  frequent  occurrence 
came  to  work  apparently  without  injury 
and  later  in  the  day  he  was  seen  to  limp 
and  to  complain  of  a  bruised  knee  which 
on  a  subsequent  day  showed  abrasion,  is 
sufficient,  after  the  death  of  the  workman 
from  blood  poisoning,  to  sustain  a  finding 
that  the  injury  was  received  accidentally 
in  the  course  of  the  employment.  Hay- 
ward  V.  Westleigh  Colliery  Co.  (Eng.) 
1917D-877. 

202.  Wliat  Constitutes  Accident— Wilful 
Act  of  Third  Person.  That  a  night  watch- 
man was  killed  while  discharging  his  duties 
by  the  wilful  act  of  a  third  person,  does 
not  show  that  his  death  was  not  accidental 
within  the  Workmen's  Compensation  Act. 
Western  Metal  Supply  Co.  v.  Pillsbury 
(Cal.)  1917E-390. 

203.  What  Constitutes  Loss  of  Finger. 
E.  I.  Laws  1911-1912,  c.  831,  art.  2,  §  12, 
subd.  "c,"  provides  that  for  loss  by  sever- 
ance at  or  above  the  second  joint  of  two  or 
more  fingers,  including  thumbs,  or  toes, 
compensation  consisting  of  one-half  of  the 
average  weekly  wages  or  salary,  but  not 
more  than  $10,  nor  less  than  $4,  for  a 
period  of  twenty-five  weeks,  shall  be  al- 
lowed; while  subdivision  "d"  authorizes 
similar  compensation  for  a  period  of  twelve 
weeks  for  tue  loss  by  severance  of  at  least 
one  phalange  of  a  finger,  thumb,  or  toe. 
Plaintiff's  thumb  was  injured  so  that  a 
small  piece  of  the  bone  was  lost  from  the 
side  and  pieces  of  tendons  and  flesh  were 
also  destroyed.  It  is  held  that  as  the 
thumb  itself  was  not  severed,  compensa- 
tion was  properly  awarded  under  subdi- 
vision "d"  instead  of  subdivision  "c." 
Weber  v.  American  Silk  Spinning  Com- 
pany (R.  I.)  1917E-153. 

2^4.  What  Constitutes  "I«oss"  of  Eye. 
Where  a  servant's  right  eye  is  impaired  so 
that  he  possesses  only  twenty  per  cent  of 
the  natural  vision,  but  his  vision  can  be 
improved  by  the  introduction  of  an  arti- 


MASTER  AND  SERVANT. 


573 


flcial  pupil,  and  the  fields  of  vision  are 
normal,  he  is  not  entitled  to  compensation 
as  for  "loss  of  use  of  the  eye,"  which  is 
equivalent  to  a  loss  of  the  eye.  Boscarino 
V.  Carfagno  &  Dragonette  (N.  Y.)  1918A- 
530.  (Annotated.) 

205.  Wliat  Constitutes  "Loss"  of    Ann. 

Wis.  St.  1913,  §  2394— 9,  in  the  first  sub- 
divisions provides  generally  for  compen- 
sation to  injured  employees.  Subdivision 
5  provides  for  specific  payments  for  named 
injuries,  which  includes  the  loss  of  forearm 
and  hand,  but  does  not  specifically  include 
the  impairment  of  the  arm.  It  is  held  that 
as  the  statute  provided  that  paralysis  of 
a  member  shall  be  equivalent  to  a  loss, 
it  did  not  include  a  mere  impairment,  and 
an  award  for  an  injury  impairing  the  use 
of  the  arm  could  not  be  made  under  that 
subdivision.  Northwestern  Fuel  Co.  v. 
Industrial  Commission  (Wis.)  1918A-533. 

(Annotated.) 
Notes. 

WTiat  constitutes  "loss"  of  limb  or  part 
thereof  within  Workmen's  Compensation 
Act.     1918A-536. 

What  is  "injury"  or  "personal  injury" 
within  meaning  of  Workmen's  Compensa- 
tion Act.     1918B-362. 

Disease  as  an  accident.     1918B-297. 

(8)     Injuries   Arising   "Out    of"    and   "In 
Course  of"  Employment. 

206.  Evidence  Excluding  Presumption. 
Evidence  that  a  helper  of  the  injured  ser- 
vant and  tw(y  other  witnesses  were  present 
at  the  time  and  place  of  the  alleged  in- 
juries to  the  servant,  and  that  they  did 
not  see  any  accident  happen  to  him,  and 
that  they  did  not  see  a  cake  of  ice  fall 
upon  him,  and  of  physicians  who  examined 
decedent  that  there  were  no  bruises,  discol- 
orations,  or  abrasions  on  the  surface  of  his 
body,  is  sufficient  to  overcome  the  statu- 
tory presumption  of  N.  Y.  Workmen's 
Compensation  Law  (Laws  1914,  c.  41), 
§  21,  which  provides  that  it  shall  be  pre- 
sumed, in  the  absence  of  substantial  evi- 
dence to  the  contrary  that  the  claim  comes 
within  the  provisions  of  the  law.  Carroll 
V.  Knickerbocker  Ice  Co,  (N.  Y.)  1918B- 
.540. 

207.  Injury  in  Course  of  Employment — 
Working  in  Forbidden  Manner.  A  work- 
man whose  duty  is  to  walk  ahead  of  a  mov- 
ing car  as  a  lookout  is  not  acting  within 
his  employment  when  instead  of  so  doing 
he  rides  on  the  buffer  of  the  car,  and  he  is 
not  entitled  to  compensation  for  an  injury 
received  while  so  engaged.  Herbert  v. 
Samuel  Fox  &  Co.  (Eng.)  1916D-578. 

(Annotated.) 

208.  Injury  by  Third  Person.  Under 
said  law,  if  the  workman  is  injured  on  the 
premises  from  the  act  of  a  third  person 
he  has  the  absolute  right  of  compensation 
from  the  fund  provided;  but,  if  so  injured. 


off  the  premises,  he  must  elect  whether  to 
sue  the  third  person  or  claim  from  the 
fund.  Stertz  v.  Industrial  Ins.  Commis- 
sion (Wash.)  1918B-354. 

209.  The  law  does  not,  by  providing  com- 
pensation only  for  workmen  injured  in 
hazardous  or  extrahazardous  employments, 
imply  that  compensation  shall  be  made 
only  for  injuries  arising  out  of  the  work. 
Stertz  v.  Industrial  Ins.  Commission 
(Wash.)  1918B-354. 

210.  Said  law  provides  compensation  to 
workmen  injured  on  the  premises  by  inter- 
vention of  third  persons,  since  it  covers 
every  fortuitous  event  regardless  of  fault. 
Stertz  V.  Industrial  Ins.  Commission 
(Wash.)   1918B-354. 

211.  Injury  in  Course  of  Employment — 
Absence  from  Plant.  Section  5  of  said  act 
providing  compensation  for  each  workman 
injured  whether  on  the  premises  or  at  the 
plant  or,  he  being  in  the  course  of  his  em- 
ployment, away  from  the  plant,  the  words 
"in  the  course  of  employment"  qualify  only 
when  away  from  the  plant.  Stertz  v.  In- 
dustrial Ins.  Commission  (Wash.)  1918B- 
354. 

212.  Effect  of  Disease.  Whether  in  such 
8  case  the  accident  arose  "out  of"  the  em- 
ployment within  meaning  of  Laws  B.  I. 
1912,  c.  831,  art.  I,  §  1,  is  to  be  determ  nsd 
by  ascertaining  whether  the  proximate 
cause  of  the  injuries  received  was  an  ele- 
ment of,  or  arose  out  of,  the  employment, 
as  disassociated  from  the  fact  that  s'ich. 
proximate  cause  was  set  in  motion  or  ai^^ed. 
by  petitioner's  diseased  condition  as  the 
remote  cause.  Carroll  v.  What  Cheer  Sta- 
bles Co.  (R.  L)  1918B-346.       (Anno;a:ed.) 

213.  Injury  Arising  Out  of  Employment 
— ^Watchman.  A  watchman  employed  in  a 
planing  mill,  whose  employees  would,  in- 
dependent of  election,  fall  within  111. 
Workmen's  Compensation  Act  (Laws  1913, 
p.  339,  §  3b),  and  be  entitled  to  compen- 
sation, if  injured  while  protecting  the 
property  at  the  plant  from  suspected  per- 
sons, receives  an  injury  arising  out  of  an 
employment  within  such  section,  and  is 
entitled  to  compensation.  Chicago  Dry 
Kiln  Co.  V,  Industrial  Board  (111.)  1918B- 
645. 

214.  Meddling.  A  workman  was  em- 
ployed to  polish  small  metal  arti  le?  on  a 
buffing  machine,  to  which  was  attached 
an  exhaust  pipe  containing  a  fan  to  carry 
away  dust  from  the  work.  The  exhaust 
system  was  entirely  separate  from  the 
buffing  machine  and  in  charge  of  a  special 
responsible  man.  The  workman  disre- 
garded his  instructions  not  to  meddle  with 
the  exhaust  system,  and  took  off  a  cover 
on  the  pipe  near  the  fan  and  reached  down 
to  recover  a  metal  piece  he  had  accident- 
ally dropped  into  the  system  below  the 
buffing  wheel,  and  was  cut  on  the  hand 
by  the  fan.     It  is  held  that  the  accident 


574 


DIGEST. 

1916C— 1918B. 


was  not  incidental  to  the  work  in  which 
he  was  employed,  and  he  could  not  recover 
compensation.  Eugene  Dietzen  Co.  v.  In- 
dustrial Board  (III.)  I918B-764. 

(Annotated.) 

215.  An  employee  is  engaged  in  the 
course  of  his  employment  when  injury  oc- 
curs within  the  period  of  his  employment, 
at  a  place  where  he  may  reasonably  be, 
and  while  he  is  reasonably  fulfilling  the 
duties  of  his  employment  or  is  engaged  in 
doing  something  incidental  to  it.  Eugene 
Dietzen  Co.  ▼.  Industrial  Board  (HI.) 
1918B-764.  (Annotated.) 

216.  The  scope  of  a  servant's  duties  is 
determined  by  what  he  was  employed  to 
do  and  what  he  actually  did  with  his  em- 
ployer's knowledge  and  consent,  and  an 
employee  injured  when  performing  the  sar- 
vjces  he  was  in  the  habit  of  performing 
is  not  a  volunteer  in  performing  such 
duties.  Eugene  Dietzen  Co.  v.  Industrial 
Board  (Dl.)  19I8B-764.  (Annota.ed.) 

217.  A  master  is  not  liable  for  injuries 
to  a  servant  unless  the  servant  was  at  t^e 
time  in  the  performance  of  some  duty  for 
which  he  was  employed;  and  a  "volunteer" 
is  one  who  introduces  himself  into  matters 
which  do  not  concern  him,  and  does,  or 
undertakes  to  do,  sometbino^  which  he  'S 
not  bound  to  do  or  which  is  not  in  pur- 
suance or  protection  of  any  interest  of 
the  master,  and  which  is  undertaken  in 
the  absence  of  any  peril  requiring  him  to 
act  as  in  an  emergency.  Eugene  Dietzen 
Co.  V.  Industrial  Board  (111.)  1918B-764. 

(Annotated.) 

218.  Where  a  servant  voluntarily  and 
without  direction  from  the  master,  and 
without  his  acquiescence,  goes  into  haz- 
ardous work  outside  of  his  contract  of  hir- 
ing, he  puts  himself  beyond  the  protec- 
tion of  the  master's  implied  undertaking, 
and,  if  injured,  must  sufifer  the  conse- 
quences. Eugene  Dietzen  Co.  v.  Industrial 
Boaid  (111.)  1918B-764.  (Annotated.) 

219.  "VfThere  a  servant  is  employed  to  do 
a  certain  service  and  is  injured  in  the 
performance  of  a  different  service  volun- 
tarily undertaken,  the  master  is  not  liable. 
Eugene  Dietzen  Co.  v.  Industrial  Board 
(111.)   1918^764.  (Annotated.) 

220.  Under  111.  Workmen's  Compenjation 
Act,  §  1  (Kurd's  Rev.  St.  1915-16,  c.  48, 
§  126),  providing  for  compensation  for  ac- 
cidental injuries  "arising  out  of  and  in 
the  course  of  the  employment,"  it  is  not 
suflBcient  that  the  injury  occurs  in  the 
course  of  the  employment,  but  it  must  also 
arise  out  of  the  employment;  that  is,  it 
must  be  an  accident  resulting  from  a  risk 
reasonably  incidental  to  the  employment. 
Eugene  Di'^tzen  Co.  v.  Industrial  Board 
(ni.)    1918B-764.  (Annotated.) 

221.  Fall  of  Wall  on  Adjacent  Premises. 
Where  a  person  vrorking  in  a  shed  is  in- 
jured  by    the   fall   thereon   of   a   wall   on 


adjacent  premises  not  belonging  to  the 
employer,  the  accident  is  one  arising  out 
of  and  in  the  course  of  the  employment 
within  the  Workmen's  Compensation  Act. 
Thorn  v.  Sinclair   (Eng.)   1917D-188. 

(Annotated.) 

222.  Returning  from  Work.  Where  a 
workman  on  a  vessel  leaving  at  the  end 
of  a  day's  work  crosses  a  private  dock 
which  he  is  permitted  to  use  for  that  pur- 
pose and  in  so  doing  falls  off  the  dock  and 
is  drowned,  the  accident  is  one  arising  out 
of  and  in  the  course  of  the  employment 
within  the  meaning  of  a  workmen's  com- 
pensation act.  John  Stewart  &  Son  v. 
Longhurst  (Eng.)  1917D-196. 

(Annotated.) 

223.  Temporary  Interruption  of  Employ- 
ment. An  accident  to  a  railroad  employee 
does  not  arise  out  of  and  in  the  course 
of  his  employment  within  the  meaning  of 
a  workmen's  compensation  act  where,  while 
waiting  at  a  station  for  a  train  to  take 
him  to  his  place  of  work,  he  goes  out  to 
get  water  for  a  meal,  and,  being  free  to 
choose  his  route,  attempts  to  pass  under 
the  trucks  of  a  standing  train,  by  a  move- 
ment of  which  he  is  killed.  Lancashire, 
etc.  B.  Co.  V.  Highley  (Eng.)  1917D-200. 

(Annotated.) 

224.  Injury  Caused  by  Wax.  An  engi- 
neer on  a  steam  trawler  injured  by  the 
vessel  striking  a  mine  laid  by  the  enemy, 
is  entitled  to  compensation,  and  his  right 
is  not  affected  by  the  fact  that  the  skip- 
per took  the  vessel  into  an  area  which  he 
had  been  warned  by  the  navAl  authorities 
to  avoid.  Risdale  v.  S.  S.  Kilmarnock 
(Eng.)   1917C-757.  (Annotated.) 

225.  Necessity  of  Causal  Connection. 
Within  Cal.  Workmen's  Compen^ation  Act 
(St.  1913,  p.  283),  §  12,  an  injury  arises 
out  of  the  employment  if  there  is  a  causal 
connection  between  the  working  conditions 
and  the  injury,  but  not  in  the  absence  of 
such  connection,  nor  if  the  injurv  is  com- 
mon to  persons  regardless  of  tlie  work. 
Kimbol  V.  Industrial  Accident  Commission 
(Cal.)   1917E-312.  (Annotated.) 

226.  Dishwasher.  A  restaurant  dish- 
washer, upon  whom,  while  at  work,  the 
ceiling  falls,  due  to  overload  of  stored 
goods  on  the  upper  floor,  over  which  the 
master  has  no  control,  receives  an  injury 
"arising  out  of  the  employment."  Kimbol 
V.  Industrial  Accident  Commission  (Cal.) 
1917E-312.  (Annotated.) 

227.  If  the  employment  necessarily  ac- 
centuates and  increases  the  danger  to  a 
higher  degree  than  that  to  which  persons 
generally  are  subjected,  then  it  may  fairly 
be  held  that  there  was  such  special  expos- 
ure to  such  danger  as  warrants  a  conclu- 
sion that  the  accident  arose  out  of  the 
employment,  even  though  unexpected  or 
unusual  and  in  no  way  actually  anticioated. 
Kimbol  V.  Industrial  Accident  Commi-sion 
(Cal.)   1917E-312.  (Annotated) 


MASTER  AND  SERVANT. 


575 


228.  Under  the  old  law  the  employer's 
exemption  from  liability  where  he  was  not 
negligent  existed  solely  because  he  was  not 
negligent,  and  not  because  the  injury  did 
not  arise  out  of  the  employment,  and  even 
UEder  Workmen's  Compensation  Act  the 
injury,  to  create  liability,  must  result  from 
a  risk  reasonably  incident  to  the  work. 
Kimbol  V.  Industrial  Accident  Commission 
(Cal.)    1917E-312.  (Annotated.) 

229.  In  determining  whether  injury 
arises  out  of  the  employment,  it  is  imma- 
terial whether  the  danger  was  anticipated, 
or  the  employer  was  free  from  fault,  or 
the  injury  resulted  from  the  act  of  a  third 
party.  Kimbol  v.  Industrial  Accident 
Commission  (Cal.)  1917E-312. 

(Annotated.) 

230.  Street  Accident.  If  an  employee  is 
sent  into  the  street  on  his  employer's  bu  i- 
ness,  an  accident  there  occurring  whereby 
he  is  injured  arises  out  of  and  in  the  cou;S3 
of  his  employment  within  the  Workmen's 
Compensation  Act,  though  the  risk  is  one 
to  which  all  persons  using  the  street  are 
equally  subject.  Dennis  v.  A.  J.  White 
&  Go.  (Eng.)   1917E-325.         (Annotated.) 

Notes. 

What  is  accident  arising  out  of  and  in 
course  of  employment  within  meaning  of 
Workmen's  Compensation  Act.  1918B- 
768. 

Workmen's  Compensation  Act  as  appli- 
cable to  injury  arising  from  war,  1917C- 
760. 

(9)     Serious    and    Wilful    Misconduct    of 
Employee. 

231.  Effect  of  Intoxication  of  Workman. 
Where  a  workman  sustains  an  accidental 
injury  causing  his  death,  while  actually 
engaged  in  the  performance  of  his  duties 
and  from  a  risk  incident  to  his  employ- 
ment, his  dependents  are  entitled  to  com- 
pensation under  the  Workmen's  Compensa- 
tion Act  though  the  proximate  cause  of  the 
accident  was  the  intoxication  of  the  work- 
man. Williams  v.  Llandudno  Coaching, 
etc.  Co.  (Eng.)  1918B-682.        (Annotated.; 

232.  Under  Md.  Workmen's  Compensa- 
tion Act,  §  14,  providing  the  circumstam  es 
under  which  if  injuries  occur  compensation 
shall  be  made,  if  the  deceased  workman 
died  in  an  accident  while  in  the  employ 
of  another,  in  the  course  of  his  employ- 
ment, and  death  was  not  due  to  self- 
iiflieted  injury  or  wilful  misconduct  or  in- 
toxication, compensation  must  be  made, 
and  it  is  presumed,  in  the  absence  of  sub- 
stantial evidence  to  the  contrary,  that 
death  did  not  occur  from  wilful  intention 
or  solely  from  intoxication.  American  Ice 
Co.  V.  Fitzhugh  (Md.)  1917I>-33. 

233.  Under  such  statute,  the  right  to 
compensation  is  cut  off  by  intoxication 
only  if  the  intoxication  was  the  sole  cause 


cf  the  injurv.     American  Ice  Co.  v.  Fitz- 
hugh (Md.)  I917D-33. 

Note. 
Intoxication  of  employee  as  precluding 
recovery  under  Workmen's    Compensation 
Act.     1918B-686. 

(10)     Notice  to  Employer. 

234.  Notice  of  Claim — Time  for  Giving. 
In  proceedings  for  compensation  under  tue 
1918  111.  Workmen's  Compensation  Act, 
evidence  of  formal  notice  of  claim  and  cor- 
respondence in  regard  to  settlement  is  bald 
to  show  claim  made  within  six  months 
after  accident  as  required  by  section  2i; 
the  statute  being  silent  as  to  how  such 
claim  shall  be  made.  Victor  Chemical 
Works  V.  Industrial  Board  (111.)  1918B- 
627. 

235.  Excuse  for  Failure  to  Give — ^Actual 
Notice.  Under  Mich.  Workmen's  Compen- 
sation Act,  pt.  2,  §  18,  providing  that  want 
of  written  notice  shall  not  be  a  bar  to 
proceedings  under  the  act,  if  it  be  shown 
that  the  employer  had  notice  or  knowledge 
of  the  injury,  where  a  street  employee  was 
injured  and  informed  the  superintendent 
cf  public  works  of  the  city,  who  had  charge 
of  work  on  the  streets,  the  latter  men- 
tioning the  matter  to  the  board  of  public 
works,  so  that  all  city  officials  had  notice 
of  the  injury,  the  employee  is  not  barred 
from  obtaining  compensation  under  the  act 
by  his  failure  to  give  written  notice  with- 
in three  months.  Purdy  v.  Sault  Ste. 
Marie  (Mich.)  1917D-881.        (Annotated.) 

236.  Effect  of  Failure  to  Give.  Evidence 
in  an  employer's  action  to  set  aside  an 
award  in  favor  of  an  injured  employee 
is  held  to  sustain  a  finding  that  the  em- 
ployer was  not  prejudiced  by  the  claim- 
ant's failure  to  give  the  statutory  notice 
of  injury.  Pellett  v.  Industrial  Commis- 
sion (Wis.)  1917D-884.  (Annotated.) 

237.  Waiver.  Under  the  express  pro- 
vision of  Wis.  St.  1915,  §2394— 11,  notice 
of  injury  is  waived  by  the  employer's  pay- 
ment within  thirty  days  of  the  injury  of 
the  sum  of  $2  for  loss  of  time  thereby 
caused.  Pellett  v.  Industrial  Commission 
(Wis.)   1917D-884.  (Annotated.) 

238.  In  an  employee's  action  to  set  aside 
an  award  in  favor  of  an  injured  employee, 
evidence  that  the  employee  the  day  after 
his  injury  told  one  of  his  employers  how 
he  fell,  and  that  he  was  hurt,  places  upon 
the  employer  the  burden  of  showing  that 
he  was,  in  fact,  misled  by  the  failure  to 
receive  written  notice  of  the  injury.  Pel- 
lett v.  Industrial  Commission  (Wis.) 
1917D-884.  (Annotated.) 

239.  Necessity.  The  Minn.  Workmen's 
Compensation  Law  is  remedial  in  its  nature 
and  must  be  given  a  liberal  construction 
to  accomplish  the  purpose  intended.  R  la- 
tor's  mai'or  and  street  commissioner  had 


576 


DIGEST. 

1916C— 1918B. 


actual  knowledge  of  tlie  injury  to  the  re- 
spondent immediately  after  the  occurrence 
thereof.  The  knowledge  of  the  mayor  is 
the  knowledge  of  the  city.  Held  that 
where  the  employer  has  actual  knowledge 
of  the  occurrence  of  the  injury,  the  in- 
jured employee  is  not  required  to  give  a 
written  notice  thereof.  State  v.  District 
Court  (Minn.)   1917D-866.       (Annotated.) 

240.  Failure  to  Give — ^WaJit  of  Prejudice 
— Burden  of  Proof.  Though  the  burden  is 
on  an  employee  who  fails  to  give  timely 
written  notice  of  an  injury  as  required 
by  the  Workmen's  Compensation  Act,  to 
show  that  no  prejudice  resulted  to  the 
employer,  if  it  is  shown  that  when  the 
employer  learned  of  the  accident  he  made 
a  full  inquiry  and  there  is  no  evidence  sug- 
gesting that  an  earlier  inquiry  would  have 
been  more  fruitful,  it  is  sufficient  to  cast 
on  the  employer  the  burden  of  showing 
prejudice,  or  to  sustain  a  finding  of  want 
of  prejudice  in  case  of  his  failure  so  to 
do.  Hayward  v.  Westleigh  Colliery  Co. 
(Eng.)  1917D-877.  (Annotated.) 

Note. 

Notice  of  injury  under  Workmen's  Com- 
pensation Act.     1917D-867.  >, 

(11)     Employees  Within  Act. 

241.  Who  is  Workman  —  Casual  Em- 
plojre©.  Under  such  act  it  is  not  part  of 
claimant's  prima  facie  case  to  show  he  was 
not  within  the  class  of  casual  employees 
excepted  by  section  5,  par.  2,  thereoi;  such 
exception  being  matter  of  defense.  Victor 
Chemical  Works  v.  Industrial  Board  (111.) 
1918B-627. 

242.  Municipal  Employee.  A  fireman  of 
the  city  of  Duluth  was  killed  while  in  the 
performance  of  his  duty.  His  dependents 
are  entitled  to  recover  under  the  Minn. 
Workmen's  Compensation  Act.  State  v. 
District  Court  (Minn.)  1918B-635. 

243.  Maritime  Employees  as  Within  Act. 
Although  Rem.  Wash.  Code  1915,  §  6604 — 
2,  includes  in  the  Workmen's  Compensation 
Act  as  extrahazardous  steamboats,  tugs, 
and  fe-rries,  such  provision  does  not  require 
that  the  law  be  construed  to  include  in- 
juries on  ships  lying  in  navigable  waters, 
since  there  are  inland  lakes  over  whifh 
the  •  state  has  sole  jurisdiction  to  which 
such  provision  mav  apply.  Shaughne?8v  v. 
Northland  Steamship  Co.  (Wash.)  191 8B- 
655.  (Annotated.) 

244.  Minor  Illegally  Employed.  Under 
Wis.  Workmen's  Compensation  Law  (St. 
1915,  §§  2394—1  to  2394—31),  §  2394—7, 
Bubd.  2,  declaring  that  the  term  "employee" 
as  used  in  the  law  shall  include  every  per- 
son in  the  service  of  another  under  any 
contract  of  hire,  including  minors  who  ares, 
legally  permitted  to  work  under  the  laws 
of  the  state,  who  for  the  purposes  of  sec- 
tion 2394 — 8,  relating  to  election  by  em- 


ployee?, shall  be  considered  the  same  and 
have  the  same  power  of  contracting  as 
adult  employees,  plaintiff,  who  was  under 
sixteen  y^ars  of  age  at  the  time  of  his 
employment  and  injury,  and  who  had  not 
obtained  a  written  permit  authorizing  his 
employment  under  St.  1915,  §  1728a,  subd. 
1,  forbidding  the  employment  of  children 
between  fourteen  and  sixteen  in  any  fac- 
tory, etc.,  unless  there  is  first  obtained 
from  the  commissioner  of  labor,  etc.,  a 
written  permit  authorizing  the  employment 
of  such  child,  is  not  an  "employee"  whose 
claim  for  injury  is  governed  by  the  Work- 
men's Compensation  Law.  Stetz  v.  F. 
Mayer  Boot,  etc.  Co.  (Wis.)  1918B-675. 

245.  Maritime  Employees.  Rem.  Wash. 
Code  1915,  §  6604—1,  withdraws  from  pri- 
vate controversy  all  phases  of  workmen's 
compensation  to  the  exclusion  of  every 
other  remedy,  proceeding,  or  compensation, 
and  all  civil  actions  and  civil  causes  of  ac- 
tion for  personal  injuries,  and  all  jurisdic- 
tion of  the  courts  of  the  state  thereover  is 
abolished.  Section  6604 — 2  provides  that 
the  act  shall  apply  to  all  inherently  hazard- 
ous work  within  the  jurisdiction  of  the 
state,  and  that  the  term  "extrahaza:dous" 
embraces  work*  about  steamboats,  tugs,  and 
ferries.  Section  6604 — 27  provides  that  if 
any  employer  shall  be  adjudicated  to  be 
outside  the  lawful  scope  of  the  act,  the 
act  shall  not  apply  to  him,  or  to  his  work- 
men. It  is  held  that  a  stevedore  injured 
while  working  in  the  hold  of  a  ship  in  the 
navigable  waters  of  Puget  Sound  was 
not  within  the  act,  and  that  his  other 
rights  and  remedies  remained  unimpaired. 
Shaughnessy  v.  Northland  Steamship  Co. 
(Wash.)  1917B-655.  (Annotated.) 

246.  Since  an  employer  whose  employees 
are  engaged  in  maritime  service  is  not  re- 
quired to  contribute  to  the  accident  fund 
of  the  state,  his  employees  so  engaged  can- 
not lawfully  claim  compensation  from  that 
fund.  Shaughnessv  v.  Northland  Steam- 
ship Co.  (Wash.)  1918B-655.    (Annotated.) 

247.  Where  a  servant  was  injured  while 
working  in  the  hold  of  a  ship  lying  in 
the  navigable  waters  of  Puget  Sound,  the 
question  of  his  compensation  is  subject 
to  controversy  in  admiralty  in  the  federal 
courts,  regardless  of  state  law,  although  he 
was  assisting  only  in  unloading  the  ship, 
and  not  in  its  navigation.  Shaughnessv  v. 
Northland  Steamship  Co.  (Wash.)  191SB- 
655.  (Annotated.) 

248.  Where  an  employer  hires  the  ser- 
vices of  his  team  and  employee  to  another 
to  haul  sand,  the  employee  is  still  work- 
ing for  the  original  employer  when  he  is 
loading  sand  in  a  pit  for  the  rurpose  of 
hauling  it,  and  therefore  is  entitled  to  com- 
pensation from  the  employer.  Dale  v. 
Saunders  (N.  Y.)  1918B-703."  (Annotated.) 

249.  Who  is  "Employee"  Within  Act. 
The  word  "employee"  as  specificallv  de- 
fined  in   N.  Y.   Workmen's   Compensation 


MASTER  AND  SERVANT. 


577 


Act,  §  3,  svihd..  4,  means  a  person  who  is 
engaged  in  a  hazardous  employment  in  the 
service  of  an  employer  carrying  on  or  con- 
ducting the  same  upon  the  premises  or  at 
the  plant,  or  in  the  course  of  his  employ- 
ment away  from  the  plant  of  his  employer. 
Dale  V.  Saunders  (N.  Y.)  1918B-703. 

(Annotated.) 

250.  To  construe  111.  Workmen's  Com- 
pensation Act,  §  3  (Kurd's  Rev.  St.  1913, 
§  128),  as  applying  to  all  the  business  of 
an  employer,  any  part  of  whose  business 
was  extrahazardous,  would  render  the  act 
unconstitutional  as  discriminating  against 
him  in  that  part  of  his  business  not  extra- 
hazardous. Vaughan's  Seed  Store  v.  Sim- 
onini  (111.)   1918B-713. 

251.  Existence  of  Relation  of  Master 
and  Servant.  Plaintiff  visited  an  office  of 
defendant,  seeking  employment,  and  was 
directed  by  the  person  in  charge  thereof  to 
go  to  defendant's  camp  near  a  designated 
town  to  begin  work.  When  he  reached 
the  town,  he  went  to  defendant's  logging 
train,  and  was  there  directed  by  the  engi- 
neer to  place  his  baggage  on  the  pilot  of 
the  engine  and  get  aboard.  He  rode  on 
the  pilot  to  the  logging  ciamp.  Before  leav- 
ing the  immediate  vicinity  of  the  train^ 
he  was  injured.  He  did  not  do  any  work 
or  receive  any  compensation  from  defend- 
ant prior  to  the  accident.  It  is  held  that 
the  relation  between  the  parties  was  that 
of  passenger  and  carrier,  and  not  of  em- 
ployee and  employer,  within  the  Ore. 
Workmen's  Compensation  Act.  Susznik  v. 
Alger  Logging  Co.  (Ore.)  1917C-700. 

252.  Employees  of  Interstate  Railroad. 
The  entire  subject  of  the  liability  of  in- 
terstate railway  carriers  for  the  death  or 
injury  of  their  employees  while  employed 
by  them  in  interstate  commerce  is  so  com- 
pletely covered  by  the  provisions  of  the 
Federal  Emplovers'  Liability  Act  of  April 
22,  1908  (35  Stat,  at  L.  65,  c.  149,  Fed.  St. 
Ann.  1909  Supp.  p.  584),  as  to  prevent  any 
award  under  the  New  York  Workmen's 
Compensation  Act  (N.  Y.  Laws  1913,  c. 
816;  Laws  1914,  cc.  41,  316),  where  an 
employee  was  injured  or  killed  without 
fault  on  the  railway  company's  part  while 
he  was  engaged  in  interstate  commerce, 
although  the  federal  act  gives  the  right  of 
recovery  only  when  the  injury  results  in 
whole  or  in  part  from  negligence  attribu- 
table to  the  carrier.  New  York  Central  B. 
Co.  V.  Winfield  (U.  S.)  1917D-1139. 

(Annotated.) 

253.  Municipal  Corporation.  The  Mich. 
Workmen's  Comnensation  Act  (Pub.  Acts 
Ex.  Sess.  1912,  No.  10)  is  entitled  "An  act 
to  promote  the  welfare  of  the  people  of 
this  state,  relating  to  the  liability  of  em- 
ployers for  injuries  or  death  sustained  by 
their  employees,  providing  compensation 
for  accidental  injury  to  or  death  of  em- 
ployees and  methods  for  the  payment  of 
.  .  .  same,  establishing  an  industrial  acci- 

37 


dent  board  defining  its  powers  providing 
for  a  review  of  its  awards,  making  an  ap- 
propriation to  carry  out  the  provisions 
of  this  act,  and  restricting  the  right  to 
compensation  or  damages  in  such  cases  to 
buch  as  are  provided  (for)  by  this  act," 
and  provides,  in  part  6,  §  5,  that  it  ex- 
pressly repeals  "all  acts  and  parts  of  acts 
inconsistent  with  this  act,"  and  "replaced 
by  this  act."  It  is  held  that  the  charter 
provisions  of  cities  with  respect  to  claims 
which  may  be  made  under  the  compensa- 
tion act  are  superseded  by  its  provisions, 
the  title  of  the  act  being  broad  enough  to 
include  municipal  corporations  that  are 
employers.  Purdy  v.  Sault  Ste.  Marie 
(Mich.)    1917D-881. 

254.  Wlio  Is  Workman — Casual  Labor  for 
Municipality.  An  employee  of  the  city  of 
Northfield  was  injured  while  loading  gravel 
used  by  the  city  for  improving  and  re- 
pairing its  streets.  Though  the  employ- 
ment may  have  been  casual,  it  was  in  the 
usual  course  of  the  business  of  the  city, 
and  the  Minn.  Workmen's  Compensation 
Law  applies.  State  v.  District  Court 
(Minn.)   1917D-866. 

255.  Truck  Driver.  Md.  Acts  1914,  •  t». 
800,  §  32,  enumerating  the  extrahazardous 
employments,  for  death  or  injury  in  which 
the  act  provides  compensation,  includes 
that  of  driving  a  horse-drawn  truck, 
though  it  does  not  expressly  enumerate  it, 
since  subsection  43  makes  the  act  appli- 
cable to  all  extrahazardous  employments 
not  specifically  enumerated,  and  the  words 
"or  other  power,"  as  applied  to  propulsion 
of  vehicles  in  subsection  41,  includes  horse 
power.  American  Ice  Co.  v.  Fitzhugh 
(Md.)  1917D-33.  (Annotated.) 

256.  Farmer  Erecting  Building.  The  111. 
Workmen's  Compensation  Act  (Hurd's 
Eev.  St.  1913,  c.  48,  §§  126-152h);  Laws 
1913,  p.  335,  by  Section  1,  provides  that 
any  employer  may  elect  to  provide  and 
pay  compensation  for  accidental  injuries 
and  thereby  relieve  himself  from  all  fur- 
ther liability.  Section  3,  par.  "b,"  declares 
that  the  section  shall  apply  only  to  an  em- 
ployer engaged  in  the  occupations,  enter- 
prises, or  businesses  of  building,  maintain- 
ing, repairing,  or  demolishing  any  struc- 
ture, of  construction,  of  excavation  or  elec- 
trical work,  of  carriage  by  land  or  water 
and  loading  and  unloading  in  connection 
therewith,  of  warehousing,  of  mining,  of 
enterprises  in  which  explosives  are  manu- 
factured or  handled,  of  enterprises  wherein 
n;olten  metal  or  explosive  or  injurious 
gases,  etc.,  are  manufactured  or  used,  and 
of  enterprises  in  which  statutory  or  mu- 
nicipal ordinance  regulations  shall  be  im- 
posed for  the  guarding  of  machinery,  ea^h 
of  which  occupations,  enterprises,  or  busi- 
nesses is  declared  to  be  extrahazardous. 
Section  5  defines  an  employee  as  every  per- 
son in  the  service  of  another  under  any 
contract  of  hire,  but  not  including  any 
person  whose  employment  is  but  casual,  or 


578 


DIGEST. 

1916C— 1918B. 


is  not  engaged  in  the  usual  course  of  the 
trade,  business,  profession,  or  occupation 
of  his  employer.  A  farmer  engaged  a  car- 
penter to  build  a  corncrib,  and  the  car- 
penter "was  injured  by  a  metal  splinter 
which  flew  off  of  his  hammer.  The  car- 
penter was  engaged  for  no  particular  time, 
but  it  appeared  that  he  was  to  continue 
work  until  the  building  was  fully  com- 
pleted. It  is  held  that  as  the  farmer  was 
not  engaged  in  the  business  or  occupation 
of  building,  and  as  the  construction  of  the 
corncrib  could  not  be  classed  as  an  enter- 
prise which  is  an  undertaking  of  hazard, 
nor  could  it  be  considered  as  an  extra- 
hazardous business,  the  statute  is  not  ap- 
plicable; the  farmer  not  having  elected  to 
come  within  its  provisions,  which  did  not 
include  the  occupation  of  farming.  Up- 
hoff  V.  Industrial  Board  (111.)  1917D-1. 

(Annotated.) 

257.  Hazardous  Employments — Elevator 
Operator  in  Store.  The  business  of  selling 
glassware  is  not  "hazardous,"  and  an  em- 
ployee injured  operating  an  elevator  in 
such  business  cannot  recover  under  the  N. 
Y.  Workmen's  Compensation  Law.  Wilson 
V.  Dorflinger  (N.  Y.)  1917D-38. 

(Annotated.) 

258.  Janitor  In  Office  Building.  A  jan- 
itor in  an  office  building  was  injured  while 
scrubbing  down  the  walls  and  floors  of 
the  elevator  shaft  beneath  the  cage.  The 
elevator  was  operated  by  electricity.  The 
Wiorkmen's  Compensation  Act  (3  Rem.  & 
Bal.  Wash.  Code,  §  6604 — 1  et  seq.)  pro- 
vides, in  section  2,  that  the  act  shall  apply 
to  all  inherently  hazardous  employments, 
including  factories,  mills,  and  workshops 
where  machinery  is  used.  Section  3  de- 
fines a  workshop  as  a  room  or  place  where- 
in power-driven  machinery  is  employed 
and  manual  labor  is  exercised  by  way  of 
trade  for  gain  or  otherwise.  It  is  neld 
that  though  the  elevator  was  operated  by 
electricity,  the  shaft  could  not  be  consid- 
ered a  workshop,  and  the  janitor's  rights 
were  not  governed  by  the  statute.  Eem- 
snider  v.  Union  Savings,  etc.  Co.  (Wash.) 
1917D-40.  (Annotated.) 

259.  Where  neither  the  work  of  a  janitor 
in  an  office  building  nor  employment  about 
an  elevator  shaft  had  been  classified  as 
extrahazardous  by  the  Industrial  Insurance 
Department  as  authorized  by  Wash.  Wo.k- 
men's  Compensation  Act,  §  2,  an  injury  to 
n  person  engasred  in  such  employment  is 
not  governed  by  the  statute.  Remsnider 
V.  Union  Savings,  etc.  Co.  (Wash.)  1917D- 
40.  (Annotated.) 

260.  Employments  Included — Policeman. 
The  Kan.  Workmen's  Compensation  Act 
(Laws  1911,  c.  218,  as  amended  by  Laws 
1913,  c.  216)  does  not  apply  to  the  case 
of  a  policp  officer  of  a  city  who  is  killed 
in  the  d'seharsre  of  his  duties.  Griswold  v. 
Wichita  (Kan.)   1917D-31.       (Annotated.) 


261.  Policeman  as  "Workman."  A  police 
officer  of  a  city  of  the  first  class  is  not  a 
"workman"  as  defined  by  the  compensation 
act.  Griswold  v.  Wichita  (Kan.)  1917D- 
3L 

262.  Maritime  Employees.  The  applica- 
tion to  an  injury  sustained  by  a  longshore- 
man while  he  was  unloading  in  a  New 
York  port  an  ocean-going  steamship  owned 
by  a  nonresident  corporation,  and  plying 
between  ports  of  different  states,  of  the 
provisions  of  the  New  York  Workmen's 
Compensation  Act  (N.  Y.  Laws  1913,  c. 
816;  Laws  1914,  cc.  41,  316),  which,  in  lieu 
of  the  common-law  liability  enforceable 
by  suit  in  cases  of  negligence,  imposes  a 
liability  upon  employers,  enforceable  with- 
out judicial  action,  to  make  compensation 
for  disabling  or  fatal  accidental  injuries 
to  employees,  without  regard  to  fault  as 
a  cause,  graduating  compensation  for  dis- 
abilities according  to  a  prescribed  scale 
based  upon  loss  of  earning  power,  and 
measuring  death  benefits  according  to  the 
dependency  of  the  surviving  wife,  hus- 
band, or  infant  children,  renders  the  stat- 
ute, to  that  extent,  invalid  as  conflicting^ 
with  U.  S.  Const,  art.  3,  §  2  (9  Fed.  St. 
Ann.  74),  extending  the  judicial  power  of 
the  United  States  to  all  cases  of  admiralty 
and  maritime  jurisdiction,  U.  S.  Const,  art, 
],§8  (8  Fed,  St.  Ann.  674),  giving  Con- 
gress power  to  make  all  laws  necessary 
and  proper  to  carry  into  execution  the 
powers  vested  in  the  federal  government, 
and  U.  S.  Judicial  Code,  §§  24,  256  (4  Fed. 
St.  Ann.  (2d  ed,)  838;  5  Id.  921),  giving 
federal  district  courts  exclusive  judicial 
cognizance  of  all  civil  causes  of  admiralty 
and  maritime  jurisdiction,  saving  to  suit- 
ors in  all  cases  the  right  to  a  common-law 
remedy  where  the  common  law  is  compe- 
tent to  give  it,  being  also  inconsistent 
with  the  policy  of  Congress  to  encourage 
investments  in  ships,  manifested  by  U.  S. 
Rev.  Stat.  §§  4283-4285,  4  Fed.  St.  Ann. 
839,  Act  of  June  26,  1884  (23  Stat,  at  L. 
57,  c.  121,  4  Fed.  St.  Ann.  852),  §  18,  which 
declare  a  limitation  upon  the  liability  of 
their  owners.  Southern  Pacific  Co,  v.  Jen- 
sen  (U.  S.)   1917E-900.  (Annotated.) 

263.  Who  is  Employer — Workman  Em- 
ployed by  Several  Persons.  Where  a  night 
watchman  is  employed  by  six  different 
firms  each  acting  independently  of  the 
others  in  making  its  agreement  with  the 
watchman,  they  do  not  compose  a  volun- 
tary association  employing  him  within  Cal. 
Workmen's  Compensation  Act,  §  13.  West- 
ern Metal  Supply  Co.  v.  Pillsbury  (Cal.) 
1917E-390. 

264.  Under  the  Cal.  Workmen's  Comp^n- 
pation  Act  of  1913,  section  13  of  which 
defines  an  "employer"  as  every  person, 
firm,  voluntary  association,  and  private 
corporation  who  has  dny  person  in  service 
under  any  appointment  or  contract  of  hire, 
and  section  14  of  which  defines  "employee" 


MASTER  AND  SERVANT. 


579 


as  every  person  in  the  service  of  an  em- 
ployer under  any  appointment  or  contract 
of  hire,  even  if  the  relation  is  the  same 
as  that  of  master  and  servant  under  Civ. 
Code,  §  2009,  defining  a  "servant"  as  one 
who  is  employed  to  render  personal  service 
to  his  employer  otherwise  than  in  the  pur- 
suing of  an  independent  calling  and  who 
in  such  service  remains  entirely  under  the 
control  and  direction  of  the  latter,  a  night 
watchman,  who  was  employed  by  six  dif- 
ferent firms  each  acting  independently  of 
the  other,  is  an  employee  of  the  one  on 
whose  premises  he  was  killed  while  in 
the  discharge  of  his  duties.  Western 
Metal  Supply  Co.  v.  Pillsbury  (Cal.) 
1917E-390. 

Notes. 
Occupations  or  employments  within  pur- 
view  of    Workmen's    Compensation  Acts. 
1917D-4. 

Who  is  "workman"  within  meaning  of 
Workmen's  Compensation  Act.  1918B- 
704. 

Eailroad  employees  as  within  purview 
of  Workmen's  Compensation  Act.  1918B- 
664. 

Person  employed  in  violation  of  law  as 
entitled  to  compensation  under  Workmen's 
Compensation  Act.     1918B-679. 

(12)     Dependents. 

265.  Beneficiaries  —  Nonresident  Alien. 
The  111.  Workmen's  Compensation  Act  of 
1913,  entitled  "An  act  to  promote  the  gen- 
eral welfare  of  the  people  of  this  state  by 
providing  compensation"  for  workmen,  and 
by  section  5  defining  the  term  "employee," 
as  used  in  the  act,  to  include  aliens,  ap- 
plies to  nonresident  alien  dependents 
claiming  as  beneficiaries  thereunder;  for 
the  general  welfare  of  the  people  of  the 
state  might  well  be  promoted  by  providing 
compensation  for  accidental  injuries  or 
death  suffered  by  aliens,  as  well  as  citi- 
zens, in  the  course  of  employment  within 
the  state,  since  many  alien  dependents  re- 
side in  the  state,  and  the  people  of  the 
state  would  be  interested  in  not  having 
aliens,  as  well  as  citizens,  become  charges 
upon  the  community  by  reason  of  injuries 
suffered  in  employment.  Victor  Chemical 
Works  V.  Industrial  Board  (111.)  1918B- 
627.  (Annotated.) 

266.  Who  is  Dependent.  Mere  ability 
to  earn  a  livelihood  will  not  prevent  one 
from  being  considered  a  "dependent"  under 
the  Workmen's  Compensation  Act,  even 
though  the  person  furnishing  the  support 
possesses  less  income  than  the  alleged  de- 
pendent; the  test  being  whether  the  al- 
leged dependent  relied  upon  contributions 
of  the  employee,  wholly  or  partially,  for 
living  expenses  necessary  and  proper  to 
the  class  and  position  in  life  of  the  claim- 
ant. Blanton  v.  Wheeler,  etc.  Co.  (Conn.) 
1918B-747.  (Annotated.) 


267.  Under  the  Conn.  Workmen's  Com- 
pensation Act,  a  dependent  cannot  be  said 
to  be  one  who  has  sufficient  means  at  hand 
for  supplying  present  necessities  according 
to  the  class  and  position  in  life  of  the  al- 
leged dependent.  Blanton  v.  Wheeler,  etc. 
Co.  (Conn.)   1918B-747.  (Annotated.) 

268.  A  married  daughter  living  with  her 
husband  and  supporting  herself  with  his 
aid  is  not  "dependent"  upon  her  father, 
where  she  received  no  contributions  from 
him  for  six  months  prior  to  his  death, 
Blanton  v.  Wheeler,  etc.  Co.  (Conn.) 
1918B-747.  (Annotated.) 

269.  Dependency  is  to  be  determined  in 
accordance  with  the  fact  as  the  fact  may 
be  at  the  time  of  the  injury.  Blanton  v. 
Wheeler,  etc.  Co.  (Conn.)  1918B-747, 

(Annotated.) 
Notes. 

Who  is  "dependent"  within  Workmen's 
Compensation  Act.     1918B-749. 

Kesidence  of  beneficiary  as  affecting 
right  to  compensation  under  Worlimen's 
Compensation  Act.     1918B-635. 

(13)'    Compensation. 

270.  Although  the  employer  is  required 
to  report  whether  injury  arose  out  of  and 
in  the  course  of  employment  of  the  in- 
jured person,  that  does  not  restrict  compen- 
sation to  injuries  so  arising.  Stertz  v.  In- 
dustrial Ins,  Commission  (Wash.)  1918B- 
354. 

271.  Average  Weekly  Earnings — Compu- 
tation. That  a  workman  had  been  in  the 
service  of  an  employer  but  seven  weeks 
when  he  was  injured  and  that  the  service 
in  question  was  in  the  winter  when  shorter 

,  hours  were  worked  make  it  proper  to  com- 
pute his  "average  weekly  earnings"  on  the 
average  earnings  of  others  in  the  same 
employment  and  not  on  his  actual  earn  ngs 
in  that  employment.  Cox  v.  Trollope 
(Eng.)    1918B-637.  (Annotated.) 

272.  Effect  of  Receipt  of  Other  Benefits. 
The  fact  that  deceased  was  a  member  of 
the  Duluth  Firemen's  Belief  Association 
and  that  his  dependents  draw  benefi^8 
therefrom,  does  not  bar  recovery  of  com- 
pensation nor  reduce  the  amount  thereof. 
State  v.  District  Court  (Minn.)  1918B- 
635.  (Annotated.) 

273.  Average  Weekly  Wages — How  De- 
termined. Compensation  provided  for  by 
Mich.  Employers'  Liability  and  Workmen's 
Compensation  Act  (Pub.  Acts,  Extra  Ses?. 
1912,  Xo.  10),  being  based  on  the  average 
weekly  wages  of  the  injured  or  deceased 
employee,  50  per  cent  of  which  is  to  b3 
paid  weekly  to  him  or  his  dependents  for 
various  periods  of  time,  according  to  the 
nature  of  the  injury  or  the  length  of  the 
disability,  the  average  weekly  wages  of 
the  employee  must  always  be  determined 
by   dividing   his   average  earnings  by  52. 


580 


DIGEST. 

19160— 1918B. 


Andrejwsld  ▼.  Wolverine  Coal  Co.  (Mich.) 
1916D-724.  (Annotated.) 

274.  Mich.  Employers'  Liability  and 
Workmen's  Compensation  Act  (Pub.  Acts, 
Extra  Sess.  1912  No.  10),  §  11,  pt.  2,  pro- 
vides (1)  that  tne  term  "average  weekly 
wages,"  as  used  in  the  act,  means  one 
fifty-second  part  of  the  average  annual 
earnings  of  the  employee;  and  (2)  if  he 
has  not  worked  in  the  employment  in 
which  he  was  working  at  the  time  of  the 
accident  during  substantially  the  whole  of 
the  year  immediately  preceding  his  injury, 
Lis  average  annual  earnings  shall  consist  of 
300  times  the  average  daily  wage  or  salary 
which  he  has  earned  in  such  employment 
during  the  days  when  so  employed;  and  (^) 
if  he  has  not  worked  in  such  employment 
during  substantially  the  whole  of  such  im- 
mediately preceding  year,  his  average 
earnings  shall  consist  of  300  times  the 
average  daily  wage  or  salary  which  an 
employee  of  the  same  class,  working  stfb- 
etantially  the  whole  of  such  immediately 
preceding  year  in  the  same  or  similar  em- 
ployment in  the  same  or  neighboring  place, 
would  have  earned  during  the  days  when 
60  employed;  and  (4)  in  ^ases  where  the 
foregoing  methods  of  arriving  at  the  aver- 
age annual  earnings  cannot  reasonably  and 
fairly  be  applied,  such  earnings  shall  be 
such  sum  as,  having  regard  to  the  previous 
earnings  of  the  injured  employee,  and  of 
others  of  the  same  or  most  similar  class, 
etc.,  shall  reasonably  represent  the  annual 
earning  capacity  of  the  injured  employee 
at  the  time  of  the  accident.  It  is  held, 
that  the  term  "average  annual  earnings" 
means  the  employee's  average  annual  earn- 
ings in  the  employment  in  which  he  was 
engaged  at  the  time  of  the  injury,  and 
that  the  first  three  classes  applied  to  em- 
ployments wherein  operations  are  carried 
en  for  substantially  the  entire  year,  and 
hence  where  the  employment  is  of  such  a 
character  that  operations  are  conducted 
during  only  a  portion  of  the  year,  and  the 
employee  is  compelled  to  seek  other  em- 
ployment during  the  balance,  compensation 
for  his  death  must  be  determined  under 
the  fourth  subdivision.  Andrejwski  v. 
Wolverine  Coal  Co.   (Mich.)   1916D-724. 

(Annotated.) 

275.  Mich.  Employers'  Liability  and 
Workmen's  Compensation  Act  (Pub.  Acts, 
Extra  Sess.  1912,  No.  10),  §  11,  pt.  2,  pro- 
vides (4)  that,  where  the  average  annual 
earnings  of  an  employee  cannot  be  arrived 
at  by  the  methods  provided  in  the  three 
preceding  paragraphs,  such  annual  earn- 
ings shall  be  taken  as  such  sum  as,  having 
regard  to  the  previous  earnings  of  the 
injured  employee,  and  all  other  employees 
ot  the  same  or  similar  class,  working  in 
the  same  or  similar  employment,  in  the 
same  or  neighboring  locality,  shall  reason- 
ably represent  the  annual  earning  capacity 
of  the  injured  employee  at  the  time  of 
the  accident,  in  the  employment  in  which 


he  was  working  at  the  time.  Decedent, 
when  injured,  was  working  as  a  coal  miner. 
During  the  years  1909  to  1912  the  average 
number  of  days  the  mines  were  operated 
in  the  district  was  211,  and  from  1904  to 
1911  the  wages  paid  to  decedent  amounted 
to  $5,175.21.  It  is  held,  that  the  average 
annual  earnings  of  deceased,  taken  as  a 
basis  for  his  compensation  under  (4),  was 
$575.02,  though,  during  the  time  he  was 
not  engaged  in  mining,  he  was  otherwise 
employed.  Andrejwski  v.  Wolverine  Coal 
Co.  (Mich.)   1916D-724.  (Annotated.) 

276.  "Average  Weekly  Earnings" — Cas- 
ual Laborer.  Where  an  injured  employer 
has  been  for  over  three  years  employed  as 
a  casual  laborer  by  the  person  in  whose 
service  he  was  injured,  but  has  during  that 
time  also  worked  casually  for  others,  his 
"average  weekly  earnings"  are  to  be  cal- 
culated on  the  average  of  the  earninga 
of  similar  laborers  in  the  employment  in 
which  he  was  injured,  and  not  by  aggre- 
gating his  earnings  in  all  employments. 
Cue  v.  Port  of  London  Authority  (Eng.) 
1916C-887.  (Annotated.) 

277.  Average  Weekly  Earnings — Tips  of 
Ballroad.  Porter.  In  computing  the  aver- 
age weekly  earnings  of  a  railroad  porter 
for  the  purpose  of  awarding  compensation 
under  the  Workmen's  Compensation  Act 
the  tips  received  by  him  as  an  incident 
of  his  service  are  to  be  included  as  a  part 
of  his  earnings.  Great  Western  R.  Co.  v. 
Helps  (Eng.)  1918B-1120.        (Annotated.) 

278.  Termination  of  Allowance  —  Mar- 
riage of  Beneficiary.  Under  Md.  Work- 
men's Compensation  Law  (Acts  1914,  c. 
800,  §  35,  fixing  compensation  for  partly 
dependent  persons,  and  providing  for  de- 
termination of  questions  of  dependency 
according  to  the  facts  existing  at  the  time 
of  the  injury  resulting  in  death  to  the  em- 
ployee, section  42,  providing  that  on  mar- 
riage of  a  dependent  widow  her  compen- 
sation shall  cease,  and  section  53,  giving 
the  commission  power  to  change  or  modify 
former  findings  or  orders,  the  subsequent 
marriage  of  a  partly  dependent  sister  of 
a  deceased  employee  does  not  determine 
her  right  to  compensation  awarded  her  by 
the  commission  and  authorize  the  commis- 
sion to  abate  it.  Adleman  v.  Ocean  Acci- 
dent, etc.  Corp.  (Md.)  1918B-730. 

(Annotated.) 

279.  Eights  of  Beneficiary  —  Vesting  of 
Award.  An  award  of  compensation  from 
the  state  insurance  fund,  under  section  35 
or  the  Workmen's  Compensation  Act  (103 
O.  L.  72).  to  a  wholly  dependent  person 
vests  in  the  dependent  when  the  award  is 
made;  so  that,  in  case  of  the  death  of 
such  dependent,  his  or  her  personal  repre- 
sentative is  entitled  to  the  balance,  if  any, 
remaining  unpaid.  State  v.  Industrial 
Commission  (Ohio)   1917D-1162. 

(Annotated.) 

2.80.  Commutation  of  Award.     The  word 

"commute,"    as    employed   in    Ohio    Work- 


MASTER  AND  SERVANT. 


581 


men's  Compensation  Act  (103  O.  L.  88), 
§  40,  providing  that  the  board  of  awards, 
under  special  circumstances,  may  commute 
periodical  payments  to  one  or  more  lump 
payments,  means  that  the  board  may  pay 
the  defendant  something  less  than  he  other- 
wise would  receive.  State  v.  Industrial 
Commission  (Ohio)  1917D-1162. 

281.  Total  Disability— Effect  of  Previous 
Partial  Disability.  Mich.  Pub.  Acts,  Ex. 
Sess.  1912,  No.  10,  pt.  2,  §  9,  provides  that, 
while  the  incapacity  for  work  resulting 
from  an  injury  is  total,  the  employer  shall 
pay  a  weekly  compensation  equal  to  one- 
half  of  the  employee's  wages,  but  not  to 
exceed  $10.  Section  10  declares  that, 
while  the  incapacity  is  partial,  the  injured 
employee  shall  be  entitled  to  compensation 
equal  to  one-half  the  difference  between 
his  average  weekly  wages  before  the  in- 
jury and  those  he  is  able  to  earn  there- 
after, that  for  the  loss  of  an  eye  he  shall 
recover  as  compensation  fifty  per  cent  of 
the  average  weekly  wages  during  one  hun- 
dred weeks,  and  that  the  loss  of  both  eyes 
or  both  legs  shall  constitute  a  total  and 
permanent  disability.  The  claimant  had 
in  a  previous  accident  lost  one  eye.  There- 
after he  lost  his  remaining  eye.  It  is  held 
that  the  injury  could  not  be  considered 
as  a  total  disability,  and  he  was  entitled 
only  to  one-half  of  his  weekly  wages  for 
one  hundred  weeks.  Weaver  v.  Maxwell 
Motor  Co.  (Mich.)  1917E-238. 

(Annotated.) 

282.  Average  Animal  Earnings  —  Work- 
men Employed  by  Several  Persons.  Under 
the  Cal.  Workmen's  Compensation  Act  of 
1913,  which  provides  as  compensation  for 
the  death  of  a  workman  a  percentage  of 
the  average  annual  earnings  of  the  de- 
ceased employee,  and  section  17  of  which 
prescribes  the  rules  for  computing  earn- 
ings of  employees,  and  in  several  of  its 
subsections  contemplates  the  payment  of 
awards  not  based  on  earnings  received 
from  the  employer  in  whose  service  the 
employee  was  injured,  the  earnings  of  a 
night  watchman  independently  employed 
by  six  different  firms  is  the  amount  he  re- 
ceived from  all  of  the  firms,  not  the  amount 
he  received  from  the  employer  in  whose 
service  he  was  killed.  Western  Metal 
Supply  Co.  V.  Pillsbury  (Cal.)   1917E-390. 

283.  Eight  to  Compensation — Injury  not 
Impairing  Earning  Capacity.  Under  E.  I. 
Workmen's  Compensation  Act,  (art.  2, 
§  11)  an  employee  is  entitled  to  compen- 
sation only  when  actually  incapacitated, 
and  a  permanent  physical  injury  does  not 
of  itself  warrant  compensation.  Weber  v. 
American  Silk  Spinning  Company  (R.  I.) 
1917E-153.  (Annotated.) 

Notes. 

Total  disabilitv  under  Workmen's  Com- 
pensation Act.     i917E-240. 

Lump  sum  award  under  Workmen's  Com- 
pensation Act.     1918B-694. 


Bight  to  compensation  under  Workmen's 
Compensation  Act  as  dependent  on  loss  of 
earning  capacity.     1917E-156. 

Award  or  right  to  compensation  under 
Workmen's  Compensation  Act  as  vesting 
in  beneficiary.     1917D-1169. 

Receipt  of  insurance  or  other  benefit  as 
affecting  right  to  compensation  under 
Workmen's  Compensation  Act.     1918B-635. 

(14)     Proceedings  Under  Act. 

S84.  Eules  of  Evidence.  Under  N.  Y. 
Workmen's  Compensation  Law,  §  68,  pro- 
viding that  technical  rules  of  evidence  or 
procedure  are  not  required,  but  the  commis- 
sion in  making  an  inquiry,  or  conducting 
a  hearing,  shall  not  be  bound  by  common 
law  or  statutory  rules  of  evidence,  hearsay 
testimony  is  admissible,  and  the  award  of 
the  commission  cannot  be  overturned  on 
account  of  any  alleged  error  in  receiving 
evidence.  Carroll  v.  Knickerbocker  Ice 
Co,  (N.  Y.)  1918B-540. 

285.  Such  statute  does  not,  however, 
affect  the  probative  force  to  be  given  such 
testimony,  but,  as  further  therein  provided, 
the  commission  must  ascertain  the  substan- 
tial rights  of  the  parties,  and  to  sustain 
an  award  there  must  be  legally  sufficient 
evidence.  Carroll  v.  Knickerbocker  Ice 
Co.  (N.  Y.)  1918B-540. 

286.  Declaration  of  Employee  as  to  Cause 
of  Injury.  Hearsay  testimony  of  state- 
ments of  deceased  servant  while  in  nervoud 
condition  suffering  from  delirium  tremens 
in  hospital  that  he  was  injured  when  a 
heavy  cake  of  ice  fell  upon  him  is  insuffi- 
cient to  overcome  positive  evidence  of  wit- 
nesses that  no  ice  fell  upon  him,  being  in 
fact  no  evidence.  Carroll  v.  Knicker- 
bocker Ice  Co.  (N.  Y.)  1918B-540. 

(Annotated.) 

287.  Dependency  —  Sufficiency  of  Evi- 
dence. In  proceedings  under  the  111.  1913 
Workmen's  Compensation  Act  evidence  is 
held  to  support  a  finding  of  the  board  that 
deceased  left  parents,  to  whose  support 
he  had  within  five  years  contributed.  Vic- 
tor Chemical  Works  v.  Industrial  Board 
(111.)    1918B-627. 

288.  Applicability  of  Rules  by  Legal  Pro- 
cedure. A  proceeding  for  compensation 
under  the  111.  Workmen's  Compensation 
Act  of  1913  is  not  a  proceeding  at  law,  and 
is  not  altogether  governed  by  the  rules  of 
legal  proceedings.  Victor  Chemical  Works 
V.  Industrial  Board   (111.)   1918B-627. 

289.  Evidence  Admissible  —  Verdict  of 
Coroner's  Jury.  In  such  proceedings  "the 
verdict  of  the  coroner's  jury  impaneled  to 
inquire  into  the  death  is  proper  evidence, 
since  such  proceedings  take  the  place  of 
the  ordinary  action  on  the  case  for  negli- 
gence, in  which  such  evidence  was  proper. 
Victor  Chemical  Works  v.  Industrial  Board 
(111.)    1918B-627. 


582 


290.  Medical  Referee — Duties, 
ical  referee  sitting  as  an  assessor  with  the 
judge  hearing  a  claim  under  the  Work- 
men's Compensation  Act  should  not  be  per- 
mitted to  cross-examine  witnesses  or  other- 
wise take  part  in  the  conduct  of  the 
hearing.  Earwicker  v.  London  Graving 
Dock  Co.  (Eng.)  1918B-665. 

291.  Medical  Examination  of  Workma-n, 
An  application  by  the  employer  for  a  medi- 
cal examination  of  an  injured  workman 
claiming  the  benefit  of  the  Workmen's 
Compensation  Act  is  not  a  nullity  because 
it  was  not  made  until  the  hearing,  and 
while  it  may  be  that  the  trial  judge  may 
in  his  discretion  deny  an  application  made 
at  that  time,  he  must  rule  on  it.  Accord- 
ingly where  no  note  of  the  proceeding  was 
taken,  and  no  ruling  on  the  application  ap- 
pears, a  new  trial  must  be  granted.  Ear- 
wicker  V.  London  Graving  Dock  Co.  (Eng.) 
1918B-665.  (Annotated.) 

292.  Absence  of  Dependents — Award  to 
State.  The  failure  of  the  court,  after  find- 
ing claimant  was  not  a  dependent  of  a 
deceased  employee,  to  award  the  sum  of 
$750  to  the  state  treasurer  can  be  ob- 
jected to  only  by  the  state,  and  not  by 
the  claimant.  Blanton  v.  Wheeler,  etc.  Co. 
(Conn.)  1918B-747. 

293.  Stipulation  as  to  Cause  of  Injury. 
Where  a  molder  was  injured  by  a  splash 
of  molten  iron  into  his  right  eye,  aad 
after  ample  opportunity  for  investigation 
an  agreement  as  to  compensation  was  en- 
tered into  between  him  and  a  casualty  com- 
pany insuring  the  employer's  liability  un- 
der the  Mich,  Workmen's  Compensation 
Act  (Pub.  Acts  1912  [Ex,  Sess.]  No,  10), 
in  which  it  was  recited  that  the  nature 
and  cause  of  injury  and  ground  of  claim 
was  molten  iron  splashed  into  right  eye, 
causing  a  bad  burn  in  the  corner  of  the 
eye,  such  agreement,  when  approved  by 
the  industrial  accident  board,  and  an  order 
for  compensation  entered  in  accordance 
therewith,  were  conclusive  as  to  the  cause 
of  the  injury,  so  that  in  a  subsequent  pro- 
ceeding to  terminate  compensation,  it 
could  not  be  successfully  claimed  that  the 
defect  in  the  eye  at  the  time  of  the  order 
was  the  result  of  senile  cataract.  Estate 
of  Beckwith  v.  Spooner  (Mich.)  1916E'- 
886.  (Annotated.) 

294.  Conclusiveness  of  Findings.  Find- 
ings of  the  industrial  accident  board  that 
an  injured  employee's  condition  was  the 
result  of  injury  and  not  of  senile  cataract 
could  not  be  set  aside  on  petition  for  re- 
view, unless  the  court  could  say  from  the 
whole  record  as  a  conclusion  of  law  that 
the  board  must  have  found  from  the  evi- 
dence as  a  conclusion  of  fact  that  the 
cataract  in  the  eye  was  senile  and  not 
traumatic.  Estate  of  Beckwith  v,  Spooner 
(Mich.)    1916E-886.  (Annotated.) 

295.  Where  compensation  was  granted  to 
an  injured  employee  under  an  agreement 


DIGEST. 

1916C— 1918B. 

A   med-       providing  that  he  had  sustained  an  injury 


to  the  eye  as  the  result  of  traumatism, 
evidence  on  a  petition  to  terminate  the 
compensation  held  not  to  require  the  in- 
dustrial accident  board  as  a  matter  of  law 
to  find  that  the  condition  was  not  trau- 
matic, but  senile.  Estate  of  Beckwith  v. 
Spooner  (Mich.)  1916E-886.    (Annotated.) 

296.  Applicability  of  Rules  of  Judicial 
Procedure,  While  the  Mich,  Workmen's 
Compensation  Act  (Pub.  Acts  [Ex.  Sess.] 
1912,  No  10)  contemplates  the  prompt 
adjustment  of  controversies  by  summary 
proceedings  under  a  simplified  procedure, 
unhampered  by  the  technical  forms  and  in- 
tervening steps  of  regular  litigation,  it  in- 
dicates clearly  an  intent  that  the  funda- 
mental principles  of  a  judicial  inquiry 
shall  be  observed.  Reck  v,  Whittlesberger 
(Mich,)  1916C-771. 

297.  Admissibility  of  Evidence — Declara- 
tions of  Injured  Workman  as  to  Cause  of 
Injury.  In  a  proceeding  under  the  Mich. 
Workmen's  Compensation  Act  (Pub.  Acts 
[Ex,  Sess,]  1912,  No,  10),  hearsay  evidence 
should  not  be  admitted  and  made  the  basis 
of  findings  of  fact  and  accordingly  a  self- 
serving  declaration  by  an  injured  work- 
man as  to  the  cause  of  his  injury  is  not 
admissible.  Reck  v.  Whittlesberger  (Mich.) 
1916C-771.  (Annotated.) 

298.  Report  by  Employer  to  Commission 
— Effect  as  Evidence.  In  a  proceeding  un- 
der the  Mich.  Workmen's  Compensation 
Act  (Pub.  Acts  [Ex.  Sess.]  1912,  No.  10), 
a  report  to  the  industrial  accident  board 
by  the  employer,  made  before  the  death 
of  the  employee,  and  at  a  time  when  he 
had  ample  opportunity  to  investigate,  and 
all  sources  of  information  were  fresh  and 
available,  stating  that  the  employee  was 
injured  by  running  a  nail  into  his  hand 
while  throwing  wood  into  a  furnace,  and 
a  second  report  after  the  death  stating 
that  he  was  injured  by  scratching  his 
hand  on  a  nail,  constitutes  prima  facie 
evidence  that  the  accident  and  injury  oc- 
curred as  reported,  and  supports  a  finding 
of  the  board  that  such  injury  arose  out 
of,  and  in  the  course  of,  the  employment. 
Reck  V.  Whittlesberger  (Mich.)  1916C- 
771. 

299.  Finding  as  to  Dependency.  A  find- 
ing that  a  claimant  for  compensation  un- 
der the  Conn.  Workmen's  Compensation 
Act  (Pub,  Acts  1913,  e.  138)  relied  upon 
sums  sent  her  by  a  deceased  employee 
"for  expenses"  is  not  equivalent  to  a  find- 
ing that  she  relied  on  them  for  living  ex- 
penses necessary  and  proper  for  her  class 
and  station  in  Hfe.  Blanton  v.  Wheeler, 
etc.  Co,  (Conn.)   1918B-747, 

300.  Motion  to  Recommit.  Upon  appeal 
from  award  of  compensation  commissioner, 
a  motion  that  the  finding  and  award  be 
recommitted  with  direction  should  be  in 
writing,  where  it  appears  that  neither  side 
will  produce  evidence,  Blanton  v.  Wheeler, 
etc.  Co.   (Conn.)   1918B-747. 


MASTER  AND  SERVANT. 


(88 


301.  Notice     of    Heaxing  —  Form     and 

Bequisites.  Under  Wis.  St.  1915,  §  2394 — 
16,  providing  that  the  industrial  commis- 
sion shall  cause  notice  of  the  hearing  em- 
bracing a  general  statement  of  the  claim 
to  be  given  to  each  party  interested,  either 
a  copy  of  the  application  for  compensation 
should  be  attached  to  the  notice,  or  else 
it  should  contain  a  statement  of  the  time, 
place,  and  general  nature  of  the  injury 
claimed  to  have  been  received.  Pellett  v. 
Industrial  Commission  (Wis.)   1917D-884, 

302.  Reopening  of  Hearing — Procedure — 
Evidence  Previously  Taken.  Where  a  pro- 
ceeding for  compensation  under  the  Wis. 
Workmen's  Compensation  Act  (St.  1915, 
§  2394 — 1  et  seq.)  is  opened  to  allow  the 
employer  to  cross-examine  the  claimant 
and  to  introduce  evidence  in  chief,  no  er- 
ror is  committed  by  not  compelling  the 
claimant  to  put  in  his  evidence  anew,  as 
the  commission  may  let  sach  evidence 
stand  and  supplement  it  by  that  taken  on 
the  second  hearing,  having  in  such  matter 
of  procedure  a  wide  field  of  discretion. 
Pellett  V.  Industrial  Commission  (Wis.) 
1917D-884. 

303.  Vacation  of  Award — ^What  Consti- 
tutes Fraud — False   Testimony  by  Claim^ 

ant.  Under  Wis.  St.  1915,  §  2394—19,  pro- 
viding that  an  award  of  the  industrial 
commission  may  be  set  aside  on  the  ground 
that  it  was  procured  by  fraud,  construed 
with  reference  to  the  report  of  and  the 
discussions  before  the  committee  drafting 
the  W/orkmen's  Compensation  Act,  false 
testimony  on  the  part  of  the  claimant  and 
his  concealment  of  facts  material  to  the 
issue  before  the  commission  is  no  ground 
for  setting  aside  an  award.  Pellett  v.  In- 
dustrial Commission   (Wis.)   1917D-884. 

304.  Oonstruttion  of  Finding.  In  a  pro- 
ceeding by  an  employee  to  obtain  com- 
pensation for  personal  injuries,  the  court 
made  a  finding  that  as  a  result  the  em- 
ployee was  totally  incapacitated  for  his 
work  up  to  April  1st,  and  that  on  and 
after  that  date  he  had  not  been  and  was 
not,  either  totally  or  partially,  incapaci- 
tated for  work,  but  from  that  date  and  at 
present  had  been  able  to  perform  his  work 
and  receive  from  his  employer  the  same 
amount  of  wages  as  before  the  injury.  It 
isi  held  that  the  finding  should  be  con- 
strued, not  that  the  employee  was  capable 
of  performing  all  sorts  of  work,  but  that 
he  was  not  incapacitated  from  resuming 
his  former  duties.  Weber  v.  American 
Silk  Spinning  Company  (E.  I.)  1917E-153. 

305.  Duration  of  Incapacity  —  Finding 
Sustained.  In  a  proceeding  by  an  em- 
ployee to  recover  compensation  for  per- 
sonal injury,  the  evidence  is  held  to  war- 
rant a  finding  that  he  had  not  been  in- 
capacitated after  the  time  fixed  by  the 
court's  finding.  Weber  v.  American  Silk 
Spinning  Company  (B.  I.)  1917E-153. 


Notes. 

Increase,  decrease,  termination  or  sus- 
pension of  allowance  under  Workmen's 
Compensation  Act.     1916E-889. 

Admissibility  in  proceeding  under  Work- 
men's Compensation  Act  of  statement  by 
injured  employee  respecting  cause  of  in- 
jury.    1916C-775. 

Increase,  decrease,  termination  or  sus- 
pension of  allowance  under  Workmen's 
Compensation  Act.     19186-733. 

Provisions  in  Workmen's  Compensation 
Acts  respecting  medical  examination  of 
workmen.     1918B-670. 

(15)  Effect  of  Settlement. 

306.  Effect  of  Settlement — Eights  of 
Workman  Against  Third  Person.  A  settle- 
ment between  plaintiff  and  his  employer 
under  the  Workmen's  Compensation  Act, 
by  which  the  employer  was  released  from 
all  claims  on  account  of  the  injury  to 
plaintiff,  did  not  operate  as  a  settlement 
or  release  of  any  claim  for  malpractice 
which  plaintiff  might  have  against  the 
physicians  who  treated  him.  Viita  v. 
Fleming  (Minn.)  1917E-678.    (Annotated.) 

(16)  Increase  of  Award. 

307.  Allowance  for  Injury  not  Originally 
Claimed  for.  Under  Cal.  Workmen's  Com- 
pensation Act  (St.  1913,  p.  293),  §  25  (d), 
providing  that  the  industrial  accident 
commission  shall  have  power  to  "rescind, 
alter  or  amend"  any  order  or  award,  in 
view  of  sections  25  (c),  81,  82,  the  com- 
mission, having  awarded  claimant  com- 
pensation for  an  injured  leg,  cannot  more 
than  six  months  thereafter  award  such 
claimant  compensation  for  injuries  to  a 
lung  suffered  in  the  same  accident,  which 
injuries  had  not  been  previously  reported, 
since  the  six  months'  limitation  prescribed 
by  section  16  applies,  except  where  indem- 
iiity  has  been  paid  or  agreed  upon  as  pro- 
vided by  section  16  (c).  Ehrhart  v.  In- 
dustrial Accident  Commission  (Cal.) 
1917E-465.  (Annotated.) 

308.  Development  of  Injury.  If  a  ser- 
vant is  denied  compensation  for  loss  of 
use  of  an  eye  on  the  ground  that  he  can 
still  see  and  his  vision  subsequently  be- 
comes further  impaired,  the  industrial  com- 
iT'ission  has  power  to  reconsider  its  award. 
Boscarino  v.  Carfogno  &  Dragonette  (N. 
Y.)    1918A-530. 

(17)     Eeview. 

309.  Change  in  Law — Effect  on  Pending 
Proceedings.  That  after  appeal  is  taken 
from  the  award  of  the  workmen's  compen- 
sation commission  such  commission  is  su- 
perseded by  the  industrial  commission  does 
not  affect  any  of  the  questions  involved. 
Carroll  v.  Knickerbocker  Ice  Co.  (N.  Y.) 
1918B-540. 


584 


DIGEST. 

1916C3— 1918B. 


310.  Lnmp  Sum  Award.  An  appeal  from 
a  judgment  rendered  under  the  Worjsmen's 
Compensation  Act,  awarding  compensation 
in  a  lump  sum  to  a  dependent  upon  a 
workman  whose  death  resulted  from  per- 
sonal injuries  sustained  in  a  hazardous  em- 
ployment, dismissed  for  want  of  merit. 
McCracken  v.  Missouri  Valley  Bridge  & 
Iron  Company  (Kan.)  1918B-689. 

(Annotated.) 

311.  Findings  Conclusive.  "Where,  in  an 
action  by  the  driver  for  such  injuries,  the 
evidence  showed  that  the  fall  from  the 
hack  was  partly  the  result  of  a  positive 
pitching  of  the  driver  from  his  seat  by 
the  motion  of  the  vehicle,  and_  not  the 
mere  inert  collapse  of  an  unconscious  man, 
the  finding  of  the  court  below  that  peti- 
tioner "received  a  personal  injury  by  an 
accident  arising  out  of  .  .  .  said  employ- 
ment," will  not  be  disturbed,  since  the  aet 
provides  that  findings  of  fact  in  the  ab- 
sence of  fraud  shall  be  conclusive.  Car- 
roll V.  W%at  Cheer  Stables  Co.  (E.  I.) 
1918B-346.  (Annotated.) 

312.  Eevlew  of  Facts.  On  appeal  from 
a  judgment  dismissing  the  petition  for 
compensation  under  the  E.  I.  Workmen's 
Compensation  Act  (Pub.  Laws  1911-12, 
c.  831),  where  the  trial  justice  made  no 
findings  of  fact  upon  the  evidence  ad- 
duced, the  supreme  court  has  jurisdiction 
only  to  determine  the  proposition  of  law 
on  which  dismissal  was  had,  and  cannot 
determine  the  facts.  Grinnell  v.  Wilkin- 
son (E.  I.)  1918B-618. 

313.  Certiorari  to  Review.  Whether 
legal  evidence  is  offered  to  support  the 
decision  of  the  industrial  board  as  shown 
by  the  record  of  proceedings,  where  such 
evidence  is  agreed  upon  or  reported  by 
stenographer,  is  a  question  of  law  review- 
able by  certiorari.  Victor  Chemical  Works 
V.  Industrial  Board  (111.)  1918B-627. 

314.  Under  this  section  the  circuit  court 
by  certiorari  may  review  the  decision  of 
the  industrial  board  for  errors  of  law. 
Victor  Chemical  Works  v.  Industrial  Board 
(111.)  1918B-627. 

315.  Objection   First    Made  on  Appeal. 

Such  defense  cannot  be  considered  for  the 
first  time  on  appeal.  Victor  Chemical 
Works  V.  Industrial  Board  (111.)  1918B- 
627. 

316.  Eeview  of  Findings  of  Industrial 
Board.  The  decision  of  the  industrial 
board  that  an  employee  was  injured  by 
accident  arising  out  of  the  employment,  if 
there  is  competent  or  legal  evidence  to 
support  it,  cannot  be  reviewed,  as  it  is  not 
the  court's  province  to  pass  upon  weight 
or  sufficiencv  of  evidence.  Chicago  Dry 
Kiln  Co.  V.  industrial  Board  (111.)  1918B- 
645.  (Annotated.) 

317.  If  it  is  clear  upon  the  facts  found 
by  the  industrial  board  that  as  a  legal 
conclusion   an    injury   was    not   accidental 


or  that  it  did  not  arise  in  the  course  of 
the  employment,  a  contrary  conclusion 
awarding  compensation  will  not  be  allowed 
to  stand.  Eugene  Dietzen  Co.  t.  Indus- 
trial Board  (111.)  1918B-764. 

318.  While  the  industrial  board's  findings 
of  fact  are  conclusive  on  the  supreme 
court,  the  legal  conclusions  of  that  board, 
based  on  their  findings,  are  subject  to 
that  court's  supervision.  Eugene  Dietzen 
Co.  V.  Industrial  Board  (111.)  1918B-764. 

319.  On  petition  to  review  an  order  of 
the  industrial  accident  board  denying  an 
application  to  stop  compensation,  the  es- 
sentials leading  up  to  the  award  or  its 
equivalent  are  to  be  taken  as  res  judicata, 
except  the  physical  condition  of  the  in- 
jured employee,  which  remains  open  to  in- 
quiry. Estate  of  Beckwith  v.  Spooner 
(Mich.)  1916E-886.  (Annotated.) 

320.  Under  the  Mich.  Workmen's  Com- 
pensation Act  (Pub.  Acts  [Ex.  Sess.]  1912, 
No.  10)  p.  3,  §  12,  providing  that  the  find- 
ings of  fact  by  the  industrial  accident 
board  acting  within  its  powers,  shall,  in 
the  absence  of  fraud,  be  conclusive,  but 
that  the  supreme  court  may  review  ques- 
tions of  law,  the  facts  found  to  be  con- 
clusive must  be  based  on  competent  legal 
evidence,  and  not  on  bare  supposition, 
guess,  or  conjecture,  nor  on  rumor  or  in- 
competent evidence;  as  to  so  determine 
the  rights  of  the  parties  would  be  to  act 
outside  the  authority  conferred  by  the 
statute,  and  without  jurisdiction.  Eeck  v. 
Whittlesberger  (Mich.)   1916C-771. 

321.  As  provided  by  N.  Y.  Workmen's 
Compensation  Act,  §  20,  the  decision  of 
the  workmen's  compensation  commission  is 
final  as  to  questions  of  fact,  and  the  court, 
on  appeal  from  its  ruling^  is  limited  to 
review  of  questions  of  law.  Dale  v.  Saun- 
ders (N.  Y.)   1918B-703. 

322.  Hearing  of  Appeal — Eight  to  Open 
and  Close.  Under  Md.  Workmen's  Com- 
jensation  Act  (Acts  1914,  c.  800),  §  55, 
giving  any  person  aggrieved  by  a  ruling 
cf  the  industrial  accident  commission  the 
right  to  appeal,  such  appealing  party,  hav- 
ing the  burden  of  overcoming  the  decision 
which  is  prima  facie  correct,  has  the  right 
to  open  and  close  the  evidence  and  the 
arguments.  American  Ice  Co.  v.  Fitzhugh 
(Md.)   1917D-33. 

323.  Proceedings  to  Secure  Compensa- 
tion— ^Record  on  Appeal.  In  a  proceeding 
for  workmen's  compensation,  the  findings 
of  the  commissioner  must  contain  all  facts 
essential  to  the  case,  and  on  appeal  be- 
come a  part  of  the  record,  so  that  it  is 
not  essential  that  his  findings  be  specifi- 
cally made  a  part  of  the  record.  Douth- 
wright  v.  Champlin  (Conn.)   1917E-512. 

324.  Conclusiveness  of  Decision — Want 
of  Jurisdiction.  Decision  of  the  industrial 
toard  under  the  111.  Workmen's  Compensa- 
tion   Act    is    conclusive    only    when    it   is 


MASTER  AND  SERVANT. 


585 


■within  its  jurisdiction.     Uphoff  v.  Indus- 
trial Board  (111.)  1917D-1. 

325.  Review  of  Award.  In  a  proceeding 
under  the  Workmen's  Compensation  .  Act 
(Laws  R.  I.  1911-1912,  c.  831),  a  finding 
of  fact  by  the  superior  court,  based  on 
evidence,  is  conclusive  on  appeal.  Weber 
V.  American  Silk  Spinning  Company  (E.  I.) 
1917E-153. 

326.  Who  Entitled  to  Attack  Statute- 
Person  not  Aggrieved.  On  an  appeal,  con- 
testing the  constitutionality  of  the  Work- 
men's Compensation  Act  by  an  employer 
who  has  rejected  it,  he  cannot  urge  a 
grievance  of  the  employee,  since  it  must 
appear  that  contestant  was  deprived  of  a 
constitutional  right.  Hunter  v.  Colfax 
Consolidated  Coal  Co.  (Iowa)  1917E-803. 

327.  Review  of  Facts  on  Appeal.  Under 
the  Workmen's  Compensation  Act  of  1913, 
§  19,  par.  "f,"  providing  that  the  decision 
of  the  industrial  board,  acting  within  its 
powers,  in  the  absence  of  fraud,  is  conclu- 
sive, but  that  the  supreme  court  shall  have 
power  to  review  questions  of  law  involved 
therein,  the  decision  of  the  board  upon 
questions  of  fact  is  conclusive,  if  founded 
upon  competent  or  legal  evidence.  Victor 
Chemical  Works  v.  Industrial  Board  (III.) 
1918B-627. 

Note. 
Review  of  facts  on  appeal  under  Work- 
men's Compensation  Act.     1918B-647. 

h    Actions  for  Injuries. 
(1)     Pleading. 

328.  Injury  to  Minor  Illegally  Employed 
—Complaint  Sufficient.  A  complaint  for 
damages  for  the  death  of  a  boy  which 
alleged  that  deceased  was  under  14  years 
of  age,  that  he  was  struck  by  one  of  de- 
fendant's tram  cars  while  he  was  in  the 
discharge  of  his  duties,  and  that  his  death 
was  proximately  caused  by  reason  of  de- 
fendant's employing  him  in  violation  of 
Code  1907,  §  1035,  which  prohibits  the  em- 
ployment of  boys  under  14  years  of  age  in 
mines,  states  a  cause  of  action  under  that 
section  of  the  Code.  Cole  v.  Sloss-Sheffield 
Steel,  etc.  Co.  (Ala.)  1916E-99. 

329.  Contributory  Negligence  of  Infant 
—Plea  Insufficient.  In  an  action  for  dam- 
ages for  the  death  of  a  boy  under  the 
age  of  14  years,  a  plea  which  relies  upon 
the  boy's  contributory  negligence  in  riding 
uijon  a  tram  car  in  violation  of  his  em- 
ployer's rules,  but  which  does  not  aver  that 
he  had  sufficient  capacity  to  appreciate  the 
danger  or  risk,  is  defective.  Cole  v.  Sloss- 
Sheffield  Steel,  etc.  Co.  (Ala.)  1916E-99. 

330.  Liability  for  Injury  to  Domestic 
Servant.  Where  the  complaint,  in  an  ac- 
tion for  injuries  to  a  cook  from  the  ex- 
plosion of  a  gas  stove,  alleged  that  the 
explosion  was  due  to  defects  in  the  stove, 
evidence  that  the  burners  had  been  lighted 


at  least  20  minutes  before  the  explosion 
did  not  authorize  a  recovery  by  plaintiff; 
it  being  incumbent  on  plaintiff,  not  only 
to  establish  the  happening  of  the  accident, 
but  also  that  it  happened  on  account  of 
the  negligence  alleged  in  the  complaint. 
Holmberg  v.  Jacobs  (Ore.)   1917D-496. 

(Annotated.) 

330%.  Sufllciency  of  Averment  of  Neg- 
ligence. In  an  action  whereby  it  is 
sought  to  recover  damages  for  personal 
injuries  alleged  to  have  been  occasioned 
by  the  negligence  if  a  railroad  company 
or  corporation,  a  count  in  the  declaration 
alleging  "that  the  said  track  and  rails 
were  wet,  and  the  said  locomotive  engine 
and  tender  leaked  in  such  a  way  the  water 
therefrom  fell  upon  the  rails  of  said  track, 
and  the  sand  box  on  said  locomotive  en- 
gine was  in  such  a  defective  condition 
that  sand  would  not  fall  therefrom  upon 
the  rails  of  said  track  by  reason  whereof 
the  said  locomotive  engine  upon  which 
plaintiff  was  riding  could  not  be  stopped 
and  collided  with  the  said  derailed  loco- 
motive engine,"  is  not  demurrable  for  fail- 
ing to  allege  the  acts  or  omissions  of  the 
defendant  which  caused  the  plaintiff's  in- 
juries. Ingram-Dekle  Lumber  Co.  v.  Gei- 
ger  (Fla.)  1918A-971. 

(2)     Presumptions   and  Burden  of  Proof. 

331.  Injury  to  Railroad  Employee — Pre- 
sumption of  Negligence.  The  statutory 
presumption  of  negligence  on  the  part  of 
a  railroad  company,  under  Kirby's  Ark. 
Dig.  §  6773,  applies  to  all  employees  of 
railroad  companies  who  receive  injuries  by 
the  running  of  trains,  except  those  who 
are  engaged  in  the  actual  running  of  the 
train  which  caused  the  injury.  St.  Louis, 
etc.  R.  Co.  V.  Blaylock  (Ark.)  1917A-563. 

332.  Allegations  that  defendant  railroad 
negligently  shoved  cars  upon  the  track 
where  plaintiff  was  repairing  a  car,  strik- 
ing it  and  running  it  over  him,  with  proof 
that  his  injuries  were  so  produced,  are 
sufficient,  under  Kirby's  Ark.  Dig.  §  6773, 
creating  a  presumption  of  negligence  on 
the  part  of  a  railroad  compiiny,  to  place 
the  burden  of  proof  upon  defendant  to 
show  that  the  injury  was  not  caused 
through  its  negligence.  St.  Louis,  etc.  R. 
Co.  v.  Blaylock  (Ark.)   1917A-563. 

333.  Presumption  as  to  Competence  and 
Care  of  Servant.  There  is  no  presumption 
one  way  or  the  other  as  to  the  skill  or 
want  of  skill  of  the  driver  of  a  vehicle, 
when  all  of  the  facts  and  circumstances 
out  of  which  a  charge  of  negligence  arose 
are  before  the  jury,  and  whether  the  driver 
of  the  vehicle  was  a  reasonably  careful 
and  skilful  driver,  and  exercised  that  de- 
gree of  care  and  skill  which  an  ordinarily 
careful  and  skilful  driver  would  have  ex- 
ercised under  the  circumstances,  is  a  mat- 
ter of  proof,  and  hence,  in  an  action  for 
the  death  of  a  person  struck  by  defend- 


586 


DIGEST. 

1916C— 1918B. 


ant's  antomobile  truck,  it  is  error  to  charge 
that  the  law  presumed,  in  the  absence  of 
evidence  to  the  contrary,  that  the  driver 
of  the  truck  was  a  reasonably  careful  and 
skilful  driver,  and  that  if  plaintiff  had 
failed  to  prove  that  he  was  not  a  reason- 
ably careful  and  skilful  driver,  defendant 
was  entitled  to  the  presumption  that  he 
was  reasonably  careful  and  skilful  in  such 
work.  Devine  v.  Brunswick-Balke-Collen- 
der  Co.  (111.)  1917B-887. 

334.  Boiden  of  Proof.  An  administra- 
tor suing  a  railroad  for  death  of  his  dece- 
dent, a  switchman,  killed  in  service,  as  it 
was  charged,  by  being  struck  by  a  post 
standing  dangerously  near  the  track,  had 
the  burden  to  prove  that  decedent  had  not 
been  warned  of  the  dangerous  proximity 
of  the  post.  Devine  ▼.  Delano  (111.) 
1918A-689. 

(3)     Admissibility  of  Evidence. 

335.  Action  for  Negligence  —  Boles  of 
Master.  In  an  action  for  injuries  sus- 
tained by  a  car  repairer,  evidence  that 
when  repairs  were  made  on  cars  outside 
the  repair  tracks  it  was  the  duty  of  the 
foreman  to  put  out  a  blue  flag  was  admis- 
sible in  rebuttal  of  testimony  that  in  such 
case  the  blue  flag  rule  required  the  re- 
pairers to  put  out  the  flag  themselves. 
St.  Louis,  etc.  E.  Co.  v.  Blaylock  (Ark.) 
1917A-563. 

336.  Intoxication  of  Servant.  In  a  ser- 
vant's action  for  injury  from  a  blast  fired 
near  him,  wherein  the  master  contended 
that  the  servant  was  drunk  and  fell  off 
an  embankment  into  a  deep  cut  and  was 
injured,  evidence  that  the  servant  was 
drunk  when  he  left  his  boarding  place  to 
go  to  work  along  the  way  where  he  was 
injured  is  material  and  admissible.  Amer- 
ican Bauxite  Co.  v.  Dunn  (Ark.)  1917C- 
625. 

337.  Clianges  Made  After  Accident. 
Evidence  of  conditions  or  changes  made 
after  the  accident  is  not  admissible  to  show 
negligence,  pr  an  admission  of  negligence, 
at  the  time  of  the  accident.  Korab  v. 
Chicago,  etc.  E.  Co.  (Iowa)  1916E-637. 

338.  Wbere,  in  an  action  for  a  railroad 
brakeman's  death  by  catching  his  foot  in 
the  unblocked  space  between  main  and 
guard  rails,  defendant  claimed  that  since 
the  custom  of  blocking  or  not  blocking 
such  space  was  not  uniform,  neither  method 
would  have  been  negligence,  evidence  was 
admissible  in  rebuttal  for  plaintiff  whether 
the  guard  rails  had  been  blocked  on  cer- 
tain part  of  defendant's  line  after  the  acci- 
dent, though  not  admissible  as  an  admis- 
sion of  negligence.  Korab  v.  Chicago,  etc. 
E.  Co.  (Iowa)   1916E-637. 

339.  Negligence— Evidence — ^Intention  of 
Injured  Servant.  In  an  action  against  a 
railroad  for  death  of  its  switchman  in 
■ervice,  where  the  conductor  of  the  switch- 


ing crew  has  testified  that  It  was  not 
deceased's  duty  to  throw  a  certain  switch, 
it  is  competent  to  show  by  such  conductor 
that  at  the  last  time  he  saw  decedent  alive 
he  did  not  know,  as  a  matter  of  fact,  that 
decedent  was  not  planning  to  throw  si^ch 
switch.  Devine  v.  Delano  (111.)  1918A- 
689. 

(4)     SuflSciency  of  Evidence. 

340.  Evidence  that  a  horse  had  been  in 
use  about  the  plant  for  some  time,  and 
that  the  foreman  in  charge  bad  ample 
opportunity  to  observe  his  conduct  when 
plaintiff  was  hurt  as  well  as  on  former 
occasions,  is  sufficient  to  carry  to  the  jury 
the  question  whether  the  master  knew, 
or  with  reasonable  diligence  should  have 
known  the  nature  of  the  horse.  Marks  v. 
Columbia  County  Lumber  Co.  (Ore.)  1917A- 
306.  (Annotated.) 

341.  Negligence — Failnre  to  Block  Guard 
Ball.  Negligence  by  an  employer  cannot 
be  determined,  as  a  matter  of  law,  upon 
the  opinion  of  experts  as  to  whether  a 
given  course  of  conducting  a  business  is 
negligence,  where  the  question  involves 
matters  as  to  which  common  knowledge 
and  observation  has  evidential  weight, 
such  evidence  being  entitled  to  the  jury's 
consideration,  along  with  the  other  evi- 
dence on  the  question;  and  hence,  in  an 
action  against  a  railroad  company  for  the 
death  of  a  brakeman  by  catching  his  foot 
in  the  unblocked  space  between  the  guard 
and  main  rail,  it  could  not  be  said  that 
defendant  was  not  negligent  in  not  guard- 
ing the  space  between  rails  by  blocking  it, 
because  some  qualified  railroad  men  testi- 
fied that  blocking  such  space  did  not  make 
it  safer  and  was  not  done  on  their  roads, 
while  others  testified  that  blocking  the 
space  between  rails  was  safer.  Korab  v. 
Chicago,  etc.  E.  Co.  (Iowa)   1916E-637. 

(Annotated.) 

342.  Proof  of  Knowledge  of  Danger.   In 

determining  the  question  of  want  of 
knowledge  of  a  danger  by  an  employee 
sustaining  a  personal  injury,  it  is  proper 
to  consider  all  the  facts  proved,  and  it  is 
not  necessary  that  proof  be  made  by  di- 
rect evidence,  and  it  is  only  where  the 
evidence  points  neither  one  way  nor  the 
other  that  plaintiff  must  fail  for  want 
of  afiBrmative  proof.  Cincinnati,  etc.  E. 
Co.  V.  McCuUom  (Ind.)  1917E-1165. 

(5)     Defenses. 

343.  Affirmative  Defenses.  Assumption 
of  risk  and  contributory  negligence  when 
available  are  affirmative  defenses.  King 
V.  Cooney-Eckstein  Co.  (Fla.)  1916C-163. 

(6)     Questions  for  Jury. 

344.  Ala.  Code  1907,  §  3910,  subd.  3, 
irakes  employers  liable  for  injuries  to  em- 
ployees caused  by  the  negligence  of  any 


MASTER  AND  SERVANT. 


587 


person  in  the  service  or  employment  of 
the  master  or  employer  to  whose  orders  or 
directions  the  servant  or  employee  was 
bound  to  and  did  conform,  if  such  injuries 
resulted  from  his  having  so  conformed.  In 
an  action  for  injury  to  a  railway  employee 
assisting  a  mechanic  to  repair  an  engine, 
there  was  evidence  that  B.  directed  plain- 
tiff what  to  do,  that  he  was  cutting  a  bar 
of  metal  with  a  hammer  and  chisel;  that 
plaintiff's  directed  part  in  the  work  was 
to  hold  the  bar  still  by  putting  his  foot  on 
it  and  hold  a  light  so  that  B.  could  see 
to  do  the  work;  that  the  cutting  of  the 
bar  threw  off  pieces  of  metal;  that  one  of 
such  pieces  struck  plaintiff  in  his  right 
eye;  and  that  he  could  not  hold  the  light 
as  directed  without  turning  his  face 
towards  and  into  the  line  of  flight  of  the 
pieces  of  metal.  It  is  held  that  this  evi- 
dence made  a  question  for  the  jury  as  to 
plaintiff's  right  to  recover.  Louisville,  etc. 
R,  Co.  V.  Carter  (Ala.)  I917E-292. 

345.  Negligence  —  Safety  of  Miner's 
Working  Place.  In  a  miner's  action  for 
injuries  caused  by  rock  falling  upon  him, 
where  there  is  evidence  that  he  asked  the 
foreman  if  he  thought  any  more  of  the 
roof  would  fall,  that  the  foreman  took  a 
pick,  and,  after  testing  the  part  of  the 
roof  which  subsequently  fell,  assured  plain- 
tiff that  it  was  sound  and  safe,  that  plain- 
tiff was  somewhat  inexperienced  and  not 
familiar  with  the  character  of  rock  in  the 
roof,  and,  relying  on  the  foreman's  assur- 
ance of  safety,  continued  to  work  there 
until  injured,  and  that  if  a  proper  inspec- 
tion had  been  made  when  the  foreman 
made  his  inspection  it  could  have  been  dis- 
covered that  the  rock  was  loose  and  liable 
to  fall,  it  is  a  question  for  the  jury  whether 
the  employer  was  negligent,  though  plain- 
tiff's evidence  tends  to  show  that  ordinar- 
ily it  was  his  own  duty  to  look  after  the 
safety  of  the  roof  of  his  own  room.  Hall 
V.  Manufacturers'  Coal,  etc.  Co.  (Mo.) 
19160-375. 

346.  Assumption  of  Risk — ^Failure  to 
Give  Signals.  In  an  action  for  injuries  to 
plaintiff  when  the  car  which  he  was  re- 
pairing was  struck  by  another  car,  evi- 
dence held  to  justify  submission  to  the 
jury  of  the  issue  of  assumption  of  risk  in 
relying  upon  foreman  to  place  signals.  St. 
Louis,  etc.  R.  Co.  v.  Blaylock  (Ark.) 
1917A-563. 

347.  Contributory  Negligence.  In  an  ac- 
tion for  injuries  to  plaintiff  when  the  car 
which  he  was  repairing  was  struck  by 
another  car,  evidence  held  to  justify  the 
submission  to  the  jury  of  the  issue  of 
plaintiff's  contributory  negligence  in  rely- 
ing upon  the  foreman  to  put  out  a  blue  flag. 
St.  Louis,  etc.  E.  Co.  v.  Blaylock  (Ark.) 
1917A-563. 

348.  In  an  action  against  a  railroad  com- 
pany for  injury  to  a  fireman  who  was 
struck  by  the  arm  of  a  mail  crane  stand- 
ing near  the   track,   whether  he  assumed 


the  risk  or  was  gn^ilty  o'  contributory 
negligence  is  held,  under  the  evidence,  a 
jury  question.  Rowlands  v.  Chicago,  etc. 
E.  Co.  (Wis.)  1&16E-714.         (Annotated.) 

349.  Negligence  —  Switching  Unlighted 
Car  Without  Warning.  Where  the  defend- 
ant railway  switched  an  unlighted  car  at 
a  speed  of  ten  miles  an  hour  in  an  un- 
lighted yard,  having  no  guard  on  the  car, 
nor  giving  any  warning,  the  question  of 
its  negligence  as  to  one  rightfully  on  the 
track  is  for  the  jury.  Ingram's  Adm'x.  t. 
Rutland  R.  Co.  (Vt.)  1918A-1191. 

o  ..  Negligence — Blasting.  On  the  evi- 
dence in  a  servant's  action  for  injury  from 
a  blast  fired  near  him  without  warning, 
it  is  held  that  whether  the  master  should 
have  reasonably  expected  the  servant,  who 
did  not  work  where  the  blasting  was  done, 
to  be  within  range  of  the  explosion,  and 
should  have  given  warning  before  the  blast 
was  fired,  was  for  the  jury.  American 
Bauxite  Co.  v.  Dunn  (Ark.)  1917C-625. 

351.  Whether  Servant  was  Warned.  In 
an  administrator's  action  against  a  railroad 
for  death  of  its  switchman  charged  to 
have  been  killed  in  service  by  being  struck 
by  a  post  in  dangerous  proximity  to  the 
track,  whether  the  conductor  of  the  switch- 
ing crew  warned  the  switchman  of  the 
dangerous  condition  is  held  to  be  for  the 
jury  under  the  evidence.  Devine  v.  Delano 
(111.)   1918A-689. 

352.  In  an  administrator's  action  against 
a  railroad  for  death  of  its  switchman 
charged  to  have  been  killed  in  service  by 
being  struck  by  a  post  in  dangerous  prox- 
imity to  the  track,  it  was  a  question  for 
the  jury  whether  the  road's  act  in  giving 
R  list  of  nonclearance  points  on  the  line 
to  the  switchman  was  a  sufiicient  discharge 
of  the  road's  duty  to  warn  him  of  the  post. 
Devine  v.  Delano  (111.)  1918A-689. 

353.  Contributory  Negligence  —  Railroad 
Employee — Post  Near  Track.  In  an  ad- 
ministrator's action  against  a  railroad  for 
death  of  its  switchman  in  service,  ques- 
tion whether  the  switchman  met  his  death, 
in  striking  a  post  dangerously  near  the 
track,  by  means  of  the  negligence  of  the 
road  and  while  he  was  using  due  care, 
is  held  to  be  for  the  jury  under  the  evi- 
dence. Devine  v.  Delano  (lU.)  1918A- 
689. 

354.  Negligence  —  Failure  to  Furnish 
Tool.  In  an  employee's  action  for  injury 
on  the  ground  that  a  failure  to  furnish 
a  punch  for  making  holes  through  steel 
hoops  was  a  defect  in  the  condition  of  the 
employer's  ways,  works,  machinery,  and 
plant,  held  on  the  evidence  that  whether 
the  plant  was  defective  for  that  reason 
was  for  the  jury.  Whiley  v.  Solvay  Pro- 
cess Co.   (N.  Y.)  1917A-314. 

355.  Whether  Servant  Assumed  Risk.  In 
an  action  against  a  railroad  for  death  of 
its  switchman  in  service,  the  submission  of 


588 


an  interrogatory  as  to  whether  the  de- 
ceased assumed  the  risk  or  danger  which 
resulted  in  his  injury,  which  the  jury  an- 
swered in  the  negative,  is  not  prejudicial 
to  defendant,  charged  in  a  count  of  the 
declaration  with  having  rejected  the  Work- 
men's Compensation  Act.  (Devine  v.  De- 
lano "(111.)  1918A-689.  (Annotated.) 


(7)     Instructions. 

356.  Instruction  as  to  Negligence  and 
Contributory  Negligence.  An  instruction 
that  if  plaintiff  was  employed  by  defend- 
ant in  its  mine  and  under  the  control  and 
direction  of  its  foreman,  who  had  author- 
ity to  direct  the, work  and  the  manner  in 
which  plaintiff  was  engaged  at  the  time 
of  the  injury,  and  if  it  was  plaintiff's  duty 
to  obey  his  orders  and  directions,  and  if 
while  so  engaged  the  foreman  negligently 
directed  plaintiff  to  clean  up  the  rock  and 
other  debris  in  a  room,  and  prior  to  such 
command  had  assured  plaintiff  when  in- 
quired of  whether  it  was  safe  to  work 
there  on  account  of  overhanging  rocks, 
that  it  was  safe,  and  if  plaintiff,  relying 
upon  such  assurance,  went  to  work  there 
and  was  injured  by  a  slab  of  rock  falling 
upon  him,  he  was  entitled  to  recover,  is 
erroneous,  where  negligence  on  the  part 
of  the  foreman  in  giving  such  assurance 
as  to  the  safety  of  the  roof  was  relied 
upon  as  a  ground  of  recovery  and  not 
merely  as  relieving  plaintiff  from  the  effect 
of  contributory  negligence  or  assumption 
of  risk,  since  it  undertakes  to  cover  the 
whole  case  so  far  as  defendant's  action- 
able negligence  is  concerned,  and  does  not 
require  a  finding  that  the  assurance  as  to 
the  safety  of  the  roof  was  negligently 
given,  but  makes  the  employer  an  insurer 
as  to  the  correctness  of  the  information 
furnished  plaintiff.  Hall  v.  Manufactur- 
ers' Coal,  etc.  Co.  (Mo.)  1916C-375. 

357.  The  error  in  such  instruction  is  not 
cured  by  a  further  instruction  that  if  the 
rock  which  fell  upon  plaintiff  was  in  a 
loose  and  dangerous  condition,  and  if  the 
toreman  inspected  and  soundeii  it  and 
found  it  to  be  in  a  loose  and  dangerous 
condition  and  liable  to  fall,  or  if  by  the 
exercise  of  ordinary  care  he  could  have 
discovered  such  condition,  and  if  he  as- 
sured plaintiff  that  it  would  not  fall  and 
ordered  him  to  work  beneath  such  rock, 
then  such  order  was  negligently  made  and 
such  assurance  negligently  given  within 
the  meaning  of  the  instructions,  since  it 
merely  defines  "negligent  assurance,"  a 
term  not  used  in  the  instruction  author- 
izing a  recovery,  and.  moreover,  it  was  an 
attempt  to  supply  facts  which  should  have 
been  required  to  be  found  by  the  main  in- 
struction and  the  incorporation  of  which 
in  a  separate  instruction  would  merely  con- 
fuse the  jury.  Hall  v.  Manufacturers' 
Coal,  etc.  Co.  (Mo.)  1916C-375. 

358.  In  a  miner's  action  for  injuries 
caused  by  rock  falling  upon  him,  an  in- 


DIGEST. 

1916C— 1918B. 

struction  that  though  he  knew,  or  by  the 
exercise  of  ordinary  care  could  have 
known,  that  the  place  where  he  was  work- 
ing was  not  safe,  this  did  not  defeat  a 
recovery  if  he  was  negligently  ordered  into 
such  place  by  the  foreman  and  assured 
that  the  rock  would  not  fall,  and  if  the 
danger  from  such  rock  was  not  of  such 
a  glaring  and  dangerous  nature  as  to 
threaten  immediate  injury  in  case  he 
obeyed  the  order,  is  erroneous,  as  it  did 
not  require  a  finding  that  plaintiff  relied 
upon  such  assurance  of  safety.  Hall  v. 
Manufacturers'  Coal,  etc.  Co.  (Mo.)  1916C- 
375. 


359.  Assumed  Eisk.  Where  the  instruc- 
tion requested  by  defendant  in  an  action 
for  railroad  brakeman's  negligent  death 
did  not  in  terms  place  the  burden  of  prov- 
ing assumed  risk  on  defendant,  which  the 
instruction  given  by  the  court  on  the 
subject  properly  did,  it  was  not  error  to 
refuse  the  requested  instruction.  Korab 
v.  Chicago,  etc.  R.  Co.  (Iowa)  1916E-637. 

360.  Instruction  Properly  Refused.  Un- 
der Iowa  Code  Supp.  1913,  §§  4999a2, 
4999a3,  where  plaintiff,  a  woodworker,  was 
injured  while  working  with  a  combined 
machine  on  which  there  was  then  a  ripsaw 
which  was  not  guarded,  defendant's  re- 
quested instruction  that  if  the  danger  in 
using  the  unguarded  saw  was  so  imminent 
that  a  reasonably  prudent  person  would 
not  have  continued  in  the  work,  the  ser- 
vant by  continuing  in  his  work  waived 
the  master's  negligence,  and  assumed  the 
risk,  is  properly  refused,  as  it  does  not 
differentiate  between  conditions  existing 
when  the  servant  in  the  ordinary  course  of 
bis  employment  had  a  duty  to  remedy  the 
defects  and  conditions  existing  when  no 
such  duty  rested  on  him.  Correll  v.  Will- 
iams, etc.  Co.  (Iowa)  191SA-117. 

361.  Effect  of  Election  —  Defenses  Ex- 
cluded. In  an  action  against  a  railroad  for 
death  of  its  switchman  in  service,  the 
court's  action  in  permitting  the  defenses 
of  assumption  of  risk  and  contributory 
negligence  to  be  submitted  to  the  jury  as 
to  one  count  of  the  declaration,  and  in 
excluding  them  as  to  the  other,  which 
charged  that  the  road  had  rejected  the 
Workmen's  Compensation  Act,  is  not  preju- 
dicial to  defendant.  Devine  v.  Delano 
(HI.)  1918A-689.  (Annotated.) 

(8)     Verdict. 

362.  Negligence  of  Foreman — Dangerous 
Method  of  Work.  Where,  in  a  carpenter's 
action  against  a  railroad  company  for  in- 
juries received  while  working  on  an  exten- 
sion to  repair  shops,  it  appeared  that  de- 
fendant's subforeman,  who  was  directing 
the  work,  caused  a  section  of  the  extension 
to  be  raised  when  there  was  a  strip  of  tim- 
ber nailed  to  it  making  it  impossible  for 
it  to  be  placed  in  position,  and  that, 
though   knowing   that   plaintiff  was    in   a 


MASTER  IN  CHANCERY— MATERIALMAN. 


589 


dangerous  position,  he  directed  another 
employee  to  prize  one  end  of  the  section 
loose,  in  consequence  of  which  it  swung 
(against  and  injured  plaintiff,  sufficient  neg- 
ligence is  shown  to  render  it  erroneous  to 
direct  a  verdict  for  defendant.  Thompson 
V.  Cincinnati,  etc.  Co.   (Ky.)    1917A-1266. 

363.  Railroads — ^Mail  Crane  Near  Track. 
In  an  action  against  a  railroad  company 
for  injury  to  a  fireman  who  was  struck 
by  the  arm  of  a  mail  crane  standing  near 
the  track,  evidence  held  to  warrant  a  find- 
ing of  negligence  in  maintenance  of  the 
crane.  Eowlands  v.  Chicago,  etc.  E.  Co. 
(Wis.)  1916E-714.  (Annotated.) 

3.     LIABILITY  OF  MASTER  FOB  ACTS 
OF  SERVANT. 

a.     Existence  of  Relation. 

364.  Liability  to  Third  Person  for  Act 
of  Servant — Starting  Fire.  Railroad  labor- 
ers who  are  living  in  bunk  cars  provided 
by  the  railroad  company,  and  who,  when 
off  duty,  build  a  fire  upon  the  right  of  way 
to  heat  water  to  wash  their  clothes,  are 
not  acting  within  the  scope  of  their  em- 
ployment in  building  such  fire,  so  as  to 
render  the  railroad  liable  for  their  negli- 
gence to  the  owner  of  adjoining  property 
destroyed  by  fire  communicated  therefrom. 
Excelsior  Products  Mfg.  Co.  v.  Kansas  City 
So.  R.  Co.  (Mo.)  1917B-1047.   (Annotated.) 

b.     Nature   and    Extent  of   Liability. 

365.  Fire  Insurance  Patrol — Liability  for 
Tort.  A  board  of  underwriters  organized 
under  St.  Wis.  1913,  §  1922,  authorizing  the 
formation  of  such  boards,  is  not  a  char- 
itable corporation  free  from  liability  for 
the  negligence  of  its  employees,  because 
engaged  in  protecting  life  and  property 
from  fire  through  it^  patrols,  since  such 
furtherance  of  the  public  interest  is  merely 
incidental  to  the  selfish  motive  of  reducing 
the  fire  risks  of  its  members  as  under- 
writers. Sutter  V.  Milwaukee  Board  of 
Fire  Underwriters   (Wis.)    1917E-682. 

(Annotated.) 

366.  Liability  to  Third  Persons — Scope 
of  Employment.  A  master  is  liable  for  tne 
negligent  acts  of  his  servant  only  when 
those  acts  are  within  the  scope  of  his  em- 
ployment, but  where  the  servant  fails  to 
perform  a  clear  duty  imposed  on  him  by 
his  employment,  the  master  is  liable  for 
such  failure.  Lovejov  v.  Denver,  etc.  R. 
Co.   (Colo.)    1916E-1075. 

367.  Person  on  Locomotive  by  Permis- 
sion  of   Engineer  —  Liability   for  Injury. 

1  Where  an  engineer,  in  sole  charge  of  an 
engine  and  cars,  placed  a  five  year  old  boy 
on  the  engine  to  give  him  a  ride  and  then 
started  the  engine  without  taking  proper 
precautions  for  the  boy's  safety,  so  that 
he  was  thrown  off  and  injured,  even  if  the 
act  of  placing  the  boy  on  the  engine  was 


outside  the  scope  of  the  engineer's  employ- 
ment So  as  not  to  render  the  company 
liable  therefor,  it  was  liable  for  the  en- 
gineer's failure  to  perform  the  duty  im- 
posed on  him  by  his  employment  to  keep 
children  off  the  engine.  Lovejoy  v.  Den- 
ver, etc.  R.  Co.  (Colo.)  1916E-107O. 

(Annotated.) 
Note. 
Liability  of  fire  insurance  patrol  in  tort. 
1917E-684. 

c.     Pleading. 

368.  Action  for  Negligence.  A  complaint, 
which  alleges  that  a  railroad  engineer  in 
charge  of  a  switching  train,  placed  a  five 
year  old  boy  upon  his  engine  and  then 
started  it  without  taking  proper  precau- 
tions for  the  boy's  safety,  does  not  allege 
that  the  railroad  had  failed  to  employ  a 
competent  engineer.  Lovejov  v.  Denver, 
etc.  R.  Co.  (Colo.)  1916E-1075. 

369.  Care  and  Skill  of  Servant.  In  an 
action  for  the  death  of  a  person  struck  by 
an  automobile  truck,  an  instruction  that  if 
the  driver  of  the  truck  was  a  person  of 
ordinary  and  reasonable  skill  in  the  busi- 
ness in  which  he  was  engaged,  and  if  he 
exercised  the  ordinary  judgment  and  skill 
of  a  reasonably  careful  and  prudent  driver 
at  and  just  before  the  time  of  the  injury, 
the  jury  should  find  defendant,  the  driver's 
employer,  not  guilty  is  proper.  Devine 
V.  Brunswicke-Balke-Collender  Co.  (111.) 
1917B-887. 

370.  Damages  —  What     Law     Governs. 

Where  plaintiff  sues  in  Vermont  for  in- 
■guries  sustained  while  working  on  defend- 
ant's railroad  in  Quebec,  plaintiff's  dam- 
ages, if  any,  are  to  be  assessed  in  accord- 
ance with  the  law  of  that  province,  and 
hence  it  is  proper  to  refuse  to  charge 
that  pain  and  suffering  is  not  an  element 
of  damage,  and  submit  the  Canadian  law 
on  that  branch  of  the  case  to  the  jury. 
Osborne  v.  Grand  Trunk  E.  Co.  (Vt.) 
1916C-74. 


MASTER  IN  CHANCERY. 

Review  of  findings,  see  Appeal  and  Error, 

154. 
Powers,  see  Referees,  2. 
Compensation,  see  Referees,  8. 


MATERIAL  ALTERATION. 
See  Alteration  of  Instruments,  4,  5. 

MATERIALITY  OF  ERROR. 

For  reversal,  see  Appeal  and  Error,  209- 
211. 

MATERIALMAN. 

Defined,  see  Mechanics'  Liens,  10. 
Eight  to  lien,  see  Mechanics'  Liens,  11. 


590 


DIGEST. 

1916C— 1918B. 


MAXIMS. 


Expressio  unius  est  exclusio  alterius,  see 
Appeal  and  Error,  463. 

Id  certura  est,  quod  certum  reddi  potest, 
see  Deeds,  47. 

Sic  utere  tuo  ut  alienum  non  laedas,  see 
Constitutional  Law,  39. 

Salus  populi  Buprema  lex,  see  Jury,  13. 

Falsus  in  uno,  falsus  in  omnibus,  see  Wit- 
nesses, 89. 

MEASURE  OF  DAMAGES. 
See  DamAges,  4-16. 

MEASURES. 
See  Weights  and  Measures. 

MECHANICS'  LIENS. 

1.  Validity  and  Construction  of  Statutes, 

590. 

2.  Contract  Under  Which  Lien  Acquired, 

590. 
8.  Persons  Entitled  to  Lien,  591. 

a.  Contractor  or  Subcontractor,  591. 

b.  Materialman,  592. 
4.  Lienable  Claims,  592, 

6.  Property  Subject  to  Lien,  592. 

6.  Notice  or  Statement  of  Claim,  592. 

a.  Necessity,  592. 

b.  Sufficiency,  593. 

c.  Mailing,  594. 

d-  Verification,  594. 

7.  Waiver  and  Estoppel,  694. 

8.  Priority,  595. 

9.  Foreclosure,  595. 

a.  Limitations,  595. 

b.  Parties,  596. 

c.  Evidence,  597. 

d.  Findings  and  Judgpnent,  597. 

e.  Costs,  597.  / 

Effect    property    owner's    bankruptcy,    see 

Bankruptcy,  15. 
Filing  claim  of  homestead,  effect  on  lien, 

see  Homestead,  10. 
Defect  of  parties,  see  Parties  to  Actions,  1. 

1.     VALIDITY     AND     CONSTEUCTION 
OP  STATUTES. 

1.  Validity  of  Statute.  The  statute,  giv- 
ing a  subcontractor  a  lien  for  labor  and 
materials  actually  entering  into  the  struc- 
ture as  against  an  owner  with  whom  he 
had  no  direct  contractual  relation,  does  not 
violate  the  constitutional  right  of  liberty 
of  contract,  and  is  valid.  Becker  v.  Hop- 
per  (Wyo.)    1916D-1041. 

2.  Provision  for  Attorney's  Fee — ^Valid- 
ity. Comp.  St.  Wyo.  1910,  §  3807,  which 
provides  that,  in  all  suits  or  actions 
brought  in  the  district  court  to  enforce 
a  mechanic's  lien  in  which  plaintiff  shall 
obtain  judgment,  the  sum  of  $25  for  at- 
torney's fees  shall  be  taxed  as  costs  and 
recovered  from  the  adverse  party,  con- 
flicts with  the  federal  constitution's  guar- 
anty of  equal  protection  of  the  law.  Beck- 
er V.  Hopper  (Wyo.)  1916D-1041. 

(Annotated.) 


Note. 
Validity  of  mechanic's  lien  law  provid- 
ing for  taxing  of  attorney's  fees.     1916D- 
1044. 


2.     CONTRACT   UNDER   WHICH    LIEN 
ACQUIRED. 

3.  Contract  by  Agent — Scope  of  Lien. 
Colo.  Rev.  St.  1908,  §  4025,  giving  mechan- 
ics, materialmen,  etc.,  and  persons  perform- 
ing labor  or  furnishing  materials  for  the 
construction  of  any  building,  etc.,  a  lien 
upon  the  property  upon  which  they  have 
Tendered  service  or  bestowed  labor,  or  for 
which  they  have  furnished  materials  or 
other  fixtures,  for  the  value  of  such  ser- 
vices, labor,  or  material  rendered  or  fur- 
nished at  the  instance  of  the  owner  or  any 
person  acting  by  his  authority  or  under 
him  as  agent,  contractor,  or  otherwise,  for 
the  work  labor,  services,  or  materials  done 
furnished,  or  rendered  at  the  instance  or 
the  owner  of  the  building  or  other  im- 
provement, or  his  agent,  gives  a  lien  only 
upon  the  structure  or  improvement  built 
or  placed  upon  the  land.  Stewart  v.  Tal- 
bott   (Colo.)   1916C-1116. 

4.  Colo.  Rev.  St.  1908,  §  4025,  which, 
after  giving  a  lien  to  persons  furnishing 
labor,  etc.,  to  be  used  in  the  construction, 
etc.,  of  any  building  at  the  instance  of  the 
owner  or  his  agent,  provides  that  every 
contractor,  architect,  etc.,  or  other  person 
having  charge  of  the  construction,  altera- 
tion, addition  to,  or  repair  of  any  building 
or  improvement  shall  be  held  to  be  the 
agent  of  the  owner  for  the  purposes  of  that 
act,  merely  makes  such  person  the  statu- 
tory agent  of  the  owner  of  the  building  or 
improvement,  and  does  not  make  him  the 
agent  of  the  owner  of  the  land  upon 
which  the  improvement  is  placed.  Stewart 
v.  Talbott  (Colo.)  1916C-1116. 

5.  If,  under  a  long-term  lease  binding 
the  lessee  to  erect  a  building  on  the  de- 
mised premises  at  his  own  expense,  to 
become  a  part  of  the  realty,  the  lessee  is 
presumptively  the  agent  of  the  lessors 
within  the  mechanic's  lien  laws,  the  pre- 
sumption is  nullified  and  destroyed  by  a 
provision  in  the  lease,  which  was  duly  re- 
corded, that  nothing  therein  should  author- 
ize the  lessee  or  any  person  dealing  with 
him  to  charge  the  lands  or  any  interest  of 
the  lessors  therein  with  any  mechanic's 
lien  or  lien  of  any  kind,  notwithstanding 
a  covenant  by  the  lessee  that  it  would  not 
permit  or  suffer  any  bill  of  any  merhanic, 
laborer,  or  materialman,  or  for  fnrnish- 
iugs  or  equipment,  to  remain  unpaid,  and 
that  before  commencing  the  erection  and 
construction  of  the  building  it  would  fur- 
nish a  bond  guaranteeing  due  observance 
of  the  provisions  of  the  lease  relative  to 
mechanics'  liens,  in  view  of  Colo.  Rev. 
St.  1908,  §  694,  providing  that  all  deeds 
or  agreements  in  writing  affecting  the 
title  to  real  estate  or  any  interest  therein 


MECHANICS'  LIENS. 


591 


may  be  recorded,  and  that  from  and  after 
the' filing  thereof  for  record  they  shall  take 
eflect  as  to  subsequent  bona  fide  purchasers 
and  incumbrancers,  and  section  707,  defin- 
ing "deed,"  as  used  in  that  chapter,  as 
including  mortgages,  leases,  etc.,  as  the 
lease  was  constructive  notice  to  those  sub- 
sequently acquiring  an  interest  in  the 
premises,  and  whatever  agency  it  might  be 
presumed  was  created  thereby  was  neces- 
sarily subject  to  the  eonditioas  of  the  in- 
strument creating  the  agency.  Stewart  v. 
Talbott  (Colo.)  1916C-1116.      (Annotated.) 

6.  Under  Colo.  Eev.  St.  1908,  §§  4025, 
4027,  4029,  a  long-term  lease  binding  the 
lessee  to  erect  a  building  on  the  demised 
premises  to  become  a  part  of  the  realty 
upon  completion  does  not  make  the  lessee 
the  lessor's  agent  so  as  to  invest  him  with 
authority  to  create  a  lien  upon  the  lessor's 
interest  in  the  fee,  and  persons  doing  work 
and  furnishing  materials  under  contracts 
with  the  lessee  acquired  no  lien  on  the 
fee  where  the  lessors  neither  participated 
in  the  erection  or  construction  of  the  im- 
provement nor  approved  the  plans,  and  it 
does  not  appear  that  the  rents  reserved 
were  greater  than  the  reasonable  worth  of 
the  vacant  lots;  since,  if  the  improvements 
increased  the  value  of  the  freehold  estate, 
it  was  only  as  a  future  incident,  and  the 
lessor  was  not  the  owner  of  the  building 
or  structure,  but  would  become  such  only 
upon  the  expiration  of  the  lease  or  upon 
the  completion  of  the  building.  Stewart  v. 
Talbott  (Colo.)  1916C-1116.     (Annotated.) 

7.  A  long-term  lease  requiring  the  lessee 
to  erect  a  building  at  his  own  expense  to 
become  a  part  of  the  realty  upon  comple- 
tion was  not  a  contract  with  a  contractor 
for  the  construction  of  such  building  with- 
in Colo.  Rev.  St.  1908,  §  4025,  providing, 
relative  to  mechanics'  liens,  that  in  case  of 
a  contract  for  the  work  between  the  re- 
puted owner  and  a  contractor  the  lien  shall 
extend  to  the  entire  contract  price,  as  a 
"contractor"  is  one  who,  as  an  independ- 
ent business,  undertakes  to  do  specific  jobs 
of  work  without  submitting  himself  to 
control  as  to  the  petty  details,  especially 
as  the  contracts  with  the  parties  claiming 
the  liens  designated  the  lessee  as  owner 
and  the  lessors  were  not  therefore  the 
"reputed  owners."  Stewart  v.  Talbott 
(Colo.)  1916C-1116.  (Annotated.) 

8.  Improvements  by  Tenant  —  Elsrht  to 
Lien.  Under  Colo.  Rev.  St.  190S,  §  4029, 
providing  that  any  building,  etc.,  con- 
structed, altered,  etc.,  upon  any  land  with 
the  knowledge  of  the  owner  or  reputed 
owner  shall  be  held  to  have  been  erected, 
constructed,  etc.,  at  the  instance  and  re- 
quest of  such  owner,  so  as  to  subject  his 
interest  to  a  lien  unless  he  shall  within 
five  days  after  obtaining  notice  of  the 
erection,  construction,  etc.,  give  notice  that 
his  interests  shall  not  be  subject  to  any 
lien  personally,  or  by  posting  and  keeping 
posted   a   written    and   printed  notice    to 


such  effect  in  some  conspicuous  place  upon 
the  land,  building,  or  improvement,  pro- 
vided that  this  shall  not  apply  to  any 
owner  or  person  who  shall  have  contracted 
for  any  erection,  structure,  or  improve- 
ment, a  lessor  under  a  long-term  lease 
which  bound  the  lessee  to  erect  a  building 
upon  the  demised  premises  at  his  own  ex- 
pense, to  become  a  part  of  the  realty  upon 
completion,  is  not  required  to  post  the  stat- 
utory notice,  as  he  had  entered  into  a 
contract  with  reference  to  the  construction 
of  the  improvement,  and  was  by  the  very 
letter  of  the  proviso  exempted  from  the 
terms  of  that  section,  Stewart  v.  Talbott 
(Colo.)   1916C-1116.  (Annotated.) 

Note. 
Mechanic's  lien  on  realty  for  improve- 
ments made  with  consent  but  not  at  ex- 
pense of  owner.     1916C-1133. 

3.     PE-RSONS  ENTITLED  TO  LIEN, 
a.    Contractor  or  Subcontractor. 

9.  Eight  to  Lien — Contractor  Paid  in 
Full.  Where  a  lien  is  claimed  for  labor 
performed  or  materials  furnished  to  a  con- 
tractor the  right  to  the  lien  or  its  enforce- 
ment does  not  depend  on  the  condition  of 
the  accounts  between  the  owuer  and  the 
contractor,  and  the  fact  that  there  is  noth- 
ing due  from  the  owner  to  the  contractor 
does  not  defeat  the  lien.  Becker  v.  Hop- 
per (Wyo.)   1918B-35. 

10.  Who  is  "Subcontractor."  Under  the 
Mechanics'  Lien  Law  (Cal.  Code  Civ.  Proc. 
§  1194)  prior  to  the  amendment  of  1911, 
declaring,  that  laborers  and  materialmen 
should  have  preference  over  subcontractors 
in  participation  in  the  amount  applicable 
to  mechanics'  liens,  a  firm  which  lathed 
and  plastered  a  house,  furnishing  the  mate- 
rial; a  firm  which  constructed  most  of  the 
floors  and  walls,  furnishing  the  material; 
a  company  which  erected  part  of  the  walls 
of  bathrooms,  furnishing  the  necessary 
tile;  a  company  which  put  on  a  mission 
tile  roof,  furnishing  the  material;  a  firm 
which  laid  the  flooring  in  certain  rooms, 
furnishing  the  material;  and  a  person  who 
erected  the  tin  work  and  galvanized  iron 
and  copper  work,  a  substantial  part  of  the 
structure,  furnishing  the  materials — were 
all  "subcontractors"  under  the  statute, 
which  divides  the  liens  assertable  against 
the  property  into  four  classes,  laborers', 
materialmen's,  subcontractors',  and  ori'^cinal 
contractor's,  the  "original  contractor"  be- 
ing the  person  who  agrees  with  the  owner 
to  construct  a  building  on  his  property, 
'laborers"  being  those  who  perform  labor 
in  the  construction  of  the  building,  "ma- 
terialmen" being  persons  who  merely  fur- 
nish material  to  the  contractors  to  be  u?ed 
in  the  construction  of  the  building,  and 
"subcontractors"  being  all  persons  who 
agree  with  the  original  contractor  to  fur- 
nish the  material  and  construct  for  him 


592 


DIGEST. 

19160— 1918B. 


on  the  premises  some  part  of  the  structure 
which  the  original  contractor  has  agreed 
to  erect  for  the  owner,  although  literally 
a  "subcontractor"  is  one  who  agrees  with 
another  to  perform  a  part  or  all  of  the 
obligation  which  the  second  owes  by  con- 
tract to  a  third  person.  Hihn-Hammond 
Lumber  Co.  ▼.  Elsom  (Cal.)  1917C-798. 

(Annotated.) 
Note. 
Who  is  "subcontractor"  within  Mechan- 
ics' Lien  Law.     1917C-801. 

b.    Materialman. 

11.  Materialman.  A  materialman,  who 
is  not  the  contractor,  may  maintain  a  me- 
chanic's lien  claim  suit  against  the  building 
and  land  of  the  owner  when  the  specifi- 
cations do  not  accompany  and  are  not  filed 
with  the  written  contract.  Davis  v.  Miai 
(N.  J.)  1916E-1028. 

4.    LIENABLE  CLAIMS. 

12.  Cartage  of  Materials.  Where  mate- 
rial was  to  be  furnished  on  the  ground  at 
the  place  of  construction,  the  materialmen's 
small  items  for  cartage  are  properly  added 
to  lien  claims  for  the  cost  of  the  material 
furnished.  Brace,  etc.  Mill  Co.  v.  Burbank 
(Wash.)  1917E-739. 

13.  Transportation  of  Materials.  Under 
N.  J.  statute,  a  mechanic's  lien  claim  suit 
may  be  maintained  for  the  transportation 
and  delivery  of  materials,  as  for  labor  per- 
formed, for  the  erection  and  construction 
of  a  building.  Davis  v.  Mial  (N.  J.) 
1916E-1028.  (Annotated.) 

Note. 
Eight  to  mechanic's  lien  for  transporta- 
tion of  materials  to  be  used  in  connection 
with  improvement.     1916E-1030. 

5.     PROPERTY  SUBJECT  TO  LIETT. 

14.  Homestead  Subsequently  I>eclared. 
Wash.  Const,  art.  19,  provides  that  the 
legislature  shall  protect  from  forced  sale 
a  certain  portion  of  the  homestead  and 
other  property  of  all  heads  of  families. 
Rem.  &  Bal.  Wash.  Code,  §  528  et  seq.,  in 
general  execute  such  constitutional  pro- 
vision, but  section  533  subjects  the  home- 
stead to  the  satisfaction  of  mechanics' 
liens  on  the  premises.  A  house  was  builf 
for  defendants,  and  they  did  not  claim  a 
homestead  therein  until  after  materials 
had  been  furnished.  It  is  held  that  the 
subsequent  declaration  of  homestead  by 
the  owners  could  not  preclude  the  prior 
rights  of  the  materialmen.  Brace,  etc. 
Mill.   Co.  V.  Burbank   (Wash.)    1917E-739. 

(Annotated.) 

15.  Property  in  Hands  of  Trustee  in 
Bankruptcy.  Any  rights  of  the  trustee  in 
bankruptcy,  or  defendant  under  such  trus- 
tee are  subordinate  to  the  prior  rights  of 
plaintiff    under    his    mechanic's   lien     the 


right  to  file  which,  at  the  time  of  the  in- 
stitution of  bankruptcy  proceedings,  was 
0  property  right  in  plaintiff,  and  was  not 
thus  divested,  and  did  not  subsequently 
lapse  or  become  defeated  by  the  mere  ex- 
piration of  the  90-day  period,  but,  instead, 
is  by  the  terms  of  the  statute  saved  to 
plaintiff;  and  it  may  thereafter  perfect  and 
perpetuate  its  lien  by  filing  its  lien  state- 
ment, and  after  the  doing  of  which  the  lien 
remains  a  prior  lien  to  any  right  acquired 
by  the  trustee,  or  that  subsequently  ac- 
quired by  the  bankrupt.  Moreau  Lumber 
Co.  V.  Johnson  (N.  Dak.)  1917C-290. 

(Annotated.) 

16.  Estates  Subject  to  Lien — Remainder. 
An  estate  in  remainder  is  a  legal  estate 
and  will  support  an  action  under  the  Me- 
chanics' Lien  Act.  Davis  v.  Mial  ((N.  J.) 
1916E-1028. 

17.  Mortgaged    Property.     Under    Colo. 
'Rev.  St.  1908,  §  4027,  providing,  relative  to 

mechanics'  liens,  that  such  liens  shall  ex- 
tend to  and  cover  so  much  of  the  lands 
whereon  the  building  or  improvement  shall 
be  made  as  may  be  necessary  for  the  con- 
venient use  and  occupation  of  the  building 
or  improvement,  and  that  the  lien  for 
work  or  materials  done  or  furnished  for 
any  entire  structure  shall  attach  to  the 
building  for  or  upon  which  the  work  is 
done  or  materials  furnished  in  preference 
to  any  prior  lien,  incumbrance,  or  mort- 
gage, that  any  person  enforcing  such  lien 
may  have  the  building  sold,  and  that  the 
lien  shall  extend  to  and  embrace  any 
additional  or  greater  interest  in  any  of  the 
property  acquired  by  the  owner  at  any 
time  subsequent  to  the  making  of  the  con- 
tract or  the  commencement  of  the  work, 
and  before  the  establishment  of  the  lien 
by  process  of  law.  the  land  upon  which 
a  building  or  improvement  is  erected  or 
placed  cannot  be  subjected  to  a  lien  unless 
the  owner  of  the  land  has  some  ownership 
in  the  building  and  acts  aCBrmatively  rela- 
tive to  its  construction.  Stewart  v.  Tal- 
bott  (Colo.)    1916C-1116. 

Note.     , 
lien      against    homestead. 


Mechanic's 
1917E-747. 

6.        NOTICE 


OR      STATEMENT 
CLAIM. 

a.    Necessity. 


OF 


18.  Necessity  of  Filing.  Wyo.  Comp. 
St.  1910,  §  3799,  giving  a  mechanic's  lien 
upon  compliance  with  the  provisions  of  the 
chapter,  and  section  3803,  requiring  a  sub- 
contractor, within  90  days  after  the  in- 
debtedness accrues,  to  file  a  true  and  just 
account  of  the  demand  due  him,  were  not 
affected  by  Sess.  Laws  1911,  c.  68,  amend- 
ing and  re-enacting  Comp.  St.  1910,  §  3805, 
to  provide  that  a  lien  account  as  fi'ed  shall 
be  admitted  in  evidence  and  making  it  a. 
question  of  fact  whether  the   account  is 


MECHANICS'  LIENS. 


593 


sufficient  to  charge  the  owner,  since  the 
filing  of  the  lien  statement  is  not  a  mat- 
ter of  evidence  preserving  the  lien,  but 
0  prerequisite  to  the  creatioa  of  the  lien 
itself,  nor  does  the  amendment,  if  appli- 
cable purport  to  have  a  retroactive  effect. 
Becker  v.  Hopper  (Wyo.)  1916D-1041. 

b.     Sufficiency. 

19.  Objection  to  Claom — (Jeneral  Objec- 
tion. Where,  in  a  suit  to  foreclose  me- 
ebanics'  liens,  the  owner's  counsel  objected 
to  a  lien  claim,  defective  in  that  it  did  not 
claim  a  lien  against  the  house  as  well  as 
iLe  lot,  merely  generally  by  desiring  an 
exception  and  adding,  "An  exception  as 
to  the  sufficiency  of  the  description  and 
the  signature,"  such  objection  is  not  suffi- 
ciently specific  as  pointing  out  in  what 
particular  the  description  was  defective  so 
as  to  allow  amendment,  and  on  appeal  the 
claim  would  be  treated  as  amended.  Brace, 
etc.  Mill  Co.  V.  Burbank  (Wash.)  1917E- 
739. 

20.  Effect  of  Defects  in  Lien  Claim,  Un- 
der Eem.  &  Bal.  Wash,  Code,  §  1134,  pro- 
viding that  the  lien  claim  may  be  amended 
in  the  foreclosure  action  as  other  pleadings 
so  far  as  third  parties  are  not  affected, 
where  a  mechanic's  lien  claim  read  that 
the  claimant  at  the  request  of  the  general 
contractor,  commenced  to  perform  labor 
upon  a  certain  lot,  the  performance  of 
which  labor  ceased  at  a  certain  date,  stat- 
ing its  value,  and  that  for  it  the  claimant 
claimed  a  lien  on  the  property  "herein 
described"  for  a  certain  sum,  such  claim 
is  not  materially  defective;  the  failure  to 
claim  a  lien  on  the  improvement  being 
merelv  an  amendable  defect.  Brace,  etc. 
Mill.  Co.  v.  Burbank  (Wlash.)  1917E-739. 

21.  Signature  to  Lien  Claim.  Under 
Rem.  &  Bal.  Wash.  Code,  §  1134,  prescrib- 
ing the  form  for  mechanic's  lien  claims,  a 
materialman's  claim  signed  "W.  &  R.,  At- 
torneys for  Claimant,"  but  verified  by  the* 
claimant  in  person,  he  signing  the  verifica- 
tion at  the  foot  of  the  notice  following 
his  attorneys'  signature,  is  a  sufficient  sign- 
ing of  the  notice  by  him  and  a  substantial 
compliance  with  the  statute.  Brace,  etc. 
Mill  Co.  V.  Burbank  (Wash.)  1917E-739. 

22.  Construction  of  Notice  —  Person 
Claiming  Lien.  Under  Wash.  Laws  1911, 
p.  376,  providing  that  a  materialman,  to 
claim  a  lien,  must  give  notice  to  the  owner 
that  he  is  furnishing  materials  and  that  a 
lien  may  be  claimed,  where  a  contractor, 
in  furnishing  materials  for  a  house,  stated 
in  its  lieu  notice  to  the  owner  that  the 
material  had  been  ordered  by  the  J.  T. 
Plumbing  Company  (a  company  other  than 
the  one  giving  notice),  such  notice  cannot 
be  made  the  basis  of  a  lien  claim  on  the 
part  of  such  plumbing  company,  whatever 
the  rights  of  the  company  which  served  the 
notice  might  be  thereunder,  althoueh  the 
statute  does  not  expressly  provide  that  the 

38 


lien  which  may  be  claimed  in  pursuance  of 
such  notice  shall  be  only  a  lien  by  the 
person  giving  it,  such  being  its  plain  soirit 
and  intention.  Brace,  etc.  MUl  Co.  v.  Bur- 
bank (Wash.)  1917E-739. 

23.  Necessity  of  Notice.  Where  mate- 
rial is  furnished  for  a  building  on  the  or- 
der of  the  owner,  instead  of  the  contractor, 
formal  statutory  notice  to  such  owner  is 
not  a  condition  precedent  to  the  material- 
man's lien.  Brace,  etc.  Mill  Co.  v.  Bur- 
bank (Wash.)  1917E-739. 

23^^.  Showing  Capacity  of  Complaint.  In 
a  consolidated  action  to  foreclos3  mechan- 
ics' liens,  where  the  lien  claims  of  certain 
firms  stated  that  they  had  respectively 
performed  labor  on  the  building,  the  claim 
of  one  stating  that  its  members  had  per- 
formed certain  labor  in  the  construction  of 
the  house,  and  also  had  furnished  certain 
materials  used  therein,  a  finding  ranking 
such  parties  as  materialmen  or  laborers  is 
sufficiently  sustained  by  the  respective 
cjaims  of  lien.  Hihn-Hammond  Lumber 
Co.  v.  Elsom  (Cal.)  1917C-798. 

24.  Sufficiency  of  Lien  Statement.  Un- 
der Wyo.  Comp.  St.  1910,  §  3799,  giving  a 
lien  to  every  person  who  performs  labor 
upon,  or  furnishes  material  for,  any  build- 
ing upon  complying  with  the  provisions  of 
the  chapter,  and  section  3803,  requiring 
every  subcontractor,  within  90  days  after 
the  indebtedness  accrues,  to  file  in  the 
office  of  the  register  of  deeds  of  the  proper 
county  a  just  and  true  account  of  the  de- 
mand due  him  after  allowance  of  all  cred- 
its, where  it  appeared  that  the  subcon- 
tractor had  a  contract  for  the  tin  work, 
and  for  labor  and  material,  including  gal- 
vanized ironwork,  steel  ceilings,  skylights, 
and  glass,  his  lien  statement,  "Becker 
Hotel  contract,  tinwork,  etc.,  $1,292,"  was 
insufficient,  since  the  abbreviation  "etc." 
means  "and  other  things,"  and  since  it  was 
not  sufficiently  specific  to  enable  one  not 
a  party  to  the  contract  to  identify  the 
things  for  which  the  lien  was  claimed. 
Becker  v.  Hopper  (Wyo.)   1916D-1041. 

25.  Under  Wash.  Laws  1911,  p.  376,  pro- 
viding that  a  materialman,  to  claim  a  lirn, 
must  give  notice  that  he  is  furnishing  ma- 
terials and  that  a  lien  may  be  claimed, 
where  a  materialman  mailed  its  notice  to 
the  owner  stating  that  the  material  was 
being  furnished  to  the  general  contractor 
at  a  street  address  which  was  correct,  ex- 
cept that  it  failed  to  name  the  city,  the 
contractor  being  correctly  designated,  such 
lien  notice  is  sufficient,  as  it  manifestly 
referred  to  a  street  and  number  in  the  par- 
ticular city  of  the  owner's  and  material- 
man's residence.  Brace,  etc.  Mill  Co.  v, 
Burbank  (Wash.)  1917E-739. 

26.  Contents  of  Notice — Description  of 
Property.  Under  Wash.  Laws  1911,  p.  376, 
providing  that  a  materialman,  to  claim  a 
lien,  must  give  notice  to  the  owner  that 
he  is  furnishing  materials  and  that  a  lien 


594 


DIGEST. 

1916C— 1918B. 


may  be  claimed,  where  ft  materialman 
stated  in  its  notice  that  it  was  furnishing 
material  upon  "lot  12,  block  1,  Thompson's 
University  Add.,"  the  description  being 
sufficient  as  to  the  official  name  of  the 
lot  and  block,  except  that  the  name  of  the 
eity  was  omitted,  the  notice  being  in  other 
respects  sufficient,  naming  the  contractor 
to  whom  the  material  was  being  furnished, 
such  notice  is  sufficient,  since  the  statute 
does  not  require  that  the  premises  be  de- 
scribed in  any  particular  manner;  its  re- 
quirements being  satisfied  when  the  notice 
is  sufficient  to  inform  one  of  ordinary  in- 
telligence to  what  premises  it  refers. 
Brace,  etc.  Mill  Co.  v.  Burbank  (Wash.) 
1917E-739. 

c.     Mailing. 

27.  Sufficiency  of  Mailing — ^Incorrect  Ad- 
dress. Under  Wash.  Laws  1911,  p.  376, 
providing  that  every  person  furnishing 
materials  to  be  used  in  construction  work 
shall,  within  five  days  of  delivery,  deliver 
or  mail  to  the  owner  a  notice  in  writing 
claiming  a  lien,  and  that  no  materialman's 
lien  shall  be  enforced  unless  the  provisions 
of  the  act  have  been  complied  with,  where 
a  materialman  mails  its  notice  to  the  owner 
at  "5519  First  Avenue  Northeast,  City," 
bis  correct  address  being  1519  Fifteenth 
Avenue  Northeast,  City,  the  postoffice  au- 
thorities correcting  the  address  and  the 
notice  being  received  by  defendant  in  due 
course,  there  is  a  compliance  with  the  stat- 
ute. Brace,  etc.  MiU  Co.  v.  Burbank 
(Wash.)  1917E-739. 

d.     Verification. 

28.  Who  may  Take — Interested  Person. 

The  statute  providing  that  the  officer  be- 
fore whom  verification  is  made  must  not 
be  the  attorney  of  either  party,  or  other- 
wise interested  in  the  event  of  the  action 
or  proceeding,  applies  only  to  pleadings 
which  are  to  be  filed  in  such  action  or  pro- 
ceeding, and  not  to  the  verification  of  a 
lien  statement  made  when  there  was  no 
proceeding  pending.  Becker  v.  Hopper 
(Wyo.)  1916D-1041. 

7.     WAIVER  AND  ESTOPPEL. 

29.  Waiver  —  Agreement  to  Protect 
Against  Liens.  A  contractor's  bond,  to 
indemnify  the  owner  against  any  lien  or 
claim  for  which  the  owner  might  become 
liable  and  which  is  chargeable  to  the  con- 
tractors, to  pay  all  indebtedness  incurred 
by  the  contractors  in  carrying  out  the  con- 
tract, and  to  complete  the  contract  free 
from  mechanics'  liens,  does  not  operate  as 
a  waiver  of  lien  of  the  contractors  them- 
selves. Mavnard  v.  Lange  (Ore.)  1916E- 
547. 

30.  Attachment  by  Lien  Claimant.  The 
right  to  enforce  a  mechanic's  lien  is  not 
lost  by  the  fact  that  the  lienor,  by  levying 
an  attachment  upon  other  property,  there- 


by obtains  additional  security.    Martin  t. 
Becker  (Cal.)  1916D-171. 

31.  Waiver — Taking  Additional  Security. 
In  view  of  Cal.  Const,  art.  20,  §  15,  declar- 
ing a  mechanic's  lien  in  favor  of  parties 
furnishing  labor  or  material,  and  the  law 
requiring  notice  thereof  by  record,  the 
mere  circumstance  that  a  mechanic  or  ma- 
terialman has  taken  additional  security  for 
his  debt  should  not  destroy  his  lien;  nor 
should  the  conclusion  that  the  additional 
security  was  meant  to  be  a  substituted 
security  for  the  right  to  the  lien  be 
reached,  unless  it  plainly  appears  from  the 
nature  of  the  contract  that  the  security 
was  in  fact  substituted,  and  not  cumula- 
tive; and  no  argument  for  the  destruction 
of  a  mechanic's  lien  can  be  based  on  the 
theory  of  its  secrecy.  Martin  v.  Becker 
(Cal.)  1916D-171. 

32.  Where  a  contract  between  the  owner 
and  the  contractor  requires  the  conclusion 
that  they  intended  to  waive  the  mechanic's 
lien,  or  where  a  contract  is  taken  upon  the 
same  property,  or  where  the  payment  to 
the  lien  claimant  was  to  be  made  by  a 
deed  of  part  of  the  property,  the  contract 
58  inconsistent  with  the  right  to  a  mechan- 
ic's lien,  which  will  be  denied.  Martin  v. 
Becker  (Cal.)   1916D-171. 

33.  Waiver — Taking  Additional  Security. 
The  taking  of  a  new  or  additional  security 
operates  to  destroy  an  existing  lien,  where 
the  destruction  is  worked  by  virtue  of  a 
positive  declaration  of  law,  by  the  con- 
tract of  the  parties,  by  necessary  intend- 
ment growing  out  of  the  agreement  of  the 
parties,  in  that  the  taking  of  the  later 
security  is  inconsistent  with  the  continued 
existence  of  the  lien,  and  by  the  nature 
of  the  earlier  or  later  security,  as  that  it 
is  concealed  or  undisclosed,  giving  rise  to 
a  situation  where  it  would  be  fraudulent 
upon  other  claimants  to  permit  the  earlier 
lien  to  be  held  valid,  whereupon  equity  in- 
terposes, and  declares  it  to  have  been 
waived  or  lost  by  the  taking  of  the  later 
security,  or  in  effect  erects  a  bar  to  its 
enforcement.  Martin  v.  Becker  (Cal.) 
1916D-171. 

34.  Waiver — Taking  Mortgage  Security. 
Under  Cal.  Code  Civ.  Proc  §  726.  providing 
that  there  can  be  but  one  action  for  the 
recovery  of  any  debt  secured  by  a  mort- 
gage, a  materialman,  taking  a  mortgage 
on  real  property  of  the  contractor  in  terms 
covering  the  contractor's  debts  for  the 
material,  may  retain  and  resort  to  the 
security  of  the  mortgage  lien,  and  at  the 
same  time  claim  and  foreclose  a  mate- 
rialman's lien.  Martin  v.  Becker  (Cal.) 
1916D-171.  (Annotated.) 

35.  Estoppel  of  Subcontractor  to  Claim. 
A  subcontractor  having  a  lien  for  the  rea- 
sonable value  of  labor  performed  and  ma- 
terial furnished,  not  exceeding  the  original 
contract  price,  and  required  to  prorate  with 
other  lien  claimants  of  the  same  class  in 


MECHANICS'  LIENS. 


Sd5 


case  the  claims  exceeded  the  contract 
price,  by  taking  the  contractor's  check  for 
the  amount  of  his  lien  and  giving  a  receipt 
in  full  to  enable  the  contractor  to  obtain 
money  of  the  owner  which  otherwise  would 
not  have  been  paid,  and  which  reduced 
the  balance  on  the  contract  price  to  a 
sum  less  than  the  amount  of  lien,  is  es- 
topped from  enforcing  such  lien;  the  fact 
that  some  other  lienor  might  have  had  a 
claim  for  a  lien  against  the  owner  being 
unimportant.  West  v.  Pinkston  (Utah) 
1916D-1065.  (Annotated.) 

S6.  In  such  case  the  subcontractor  is  en- 
titled to  recover  against  the  owner  only 
the  balance  of  the, contract  price;  the  fact 
that  the  house  when  complete  was  worth 
more  than  such  contract  price  being  imma- 
terial. West  v.  Pinkston  (Utah)  1916D- 
1065.  (Annotated.) 

37.  Waiver.  Any  lien  claimant  may 
waive  his  right  to  a  lien,  either  by  not 
filing  a  notice  of  his  intention  to  claim  a 
lien  within  the  time  prescribed  by  statute, 
or  by  informing  the  owner  that  he  has 
received  payment  from  the  original  con- 
tractor, or  that  he  will  not  insist  on  his 
right  to  file  a  lien.  West  v.  Pinkston 
(Utah)   1916D-1065. 

38.  Enforcement — ^Election  of  Eemedies, 
The  provision  of  Cal.  Code  Civ,  Proc.  §  726, 
that  there  can  be  but  one  action  for  the 
recovery  of  any  debt  secured  by  a  mort- 
gage, being  intended  for  the  benefit  of  the 
primary  debtor,  is  one  which,  under  the 
express  provision  of  Civ.  Code,  §  3513,  he 
may  waive.  Martin  v.  Becker  (Cal.) 
1916D-171. 

Notes. 

Failure  to  comply  with  contract  as  de- 
fense to  claim  for  mechanic's  lien.  1916E- 
549. 

Representations  of  subcontractor  induc- 
ing payment  to  contractor  as  estopping 
former  from  claiming  mechanic's  lien. 
1916D-1068. 

Loss  of  mechanic's  lien  by  taking  mort- 
gage security.     1916D-179. 

8.     PEIOEITY. 

39.  Preference  to  Laborers  and  Material- 
men Over  Subcontractors.  Cal.  Code  Civ. 
Proc.  §  1194,  declaring  that  laborers  and 
materialmen  shall  have  preference  over  sub- 
contractors in  participation  in  the  amount 
applicable  to  mechanics'  liens,  is  not  vio- 
lative of  Const,  art.  20,  §  15,  providing  that 
mechanics,  materialmen,  artisans,  and  la- 
borers of  every  class  shall  have  a  lien  for 
labor  or  material  furnished,  since  such 
provision  serves  merely  to  place  on  an 
equal  footing  mechanics,  materialmen,  arti- 
sans, and  laborers  who  personally  perform 
work.  Hihn-Hammond  Lumber  Co.  v.  El- 
som  (Cal.)  1917C-798. 

40.  Payments  —  Application.  Where  a 
lien  was  filed  for  tinwork,  and  the  lienor 


had  also  furnished  hardware  in  the  amount 
of  $375,  for  which  no  lien  was  filed,  a 
payment  of  $900  on  account,  made  at  a 
time  when  less  than  $70  worth  of  the 
hardware  had  been  furnished,  should  be 
applied  on  the  lien  account.  Becker  v. 
Hopper  (Wyo.)  1916D-1041. 

9.    FORECLOSURE, 
a.    Limitations. 

41.  Limitation  of  Action  —  Effect  of 
Amendment.  In  a  suit  to  establish  a  me- 
chanic's lien,  complainant  did  not  make 
the  trustees  under  a  prior  mortgage  par- 
ties before  the  expiration  of  the  ninety 
days  from  the  service  of  notice  of  lien. 
An  amended  bill  in  which  the  trustees 
were  named  as  defendants  was  filed.  In 
that  bill  the  complainant  prayed  that  the 
court  determine  the  interest,  if  any,  held 
by  the  trustees,  and  that,  if  the  mortgage 
be  found  a  valid  prior  lien,  complainant 
be  permitted  to  subject  the  equity  of  de- 
fendants to  the  satisfaction  of  his  claim. 
Shannon's  Tenn.  Code,  §  4495,  declares 
that  at  any  time  before  trial  new  parties 
may  be  added.  It  is  held  that,  as  no 
relief  was  sought  against  the  trustees,  the 
notice  required  by  section  3536,  which  is  a 
condition  precedent  to  a  mechanic  securing 
priority  over  the  mortgage,  not  having 
been  served,  the  amendment  will  be  treated 
as  relating  back  to  the  original  bill,  and 
the  trustees  cannot  defeat  the  bill  on  the 
plea  of  limitation.  Niehaus  v.  C.  B.  Bar- 
ker Construction  Co.  (Tenn.)  1918B-23. 

42.  Institution  of  Foreclosure  —  Time. 
Rem.  &  Bal.  Wash.  Code,  §  1138,  declares 
that  no  lien  shall  bind  the  property  for  a 
period  longer  than  eight  calendar  months 
after  claim  has  been  filed,  unless  action  be 
commenced  within  that  time  to  enforce 
such  lien.  Laws  1893,  p.  407,  §  1,  passed 
at  the  same  session  of  the  legislature,  de- 
clares that  civil  actions  in  the  several 
superior  courts  shall  be  commenced  by 
service  of  process.  This  section,  as  amend- 
ed by  Laws  189'o,  appears  as  Rem.  &  Bal. 
Code,  §  220,  providing  that  civil  actions 
ill  the  several  superior  courts  shall  be 
commenced  by  the  service  of  a  summons 
or  by  filing  a  complaint  with  the  county 
clerk  as  clerk  of  the  court,  but  unless  ser- 
vice has  been  had  on  defendant  prior  to 
the  filing  of  the  complaint,  plaintiff  shall 
cause  one  or  more  of  the  defendants  to  be 
served  personally.  It  is  held  that  as  the 
provision  with  respect  to  the  duration  of 
the  lien  is  not  a  statute  of  limitation,  but 
marks  the  extent  of  the  lien,  service  of 
process  on  the  owner  of  the  property  on 
which  the  lien  is  sought  must  be  had  with- 
in the  eight-month  period,  notwithstanding 
the  subsequent  amendment  of  Laws  1893 
(Rem.  &  Bal.  Code,  §  220)  relating  to  com- 
mencement of  actions.  City  Sash,  etc.  Co. 
V.  Bunn  (Wash.)  1918B-31. 


596 


DIGEST. 

1916C— 1918B. 


b.    Parties. 


43.  Where  a  prior  mortgage  on  the  prem- 
ises upon  which  complainant  sought  a 
mechanic's  lien  had  been  discharged  save 
as  to  a  few  mortgage  bonds,  the  holders 
of  which  could  not  be  discovered,  and  the 
amount  of  such  had  been  deposited  for 
payment,  a  mechanic's  lien  against  the 
premises  cannot  be  defeated  because  the 
trustees  under  the  mortgage  who  yet  held 
the  legal  title  were  not  made  parties  with- 
in ninety  days  after  serving  notice  as 
required  by  lawj  for  in  such  case  the  trus- 
tees were  practically  nominal  parties.  Nie- 
haus  V.  C.  B.  Barker  Construction  Co. 
(Tenn.)   1918B-23.  (Annotated.) 

44.  In  such  case  the  contractor  and 
mortgagor  cannot  defeat  the  lien  because 
the  trustees  of  the  mortgage,  who  held  the 
legal  title,  were  not  brought  in  within  the 
ninety-day  period;  for,  while  such  parties 
were  indispensable,  yet,  as  no  relief  was 
sought  against  them,  limitations  do  not  ap- 
ply any  more  than  where  the  contractor 
is  not  originally  made  a  party.  Niehaus 
V.  C.  B.  Barker  Construction  Co.  (Tenn.) 
1918B-23.  (Annotated.) 

45.  Where  one  seeking  a  mechanic's  lien 
failed  to  make  the  trustees  of  a  prior  mort- 
gage parties,  but  later  brought  them  in  by 
amendment,  such  amendment  does  not,  un- 
der Shannon's  Tenn.  Code,  §  5237,  declaring 
that  the  attachment  laws  shall  be  liberally 
construed,  and  plaintiff  shall  be  permitted 
to  amend  any  defect  of  form,  destroy  an 
attachment  levied  against  the  contractor 
and  owner  under  the  original  bill.  Nie- 
haus V.  C.  B.  Barker  Construction  Co. 
(Tenn.)  1918B-23,  (Annotated.) 

46.  The  decree  in  a  mechanic's  lieu  fore- 
closure suit,  to  which  B.  was  a  part}-  de- 
fendant, under  HI.  Mechanic's  Lien  Act 
(Kurd's  Eev.  St.  1913,  c.  82,  §  25),  §  11,  as 
a  person  haying  a  claim  to  the  premises, 
that  R.  was  the  owner  of  the  premises  in 
fee  simple,  and  that  W.  was  entitled  to  a 
lien  thereon,  and  ordering  sale  of  the 
premises  free  of  all  claims  of  the  parties, 
is  conclusive  between  the  parties  as  to 
the  matters  actually  determined,  and  to 
every  other  thing  within  the  knowledge  of 
the  parties  which  might  have  been  set  up 
as  ground  for  relief  or  defense,  and  is  a 
bar  to  subsequent  suit  by  B.,  based  on  the 
fact,  known  by  him  at  the  time  of  the  lien 
suit,  that  R.  had  bought  the  premises  with 
money  embezzled  by  him  from  B.,  to  have 
it  decreed  that  the  land  was  held  in  trust 
for  B.,  and  for  that  reason  to  have  issu- 
ance of  deed  on  sale  under  the  decree  in 
the  lien  suit  enjoined.  Bacon  v.  Reichelt 
(111.)  1918B-1.  (Annotated.) 

47.  Under  Utah  Comp.  Laws  1907,  §  2914, 
providing  that  any  person  may  be  made 
a  defendant  who  has  or  claims  an  interest 
in  the  controversy  adverse  to  the  plaintiff, 
one  who,  under  a  contract  for  sale  of  land, 
by   instalments,    claims   a   lien    prior    and 


superior  to  mechanics'  liens  on  the  prop- 
erty, although  not  an  indispensable  party, 
is  properly  made  a  defendant  in  the  pro- 
ceeding to  enforce  the  mechanics'  liens,  for 
the  purpose  of  determining  the  amount  and 
character  of  his  claim.  Cain  v.  Parfitt 
(Utah)   1918B-28.  (Annotated.) 

48.  Under  Wyo.  Comp.  St.  1910,  §§  3806, 
3809,  3816.  providing  that  in  suits  to  en- 
force mecnanics'  liens  the  parties  to  the 
controversy  shall  be  made  parties,  and  con- 
structive service  may  be  had  on  any  non- 
resident, and  providing  that,  when  the 
debtor  has  been  served  by  publication,  the 
judgment,  if  for  plaintiff,  shall  be  for 
the  amount  of  the  indebtedness  to  be  levied 
out  of  the  property  charged  with  the  lien, 
and  requiring  the  contractor  to  defend  an 
action  to  enforce  a  lien,  and  declaring 
that,  pending  the  action,  the  owner  may 
withhold  from  the  contractor  the  amount 
of  money  for  which  a  lien  is  filed,  the  con- 
tractor is  a  necessary  party  in  a  suit  by  a 
subcontractor  to  enforce  a  me^-'hanic's  lien 
in  the  sense  that  the  owner  may  require 
that  he  be  made  a  party,  or  by  proper 
and  timely  objection  defeat  the  action  for 
failure  to  make  him  a  party,  though  he  is 
not  an  "indispensable  party,"  who  is  one 
who  must  be  brought  into  court  before  the 
controversy  may  be  determined.  Becker 
V.  Hopper  (Wyo.)  1918B-35.     (Annotated.) 

49.  The  failure  of  a  subcontractor  suing 
to  enforce  a  mechanic's  lien  to  make  the 
contractor  a  party  may  be  waived  by  the 
owner.  Becker  v.  Hopper  (Wyo.)  1918B- 
35.  (Annotated.) 

50.  Wyo.  Comp.  St.  1910,  §  3S06,  provid- 
ing that  in  suits  to  enforce  mechanics'  liens 
the  parties  to  the  "controversy"  shall  be 
made  parties,  and  those  not  made  parties 
shall  not  be  bound,  adds  practically  noth- 
ing to  what  the  law  would  be  without  it, 
for  it  leaves  the  matter  of  parties  to  be 
determined  by  the  court,  and  does  not 
make  the  contractor  a  necessary  or  indis- 
pensable party  to  a  suit  by  one  furnishing 
labor  and  materials  to  the  contractor;  the 
word  "controversy"  being  defined  as  a  dis- 
pute arising  between  two  or  more  persons 
in  a  civil  action  at  law  or  in  equity  or  a 
proceeding  at  law.  Becker  v.  Hopper 
(Wyo.)   1918B-35.  (Annotated.) 

51.  Where,  in  a  suit  to  foreclose  a  sub- 
contractor's lien,  the  petition  named  the 
contractor  a  party,  but  there  was  a  failure 
to  make  him  a  party  because  of  the  in- 
sufficiency of  constructive  service  on  him 
while  a  nonresident,  the  owner,  on  discov- 
ering the  facts,  must  raise  the  objection  of 
failure  to  make  the  contractor  a  party  by 
amended  answer,  setting  forth  defective 
constructive  service  on  the  contractor. 
Becker  v.  Hopper  (Wyo.)  1918B-35. 

(Annotated.) 

52.  The  proceeding  to  establish  and  fore- 
close a  mechanic's  lien  being  one  in  rem, 
the  owner  of   the  property   sought   to   be 


MECHANICS'  LIENS. 


597 


subjected  to  the  lien  is  a  necessary  party, 
as  jurisdiction  of  the  property  can  be  pro- 
cured in  no  other  manner,  so  such  owner 
must  be  made  a  party  within  the  time  lim- 
ited to  institute  action.  City  Sash,  etc. 
Co.  T.  Bunn  (Wash.)  1918B-31. 

(Annotated.) 

53.  Consolidation  of  Proceedings — Effect 
— Party  not  Served  in  One  Proceeding. 
Where  several  actions  to  foreclose  a  me- 
chanic's lien  were  consolidated,  the  fact 
that  the  court  had  inherent  power  to  con- 
aolidate  the  several  actions  does  not  re- 
lieve the  several  lien  claimants  of  the  duty 
to  serve  process  on  the  owner  of  the  prem- 
ises, and  by  imputation  make  the  service 
in  favor  of  some  of  the  lien  claimants 
effective  as  to  the  others.  City  Sash,  etc. 
Co.  V.  Bunn  (Wash.)  1918B-31. 

54.  Mortgagor  —  Necessity  of  Joining. 
Where  a  materialman  took  a  mortgage  on 
the  contractor's  real  property  in  terms  cov- 
ering the  debts  of  the  contractor  for  the 
material  so  furnished  him,  the  mortgagor 
is  not  a  necessary  party  to  an  action  to 
foreclose  the  materialman's  lien,  since  the 
action  is  not  against  the  primary  debtor, 
the  mortgagor,  and  has  no  bearing  upon 
the  primary  contract.  Martin  v.  Becker 
(Cal.)   1916D-171. 

55.  Nonjoinder  of  Parties  —  Waiver. 
Where  defendant  owners,  in  a  suit  to  fore- 
close mechanics'  liens,  allowed  the  trial 
court  to  proceed  without  requesting,  until 
the  end  of  trial,  that  their  general  con- 
tractor be  made  a  party  defendant,  any 
right  they  had  to  insist  upon  such  joinder 
is  waived.  Brace,  etc.  Mill  Co.  v.  Burbank 
(Wash.)   1917E-739. 

56.  Establishment — Necessary  Parties — 
General  Contractor.  Under  Eem.  &  Bal. 
Wash.  Code,  §  1129,  providing  that  every 
contractor  shall  be  held  to  be  the  agent 
of  the  owner  for  the  purposes  of  the  es- 
tablishment of  mechanics'  liens,  in  a  suit 
to  foreclose  mechanics'  liens  the  general 
contractor  who  acted  for  defendant  owner 
in  building  the  house  is  not  a  necessary 
party  defendant.  Brace,  etc.  Mill  Co.  v. 
Burbank  (Wash.)  1917E-739. 

Note. 
Necessary  or  proper  parties  to  action  to 
foreclose  mechanic's  lien.     1918B-3. 


c.     Evidence. 

57.  Effect  of  Failure  to  Comply  With 
Plans  and  Specifications.  Under  Ore.  L.  O. 
L.  §§  725,  726,  providing  that  the  evidence 
shall  correspond  with  the  substance  of  the 
material  allegations  and  each  party  shall 
prove  his  own  affirmative  allegations, 
where  the  contract  alleged  in  a  suit  to 
foreclose  a  contractor's  lien  provided  for 
drainage  from  exterior  moisture  and  seep- 
age, which  was  omitted,  and  for  an  even 
and  sufficient  drainage  to  all  floor  drains 


and  traps,  while  the  floor  as  fashioned 
would  not  completely  drain  to  the  outlets, 
the  lien  will  not  be  enforced,  but  the  con- 
tractors will  be  remitted  to  their  remedy 
at  law.  Maynard  v.  Lange  (Ore.)  1916E- 
547.  (Annotated.) 

d.     Findings   and  Judgment. 

58.  Foreclosure  Decree  as  Adjudication. 
In  an  action  to  foreclose  a  contract  for 
purchase  of  land  because  of  a  breach  by 
failure  of  the  purchaser  to  pay  instalments, 
where  plaintiff  was  made  a  defendant  in  a 
prior  action  by  holders  of  mechanics'  liens 
on  the  property,  and  answered,  setting 
forth  his  contract,  its  breach,  and  claiming 
a  lien  prior  and  superior  to  the  mechanics' 
liens,  and  obtained  a  judgment  to  the  full 
extent  of  his  claims,  there  is  a  binding 
adjudication  of  his  claims,  and  he  can- 
not bring  another  action  to  foreclose  the 
lien.     Cain  v.  Parfitt  (Utah)  1918B-28. 

59.  Enforcement  of  Lien — Finding  as  to 
Payment.  In  a  proceeding  to  enforce  a 
materialman's  lien  against  a  bankrupt  con- 
tractor and  the  owners,  a  finding  that  the 
contractor  paid  $1,000  to  a  materialman 
on  his  general  account,  and  not  on  account 
of  material  for  a  building  for  a  certain 
owner,  is  a  finding  that  the  account  for 
material  furnished  for  that  building  was 
not  reduced  by  any  specific  payment.  Mar- 
tin v.  Becker  (Cal.)  1916D-171. 

60.  Judgment  in  foreclosure  is  awarded 
that  the  property  may  be  sold  and  the 
proceeds  applied  in  payment  of  the  amount 
secured  by  the  lien,  with  costs,  but  no  de- 
ficiency judgment  as  on  the  lien  debt  will 
be  entered  against  defendant  after  the  sale 
of  the  property.  Moreau  Lumber  Co.  v. 
Johnson  (N.  Dak.)  1917C-290. 

(Annotated.) 

e.     Costs. 

61.  Recovery  not  Exceeding  Tender.    A 

subcontractor  entitled  to  enforce  his  lien 
only  to  the  amount  of  the  balance  of  the 
contract  price  which  the  owner  had  stood 
ready  to  pay,  so  that  no  action  need  have 
been  brought  to  recover,  is  not  entitled 
to  costs  against  the  owner.  West  v.  Pink- 
ston  (Utah)  1916D-1065. 

62.  Hearing  as  to  Costs.  In  a  material- 
man's suit  to  enforce  his  lien,  consolidated 
with  a  suit  by  another  lien  claimant,  in 
which  a  party  defendant,  having  no  notice 
of  the  setting  of  the  case  for  trial,  and 
not  appearing  thereat,  after  adverse  judg- 
ment moved  for  a  new  trial,  the  denial 
thereof,  on  the  ground  that  the  total 
amount  due  it  had  been  deposited  in  court 
by  one  of  the  plaintiffs  in  full  satisfaction 
of  its  claim,  is  irregular,  in  that  such  a 
party,  entitled  to  prevail  in  the  action,  is 
not  allowed  to  file  a  cost  bill,  and  to  estab- 
lish the  amount  to  which  it  is  entitled 
in  addition  to  its  claim.  Martin  v.  Becker 
(Cal.)  1916D-171. 


598 


DIGEST. 

1916C— 1918B. 


63.  Where  the  action  was  to  foreclose 
mechanics'  liens  on  a  homestead,  the  in- 
advertent and  erroneous  presence  in  the 
decree  of  a  provision  that  the  purchaser 
of  the  premises  at  the  sale  should  be  let 
into  possession,  the  error  not  being  claimed 
by  defendant,  appellant,  until  his  reply 
brief  was  filed,  does  not  entitle  him  to  his 
costs  on  appeal  because  of  the  modification 
of  the  decree  correcting  the  error.  Brace, 
etc.  Mill  Co.  V.  Burbank  (Wash.)  1917E- 
739. 

64.  On  Appeal  —  Correction  of  Trivial 
Error.  Where,  in  a  suit  to  foreclose  me- 
chanics' liens,  the  court  drew  a  memoran- 
dum decision  stating  the  amount  and  the 
interest  to  which  each  claimant  was  enti- 
tled, in  which  the  interest  allowed  was 
slightly  excessive  because  computed  from 
the  time  of  furnishing  material,  instead  of 
from  the  time  of  filing  liens,  and  further 
stating  that  the  case  would  be  further 
considered  as  to  any  claim  of  error  in  the 
opinion,  and  two  weeks  elapsed  before  the 
entry  of  final  decree,  without  objection 
to  the  erroneous  allowance  of  interest,  the 
error  is  not  of  such  substantial  nature  as 
to  warrant  the  award  of  costs  on  appeal 
to  defendant  owner,  the  appellant.  Brace, 
etc.  Mill  Co.  V.  Burbank  (Wash.)  1917E- 
739. 

MEDICINE. 

iSee  Drugs  and  Druggists;  Physicians  and 
Surgeons. 

MEETINGS. 

Of  stockholders,  see  Corporations,  85-100. 
Of  city  councils,  see  Municipal  Corpora- 
tions, 151,  152. 


MEMSEBSHIF. 

In  joint-stock  company,  see  Joint  Adven- 
tures, 9,  10. 

MEMOEANDUM. 

Sufficiency  under  statute,  see  Frauds,  Stat- 
ute of,  14-18. 

MEMOEANDUM  OF  OBJECTIONS. 

Bee  Pleading,  38. 

MEMORY. 
Meaning,  see  Libel  and  Slander,  Z5. 

MENTAL  SUFFERINa. 

(In  actions  for  defamation,  see  Libel  and 
Slander,  154. 

MERCANTILE  AGENCIES. 

Reports  of  as  evidence,  see  Evidence.  97. 
Publication  of  false  report,  see  Libel  and 
Slander,  28,  54,  55,  100. 


MERGER. 

See  Corporations. 

Of  street  railway  corporations,  see  Street 
Railways,  7-19. 

Of  tax  title  in  subsequent  deed,  see  Tax- 
ation, 115. 

MERGER  OF  ESTATEa 

Of  estates,  see  Estates,  3-6. 

See  RemaJjiders  and  Reversions,  4. 

MERITORIOUS  DEFENSE. 

As  ground  for  vacating  judgment,  see 
Judgments,  32. 

METERS  AND  CONNECTIONS. 

Public  water  supply,  see  Waterworks  and 
Water  Compjuiies,  2-4. 

MICROSCOPIC  OBSERVATIONS. 
Of  handwriting,  see  Evidence,  63. 

MIDDLE   OF  THE  MAIN  CHANNEL. 
Meaning,  see  States,  4. 

MIDDLE  OF  THE  RIVER. 

Meaning,  see  States,  4. 

MILEAGE. 

Of  sheriff  and  deputies,  see  SherifTs  and 
Constables,  12. 

MILITIA. 

See  Army  and  Navy;  Martial  Law;  War. 

Reduced  rates  of  fare,  see  Carriers  of  Pas- 
sengers, 8-10. 

Courts-martial,  see  Courts,  1,  19,  20. 

Judicial  notice  that  state  pays  lor  travel 
of,  see  Evidence,  17. 

1.  Right  of  Parent  to  Release  of  Minor. 
Where  a  minor  over  sixteen  and  under 
eighteen  years  of  age  enlists  in  the  Na- 
tional Guard  without  the  consent  of  his 
parents,  such  minor  becomes  a  de  facto 
and  de  jure  soldier,  subject  to  the  juris- 
diction of  the  military  authorities  and  lia- 
ble to  be  tried  by  a  court-martial  for  a 
military  offense,  notwithstanding  his  par- 
ents exercised  their  right  to  avoid  the  en- 
listment. Hoskins  v.  Dickerson  (Fed.) 
19I7C-776.  (Annotated.> 

2.  As  Eev.  St.  §  761  [3  Fed.  St.  Ann. 
(2d  ed.)  469],  commands  the  court,  on 
hearing  of  the  issues  raised  by  petition 
for  writ  of  habeas  corpus  and  the  return 
thereto,  to  dispose  of  the  parties  as  law 
and  justice  require,  the  court  will  not,  on 
habeas  corpus  brought  by  the  parent  of  a 
minor  over  sixteen  and  under  eighteen  to 
avoid  his  enlistment  in  the  National  Guard, 
command  his  immediate  surrender  by  the 


MILITIA. 


599 


military  authorities,  where  by  reason  of 
his  enlistment  he  committed  a  military 
offense,  but  will  allow  his  retention  by 
the  military  authorities  so  that  he  may  be 
punished  by  the  proper  military  tribunal 
for  the  military  offense;  the  court  issuing 
the  habeas  corpus  having  no  jurisdiction 
over  such  offense.  Hoskins  v.  Dickerson 
(Fed.)  1917C-776.  (Annotated.) 

3.  Enlistment  of  Minor — ^Parental  Con- 
cent. National  Defense  Act  June  3,  1916, 
c.  134,  §  27,  39  Stat.  185  (Fed.  St.  Ann. 
Pamph.  Supp.  No.  7,  p.  63),  declaring  that 
no  person  under  the  age  of  eighteen  shall 
be  enlisted  or  mustered  into  the  military 
service  of  the  United  States  without  the 
written  consent  of  his  parents  or  guardian, 
providing  that  such  minor  has  such  parents 
or  guardian  entitled  to  his  custody  and 
control,  applies  to  an  enlistment  in  the 
National  Guard  called  into  the  service 
of  the  United  States,  and  is  not  appli- 
cable solely  to  enlistment  in  the  regular 
army,  though  the  section  is  found  among 
provisions  applicable  to  the  regular  army, 
the  expression  "enlisted  or  mustered  into 
service  of  the  United  States"  showing  an 
intention  of  Congress  that  the  section 
should  apply  to  the  National  Guard,  and 
hence  the  father  of  a  minor  under  the  age 
of  eighteen  years,  who  without  his  written 
consent  enlisted  in  the  National  Guard,  is 
entitled  to  avoid  the  enlistment.  Hoskins 
V.  Dickerson  (Fed.)   1917C-776. 

4.  Liability  of  Ofllcer  to  Subordinate — 
Recommendation  Against  Promotion  as 
Libel — Privilege.  Where  a  letter  respect- 
ing the  advancement  of  a  sergeant  of  the 
Connecticut  National  Guard  is  sent  by  the 
colonel  to  the  captain  for  explanation  or 
indorsement,  his  indorsement  thereon  as 
to  the  sergeant's  fitness  for  promotion  is 
privileged,  and  he  cannot  be  held  for  libel 
in  the  absence  of  "malice,"  which  means 
being  actuated  by  an  unjustifiable  motive. 
Gray  ▼.  Mossman  (Conn.)  1917C-27. 

(Annotated.) 

5.  Liability  of  Oflcers  for  Tort.     In  an 

action  against  officers  of  the  state  militia 
for  destruction  of  a  stock  of  liquors,  where 
defendants  admit  plaintiff's  ownership  of 
the  property  and  their  destruction  of  it, 
they  render  themselves  liable  in  nominal 
damages  at  least,  unless  they  can  offer 
legal  justification  for  their  act,  Herlihy 
V.  Donohue   (Mont.)   1917C-29. 

(Annotated.) 

6.  Where  plaintiff  alleges  and  proves  his 
ownership  in  liquors,  their  destruction  by 
defendants,  officers  of  the  state  militia, 
without  his  consent,  and  his  damages  con- 
sequent upon  the  act,  he  makes  out  a  prima 
facie  case.  Herlihy  v.  Donohue  (Mont.) 
1917C-29.  (Annotated.) 

7.  Where  a  militia  officer,  during  labor 
troubles,  orders  the  closing  of  saloons, 
except  between  8  A.  M.  and  7  P.  M.,  under 
penalty   of    destruction    of    the    stock   of 


liquors,  and  a  saloon  keeper  fails  to  ob- 
serve the  order,  subordinate  militia  offi- 
cers, who  merely  follow  their  superior  offi- 
cer's commands  in  destroying  the  offending 
saloon  keeper's  stock,  are  not  subject  to 
civil  liability  since  the  order  for  the  de- 
struction of  the  property  is  one  which  the 
commanding  officer  might  lawfully  make  if 
the  circumstances  of  the  case  warranted  it, 
and,  as  it  is  valid  on  its  face,  the  subor- 
dinate officers  cannot  refuse  obedience 
until  they  have  investigated  the  legality 
of  the  order.  Herlihy  v.  Donohue  (Mont.) 
1917C-29.  (Annotated.) 

8.  Where  a  county  is  declared  to  be  in  a 
state  of  insurrection  on  account  of  labor 
troubles,  but  rioters  in  a  city  are  not 
threatening  to  break  into  a  saloon  to  ob- 
tain intoxicants,  so  that  destruction  of  its 
stock  is  not  necessary  to  prevent  excesses, 
such  destruction  by  militia  officers  for  vio- 
lation of  their  commanding  officer's  order 
that  saloons  shall  close,  except  from  8 
A.  M.  until  7  P.  M.,  is  not  a  valid  exer- 
cise of  the  state's  "police  power,"  its 
power  to  regulate  and  control  every  act 
or  thing  within  its  jurisdiction  which  tends 
to  subvert  the  government,  injure  the  pub- 
lic, destroy  the  morals  of  the  people,  or 
disturb  the  peace  and  good  order  of  society, 
delegated  by  the  governor,  the  supreme 
executive  power  of  the  state,  to  the  militia 
Herlihy  v.  Donohue  (Mont.)  1917C-29. 

(Annotated.) 

9.  Where  the  governor  declares  a  county 
to  be  in  a  state  of  insurrection  on  account 
of  labor  troubles,  and  a  militia  officer  or- 
ders the  closing  of  saloons  in  a  city,  before 
any  punishment  can  be  inflicted  upon  a 
saloon  keeper  for  disobeying  the  order, 
notice  to  him  of  the  charge  against  him, 
opportunity  for  him  to  prepare  and  pre- 
sent his  defense,  and  an  adjudication  of 
his  guilt,  by  some  competent  tribunal  are 
indispensable.  Herlihy  v.  Donohue  (Mont.) 
1917C-29.  (Annotated.) 

10.  Officers  of  the  state  militia,  who  de- 
stroy a  saloon  keeper's  stock  of  liquors 
for  violation  of  the  closing  order  of  the 
officer  commanding  in  the  district,  declared 
to  be  in  a  state  of  insurrection  on  account 
of  labor  troubles,  cannot  justify  their  act 
as  a  military  necessity  where  the  liquors 
are  not  needed  for  or  devoted  to  the  use 
of  the  troops,  and  the  destruction  is  not 
necessary  to  prevent  the  liquor  falling  into 
the  hands  of  the  enemy;  no  state  of  war 
existing.  Herlihy  v.  Donohue  (Mont.) 
1917C-29.  (Annotated.) 

11.  Order  of  Superior  as  Justification. 
A  subordinate  military  officer  is  not  ren- 
dered personally  liable  for  injury  resulting 
to  private  property  from  executing  a  law- 
ful order  issued  by  the  governor  as  com- 
mander in  chief  of  the  military  forces. 
Hatfield  v.  Graham  (W,  Va.)  1917C-1. 

(Annotated.) 

12.  Calling  Into  Service  of  United  States 
—Failure  to  Take  Federal  Oath.     Const. 


600 


DIGEST. 

1916C— 1918B. 


art.  1,  §  8  (8  Fed.  St.  Ann.  6o2,  654),  de- 
clares that  Congress  shall  have  power  to 
provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress 
insurrection,  and  repel  invasion,  and  to 
make  provision  for  organizing  and  disci- 
plining the  militia  and  for  governing  such 
part  thereof  as  may  be  employed  m  the 
service  of  the  United  States.  Dick  Law 
Jan.  21,  1903,  c.  196,  32  Stat.  775,  as 
amended  by  Act  May  27,  1908,  c.  204,  35 
Stat.  399  (Fed.  St.  Ann.  1909  Supp.  346), 
authorized  the  President  to  call  into  ser- 
vice the  state  militia.  Act  June  3,  1916 
(Fed.  St.  Ann.  Pamph.  Supp.  No.  7,  40), 
for  the  national  defense,  establishing  the 
National  Guard,  and  intending  to  increase 
the  eflBciency  of  the  militia,  provides  in 
section  58  that  the  National  Guard  shall 
consist  of  the  regular  enlisted  militia 
armed  and  equipped  as  provided  by  the 
act.  Section  70  provides  that  enlisted  men 
in  the  National  Guard  of  the  several  states 
and  territories  serving  under  enlistment 
contracts  containing  an  obligation  to  de- 
fend the  constitution  of  the  United  States 
and  to  obey  the  orders  of  the  President, 
shall  be  recognized  as  members  of  the 
National  Guard  under  the  provisions  of  the 
act  for  the  unexpired  portion  of  their  en- 
listment contracts,  and  that,  when  any 
such  enlistment  does  not  contain  such  obli- 
gation, the  enlisted  man  shall  not  be  recog- 
nized as  a  member  of  the  National  Guard 
until  he  shall  have  signed  a  new  enlist- 
ment contract,  etc.  Members  of  the  Mas- 
sachusetts militia,  who  had  taken  an  oath 
to  faithfully  observe  and  obey  the  laws 
for  the  regulation  of  the  government  of 
the  volunteer  militia  of  the  commonwealth, 
and  to  support  the  constitution  of  the 
United  Stafes,  were  called  into  active  ser- 
vice by  the  President  to  repel  invasion  by 
a  foreign  foe.  It  is  held  that,  as  the  latter 
statute  should  receive  a  liberal  construc- 
tion, members  of  the  Massachusetts  militia 
who  did  not  elect  to  sign  a  new  enlistment 
contract  are  nevertheless,  until  the  expira- 
tion of  their  terms,  subject  to  being  called 
into  active  service  to  repel  invasion  or 
put  down  insurrection,  etc.  Sweetser  v. 
Emerson  (Fed.)  1917B-244.      (Annotated.) 

13.  "What  Constitutes  Enlistment — Oath 
— Evidence  of  Taking  Oath.  Considering 
together  the  several  provisions  of  La.  Act 
191  of  1912,  upon  the  subject  of  enlist- 
ment, the  conclusion  is  well-nigh  irresist- 
ible that,  in  the  contemplation  of  that  stat- 
ute, the  taking  of  the  prescribed  oath  is 
the  determinative  act.  But,  without  say- 
ing that  no  one  can  be  held  to  have  en- 
listed without  having  taken  such  oath,  the 
court  finds  that  the  evidence  here  adduced, 
of  acts  and  omissions  by  relator,  is  insuffi- 
cient to  establish  such  intention  or  consent 
on  his  part.  State  v.  Long  (La.)  1917B- 
240. 

14.  Enlistment  as  Contract  —  Imposing 
Additional  Duties.     Enlistment  in  the  ac- 


tive militia  of  the  state,  save  in  tinles  of 
war  or  public  danger  or  disturbance,  is 
voluntary,  and  is  a  "contract,"  and  the 
state  has  no  power,  by  the  repeal  of  the 
law  under  which  it  was  entered  into  (and 
which  is  the  measure  of  the  rights  and  obli- 
gations of  the  parties  thereto)  and  the 
substitution  of  another  law  in  its  stead,  to 
impose  upon  the  other  contracting  party 
more  onerous  conditions  and  obligations  to 
which  he  has  not  given  his  assent.  State 
v.  Long  (La.)  1917B-240.         (Annotated.) 

15.  Jurisdiction  —  Breach  of  Peace. 
Where,  during  mobilization  of  state  mil- 
itia, at  the  time  of  the  Mexican  trouble,  a 
company  of  soldiers  marching  to  a  meeting 
for  the  purpose  of  encouraging  enlistments 
pushed  its  way  through  the  crowd  there 
gathered,  but  it  is  not  shown  that  it  was 
aone  violently,  or  that  the  prosecuting  wit- 
ness was  even  touched,  or  that  there  was 
malice,  wantonness,  or  criminal  intent,  the 
military  authorities^  and  not  the  state 
courts,  have  authority  to  try  members  of 
the  company  for  such  alleged  breaches  of 
the  peace.  In  re  Wulzen  (Fed.)  1917A- 
274.  (Annotated.) 

16.  If  a  member  of  the  militia  is  charged 
with  disorderly  conduct  in  violation  of 
a  municipal  ordinance,  a  paramount  rem- 
edy is  provided  for  by  punishment  by  the 
military  authorities.  In  re  Wulzen  (Fed.) 
1917A-274.  (Annotated.) 

17.  Although  military  authorities  may 
have  priority  to  try  alleged  offenses 
against  state  law  or  municipal  ordinances, 
it  does  not  necessarily  follow  that  the 
victims  of  such  offenses  may  not  by  pro- 
ceedings in  the  state  courts  secure  redress. 
In  re  Wulzen  (Fed.)  1917A-274. 

(Annotated.) 

18.  If  military  authorities  have  the  right 
to  try  members  of  the  militia  for  viola- 
tions of  state  law  or  municipal  ordinances, 
it  is  by  virtue  of  a  federal  law,  and  if 
there  is  such  a  law  it  is  paramount;  nor 
does  it  deprive  citizens  of  any  rights  un- 
der state  law.  In  re  Wulzen  (Fed.)  1917A- 
274.  (Annotated.) 

19.  Criminal  Jurisdiction  of  State  Court. 
Under  the  Habeas  Corpus  Act  (3  Fed.  St. 
Ann.  162,  et  seq.  Comp.  St.  1913,  §§1279- 
1293),  a  federal  court  may  issue  a  writ  of 
habeas  corpus  to  inquire  into  the  cause  of 
detention  of  a  member  of  the  state  militia 
held  by  a  state  on  a  criminal  charge,  if 
the  petitioner  alleges  that  the  alleged  of- 
fense was  committed  in  the  performance 
ot  his  duty  as  a  soldier  of  the  United 
States,  and  the  court  may  determine  sum- 
marily whether  such  allegation  is  true, 
and,  if  true,  may  discharge  the  prisoner 
on  the  ground  that  the  state  court  is  with- 
out jurisdiction.  In  re  Wulzen  (Fed.) 
1917A-274.  (Annotated.) 

Notes. 


Enlistment      in      militia 
1917B-244. 


as     contract. 


MILL  RACE— MINES  AND  MINERALS. 


601 


Criminal  jurisdiction  of  state  court  over 
member  of  National  Guard.     1917A-279. 

Power  of  federal  government  with  re- 
spect to  state  militia.     1917B-250. 

Civil  or  criminal  liability  of  soldier  or 
militiaman  for  injury  to  person  or  prop- 
erty.    1917C-8. 

MILL  RACE. 

Duty  to  guard  children,  see  Negligence,  24. 

MINES  AND  MINERALS. 

1.  Statutory  Eegulation  of  Mining  Opera- 

tions, 601. 

2.  Conveyance   and    Reservation   of    Min- 

erals, 601. 

3.  Mining  Leases  and  Contracts,  601. 

a.  Construction  and  Operation,  601. 

b.  Forfeiture  and  Abandonment,  601. 

4.  Tenancy  in  Common,  601. 

5.  Injury    to    Property    from   Working    of 

Mine,  602. 

See  Adverse  Possession,  15-18. 

Injury  to  adjoining  property,  see  Adjoin- 
ing Landowners,  12-17. 

Condemnation  of  mineral  land,  see  Eminent 
Domain,  34. 

No  partition  of  mines  in  kind,  see  Par- 
tition, 5,  8. 

L   STATUTORY  REGULATION   OF 
MINING  OPERATIONS. 

1.  Legal  Meaning  of  "Any."  Ala.  Acts 
1896-97,  p.  1099,  was  entitled  "An  act  to 
regulate  the  mining  of  coal  in  Alabama," 
and  section  27  of  that  act  provided  that 
no  boy  under  the  age  of  12  years  should 
be  employed  to  work  or  labor  in  or  about 
the  mines  in  the  state.  Code  1907,  §  1035, 
which  revised  that  act,  provided  that  no 
boy  under  14  should  be  employed  in  any 
mine  in  the  state.  Held,  that  the  substi- 
tution in  the  Code  section  of  the  word 
"any,"  which  in  its  ordinary  significance 
means  "all,"  "every,"  for  the  word  "the" 
in  the  statute  of  1897  indicated  a  legis- 
lative intent  that  the  Code  section  should 
Dot  be  limited  to  coal  mines  as  was  the 
original  statute  by  reason  of  its  title.  Cola 
V.  Sloss-Sheffield  Steel,  etc.  Co.  (Ala.) 
1916E-99.  (Annotated.) 

Note. 
Meaning  of  "all"  as  used  with  respect 
to  minerals.     1917E-70. 

2.     CONVEYANCE  AND  RESERVATION 
OF  MINERALS. 

2.  Effect  of  Severance  of  Mineral  and 
Surface  Rights.  Possession  of  the  surface 
of  land  by  one  who  has  by  his  conveyance 
of  the  mineral  interest  severed  the  latter 
from  the  surface,  is  not  a  possession  of 
the  underlying  severed  mineral  interest, 
nor  does  such  possession  inure  to  the  owner 
of  the  mineral;  distinct  estates  being  cre- 
ated by  the  severance.  Northcut  v.  Church 
(Tenn.')    1918B-545.  (Annotated.) 


3.  The  grantor  of  minerals  by  implica- 
tion of  law  conveys  the  right  to  obtain 
access  to  them  through  the  surface,  and 
against  such  purpose  does  not  hold  the 
surface  adversely.  Northcut  v.  Church 
(Tenn.)  1918B-54o.  (Annotated.) 

Note. 

Resulting  rights  of  mine  owner  after 
severance  of  surface  and  mineral  estates. 
1918B-550. 

3.     MINING  LEASES  AND  CONTRACTS. 
a.     Construction  and  Operation. 

4.  If  such  lease  specifically  provides  that 
the  amount  to  be  paid  for  delay  in  drilling 
may  be  paid  by  the  lessee  to  a  bank  named 
in  the  lease  to  the  credit  of  the  lessor,  and 
payment  is  made  in  accordance  with  the 
terms  of  the  lease,  the  lessor  cannot  avoid 
the  effect  of  such  payment  by  refusing  to 
withdraw  the  sum  from  the  bank  to  which 
it  was  paid  by  his  direction,  "When  so 
paid  said  fund  became  the  property  of  the 
lessor  and  can  be  lawfully  paid  to  no  one 
except  upon  his  order.  Kachelmacher  v. 
Laird  (Ohio)  1917E-1117.         (Annotated.) 

5.  Mining  Lease — Nature  of  Instrument. 
Instruments  called  mining  leases  involved 
in  this  action  are  leases  in  fact  as  well 
as  in  name,  and  the  amounts  stipulated  to 
be  paid  by  the  lessees  are  rents.  State  v. 
Royal  Mineral  Association  (Minn.)  1918A- 
145. 

Note. 
Covenants  in  mining  leases  for  diligent 
prosecution  of  work.     1917E-1120. 

b.     Forfeiture  and  Abandonment. 

6.  Mining  Lease — Effect  of  Failure  to 
Prosecute  Work.  There  being  an  express 
condition  written  in  an  oil  and  gas  lease 
as  to  the  right  of  the  lessor  to  declare 
forfeiture  thereof  for  delay  in  drilling  the 
first  well,  no  covenant  authorizing  forfeit- 
ure for  such  delay  can  be  implied  in  direct 
opposition  to  the  plain  provisions  of  the 
written  contract.  Kachelmacher  v.  Laird 
(Ohio)    1917E-1117.  (Annotated.) 

7.  Where  a  lease  of  land  for  ten  years 
for  oil  or  gas  purposes  provides  that  the 
lease  shall  be  void  if  no  well  is  drilled 
within  four  months  from  the  date  thereof 
unless  the  lessee  shall  pay  the  lessor  the 
sum  of  fifty  dollars  for  each  and  every  year 
that  the  drilling  of  such  well  is  delayed, 
payment  of  such  sum  by  the  lessee  to  the 
lessor,  according  to  the  terms  and  provis- 
ions of  the  lease,  prevents  forfeiture  and 
continues  the  lease  in  force  during  the  year 
for  which  such  payment  is  made.  Kachel- 
macher V.  Laird  (Ohio)  1917E-1117. 

(Annotated.) 

4.     TENANCY  IN  COMMON. 

8.  Extraction  of  Ore  by  Cotenant — Meas- 
ure of  Damages.  The  measure  of  damages 
for    the     reckless,    wilful,    or    intentional 


602 


DIGEST. 

1916Cf— 1918B. 


taking  of  ore  or  timber  from  the  land  of 
arother  without  right  is  the  enhanced 
value  of  the  ore  or  timber  when  it  is  finally 
converted  to  the  use  of  the  trespasser, 
without  allowance  to  him  for  the  labor  be- 
stowed or  expense  incurred  in  removing  it 
and  preparing  it  for  market.  Silver  King 
Coalition  Mines  Co.  v.  Silver  King  Consol. 
Min.  Co.  (Fed.)  1918B-571.      (Annotated.) 

Note. 

Eight  of  tenant  in  common  to  remove 
minerals  from  soil.     1918B-580. 

5.       INJURY     TO     PROPERTY     FROM 
WORKING  OF  MINE. 

9.  Injury  from  Ordinary  Mining  Opera- 
tions. The  defendant  is  not  liable  for 
drying  up  of  a  surface  spring  caused  by  his 
mining,  if  done  in  the  usual  and  ordinary 
way.  Stonegap  Colliery  Co.  v.  Hamilton 
(Va.)  1917E-60. 

10.  Unguarded  Shaft— Liability  of  Own- 
er. The  owner  of  a  mining  claim  is  not 
liable  to  the  owner  of  live  stock  for  dam- 
ages resulting  from  live  stock  running  at 
large  falling  into  a  pit,  prospect  hole,  or 
mining  shaft  left  open  by  the  miner,  and 
the  locator  or  owner  of  mining  claims  is 
not  bound  by  law  to  fence  or  inclose  the 
same  in  order  to  protect  live  stock  run- 
ning at  large  on  the  public  domain  from 
being  injured  by  falling  into  the  same. 
Strong  V.  Brown  (Idaho)   1916E-482. 

(Annotated.) 

11.  Shaft  as  Nuisance.  It  is  lawful  for 
the  miner  to  sink  holes,  pits,  and  shafts  on 
mineral  lands,  and  to  do  so  is  not  of  itself 
an  act  of  negligence,  and  an  excavation, 
pit,  or  shaft  made  by  a  miner  in  the  prose- 
cution of  his  work  is  not  of  itself  a  nui- 
sance. Strong  V.  Brown  (Idaho)  1916E- 
482. 

Note. 
Liability  of  mine  owner  or  operator  for 
injuries  resulting^  from  unguarded  mining 
excavations.     1916E-484. 


MZNOUNG  GOODS. 
See  Confusion. 

MINIMIZINO  DAMAGES. 
See  Contracts,  76,  77. 

MINING  LRA.se. 
Defined,  see  Mines  and  Minerals,  5. 

MINISTEEIAL  ACTS. 

Mandamus  to  compel   see  Mandamus,  8,  9 
17,  18. 


See  Infants. 


MCNOES. 


MISCARRIAGE. 
Use  of  drug  to  procure,  see  Abortion,  1. 
Caused  by  shot,  see  Homicide,  3. 

MISCONDUCT  OF  COUNSEL. 
See  Prosecuting  Attorneys,  2. 

MISDEMEANOR. 
Defined,  see  Criminal  Law,  7. 

MISLAID  PROPERTY. 
Rights  of  finder,  see  Lost  Property,  1,  8-5. 

MISREPRESENTATION. 

See  False  Pretenses;  Fire  Insurance; 

Fraud;  Insurance;  Life  Insurance. 

MISREPRESENTATIONa 
See  Fraud,  1-7. 

MISJOINDER  OF  PARTIES. 
See  Parties  to  Actions. 

MISTAKE. 

As  defense,  see  Assault,  5, 

Of  attorney  as  ground  for  vacating  judg- 
ment, see  Judgments,  42. 

Payment  by  mistake,  recovery,  see  Pay- 
ment, 11,  12. 

MISTAKE  OF  FACT. 
As   affecting   validity    of   will,   see   "Wills, 
102,  103. 

MISTAKE  OF  LAW. 
As  invalidating   compromise,  see  Compro- 
mise and  Settlement,  2. 

MITIGATION  OF  DAMAGES. 

See  Assault,  15-17;  Damages,  3. 
Bad  reputation  of  plaintiff,  see  Libel  and 
Slander,  157-160. 

MOBS. 
See  Unlawful  Assembly. 
Suppression  by  militia,  see  Militia,  8. 

1.  Effect  of  Knowledge  or  Co-operation 
of  Officers.  A  city  is  not  relieved  from  lia- 
bility for  mob  violence  because  its  officers 
were  cognizant  of  the  purpose  of  the  mob 
before  the  illegal  action  was  taken,  nor 
even  where  thev  co-operated  with  the  mob. 
Blakeman  v.  Wichita  (Kan.)  1916D-188. 

2.  The  fact  that  these  persons  did  not 
voluntarily  come  into  the  jail  does  not  pre- 
vent their  action  from  being  that  of  a 
mob,  nor  is  the  primary  purpose  for  which 
they  assembled  material  if  they  in  fact 
formed  and  executed  the  unlawful  pur- 
pose after  thev  were  brought  together. 
Blakeman  v.  Wichita  (Kan.)  1916D-1SS. 

(Annotated.) 


MODIFICATION— MONOPOLIES. 


603 


3.  Liability  for  Acts  of  Mob — Prisoners 
in  Jail  as  Mob.  A  large  number  of  per- 
sons confined  together  in  a  city  jail,  who 
joined  together  to  whip  another  prisoner, 
and  who  did  severely  whip  and  injure  him, 
are  held  to  be  a  mob  or  riotous  assemblage 
within  the  meaning  of  the  statute  making 
cities  liable  for  damages  resulting  from 
mob  violence.  Blakeman  v.  Wichita  (Kan.) 
1916I>-188.  (Annotated.) 

MODIFICATION". 
Of  injunction,  see  Injunctions,  40. 

MODIFICATION  OF  CONTRACTS. 

See  Contracts,  44. 

MONEY  HAD  AND  RECEIVED. 

1.  Bills  of  Particulars — When  Required 
— ^Action  for  Reimbursement  of  Expenses. 
In  an  action  by  a  son  against  his  father's 
estate  for  reimbursement  for  expenses  in 
procuring  his  brother's  parole  from  prison, 
plaintiff  may  be  required  to  file  a  bill  of 
particulars  showing  his  claim  in  detail. 
Gordon  v.  Gordon's  Adm'r.  (Ky.)  1917D- 
886. 

MONEY  LOANED. 

Liability  of  infant,  see  Infants,  6. 

MONSa 

See  Religious  Societies,  1-4. 

MONOMANIA. 

Defined,  see  Wills,  59. 

MONOPOLIES. 

1.  At  Common  Law,  603. 

2.  Under  Statutes,  604. 

a.  Construction  of  Statutes,  604, 

b.  Combination  Within  Statutes,  604. 

c.  Actions,  604, 

Supply  of  fuel  by  city  to  thwart  monop- 
oly, see  Municipal  Corporations,  39. 

Prevention,  see  Public  Service  Commis- 
sions, 22. 

1,     AT  COMMON  LAW, 

1,  What  Constitutes.  A  monopoly  is 
created  when,  as  a  result  of  efforts  to  that 
end,  businesses  are  so  concentrated  that 
one  man  or  set  of  men  practically  control 
the  production  and  disposition  of  a  com- 
modity to  the  exclusion  of  competition. 
Attorney  General  v.  National  Cash  Eeg- 
ister  Co.  (Mich.)  1916D-638, 

(Annotated,) 

2,  For  a  corporation  to  institute  numer- 
ous suits  against  competitors  for  the  vio- 
lation of  patents,  some  of  which  had  ex- 
pired, where  the  purpose  is  to  stifle  com- 
petition by  harassing  and  wearing  out 
competitors,  is  under  competition.     Attor- 


ney General  v.  National  Cash  Register  Co. 
(Mich.)   1916D-638. 

3.  A  corporation,  which  for  the  purpose 
of  securing  a  monopoly  has  its  agents 
harass  and  interfere  with  the  salesmen  of 
competitors,  is  guilty  of  unfair  competi- 
tion. Attorney  General  v.  National  Cash 
Register  Co.  (Mich,)   1916D-638. 

4.  Unfair  Competition  to  Obtain  Monop- 
oly. A  corporation,  which  for  the  purpose 
of  obtaining  a  monopoly  induces  purchasers 
from  its  competitors  to  repudiate  their 
contract,  is  guilty  of  unfair  competition. 
Attorney  General  v.  National  Cash  Reg- 
ister Co.  (Mich,)   1916D-638, 

5.  Restraint  on  Future  Occupation  — 
Validity.  A  contract  by  a  person  em- 
ployed as  draftsman  and  engineer  that  he 
will  not  engage  as  principal  or  agent  in  a 
business  similar  to  that  of  his  employer 
anywhere  in  the  United  Ejingdom  within 
seven  years  after  the  termination  of  the 
employment  is  unreasonable  and  void. 
Herbert  Morris  v.  Saxelby  (Eng.)  1916D- 
537.  (Annotated.) 

6.  Necessity  of  Regulating  Competition. 
Unregulated  competition  is  the  tool  of  un- 
regulated monopoly.  Idaho  Power,  etc.  Co. 
V.  Blomquist  (Idaho)  1916E-282, 

7.  Combination  to  Raise  Prices.  Where 
a  conspiracy  to  raise  the  prices  of  neces- 
saries of  life  is  shown,  it  is  no  defense 
that  a  person,  not  one  of  the  conspirators, 
sold  the  same  commodity  at  as  high  a 
price  as  the  conspirators  had  agreed  on, 
or  that  one  might  think  that  the  price 
agreed  on  was  reasonable,  or  that  the 
commodity  could  not  be  produced  profit- 
ably at  less  than  the  price  agreed  on,  in 
view  of  the  conditions  under  which  the  con- 
spirators carried  on  the  business.  State  r. 
Craft  (N.  Car.)  1917B-1013.     (Annotated.) 

8.  A  combination  by  dealers  in  a  neces- 
sary of  life  to  raise,  by  agreement,  the 
price  thereof  is  indictable  at  common  law. 
State  V.  Craft  (N,  Car.)  1917B-1013. 

(Annotated.) 

9.  Control  by  Manufacturer  of  Reselling 
Price  —  Colorable    License    as    Sale,     The 

illegal  function  of  controlling  the  price  at 
which  a  patented  machine  may  be  resold 
after  the  manufacturer  has  been  paid 
therefor,  and  after  it  has  passed  into  the 
hands  of  dealers  and  the  public,  is  the 
sole  purpose  that  can  be  attributed  to 
the  attaching  of  a  notice  to  such  machine 
which  states  that  such  machine  is  licensed 
for  the  term  of  the  patont  having  the  long- 
est time  to  run,  and  that  it  may  not  be 
delivered  to  any  unlicensed  member  of  the 
general  public  until  "the  full  license  price" 
stated  in  the  notice  is  paid,  since  this 
notice  is  not  intended  as  a  security  for 
any  further  payment,  as  the  full  price, 
called  a  "royalty,"  is  paid  before  the 
manufacturer  parts  with  the  possession  of 
the  machine,  and  is  not  to  be  used  as  a 


604 


DIGEST. 

19160— 1918B. 


basis  for  keeping  the  manufacturer  in- 
formed as  to  the  condition  or  use  of  the 
machine,  as  no  report  of  any  character 
is  required  from  the  "ultimate  user"  after 
he  has  paid  the  stipulated  price,  and  since 
such  notice,  notwithstanding  its  appar- 
ently studied  avoidance  of  the  use  of  the 
word  "sale,"  and  its  frequent  reference  to 
the  word  "use,"  omits  the  most  obvious 
requirements  for  securing  a  bona  fide  en- 
forcement of  the  restrictions  of  the  notice 
as  to  "use,"  and  under  it,  even  by  its  own 
terms,  the  title  to  the  machines  ultimately 
vests  in  the  "ultimate  users"  without  any 
further  payment  or  action  on  their  part 
upon  the  expiration  of  patents  which,  so 
far  as  the  notice  shows,  may  or  may  not 
be  incorporated  in  the  machine.  Straus 
V.  Victor  Talking  Machine  Co.  (U.  S.) 
1918A-955.  (Annotated.) 

2.     UNDER  STATUTES. 
a.    Construction  of  Statutes. 

10.  Wliat  CJonstitutes  "Commodity."  An 
agreement  to  fix  the  price  of  laundering, 
not  being  an  agreement  to  fix  the  price  of 
a  "commodity,"  "convenience"  or  "repair," 
as  these  words  are  used  in  the  Ark.  anti- 
trust law  (Acts  1905,  p.  1,  §  1),  prohibiting 
combinations  to  fix  the  price  of  any  com- 
modity, convenience,  or  repair,  is  not  un- 
lawful. State  V.  Frank  (Ark.)  1916D- 
983.  (Annotated.) 

11.  Meaning  of  "Anything."  An  agree- 
ment to  fix  the  price  of  laundering  is  not 
included  within  the  terms  "any  article  or 
thing  whatsoever,"  as  used  in  the  Ark. 
anti-trust  law  (Acts  1905,  p.  1,  §  1),  pro- 
hibiting unlawful  combinations  to  fix  the 
price  of  any  article  of  manufacture,  me- 
chanism or  merchandise,  commodity,  con- 
venience, repair,  any  product  of  mining, 
or  "any  article  or  thing  whatsoever";  the 
words  quoted  taking  their  meaning,  under 
the  doctrine  ejusdem  generis,  from  the 
thing  specifically  mentioned  before.  State 
V.  Frank  (Ark.)  1916D-983. 

12.  Strict  Construction — Anti-trust  Law. 
The  Ark.  anti-trust  act  (Acts  1905,  p.  1, 
§  1),  being  highly  penal  in  nature,  must  be 
strictly  construed.  State  v.  Frank  (Ark.) 
1916D-983. 

13.  Agreement  not  to  Engage  in  Busi- 
ness— Permissible  Scope  of  Covenant.  By 
express  provision  of  S.  Dak.  Civ.  Code, 
§  1278,  one  selling  the  good  will  of  a  busi- 
ness may  agree  with  the  buyer  not  to  en- 
gage in  a  similar  Jbusiness,  in  a  specified 
county,  city,  or  part  thereof,  so  long  as  the 
buyer,  or  a  person  deriving  title  to  the 
good  will  from  him,  carries  on  a  like  busi- 
ness therein.  Public  Opinion  Pub.  Co.  v. 
Ransom  (S.  Dak.)   1917A-1010. 

14.  Under  S.  Dak.  Civ.  Code.  §  1278, 
authorizing  agreement  by  one  selling  the 
good  will  of  a  business  not  to  engage' in  a 
similar  business,  on  the  sale  of  a  business 


and  the  good  will  thereof  by  a  corpora- 
tion, all  those  who,  owing  to  their  real  con- 
trol of  such  good  will,  are  necessary  to  any 
real  transfer  thereof,  and  who,  owing  to 
their  ownership  of  stock  in  the  corpora- 
tion, will  be  directly  benefited  by  any  in- 
crease in  price  received  for  such  good  will, 
may  bind  themselves  not  to  become  com- 
petitors. Public  Opinion  Pub.  Co.  v.  Ran- 
som (S.  Dak.)  1917A-1010. 

b.     Combination  Within  Statutes. 

15.  In  order  to  bring  a  foreign  corpora- 
tion within  Mich.  Pub.  Acts  1905,  No.  329, 
§  4,  declaring  that  no  foreign  corporation 
organized  to  establish  or  maintain  a  mo- 
nopoly shall  do  business  in  the  state,  it  is 
not  necessary  to  show  that  the  organizers 
of  such  a  corporation,  which  had  a  prac- 
tical monopoly,  bound  themselves  to  estab- 
lish and  maintain  it;  it  being  sufficient  to 
show  that  they  acted  together  in  pursu- 
ance of  that  object.  Attorney  General  v. 
National  Cash  Register  Co.  (Mich.)  1916D- 
638.  (Annotated.) 

16.  A  combination  of  ocean  carriers  to 
restrain  competition  is  within  the  U.  S. 
Anti-trust  Act  of  July  2,  1890  (26  Stat. 
L.  209,  c.  647,  7  Fed.  St.  Ann.  336),  al- 
though it  was  formed  in  a  foreign  coun- 
try, where  it  affected  the  foreign  commerce 
of  the  United  States,  and  was  put  into 
operation  in  the  United  States  by  the  car- 
riers' local  managers,  who  were  more  than 
simply  agents,  being  participants  in  the 
combination.  Thomsen  v.  Cayser  (U.  S.) 
1917D-322.  (Annotated.) 

17.  Violation  of  Sherman  Act — Combina- 
tion of  Ocean  Carriers.  Ocean  carriers 
between  New  York  and  South  African 
ports  violate  the  prohibition  of  the  Act  of 
July  2,  1890  (26  Stat.  L.  209,  c.  647,  7  Fed. 
St.  Ann.  336),  against  combinations  in  re- 
straint of  foreign  trade  or  commerce,  by 
uniting,  with  the  intention  and  result  of 
restraining  competition,  in  establishing  a 
uniform  freight  rate  which  included  a  so- 
called  "primage  charge,"  to  be  refunded 
subsequently  to  shippers  upon  condition 
that  they  should  ship  exclusively  by  the 
lines  of  the  combining  carriers,  and  should 
not,  directly  or  indirectly,  be  interested  in 
any  shipment  b^  other  vessels  and  upon 
the  further  condition  (afterwards  revoked) 
that  the  consignees  must  also  exhibit  the 
spme  lovaltv  to  the  combining  lines. 
Thomsen  v.  Cayser  (U.  S.)  1917D-322. 

(Annotated.) 

c.     Actions. 

18.  "Where  the  articles  of  a  foreign  cor- 
poration did  not  disclose  any  intention 
to  do  unlawful  business  and  a  judgment 
of  ouster  might  injure  the  patrons  of  the 
corporation  within  the  state,  the  corpora- 
tion, though  found  guilty  of  maintaining 
a  monopoly  contrary  to  Mich.  Pub.  Acts 
1905,  No.  329,  §  4,  should  be  fined  instead 


MONOPOLIES. 


605 


of  ousted.     Attorney  General  v.  National 
Cash  Eegister  Co.  (Mich.)   1916D-638. 

19.  Foreign  Corporation — Ouster  for  Mo- 
nopoly— Discretion  of  Court.  Where  upon 
information  in  the  nature  of  a  quo  war- 
ranto, a  foreign  corporation  is  found 
guilty  of  a  violation  of  Mich.  Pub.  Acts 
1905,  No.  329,  §  4,  providing  that  no  for- 
eign corporation  maintaining  or  organized 
for  the  purpose  of  establishing  and  main- 
taining a  monopoly  shall  be  allowed  to  do 
business  in  the  state,  the  corporation  may, 
in  the  discretion  of  the  court,  be  fined  un- 
der Comp.  Laws,  §  9961,  providing  either 
for  forfeiture  of  corporate  franchises  or 
fine,  if  in  the  discretion  of  the  court  a 
judgment  of  ouster  is  not  necessary.  At- 
torney General  v.  National  Cash  Register 
Co.  (Mieh.)  1916D-638. 

20.  Evidence  of  Monopoly  Sufficient. 
Upon  information  in  the  nature  of  a  quo 
warranto  to  forfeit  the  charter  of  a  for- 
eign corporation,  under  Mich.  Pub.  Acts 
1905,  No.  329,  §  4,  declaring  that  no  for- 
eign corporation  maintaining  a  monopoly 
shall  do  business  in  the  state,  evidence 
held  sufficient  to  show  that  respondent 
was  maintaining  a  monopoly.  Attorney 
General  v.  National  Cash  Register  Co. 
(Mich.)  1916D-638. 

21.  In  such  proceeding  evidence  of  the 
acts  of  the  corporation's  agents  and  offi- 
cers tending  to  stifle  competition  is  admis- 
sible, for  the  corporation  is  bound  by  the 
acts  of  its  officers.  Attorney  General  v. 
National  Cash  Register  Co.  (Mich.)  1916D- 
638. 

22.  Evidence  of  Existence.  Upon  in- 
formation in  the  nature  of  a  quo  war- 
ranto against  a  foreign  corporation  to  for- 
feit its  license,  under  Mich.  Acts  1905, 
No.  329,  §  4,  denying  foreign  corporations 
which  maintain  monopolies  permission  to 
do  business  in  the  state,  evidence  showing 
the  monopolistic  tendency  of  the  corporate 
predecessors  of  the  present  respondent  is 
admissible,  where  the  several  corporations 
iiave  at  all  times  been  controlled  by  the 
same  stockholders  and  officers.  Attorney 
General  v.  National  Cash  Register  Co. 
(Mich.)  1916D-638. 

23.  Action  on  Collateral  Contract — Set- 
off. In  an  action  on  an  account  by  a  mem- 
ber of  an  unlawful  combination  under  sec- 
tion 6391,  Ohio  General  Code,  for  goods 
sold  the  price  of  which  is  advanced  as  a 
result  of  the  unlawful  combination,  a  de- 
fendant injured  in  his  business  by  reason 
of  the  advance  in  price  of  the  goods  pur- 
chased by  him  from  such  member,  may  set 
up  by  way  of  counterclaim  or  set-o^  the 
damages  allowed  by  section  6397,  General 
Code.  Guyton  v.  Eastern  Electric  Co. 
(Ohio)   1916D-944.  (Annotated.) 

2A.  Instructions.  Error,  if  any,  in  fail- 
ing to  charge   the  jury  in  an  action  for 


threefold  damages,  brought  under  the  Anti- 
trust Act  of  July  2,  1890  (26  Stat,  L.  209, 
c.  647,  7  Fed.  St.  Ann.  336),  §  7,  by  shippers' 
against  ocean  carriers,  that  the  burden  was 
on  the  plaintiffs  to  show  that  the  rates  on 
their  shipments  were  excessive  and  unrea- 
sonable, does  not  demand  a  reversal  where 
the  record  shows  a  most  painstaking  trial 
of  the  case  on  the  part  of  counsel  and  the 
court,  a  full  exposition  of  all  the  elements 
of  judgment,  and  careful  instructions  by 
the  court  for  their  estimate.  Thomsen  ▼. 
Cayser  (U.  S.)  1917D-322. 

25.  It  cannot  be  said  that  the  jury  were 
permitted  to  consider  supposititious  profits 
as  elements  of  damage  in  an  action  for 
three-fold  damages,  brought  under  the 
Anti-trust  Act  of  July  2,  1890  (26  Stat.  L. 
209,  c.  647,  7  Fed.  St.  Ann.  336),  §  7,  by 
shippers  against  ocean  carriers  who  had 
combined  to  restrain  competition,  where 
there  were  different  sums  stated,  resulting 
from  the  loss  of  particular  customers,  and 
the  fact  of  their  certainty  was  submitted 
to  the  judgment  of  the  jury,  who  were  told 
that  they  ought  not  to  allow  any  specula- 
tive damages,  and  were  not  required  to 
guess  as  to  what  damages  plaintiffs  claimed 
to  have  sustained,  and  that  the  burden  of 
proof  was  upon  plaintiffs,  and  that  from 
the  evidence  the  jury  should  be  able  to 
calculate  the  damages — especially  where 
plaintiffs  alleged  an  overcharge,  and  the 
verdict  of  the  jury  was  for  the  amount  of 
such  overcharge  and  interest.  Thomsen  v. 
Cayser  (U.  S.)  1917D-322. 

26.  The  fact  of  combination  need  not  be 
submitted  to  the  jury  in  an  action  for 
threefold  damages,  brought  under  the  Anti- 
trust Act  of  July  2,  1890  (26  Stat.  L.  209, 
0.  647,  7  Fed.  St.  Ann.  336),  §  7,  where" 
there  is  no  conflict  in  the  evidence,  and 
nothing,  therefore,  for  the  jury  to  pass 
upon.  Thomsen  v.  Cayser  (U.  S.)  1917D- 
322. 

27.  Remedies  of  Person  Injured — Sher- 
man Anti-trust  Act — Recovery  of  Treble 
Damages.  Shippers  who  have  been  com- 
pelled to  pay  an  unreasonable  freight  rate 
because  of  a  combination  of  ocean  carriers 
to  restrain  competition,  contrary  to  the 
Anti-trust  Act  of  July  2,  1890  (2.6  Stat.  L. 
209,  c.  647,  7  Fed.  St.  Ann.  336),  have  suf- 
fered damage  to  the  amount  of  the  excess 
over  what  was  a  reasonable  rate,  within 
the  meaning  of  §  7  of  that  act,  giving  a 
cause  of  action  to  any  person  injured  in 
his  person  or  property  by  reason  of  any- 
thing forbidden  by  the  act,  and  the  right 
to  recover  threefold  damages  sustained  by 
hjm.  Thomsen  v.  Cayser  (U.  S.)  1917D- 
322. 

Note. 
Right  of  defendant  in  action  by  monop- 
oly on  collateral  contract  to  set  off  dam- 
ages    sustained     by    him    on    account   of 
monopoly.     1916D-946, 


606 


MONUMENTS. 


DIGEST. 

1916C— 1918B. 

Parol  gift  of  mortgage,  validity,  see  Gifts, 


See  Bonndarles. 

Not  a  funeral  expense,  see  Executors  and 
Administrators,  26. 

MOOT  CASE. 
Defined,  see  Actions  and  Proceedings,  7. 

MOOT  QUESTION. 

Not  considered,  see  Actions  and  Proceed- 
ings, 5. 

No  appeal  to  decide  abstract  questions, 
see  Appeal  and  Error,  3. 

Consideration  of,  see  Constitutional  Law, 
126. 

MORAL  OHABACTES. 
Disbarment  for  loss,  see  Attorneys,  61. 

MORAL  TURPITUDE. 

In  speech  abusing  court,  see  Attorneys, 
58,  63. 

MORE  OR  LESS. 
Meaning,  see  Deeds,  45. 

MORTALITY  TABLES. 

Admissibility,  see  Death  by  Wrongful  Act, 
31. 

Judicial  notice  of,  see  Evidence,  14. 

Competency  of  witness  as  to,  see  Wit- 
nesses, 1. 

MORTGAGES  AND  DEEDS    OP   TRUST. 

1.  Nature  and  Form  in  General,  606. 

2.  Equitable   Mortgages,  606. 

3.  Mortgage  by  Conveyance  Absolute  in 
Form,  d07, 

4.  Property  and  Title  Conveyed,  607. 

5.  The  Mortgage  Debt,  608. 

6.  Eelease,  608. 

7.  Equity  of  Redemption,  608. 

8.  Foreclosure  of  Mortgage,  608. 

a.  Eight  to  Foreclose,  608. 

b.  Parties,  609. 

c.  Judgment  or  Decree,  609. 

9.  Sales  for  Payment  of  Mortgage  Debt, 

609. 

a.  Order  of  Sale,  609. 

b.  Enjoining  Sale,  609. 

c.  Effect  as  Divesting  Owner's  Title, 

610. 

10.  Agreements  Collateral  to  Mortgage, 
610. 

See  Chattel  Mortgages. 

Inability  to  foreclose,  see  Building  and 
Loan  Associations,  4. 

Of  personal  property,  see  Chattel  Mort- 
gages. 

Corporate  mortgages  and  bonds,  see  Cor- 
porations, 149-159. 

Presentation  of  claim  upon,  see  Executors 
and  Administrators,  24,  25. 

Suit  by  mortgagee  to  avoid  insolvent  mort- 
gagor's conveyance,  see  Fraudulent 
Sales  and  Conveyances,  7. 


Of  homestead,  execution  by  wife,  see 
Homestead,  11. 

Execution  by  husband  alone,  validity,  see 
Homestead,  17,  18. 

Necessity  of  husband's  signature,  see  Hus- 
band and  Wife,  12. 

Mortgagee  as  assignee  of  lessee,  liability 
to  lessor,  see  Landlord  and  Tenant, 
27,  28. 

Mortgage  of  reversion,  right  to  rent,  see 
Landlord  and  Tenant,  37. 

Taking  mortgage  as  waiver  of  right  to  lien, 
see  Mechanics'  Liens,  34,  38. 

Validity  of  exempting  recording  fees,  see 
Recording  Acts,  4. 

Recording  fees,  see  Recording  Acts,  4,  5. 

Unrecorded  mortgage,  validity,  see  Record- 
ing Acts,  12. 

Payment  of  mortgage  by  purchaser,  rights 
against  holder  of  paramount  title,  see 
Subrogation,  9. 

Subrogation  of  cotenant  to  rights  of  mort- 
gagee, see  Tenants  in  Common,  8. 

Usurious  interest,  effect,  see  Usury,  2. 

1.     NATURE  AND  FORM  IN  GENERAL. 

1.  Suflciency — Defect  in  Description.    A 

mortgage  which  did  not  give  the  range 
number  of  lands  included  is  insufficient  to 
pass  the  legal  title.  Neas  v.  Whitener- 
London  Realty  Co.  (Ark.)  1917B-780. 

2.  Nature  of  Mortgage — Liability  for  De- 
ficiency. A  mortgage  is,  in  equity,  a  hy- 
pothecation or  pledge  of  property  as  secur- 
ity for  a  debt,  and  its  effect  is  to  leave 
the  mortgagor  personally  liable  for  the 
balance  of  the  debt,  if,  on  foreclosure,  the 
property  fails  to  yield  a  sufficient  sum  to 
pay  it  in  full.  StoUenwerck  v.  Marks 
(Ala.)   1917C-981. 

3.  Subscribing  Witness — Stockholder  in 
Mortgagee  Corporation.  A  stockholder, 
though  incompetent  to  take  an  acknowl- 
edgment of  a  mortgage  as  a  notary,  be- 
cause he  is  a  stockholder  of  the  mortgagee 
corporation,  is  not  incompetent  as  a  non- 
official  witness  to  the  signature  of  the 
mortgagor.  Peagler  v.  Davis  (Ga.)  1917A- 
232.  (Annotated.) 

2.     EQUITABLE  MORTGAGES. 

4.  Subrogation — As  Between  Mortgagees 
— First  Mortgage  Paid  by  Proceeds  of  Sec- 
ond. Where  part  of  the  proceeds  of  a  loan 
secured  by  a  wife's  mortgage,  which  was 
invalid  for  want  of  joinder  by  the  hus- 
band, was  applied  to  the  payment  of  a 
prior  mortgage,  in  which  and  in  the  note 
secured  the  husband  had  joined,  and  on 
which  he  was  personally  liable,  equity  will 
regard  the  prior  mortgage  as  subsisting 
and  the  subsequent  mortgagee  as  the  equi- 
table assignee  thereof,  and  subrogate  him 
to  the  prior  mortgagee's  rights  against  the 
husband.  Gato  v.  Christian  (Me.)  1917A- 
592. 


MORTGAGES  AND  DEEDS  OP  TRUST. 


607 


5.  Requisites  of  Equitable  Mortgage — 
Indebtedness  of  Mortgagor  to  Mortgagee. 
Where  there  is  no  debt  due  from  a  grantor 
to  the  grantee  in  a  deed  absolute  in  form, 
the  deed  is  not  a  mortgage.  Stollenwerck 
▼.  Marks  (Ala.)  1917C-981. 

3.        MORTGAGE     BY     CONVEYANCE 
ABSOLUTE  IN  FORM. 

6.  Absolute  Deed  as  Mortgage.  The 
general  rule  is  that  though  land  be  con- 
veyed by  debtor  to  creditor  by  deed  abso- 
lute, to  secure  the  repayment  of  a  loan, 
but  with  a  collateral  contract  for  the  re- 
purchase and  reconveyance  of  the  prop- 
erty, the  deed  and  contract  will  be  treated 
as  a  mortgage  and  not  an  absolute  con- 
veyance. But  the  deed  and  contract  in- 
volved in  this  case,  considered  in  connec- 
tion with  the  objects  and  purposes  of  the 
parties,  as  disclosed  by  the  record,  and 
their  subsequent  transactions  and  dealings 
relating  to  the  property,  did  not  constitute 
a  mortgage.  Mankin  v.  Dickinson  (W. 
Va.)    1917D-120. 

7.  Deed  as  Mortgage  in  Favor  of  Third 
Person.  A  purchaser  unable  to  complete 
the  contract  of  purchase  except  with  the 
assistance  of  a  third  person  made  a  con- 
tract with  the  third  person,  who  agreed 
to  pay  the  vendor  the  balance  of  the  price 
and  an  additional  sum  to  the  purchaser,  on 
receiving  a  deed  conveying  the  property 
tc  him.  The  purchaser  bound  himself  to 
execute  a  warranty  deed  conveying  the 
property  to  the  third  person  in  fee,  free 
.from  incumbrances,  and  to  pay  interest 
on  the  amount  advanced  by  the  third  per- 
son and  any  sums  which  he  might  pay  for 
taxes,  street  improvement  assessments,  in- 
surance, etc.  It  was  agreed  that  if  the 
third  person  should  sell  the  premises  with- 
in a  specified  time  he  should  pay  one-half 
of  the  amount  received  above  the  amount 
advanced,  and  if  he  should  sell  the  prop- 
erty for  less  than  the  amount  advanced, 
with  the  approval  of  the  purchaser,  the 
latter  would  make  up  the  difference.  The 
contract  was  modified  so  as  to  permit  a 
conveyance  of  the  property  to  a  railroad 
company  in  consideration  of  a  conveyance 
by  the  company  to  the  third  person  of 
other  property,  which  should  stand  in  lieu 
of  the  property  acquired  under  the  original 
contract.  It  is  held  that  the  transactions 
did  not  create  a  mortgage,  because  the 
purchaser  was  not  indebted  to  the  third 
person.  Stollenwerck  v.  Marks  (Ala.) 
1917C-981.  (Annotated.) 

8.  "Where  defendants  bought  property  at 
an  execution  sale  with  money  furnished 
by  plaintiff  upon  an  agreement  to  hold 
the  title  for  plaintiff,  an  equitable  mort- 
gage for  plaintiff's  benefit  arose,  and  he 
is  entitled  to  a  conveyance  upon  paying 
defendants  the  amount  found  due  them. 
Hutchings  T.  Clerk  (Mass.)  1917C-979. 

(Annotated.) 


9.  Sufficiency  of  Evidence  to  Establish. 
In  a  suit  to  redeem  land  from  an  alleged 
equitable  mortgage,  evidence  is  held  to  be 
insufficient  to  show  that  a  deed  absolute 
on  its  face  was,  in  fact,  a  mortgage.  Jack- 
son V,  Maxwell  (Me.)  1917C-966. 

10.  One  asserting  that  a  deed  absolute 
on  its  face  was  in  reality  an  equitable 
mortgage  has  the  burden  of  proving  that 
fact  by  clear,  certain,  conclusive,  and  un- 
equivocal evidence.  Jackson  v.  Maxwell 
(Me.)  I917C-966. 

11.  Equitable  Mortgage.  The  holder  of 
the  absolute  title  to  land  may  convey  to 
another  by  absolute  deed  and  make  the 
deed  an  equitable  mortgage  in  favor  of  a 
third  person.  Jackson  v.  Maxwell  (Me.) 
1917C-966.  (Annotated.) 

12.  Where  a  vendee  of  land  assigns  his 
contract  to  a  third  person  as  security  for 
payments  to  be  made  on  the  contract,  and 
the  assignee,  on  completing  the  payments, 
takes  from  the  vendor  an  absolute  deed, 
the  deed  will  stand  as  a  mere  security  for 
the  moneys  advanced.  Henry  v.  Britt 
(111.)  1917C-977.  (Annotated.) 

Note. 
Construction  of  absolute  deed  as  equi- 
trble  mortgage  in  favor  of  third  person. 
1917C-970. 

4.     PROPERTY      AND      TITLE       CON- 
VEYED. 

13.  Priority  Over  Liens  —  Purchase 
Money  Mortgage.  A  mortgage  given  at 
the  time  of  the  purchase  of  real  estate 
to  secure  the  purchase  money,  whether 
given  to  the  vendor  or  to  a  third  person, 
who,  as  a  part  of  the  same  transaction, 
advances  the  purchase  money,  has  pref- 
erence over  all  judgments  and  liens  against 
the  mortgagor.  Western  Tie,  etc.  Co.  v. 
Campbell  (Ark.)  1916C-943.     (Annotated.) 

14.  Priority  —  As  Between  Purchase- 
Money  Mortgage  and  Deed.  A  mortgage 
given  at  the  time  of  the  purchase  of  the 
mortgaged  land  by  the  mortgagor,  to  ob- 
tain the  money  used  by  him  to  pay  the 
price,  and  thereby  procure  the  deed,  has 
priority  over  a  deed  made  by  the  mort- 
gagor at  a  time  when  he  had  no  title,  to 
a  grantee  who  knew  of  the  negotiations 
for  the  mortgage  and  had  agreed  to  take 
the  property  subject  to  it,  although  the 
only  reference  to  the  mortgage  in  the  deed 
is  in  an  exception  to  the  warranty  of  title. 
Warren  Mortgage  Co.  v.  Winters  (Kan.) 
1916C-956.  (Annotated.) 

15.  Property  Subject — Proceeds  of  Prop- 
erty— Award  in  Condemnation  Proceeding. 
The  lien  of  a  mortgage  extends  to  an 
award  for  the  mortgaged  property  in  con- 
demnation proceedings.  Connell  v.  Kau- 
kauna  (Wis.)   1918A-247. 

16.  Pronerty  Subject — Property  Consum- 
able in  Use.     A  mortgage   upon  property 


60S 


DIGEST. 

1916C— 1918B. 


necessarily  consumable  in  its  nse,  where 
possession  and  use  is  reserved  in  the  gran- 
tor, is  fraudulent  upon  its  face  and  void. 
Morgan  v.  Dayton  Coal,  etc.  Co,  (Tenn.) 
1917E-42. 

17.  "All  Property"— As  Used  in  Cor- 
porate Mortgage.  In  a  mortgage,  describ- 
ing the  property  conveyed  as  mineral  lands, 
furnaces,  equipment,  etc.,  and  "all  prop- 
erty and  estate  wherever  situate,"  the 
quoted  phrase  refers  to  all  property  of  a 
similar  nature  which  may  have  been  over- 
looked in  the  detailed  description,  and 
does  not  include  cash  on  hand,  commissary 
stock,  iron  ore,  pig  iron,  etc.,  nor  accounts 
receivable.  Morgan  v.  Dayton  Coal,  etc. 
Co.  (Tenn.)  1917E-42.  (Annotated.) 

18.  Notice  of  Divorce  of  Mortgagor — 
Effect  of  Vacatiou  of  Decree.  One  taking 
a  mortgage  and  loaning  monpy  when  the 
records  of  the  court  showed  that  the  mort- 
gagor had  been  divorced  from  hei  husban,d 
was  in  efifect  a  purchaser  pendente  lite, 
with  the  risk  that  the  decree  might  be 
vacated  before  final  adjournment  of  the 
term  in  which  it  was  entered,  and  after 
such  vacation,  is  not  entitled  to  the  rights 
of  a  bona  fide  purchaser  for  value.  Gato 
V.  Christian  (Me.)  1917A-592. 

5.    THE  MORTGAGE  DEBT. 

19.  Consideratloii  —  Evidence  Sufficient. 
In  a  suit  by  a  wife  against  her  insane  hus- 
band to  foreclose  a  mortgage,  evidence 
held  to  support  a  finding  that  the  mortgaga 
was  given  for  money  loaned  the  husband 
by  the  wife,  which  had  never  been  paid. 
Stevens  v.  Stevens  (Mich.)  1916E-1259. 

20.  Words  and  Phrases  —  "Debt."  The 
word  "debt,"  in  the  definition  of  a  mort- 
gage as  a  hypothecation  or  pledge  of  prop- 
erty as  security  for  a  debt,  means  a  duty 
or  obligation  to  pay,  for  the  enforcement 
of  which  an  action  lies.  StoUenwerck  v, 
Marks  (Ala.)   1917C-9S1. 

6.     RELEASE. 

21.  Bight  to  Release  Pro  Tanto — Time 
for  Demanding.  A  mortgage  gave  the 
mortgagor  the  right  to  have  lots  covered 
thereby  released  upon  payment  of  specified 
amounts.  Held,  that  it  was  too  late  to 
demand  a  release  after  a  decree  of  fore- 
closure had  been  made.  Savings  Invest- 
ment, etc.  Co.  V.  United  Realty,  etc.  Co. 
(N.  J.)    1916D-1134. 

22.  Railroad  Mortgages — Power  of  Trus- 
tees to  Release  Mortgaged  Property.  Rail- 
road mortgages  construed  and  held  neither 
expressly  nor  by  implication,  to  authorize 
the  trustees  to  release  or  sell,  before  de- 
fault, pledged  stock;  it  not  being  included 
in  "mortgaged  premises,"  parts  of  which, 
under  certain  circumstances,  they  might 
release,  the  clause  defining  such  term  as 
including  "all  .  .  .  the  premises  and  prop- 


erty" being  one  as  to  operation  by  a  re- 
ceiver after  default,  and  the  "rights  of 
holders,"  which  the  trustees  were  empow- 
ered to  exercise  as  to  the  stock,  being  lim- 
ited to  the  rights  of  the  kind  enumerated, 
and  the  power  to  sell,  even  to  prevent 
waste,  not  existing  unless  conferred  by 
the  instrument,  and  not  being  impliable 
unless  incidental  or  necessary  to  a  power 
expressly  conferred,  which  is  not  the  case 
as  to  the  power  to  hold  the  pledged  secur- 
ity, certainly  not  when  the  pewer  to  deal 
with  it  before  a  default  is  carefully  de- 
fined. Colorado,  etc.  R.  Co.  v.  Blair  (N. 
y.)   1916D-1177.  (Annotated.) 

Note. 
Power  of  trustee  of  corporate  mortgage 
to    release    mortgaged    pror)erty.     1916D- 
1182. 

7.     EQUITY  OF  REDEMPTION. 

23.  Redemption  from  Foreclosure.  As- 
suming a  valid  tender  proven,  it  is  held: 

(a)  That  the  defendant  Torinus,  the 
holder  of  the  title  acquired  through  the 
mortgage  foreclosure  sale,  by  accepting  the 
redemption  money  paid  by  plaintiffs,  judg- 
ment creditors,  with  full  knowledge  of 
the  facts  showing  that  they  had  no  right 
to  redeem,  thereby  suffered  plaintiffs  to 
succeed  to  his  title  and  cannot  now  ques- 
tion the  validity  of  their  redemption. 

(b)  That  the  evidence  does  not  show 
any  rights  or  equities  which  required  the 
court  to  relieve  the  defendant  William 
Sutton  junior  to  plaintiffs  in  the  line  of 
redemptioners,  who  attempted  to  redeem 
under  a  mortgage,  recorded  without  the 
prepayment  of  the  registry  tax.  Nor  has 
Sutton  alone,  or  in  conjunction  with  any 
other  defendant,  any  equities  through 
which  to  attack  plaintiffs'  title. 

(c)  That  the  defendant  Sanntry,  the 
owner,  after  the  expiration  of  the  year  of 
redemption,  had  no  interest  in  the  land  so 
as  to  question  plaintiffs'  redemption,  and 
his  right  to  have  the  land  applied  to  the 
payment  of  such  of  his  debts  as  were  liens 
thereon,  depended  entirely  upon  the  lien- 
holders  making  redemption  in  strict  con- 
formity with  the  statute.  Orr  v.  Sutton 
(Minn.)  1916C-527. 

8.     FORECLOSURE  OP  MORTGAGE, 
a.     Right  to  Foreclose. 

24.  Defenses — Payment.  Foreclosure  of 
a  mortgage  cannot  be  defeated  by  the  de- 
fense of  payment  of  the  note  therebv  se- 
cured, where  such  defense  is  not  available 
against  the  note  because  it  as  well  as  the 
mortgage  is  held  by  an  innocent  pur- 
chaser for  value.  Des  Moines  Savings 
Bank  v.  Arthur  (Iowa)  1916C-498. 

25.  Second  Foreclosure  —  Parties  not 
Joined  in  First.  Though,  in  enforcing  a 
mortgage  lien  upon  lands,  the  existence  of 
contract  rights  in  the  land  acquired  subse- 


MORTGAGES  AND  DEEDS  OF  TRUST. 


609 


quent  to  the  mortgage  is  known  to  the 
mortgagee,  and  sucu  contract  holders  are 
not  made  parties  to  the  foreclosure  pro- 
ceedings, a  subsequent  foreclosure  of  such 
contract  rights  may  be  had  upon  equitable 
principles.  Crystal  River  Lumber  Co.  v. 
Knight  Turpentine  Co.  (Fla.)  1917D-574. 

b.    Parties. 

26.  Railroad  Mortgages  —  Appeal  by 
Trustees  to  Equity — Bondholders  as  Nec- 
essary Parties.  Trustees  do  not  have  im- 
plied power  to  represent  the  cestui  que 
trustent,  in  an  appeal  to  the  extraordinary 
jurisdiction  of  equity,  to  direct  a  disposi- 
tion of  the  trust  property  not  authorized 
by  the  instrument  creating  the  trust,  so 
that  to  bind  the  bondholders,  secured  by 
a  railroad  mortgage,  by  the  judgment  in 
a  suit  by  the  mortgagor  for  such  a  direc- 
tion, they,  or  some  of  them,  if  the  class 
is  too  large  to  allow  all  to  be  brought  in, 
must  be  made  parties,  with  an  allegation 
of  such  fact,  if  only  part  are  brought  in, 
that  the  court  may  determine  whether 
enough  are  before  it  to  protect  the  inter- 
ests of  all,  and  dispense  with  the  presence 
of  the  others  under  the  rule  of  necessity- 
Colorado,  etc,  R.  Co.  V.  Blair  (N.  Y.) 
1916D-1177. 

27.  Foreclosure  —  Necessary  Parties  — 
Mortgagor  Who  Has  Conveyed  Equity. 
An  Indian  allottee,  having  the  right  to 
convey  hia  allotment,  who  executes  a  mort- 
gage on  a  part  thereof  and  afterwards  con- 
veys the  same  land  by  warranty  deed, 
has  parted  with  all  his  title  to  and  inter- 
est in  such  land,  and  is  not  a  necessary 
party  to  the  foreclosure  proceedings  com- 
menced by  his  mortgagee,  where  no  per- 
sonal judgment  is  prayed  against  him. 
Freeman  v.  First  National  Bank  (Okla.) 
1918A-259. 


C.     Judgment  or  Decree, 

28.  Liability  for  Deficiency  —  Persons 
Liable — Real  Party  in  Interest.  Where 
defendant  corporation,  purchasing  certain 
real  property  and  securing  a  large  portion 
of  the  price  by  mortgages  thereon,  in  or- 
der that  its  credit  might  not  be  affected 
by  the  execution  of  such  mortgages,  pro- 
cured the  land  to  be  conveyed  to  K..  who 
executed  the  mortgages  as  a  mere  straw 
man  for  defendant,  and  it  was  only  on 
the  understanding  that  defendant  was  the 
real  party  in  interest  that  the  grantor  con- 
sented to  the  arrangemrnt.  defend.mt,  and 
not  K,,  is  personally  liable  for  any  de- 
f-Ciency  arising  on  foreclosure  of  the  mort- 
gages. Dexter  Horton  Nat.  Bank  v.  Seat- 
tle  Homeseekers   Co.    (Wash.)    1917A-68o. 

(Annotated.) 
Note. 

Personal  liability  for  deficiency  of  per- 
son   procuring    mortgage    to    be    given    or 
assumed  in  name  of  another.     1917A-687. 
29 


9.     SALES  FOR  PAYMENT  OP  MORT- 
GAGE DEBT. 

a.     Order  for  Sale. 

29.  Marshaling  Assets  —  Subjection  to 
Mortgage  in  Inverse  Order  of  Alienation. 
Rem.  &  Bal.  Wash.  Code,  §  587,  as  to  exe- 
cution sale,  providing  that  the  sheriff  shall 
offer  the  land  for  sale,  the  lots  and  parcels 
separately  or  together,  as  he  shall  deem 
most  advantageous,  in  view  of  section  583. 
providing  that  when  a  portion  of  the  lana 
is  claimed  by  a  third  person  and  he  re- 
quires it  to  be  sold  separately,  this  shall 
be  done,  does  not  prevent  application  of 
the  general  equitable  rule  that  it  is  the 
court's  duty,  in  a  mortgage  foreclosure 
suit,  to  order  a  sale  in  parcels,  and  in  the 
inverse  order  of  alienation  thereof  by  the 
mortgagor,  when  the  equities  of  all  par- 
ties will  be  subserved  thereby,  and  when 
it  can  be  done  without  impairing  the  secur- 
ity of  the  mortgagee.  Black  v,  Suydam 
(Wash.)    19I6D-1113.  (Annotated.) 

30.  Part  of  a  property  which  was  sub- 
ject to  a  paramount  mortgage,  was  sub- 
jected to  a  second  mortgage  which  ex- 
pressly provided  that  it  was  subject  to  the 
existing  mortgage.  Held,  that  the  rule  of 
sale  in  the  inverse  order  of  alienation  was 
not  applicable,  and  that  the  part  subject 
to  the  second  mortgage  must  contribute  to 
the  payment  of  the  paramount  mortgage. 
Savings  Investment,  etc.  Co.  v.  United 
Realty,  etc.  Co.  (N.  J.)  1916D-1134. 

(Annotated.) 

31.  Foreclosure — Separate  Sale  of  Tract. 

Defendant  W.,  in  a  mortgage  foreclosure 
suit,  claiming  by  his  pleadings  priority  of 
title  over  defendant  T.  to  nine  acres  of 
the  mortgaged  land,  by  reason  of  a  con- 
tract of  sale  thereof  made  by  the  mort- 
gagor before  his  conveyance  of  the  whole 
tract  to  T.,  and  T.,  while  claiming  the 
contract  was  a  mere  forfeited  option,  ad- 
n-itting  if  W.  had  any  title,  it  was  superior 
to  T.'s,  it  is  proper  to  order  such  nine  acres 
sold  separately,  and  after  the  rest  of  the 
land,  the  mortgagee  not  objecting,  and  it 
being  necessary  for  protection  of  any  in- 
terest of  W.,  and  not  injurious  to  T., 
whether  or  not  W.  has  any  interest.  Black 
v.  Suydam  (Wash.)   1916D-1113. 

Note. 
Inverse  order  of  alienation  within  doc- 
trine of  marshaling  assets.     1&16D-1I19. 

b.     Enjoining  Sale. 

32.  Grounds  for  Injunction  —  Existence 
of  Conflicting  Claims.  Where  there  is  no 
real  impediment  in  the  way  of  the  trustee 
in  the  execution  of  a  deed  of  trust,  and 
the  amount  of  the  debt  secured  is  certain, 
there  is  no  necessity  for  the  trustee  to 
resort  to  a  suit  to  remove  impediments, 
or  to  have  the  debt  adjudicated.  To  such 
cases   the    rules    applicable    to    creditors' 


610 


DIGEST. 

1916C— 1918B. 


suits  and  the  like  have  no  application. 
Nor  will  a  sale  by  the  trustee  in  such  case 
be  enjoined  at  the  suit  of  the  debtor  to 
await  the  litigation  of  unrelated  contro- 
versies between  some  of  the  parties.  Man- 
kin  y.  Dickinson  (W.  Va.)  1917D-120. 

(Annotated.) 

Note. 
Right  to  enjoin  sale  under  mortgage  or 
trust  deed   on  ground  of  conflicting  liens 
or    rights    or    because    of    disputed    title. 
1917D-125. 

e.    Effect  as  Divesting  Owner's  Title. 

33.  Invalid  Sale  —  Subrogation  of  Pur- 
chaser to  Rights  of  Mortgagee.  When,  for 
any  reason,  foreclosure  proceedings  are  im- 
perfect, irregular,  or  void,  the  purchaser 
at  the  sale  becomes  subrogated  to  all  the 
rights  of  the  mortgagee  in  and  to  the 
mortgage  and  the  indebtedness  that  it  se- 
cured, and  becomes  thereby  virtually  an 
equitable  assignee  of  such  mortgage  and 
of  the  debt  that  it  secured,  with  all  the 
rights  of  the  original  mortgagee,  and  be- 
comes entitled  to  an  action  de  novo  for 
the  foreclosure  of  such  mortgage  against 
all  parties  holding  junior  incumbrances  or 
the  legal  title,  who  had  been  omitted  as 
parties  to  such  original  foreclosure  pro- 
ceedings under  which  he  bought.  Crystal 
River  Lumber  Co.  v.  Knight  Turpentine 
Co.  (Fla.)  1917D-574.  (Annotated.) 

Note. 
Subrogation  of  purchaser  at  invalid  fore- 
closure sale  to  rights  of  mortgagee  or  other 
claimant.     1917D-576. 

10.     AGREEMENTS    COLLATERAL    TO 
MORTGAGE. 

34.  Effect  of  Taking  Additional  Secur- 
ity. A  mortgagee  may  take  security  other 
than  and  in  addition  to  his  mortgage 
security,  and,  if  the  contract  with  the 
giver  of  such  security  permits,  may  en- 
force his  debt  from  such  third  party,  with- 
out reference  to  the  mortgac;or  and  his 
security.  Martin  v.  Becker  (Cal.)  1916D- 
17L 

35.  Enforceability  of  Parol  Agreement. 
Where  K.  accepted  a  conveyance  of  real 
property  for  defendant,  and  executed  mort- 
gages thereon  for  a  large  portion  of  the 
price  as  a  mere  straw  man,  and  defendant 
orally  agreed  with  the  mortgagee  that  it 
was  the  real  party  in  interest,  and  that 
K.  was  a  mere  figurehead  in  the  deal,  de- 
fendant's obligation  to  pay  the  debt, 
though  resting  in  parol,  is  enforceable  by 
a  subsequent  assignee  of  the  mortgaees, 
end  this  though  there  was  no  formal  prom- 
ise, if  the  evidence  shows  that  the  inten- 
tion was  that  defendant  should  assume  the 
liability.  Dexter  Horton  Nat.  Bank  v. 
Seattle  Homeseckers  Co.  (Wash.)  1917A- 
683.  (Annotated.) 


.36.  Subrogation  —  Purchaser  Payin? 
Mortgage.  The  owner  of  real  estate  exe- 
cuted a  mortgage  on  it  to  a  banking  cor- 
poration, to  secure  a  debt  due  to  the  bank. 
The  president  of  the  mortgagee  and  the 
mortgagor  agreed  that  in  consideration  of 
the  former  paying  to  the  bank  the  mort- 
gagor's indebtedness,  and  to  the  mortgagor 
such  additional  sum  as  would  total  a  cer- 
tain amount,  he  would  buy  the  property. 
It  was  further  agreed  between  them  that 
the  purchaser  was  to  be  subrogated  to  the 
rights  and  remedies  of  the  mortgagee. 
The  purchaser  paid  to  the  mortgagee  the 
mortgage  debt,  and  the  mortgagor  executed 
to  the  purchaser  a  deed  to  the  property. 
At  the  time  of  the  taking  of  the  deed  the 
purchaser  did  not  know  of  a  judgment 
against  the  mortgagor,  the  execution  issu- 
ing on  which  was  entered  in  the  clerk's 
office  on  the  same  day  the  deed  was  given. 
In  ignorance  of  the  prior  judgment,  the 
purchaser  requested  the  bank  to  mark  the 
mortgage  satisfied,  and  it  was  also  marked 
canceled  on  the  record.  Held,  that  the 
purchaser  was  entitled,  bj'  virtue  of  the 
agreement  made  with  the  mortgasror.  to  be 
subrogated  to  the  rights  and  remedies  of 
the  mortgagee  whose  mortgag*^  was  paid 
bv  the  purchaser.  Peagler  v.  Davis  (Ga.) 
1917A-232. 

Note. 

Mortgagee  as  creditor  entitled  to  at- 
tack conveyance  of  same  or  other  property 
by  mortgagor.     1917C-953. 

MOTION. 

To  dismiss  appeal,  see  Appeal  and  Error, 
82-87. 

Motion  as  general  appearance,  gee  Appear- 
ances, 6. 

To  dissolve  attachment,  see  Attachment, 
9,  12,  13. 

To  quash  indictment,  see  Indictments  and 
Informations,  21-24. 

For  vacation  of  judgment,  where  made, 
see  Judgments,  40. 


MOTION   FOE  DIRECTED  VERDICT. 
See  Verdicts,  28-34. 

MOTION  FOR  NEW  TEIAi. 
See  New  Trial,  24^-43. 

MOTION  PICTURES. 
See  Theaters  and  Amusements,  1-4. 

MOTIONS. 
See  Pleadings,  103. 

MOTION  TO  SET. 
See  Trial,  12. 


MOTION  TO  STRIKE  OUT— MUNICIPAL  CORPORATIONS.     611 


MOTION  TO  STSIKE  OUT. 
Bee  Trial,  26-30. 

MOTIVE. 
Immaterial,  see  Replevin,  1. 

MOTORCYCLES. 

See  Automobiles,  4,  13,  14,  39-41. 

MOTOR  TRUCK. 
Left  anattended,  see  Automobiles,  20,  44. 

MOTOR  VEHICLES. 

See  Automobiles. 

Ford  automobile  as,  see  Homicide,  5. 

MOVING  PICTURES. 

Restriction  by  vendor  patentee  of  use  hj 
vendee,  see  Patents,  1,  2. 

Replevin  for  films,  see  Replevin,  2. 

Regulation  of,  see  Theaters  and  Amuse- 
ments, 1-4. 

MULCT  LAW. 
See  Intoxicating  Liquors,  33-43. 

MULTIFARIOUSNESS. 
See  Pleading. 

MUNICIPAL  CORPORATIONS. 

1.  Incorporation  and  Charter,  612. 

a.  Creation  and  Nature   of   Corpora- 

tion, 612. 

b.  Amendment  or   Adoption   of  New 

Charter  in  General,  612. 

c.  Commission  Form  of  Government. 

613. 

d.  Construction  of  Charter,  613. 

2.  State  Control  and  Supervision,  614, 

3.  Annexation  of  Territory,  614. 

4.  Powers,  614. 

a.  In  General,  614.  ' 

b.  Power  to  Contract,  615. 

e.  Power  to  Operate  Public  Utilities, 

615. 

d.  Power  to  Regulate  Rates,  616. 

e.  Power  Outside  Limits,  617. 

f.  Power  to  Convey  Property,  617. 

g.  Power  as  to  Nuisances,  617. 

5.  Ordinances  and  Resolutions,  617. 

a.  Nature  and  Adoption,  617. 

b.  Validity,  617. 

(1)  In  General,  617. 

(2)  Segregation  of  Races,  617. 

(3)  Regulation  of  Dogs,  619. 

(4)  Regulating    Presentation   of 

Claims,  619. 

(5)  Prohibiting     Earth     Closets, 

619. 

(6)  Regulating  Keeping  of  Ani- 

mals. 619. 

(7)  Regulating  Electricians,  620. 

(8)  Regulating  Wiring,  620. 


(9)  Regulating    Manufacture  of 

Bricks,   620. 

(10)  Regulating  Charities,  620. 

(11)  Regulating  Use  of  Property, 

620. 

(12)  Prohibiting     Pollution      of 

Water,  620. 

(13)  Making  Facts  Prima  Facie 
Evidence,  621. 

(14)  Regulation  of  Meat  Dealers, 

621. 

(15)  Regulating  Smoke,  621. 

c.  Construction,  621. 

d.  Time   of  Taking  Effect,  622. 

e.  Prosecutions  for  Violations,  622. 

f.  Repeal,  622. 

6.  Appropriations,  622. 

7.  Fiscal  Management,  622. 

a.  Power  to  Borrow  Money  and  Issue 

Bonds,  622. 

b.  Submission  of  Question  to  Voters, 

623. 

c.  Debt  Limit,  623. 

d.  City  Warrants,  624. 

8.  Letting  of  Contracts,  624, 

9.  Officers,  625. 

a.  Appointment,  625. 

b.  Compensation,  625. 

c.  Removal,   625. 

d.  Personal  Liability,  626. 

10.  Council     Meetings     and     Proceedings 

Thereat,  627. 

11.  Municipal  Boards,  627. 

12.  Records,  627. 

13.  Fire  and  Police  Departments,  627. 

a.  Authority  to  Maintain,  627. 

b.  Compensation,  (328. 

c.  Compensation   for  Injury,   628. 

d.  Status  of  Call  Men  and  Volunteers, 

628. 

14.  Torts,  628. 

a.  Public  or  Governmental  Functions 

or  Duties,   628. 

b.  Private,  Local  or  Corporate  Fune- 

tions   or   Duties,   629. 

c.  Torts  of  Officers,  Agents  and  Em- 

ployees, 629. 

d.  Notice  of  Claim,  629. 

e.  Pleading,  631. 

Billboard  regulations,  see  Advertising. 

Appellant  jurisdiction,  proceedings  for  vio- 
lating ordinances,  see  Appeal  and 
Error,  13. 

Regulation  of  automobiles,  see  Automo- 
biles, 1-3,  15. 

Municipal  regulation  of  jitneys,  see  Car- 
riers of  Passengers,  86,  87. 

Classification,  self-executing  provision,  see 
Constitutional  Law,  94. 

Ordinance  fixing  gas  rates,  see  Constitu- 
tional Law,  116. 

Preferential  system  of  voting,  see  Elec- 
tions, 1. 

Regulation  of  overhead  wires,  see  Elec- 
tricity, 2-9. 

Initiative  and  referendum  as  violating 
charter,  see  Initiative  and  Referen- 
dum, 3. 

Restraining  enforcement  of  ordinance,  see 
Injunctions,  13,  H,  16. 


612 


Powers   of   cities    over   liquor   traffic,    see 

Intoxicating  Liquors,  4,  5. 
Contract  for  more  than  statutory  8  hour 
day,  see  Labor  Laws,  15. 

City  employees  as  within  Workmen's  Com- 
peosation  Act,  see  Master  and  Ser- 
vant, 242,  253,  254,  260,  261. 

Participation  of  city  officers  as  defense 
to  liability  for  mob  violence,  see 
Mobs,  1,  3. 

Removal  of  mayor,  see'Fublic  Officers,  45, 
46. 

Duties  of  sheriff  in  cities,  see  Sheriffs  and 
Constables,  3-7,  15. 

Sunday  publication  of  ordinance,  see  Sun- 
dajrs  and  Holidays,  9. 

City  regulation  of  street  railways,  see 
Street  Railways,  5,  6. 

Taxpayer's  suit  to  enjoin  city  from  engag- 
ing in  business,  see  Taxation,  201. 

Regulation  of  telephones,  see  Telegraphs 
and  Telephones,  12-21. 

Publication  of  ordinance  in  german  paper 
insufficient,  see  Trees  and  Timber,  2. 

Liability  for  flood  by  obstructing  stream, 
see  Waters  and  Watercoursss,  24. 

City  water  supply,  see  Waterworks  and 
Water  Companies,  1-11. 

1.     INCORPORATION    AND    CHARTER. 
a.     Creation    and   Nature   of   Corporation. 

1.  Power  of  Legislature  to  Create  Pub- 
lic Agencies.  The  power  of  the  legislature 
to  create  public  corporations  is  practically 
unlimited,  and  it  may  create  any  conceiv- 
able kind  of  a  corporation  it  sees  fit  for 
the  more  efficient  administration  of  public 
affairs,  endowing  such  corporation  and  its 
officers  with  such  powers  and  functions  as 
it  deems  necessary  and  proper  for  the  ad- 
ministration of  the  corporate  powers  and 
affairs.  Perkins  v.  Board  of  County  Com- 
missioners (111.)  1917A-27. 

2.  For  the  more  efficient  administration 
of  public  affairs  the  legislature  may  pro- 
vide for  the  organization  of  municipal  cor- 
porations embracing  territory  situated 
wholly  within,  or  partly  within  and  partly 
vnthout,  the  boundaries  of  another  mu- 
nicipal corporation.  Perkins  v.  Board  of 
County  Commissioners   (111.)   1917A-27. 

3.  Adoption  of  Charter — Option  as  to 
Form— Validity.  Mass.  St.  1915,  c.  267, 
establishing  four  different  types  of  city 
charter,  with  provisions  by  which  cities 
might  select  for  themselves  the  form 
which  its  voters  decided  to  be  best  adapted 
to  its  needs,  in  place  of  enactinjj  a  special 
act  whenever  a  city's  government  was  to 
be  changed,  does  not  violate  Const.  Amend, 
art.  2,  giving  the  general  court  full  power 
to  constitute  city  governments  in  any  cor- 
porate town  and  to  grant  to  its  inhabitants 
such  powers  as  the  general  court  might 
deem  necessary  for  its  government,  as 
such  provision  does  not  apply  after  the 
change  from  town  to  city  has  oncp  been 
made.  Cunningham  v.  "  Mayor  (Mass.) 
1917C-1100. 


DIGEST. 

1916C— 1918B. 

4.  Definition  of  Municipal  Corporation. 

A  municipal  corporation  is  a  body  corpo- 
rate consisting  of  inhabitants  of  a  desig- 
nated area  created  by  the  legislature  with 
or  without  the  consent  of  such  inhabitants 
for  governmental  purposes  possessing  local 
legislative  and  administrative  power,  and 
power  to  exercise  within  such  area  so 
much  of  the  administrative  power  of  the 
state  as  may  be  delegated  to  it  and  pos- 
sessing limited  capacity  to  own  and  hold 
property,  and  to  act  in  purveyance  of  pub- 
lic conveniences.  Sutter  v.  Milwaukee 
Board  of  Fire  Underwriters  (Wis.)  1917E- 
682. 


5.  What  Constitutes — Board  of  Fire  Un- 
derwriters. A  board  of  underwriters  or- 
ganized under  Wis.  St.  1913,  §  1922,  au- 
thorizing the  formation  of  such  boards,  is 
not  a  municipal  corporation.  Sutter  v. 
Milwaukee  Board  of  Fire  Underwriters 
(Wis.)   1917E-682. 

b.     Amendment  or  Adoption  of  New  Char- 
ter in  General. 

6.  Effect  of  Adoption — Former  Charter 
Superseded.  Mass.  St.  1915,  c.  267,  provid- 
ing a  new  charter  for  such  cities  as  adopt 
it,  according  to  the  form  or  type  of  city 
government  which  the  majority  voters  de- 
cide upon,  under  which  the  voters  of  the 
city  of  Cambridge,  at  the  state  election 
in  1915,  adopted  one  of  the  prescribed 
plans  of  city  government,  makes  such  plan 
effective  as  a  new  city  charter  and  re- 
peals or  abrogates  its  former  charter  (St. 
1912,  c.  611),  and  such  new  charter  became 
exclusive  in  its  field,  especially  in  view 
of  part  1,  §  11,  declaring  that  the  plan 
adopted  should  supersede  the  provisions  of 
a  city's  charter  and  of  the  general  and 
special  laws  relating  thereto  and  incon- 
sistent herewith.  Cunningham  v.  Mayor 
(Mass.)    1917C-1100. 

7.  Home  Rule  Charter.  Ore.  Const,  art. 
11,  §  2,  providing  that  the  legal  voters  of 
every  city  and  town  are  gianted  power 
to  enact  and  amend  their  municipal  char- 
ter subject  to  the  constitution  and  crim- 
inal laws  of  the  state  of  Oregon,  and  for- 
bidding the  legislative  assembly  to  amend 
or  repeal  any  charter  for  any  municipal- 
ity, etc.,  does  not  extend  the  authority  of 
such  municipalities  over  subjects  not  prop- 
erly municipal  and  germane  to  the  pur- 
poses for  which  municipal  corporations  am 
formed.  Wcodburn  v.  Public  Service 
Commission  (Ore.)  1917E-996. 

8.  Classification.  Section  3497.  349S, 
and  3499,  Ohio  General  Code,  regulate  the 
method  of  transition  of  nninicipa!  corpora- 
tions from  one  class  to  the  other,  and  are 
rot  inconsistent  with  that  constitutional 
provision.  Murrav  v.  State  (Ohio)  1916D- 
864. 

9.  A  municipal  corporation  which  had  a 
population  of  less  than  5,000  at  the  last 


MUNICIPAL  CORPORATIONS. 


613 


federal  census  did  not  advance  to  a  city 
when  it  was  made  to  appear  by  an  official 
census  taken  by  the  municipal  corporation 
subsequently  thereto  that  it  had  a  popula- 
tion of  more  than  5,000.  Murray  v.  State 
(Ohio)    191GD-864. 

c.     Commission  Form  of  Government. 

10.  Mo.  Laws  1913,  p.  517,  allowing  a 
city  of  the  third  class  an  opportunity  by 
vote  of  its  electors  to  adopt  the  commission 
form  of  government,  with  commissioners 
exercising  quasi  judicial  as  well  as  admin- 
istrative authority,  does  not  make  such  a 
municipality  a  sovereignty,  and  hence  does 
not  fall  within  the  constitutional  provis- 
ions apportioning  the  power  of  sovereign 
states.  Barnes  v.  Kirksville  (Mo.)  1917C- 
1121.  (Annotated.) 

11.  Such  act  does  not  violate  Mo.  Const, 
art.  9,  §  7,  dividing  the  cities  of  the  state 
into  four  classes,  by  creating  a  fifth  class, 
Bince  it  does  not  alter  the  pre-existing 
classification  of  the  defendant  city  as  a 
city  of  the  third  class,  but  merely  gives 
it,  for  purposes  of  administration,  similar 
powers  and  functions,  subject  to  surrender 
and  resumption  of  its  former  powers  at 
any  time  at  the  option  of  the  voters. 
Barnes  v.  Kirksville  (Mo.)  1917C-1121. 

(Annotated.) 

12.  Such  law  does  not  violate  Mo.  Const. 
art.  4,  §  53,  prohibiting  special  and  local 
laws,  since  its  classification  according  to 
population,  both  in  the  title  and  in  the 
bodj'  of  the  bill,  is  applicable  to  any  and 
all  cities  which  shall  or  may  in  the  future 
fall  within  such  classification.  Barnes  v. 
Kirksville  (Mo.)  1917C-1121. 

(Annotated.) 

13.  Commission  Government — Validity  of 
Statute.  Mo.  Const,  art.  4,  §  23,  providing 
that  a  bill  must  contain  but  one  subject, 
clearly  expressed  in  its  title,  was  not  vio- 
lated by  Mo.  Laws  1913,  p.  517,  entitled 
"An  act  providing  for  a  [commission] 
form  of  government  for  cities  of  the  third 
class,"  etc.,  making  provisions  for  the  elec- 
tion of  a  mayor  and  four  conncilmen  at 
large  at  a  primary  election,  for  electing 
candidates  so  selected  at  a  general  elec- 
tion, providing  for  the  appointment  of 
various  city  officers,  and  for  initiative,  ref- 
erendum, and  recall,  to  be  effective  only 
on  adoption  by  vote  of  the  electors  of  any 
city,  since  as  to  the  provision  for  the  elec- 
tion of  four  councilmen  as  a  maximum, 
permitting  three  or  two  councilmen  to  be 
elected  according  to  population  of  cities 
adopting  the  act,  the  title  expresses  the 
full  limit  of  the  councilmen  to  be  el'eeted 
by  cities  having  the  largest  population 
within  the  prescribed  limits  when  the  elec- 
tion was  held;  nor  is  it  violated  by  sec- 
tion 2,  using  words  of  present  meaning 
in  reference  to  the  population  entitling 
cities  to  organize  thereunder,  since  they 
were  intended  to  be  applicable  only  when 


cities  on  account  of  their  future  growth  in 
population  might  be  entitled  to  hold  such 
elections,  and  since  it  is  only  requisite 
that  the  title  shall  be  a  fair  forecast  of 
the  contents  of  the  bill  and  its  subject,  so 
as  not  to  mislead  the  lawmakers  or  the 
people.  Barnes  v.  Earksville  (Mo.)  1917C- 
1121.  (Annotated.) 

14.  Removal  of  Commissioner — ^By  Wliat 
Statute  Governed.  Under  Mass.  St.  1915, 
c.  267,  providing  several  plans  of  city  gov- 
ernment to  be  adopted  by  vote  of  the  in- 
habitants of  cities,  the  city  of  Cambridge 
in  1915  accepted  a  plan  of  city  government 
providing  by  part  3,  §  6,  for  the  removal 
of  such  an  officer  as  the  commissioner  of 
public  safety  by  the  mayor,  with  the  ap- 
proval of  a  majority  of  the  members  of 
the  city  council,  before  the  expiration  of 
his  term  of  office;  by  part  1,  §  5,  for  a 
continuance  of  a  city's  executive  and  ad- 
ministrative organization  until  the  new 
form  of  government  should  be  established; 
and  by  part  1,  §  11,  that  after  adoption 
the  new  charter  provisions  should  super- 
sede the  provisions  of  the  city's  former 
charter  when  officers  provided  for  there- 
under should  have  been  duly  elected  and 
begun  their  term.  Part  1  by  section  1 
defines  "officers,"  etc.,  by  section  31  makes 
the  school  committee  elective,  and  part  3, 
§§  3,  4,  make  the  mayor  and  members  of 
the  city  council  elective.  Petitioner,  the 
commissioner  of  public  safety,  sought  a 
writ  of  mandamus  to  compel  the  mayor  to 
refrain  from  removing  him  from  his  unex- 
pired office  under  the  authority  of  the 
former  charter  (St.  1912,  c.  611,  §  2)  for 
cause  after  a  hearing.  It  is  held  that  the 
word  "officers"  in  St.  1915,  c.  267,  pt.  1, 
§  11,  referred  to  elective  oMcers,  and  not 
to  appointive  officers,  heads  of  depart- 
ments, etc.,  and  that  petitioner,  though  not 
appointed  under  the  provisions  of  the 
new  charter,  could  be  removed  only  accord- 
ing to  its  terms.  Cunningham  v.  Mayor 
(Mass.)  1917C-1100.  (Annotated.) 

Note. 
Commission   form  of  municipal  govern- 
ment.    1917C-1103. 

d.    Construction   of  Charter. 

15.  Effect  as  Superseding  State  Laws. 
The  provisions  of  the  charter  of  the  city 
of  Tulsa,  adopted  under  the  authority  of 
section  3a,  art.  18,  of  the  constitution  (sec- 
tion 329,  Williams'  Ann.  Const.),  and  sec- 
tion 539,  Okla.  Rev.  Laws  1910,  supersede 
all  laws  of  this  state  in  conflict  with  such 
charter  provisions,  in  so  far  as  such  laws 
relate  to  merely  municipal  matters.  State 
V.  Linn  (Okla.)   1918B-139. 

16.  Such  charter  provisions  do  not  su- 
persede the  general  laws  of  the  state  of 
general  concern,  in  which  the  state  has  a 
sovereign  interest,  and  where  the  pro- 
visions of  said  charter  conflict  with  the 
general  laws  of  the  state  of  this  character, 


6U 


DIGEST. 

19160— 1918B. 


8och    laws  will    pTevail.    State    v.    Linn 
(Okla.)  1918B-139. 

17.  Commission  Government  —  Bemoval 
of  Commissioner  —  Procedure.  The  Nash- 
ville commission  charter  (Tenn.  Priv.  Acts 
1913,  c.  22)  provides  for  recall  elections, 
section  32  declaring  that  such  remedy  shall 
be  cumulative;  hence  the  Ouster  Act  (Pub. 
Aets  1915,  c.  11)  may  be  taken  advantage 
of  to  oust  a  commissioner  for  misconduct. 
State  V.  Howse  (Tenn.)   1917C-1125. 

(Annotated.) 

2.    STATE     CONTUOL     AND     SUPER- 
VISION. 

18.  Power  of  State  to  Regulate.  The 
general  power  of  a  state  over  its  munici- 
palities extends  to  the  regulation  of  the 
kind  of  laborers  which  may  be  employed 
in  the  construction  of  public  works  by  or 
for  such  municipalities.  Heim  v.  McCall 
(U.  S.)   1917B-287. 

19.  All  public  matters  concerning  tha 
people  of  the  state  at  large,  in  common 
'.vith  people  of  any  particular  municipality, 
are  matters  of  state  jurisdiction  within 
Ore.  Const,  art,  11,  §  2,  prohibiting  the 
legislature  from  enacting,  amending,  or 
repealing  any  charter  of  any  municipality, 
but  empowering  the  legal  voters  of  every 
city  to  enact  and  amend  their  municipal 
charter  subject  to  the  constitution  and 
criminal  laws  of  the  state,  and  article  4, 
§  la,  reserving  to  the  voters  of  every  mu- 
nicipality the  power  over  local,  special, 
and  municipal  legislation,  while  all  public 
affairs  concerning  the  inhabitants  of  a 
locality  as  a  municipality,  apart  from  the 
people  of  the  state  at  large,  as  supplying 
pnrely  local  needs,  are  matters  of  local 
concern,  within  the  exclusive  control  of 
each  municipality.  Kalich  v.  Knapp  (Ore.) 
1916E-1051. 

20.  Relation  of  State  to  Municipality — 
Enforcement  of  Laws.  The  state  has  a 
sovereign  interest  in  the  enforcement  of 
its  general  laws  against  the  traflSc  in  intox- 
icating liquors,  against  gambling  and  pros- 
titution, within  the  territorial  limits  of 
the  city  of  Tulsa.  State  v.  Linn  (Okla.) 
1918B-139. . 

3.     ANNEXATION  OP  TERRITORY. 

21.  "Any"  —  Legal  Meaning  of  Term. 
Section  1220,  Kan.  General  Statutes  of 
1909,  which  authorizes  cities  of  the  first 
class  by  ordinance  to  extend  their  cor- 
porate limits  so  as  to  include  any  tracf 
of  unplatted  land  not  exceeding  20  acres 
whenever  the  same  "is  so  situated  that 
two-thirds  of  any  line  or  boundary  thereof 
lies  upon  or  touches  the  boundary  line  of 
such  city,"  means  whenever  two-thirds  of 
any  single  boundary  line  or  side  of  such 
tract  lies  upon  or  touches  the  boundary 
line  of  such  city;  the  word  "any"  being 
construed  as  used  in  the  sense  of  one  in- 


differently,  oat   of  an  indefinite   number. 
State  V.  Kansas  City  (Kan.)   191CE-1. 

(Annotated.) 

22.  Extension  of  Corporate  Limits.  Th« 
state  brought  proceedings  in  quo  warranto 
to  oust  the  city  of  Harper,  a  city  of.  the 
second  class,  from  exercising  authority 
over  certain  territory.  The  answer  alleged 
that  in  1884,  when  the  defendant  was  a 
city  of  the  third  class,  the  then  owner 
of  the  land  executed  and  filed  for  record 
a  plat  of  the  land  as  and  for  an  addition 
to  the  city;  that  part  of  the  land  was 
platted  and  part  unplatted,  and  that  the 
land  in  controversy  has  ever  since  been 
treated  by  the  owner  and  by  the  city  in 
every  respect  as  part  of  and  within  the 
corporate  limits  of  the  city;  that  in  1889, 
as  part  of  the  proceedings  by  which  the 
defendant  changed  from  a  city  of  the 
third  to  a  city  of  the  second  class,  the 
mayor  and  council  certified  to  the  governor 
an  accurate  description  by  metes  and 
bounds  of  all  lands  within  the  limits  of 
the  city  as  it  then  existed,  which  de- 
scription included  the  territory  now  in 
controversy,  and  that  thereupon  the  gov- 
ernor issued  a  proclamation  declaring  the 
defendant  to  be  a  city  of  the  second  class 
having  the  metes  and  bounds  so  certified; 
Held,  that  the  answer  stated  a  good  de- 
fense, and  that  it  was  error  to  sustain  a 
demurrer  thereto.  State  t.  Harper  (Kan.) 
1917B-464. 

4.     POWERS. 
a.     In   General. 

23.  Encroachment  on  Private  Entennrise. 
The  principle  that  municipalties  can 
neither  invade  private  liberty  nor  encroach 
upon  the  field  of  private  enterprise  should 
be  strictly  maintained,  as  it  is  one  of  the 
main  foundations  of  our  prosperity  and 
success.  Laughlin  v.  Portland  (Me.) 
1916C-734. 

24.  Authorized  and  Implied  Powers.  A 
municipal  corporation  can  exercise  only 
such  power  as  is  conferred  on  it  expressly, 
or  such  as  arises  by  necessary  implication 
as  incidental  to  powers  expressly  granted, 
or  such  as  are  indispensable  to  the  pur- 
pose of  its  creation.  Akron  v.  McEUigott 
(Iowa)   1916E-692. 

25.  Express  Grant  as  Negativing  Pre- 
existing Power.  The  passage  of  a  statute 
expressly  conferring  power  on  a  municipal 
corporation  does  not  necessarily  preclude 
the  pre-existence  of  the  power.  Hopkins 
V.  Richmond  (Va.)  imD-llU. 

26.  Any  fair,  reasonable  doubt  of  the 
existence  of  a  power  of  a  municipal  cor- 
poration is  resolved  by  the  courts  against 
the  corporation,  and  the  power  is  denied. 
Hopkins  v.  Richmond  (Va.)  1917D-1114. 

27.  Implied  Powers  of  Municipality.  A 
municipal  corporation  has  the  rowers 
granted   to   it  in   express   words,   anl   tha 


]\IUNICIPAL  CORPOKATIONS. 


615 


powers  necessarily  implied  or  incident  to 
the  power  expressly  granted,  and  the  pow- 
ers absolutely  essential  to  the  declared 
object  and  purpose  of  the  municipal  cor- 
poration, and  not  simply  convenient,  but 
indispensable,  and  those  granted  by  stat- 
ute to  such  corporations  generally,  Hop- 
kins V.  Richmond  (Va.)  1917D-1114, 

28.  Validity  of  Grant.  The  charter  pow- 
ers of  a  municipality  have  their  origin  in 
the  police  powers  of  the  state.  State  v. 
Merchants'  Exchange  (Mo.)  1917E-871. 

29.  Limited  to  Express  or  Implied 
Grant.  Municipalities  are  legal  entities 
for  local  governmental  purposes,  and  they 
can  exercise  only  such  authority  as  is 
conferred  by  express  or  implied  provisions 
of  law.  The  existence  of  authority  to  act 
cannot  be  assumed,  but  it  should  be  made 
to  appear.  Malone  v.  Quincy  (Fla.) 
1916D-208. 

30.  Where  particular  powers  are  ex- 
pressly conferred  upon  a  municipality,  and 
there  is  also  a  general  grant  of  power, 
such  general  grant  by  intendment  includes 
all  powers  that  are  fairly  within  the  terms 
of  the  grant  and  are  essential  to  the  pur- 
poses of  the  municipality,  and  not  in  con- 
flict with  the  particular  powers  expressly 
conferred.  The  law  does  not  expressly 
grant  powers  and  impliedly  grant  others 
in  conflict  therewith.  Malone  v.  Quincy 
(Fla.)    1916D-208. 

31.  If  reasonable  doubt  exists  as  to  a 
particular  power  of  a  municipality  it 
should  be  resolved  against  the  city.  Ma- 
lone V.  Quincy  (Fla.)  1916r)-208. 

32.  When  there  are  both  special  and 
general  grants  of  power  to  municipal  cor- 
porations to  pass  ordinances,  those  given 
under  the  special  grant,  as  a  general  rule, 
can  only  be  exercised  in  the  cases  and  to 
the  extent  as  respects  those  matters  al- 
lowed by  the  charter  or  incorporating  act; 
and  the  powers  given  under  th^  general 
grant  do  not  enlarge  or  annul  those  con- 
ferred by  the  special  grant  in  respect  to 
its  subject-matters,  but  give  authority  to 
pass  ordinances,  reasonable  in  their  char- 
acter, upon  all  other  matters  within  the 
scope  of  the  municipal  authority  not  re- 
pugnant to  the  constitution  and  laws  of 
the  state.  Malone  v.  Quincy  (Ma.)  1916D- 
208. 

33.  A  general  clause  conferring  power 
upon  a  municipality  can  give  no  authority 
to  abrogate  the  limitations  contained  in 
special  provisions.  Malone  v.  Quincy 
(Fla.)   1916r)-208. 

34.  When  authority  and  powers  with  ref- 
erence to  particular  subjects  are  expressly 
conferred  in  specific  terms  upon  municipal- 
ities, other  authority  and  powers  that  in 
their  nature  or  extent  would  materially 
increase  or  be  inconsistent  with  the  pow- 
ers that  are  expressly  given  in  specifii'  and 
limited  terms,  are  not  to  be  implied,  par- 


ticularly when  the  powers  expressly  given 
do  not  include  all  the  authority  that  may 
have  been  conferred  with  reference  to 
the  designated  subjects,  Malone  v.  Ouincv 
(Fla.)  1916D-208.  ' 

35.  When  to  accomplish  a  general  mu- 
nicipal purpose  authority  and  powers  are 
expressly  conferred  upon  a  city,  and  it 
does  not  appear  that  only  the  powers  ex- 
pressly given  are  to  be  exercised,  other 
authority  and  powers  that  are  incident  to 
or  consistent  with  those  expressly  given, 
may  be  implied  when  necessary  to  fully 
effectuate  the  express  powers  and  the  gen- 
eral purposes  designed,  if  such  implication 
may  fairly  arise  from  the  language  used 
and  the  object  desired.  Malone  v.  Quincy 
(Fla.)  1916r>-208. 

Note. 
Power   of  municipality  to   compel  rail- 
road   or   street   railway    to    repair   bridge 
within  municipal  limits.     1916C-1171. 

b.    Power  to  Contract. 

36.  In  the  absence  of  constitutional  or 
statutory  inhibition,  municipal  corpora- 
tions may  contract  for  the  payment  of  in- 
terest on  warrants  drawn  to  cover  or- 
dinary debts.  Alabama  City,  etc.  R.  Co. 
V,  Gadsden  (Ala.)  1916C-573, 

(Annotated.) 

c.  Power  to  Operate  Public  Utilities. 

37.  Power   to  Operate   Ice   Plant.    La. 

Const,  art.  224,  provides  that  the  tax- 
ing power  may  be  exercised  by  the  gen- 
eral assembly  for  state  purposes  and  by 
parishes  and  municipal  corporations  and 
public  boards,  under  authority  delegated 
by  the  general  assembly  for  parish,  mu- 
nicipal and  local  purposes  "strictly"  public 
in  their  nature.  Held,  that  the  word 
"strict"  was  used  in  the  sense  of  exact; 
accurate;  precise;  undeviating;  governed 
or  governing  by  exact  rules;  and  "strictly" 
as  in  a  strict  manner;  closely,  precisely, 
rigorously;  stringently;  positively;  and 
that  the  construction  and  maintenance  of 
a  municipal  ice  plant  by  a  small  city  oper- 
ating a  municipal  waterworks  and  electric 
lighting  system  was  not  "strictly"  a  public 
activity,  and  could  not  be  maintained  by 
the  exercise  of  the  taxing  power.  Union 
Ice,  etc.  Co.  v.  Euston  (La.)  1916C-1274. 

(Annotated.) 

38.  Operation  of  Electric  Lighting  Plant 
— Competition  With  Citizen — Sale  of  Fix- 
tures. Under  Mich.  Const,  art.  8,  §  23, 
authorizing  municipalities  to  own  and 
operate  public  utilities  for  supplying  water, 
heat,  etc.,  and  Mich.  Comp.  Laws  1897, 
§§  3258,  3269,  and  3270,  authorizing  mu- 
nicipalities to  acquire  and  operate  gas  and 
electric  light  plants,  a  city  which  operates 
its  own  electric  light  plant  is  entitled  to 
do  all  those  things  naturally  connected 
with  and  belonging  to  the  running  of  such 


616 


DIGEST. 

1916C— 1918B. 


a  business,  and  bo  may  sell,  if  necessary, 
light  fixtures.  Andrews  t.  South  Haven 
(Mich.)    1918B-100.  (Annotated.) 

39.  Sale  of  Fuel  to  Inhabitants.  Mo. 
Bev.  St.  c.  4,  §  87  (Laws  1903,  c.  122), 
authorizing  and  empowering  any  city  or 
town  to  establish  and  maintain  a  perma- 
nent wood,  coal,  and  fuel  yard,  for  the 
purpose  of  selling,  at  cost,  wood,  coal,  and 
fuel  to  its  inhabitants,  is  not  unconstitu- 
tional, it  being  a  public  use  for  which  tax- 
ation is  permissible,  since  the  furnishing 
of  fuel  to  its  citizens  is  a  matter  of  public 
necessity,  convenience,  or  welfare  with 
which  it  is  difficult  for  the  citizens  to  pro- 
vide themselves,  due  to  the  existence  of 
monopolistic  combinations.  Laughlin  v. 
Portland  (Me.)  1916C-734.      (Annotated.) 

40.  Telephone  System.  S.  Dak.  Laws 
1907,  c.  88,  authorizing  cities  to  acquire, 
construct,  equip,  and  operate  a  telephone 
system  is  not  in  violation  of  Const,  art.  13, 
§  1,  declaring  that  neither  the  state  nor 
any  county  or  municipality  shall  loan  its 
credit,  make  donations  in  the  aid  of  indi- 
vidual corporations,  or  become  the  owner 
of  the  capital  stock  of  any  such  corpora- 
tion, nor  shall  the  state  engage  in  any 
work  of  internal  improvement;  for  the 
constitution  merely  prohibits  cities  from 
becoming  interested  in  public  utilities 
owned  by  private  persons.  Spangler  v. 
MitcheU  (S.  Dak.)  1918A-373. 

(Annotated.) 

41.  S.  Dak.  Const,  art.  13,  §  4,  as  orig- 
inally adopted,  provided  that  the  debt  of 
any  county,  city,  or  other  subdivision 
should  never  exceed  five  per  cent  of  the 
assessed  value  of  the  taxable  property. 
Thereafter  the  section  was  amended,  aud 
now  declares  that  the  debt  of  no  county, 
city,  or  other  subdivision  shall  exceed  five 
per  cent  of  the  assessed  valuation  of  the 
taxable  property,  provided  that  any  county 
may  incur  additional  indebtedness  not 
exceeding  ten  per  cent  of  the  assessed  val- 
uation for  the  purpose  of  providing  water- 
works, etc.,  and  that  cities  having  a  popu- 
lation of  8,000  or  more  may  incur  indebt- 
edness not  exceeding  eight  per  cent  of 
the  assessed  valuation  for  the  purpose  of 
constructing  street  railways  or  other  light- 
ing plants,  but  that  no  county,  city,  or 
other  subdivision  shall  be  included  within 
such  district  without  a  majority  vote  in 
favor  thereof,  and  no  such  debt  shall 
ever  be  incurred  for  any  of  the  purposes 
provided,  unless  authorized  bj'  a  majority 
vote  of  the  electors.  It  is  held  that  a 
city  may  incur  indebtedness  up  to  the  five 
per  cent  limit  for  purposes  not  mentioned 
in  the  constitution,  as  the  purchasing  and 
equipping  of  a  telephone  system  subject  to 
the  qualification  that  it  may  not  issue 
bonds  without  a  majority  vote  in  favor 
thereof  according  to  S.  Dak.  Pol.  Code, 
§  1229,  subd.  5.  Spangler  v.  Mitchell  (S. 
Dak.)   1918A-373.  (Annotated.) 


42.  Right  to  Construct  Improvement 
Jointly  With  Railroad  Company.  Denver 
Charter  Amendment,  May  20,  1913,  §  355, 
created  a  tunnel  commission  to  construct 
a  railroad  tunnel  through  the  Rocky  Moun- 
tains to  transport  freight,  passengers, 
water,  and  electricity,  provided  that  it  the 
tunnel  should  be  originally  constructed  for 
the  transportation  of  freight  and  passen- 
gers, that  right  should  not  bo  destroyed 
or  needlessly  interrupted  by  the  extension 
of  the  use  for  the  passage  of  water,  elec- 
tricity, etc.  The  amendment  also  pro- 
vided that  two  thirds  of  the  cost  of  the 
tunnel  should  be  paid  by  a  bond  issue  of 
the  city;  that  the  other  third  should  be 
paid  by  a  railroad  company,  which  should 
have  the  right  to  operate  trains  through 
the  tunnel,  the  title  to  which  should  be  in 
the  city,  but  with  the  right  of  the  railroad 
company  to  purchase  the  same.  The  city 
had  not  declared  its  intention  to  build  a 
water  system,  power  plant,  or  any  public 
utility  of  which  the  tunnel  was  to  form  a 
part,  nor  by  which  it  was  to  be  of  any 
use  to  the  city  whatsoever.  It  was  to 
have  the  perpetual  right  to  use  the  tunnel 
free  of  rent  as  an  aqueduct,  and  to  install 
conduits  therein  to  bring  water  into  the 
city,  to  operate  a  pipe  line,  and  an  elec- 
tric line  through  the  tunnel,  and  to  use 
it  for  drainage  if  it  so  desired,  also  to 
have  full  benefit  of  any  ore  that  might 
be  found  in  driving  the  tunnel,  and  the 
right  to  subject  it  and  the  tracks  herein 
to  use  of  any  other  railroad  desiring  the 
same  on  terms  which  would  be  exceedingly 
onerous  to  any  other  railroad.  Held,  that 
the  ordinance  was  violative  of  Const,  art. 
11,  §§  1,  2.  prohibiting  a  city  from  lend- 
ing its  credit  to  any  company  or  corpora- 
tion for  any  purpose,  and  from  makin?  a 
donation  of  money  or  bonds  in  further- 
ance of  a  work  jointly  with  any  person, 
company,  or  corporation,  etc.  Lord  v. 
Denver  (Colo.)  1916C-893.       (Annotated.) 

Notes. 

Fower  of  municipality  to  enter  into 
partnership  contract  for  construction  of 
improvement.     1916C-909. 

Right  of  municipality  to  enter  into  busi- 
ness competition  with  citizen.     1918B-104. 

Power  of  municipality  to  construct 
and  operate  municipal  telephone  system. 
1918A-380. 

Power  of  municipality  to  engage  in  busi- 
ness of  furnishing  fuel  to  inhabitants. 
1916C-742. 

Power  of  municipality  to  operate  plant 
for  purpose  of  furnishing  ice  to  inhabi- 
tants.    1916C-1287. 

d.    Power  to  Regulate  Rates. 

43.  The  right  to  regulate  rates  is  a  mat- 
ter of  general  concern,  and  does  not  per- 
tain  solely    to    municipal    affairs.    Wood- 


MUNICIPAL  CORPORATIONS. 


617 


barn  v.  Public  Service  Commission  (Ore.) 
1917E-996. 

44.  Since  the  right  to  regulate  rates  is 
an  inherent  element  of  sovereignty,  such 
right  can  be  delegated  to  a  municipality 
only  by  clear  and  express  terms,  and  all 
doubts  must  be  resolved  against  the  mu- 
nicipality. Woodburn  v.  Public  Service 
Commission  (Ore.)  1917E-996. 

(Annotated.) 

e.     Power  Outside  Limits. 

45.  Validity  of  Statute.  The  legislature 
had  power  to  enact  Utah  Comp.  Laws  1907, 
§  206,  subd.  15,  which  gives  to  a  city,  to 
protect  from  pollution  the  streams  from 
which  its  public  water  supply  is  taken, 
jurisdiction  over  the  stream  for  ten  miles 
above  the  point  from  which  the  water  is 
taken.  Salt  Lake  City  v.  Young  (Utah) 
1917r)-1085. 

f.    Power  to  Convey  Property. 

46.  Eight  to  Object  —  Federal  Govern- 
ment. That  the  federal  government  had 
appropriated  money  to  construct  buildings 
for  a  commercial  exposition,  held  on  prop- 
erty belonging  to  a  city,  did  not  entitle  it 
to  object  to  the  conveyance  of  the  property 
by  the  city  for  private  purposes  to  a  pri- 
vate corporation,  though  a  few  of  the 
buildings  yet  remained  on  the  premises  and 
were  occupied  by  a  museum.  Board  of 
Trustees  of  Phila.  Museums  v.  Trustees  of 
Univ.  of  Pa.  (Pa.)  1917]>-449. 

g.    Power  as  to  Nuisances. 

47.  Where  express  specific  power  is  con- 
ferred upon  a  municipality  to  regulate  a 
common  utility,  a  continuance  of  its  use 
is  contemplated;  and  the  power  given  to 
regulate  the  use  does  not  authorize  a  pro- 
hibition of  a  lawful  use  in  any  part  of 
the  city.  If  the  use  degenerates  into  a 
nuisance  it  is  within  the  power  of  the  city 
to  abate  the  nuisance  or  prohibit  the  use. 
Malone  v.  Quiney  (Fla.)  1916D-208. 

5.     ORDINANCES  AND  RESOLUTIONS. 
a.     Nature  and  Adoption. 

48.  Subject  and  Title.  The  ordinance 
attacked  contains  but  one  subject,  and  that 
subject  is  clearly  expressed  in  the  title. 
Kansas  City  v.  Jordan  (Kan.)   1918B-273. 

49.  Effect  as  Law.  An  ordinance  prop- 
erly enacted  has  all  the  force  of  a  law 
■within  the  limits  of  the  municipality. 
Hopkins  t.  Richmond  (Va.)  1917D-1II4. 

50.  Supplementing  Statute.  It  is  no  ob- 
jection to  municipal  ordinances,  under  Ala. 
Pol.  Code,  1907,  §  1251,  giving  municipal- 
ities full  power  to  pass  ordinances,  that 
they  afford  additional  regulations  comple- 
mentary to  the  end  state  legislation  would 
effect,  if  they  are  not  in  contravention  of 


any  state  enactment.     Borok  v.  Birming- 
ham (Ala.)  1916C-1061. 

51.  Force  and  Effect.  City  ordinances, 
authorized  and  duly  enacted  within  the 
municipal  power,  have  the  same  local  force 
and  effect  as  a  statute.  Prest-o-lite  Co.  v. 
Skeel  (Ind.)  1917A-474. 

52.  Ordinance  as  "Law."  An  ordinance 
is  a  "law,"  within  Mo.  Rev.  St.  1909,  §| 
6155,  6177,  governing  elections  in  cities 
empowered  to  enact  ordinances,  making  it 
a  crime  to  vote  more  than  once  at  any 
such  election,  including  one  to  pass  on  a 
public  proposition  submitted  to  vote  by 
"law."    In  re  Siegel  (Mo.)  1917C-684. 

(Annotated.) 

53.  Effect  of  Title  and  Preamble.  The 
title  and  preamble  are  parts  of  an  ordin- 
ance, as  they  are  of  a  statute.  Duquesne 
Light  Co.  V.  Pittsburgh  (Pa.)  1917E-534. 


Ordinance  as 


Note. 
'law."     1917C-687. 


54.  Power  to  Lease  —  Limitation  not 
Betroactive.  Ordinances  and  statutes  lim- 
iting the  period  for  which  the  city  may 
lease  property,  not  being  retroactive,  do 
not  affect  renewals  under  a  prior  valid 
lease  hy  the  city  of  New  York  for  21 
years,  with  covenant  for  renewals  in  per- 
petuity. Burns  v.  New  York  (N.  Y.) 
1916C-1093. 

b.    Validity. 

(1)  •  In  General. 

55.  Preventing  Injury  to  Public.    Any 

regulation,  whatsoever  its  character,  which 
is  instituted  for  the  purpose  of  preventing 
injury  to  the  public,  and  which  tends  to 
furnish  the  desired  protection,  is  consti- 
tutional. State  V.  Starkey  (Me.)  1917A- 
196. 

56.  Reasonableness    of     Ordinance.     A 

municipality  can  enact  reasonable  ordin- 
ances only,  and  the  court  will  annul  or- 
dinances which  are  unreasonable,  illegal 
or  repugnant  to  law.  State  v.  Starkey 
(Me.)   1917A-196. 

57.  Restraining  Injurious  Business. 
Though  all  by-laws  made  in  restraint  of 
trade,  or  which  tend  to  create  a  monopoly, 
are  void,  yet  a  city  or  town,  by  leasonable 
general  provisions,  by  ordinance,  may 
regulate  and  restrain  all  noxious  and  in- 
jurious callings  within  its  limits.  State 
V.  Starkey  (Me.)  1917A-196. 

58.  Validity  of  Ordinance.  Such  ordin- 
ance was  referable  to  the  police  power, 
and  was  not  invalid  on  the  ground  of  its 
unreasonableness.  St.  Louis  v.  Nash  (Mo  ) 
1918B-134. 

(2)     Segregation  of  Races. 

59.  Segregation  of  Races— Validity.     A 

municipal  ordinance  prohibiting  any  white 
or   colored  person  from  moving  into  and 


618 


DIGEST. 

1916C— 1918B. 


occupying  as  a  residence  or  place  of  abode, 
or  to  establish  and  maintain  as  a  place  of 
public  assembly  any  house  upon  any  block 
upon  which  a  greater  number  of  houses 
are  occupied  by  persons  of  the  opposite 
race,  denies  due  process  of  law  in  viola- 
tion of  Const.  U.  S.  Amend.  14  (9  Fed,  St. 
Ann.  416),  as  property  owners  are  denied 
the  right  to  dispose  of  their  property  by 
prohibiting  the  occupation  of  it  for  the 
80le  reason  that  the  purchaser  is  a  person 
of  a  particular  race  intending  to  occupy 
the  premises  as  a  place  of  residence.  Buch- 
anan V.  Warley  (U.  S.)   1918A-1201. 

(Annotated.) 

60.  The  race  segregation  ordinance  of 
the  city  of  Louisville  which  prohibits  any 
colored  person  from  occupying  as  a  resi- 
dence or  place  of  assembly  for  colored 
people  a  building  in  any  block  in  whichT 
the  greater  part  of  the  houses  are  occu- 
pied by  white  persons,  and  vice  versa,  but 
which  provides  that  it  shall  not  affect  the 
location  of  residences  or  places  of  assem- 
bly made  previous  to  its  enactment,  nor 
prevent  any  person  who  has  theretofore 
acquired  a  building  for  a  residence  or 
place  of  assembly  from  exercising  such 
right,  does  not  take  away  the  right  of 
alienation,  but  is  merely  a  restriction  on 
alienation  by  taking  away  the  probability 
of  alienation  to  certain  classes  of  purchas- 
ers, and,  as  such,  cannot  be  held  to  de- 
prive the  owner  of  a  vested  right.  Harris 
V.  Louisville  (Ky.)  1917B-149. 

(Annotated.) 

61.  That  ordinance  does  not  conflict  with 
the  Bill  of  Eights,  Const.  §  1,  recognizing 
inherent  and  inalienable  rights,  section  2 
providing  that  absolute  power  over  the 
life  and  property  of  a  man  does  not  exist 
in  a  republic,  and  section  26  providing  that 
the  rights  secured  by  the  Bill  of  Eiglits 
shall  remain  inviolate,  or  Const.  U.  S. 
Amend.  14  providing  that  no  person  shall 
be  deprived  of  liberty  or  property  without 
due  process  of  law,  since  all  these  guaran- 
ties are  not  absolute,  but  are  subject  to 
the  right  to  impose  reasonable  restraints 
on  the  use  of  property.  Harris  v.  Louis- 
ville (Ky.)   1917B-149.  (Annotated.) 

62.  The  fact  that  the  ordinance  would 
have  the  effect  of  excluding  colored  people 
from  the  more  desirable  parts  of  the  city 
does  not  deprive  them  of  liberty  or  prop- 
erty without  due  process  of  law  contrary 
to  the  Fourteenth  Amendment,  since  they 
can  improve  their  sections  of  the  citv  until 
they  are  equal  to  those  of  the  whites. 
Harris  v.  Louisville  (Ky.)  1917B-149. 

(Annotated.) 

63.  That  ordinance  is  a  valid  exercise 
of  the  police  power  of  the  municipal  legis- 
lature as  a  reasonable  measure  for  the 
public  welfare,  in  view  of  the  settled  pub- 
lic policy  of  the  state  to  secure  the  sepa- 
rati'm  of  races.  Harris  v.  Louisville  (Ky.) 
1917B-149.  (Annotated.) 


64.  The  invalidity  of  so  much  of  an  or- 
dinance providing  for  the  segregation  of 
the  races  as  limits  the  rights  of  any  white 
or  colored  person  to  occupy  property  of 
which  he  was  the  owner  at  the  time  the 
ordinance  went  into  effect  does  not  render 
invalid  so  much  of  the  ordinance  as  ap- 
plies to  persons  whose  rights  as  owners  or 
tenants  accrued  since  the  passage  of  the 
ordinance.  Hopkins  v.  Bichmond  (Va.) 
1917D-1114.  (Annotated.) 

65.  An  ordinance  making  it  unlawful 
for  any  white  person  to  occupy  as  a 
residence  any  building  on  any  street  on 
which  a  greater  number  of  houses  are  oc- 
cupied as  residences  by  colored  people 
than  by  white  people,  and  making  it  un- 
lawful for  any  colored  person  to  occupy 
as  a  residence  any  house  on  any  street  on 
which  a  greater  number  of  houses  are  occu- 
pied as  residences  by  white  people  than 
by  colored  people,  is  constitutional  in  so 
far  as  it  applies  to  persons  whose  rights 
as  owners  or  tenants  have  accrued  since 
the  passage  of  the  ordinance,  and  is  in- 
valid only  so  far  as  it  restricts  the  right 
of  any  white  or  colored  person  to  move 
into  and  occupy  property  of  which  he  was 
the  owner  at  the  time  of  the  going  into 
effect  of  the  ordinance.  Hopkins  v.  Rich- 
mond (Va.)   1917D-1114.         (Annotated.) 

66.  An  ordinance  making  it  unlawful 
for  any  white  person  to  occupy  as  a  resi- 
dence any  house  on  any  street  on  which. 
a  greater  number  of  houses  are  occupied 
as  residences  by  colored  people  than  are 
occupied  by  white  people,  and  niakina;  it 
unlawful  for  any  colored  person  to  occupy 
as  a  residence  any  house  on  any  street  on 
which  a  greater  number  of  houses  are  occu- 
pied as  residences  by  white  people  than 
by  colored  people,  is  prospective  only  in 
its  application,  and  does  not  deprive  any 
person  of  his  rights  or  property  existing 
at  the  time  of  its  passage.  Hopkins  v. 
Richmond  (Va.)  1917I>-1114. 

(Annotated.) 

67.  An  ordinance  providing  for  the  seg- 
regation of  the  races  within  a  municipality 
does  not  deny  to  any  person  the  equal 
protection  of  the  laws,  for  there  is  no  dis- 
crimination between  the  races,  and  it  oper- 
ates alike  on  all  persons  and  property  un- 
der the  same  circumstances  and  conditions. 
Hopkins  t.  Richmond  (Va.)  1917D-1114. 

(Annotated.) 

68.  An  ordinance  making  it  unlawful 
for  any  white  person  to  occupy  as  a  resi- 
dence any  building  on  any  street  on  which 
a  greater  number  of  houses  are  occupied 
as  residences  by  colored  people  than  are 
occupied  by  white  people,  and  making  it 
unlawful  for  any  colored  person  to  occupy 
as  a  residence  any  house  on  any  street  on 
which  a  greater  number  of  houses  are  occu- 
pied as  residences  by  white  people  than 
by  colored  people,  does  not  depend  on  any 


MUNICIPAL  CORPORATIONS. 


619 


subsequent  action  or  consent  of  any  one, 
but  becomes  effective  on  its  passage,  and 
there  is  no  delegation  of  authority  by  the 
legislative  body.  Hopkins  v.  Richmond 
(Va.)  1917D-1114.  (Annotated.) 

69.  Under  Va.  Code  1904,  §  1038,  con- 
ferring on  cities  and  towns  the  right  to 
preserve  the  peace  and  good  order  within 
their  limits,  a  town  has  the  implied  and  in- 
cidental power  to  pass  an  ordinance  segre- 
gating the  white  and  colored  races,  if  it 
tended  to  promote  peace  and  good  order, 
under  the  exercise  of  the  "police  power," 
which  includes  the  inherent  sovereignty, 
which  is  the  right  and  duty  of  the  govern- 
ment, or  its  agents,  to  exercise  whatever 
public  policy  demands  for  the  benefit  of 
society  at  large,  to  guard  its  morals,  safety, 
health,  and  order,  or  to  insure  such  eco- 
nomic conditions  as  an  advancing  civiliza- 
tion requires.  Hopkins  v.  Eichmond  (Va.) 
1917D-1114.  (Annotated.) 

70.  Ordinances  providing  for  the  segre- 
gation of  the  races,  when  intended  to 
operate  as  bona  fide  police  regulations  and 
reasonably  necessary  for  that  purpose, 
operate  reasonably,  without  unduly  inter- 
fering with  private  rights,  and  are  con- 
stitutional. Hopkins  v.  Richmond  (Va.) 
1917D-1114.  (Annotated.) 

71.  Sections  1  and  2  of  the  ordinance  of 
the  city  of  Atlanta,  adopted  June  16,  1913, 
and  the  corresponding  sections  of  an 
amendment  thereto,  adopted  November  3, 
1913,  prohibiting  white  persons  and  col- 
ored persons  from  residing  in  the  same 
block,  deny  the  inherent  right  of  a  person 
to  acquire,  enjoy,  and  dispose  of  prop- 
erty, and  for  this  reason  are  violative  of 
the  due  process  clause  of  the  federal  and 
state  constitution.  Carey  v.  Atlanta  (Ga.) 
1P16E-1151.  (Annotated.) 

(3)     Regulation  of  Dogs. 

72.  The  regulation  of  dogs,  a  branch  of 
its  police  power  which  the  state  may  dele- 
giite  to  a  city,  is  not  limited  to  dogs  run- 
ning at  large,  but  extends  to  the  keeping 
of  dogs.  McPhail  V.  Denver  (Colo.)  1916E- 
1143. 

(4)     Regulating  Presentation  of  Claims. 

73.  A  municipality  cannot  by  ordinance 
impose  on  its  creditors  the  duty  of  pres- 
entation of  claims  as  a  condition  to  the 
bringing  of  suit.  Alabama  City,  etc.  R. 
Co.  V.  Gadsden  (Ala.)  1916C-573. 

(5)     Prohibiting  Earth  Closets. 

74.  An  ordinance  forbidding  the  use  of 
earth  closets  in  designated  portions  of  the 
city  of  Quincy,  without  reference  to 
whether  such  closets  are  a  nuisance,  is  not 
authorized  by  the  charter  act,  chapter 
5844,  Fla.  Acts  of  1907;  and  a  judgment 
of  the  municipal  court  imposing  a  penalty 


for  a  violation  of  such  ordinance  is  invalid 
and  may  be  quashed  on  certiorari.  Ma- 
lone  V.  Quincy  (Fla.)   1916D-208. 

(Annotated.) 

75.  The  express  authority  given  the  city 
"to  regulate  the  construction,  location  and 
arrangement  of  earth  closets"  in  the  con- 
nection used  in  the  charter  act  of  Quincy, 
chapter  5844,  Fla.  Acts  of  1907,  has  refer- 
ence to  the  location  of  such  closets  as 
they  are  used  on  property  in  the  city, 
and  does  not  authorize  a  prohibition  of 
the  proper  use  of  earth  closets  in  any  part 
of  the  city.  Nor  does  the  express  author- 
ity to  issue  bonds  for  construction  and 
maintaining  waterworks  and  a  "system  of 
sewerage"  give  the  city  power  toprohibit 
the  use  of  earth  closets.  Malone  v.  Quincy 
(Fla.)  1916D-208.  (Annotated.) 

76.  If  earth  closets  in  a  city  for  any  rea- 
son become  a  nuisance  or  otherwise  unlaw- 
ful, the  municipality  may  by  reasonable 
regulations  abate  them  or  otherwise  deal 
with  them  as  the  charter  powers  may  au- 
thorize. Malone  v.  Quincy  (Fla.)  1916D- 
208.  (Annotated.) 

77.  "When  the  use  of  earth  closets  is 
contemplated  by  a  municipal  charter,  and 
express  limited  authority  is  given  to  regu- 
late the  use  of  them,  their  proper  use  as 
such  is  not  unlawful  and  cannot  be  pro- 
hibited by  the  municipality  in  the  absence 
of  express  authority  to  do  so,  or  uniess 
such  closets  become  a  nuisance  or  their  use 
is  otherwise  unlawful  and  within  the  power 
of  the  city  to  abate  or  prohibit.  Malone 
V.  Quincy  (Fla.)  1916D-208.    (Annotated.) 

78.  Power  of  a  municipality  to  prohibit 
the  use  of  earth  closets  within  its  limits 
cannot  be  implied  merely  from  authority 
expressly  given  to  regulate  their  use;  and 
power  to  prohibit  the  use  of  earth  closets 
in  a  city  is  not  conferred  by  general  pow- 
ers given  to  conserve  the  public  health  and 
general  welfare,  when  the  authority  to 
regulate  the  use  of  earth  closets  is  ex- 
pressly conferred  in  definite  terms  limited 
in  their  scope  and  purpose.  Malone  v. 
Quincy  (Fla.)  1916D-208.         (Annotated.) 

Note. 
Validity   of  statute   or  ordinance  regu- 
lating    out-of-door     closets     or     privies. 
1916D-212. 


(6)     Regulating  Keeping  of  Animals. 

79.  Regulation    ol    Keeping    of    Cattle. 

Beaumont  City  Ordinance,  art.  991,  pro- 
vides that  it  shall  be  unlawful  to  estab- 
lish or  maintain  any  stock  pens  within 
300  feet  of  any  hotel  or  private  residence 
in  the  city  without  a  permit  from  the  city 
council.  Other  provisions  declare  that  the 
words  "stock  pen"  shall  include  any  lot 
wherein  more  than  six  head  of  cattle  are 
kept.  It  is  held  that  the  ordinance  was 
a  proper  exercise  of  the  city's  police  power. 


620 


DIGEST. 

1916C— 1918B. 


and  was  not  unconstitutional  because  the 
council  might  act  arbitrarily,  since  it 
would  be  presumed  that  it  would  not  do 
ao,  and,  if  it  did,  the  person  aggrieved 
would  have  an  adequate  remedy  by  man- 
damus. Ex  parte  Broussard  (Tex.)  1917E^ 
919,  (Annotated.) 

Note. 
Validity  of  ordinance  regulating  keeping 
of  cattle  within  municipal  limits.     1917E- 
929. 

(7)     Regulating  Electricians. 

80.  Begtilation  of  Electricians.  Iowa 
Code,  §§  ()80,  695,  711,  empowering  munici- 
pal corporations  to  adopt  ordinances  to 
carry  into  effect  duties  conferred,  and  to 
make  regulations  against  danger  from  ac- 
cidents by  fire  or  electrical  apparatus,  etc., 
does  not  authorize  a  town  owning  an  elec- 
tric light  plant  to  require  electric  wire 
men  to  procure  a  license,  and  to  execute 
a  bond  conditioned  on  their  indemnifying 
the  town  and  the  superintendent  of  public 
works  from  liability  for  any  damage  aris- 
ii-g  from  any  negligence  in  doing  their 
work.  Akron  v.  McElligott  (Iowa) 
1916E-692.  (Annotated.) 

(8)     Regulating  Wiring. 

81.  A  town  owning  an  electric  light 
plant  may  make  all  reasonable  rules  as 
to  the  method  of  doing  the  work  of  wir- 
ing, and  provide  for  inspection  prior  to 
connection  with  its  system,  and  require 
conformity  to  standards  reasonably  neces- 
sary to  safety  and  efficiency.  Akron  v. 
McElligott  (Iowa)   1916E-692. 

(Annotated.) 

(9)     Regulating  Manufacture  of  Bricks. 

82.  Ordinance  Prohibiting  Manufacture 
— ^Validity.  A  municipal  ordinance  en- 
acted in  good  faith  as  a  police  measure, 
prohibiting  brick-making  within  a  desig- 
nated area,  does  not  take,  without  due 
process  of  law,  the  property  of  an  owner 
of  a  tract  of  land  within  the  prohibited 
district,  although  such  land  contains  valu- 
able deposits  of  clay  suitable  for  brick- 
making  which  cannot  profitably  be  removed 
and  manufactured  into  brick  elsewhere, 
and  is  far  more  valuable  for  brickmaking 
than  for  any  other  purpose,  and  had  been 
acquired  by  him  before  it  was  annexed 
to  the  municipality,  and  had  long  been 
used  by  him  as  a  brickyard.  Hadacheck 
v.  Sebastian  (U.  S.)  1917B-927. 

(Annotated.) 

83.  Prohibiting  by  municipal  ordinance 
the  manufacture  of  brick  within  a  desig- 
nated area  cannot  be  said  to  deny  the  eq  lal 
protection  of  the  laws  to  the  owner  of  a 
brickyard  within  the  prohibited  district, 
where  the  record  does  not  show  that  brick- 
yards in  other  localitios  within  the  munici- 
pality where  the  same  conditions  o?dst  are 
not  regulated  or  prohibited,  or  that  other 


objectionable  businesses  are  permitted 
within  the  same  district.  Hadacheck  ▼. 
Sebastian  (U.  S.)  1917B-927. 

(Annotated.) 

(10)     Regulating  Charities. 

84.  City  ordinances  creating  a  municipal 
charities  commission  and  prohibiting  beg- 
ging in  the  public  streets,  while  regulating 
the  soliciting  of  contributions  for  ehar- 
itKble  purposes,  the  last  of  which  gave  the 
commission  arbitrary  power  to  forbid  any 
person  from  soliciting  for  charity  regard- 
less of  his  personal  worth  or  fitness,  not 
establishing  any  standard  of  character  by 
which  the  commission  should  bo  guided  in 
giving  permits,  merely  requiring  that  it 
should  find  that  the  "object  of  said  solici- 
tation is  worthy  and  meritorious,"  are 
unconstitutional  so  far  as  giving  such  ar- 
bitrary power,  and  in  provisions  imposing  a 
penalty  upon  any  one  soliciting  contribu- 
tions for  charitable  purposes  without  a 
permit  and  prohibiting  the  sale  of  any 
goods  donated  to  charity  without  the  solic- 
itor first  having  obtained  a  similar  permit. 
Matter  of  Dart  (Cal.)    1917D-1127. 

(Annotated.) 

Note. 
Validity  of   statute   or  ordinance  regu- 
lating solicitation   of    funds    for    private 
charity.     1917D-1133. 

85.  Police  Power — Regulation  of  Private 
Charity.  The  occupation  of  soliciting  con- 
tributions for  charitable  purposes  may  be 
regulated  by  laws  or  ordinances  providing 
for  reasonable  supervision  of  the  persona 
engaged,  and  for  the  application  or  use  ot 
the  contributions  received  to  the  purposes 
intended,  to  prevent  unscrupulous  persons 
from  obtaining  money  or  other  things  ua- 
aer  the  pretense  that  they  are  to  be  ap- 
plied to  charity,  to  prevent  the  wrongful 
diversion  of  such  funds  to  other  uses,  and 
to  secure  them  against  waste.  Matter  ot 
Dart   (Cal.)   1917D-1127.  (Annotated.) 

(11)     Regulating  Use  of  Property. 

86.  Police  Power — Restriction  on  Use  of 
Property.  A  municipal  corporation,  in- 
vested by  its  charter  or  by  general  statute 
with  power  to  preserve  the  peace  and 
health,  may  restrict  the  use  of  private 
property  in  the  interest  of  the  public,  pro- 
viding the  restriction  is  reasonable.  Hop- 
kins V.  Richmond  (Va.)  1917D-1114. 

(12)     Prohibiting  Pollution  of  Water. 

87.  Police  Regulations  —  Pollution  of 
Water  Supply — Pasturing  Horses— Validity 
of  Ordinance.  A  complaint  by  Salt  Lake 
City,  which  charged  that  defendant  unlaw- 
fully and  wilfully  and  continuously  for  ten 
days  and  more  permitted  twenty-seven 
head  of  horses  to  be  at  all  times  access- 
ible to  the  stream  from  which  the  city 
secured  its  water  supply,  to  pasture  along 


MUNICIPAL  CORPORATIONS. 


621 


its  banks,  to  wade  in  the  stream,  and  to 
run  at  large  npon  defendant's  tract  of  land 
comprising  about  fifteen  acres  along  the 
stream,  contrary  to  a  city  ordinance, 
charges  defendant  with  acts  which  the 
city  may  by  its  ordinance  prohibit  and  is 
not  demurrable.  Salt  Lake  Cily  v.  Younj 
(Utah)  1917D-1085.  (Annotated.) 

(13)     Making    Facts    Prima    Facie    Evi- 
dence. 

88.  An  ordinance  providing  that  certain 
circumstances,  when  established  by  evi- 
dence, should  raise  a  prima  facie  presump- 
tion of  guilt,  which  promulgates  the  same 
rule  as  the  Fuller  Bill  (Acts  Sp.  Sess. 
Ala.  1909,  p.  63),  infracts  no  constitutional 
provision.  Borok  v.  Birmingham  (Ala.) 
1916C-1061.  (Annotated.) 

Note. 

Validity  of  ordinance  providing  that  cer- 
tain state  of  facts  shall  constitute  prima 
facie  evidence  of  violation  thereof. 
1916C-1062. 


(14)     Eegulation   of  Meat  Dealers. 

89.  Inspection  —  Provision  for  Expense. 

An  ordinance  of  the  town  of  Houltou,  re- 
quiring meat  offered  for  sale  in  the  town 
.  to  be  inspected  by  an  official  inspector, 
was  not  invalid,  because  the  expense  of 
the  inspection  was  not  provided  for  there- 
in.    State  V.   Starkey   (Me.)   1917A-196. 

90.  Eegulation  of  Meat  Dealers.  An  or- 
dinance of  the  town  of  Houlton,  providing 
that  no  carcasses  of  neat  cattle,  sheep, 
or  swine,  wherever  slaughtered,  shall  be 
sold  or  offered  for  sale  in  the  town,  unless 
inspected  at  the  time  of  the  slaughter  by 
an  official  inspector,  etc.,  was  a  proper 
exercise  of  the  police  power  of  the  state 
as  delegated  by  Me.  Eev.  St.  c.  4,  §  93, 
cl.  3,  providing  that  towns,  citie.«,  and 
villages  may  make  and  enforce  ordinances 
respecting  infectious  diseases  and  health. 
State  V.  Starkey  (Me.)  1917A-196. 

(Annotated.) 
Note. 
Statutory    or     municipal     regulation    of 
meat  dealers.     1917A-198. 


(15)     Kogulating  Smoke. 

91.  Smoke  Ordinance  —  Reasonableness. 
Where  the  evidence  of  expert  marine  en- 
gineers showed  that  there  was  no  known 
appliance  which  could  be  used  upon  marine 
boilers  to  prevent  the  emission  of  smoke, 
an  ordinance,  declaring  that  the  emission 
of  dense,  black  or  gray  smoke  from  any 
smokestack  used  in  connection  with  any 
steam  boiler  in  any  boat,  etc.,  within  the 
city  limits  should  be  a  public  nuisance  per 
se,  and  that  the  owners  of  any  steamboat 
and  the  general  manager,  fireman  or  other 
employee  ha\'ing  charge  of  any  steamboat 
within  the  city  permitting  it  to  emit  such 


smoke  should  be  guilty  of  creating  a  publie 
nuisance  and  of  a  violation  of  tho  ordin- 
ance, is  unreasonable  and  invalid;  though 
its  invalidity  is  not  a  bar  to  a  future  pros- 
ecution thereunder  if  practical  and  efficient 
appliances  may  be  had,  or  to  liability  for 
a  common-law  nuisance.  People  v.  De- 
troit, etc.  Ferry  Co.  (Mich.)  1918B-170. 

(Annotated.) 
c.     Construction. 

92.  Reasonableness  of  Ordinance  —  Ju- 
dicial Review.  Whether  an  ordinance  is 
unreasonable,  and  hence  void,  is  for  the 
court;  but,  in  determining  the  question,  it 
must  regard  the  circumstances  of  the  mu- 
nicipality, and  the  objects  sought  to  be 
attained,  and  the  necessity  existing  for 
ti.e  ordinance.  Hopkins  v.  Kichmond 
(Va.)  1917D-1114. 

93.  Interpretation  of  Ordinance — Opin- 
ions of  Members  of  Council.  WTiere  a  city 
ordinance  embodies  a  contract  between  the 
municipality  and  street  railways,  the  court, 
in  construing  it,  should  look  solely  to  its 
text  and  the  situation  existing  between 
the  railways  and  the  city  when  the  ordin- 
ance was  passed,  and  not  to  the  letters, 
statements,  and  opinions  of  the  aldermanic 
body  that  passed  it,  since  justice  to  the 
street  railways  who  accepted  the  contract 
demands  that  the  intention  of  tha  city 
council  be  determined  from  a  consideration 
of  the  enactment  itself.  People  v.  Chicago 
E.  Co.  (111.)  1917B-821.  (Annotated.) 

94.  A  city  ordinance  embodying  a  con- 
tract between  the  municipality  and  street 
railways  could  be  construed  only  in  the 
light  of  its  text,  and  not  in  the  light  of  let- 
ters, statements,  and  opinions  as  to  its 
meaning  of  members  of  the  local  transpor- 
tation committee  of  the  city  council  which 
it  did  not  appear  were  brought  to  the 
attention  of  the  council  itself  at  large 
when  the  ordinance  was  submitted  to  it 
for  passage,  since  it  is  the  intention  of  the 
city  council  which  the  courts  must  en- 
deavor to  determine,  not  the  intention  of 

•  committee  members,  in  construing  an  or- 
dinance. People  v.  Chicago  E.  Co.  (111.) 
1917B-821.  (Annotated.) 

95.  Reasonableness  of  Ordinance — ^Evi- 
dence of  Extrinsic  Facts.  In  certiorari  to 
review  a  judgment  based  upon  a  city  or- 
dinance, evidence  as  to  its  reasonableness 
as  applied  to  the  subject-matter  or  local 
conditions  is  admissible.  People  v.  Gibbs 
(Mich.)  1917B-830. 

96.  Motives  of  Municipal  Council.  Since 
courts  will  not  inquire  into  the  motives 
which  actuate  the  members  of  the  legis- 
lative body  in  passing  an  ordinance, 
whether  an  ordinance  regulating  public 
auctions  was  passed  to  benefit  special  in-  • 
terests  cannot  be  considered.  People  v. 
Gibbs   (Mich.)   1917B-830.       (Annotated.) 

97.  Presumption  of  Reasonableness. 
City   licensing   and   regulation    ordinances 


622 


DIGEST. 

1916C— 1918B. 


are  primarily  presumed  to  be  reasonable 
unless  the  contrary  appear  on  their  face, 
but  if  the  inherent  character  of  tiieir  pro- 
visions appear  to  be  unreasonable,  the 
courts  must  declare  such  provisions  void. 
People  V.  Gibbs  (Mich.)  1917B-830. 

98.  Reasonableness  of  Ordinance  —  Ju- 
dicial Review,  "Whether  an  ordinance  is 
reasonable,  and  within  the  discretionary 
power  of  the  municipal  authorities,  is  a 
judicial  question.  People  v.  Gibbs  (Mich.) 
1917B-830. 

99.  Applicability  of  Rules  of  Statutory 
Construction.  The  rules  for  the  construc- 
tion of  a  city  ordinance  are  the  same  as 
those  applied  in  the  construction  of  a  stat- 
ute. People  V.  Chicago  B.  Co.  (111.)  1917B- 
821. 

Notes. 

Opinions,  acts,  etc.,  of  members  of  coun- 
cil as  aid  to  interpretation  of  ordinance. 
1917B-829. 

Judicial  inquiry  into  motives  prompting 
enactment  of  legislative  ordinance.  1917B- 
834. 

d.     Time  of  Taking  Effect. 

100.  When  Effective.  Under  Kurd's  HI. 
Rev.  St.  1915-16,  c.  24,  §  64,  making  appro- 
priation ordinances  take  effect  ten  days 
after  publication,  and  Kurd's  Rev.  St. 
1915-16,  c.  131,  §  1,  and  c.  100,  §  6,  provid- 
ing that  time  shall  be  computed  by  exclud- 
ing the  first  and  including  the  last  day, 
an  appropriation  ordinance  published  Jan- 
uary 29,  becomes  effective  February  8  and 
a  tax  levy  ordinance  passed  that  dav  is 
valid.     People  v.  Snow  (111.)  1917E-9S2. 

e.    Prosecutions  for  Violations. 

101.  Offense  Under  Ordinance — Negativ- 
ing Exceptions.  In  charging  an  offense 
under  a  city  ordinance,  it  is  not  necessary 
to  plead  any  of  the  exceptions  named  in 
the  ordinance,  where  such  exceptions  are 
not  contained  in  the  clause  which  creates 
the  offense.  Kansas  City  v.  Jordan  (Kan.) 
1918B-273. 

102.  Nature  of  Proceeding.  Action 
against  a  railroad  company  tor  violation 
of  a  city  ordinance  requirin/j  the  sprinklinjr 
of  tracks,  in  which  the  railroad  company 
was  sentenced  to  pay  a  fine  of  $103.  is 
criminal  in  character.  People  v.  Pacific 
Gas,  etc.  Co.  (Cal.)  1917A-328. 

(Annotated.) 

103.  Right  of  Appeal.  A  legislative  act 
granting  the  state  the  right  to  appeal  does 
not  by  implication  grant  the  same  right 
to  municipalities  existing  under  state  law. 
The  right  of  the  sovereign  to  appeal  must 
be  authorized.  Oklahoma  City  v.  Tucker 
(Okla.)   1917D-984.  (Annotaed.) 

104.  (a)  The  right  of  the  state  to  appeal 
from  an  adverse  judgment  rendered  in  a 
criminal  prosecution  is  controlled  by  stat- 
ute, and  exists  only  by  specific  statutory 
authority. 


(b)  The  right  of  the  state  to  appeal  on 
a  question  reserved  by  the  representatives 
of  the  state  in  the  trial  court  is  based  on 
section  5990,  Okla.  Revised  Laws  of  1910; 
but  this  statute  does  not  confer  the  same 
right  on  municipalities.  Oklahoma  City  v. 
Tucker  (Okla.)   1917D-984.      (Annotated.) 

Notes. 

Nature  of  action  or  proceeding  for  vio- 
lation of  municipal  ordinance.  1917A- 
330. 

Right  of  municipality  to  appeal  from 
judgment  in  prosecution  for  violation  of 
ordinance.     1917D-986. 

f.     Repeal. 

105.  Implied  Repeal.  Where  a  later  or- 
dinance contains  no  repealing  clause,  it 
will  not  repeal  a  former  ordinance  unless 
the  later  one  is  clearly  intended  as  a  sub- 
stitute for  the  earlier,  or  there  is  an  irrec- 
oncilable conflict  between  them,  and  then 
only  so  far  as  the  inconsistency  extends. 
Walsh  V.  Bridgeport   (Conn.)    1917B-318. 

6.     APPROPRIATIONS. 

106.  The  electors  of  a  municipality  voted 
to  appropriate  a  sum  of  money  to  pay  the 
cost  of  the  construction  of  certain  portions 
of  a  proposed  sewer.  The  layout  by  the 
board  of  street  commissioners  was  rejected 
by  the  court  of  common  council,  under  the 
charter,  which  gave  it  plenary  powers  over 
the  layout  for  sewers,  and  a  new  layout 
made.  It  is  held  that  an  assessment  for 
the  sewer  as  newly  laid  out  was  valid,  not- 
withstanding the  appropriation  had  not 
been  apportioned,  for  until  the  assessment 
was  made  the  court  of  common  council  had 
the  right  to  discontinue  the  origind  pro- 
ceeding, and  the  appropriation  could  bo 
used  only  for  the  construction  of  the  s^wer 
on  the  original  layout.  Dellaripa's  Appeal 
(Conn.)    1917B-862.  (Annotated.) 

107.  Diversion.  An  appropriation  of 
public  moneys  for  one  object  cannot  be 
used  for  another.  Dellaripa's  Appeal 
(Conn.)  1917B-862.  (Annotated.) 

108.  Reasonableness — Judicial      Review. 

The  reasonableness  of  the  appropriation 
demanded  by  Mo.  Rev.  St.  1909,  §  9787  et 
seq.,  for  the  support  of  the  metropolitan 
police  system  for  Kansas  City,  is  for  the 
legislature  and  not  for  the  courts.  State 
V.  Jost   (Mo.)   1917D-1102. 

Note. 
Right   to  use  public   funds  for  purpose 
other  than  that  of  appropriation.     1917B- 
864. 

7.     FISCAL  MANAGEMENT. 

a.     Power    to   Borrow   Money   and    Issue 
Bonds. 

109.  Repeal  of  Authorizing  Statute  — 
Effect  on  Pending  Proceedings.     The  omis- 


MUNICIPAL  CORPORATIONS. 


623 


sion  of  sections  372  to  3S1,  Okla.  Compiled 
Laws  of  1909,  from  the  Kevised  Laws  of 
1910  does  not  operate  to  abate  a  proceed- 
ing pending  under  said  sections  prior  to 
the  date  when  said  Bevised  Laws  of  1910 
went  into  effect.  In  re  Application  of 
State,  etc.  (Okla.)  1916E-399. 

(Annotated.) 
Note. 
Authority  of  public   oflBicer  to  complete 
bond  issue  after  repeal  of  statute  author- 
izing issue.     1916E-406. 

b.    Submission  of  Question  to  Voters. 

110.  Authorization  —  Majority  Vote  — 
Wlat  Constitutes.  S.  Dak.  Pol.  Code,  § 
1229,  subd.  5,  declaring  that  no  bond  shall 
be  issued  by  city  council  unless  the  legal 
voters  of  the  city  by  a  majority  shall  have 
determined  in  favor  of  issuing  the  bonds, 
warrants  the  issuance  of  bonds  upon  a 
majority  vote  in  favor  thereof,  though  the 
majority  cast  in  favor  of  issuance  is  not  a 
majority  of  the  voters  of  the  city.  Span- 
gier  v.  Mitchell  (S.  Dak.)  1918A-373. 

C.     Debt   Limit. 

111.  Debt  Limit  Statute  Construed.  Sec- 
tion 2218,  N.  Dak.  Compiled  Laws  1913, 
construed,  and  held  not  to  authorize  the 
making  of  the  contracts  in  question.  The 
evident  purpose  of  that  statute  was  to 
limit  the  public  officers  from  incurring  lia- 
bilities (within  the  constitutional  debt 
limit)  to  such  sum  as  may  be  liquidated 
during  the  current  or  subsequent  years  olit 
of  the  revenues  which  may  be  raised 
within  the  maximum  tax  rate  permitted  by 
law.  It  does  uot  purport  to,  nor  could 
it  legally,  authorize  the  incurring  of  lia- 
bilities exceeding  the  constitutional  debt 
li.nit.  Anderson  v.  International  School 
District   (N.  Dak.)   1918A-506. 

112.  Municipal  Resources — Anticipating 
Eevenues,  In  ascertaining  whether  the 
constitutional  limit  has  been  exceeded, 
funds  in  the  treasury  available  for  meeting; 
the  district's  liabilities  may  be  considered, 
al?o  taxes  levied  and  uncollected,  but  the 
district  officers  have  no  ri^^ht  to  anticipate 
revenues  to  be  derived  from  tax  levies  to 
be  made  in  future  years.  Anderson  v. 
International  School  District  (N.  Dak.) 
1918A-506. 

113.  Amoimt  of  Debt  —  Computation  — 
Aggregation  of  Deferred  Paymtnts.  Da- 
fpndant  school  district,  whose  debt  limit 
w.ns  about  $16,000,  entered  into  a  contract 
on  May  2-7,  1913,  with  defendant  Bartel- 
son  for  the  erection  of  a  schoolhouse  at  the 
agreed  price  of  $24,000.  Eighty-five  per 
cent  of  the  labor  and  materials  furnished 
was  payable  monthlv  uoon  estimates  of  the 
archieet,  and  the  balance  within  a  short 
time  after  the  completion  of  the  building, 
whifh  was  to  be  eomr)loted  on  or  before 
October    15,    1913.     It    also    in    July    and 


August,  1913,  entered  into  two  other  con- 
tracts, one  for  heating  and  ventilating  the 
building,  and  the  other  for  ligiiting  the 
same,  which  contracts  called  for  the  pay- 
ment of  $3,679  and  $599.95,  respectively,  at 
the  completion  thereof. 

Held,  that  these  contracts  created  a 
present  debt  against  the  district  at  the 
date  they  were  entered,  into,  which  debt, 
after  deducting  available  funds  in  the 
treasury  applicable  to  the  payment  there- 
of, greatly  exceeded  the  constitutional  dabt 
limit;  and  to  the  extent  of  such  excess 
the  contracts  are  void,  and  further  pay- 
ments thereon  are  enjoined.  Anderson  v. 
International  School  District  (N.  Dak.) 
1918A-506.  (Annotated.) 

114.  Executory  Contract  as  Creating 
Debt.  The  purpose  of  section  183  of  our 
N.  Dak.  state  constitution  in  limiting  the 
debt  of  certain  municipalities,  including 
school  districts,  to  five  per  cent  upon  the 
assessed  valuation  of  the  taxable  property 
therein,  is  to  prevent  such  municipalities 
from  improvidently  contracting  debts  for 
other  than  ordinary  current  expenses  of 
administration,  and  to  restrict  their  bor- 
rowing capacity,  and  ths  word  "debt,"  as 
therein  employed,  should  receive  a  broad 
meaning  so  as  to  cover  liabilities  created 
under  executory  contracts  for  public  im- 
provements, although  nothing  is  due  there- 
under until  the  same  are  executed  in  part 
or  in  whole.  Anderson  v.  International 
School  District  CN.  Dak.)  1918A-506. 

(Annotated.) 

115.  Expenditure  Assessed  Against  Prop- 
erty. Though  the  charter  of  a  municipal- 
ity provided  that  the  common  council 
should  not  order  any  public  work  requiring 
an  expenditure  of  more  than  $10,000,  un- 
less approved  by  a  majority  at  a  city 
meeting,  the  board  of  street  commissioners 
D:ay  make  a  valid  assessment  for  the  con- 
struction of  a  sewer,  costing  much  more 
than  $10,000,  before  any  appropriation  has 
been  made,  for  until  the  amount  of  the 
special  assessment  has  been  laid,  the  por- 
tion to  be  paid  by  the  city  cannot  be 
determined.  Dellaripa's  Appeal  (Conn.) 
1D17B-862. 

116.  Provision  for  Debt  Limit — Notice 
of  Provision  Imputed.  One  dealing  with  a 
municipality  must  take  notice  of  its  debt 
limit  provision.  German  National  Bank  v, 
Covington   (Ky.)   1917B-189. 

117.  Street  Improvement  Bonds.  "W^ere 
a  city  having  power  to  make  a  street  im- 
provement, but  without  power  to  have  the 
cost  assessed  against  the  abutting  prop- 
erty in  exce?s  of  fifty  per  cent  of  the  value 
thereof,  contracted  for  street  improve- 
ments, the  cost  of  which  exceeded  fifty 
per  cent  of  the  value  of  the  abutting  prop- 
erty, and  issued  bonds  fo^  the  cost  of  the 
work  and  pledged  its  credit  for  their  pay- 
ment, and  the  bond  issue  was  taken  over 
by  thf"  contractor,  who  completed  the  work, 
the  obligation  incurred  by  the  city  is  an 


624 


DIGEST. 

1916C— 1918B. 


indebtedness  within  Kj.  Const.  §  157,  lim- 
iting municipal  indebtedness;  and,  where 
the  debt  created  exceeds  the  debt  limit, 
any  holder  of  the  bonds  cannot  recover 
from  the  city  thereon.  German  National 
Bank  v.  Covington  (Ky.)  1917B-189. 

(Annotated.) 

118.  Where  street  improvement  bonds 
are  not  payable  wholly  out  of  a  special 
fund  from  assessment  on  the  property  ben- 
efited, but  the  faith  and  credit  of  the  city 
are  pledged  for  their  payment,  they  are 
within  Ky.  Const.  §  157,  limiting  municipal 
indebtedness.  German  National  Bank  v. 
Covington  (Ky.)  1917B-189.    (Annotated.) 

119.  Improvement  Assessed  Agaiust 
Property  Benefited.  Contracts  for  local 
improvements,  the  cost  of  which  is  to  be 
borne  wholly  by  the  property  benefited,  do 
not  create  any  "municipal  indebtedness" 
within  Ky.  Const.  §  157,  limiting  municipal 
indebtedness.  German  National  Bank  v. 
Covington  (Ky.)  1917B-189. 

(Annotated.) 
Notes. 

Interest  on  municipal  bonds  as  factor  in 
determining  whether  municipality  has  ex- 
ceeded constitutional  debt  limit.  1918B- 
598. 

Right  of  municipality  to  contract  for 
local  improvement  with  special  assessment 
against  persons  benefited  where  cost  ex- 
ceeds authorized  debt  liimt.     1917B-192 

d.    City  Warrants. 

120.  Where  a  resolution  of  the  mayor 
and  aldermen  authorizes  the  clerk  to  issue 
interest-bearing  warrants  to  plaintiff  cov- 
ering the  amounts  then  due  only,  the  ac- 
tion of  the  clerk  in  issuing  interest-benring 
warrants  for  debts  subsequently  accruing 
does  not  bind  the  city.  Alabama  City,  etc. 
E.  Co.  V.  Gadsden  (Ala.)  1916C-573. 

121.  Authorization  of  Warrants — Future 
Indebtedness.  A  resolution  of  the  mayor 
and  aidermen  that  interest-bearing  war- 
rants "be  issued  covering  the  amounts  due" 
plaintiff  applies  only  to  warrants  then  due 
and  outstanding,  anil  not  to  future  indebt- 
edness. Alabama  City,  etc.  Co.  v.  Gads- 
den (Ala.)   1916C-573. 

122.  Agreement  for  Interest.  A  resolu- 
tion of  the  mayor  and  aldermen  that  in- 
terest-bearing warrants  be  issued  to  plain- 
tiff lighting  company  whose  claims  were 
past  due,  which  was  entered  in  the  min- 
utes and  carried  into  effect  by  the  clerk's 
interlineation  of  the  provision  for  interest 
in  the  then  outstandincj  warrants,  is  to  be 
construed  as  an  agreement  to  pay  inter- 
esl  in  consideration  of  plaintiff's  continu- 
ing to  furnish  light  to  the  citv.  Alabama 
City,  etc.  E.  Co.  v.  Gadsden  (Ala.)  1916C- 
573.  (Annotated.) 

123.  Interest  on  Warrants.  Wliere  no 
date  for  payment  of  interest-bearing  city 


warrants  was  stipulated,  interest  on  the 
interest  due  should  be  allowed  from  the 
date  of  bringing  suit,  which  event  fixed 
the  time  when  the  interest  became  due  and 
payable.  Alabama  City,  etc.  Co.  v.  Gads- 
den (Ala.)  1916C-573.  (Annotated.) 

124.  Where  a  resolution  of  the  mayor 
and  aldermen  provided  for  the  issuance 
of  interest-bearing  warrants  to  plaintiff, 
whose  claims  were  past  due,  which  was 
carried  into  effect  by  the  clerk's  inter- 
lineation of  the  interest  provision  in  out- 
standing warrants,  plaintiff  was  entitled  to 
interest  for  the  time  payment  was  there- 
after further  deferred.  Alabama  City,  etc. 
Co.  V.  Gadsden  (Ala.)  1916C-573. 

(Annotated.)' 

125.  A  payment  to  the  holder  of  city 
warrants  having  been  accepted  as  a  pay- 
ment of  the  principal,  with  the  understand- 
ing that  the  right  to  more  interest  than 
paid  should  be  settled  in  court,  the  ques- 
tion whether  the  amount  so  paid  should  ba 
applied  first  to  the  payment  of  interest 
was  eliminated  from  the  case.  Alabama 
City,  etc.  E.  Co.  v.  Gadsden  (Ala.)  191 6C- 
573.  (Annotated.) 

126.  Where  a  city  being  confessedly  un- 
able to  pay  plaintiff's  warrants,  after  nego- 
tiations with  plaintiff  agreed  to  pay  in- 
terest so  as  to  effect  a  postponement  of 
payment,  such  negotiations  and  agreement 
were  equivalent  to  a  presentation  for  pay- 
ment. Alabama  City,  etc.  E.  Co.  v.  Gads- 
den   (Ala.)    191GC-573.  (Annotated.) 

127.  Ordinarily  city  warrants  draw  in- 
terest, if  at  all,  only  after  presentation 
to  the  disbursing  officer  and  denial  of  pay- 
ment for  want  of  funds,  since  a  municipal 
corporation,  unlike  a  private  person,  is  not. 
bound  to  seek  its  creditors.  Alabama  City, 
etc.  E.  Co.  V.  Gadsden  (Ala.)  1916C-r;73. 

(Annotated.) 

128.  Ala.  Code  1907,  §  1205,  providing 
that,  if  no  interest  is  stipulated  to  be  r^aid 
on  municipal  warrants,  they  shall  draw 
the  legal  rate  after  presentation,  recog- 
nizes a  municipality's  power  to  contract 
to  pay  interest,  but  it  did  not  require  fur- 
ther presentation  of  warrants  upon  which 
the  city  agreed  to  pay  interest,  upon  de- 
mand made  prior  to  the  enactment  of  the 
statute.  Alabama  Citv.  etc.  R.  Co.  v. 
Gadsden  (Ala.)  1916C-.573.       (Annotated.) 

Note. 
Interest  on  city  warrants.     1916C-576. 

8.     LETTING  OF  CONTRACTS. 

129.  Denosit  With  Bid— Effect  of  With- 
drawing Bid.  Under  Baltimore  City  Char- 
ter, as  amended  by  Md.  Laws  190S.  c.  163, 
providing  that  a  contract  for  supnlies  or 
work  shall  be  awarded  to  the  lowest  re- 
sponsible bidder;  that  bids  when  filed  shall 
be  irrevocable;  thnt  each  bid  shall  b^  ac- 
companied by  A  certified   check   of  $500f 


MUNICIPAL  CORPORATIONS. 


625 


and  that  the  saccessful  bidder,  failing  to 
execute  the  contract  and  furnish  a  bond, 
shall  forfeit  his  check  as  liquidated  dam- 
ages— one  may  not  withdraw  his  bid,  even 
before  the  opening  of  the  bids,  and  so, 
being  refused  permission  to  do  so,  and  re- 
fusing to  sign  the  contract,  on  it  being 
awarded  him,  he  cannot  recover  the  amount 
of  his  check.  Baltimore  v.  J.  L.  Robinson 
Construction  Co.  (Md.)  1916C-425. 

(Annotated.) 

130.  Necessity  for  Re  advertisement. 
"Where  the  lowest  bidder  to  whom  contracts 
for  paving  have  been  awarded  acknowl- 
edged his  inability  to  give  satisfactory 
security,  as  required  by  the  city  charter, 
the  contracts  may  be  awarded  to  the  next 
lowest  bidder  without  readvertisement. 
Leitz  V.  New  Orleans  (La.)  1916D-1188. 

(Annotated.) 
Notes. 

Eights  of  parties  with  respect  to  cer- 
tified check  or  other  deposit  made  with 
bid.     1916C-427. 

Implied  liability  of  municipality  under 
contract  let  contrary  to  statute  requiring 
competitive   bidding.     1917A-1263. 

Necessity  for  readvertisement  where  bid- 
der to  whom  municipal  contract  is  awarded 
fails  to  comply  with  conditions  or  aban- 
dons work.     1916D-1189. 


9.     OFFICERS. 
a.     Appointment. 

131.  Failure  to  Announce    and    Certify 

Appointment.  Where  the  result  of  a  baliot 
of  the  common  council  of  a  city  electing 
a  person  as  city  attorney  was  declared  and 
recorded,  the  person  elected  was  not  de- 
prived of  his  office  by  the  mayor's  failure 
to  declare  him  elected,  or  by  the  failure 
of  the  city  clerk  to  comply  with  Wis.  St. 
1913,  §  925— 29a,  providing  that  to  the  per- 
son appointed  to  any  office  the  city  clerk 
shall  issue  a  certificate  that  such  person 
has  qualified  for  such  position,  since  the 
duty  of  the  clerk  was  ministerial  and  no 
part  of  the  appointing  power,  and  an  ap- 
pointment is  made  when  the  last  act  re- 
quired of  the  person  vested  with  the  power 
has  been  performed.  State  v.  Tyrrell 
(Wis.)  1916E-270. 

132.  Wis.  St.  1913,  §  4971,  providing  that 
words  purporting  to  give  a  joint  authority 
to  three  or  more  public  officers  or  other 
persons  shall  be  construed  as  giving  such 
authority  to  a  majority  of  such  officers  or 
other  persons  unless  otherwise  expressly 
declared,  does  not  apply  to  the  election 
of  a  city  attorney  under  Lake  Geneva 
charter  (Laws  1885,  c.  322)  §  7,  providing 
that  the  common  council  may  elect  a  city 
attorney,  as  the  authority  is  not  a  joint 
authority  given  to  the  aldermen  and  the 
mayor,  but  an  authority  given  to  the  com- 
mon  council  in  its  collective  capacity  as 

40 


common  council.  State  v,  Tyrrell  (Wis.) 
1916E-270.  rAnnotated.) 

133.  Election  by  Council — ^Effect  of  Bis- 
regarding  Valid  Ballot.  Where  a  ballot 
taken  by  the  common  council  of  a  city  for 
city  attorney,  resulting  in  three  votes  for 
one  person,  two  votes  for  other  persons, 
and  one  blank  ballot,  elected  the  person 
receiving  the  three  votes,  the  election  is 
not  invalidated  by  the  fact  that  the  mem- 
bers of  the  council  mistakenly  held  that 
he  was  not  elected,  nor  by  their  vote  to 
defer  action  upon  the  election  of  a  city 
attorney.  State  v.  Tyrrell  (Wis.)  1916E- 
270. 

134.  Beconsideration  of  Appointment. 
After  the  election  of  a  city  attorney  by 
the  common  council  of  a  city  and  his 
acceptance  and  qualification,  the  council 
had  no  power  to  reconsider  their  action 
and  elect  another  person.  State  v.  Tyrrell 
(Wis.)  1916E-270. 

b.     Compensation. 

135.  mght  to  Compensation — Failure  to 
Approve  Bond.  Under  Rem.  &  Bal.  Wash. 
Code,  §  7722,  requiring  the  marshal  in 
towns  of  the  fourth  class,  before  entering 
upon  his  official  duties,  to  execute  a 
bond  to  the  town,  and  providing  that  the 
bond  shall  be  approved  by  the  council,  a 
marshal  appointed,  giving  bond  and  oath 
and  entering  upon  and  performing  the 
duties  of  his  office  is  entitled  to  salary  as 
marshal  de  jure,  notwithstanding  failure 
of  the  council  to  approve  his  bond.  Barth- 
olomew V.  Springdale  (Wash.)   1918B-432. 

136.  Officer  De  Jure — Eight  to  Compen- 
sation— ^Payment  to  De  Facto  Officer.     The 

rule  that  an  officer  de  jiire  cannot  recover 
from  a  municipal  corporation  salary  for 
the  period  he  was  deprived  of  his  office 
where  it  was  paid  to  an  officer  de  facto 
applies  to  a  police  operator,  declared  by 
the  city  charter  to  be  an  officer;  it  being 
immaterial  that  he  was  an  appointive  offi- 
cer, and  that  he  was  wrongfully  dis- 
charged. Thompson  v.  Denver  (Colo.) 
1918B-915.  (Annotated.) 

c.    Removal. 

137.  Removal — Failure  to  Enforce  Laws. 
The  state  may  impose  upon  thie  local  offi- 
cers of  the  city  of  Tulsa  specific  duties  in 
the  matter  of  the  enforcement  of  the  laws 
of  the  state  having  force  and  effect  with- 
in the  city,  and  may  provide  penalties  for 
failure  to  discharge  such  duties,  and  in 
respect  to  the  duties  so  imposed  the  mu- 
nicipality and  its  officers  are  the  agents 
of  the  state,  and  subject  to  its  command 
and  control  at  all  times,  and  may  be  re- 
moved for  a  failure  to  enforce  such  laws. 
Slate  V.  Linn   (Okla.)   1918B-139. 

(Annotated.) 

138.  Procedure  for  Eemoval  —  Charter 
Bemedy  not  Exclusiva     The  provisions  in 


626 


DIGEST. 

1916C— 1918B. 


the  charter  of  the  city  of  Tulsa  for  the 
removal  of  the  chief  of  police  of  such  city 
are  not  exclusive,  but  such  authority  is 
cumulative  to  and  concurrent  with  the 
jurisdiction  vested  in  the  district  court  by 
the  general  laws  of  the  state.  State  v. 
Linn  (Okla.)  1918B-139. 

139.  Grand  Bapids  Charter,  tit.  2,  §  11, 
requiring  a  two-thirds  council  vote  for  re- 
moval, refers  to  members  who  attended 
and  heard  all  the  evidence,  and  a  reading 
thereof  by  an  unofficial  stenographer  does 
not  empower  those  who  have  been  absent 
to  vote.  Hawkins  v.  Grand  Eapids  (Mich.) 
1917E-700.  (Annotated.) 

140.  The  city  council  is  held  not  to  have 
given  an  officer  a  fair  trial,  where  several 
eouncilmen  intimated  their  opinion  of  his 
guilt  prior  to  the   hearing,  and  the  vote 

1  amoving  hira  followed  an  all-night  ses- 
sion, and  denial  of  accused's  request  to 
later  present  evidence.  Hawkins  v.  Grand 
Eapids  (Mich.)  1917E-700.      (Annotated.) 

141.  A  council  committee  which  formu- 
lated the  removal  charges  is  not  thereby 
disqualified  from  voting  on  them  in  the 
council.  Hawkins  v.  Grand  Eapids  (Mich.) 
1917E-700.  (Annotated.) 

142.  Nature  and  Eequisites  of  Proceed- 
ing for  Removal — Fairness  and  Impartial- 
ity. Eemoval  proceedings  under  Grand 
Eapids  Charter,  title  2,  §  11,  are  of  a  q.iasi 
judicial  character,  and  must  insure  a  fair 
trial.  Hawkins  v.  Grand  Eapids  (Mich.) 
1917E-700.  (Annotated.) 

143.  Procedure  for  Eemoval — Necessity 
of  Prescribing  Rules.  Under  Grand  Eap- 
ids Charter,  title  2,  §  11,  supra,  and  title 
3,  §  11,  authorizinff  the  council  to  enact 
rules  of  procedure^  in  removal  cases,  ic  is 
held  that  proceedings  complying  with  titla 

2  are  not  void  because  no  rules  of  pro- 
cedure had  been  prescribed  under  titlo  3. 
Hawkins  v.  Grand  Eapids  (Mich.)  1917E- 
700. 

144.  Removal  for  Acts  During  Previous 
Term.  Where  a  city  officer  succeeds  him- 
self, he  may  be  removed  for  misconduct 
during  the  preceding  term.  Hawkins  v. 
Grand  Eapids  (Mich.)  1917E-700. 

145.  Title  2,  §  11,  supra,  was  not  im- 
pliedly repealed  by  Mich.  Pub.  Acts  1915, 
No.  145,  authorizing  the  governor  to  re- 
move elective  city  officers,  for  the  removal 
power  is  concurrent.  Hawkins  v.  Grand 
Eapids  (Mich.)  1917E-700. 

146.  Grand  Eapids  City  Charter,  tit.  2, 
§  11,  governing  the  council  removal  of  city 
officers  for  misconduct,  is  not  unauthorized 
by  the  constitution  of  1S50,  article  15, 
§§  13,  14,  and  article  4,  §  38,  conferring 
general  legislative  control  over  municipal- 
ities, include  such  authority.  Hawkins  v. 
Grand  Eapids  (Mich.)  1917E-700. 

147.  Officers — Power  to  Remove.  A  mu- 
nicipal corporation  has  inherent  power  to 


remove    its    officers.     Hawkins    v.    Grand 
Eapids  (Mich.)  1917E-700. 

148.  Power  to  Remove  Officer — Milk  In- 
spector. E.  I.  Act  March  14,  1870,  c.  829, 
provided  that  the  mayor  and  aldermen  of 
any  city  and  town  council  of  any  town 
might  annually  appoint  one  or  more  milk 
inspectors  for  their  respective  places,  and 
Laws  1912,  c.  863,  required  the  election  of 
a  milk  inspector  in  the  city  of  Providence 
obligatory.  Laws  1896,  c.  333,  §  1,  au- 
thorized inspectors  to  employ,  subject  to 
the  approval  of  the  town  council  and  the 
mayor  and  aldermen,  one  person  as  col- 
lector of  samples,  which  collector,  on  being 
employed,  is  required  to  be  engaged  to 
the  faithful  discharge  of  his  duties  before 
the  city  or  town  clerk,  who  was  required 
to  keep  a  record  thereof,  and  should  re- 
ceive such  salary  as  the  mayor  and  alder- 
men or  town  council  should  determine. 
Laws  1900,  c.  785,  §  1,  provides  that  the 
inspector  may  at  any  time  dismiss  such 
coLector,  and,  subject  to  the  same  ap- 
proval, may  appoint  another  person  in  his 
stead.  Held  that,  since  boards  of  alder- 
men and  town  councils  are  expressly  au- 
thorized to  act  as  local  boards  of  health, 
and  the  city  council  of  the  city  of  Provi- 
dence is  vested  with  such  jurisdiction  by 
its  charter,  a  milk  sample  collector  ap- 
pointed pursuant  to  such  statutes  in  the 
city  of  Providence  was  not  a  state  or 
public  officer,  but  was  an  employee  whom 
the  city  council  could  remove  for  cause, 
and  whom  the  council  might  suspend 
from  service  pending  the  determination  of 
charges.  Chace  v.  City  Council  (E.  I.) 
1916C-1257. 

d.    Personal  Liability. 

149.  Though  the  mayor  and  eouncilmen 
of  a  city  receive  no  comper.sation  for  such 
services,  they  are  liable  for  in.iuries  re- 
ceived by  reason  of  a  defective  way, 
where,  with  notice  of  the  detects,  they  do 
not  repair  them,  although  authorized  by 
the  charter  to  do  so.  PuUen  v.  Eugene 
(Ore.)    1917D-933.  (Annotated.) 

150.  Defective  Condition  of  Street.  The 
charter  provision  that  a  city  should  not 
be  liable  to  any  person  for  injuries  caused 
by  defects  in  sidewalks  or  streets  unless 
the  mayor,  the  chairman  of  street  com- 
mittee, or  the  street  commission  shall  have 
had  actual  notice  and  reasonable  oppor- 
tunity to  repair  the  defect,  and  that  in  no 
case  shall  more  than  $100  be  recovered  as 
damages  from  the  city,  is  not  in  violation 
cf  Ore.  Const,  art.  1,  §  10,  declaring  that 
every  person  shall  have  remedy  by  due 
process  of  law  for  injuries  done  his  per- 
son, property  or  reputation;  for,  as  the 
city  council  is  given  power  to  repair  the 
streets  and  sidewalks,  one  injured  by  rea- 
son of  defects  may  maintain  an  action 
against  the  city  officers  for  their  breach 
of  official  duty.'  PuHen  v.  Eugene  (Ore.) 
1917I>-933.  (Annotated.) 


MUNICIPAL  CORPORATIONS. 


627 


10.     COUNCIL    MEETINGS    AND    PRO- 
CEEDINGS THEEEAT. 

151.  Power  of  Majority  of  Quorum.  Un- 
der Lake  Geneva  Charter  (Laws  Wis. 
1885,  c.  322)  §  1,  providing  that  all  offi- 
cers other  than  elective  officers  shall  be 
appointed  by  the  common  council,  section 
7  providing  that  the  common  council  at  its 
first  meeting  may  elect  a  city  attorney,  St. 
1P13,  §  925 — 49,  providing  that  the  mayor 
and  aldermen  of  cities  shall  constitute  the 
common  council,  and  that  whenever  a 
majority  or  certain  proportion  of  the  mem- 
bers is  required  to  take  action  or  form  a 
quorum  the  mayor  shall  not  be  counted, 
and  that  he  shall  have  no  vote  except  in 
case  of  a  tie,  and  section  925 — 51,  provid- 
ing that  two-thirds  of  the  members  shall 
constitute  a  quorum  for  the  transaction  of 
business,  where  the  mayor  and  the  six 
aldermen  were  present  when  a  ballot  was 
taken  for  city  attorney,  resulting  in  three 
votes  for  one  person,  two  votes  for  other 
persons,  and  one  blank  ballot,  the  person 
receiving  the  three  votes  was  elected,  as 
in  the  absence  of  any  statute  to  the  con- 
trary the  majority  of  a  quorum  is  suffi- 
cient to  elect,  and  a  majority  of  the  votes 
cast  where  all  the  aldermen  are  present  is 
sufficient,  though  some  do  not  vote,  and 
whether,  accurately  speaking,  the  common 
council  elects  or  appoints  a  city  attorney, 
the  power  is  to  be  exercised  by  the  common 
council  as  a  collective  body,  acting  in  its 
capacity  as  common  council.  State  v. 
Tyrrell  (Wis.)  1916E-270.         (Annotated.) 

152.  Action  of  Council — Eight  to  Vote — 
Effect  of  Personal  Interest.  A  member  of 
a  governing  body  cannot  vote  on  any  ques- 
tion involving  his  own  character  or  con- 
duct, or  his  right  as  a  member,  or  his 
pecuniary  interest,  if  that  be  immediate, 
particular,  and  distinct  from  the  pub  ic  in- 
terest; and  hence  a  borough  councilman  is 
disqualified  from  voting  for  a  resolution 
accepting  his  resignation  from  the  coun- 
cil. Commonw^^alth  v.  Raudenbush  (Pa.) 
1917C-517.  (Annotated.) 

Notes. 

Legality  of  action  by  majority  of  quor- 
um of  municipal  council.     1916E-274. 

Right  of  member  of  municipal  council 
to  vote  on  matter  involving  his  personal 
interest.     1917C-518. 

11.     MUNICIPAL  BOARDS. 

153.  Where  an  ordinance  enacted  by  a 
city  under  Pa.  Act  April  25,  1903  (P.  L. 
314),  authorizing  cities  to  establish  cer- 
tain institutions  with  power  to  acquire 
property,  authorized  a  board  of  trustees 
created  by  the  city  to  manage  certain  prop- 
erty, to  hold  property  for  the  purposes 
comprised  in  the  object  of  the  board's 
creation,  with  the  powers  and  subject  to 
the  restrictions  prescribed  by  such  stat- 
ute, but  made  no  other  change  in  the 
board's  status  and  did  not  provide  ior  a 


transfer  of  the  property  to  it,  tlie  board 
remains  merely  the  city's  administrative 
agent  with  respect  to  the  property.  Board 
of  Trustees  of  Phila.  Museums  v.  Trustees 
of  Univ.  of  Pa.  (Pa.)  1917D-449. 

154.  Property  —  Powers  of  Administra- 
tive Board.  A  board  of  trustees  created 
by  a  city  as  its  administrative  agent  to 
manage  a  museum  and  the  premises  on 
which  the  museum  buildings  were  located 
cannot,  in  the  absence  of  a  clear  intent, 
shown  by  ordinance,  to  create  a  distinct 
entity  as  depository  of  the  legal  title  or  of 
any  legal  transfer  to  the  board,  question 
the  city's  right  to  convey  the  property. 
Board  of  Trustees  of  Phila.  Museums  v. 
Trustees  of  Univ.  of  Pa.  (Pa.)  1917D-449. 

12.     RECORDS. 

155.  Necessity  of  Record.  An  informal 
agreement  by  the  mayor  and  aldermen  that 
interest  should  be  paid  on  plaintiffs 
claims,  which  was  not  entered  in  the  min- 
utes of  the  board  for  fear  other  creditors 
would  demand  interest,  is  of  no  eff  !ct. 
Alabama  City,  etc.  R.  Co.  v.  Gadsden 
(Ala.)   1916C-573. 

156.  The  law  requires  a  record  of  the 
proceedings  of  the  mayor  and  aldermen,  so 
that  those  acting  under  it  may  have  no 
occasion  to  look  beyond  it,  to  avoid  leav- 
ing such  proceedings  to  be  proved  by  parol 
evidence,  and  to  make  certain  that  rights 
shall  not  depend  on  the  mere  recollection 
of  witnesses.  Alabama  City,  etc.  E.  Co.  v. 
Gadsden  (Ala.)  191&C-573. 

13.       FIRE     AND     POLICE     DEPART- 
MENTS. 

a.     Authority  to  Maintain. 

157.  The  law  creating  a  metropolitan 
police  system  for  Kansas  City  is  not  un- 
constitutional because  of  the  flexible  pro- 
visions in  Mo.  Rev.  St.  1909,  §  9787,  by 
which  the  determination  of  the  population 
and  the  number  of  police  districts  is  left 
to  the  police  commissioners.  State  v.  -Tost 
(Mo.)   1917D-1102.  (Annotated.) 

158.  Census — As  Sole  Source  of  Infor- 
mation— Construction  of  Statute.  The  law 
requiring  an  "estimate"  of  population 
"from  the  best  known  source,"  for  the  pur- 
pose of  fixing  the  number  of  patrolmen  for 
a  metropolitan  police  system,  does  not  re- 
fer to  the  federal  census  as  the  only 
source  of  information;  a  "census"  being  a 
finding  of  the  population  and  not  an  "esti- 
mate."    State  V.  Jost  (Mo.)  1917D-1102. 

159.  The  creation  of  a  metropolitan  po- 
lice system  for  Kansas  City  by  Mo.  Rev. 
St.  1909,  §  9787  et  seq.  is  within  the  power 
of  the  state,  though  the  city  acts  under  a 
sf/ccial  charter  adopted  under  Const,  art. 
9,  §16;  such  charters  being  subservient  to 
general  laws.  State  V.  Jost  (Mo.)  1917D- 
1102.  (Annotated.) 


628 


DIGEST. 

1916C— 1918B. 


160.  Police  Depaxtment  —  Metropolitan 
Police  —  Legislative  Power  to  Establish. 
The  peace  aud  safety  of  its  citizens  being 
a  matter  of  general  state  concern,  the  Btate 
can  provide  a  metropolitan  police  system 
for  cities  and  compel  them"  to  pay  the 
expenses  thereof.  State  v.  Jost  (Mo.) 
1917D-1102.  (Annotated.) 

Note. 
Validity  of  statutes  creating  metropol- 
itan police.     1917D-1112. 

b.    Compensation. 

161.  Fulton  City  Charter  (Laws  N.  Y. 
1902,  c.  63),  §  119,  providing  that  call  men 
shall  be  entitled  to  the  same  privileges  as 
are  accorded  by  the  laws  of  tlie  state  to 
volunteer  firemen,  applies  not  only  to  the 
provision  of  Gen.  Municipal  Law,  §  205,  as 
amended  by  Laws  1914,  c.  400  (McKinney's 
Consol.  Laws,  Book  23,  p.  128),  for  pay- 
ment of  a  certain  sum  to  a  volunteer  fire- 
man totally  disabled  while  in  the  discharge 
of  his  duties,  but  to  its  further  provision 
for  payment  to  his  representatives  if  such 
injuries  result  in  death.  Hammond  v.  Ful- 
ton (N.  Y.)  1917C-1137. 

162.  Bridgeport  City  Ordinance  March 
15,  1909,  §  134,  provides  for  the  regulation 
ol  the  fire  department  of  the  city  by  a 
board  of  fire  commissioners,  prescribes  the 
manner  of  paying  their  salaries,  and  de- 
clares that  the  board  may  continue  the  sal- 
ary of  a  member  of  the  department  unable 
to  perform  his  duties  by  reason  of  inca- 
pacity received  while  performing  the  usual 
duties  of  the  department.  In  April,  1910, 
the  city  adopted  an  ordinance  by  which 
members  of  the  fire  department  were  di- 
vided into  three  classes,  section  2  of  which 
provided  the  yearly  salaries  of  each  grade, 
but  made  no  reference  to  the  method  of 
compensation,  the  time  when  it  was  to  be 
paid,  or  the  power  of  the  commissioners  to 
continue  the  salary  of  a  member  when  in- 
capacitated from  service.  It  is  held  that 
such  later  ordinance  did  not  operate  as  an 
implied  repeal  of  the  former,  so  as  to  war- 
rant payment  of  salary  to  a  fireman  while 
absent  from  duty  because  of  illness  not 
contracted  in  the  service  of  the  depart- 
ment. Walsh  V.  Bridgeport  (Conn.)  1917B- 
318. 

163.  Pay  of  Fireman — Absence  on  Ac- 
count of  Sickness.  Bridgeport  City  Ordi- 
nance March  15,  1909.  §  134,  provides  that 
the  board  of  fire  commissioners  may  con- 
tinue, in  their  discretion,  the  salary  of  any 
officer  or  member  of  the  fire  department 
who  shall  have  received  any  injury  while 
in  the  performance  of  his  duty,  iucapr.c.tat- 
ing  him  from  performing  his  usual  duties 
in  the  department.  It  is  held  that  such 
provision  gives  rise  to  a  conclusive  infer- 
ence that  firemen  will  not  be  entitled  to 
salary  during  absence  because  of  inra-^a- 
city  to  perform  their  duties  not  received 


while  in  the  performance  of  duty.     Walsh 
V.  Bridgeport   (Conn.)   1917B-318. 

C.     Compensation  for  Injury. 

164.  Compensation  to  Injured  Fireman — 
Validity  of  Statute.  Provision  of  N.  Y. 
General  Municipal  Law  (Consol.  Laws, 
c.  24),  §  205,  as  amended  by  Laws  1914, 
c.  400  (McKinney's  Consol.  Laws,  Book 
23,  p.  128),  for  payment  of  a  certain  sum 
by  a  city  to  the  representatives  of  a 
volunteer  fireman  dying  from  injuries  re- 
ceived in  the  performance  of  his  duties, 
extended  by  City  of  Fulton  Charter  (Laws 
1902,  c.  63)  §  119,  to  its  call  men,  being 
part  of  their  contract  of  employment,  is  in 
the  nature  of  insurance,  part  of  the  com- 
pensation agreed  to  be  paid,  and  so  does 
not  contravene  Const,  art  8,  §  10,  inhibit- 
ing appropriation  of  public  money  to 
private  purposes.  Hammond  v.  Fulton 
(N.  Y.)   1917C-1137.  (Annotated.) 

d.     Status  of  Call  Men  and  Volunteers. 

165.  Privileges  of  Call  Men — Construc- 
tion of  Statute.  Fulton  City  Charter 
(Laws  N.  Y.  1902,  c.  63),  §  119,  providing 
that  its  call  men  shall  be  entitled  to  the 
same  privileges  as  "are  accorded"  by  the 
laws  of  the  state  to  volunteer  firemen,  in- 
cludes privileges  under  laws  subsequently 
enacted;  General  Construction  Law  (Con- 
sol. Laws,  c.  22),  §§48,  100  (McKinney's 
Consol.  Laws,  Book  21,  pp.  63,  85),  pro- 
vides that  words  in  the  present  tense  in- 
clude the  future,  unless  the  general  ob- 
ject of  the  statute  or  the  context  of  the 
language  used  indicates  that  a  different 
meaning  is  intended.  Hammond  v.  Fulton 
(N.  Y.)  1917C-1137. 

166.  Fire  Department — Privileges  and 
Exemptions  of  Volunteers — "Call  Men." 
The  word  "privileges"  in  City  of  FiiUoa 
Charter  (Laws  N.  Y.  1902,  c.  63),  §  119 
providing  that  the  "call  men"  of  the  fire 
department  shall  be  entitled  to  the  same 
privileges  and  exemptions  as  are  accorded 
by  the  laws  of  the  state  to  volunteer  fire- 
men, is  used  in  the  sense  of  rights,  and 
so  includes  any  right  to  payment  in  case 
of  injury.  Hammond  v.  Fulton  (N.  Y.) 
1917C-1137. 

14.     TORTS. 

a.     Public  or   Governmental  Functions  or 
Duties. 

167.  Liability  for  Personal  Injury — 
Parks.  In  establishing,  caring  for  and 
maintaining  streets,  highways  and  public 
parks,  municipalities  act  in  their  govern- 
mental and  not  in  their  proprietary  capa- 
city. Ackeret  v.  Minneapolis  (Minn.) 
1916E-897.  (Annotated.) 

168.  Cities  and  villages  are  liable  for 
injuries  resulting  from  dangerous  condi- 
tions in  their  streets;  but,  with  this  single 


MUNICIPAL  CORPORATIONS. 


629 


exception,  municipalities  are  not  liable  in 
damages  for  negligence  in  performing  their 
governmental  functions,  unless  such  lia- 
bility has  been  imposed  by  statute. 
Aekeret  v.  Minneapolis  (Minn.)  1916E-897. 

(Annotated.) 

169.  A  mnnicipality  is  not  liable  to  a 
pedestrian  injured  by  a  door  on  private 
premises  wiiieh  opens  outwards  into  the 
street,  in  the  absence  of  a  regulation  for- 
bidding such  a  construction  which  it  has 
neglected  to  enforce.  Evans  v.  Edinburg 
(Eng.)    1916E-455.  (Annotated.) 

170.  Wharves — Personal  Injury  from  De- 
fect— Liability.  Where  a  city  maintained 
a  floating  public  dock  for  the  landing  of 
launches  and  small  water  craft  by  day 
and  night,  and  extended  an  implied  in- 
vitation to  the  public  to  use  it,  plaintiff's 
failure  to  pay  the  required  wharfage  for 
landing  his  launch,  does  not  make  him  a 
trespasser,  so  as  to  affect  his  right  of  ac- 
tion against  the  city  for  personal  injury 
from  alleged  negligent  maintenance  of  the 
dock.  Harris  v.  Bremerton  (Wash.) 
19160-160.  (Annotated.) 

b.    Private,  Local  or  Corporate  runctions 
or    Duties. 

171.  Operation  of  Electric  Plant — Lia- 
bility for  Personal  Injury.  A  city,  owning 
and  operating  an  electric  plant,  as  au- 
thorized by  Acts  Tenn.  1891,  c.  207,  and 
Acts  1901,  c.  11,  though  only  to  light  its 
streets  and  municipal  buildings,  is  en- 
gaging in  performing  a  private  function; 
and  hence  the  rule  of  respondeat  superior 
applies  to  it,  so  as  to  render  it  liable  for 
negligent  construction  and  maintenance  of 
a  heavily  charged  wire,  which  by  coming 
in  contact  with  a  guy  wire  attached  to  a 
telephone  pole  caused  the  death  of  a  line- 
man employed  by  the  telephone  company. 
Sr.ulman  v.  Mayor,  etc,  (Tenn.)  1916C- 
1254.  (Annotated.) 

172.  Liability  for  Acts  of  Agents — Busi- 
ness Function — Operating  nitration  Plant. 
Where  a  city  undertakes  to  construct  and 
operate  a  filtration  plant  to  supply  water 
to  its  inhabitants,  it  is  exercising  a  busi- 
ness, as  distinguished  from  a  governmental, 
function,  and  the  maxim  respondeat  su- 
perior applies  to  the  acts  of  its  officers 
and  agents  in  exercising  such  functions; 
and  therefore  it  cannot  avoid  liability  for 
the  wrongful  acts  of  its  servants  in  hold- 
ing what  they  believe  to  be  the  city's 
property.  Armstrong  v.  Philadelphia 
(Pa.)   1917B-1082. 

173.  Liability  for  Tort  in  Cleaning 
Street.  The  duty  of  keeping  the  streets 
of  a  municipality  free  from  matter  which, 
if  allowed  to  remain,  would  affect  the 
health  of  the  public  is  a  governmental 
function,  the  exercise  of  which  would  ex- 
empt the  municipality  from  liabilitv  to 
a  suit  for  damages  to  an  employee  with- 


out fault,  who  is  injured  by  reason  of  a 
defective  cart  in  which  he  is  hauling  "the 
sweepings  of  the  streets"  of  such  muni- 
cipality, and  which  has  been  furnished 
him  for  that  purpose  by  the  agents  of  the 
municipality. 

(a)  This  court  will  take  judicial  cogni- 
zance that  the  sweepings  of  the  streets  of 
a  municipality  contain  matter  which,  if 
allowed  to  remain  in  the  streets,  will  in- 
juriously affect  the  health  of  the  citizens 
of  such  municipality. 

(b)  And  this  is  so  notwithstanding  peti- 
tion describes  "the  sweepings  of  the 
streets"  as  "dirt  and  trash."  Mayor,  etc. 
T.  Jordan  (Ga.)  1916C-240.     (Annotated.) 

Note. 
Liability  of  municipality  for  tort  com- 
mitted in  cleaning  streets   or  in  removal 
of  garbage,  ashes,  or  other  refuse.    1916C- 
242. 

c.    Torts    of    OfScers,    Agents    and    Em- 
ployees. 

174.  A  city  that  constructs  and  main- 
tains walks  and  footpaths  in  its  parks 
which  are  used  as  thoroughfares  in  pass- 
ing from  one  part  of  the  city  to  another 
is  liable  for  injuries  resulting  from  dan- 
gerous conditions  in  such  walks  caused 
by  the  negligence  of  its  employees.  Ae- 
keret V.  Minneapolis    (Minn.)    1916E-897. 

(Annotated.) 

d.     Notice  of  Claim. 

175.  Presentation  of  Claims — Necessity. 
Ala.  Code  1907,  §  1191,  providing  that 
claims  against  a  municipality  must  be 
presented  within  a  certain  time  or  they 
shall  be  barred,  is  a  statute  of  nonclaim, 
and  presentation  within  its  provision  is 
not  prerequisite  to  the  bringing  of  suit. 
Alabama  City,  etc.  K.  Co.  v.  Gads'den 
(Ala.)   1916C-573. 

176.  Injury  from  Defect — Notice  of 
Claim — ^Amendment.  Under  the  Seattle 
charter  providing  that  all  claims  against 
the  city  for  damages  shall  contain  all  items 
of  damage  claimed,  where  a  claim  for  per- 
sonal injuries  made  no  claim  for  damages 
on  account  of  the  employment  of  a  nurse, 
though  such  damage  was  known  when  the 
claim  was  filed,  it  is  error  to  permit  an 
amendment  of  the  claim  at  the  trial  by' 
including  such  damages,  as  the  provision 
requiring  the  filing  of  a  claim  is  statutory 
in  its  nature  and  there  can  be  no  amend- 
ment without  statutory  authority.  Wag- 
ner T.  Seattle  (Wash.)  '1916E-720. 

177.  Failure  to  File  Claim — Infancy  as 
Excuse.  N.  Y.  General  Villarre  Law 
(Consol.  Laws,  e.  64)  §  341,  provides  that 
no  action  shall  be  maintained  against  a 
village  for  injuries  by  reason  of  the  negli- 
gence, etc.,  unless  commenced  within  one 
year  after    the   cause   of    action  accrued. 


630 


DIGEST. 

1916C— 1918B. 


nor  unless,  within  60  days  thereafter,  a 
written  verified  statement,  etc,  shall  be 
filed  with  the  village  clerk.  Held  that, 
where  a  child  of  five  was  injured  by  the 
alleged  negligence  of  a  village,'  the  fact 
of  infancy  did  not  incapacitate  the  infant 
from  bringing  a  suit  at  once  under  Code 
Civ.  Proc.  §  468,  providing  that  an  infant's 
right  of  action  shall  not  be  deferred  on 
account  of  infancy;  and  hence  the  cause 
of  action  accrued  at  the  time  of  the  in- 
jury, and  not  from  the  date  of  the  subse- 
quent appointment  of  a  guardian  ad  litem. 
Murphy  v.  Fort  Edward  (N.  Y.)  1916C- 
1040.  (Annotated.) 

178.  "Where  an  infant  five  years  of  age 
was  injured  by  the  alleged  negligence  of  a 
village  on  September  28,  1910,  its  right 
of  action  is  not  barred  because  it  did  not 
file  the  notice  required  by  N.  Y.  General 
Village  Law,  §  341,  within  the  60  days  re- 
quired by  such  section,  nor  until  August 
5,  1912,  under  the  rule  that  the  law  does 
not  seek  to  compel  a  man  to  do  that 
which  he  cannot  possibly  perform;  the  fail- 
nre  of  the  father  or  mother  to  file  the 
notice  not  being  chargeable  to  the  infant. 
Murphy  t.  Fort  Edward  (N.  Y.)  1916C- 
1040.  (Annotated.) 

179.  Purpose  of  Eequlrement  of  Notice. 
The  purpose  of  the  notice  required  by  Iowa 
Code  1897,  §  3447,  subd.  1,  requiring  ac- 
tions founded  on  injuries  to  the  person 
because  of  defects  in  sidewalks  to  be 
brought  within  three  months,  unless  writ- 
ten notice  of  the  time  and  place  of  injury 
be  served  within  60  days  from  the  injury, 
is  to  inform  the  city  authorities  of  the 
location  of  the  defect  and  the  circum- 
stances attending  the  accident,  so  as  to 
enable  them  to  investigate  the  city's  lia- 
bility while  the  facts  are  fresh,  and  ascer- 
tain the  character  of  the  defect  and  in- 
juries while  witnesses  are  obtainable. 
Palmer  v.  Cedar  Rapids  (Iowa)  1916E- 
558. 

180.  Injury  to  Wife  or  Child.  Iowa 
Acts  22d  Gen.  Assem.  c.  25,  §  1,  enacted  in 
1888,  provided  that,  in  cases  of  personal 
injury  from  defective  streets,  etc.  no  suit 
shall  be  brought  against  a  municipal  cor- 
poration after  6  months  from  the  time  of 
injury,  unless  written  notice  specifying  th? 
place  and  circumstances  of  the  injury 
shall  be  served  upon  it  within  90  days 
after  the  injury,  which  provision  was,  in 
different  language,  carried  into  Code  1897, 
§  3447,  which  provides  that  an  action  may 
be  brought  within  the  times  herein  limited 
after  they  accrue,  and  not  afterwards; 
subdivision   1,  those  actions  "founded   on" 

jinjury  to  the  person  on  account  of  defect- 
ive streets  within  3  months,  unless  written 
notice  specifying:  the  time,  place,  and  cir- 
cumstances of  the  injury  be  served  upon 
the  municipality  within  60  days  from  the 
happening  of  the  injury;  sulDdivisioTi  3, 
those  "founded  on"  injuries  to  the  person 


or  reputation,  including  injuries  to  rela- 
tive rights,  whether  based  on  contract  or 
tort,  or  for  a  statutory  penalty,  within 
two  years.  Held,  that  section  3447,  subd. 
1,  was  applicable  to  an  action  for  dam- 
ages for  the  loss  of  the  services,  etc.,  of 
plaintiff's  minor  son  by  injuries  from  a 
defective  sidewalk,  so  that  an  action  could 
not  be  maintained,  if  notice  of  injury  was 
not  given  as  required  thereby;  the  words 
"founded  on"  meaning  to  serve  as  a  base 
or  basis  for,  and  not  necessarily  contem- 
plating a  direct  injury  to  the  person  suing. 
Palmer  v.  Cedar  Rapids  (Iowa)  1916E- 
558.  (Annotated.) 

181.  Notice  of  Claim  by  Parent  for  In- 
jury to  Child — Sufaclency.  A  notice  given 
by  a  parent  of  a  claim  for  injuries  sus- 
tained by  his  minor  child  which  contains 
the  essential  information  required  by  the 
statute  is  sufficient,  although  it  fails  to 
state  specifically  that  the  parent  claims 
damages  on  his  own  account  and  also  as 
the  statutory  representative  of  his  child, 
and  fails  to  make  an  apportionment  be- 
tween the  two  of  the  amount  claimed. 
Ackeret  v.  Minneapolis  (Minn.)  1916E- 
897. 

182.  Officer  to  "Wliom  Notice  mnst  be 
Given.  ^Under  such  statute,  the  fact  that 
plaintiff  pointed  out  to  the  legal  officers 
of  the  municipality  the  place  of  her  in- 
juries and  gave  them  veroal  notice  there- 
of, does  not  excuse  a  failure  to  give  the 
written  notice,  the  purpose  of  the  act  being 
to  provide  written  notice  to  the  mayor 
and  municipality,  and  it  not  appearing 
that  the  law  officers  of  the  municipality 
were  authorized  to  waive  such  notice. 
White  V.  Nashville  (Tenn.)  1917D-960. 

(Annotated.) 

183.  Actions  for  Personal  Injury  —  Re- 
quiremrait  of  Notice  of  Injury — Validity. 
Tonn.  Acts  1913,  c.  55,  entitled  "An  act  to 
prescribe  the  method  of  bringing  suits  and 
to  limit  the  time  of  bringing  suits  against 
municipal  corporations  on  account  of  in- 
juries to  persons  or  property  resulting  from 
the  negligence  of  the  officers  or  employees 
of  such  corporations,"  and  declaring  that 
no  suit  shall  be  brought  agriinst  any  mu- 
nicipal corporation  on  account  of  per- 
sonal or  property  injuries  resulting  from 
defective  conditions  of  any  street,  alley, 
sidewalk,  or  highway  uniess  within  90 
days  after  such  injury  has  been  inflicted, 
a  written  notice  shall  be  served  upon  the 
mayor  of  the  municipality,  stating  the  time 
and  place  where  such  injury  wav  received 
and  the  general  nature  of  the  injury,  and 
that  failure  to  give  notice  shall  be  a  valic' 
defense  against  any  and  all  liability.  It 
ifi  held  that  as  the  act  is  general  in  its 
application  and  the  classification  is  not 
unreasonable  or  capricious,  the  act  is  not 
invalid  under  Const,  art.  11.  §  S,  or  Const. 
U.  S.  Amend.  14,  §  1  (9  Fed.  St.  Ann.  392) 
a?  class  lesrislation.  White  v.  Nashville 
(Tenn.)  1917I>-960. 


MUNICIPAL  ELECTRIC   LIGHTING   PLANT— NAMES. 


631 


184.  Amendment  of  Notice.  In  an  ac- 
tion against  a  city  for  personal  injuries, 
the  error  in  permitting  the  claim  filed  with 
the  city  to  be  amended  to  include  damages 
not  specified  therein  is  harmless,  where 
there  was  no  attempt  to  prove  such  dam- 
ages. Wagner  v.  Seattle  (Wiash.)  1916E- 
720. 

185.  Sufllciency  of  Notice — ^Address  of 
Claimant.  Under  Rem.  &  Bal.  Wash. 
Code,  §  7995,  a  claim  against  a  city  of  the 
first  class  for  injuries  to  a  person  who  had 
resided  at  208  Twenty-first  avenue  for  six 
years  was  not  defective,  though  it  stated 
her  street  address  as  218  Twenty-first  ave- 
nue, where  she  was  well  known  to  the  resi- 
dents of  218  Twenty-first  avenue  and 
proper  inquiry  there  would  have  disclosed 
her  residence,  as  the  purpose  of  provisions 
requiring  the  filing  of  claims  is  to  insure 
such  notice  to  the  city  as  will  enable  it 
to  investigate  the  cause  and  character  of 
the  injury;  and  where  there  is  a  bona  fide 
attempt  to  comply  with  the  law  and  th© 
notice  filed  actually  accomplishes  its  pur- 
pose of  notice,  it  is  sufficient,  though  de- 
fective in  some  particulars.  "Wagner  v. 
Seattle  (Wash.)  1916E-720.     (Annotated.) 

186.  Under  Rem.  &  Bal.  Wash.  Code, 
§  7995,  requiring  claims  for  damages 
against  any  city  of  the  first  class  to  con- 
tain a  statement  of  the  actual  residence 
of  the  claimant  by  street  and  number  at 
the  date  of  filing  the  claim  and  for  six 
months  immediately  prior  thereto,  in  an 
action  for  personal  injuries  the  court  has 
no  power  to  permit  an  amendment  of  the 
claim  as  filed  to  state  a  different  street  ad- 
dress than  that  therein  stated.  Wagner  v. 
Seattle  (Wash.)  1916E-720. 

187.  Scope  of  Notice — Injuries  Provable. 
While  a  claim  against  a  city  for  personal 
injuries  cannot  be  amended  at  the  trial  to 
include  items  of  damage  known  at  the 
time  of  the  filing  of  the  claim,  but  not 
included  therein,  injuries  not  specifically 
mentioned  in  the  claim,  but  which  natu- 
rally and  proximately  flow  from  the  in- 
juries described  in  the  claim,  are  provable. 
Wagner  ▼.  Seattle  (Wash.)  1916E-720. 

Notes. 

Sufficiency  of  statutory  notice  of  claim 
against  municipality  with  respect  to  nahie 
and  address  of  claimant.     1916E-722. 

Notice  to  municipality  as  prerequisite  to 
action  for  injury  to  wife  or  child  of 
plaintiff.     1916E-560. 

Infancy  or  other  disability  of  claimant 
as  suspending  limitation  of  time  for  filing 
claim  against  municipality.     1916C-1042. 

e.     Pleading. 

188.  Petition  Insufacient.  The  petition 
was  subject  to  general  demurrer,  and 
should  have  been  dismissed.  Mayor,  etc. 
V.  Jordan  (Ga.)  1916C-240. 


MUNICIPAL      EIiECTRIO      LIGHTINQ 
PLANT. 

See  Mnnlclpal  Corporations,  38. 

MUNICIPAL  ICE  PLANT. 
See  Mxinlcipal  Corporations,  37. 

MUNICIPAL   TELEPHONE    SYSTEM. 
See  Municipal  Corporations,  40,  41. 


See  Homicide. 


MUBDES. 


MUTUAL  ACCOUNTS. 
See  Accounts  and  Accounting. 

MUTUAL  BENEFIT  INSURANCE. 
See  Benevolent  Associations. 


MUTUALITY. 

Eemedy  denied  for  lack  of  mutuality,  see 
Specific  Performance,  1. 


MUTUALITY  OF  CONTRACT. 

See  Vendor  and  Purcliaser,  4. 

MUTUAL  TELEPHONE  COMPANY. 

See  Telegraphs  and  Telephones,  1. 

NAMES. 

See  Trademarks  and  Tradenames. 

Effect  of  misstatement  in  application,  see 
Beneficial  Associations,   7. 

Omission  of  name  of  grantor,  gee  Deeds, 
20. 

Naming  of  grantee,  see  Deeds,  21,  22. 

Misspelling  of  name  in  notice,  effect,  see 
Depositions,  2. 

Idem  sonans  applied  signatures  on  qualify- 
ing consent,  see  Intoxicating  Liquors, 
33. 

Variance,  see  Pleading,  97. 

Injunction  to  restrain  use,  see  Societies 
and  Clubs,  3,  4. 

Effect  of  name  given  statute  on  construc- 
tion, see  Statutes,  107, 

1.  Where  an  indictment  alleges  the  lar- 
ceny of  a  cow  belonging  to  A.  B.,  and  the 
proof  showed  it  to  belong  to  A.  B.,  Jr., 
there  is  no  fatal  variance;  the  addition  ot 
"Jr."  to  a  name  being  a  mere  matter  of 
description.  Harris  v.  State  (Wyo.) 
1917A-1201.  (Annotated.) 

2.  Where  a  given  name  is  written,  the 
middle  name  or  letter  may  be  disregarded 
in  identifying  the  person.  Riley  v.  Litch- 
field (Iowa)  1917B-172. 

3.  Disregarding  Middle  Name  or  Initial. 
Where  two   or  more  Christian  names  are 


632 


DIGEST. 

19160— 1918B. 


used,  the  middle  name  or  names  or  letter 
i«!  generally  disrej^arded.  Eilej  v.  Litcb- 
field  (Iowa)  1917B-172. 

4.  Presumption  That  Letter  Constitutes 
Najne.  A  person's  name  is  composed  of 
the  Christian  name  and  a  surname,  and  a 
Christian  name  may  consist  of  letters  onlj, 
and  there  is  no  presumption  that  letters 
are  not  themselves  Christian  names,  and 
where  a  letter  or  letters  appear  before  a 
surname  they  are  treated,  in  the  absence 
of  any  showing  to  the  contrary,  as  the 
Christian  name  assumed  by  the  person. 
Biley  v.  Litchfield  (Iowa)  1917B-172. 

(Annotated.) 

5.  Ctange  by  Jndid^a  Proceeding — Dis- 
cretion of  Court.  Under  the  statute  re- 
quiring sufficient  and  reasonable  cause  for 
a  change  of  name,  a  decree  is  not  a  mat- 
ter of  right,  but  of  judicial  discretion. 
Neb.  Rev.  St.  1913,  c.  53.  In  re  Tamino- 
Bian  (Neb.)  1917A-435.  (Annotated.) 

6.  Variajice  Between  "Wood"  and 
••Woods."  The  evidence  is  held  to  be  suffi- 
cient to  warrant  a  finding  by  the  jury 
that  defendant  and  deceased  were  as  well 
kL'Own  by  the  name  "Wood,"  used  in  the 
indictment,  as  by  their  true  name, 
"W'oods,"  preventing  a  fatal  variance. 
Woods  V.  State  (Ark.)  1918A-348. 

(Annotated.) 

7.  Idem  Sonans — Omission  of  Final  "S." 
The  names  "Wood"  and  "Woods"  are  not 
idem  sonans.  Woods  v.  State  (Ark.) 
1918A-348.  (Annotated.) 

Notes. 

Validity  and  construction  of  statute  au- 
thorizing change  of  name  by  individuaL 
1917A-437. 

Effect  of  use  of  "Sr."  or  "Jr."  in  con- 
nection with  name.     1917A-1211. 

A3dition  or  omission  of  final  "s"  as 
affecting  application  of  doctrine  of  idem 
sonans.     1918A-351. 

NATIONAL   BANKS. 
See  Banks  and  Banking,  77-80. 

NATIONAL  FOEEST  BJBSEEVES. 
See  Trees  and  Timber,  21. 

NATIONAL  GUAED. 

See  MiUtia. 

NATIONAL  PUBPOSEa 
Gift  for,  see  Charities,  8. 

NATURAL  HEIEa 
Meaning,  see  Deeds,  41,  42. 

NATXJEALIZATION. 
See  Aliens,  11-14. 


NAVIGABLE  WATSES. 
See  Waters  and  Watercourses,  1-4,  26-29. 

NEAE  BEEE. 
What  ii,  see  Intoxicating  Liquors,  10. 

NECESSARIES. 

Wife's  right  to  pledge  husband's  credit  for, 
see  Husband  and  Wife,  1,  2. 

Liability  of  husband,  see  Husband  and 
Wife,  38-40. 

Contract  of  infant,  see  Infants,  7. 

Professional  services  of  attorney,  see  In- 
fants, 7,  22. 

Liability  of  parent,  see  Parent  and  Child, 
4. 

Defined,  see  Taxation,  56. 

NEGATIVE  PEEGNANT. 
See  Pleading,  6,  16-18. 

NEGATIVE  TESTIMONY. 

Weight,  see  Evidence,  155-157. 

NEGLIGENCE. 

L  Actionable  Negligence,  633. 

a.  In  General,  633. 

b.  Degrees  of  Care  Defined,  633. 

c.  Duly  of  Person  Furnishing  Accom- 

modations of  Public  Nature,  634. 

d.  Duty  to  Invitee,  634. 

e.  Condition  of  Premises,  634. 

(1)  In  General,  634. 

(2)  Injuries     to      Customers     oa 

Business  Premises,  635. 

(3)  Attractive  Nuisances,  635. 

(4)  Dangers  Near  Highway,  638. 

(5)  Stationary  Engines,  636. 

f.  Violation  of  Statute,  63'6. 

g.  Proximate  Cause,  636. 

2.  Contributory  Negfligence,  637. 

a.  In  General,  637. 

b.  Doctrine  of  Last  Clear  Chance,  637. 
e.  Contributory  Negligence  of  Minors, 

637. 

d.  Attempt  to  Save  Life,  638. 

e.  Imputable  Contributory  Negligence, 

638. 

(1)  Negligence   of  Driver  of  Ve- 
hicle, 638. 
I  (2)     Custodian  to  Child,  638. 

8.  Actions,  638. 

a.  Pleading,   638. 

(1)  Complaint  or  Declaration,  638. 

(2)  Plea  or  Answer,   639. 

(3)  Amendments,  639. 

(4)  Variance,  640. 

b.  Evidence,  640. 

(1)  Presumptions  and  Burden  of 

Proof,  640. 

(2)  Admissibility     of     Evidence, 

640. 

(3)  Sufficiency  of  Evidence,  641. 
e.  Province   of  Court  and  Jury,  641. 

d.  Instructions,  642. 

e.  Verdict  or  Findings,  644. 


NEGLIGENCE. 


633 


See  Automobiles,  16-26,  29,  31,  32-35,  36- 
62;  Explosioiui  and  Explosives;  inde- 
pendent Contractors;  Streets  and 
Highways,  37-47. 

Care  required  in  excavating,  see  Adjoining 
Landowners,  9. 

Care  required  of  owner  to  protect  his  prop- 
erty, see  Adjoining  Landowners,  10, 
11. 

Liability  of  attorney,  see  Attorneys,  70-74. 

Liability  of  bailee  of  animals,  Bee  Bail- 
ment, 4,  5. 

Carriers'  duties  to  passengers,  see  Carriers 
of  Passengers,  15-46. 

Liability  of  hospital,  see  Charities,  26. 

Negligent  confusion,  see  Confusion,  7. 

Nonsuit  proper  when,  see  Dismissal  and 
Nonsuit,  2. 

In  wiring  and  supply  of  current,  see  Elec- 
tricity, 10-24. 

Liability  for  injury,  see  Elevators,  1-5. 

Negligence  of  insured  as  defense,  see  Fire 
Insurance,  8,  19. 

In  laborers'  kindling  fire  near  railway 
track,  see  Fires,  6-9. 

Liability  of  coca-cola  bottler  for  illness 
caused  by  decomposed  mouse,  see 
Food,  22-24. 

Liability  for  escape  of  gas,  see  Gas  and 
Gas  Companies,  2-4. 

Liability  of  innkeeper  to  guest,  see  Inn- 
keepers, 3-10. 

Use  of  "proximate  cause"  without  defin- 
ing, see  Instructions,  14. 

Liability  of  ditch  owner  for  damage  from 
seepage,  see  Irrigation,  11,  12. 

Liabilitv  of  landlord,  see  Landlord  and 
Tenant,  17-19. 

Eemedy  of  life  tenant,  see  Life  Estates,  1. 

Aa  affecting  compensation  under  Work- 
men's Compensation  Act.  See  Master 
and  Servant,  107,  187. 

Action  against  attorney  by  attachment 
bondsmen,  see  Parties  to  Actions,  4. 

Duty  toward  workman  by  physician  em- 
ployed by  master,  see  Physicians  and 
Sxirgeons,  16. 

Malpractice,  see  Physicians  and  Surgeons, 
19-45. 

Care  required  of  physician,  see  Physicians 
and  Surgeons,  23-27. 

Leaving  spongfe  in  wound,  see  Physicians 
and  Surgeons,  37,  38. 

Complaint  for  personal  injuries,  see  Plead- 
ing, 5. 

Demurrer  to  complaint,  see  Pleading,  40. 

In  operating  hand  car,  see  Sailroads,  52, 
68. 

Care  at  grade  crossing,  see  Railroads,  64- 
66. 

Contributory  negligence  at  crossings,  see 
Railtoads,  69-77. 

Contributory  negligence  in  accident  on 
right  of  way,  see  Railroads,  85-87. 

Liability  of  school  district,  see  Schools, 
5-8. 

Liability  of  sheriff  for  negligence,  see 
Sheriffs  and  Constables,  8-10. 

Liability  for  collision,  see  Ships  and  Ship- 
Ing,"  2. 


Liability  of  street  railway  companies,  see 

Street  Railways,  20-43. 
In  sending   message,   see   Telegraphs   and 

Telephones,  27,  28. 
Of  operators  of  "Ocean  Wave,"  see  The- 
aters and  Amusements,  8. 
In   damage    to    riparian    land   by   floating 

logs,  see  Trees  and  Timber,  25. 
Liability  of  warehouseman  for  damage  by 

tides,  see  Warehouses,  3,  4. 
Liability  of  water  company  for  failure  to 

furnish  water  for  fire,  see  Waterworks 

and  Water  Companies,  10. 

1.    ACTIONABLE  NEGLIGENCE, 
a.    In  General. 

1.  What  Constitutes  Negligence — Breach 
of  I>uty  Essential.  Actionable  negligence 
arises  only  from  breach  of  a  legal  duty. 
Fusselman  v.  Yellowstone  Valley  Land,  etc. 
Co.  (Mont.)   1918B-420. 

2.  Liability  of  Manufacturer  to  Con- 
sumer. The  manufacturer  of  chewing  to- 
bacco is  not  liable  for  injury  to  the  ulti- 
n.ate  consumer,  a  purchaser  from  a  re- 
tailer, for  injury  from  a  bug  imbedded  in 
a  plug,  the  manufacturer  having  no  knowl- 
edge or  notice  of  its  presence  and  the  con- 
sequent danger  of  using  the  tobacco.  Lig- 
gett etc.  Tobacco  Co.  v.  Cannon  (Tenn.) 
1&17A-179. 

Notes. 

Liability  as  for  negligence  of  person 
obstructing  highway  under  statutory  or 
municipal  authority.     1917A-1003. 

Liability  as  for  negligence  of  person  who 
irjures  bystander  while  acting  in  self- 
defense.     1916C-1150. 

Liability  for  injury  to  infant  stealing 
ride  on  vehicle.     1917D-379. 


b.     Degrees  of  Care  Defined. 

3.  Degrees  of  Negligence.  There  is  a 
distinction  between  the  degrees  of  negli- 
gence, as  being  slight,  ordinary,  or  gross. 
Massaletti  v.  Fitzroy  (Mass.)  i918B-1088. 

4.  Deerees  of  Negligence  —  Gratuitous 
Undertaking.  Justice  requires  that,  to 
make  out  liability  in  ease  of  a  gratuitous 
undertaking,  plaintiff  ought  to  prove  a 
materially  greater  degree  of  negligence 
than  where  defendant  is  to  be  paid  for 
doing  the  same  thing.  Massaletti  v.  Fitz- 
roy (Mass.)  1918B-1088. 

5.  Wall  Abutting  on  Street.  In  an  ac- 
tion against  a  railroad  company  for  in- 
jury to  an  infant  from  being  struck,  while 
playing  in  the  street,  by  a  stone  which 
fell  from  a  railroad  wall,  an  instruction 
that  defendant  was  required  to  use  "that 
degree  and  amount  of  care  which  is  within 
the  range  of  human  precaution  and  fore- 
sight to  keep  the  wall  in  such  condition 
as  not  to  cause  injury  to  a  person  upon 
the  public  highway"  is  erroneous;  the  de- 


634 


DIGEST. 

1916C— 1918B. 


fendant  being  required  to  exercise  only 
that  reasonable  care  required  of  the  or- 
dinary prudent  man  under  similar  circum- 
stances. Soriero  v.  Pennsylvania  E.  Go. 
(N.  J.)  1916E-1071. 

e.    Duty  of  Person  Furnishing  Accommo- 
dations  of  Public  Nature. 

6.  A  child  six  years  old  going  on  a 
county  public  dock  with  an  elder  brother 
visiting  the  dock  to  receive  a  newspaper 
in  not  a  trespasser,  but  is  legally  thereon 
connected  with  a  purpose  for  which  it 
was  intended,  and  the  county  cannot  es- 
cape liability  for  injury  to  the  child  on  the 
ground  that  he  was  a  trespasser.  Gregg  v. 
King  County    (Wash.)    1916C-135. 

(Annotated.) 

7.  A  county  maintaining  a  public  dock 
for  public  nse  and  convenience  is  charge- 
able with  notice  that  it  may  be  usei  as  a 
public  street  or  other  public  place  by  any 
member  of  the  public,  including  young 
children,  especially  in  view  of  the  pres- 
ence of  a  confectionery  store  on  the  dock 
constituting  an  implied  invitation  to  chil- 
dren and  others  to  visit  the  dock,  and  it 
cannot  escape  liability  for  injuries  to  a 
child  on  the  dock  on  the  theory  that  it 
could  not  anticipate  the  presence  of  the 
child  thereon.  Gregg  v.  King  County 
(Wash.)   1916C-135.  (Annotated.) 

d.    Ihity  to  Invitee. 

8.  Owners  of  Premises  —  Liability  for 
Injury.  An  invitation  not  accepted  or 
acted  on  creates  no  legal  relationship  so 
as  to  be  the  basis  for  a  charge  of  negli- 
gence. Fusselman  v.  Yellowstone  Valley 
Land,  etc.  Co.  (Mont.)  1918B-420. 

e.    Condition   of  Premises. 
(1)     In  General. 

9.  Wharves  —  Personal  Injury  from  De- 
fect— Liability.  The  degree  of  care  re- 
quired by  a  county  maintaining  a  public 
dock  for  public  use  and  convenience  must 
be  considered  with  reference  to  the  uses 
and  purposes  for  which  the  dock  was  con- 
structed, maintained,  and  operated,  and 
open  to  all  classes  of  people,  inelud'Tig 
children,  who  may  be  drawn  there  by 
curiosity  or  interest  in  the  arrival  of 
boats  or  who  may  be  sent  there  on  errands 
for  their  parents.  Gregg  v.  King  Countv 
(Wash.)  1916C-135.  (Annotated.) 

10.  The  common-law  rule  of  liability  of 
lessees  ^ho  have  control  or  occupancy  of 
a  wharf,  for  injuries  caused  by  the  de- 
fective or  dangerous  condition  of  the  prem- 
ises where  such  defective  or  dangerous 
condition  reasonably  should  have  been 
known  to  and  remedied  by  the  occnriying 
tenant,  is  in  f :  rce  in  this  state.  King  ▼. 
Cooney-Eckstein  Co.  (Fla.)  19160-163." 

(Annotated.) 


11.  The  liability  of  the  lessee  in  dam- 
ages for  injuries  to  others  caused  by  un- 
safe premises  is  grounded  upon  his  duty  in 
being  the  occupant  to  keep  the  wharf  in 
reasonably  safe  condition  for  those  who  go 
thereon  by  express  or  implied  invitation. 
King  v.  Cooney-Eckstein  Co.  (Fla.)  19160- 
163.  (Annotated.) 

12.  At  common  law  the  tenant  and  occu- 
pier of  a  wharf  is  boun.d,  as  between  him- 
self and  the  public,  to  keep  the  premises 
in  such  condition  that  they  will  be  rea- 
sonably safe  for  persons  who  go  lawfully 
upon  the  premises,  by  express  or  implied 
invitation;  and  such  tenant  or  occupier 
is  prima  facie  liable  for  damages  caused 
by  defects  in  or  dangers  on  the  premises 
that  reasonably  could  have  been  avoided 
by  appropriate  care  taken  by  the  tenant 
or  occupier.  This  is  the  law  even  though 
the  lessor  covenanted  to  keep  the  premises 
in  repair.  King  v.  Cooney-Eckstein  Co. 
(Fla.)   1916C-163.  (Annotated.) 

13.  A  county  maintaining  a  public  dock 
under  Rem.  &  Bal.  Wash.  Code,  §  8114,  for 
public  use  and  convenience,  must  exercise 
rtasonable  care  for  the  safety  of  the  pub- 
lic and  all  persons  having  occasion  to  use 
it.  Gregg  v.  King  County  (Wash.)  1916C- 
135.  (Annotated.) 

14.  Defendant  dock  company,  knowing 
that  the  employee  of  a  shipbuilding  com- 
pany, a  licensee,  was  engaged  in  repair 
work  on  the  side  of  the  steamer  under 
its  discharging  rig,  and  that  coal  often 
dropped  when  the  rig  was  in  operation, 
and  which  did  not  notify  decedent  when 
the  rig  was  started,  is  guilty  of  actionable 
negligence.  Taylor  v.  Northern  Coal.  etc. 
Co.  (Wis.)  19160-167.  (Annotated.) 

15.  In  such  case  the  defendant  company 
in  bound  to  refrain  from  acts  of  affirma- 
tive negligence  unnecessarily  increasing 
the  danger  to  decedent  or  rendering  the 
premises  more  dangerous,  at  least  without 
notifying  him  of  such  increased  danger. 
Taylor  v.  Northern  Coal,  etc.  Co.  (Wis.) 
1916C-167.  (Annotated.) 

16.  Decedent,  the  employee  of  a  ship- 
building company,  engaged  in  repairing  a 
£oal-laden  steamer  which  defendant  com- 
pany is  discharging  at  its  dock,  who  is 
authorized  to  be  there,  and  whose  presence 
is  known  to  defendant,  which  makes  no 
objection  is  not  a  trespasser,  but  is  enti- 
tled to  the  privileges  and  protection  of  a 
licensee.  Tavlor  v.  Northern  Coal.  etc. 
Co.  (Wis.)   19160-167.  (Annotated.) 

17.  Duty  of  Landowner — Extinguishing 
Fire  Started  by  Another.  An  owner  of 
premises,  who  discovers  fire  thereon  for 
which  he  is  not  respon?iblt».  must  use  or- 
dinary care  to  prevent  it  from  spreading 
to  adjoining  property.  Excelsior  Products 
Mfg.  Co.  V.  Kansas  City  So.  K.  Co.  (Mo.) 
1917B-1047. 

18.  Duty  to  Licensee.  Where  plaintiflf 
goes    on     defendant's    land    at    the   place 


NEGLIGENCE. 


635 


where  she  is  injured,  along  a  path  which 
defendant  has  permitted  the  public  to  use, 
she  is  not  an  invitee,  but  merely  a  licensee, 
as  to  whom  defendant  owes  no  duty,  except 
not  to  injure  her  by  wilful,  wanton,  or 
reckless  conduct.  Eomana  v.  Boston  Ele- 
vated E.  Co.  (Mass.)   1917A-8&3. 

Notes. 

Liability  of  proprietor  for  injuries  ra- 
ceived  in  turnstiles,  revolving  door,  or 
swinging  door.     1916D-1235. 

Injuries  to  persons  on  or  about  wharves, 
docks,  or  piers.     1916C-139. 

Liability  of  owner  for  injuries  caused 
by  collapse  of  building.     1917A-478. 


(2)     Injuries    to    Customers    on    Business 
Premises. 

19.  The  owner  of  a  store,  to  which  en- 
trance was  had  through  a  swinging  door, 
is  not  liable  for  an  injury  to  a  customer 
occasioned  by  the  negligence  of  another 
customer,  who  jammed  the  door  on  the  first 
one's  hand.  Smith,  v.  Johnson  (Mass.) 
I916D-1234.  (Annotated.)' 

20.  Stores — Customer  Injured  in  Swing- 
tne  Door  —  Liability  of  Owner.  Where 
plaintiff,  in  entering  defendant's  store 
through  a  swinging  door,  put  out  her  hand 
to  guard  her  face  from  the  door,  which 
was  swinging  in  her  direction,  and  it  was 
crushed  between  the  door  and  the  jamb, 
defendant  was  not  liable;  such  door  being 
in  good  condition  and  similar  to  those  gen- 
erally used,  and  there  being  no  such  crowd 
as  would  require  the  keeping  of  a  doorman. 
Smith  V.  Johnson  (Mass.)  1916D-1234. 

(Annotated.) 

21.  Wharves — Personal  Injury  from  De- 
fect— Liability.  In  an  action  for  injuries 
by  falling  into  a  hole  in  the  wharf  of 
defendant  transportation  company,  to 
which  plaintiff  had  gone  to  receive  an  ex- 
pected shipment  on  defendant's  vessel,  the 
evidence  is  held  to  sustain  a  finding  that 
plaintiff  was  impliedly  invited  by  defend- 
ant, on  the  particular  occasion,  to  go  to 
the  river  end  of  the  wharf,  where  hi^  was 
injured.  Miller  v.  Delaware  Eiver  Trans. 
Co.   (N.  J.)    1916C-165. 

22.  Bathing  Resorts — ^Liability  of  Keeper 
— Pailure  to  Provide  Life  Lines.  Under 
the  laws  of  this  state  an  action  may  be 
maintained  against  a  person  who  operates 
or  maintains  a  bathhouse  where  bathing 
suits  are  furnished  for  hire,  at  the  seaside 
resorts  in  the  state,  for  negligence  in  fail- 
ing to  maintain  proper  and  safe  life  lines 
and  life  rafts  for  the  protection  of  his 
patrons,  when  the  patrons  who  are  not 
guilty  of  contributory  negligence  are  in- 
jured as  a  proximate  result  of  the  negli- 
gence of  such  operator  or  his  agents.  Mc- 
Kinney  t.  Adams  (Fla.)  1917B-326. 

(Annotated.) 


Vote. 

Duty  to  patrons  of  proprietor  of  bathing 
resort  or  beach.     1917B-333. 

(3)     Attractive  Nuisances. 

23.  Railroad  Engine.  The  doctrine  that 
one  who  leaves  an  attractive  and  danger- 
ous machine  on  his  premises  thereby  in- 
vites children  to  play  with  it,  and  must 
use  due  care  to  protect  such  children  from 
injury,  does  not  apply,  where  a  railroad 
engineer  placed  a  five  year  old  boy  on  his 
engine  and  then  put  it  in  motion  without 
taking  proper  precautions  for  the  boy's 
safety.  Lovejoy  v.  Denver,  etc.  E.  Co. 
(Colo.)  1916E-I075. 

24.  Unguarded  Mill  Race  —  Death  of 
Trespassing  Child.  The  owner  of  a  mill 
race  is  not  liable  for  the  death  of  a  child 
who,  trespassing  upon  premises  and  play- 
ing upon  the  banks  of  the  mill  race,  fell  in 
and  was  drowned,  though  it  was  sometimes 
resorted  to  by  children  for  amusement  and 
was  not  protected  by  fence  or  guard. 
Eiggle  V.  Lens  (Ore.)  1916C-1083. 

(Annotated.) 

25.  Electricity  Escaping  from  Pole.  That 

defendant  suffers  its  premises  to  be  in 
such  condition  as  would  be  likely  to  at- 
tract people  to  use  a  path  thereon,  and 
it  did  attract  plaintiff,  who  in  traversing 
the  path  was  injured  by  electricity  escap- 
ing from  one  of  defendant's  poles,  does 
not  constitute  even  an  implied  invitation 
to  plaintiff  to  use  the  path.  Eomana  v. 
Boston  Elevated  E.  Co.  (Mass.)  1917A- 
893. 

26.  Liability  to  Trespassing  Infant.  The 
basis  of  the  doctrine  of  liability  to  a  tres- 
passing infant,  injured  through  the  dan- 
gerous condition  of  the  premises,  is  im- 
plied invitation.  Fusselman  v.  Yellow- 
Etone  Valley  Land,  etc.  Co.  (Mont.)  1918B- 
420. 

27.  Though  a  dangerous  thing  may  not 
be  an  attractive  nuisance,  yet  where  it  is 
left  exposed,  so  that  children  are  likely 
to  come  in  contact  with  it,  and  where 
their  getting  in  contact  with  it  is  obviously 
dangerous  to  them,  the  persons  exposing 
the  dangerous  thing  should  reasonably  an- 
ticipate the  injury  that  is  likely  to  hap- 
pen to  them,  and  are  bound  to  take  rea- 
sonable pains  to  guard  it,  so  as  to  prevent 
injury.  Thompson  v.  Alexander  City  Cot- 
ton Mills  Co.   (Ala.)   1917A-721. 

(Annotated.) 

28.  Pool  of  Water — Liability.  A  drain 
to  take  off  the  hot  water  of  the  boilers 
of  a  cotton  mill,  the  waters  beinor  dis- 
charged only  once  a  day  for  two  hours, 
difficult  to  approach  at  its  head  by  rea?pn 
of  slag  and  briars,  ana  greatly  obscured, 
though  situated  in  a  square  in  which  em- 
ployees' and  other  children  are  wont  to 
congregate,  is  not  an  attractive  nuisance. 


636 


DIGEST. 

1916C— 1918B. 


Thompson  t.  Alexander  City  Cotton  Mills 
Co.  (Ala.)  1917A-721.  (Annotated.) 

Note. 
Liability    of    landowner    for   injury    to 
trespassing  child  on  account  of  unguarded 
pond,  pool,  well,  etc.     1916C-1085. 

(4)     Dangers  Near  Highway. 

29.  Coal  Hole  —  Personal  Injuries — ^Lia- 
bility of  Abutting  Owner.  A  lot  owner 
who  maintains  a  coal  hole  in  a  city  pave- 
ment as  an  appurtenance,  whether  con- 
structed by  him  or  not,  must  exercise  rea- 
sonable care  in  keeping  it  in  a  reasonably 
safe   condition  for  use   by   the   public   as 

{)art  of  the  sidewalk.  Whatever  the  pub- 
ic safety  reasonably  requires  is  the  meas- 
ure of  diligence  to  be  exercised  by  him. 
Hill  T.  Norton  (W.  Va.)  1917r)-489. 

(Annotated.) 

30.  If  he  knows,  or  by  the  exercise  of 
reasonable  diligence  would  know,  the  grat- 
ing over  a  coal  hole  in  the  sidewalk  in 
frout  of  his  property  is  defective,  and 
fails  to  repair  it,  he  is  liable  for  an  injury 
resulting  therefrom  to  a  pedestrian  law- 
fully using  the  sidewalk.  Hill  v.  Norton" 
(W.  Va.)   1917D-489.  (Annotated.) 

31.  He  remains  liable  for  injuries  to  a 
pedestrian  resulting  from  a  deiective  coal 
hole  grating  in  a  pavement,  when  appur- 
tenant to  the  premises,  whether  occupied 
in  whole  or  in  part  by  tenant,  if  the  de- 
fect therein  existed  at  the  date  of  the 
demise.  Hill  v.  Norton  (W.  Va.)  1917D- 
489.  (Annotated.) 

32.  Door  Opening  Outward  Into  Street — 
Liability.  The  owner  of  premises  on  which 
is  a  door  opening  outward  into  the  street 
is  not  liable  to  a  pedestrian  who  is  in- 
jured by  being  struck  by  reason  of  the 
sudden  opening  of  the  door  by  a  third 
person,  the  injury  resulting  from  the  neg- 
ligent use  of  the  door  and  not  from  the 
manner  of  its  construction.  Evans  v. 
Edinburg  (Eng.)  1916E-455.    (Annotated.) 

Notes. 

Liability  of  owner  of  building  for  in- 
jury to  pedestrian  resulting  from  eroction 
of  scaffold  for  repairing  or  painting  build- 
ing.    1916C-123. 

Liability  for  injuries  caused  by  door  or 
gate  opening  outwards  in  street.  1916E- 
458. 

Legal  liability  for  injuries  sustained  by 
pedestrian  from  coal  hole  in  sidewalk. 
1917D-494. 


(5)     Stationary  Engines. 

88.  Stationary  Engine,  What  consti- 
tutes ordinary  care,  in  action  for  damao:es 
by  fire  from  engines,  depends  upon  the 
circumstances  of  the  particular  case,  and 
the  greater  the  danger  of  communicating 


fire  to  the  property  of  others,  the  more  pre- 
cautions will  be  required.  Hodges  v.  Bal- 
timore Engine  Co.  (Md.)  1917C-766. 

(Annotated.) 
Note. 

Liability  for  fire  caused  by  stationary 
engine,  furnace,  or  the  like.     1917C-771. 

f .    Violation  of  Statute. 

34.  Though  the  violation  of  a  penal  stat- 
ute constitutes  negligence  per  se,  it  is  not 
actionable,  unless  it  is  the  proximate  causo 
of  the  injury  for  which  the  action  is 
brought,  Prest-o-lite  Co.  v.  Skeel  (Ind.) 
1917A-474. 

35.  Where  a  standard  of  duty  is  fixed 
and  its  measure  defined  by  law,  the  omis- 
sion of  such  duty  is  negligence  per  83, 
rendering  the  violator  liable  for  injuries 
proximately  caused  by  such  violation,  irre- 
spective of  the  questions  of  care  or  pru- 
dence. Prest-o-lite  Co,  v.  Skeel  (Ind.) 
1917A-474. 

36.  The  violation  of  any  statutory  or 
valid  municipal  regulation,  established  for 
the  purpose  of  protecting  persons  or  prop- 
erty from  injury,  is  sufficient  to  prove  such 
a  breach  of  duty  as  will  sustain  a  private 
action  for  negligence,  if  the  other  elements 
of  actionable  negligence  concur,  Hoopes 
T.  Creighton  (Neb.)  1917E-847. 

g.     Proximate  Cause. 

37.  Kes  Ipsa  Loquitur — ^When  Doctrine 
Applies.  For  a  presumption  from  the  fact 
of  an  accident  to  make  out  a  prima  facie 
case  of  negligence  under  the  doctrine  of 
res  ipsa  loquitur,  it  must  appear  that  the 
instrumentality  which  involved  the  injury 
was  one  which,  in  the  ordinary  experience 
of  mankind,  would  not  have  happened,  un- 
less from  the  negligence  of  the  defendant 
or  of  others  for  whose  negligence  he  is 
legally  responsible.  Prest-o-lite  Co.  v. 
Skeel  (Ind.)  1917A-474. 

38.  Where  a  pedestrian  is  struck  by  a 
falling  cornice,  the  doctrine  of  res  ipsa 
loquitur  places  upon  the  owner  of  the 
building  the  burden  of  establishing  his 
freedom  from  negligence.  NicoU  v.  Sweet 
(Iowa)  1916C-661. 

39.  Fall  of  Wall.  Where  an  infant  eight 
or  nine  years  of  age,  while  playing  upon 
a  pile  of  railroad  ties,  resting  against  a 
railroad  wall,  upon  a  public  street,  was 
iijured  by  the  falling  of  a  stone  from  thu 
wall,  and  there  was  testimony  from  which 
it  was  inferable  that  the  stones  in  the  wall 
were  loose  and  the  wall  in  need  of  renair, 
held,  that  the  defendant  was  prima  facie 
guilty  of  negligence  in  maintaininor  the 
v.'all  in  a  dangerous  condition  to  persons 
lawfullv  upon  the  street.  Soriero  v.  Penn- 
sylvania E.  Co.  (N.  J.)  1916E-1071. 

(Annotated.) 


NEGLIGENCE. 


637 


40.  Starting  of  Motor  Truck  Left  Unat- 
tended. While  there  must  be  reasonable 
evidence  of  negligence,  yet  where  the  thing 
to  be  shown  is  under-  the  management  of 
the  defendant  or  his  servants,  and  the 
accident  is  one  which  does  not  happen  in 
the  ordinary  course  of  things,  the  happen- 
ing of  the  accident  affords  reasonable  evi- 
dence of  negligence,  American  Express 
Co.  V.  Terry  (Md.)  1917C-650. 

Note. 

Application  of  doctrine  of  res  ipsa  loqui- 
tur to  injury  to  person  in  highway  caused 
by  fall  of  wall  or  portion  thereof.  1916E- 
1073. 


2.     CONTEIBUTORY  NEGLIGENCE, 
a.     In   General. 

41.  Forgetfulness  of  BInown  Danger. 
Momentary  forgetfulness  of  a  danger  so 
hidden  as  not  of  itself  to  be  a  reminder  of 
its  existence  to  one  coming  within  its 
presence  does  not,  as  a  matter  of  law,  con- 
stitute contributory  negligence.  Harris  v. 
Bremerton  (Wash.)   1916C-160. 

42.  Pedestriaji  on  Highway.  A  person 
lawfully  in  a  public  highway  may  rely 
upon  the  exercise  of  reasonable  care  by 
drivers  of  vehicles  to  avoid  injury.  Fail- 
ure to  anticipate  omission  of  such  care 
does  not  render  him  negligent.  A  pedes- 
trian is  not  bound,  as  a  matter  of  law, 
to  be  continuously  looking  or  listening  to 
ascertain  if  automobiles  or  other  vehicles 
are  approaching,  under  penalty  that  if  he 
fails  to  do  so  and  is  injured,  his  own  neg- 
ligence will  defeat  recovery  of  damages 
sustained.  Deputy  v.  Kimmell  (W.  Va.) 
19IGE-656. 

43.  A  pedestrian  is  not  guilty  of  con- 
tributory negligence  solely  because  he 
steps  on  a  coal  hole  grating  in  a  public 
sidewalk.  Hill  v.  Norton  (W.  Va.)  1917D- 
489.  (Annotated.)* 

44.  Statutory  Changes  in  Common  Law. 
In  actions  for  the  recovery  of  damages  to 
a  person  or  his  property,  alleged  to  have 
been  occasioned  by  the  negligence  of  the 
defendant,  the  common-law  principle  which 
prevents  a  recovery  if  the  plaintiff's  own 
negligence  contributed  proximately  to  his 
injuries  has  not  been  modified  or  changed, 
except  as  modified  by  sections  3148,  3149, 
3150,  of  the  Ela.  General  Statutes  of  1906, 
and  chapter  6521  of  the  Acts  of  1913. 
Ingram-Pekle  Lumber  Co.  v.  Geiger  (Fla.) 
1918A-971.  (Annotated.) 

45.  Leaving  Vrfiicle  in  Dangerous  Place, 
The  mere  placing  of  a  team  across  a  street 
railroad  track,  or  such  placing  of  the  team 
and  going  to  and  across  the  sidewalk  to 
lead  a  barrel,  for  instance,  are  not  negli- 
gence per  se.  Pollica  v.  Twin  State  Gas. 
etc.  Co.  (Vt.)  1917C-1240.        (Annotated.) 


b.     Doctrine  of  Last  Clear  Chance. 

46.  Contributory  Negligence  of  Pedes- 
trian. The  mere  negligent  act  of  one  per- 
eon  will  not  excuse  negligent  injury  to 
him  by  another.  If,  therefore,  a  person 
who  negligently  places  himself  in  a  situ- 
ation of  imminent  danger  is  injured  by 
one  who  by  the  exercise  of  reasonable  care 
could  have  avoided  such  injury,  the  negli- 
gence of  the  former  will  not  bar  recovery. 
Deputy  V.  Kimmell  (W.  Va.)  1916E-6G6, 

47.  Running  into  Truck  Left  on  Street. 
Where  plaintiff's  employee  was  negligent 
in  placing  his  delivery  wagon  in  such  a 
position  that  it  might  be  struck  by  a  pass- 
ing street  car,  the  street  car  company  is 
nevertheless  liable  if  the  motorman  saw 
the  signal  made  by  plaintiff's  employee, 
but  failed  to  stop  his  car  in  time.  David- 
son Bros.  Co.  V.  Des  Moines  City  R,  Co. 
(Iowa)   1917C-1226.  (Annotated.) 

c.     Contributory  Negligence  of  Minors. 

48.  In  the  absence  of  evidence  to  the 
contrary,  a  child  of  six  or  seven  years  of 
age  is  presumptively  incapable  of  contrib- 
utory negligence.  Gregg  v.  King  County 
(Wash.)    1916C-135. 

49.  Causal  Relation  to  Injury  —  Child 
Plajang  in  Street.  The  fact  that  the  in- 
fant was  playing  upon  the  ties  did  not 
charge  it  with  contributory  negligence, 
since  the  ties  were  upon  a  public  street, 
and  the  fall  of  the  stone,  and  not  the  act 
of  playing  upon  the  ties,  was  the  proxi- 
mate cause  of  the  injury  and,  under  the 
testimony  in  no  wise  connected  therewith 
as  a  causal  factor  in  the  accident.  Soriero 
V.  Pennsylvania  E.  Co.  (N.  J.)  1916E-1071. 

50.  Child  of  Five.  A  boy  five  years  of 
age  is  presumed  to  be  unconscious  of  the 
danger  of  riding  on  a  locomotive,  and  is 
not  contributorily  negligent  in  permitting 
the  engineer  to  place  him  thereon  for  the 
purpose  of  giving  him  a  ride.  Lovejoy  v. 
Denver,  etc.  E.  Co.  (Colo.)  1916E-107o. 

51.  Contributory  Negligence  of  Children. 
In  determining  the  question  of  contribu- 
tory negligence,  the  conduct  of  children 
should  not  be  judged  by  the  same  rules 
which  govern  that  of  adults.  Ordinary 
caution  for  them  is  that  degree  of  care 
and  prudence  which  children  of  the  same 
age  are  accustomed  to  exercise  under  like 
circumstances.  Deputy  v.  Kimmell  (W. 
Va.)   1916E-656. 

52.  Whether  a  child  who  has  reached 
the  age  of  discretion  exercised  the  degree 
of  care  and  caution  that  persons  of  similar 
age,  judgment,  and  experience  usually  ex- 
ercise is  generally  for  the  jury.  Solomon 
V.  Public  Service  R.  Co.  (N.  J.)  1917C- 
356. 

53.  Care  Demanded  of  Child.  The  de- 
gree of  care  required  of  a  child  who  has 


638 


reached  the  age  of  discretion  and  is  con- 
eidcred  ^ui  juris  will  be  no  higher  as  a 
matter  of  law  than  such  as  is  usually 
exercised  by  persons  of  similar  age,  judg- 
ment, and  experience.  Solomon  ▼.  Public 
Service  B.  Co.  (N.  J.)  1917C-356. 


d.     Attempt  to  Save  Life. 

54.  Where  an  unattended  motor  truck, 
which  is  running  down  the  street  at  an  ac- 
celerating speed,  will  strike  wagons,  be- 
hind which  there  are  men  and  horses,  it 
is  not  negligence,  as  a  matter  of  law,  for 
the  plaintiflf  to  attempt  to  catch  the  truck 
and  change  its  course.  American  Express 
Co.  V.  Terry   (Md.)   1917C-650. 

(Annotated.) 
Note. 
Contributory  negligence   in   attempt   to 
save  human  life.     1917C-654. 

6.    Imputable  Contributory  Negligence. 
(1)     Negligence  of  Driver  of  Vehicle. 

55.  Negligence  of  Driver  Imputed  to 
Occupant  of  Vehicle.  Where  the  plaintil 
and  the  negligent  driver  of  a  private  con- 
veyance were,  at  the  time  of  plaintiff's 
injury  resulting  from  a  collision  with  de- 
fendant's train  at  a  railroad  crossing,  en- 
gaged in  a  joint  enterprise,  the  driver's 
negligence  is  imputed  to  ^uch  plaintiff,  and 
no  recovery  can  be  had.  Christopherson 
V.  Minneapolis,  etc.  E.  Co.  (N.  Dak.) 
1916E-683.  (Annotated.) 

Note, 
Contributory    negligence    of    driver    as 
imputable  to  occupant  of  vehicle,     1916E- 
685. 

(2)     Custodian  of  Child. 

56.  The  contributory  negligence  of  a 
parent  is  not  imputed  to  a  child  six  years 
old  suing  for  a  personal  injury.  Gregg  v. 
King  County  (Wash.)  1916C-135. 

57.  Where  a  mother  was  ill  and  the 
father  was  away  from  home  at  the  time  a 
child  six  years  old  accompanied  his  elder 
brother  to  a  public  dock  without  the 
knowledge  of  either  the  mother  or  father, 
the  parents  are  not  as  a  matter  of  law 
guilty  of  any  negligence  defeating  a  re- 
covery by  the  child  for  injuries  wnilr>  on 
the  dock.  Gregg  v.  King  County  (Wash.) 
1916C-135. 

Note, 
Contributory  negligence  as  defeating  re- 
covery where   previous   negligence   of   de- 
fondant  has  incapacitated  him  from  avoid- 
ing injury  to  plaintiff.     1916D-501. 

3.     ACTIONS. 

a.    Pleading. 

(1)     Complaint  or  Declaration. 

58.  Sufficiency.  In  actions  for  negligent 
injuries  it  may  be  uects^ary  to  allege  only 


DIGEST. 

1916C— 1918B. 

the  relations  between  the  parties  out  of 
which  the  duty  to  avoid  negligence  arises, 
and  the  act  or  omission  that  proximately 
ccused  the  injury,  coupled  with  a  state- 
ment that  such  act  or  omission  was  negli- 
gently done  or  omitted.  Ingram-Dekle 
Lumber  Co.  v.  Geiger  (Fla.)  191SA-971. 

59.  Several  Inconsistent  Charges  of  Neg- 
ligence. In  an  action  for  wrongful  death 
of  a  street  car  passenger,  it  is  proper  to 
plead  the  negligence  of  the  company  as 
occurring  in  several  inconsistent  way's,  in 
separate  counts,  and,  if  any  are  sustained 
by  evidence,  plaintiff  can  recover.  Froe- 
ming  V.  Stockton  Electric  R.  Co.  (Cal.)' 
1918B-408. 


60.  Averment  of  Negligence — Sufficiency. 
A  complaint  for  negligence  must  disclose 
a  duty,  breach  of  it,  and  resulting  dam- 
ages. Fusselman  v.  Yellowstone  Valley 
Land,  etc.  Co.  (Mont.)  1918B-420. 

61.  A  complaint  for  negligence  must 
state  facts,  and  not  legal  conclusions,  and 
80  must  set  forth  facts  from  which  it  can 
be  said,  as  matter  of  law,  that  defendant 
owed  the  injured  person  a  duty  at  the  time 
of  the  injury;  and  an  allegation  that  de- 
fendant impliedly  invited  deceased  is  in- 
sufficient. Fusselman  v.  Yellowstone  Val- 
ley Land,  etc.  Co.  (Mont.)  1918B-420. 

62.  Turntable  Doctrine.  To  state  a  cause 
of  action  under  the  doctrine  of  the  turn- 
table cases,  it  is  not  enough  for  the  com- 
plaint for  injury  to  a  trespassing  child 
to  show  that  the  premises  were  at;ractive 
to  children  or  that  children  generally  were 
attracted  thereto,  but  it  must  show  that 
the  attraction  lured  the  particular  child 
there  with  the  resulting  injury.  Fussel- 
man V.  Yellowstone  Valley  Land,  etc.  Co. 
(Mont.)   1918B-420. 

63.  Action  Against  Attorneys  for  Negli- 
gence. In  a  liability  insurer's  action 
against  its  attorneys  for  negligence,  the 
declaration  alleged  the  bringing  of  nn  ac- 
tion for  injuries  against  a  policyholder, 
that  plaintiff  was  bound  to  indemnify  the 
policyholder  against  loss  not  exceeding 
$5,000  and  was  bound  to  defend  the  suit 
at  its  own  expense,  that  it  instructeil  de- 
fendants to  enter  an  appearance  and  make 
a  defense,  that  it  attempted  to  settle  the 
suit  and  could  have  settled  it  if  a  default 
judgment  had  not  been  rendered,  that  de- 
fendants failed  to  enter  an  appearance  or 
make  any  defense,  and  that  by  reason 
thereof  a  judgment  for  $15,000  was  ren- 
dered by  default,  and  that  plaintiff  was 
bound  to  pay  the  a'raount  thereof.  It  i* 
held  that  in  the  absence  of  any  allegation 
that  the  policyholder  had  a  defense  to 
the  action  for  injuries,  or  that  the  in- 
jured person  was  not  justlv  entitled  to 
recover  $15,000,  the  declaration  stated  no 
cause  of  action,  as  it  was  not  shown  that 
if  the  attorneys  had  made  a  proper  de- 
fense no  juds^nient  or  a  judgment  for  a 
less  sum  would  have  been  recovered,  and 


NEGLIGENCE. 


639 


while  it  did  allege  that  plaintiff  was 
bound  to  pay  the  default  judgment,  though 
for  more  than  its  limited  liability,  there 
was  no  disclosure  of  facts  showing  such 
liability,  and  the  allegation  stated  only 
a  conclusion  of  law.  Maryland  Casualty 
Company  v.  Price  (Fed.)  1917B-50. 

(Annotated.) 

64.  In  an  action  by  a  liability  insurer, 
the  declaration  alleged  tLat  defendants 
had  been  for  several  years  plaintiff's  re- 
tained attorneys,  that  plaintiff  notified 
them  of  an  action  against  a  policyholder 
and  directed  them  to  enter  an  appearance 
and  instructed  them  to  make  such  defense 
and  take  such  steps  as  should  be  neces- 
sary to  prevent  a  judgment,  that  they 
neglected  to  do  so  and  a  default  judgment 
was  recovered,  and  that  plaintiff  attempted 
to  settle  the  suit,  and  could  have  settlciS 
it  for  $2,000  if  the  default  judgment  had 
not  been  rendered.  It  is  held  that  while 
defendants  were  not  advised  of  any  facts 
constituting  a  defense,  and  it  was  not  even 
alleged  that  there  was  a  defense  or  that 
plaintiff  intended  to  defend  on  the  merits, 
and  the  inference  was  permissible  that 
plaintiff's  real  purpose  was  to  have  a 
formal  appearance  or  plea  entered  which 
v/ould  prevent  a  judgment  for  a  time  and 
enable  plaintiff  to  make  an  advantageous 
settlement,  the  declaration  sufficiently 
showed  defendants'  employment  by  plain- 
tiff. Maryland  Casualty  Company  v.  Price 
(Fed.)    I917B-50.  (Annotated.) 

65.  In  a  liability  .insurer's  action  against 
attorneys,  an  amended  declaration  alleged 
the  bringing  of  an  action  for  injuries 
against  a  policyholder,  that  plaintiff  was 
bound  to  indemnify  the  policyholder 
against  loss  not  exceeding  $5,000  and  to 
defend  the  suit,  that  defendants  were 
instructed  to  appear  and  defend  but  ne- 
glected to  do  so  and  by  reason  of  such 
neglect  a  judgment  for  $15,000  was  ren- 
dered by  default  which  plaintiff  was  bound 
to  and  did  pay,  that  defendants  knew  that 
plaintiff's  liability  was  limited  and  that 
it  was  obliged  to  defend  the  suit,  that  if 
they  had  appeared  and  made  a  defense 
plaintiff's  liability  would  have  been  only 
$5,000,  though  the  judgment  against  the 
policyholder  might  exceed  that  amount, 
and  that  their  negligence  was  the  direct 
cause  of  loss  to  plaintiff  of  the  difference 
between  $5,000  and  the  amount  of  the 
judgment.  It  is  held  that,  in  the  absence 
of  any  allegation  that  the  policyholder  had 
a  meritorious  defense  which  would  have 
defeated  a  recovery  or  reduced  the  amount 
of  the  judgment,  the  declaration  was  in- 
sufficient, since  it  did  not  show  that  plain- 
tiff was  under  any  obligation  to  pay  in 
excess  of  $5,000,  as  the  allegation  that 
it  was  compelled  to  pay  the  judgment  was 
a  mere  conclusion  of  law  without  any  facts 
to  justify  it,  and  it  was  evident  that  it 
was  not  liable  to  the  policyholder  for  more 
than   $5,000    if    the    policyholder    had    no 


meritorious  defense.  Maryland  Casualty 
Company  v.  Price  (Fed.)  1917B-50. 

(Annotated.) 

(2)     Plea  or  Answer. 

66.  Pleading  Contributory  Negligence — 
Necessity.  Defendant's  answer  not  con- 
taining any  statement  of  fact  showing 
contributory  negligence  on  the  part  of  the 
plaintiff,  and  not  pleading  such  a  defense 
according  to  its  legal  effect,  and  such  an 
issue  not  arising  out  of  the  complaint,  the 
defense  of  contributory  negligence  was  not 
put  in  issue;  and,  not  being  available  on 
the  trial,  cannot  be  raised  on  appeal. 
Titus  V.  Pennsylvania  E.  Co.  (N.  J.) 
11/17B-125I. 

67.  Quaere:  Where  contributory  negli- 
gence appears  from  the  plaintiff's  case 
upon  the  trial,  being  theretofore  unknown 
to  the  defendant,  should  not  the  rule  of 
court,  requiring  contributory  negligence  to 
be  pleaded,  be  relaxed,  so  that  the  defend- 
ant may  have  the  advantage  of  that  de- 
fense without  having  put  it  in  issue? 
Titus  v.  Pennsylvania  B.  Co.  (N.  J.) 
1917B-1251. 

68.  Violation  of  Eule — Manner  of  Plead- 
ing. A  plea  of  contributory  negligence 
which  alleged  that  there  was  a  rule  of  the 
company  which  prohibited  employees  per- 
forming the  duties  plaintiff's  intestate  was 
employed  to  perform,  from  riding  on  its 
tram  cars,  is  not  objectionable  as  failing 
to  allege  that  plaintiff's  intestate  was  re- 
quired to  conform  to  such  rule.  Cole  v. 
Sloss-Sheffield  Steel,  etc.  €o.  (Ala.)  1916E- 
99. 

(3)     Amendments. 

69.  Amendment    Properly    Refused.     A 

liability  insurer  suing  its  attorneys  for 
negligence  in  failing  to  defend  an  action 
for  injuries  against  a  policyholder  alleged 
that  it  was  bound  to  indemnify  the  policy- 
holder against  loss  not  exceeding  $5,000 
and  to  defend  the  suit,  that  by  reason 
of  the  attorneys'  negligence  a  default 
judgment  was  rendered  for  $15,000,  and 
that  it  could  have  settled  for  no  more  than 
$2,000  if  the  default  judgment  had  not 
been  rendered.  An  amended  declaration 
proceeded  on  the  theory  that  the  attorneys' 
failure  to  defend  made  plaintiff  liable  for 
the  full  amount  of  the  default  judgment 
and  sought  to  recover  the  difference  be- 
tween the  amount  of  the  judgment  and 
$5,000.  After  the  sustaining  of  a  demur- 
rer to  the  amended  declaration,  it  asked 
leave  to  amend  further  by  striking  out 
the  averment  that  it  could  have  settled  for 
not  exceeding  $2,000  had  the  judgment  not 
been  rendered.  It  is  held  that  it  was  not 
error  to  refuse  to  allow  this  amendment, 
where  it  was  not  shown  that  the  allegation 
sought  to  be  stricken  was  inadvertently 
made,  or  that  it  was  not  in  precise  accord- 
ance with  the  facts  established,  as  in  one 


640 


DIGEST. 

1916C— 1918B. 


aspect  of  the  case  tlie  facts  averred  would 
defeat  a  recovery  if  there  was  no  merit- 
orions  defense  to  the  action  against  the 
policyholder  because  the  action  would  not 
then  involve  the  jurisdictional  amount. 
Maryland  Casualty  Company  ▼.  Price 
(Fed.)    1917B-50. 

(4)     Variance. 

70.  Proof  of  One  of  Two  Charges.  Proof 
of  either  of  two  charges  of  negligence  in 
the  declaration  is  sufficient  to  warrant  re- 
covery if  the  negligence  is  shown  to  be 
the  proximate  cause  of  the  injury,  even 
though  the  charges  of  negligence  are 
joined  or  coupled  together  in  a  single 
<ount.  Devine  v,  Delano  (lU.)  1918A- 
689. 

71.  Proof  of  Negligence — Variance  from 
Pleading.  In  order  to  recover,  it  is  un- 
necessary for  plaintiff  to  prove  literally 
the  acts  of  negligence  averred  in  the  dec- 
laration. If  the  allegations  are  substan- 
tially proved,  this  is  sufficient.  Hence,  an 
instruction,  in  an  action  of  case  for  per- 
sonal injury,  which  tells  the  jury  that  it 
cannot  find  for  plaintiff,  unless  it  believes 
from  the  evidence  "that  the  defendant 
was  negligent  in  the  very  manner  set  out 
in  the  declaration,"  is  erroneous,  and 
should  be  refused.  Deputy  T.  Kimmell 
(W.  Va.)  1916E-656. 

b.    Evidence. 
(1)     Presumptions  and  Burden  of  Proof. 

72.  Burden  of  Proving  Contributory  Neg- 
ligence. In  an  action  for  personal  injury, 
where  the  defendants  allege  that  plaintiff 
was  guilty  of  contributory  negligence  and 
plaintiff's  evidence  shows  the  defendants 
guilty  of  negligence,  with  nothing  in  the 
circumstances  establishing  contributory 
negligence  on  his  part,  it  is  error  for  the 
court  to  refuse  to  instruct  the  jury  that 
the  burden  of  proving  contributory  negli- 
gence is  on  the  defendants.  Marth  v. 
Kingfisher  Commercial  Club  (Okla.)  1917E- 
235. 

73.  Although  there  is  no  presumption 
that  he  has  exercised  due  care,  in  favor 
of  one  who  goes  on  a  railway  track  and  is 
struck  by  an  Engine  and  the  burden  is 
on  the  one  seeking  recovery  for  his  death, 
due  care  need  not  be  shown  by  direct  evi- 
dence, but  it  ia  enough  if  an  inference 
of  due  care  can  reasonably  be  drawn  from 
the  facts  shovvn.  Ingram's  Adm'x.  v.  Rut- 
land R.  Co.  (Vt.)  1918A-1191. 

74.  Elements  of  Lial)illty — Burden  of 
Proof.  In  an  action  of  tort  the  plaintiff 
IS  put  to  prove  clearly  the  nature  of  his 
harm,  and  the  defendant's  share  in  causing 
it;  and  the  other  circumstances,  which 
would  if  they  existed  leave  him  without  a 
claim,  are  put  upon  the  defendant  to  prove. 
Boy  Ian  v.  New  Orleans  B.,  etc.  Co.  (La.) 
1918A-287. 


75.  Burden  of  Proof — Cause  of  Accident. 
"Where  an  injury  might  well  have  resulted 
from  any  one  of  many  causes,  plaintiff, 
by  a  fair  preponderance  of  the  evidence, 
must  exclude  the  operation  of  those  causes 
for  which  defendant  is  under  no  legal  obli- 
gation. Prest-o-lite  Co.  v.  Skeel  (Ind.) 
1917A-474. 

76.  Owners  of  Premises  —  Collapse  of 
Building — Liability  of  Owner.  In  an  ac- 
tion for  injuries  from  the  collapse  of  a 
building,  in  which  plaintiff  asserted  negli- 
gence he  was  bound  to  show  enough  to 
exclude  the  case  from  the  class  of  acci- 
dental occurrences.  Prest-o-lite  Co.  v. 
Skeel  (Ind.)   1917A-474.  (Annotated.) 

77.  Burden  of  Proof — Effect  of  Statute. 
It.  a  suit  for  damages  for  personal  in- 
juries against  a  railroad  company,  the 
effect  of  section  3148,  Fla.  Gen.  St.  of 
1906,  injury  having  been  shown,  is  to  re- 
quire the  defendant  company  to  show  by 
a  preponderance  of  the  evidence  that  its 
servants  and  agents  exercised  all  ordinary 
and  reasonable  care  and  diligence,  the  pre- 
sumption being  against  the  defendant 
company.  Florida  East  Coast  E.  Co  v. 
Carter  (Fla.)   1916E-1299. 

78.  A  liability  insurer  suing  its  attor- 
neys for  negligence  in  failing  to  defend 
an  action  against  a  policyholder  resulting 
in  a  default  judgment  for  $15,000  had  the 
burden  of  showing  that  the  party  recover- 
ing the  judgment  did  not  have  a  valid 
claim  against  the  policyholder  for  $15,000. 
Maryland  Casualty  Company  v.  Price 
(Fed.)  1917B-50. 

(2)     Admissibility  of  Evidence. 

79.  Evidence  as  to  whether  witness  had 
ever  known  paint  buckets,  brushes,  or 
ropes  to  fall  from  ladders  or  scaffolds  us^d 
in  painting  buildings  is  irrelevant  and  in- 
jtdmissible.  VVeilbacher  v.  J.  W.  Putts  Co. 
(Md»)    1916C-115. 

80.  Evidence  of  Subsequent  Conditions. 
A  witness  cannot  testify  that  at  some  in- 
definite and  unlooated  time  after  the  elec- 
tiocution  of  deceased  he  saw  that  the  in- 
sulation was  worn  off  of  the  wires  which 
came  from  the  pole  to  the  top  of  the 
v.indow  and  into  the  building  where  the 
death  occurred.  Smith's  Adm'x.  v.  Mid- 
dlesboro  Electric  Co.   (Ky.)   1917A-1164. 

81.  Other  Causes.  In  an  action  for  dam- 
ages by  fire  from  defendant's  engine,  de- 
fendant may  show  that  the  fire  originatf^d 
from  other  causes.  Hodges  v.  Baltimore 
Engine  Co.  (Md.)  1917C-766. 

82.  Intoxication.  The  fact  that  a  person 
is  intoxicated  when  he  is  injured  does  not 
of  itself  show  such  contributory  negli- 
gence as  will  defeat  his  recovery  for  such 
injury,  but  may  be  considered  in  deter- 
mining whether  his  intoxication  contrib- 
ute'! to  his  injurv.  American  Bauxite  Co 
y.  Dunn  (Ark.)  i917C-625. 


NEGLIGENCE. 


641 


83.  Conduct  of  Parties.  Where,  in  an 
action  against  the  landlord  by  a  tenant's 
guest  for  injuries  from  falling  in  an  un- 
hghted  hallway,  the  lease  did  not  appear 
to  have  been  in  writing  and  there  was 
no  direct  evidence  as  to  its  terms,  evi- 
dence of  the  conduct  of  the  landlord  and 
the  tenant,  so  far  as  it  was  open  and 
notorious,  is  admissible  to  show  what  were 
the  terms  of  the  tenancy,  as  to  lighting 
the  hallway,  within  contemplation  of  the 
contracting  parties.  Gallagher  v.  Murphy 
(Mass.)  1917E-594.  (Annotated.) 

(3)     Sufficiency  of  Evidence. 

84.  Contributory  Negligence  at  Crossing. 
Where  on  a  dark  morning  the  view  was  so 
obstructed  that  when  deceased  was  cross- 
ing the  track  in  a  wagon  his  horses  were 
on  the  track  at  the  time  he  could  first 
have  seen  the  engine,  and  the  train  ap- 
proached the  crossing  without  sounding  a 
bell  or  whistle  at  a  high  rate  of  speed, 
while  a  passing  freight  train,  and  also  an 
automatic  crossing  signal~bell,  out  of  order 
and  ringing  continuously,  were  making 
considerable  noise,  deceased  was  free  iiom 
contributory  negligence  as  a  matter  of 
law,  since  reasonable  care  by  deceased  in 
looking  and  listening  would  not  have  en- 
abled him  to  detect  the  approach  of  the 
engine  in  time  to  escape  coUisioa.  Ham- 
ilton V.  Erie  K.  Co.  (N.  Y.)  1918A-928. 

85.  Fall  on  Stairway.  Evidence  in  an 
action  for  injuries  received  by  plaintiff 
irrom  a  fall  in  the  dark  hallway  of  defend- 
ant's tenement  house  as  she  left  the  apart- 
ment of  her  son  is  held  to  sustain  a  find- 
ing that  she  was  in  the  exercise  of  due 
care.  Gallagher  v.  Murphy  (Mass.)  1917E- 
594. 

86.  Leaving  Vehicle  in  Dangerous  Place. 

Fn  an  action  for  damages  to  plaintiff's  de- 
livery wagon  while  unloading  goods  by 
being  struck  by  defendant's  str«".et  car, 
the  evidence  is  held  to  be  sufficient  to  jus- 
tify the  submission  to  the  jury  of  the 
question  of  the  driver's  contributory  negli- 
gence in  placing  the  wagon  where  the  car 
could  not  clear  it.  Davidson  Bros.  Co.  v. 
Des  Moines  City  R.  Co.  (Iowa)  1917G- 
1226.  (Annotated.) 

87.  Child.  Coasting  in  Street.  It  does 
not  appear  from  the  evidence  that  plain- 
tiff's intestate  was  guilty  of  negligence  as 
a  matter  of  law.  Terrill  v.  Virginia  Brew- 
ing Co.  (Minn.)   1917C-453. 

88.  Child  Falling  into  Drain.  In  an  ac- 
tion for  injuries  to  a  child,  killed  by  fall- 
ing into  a  drain  into  which  the  hot  water 
of  boilers  of  a  cotton  mill  was  discharged, 
evidence  held  sufficient  to  sustain  a  verdict 
for  defendant.  'Thompson  v.  Alexander 
City  Cotton  Mills  Co.  (Ala.)  1917A-721. 

(Annotated.) 

89.  Finding  Sustained.  In  such  action 
evidence  was  held  to  sustain  a  finding  that 

41 


decedent  was  not  guilty  of  contributory 
negligence.  Taylor  v.  Northern  Coal,  etc. 
Co.  (Wis.)  1916C-167.  (Annotated.) 

90.  Liability  of  Manufacturer  —  Manu- 
facturer Installing  Plant.  Evidence  in  an 
action  for  death  from  explosion  of  gas 
from  a  gasoline  lighting  system  in  de- 
ceased's house  .held  to  warrant  a  finding 
that,  as  between  deceased  and  defendant, 
the  manufacturer,  defendant,  and  not  a 
Iccal  agency,  sold  and  undertook  to  install 
the  system,  and  so  could  be  held  liable  in 
that  capacity,  and  not  merely  as  manu- 
facturer. Mahlstedt  v.  Ideal  Lighting  Co. 
(III.)  1917D-209. 

91.  Sparks  from  Sawmill.  In  an  action 
for  damages  to  plaintiff's  timber  by  fire, 
evidence  is  held  to  be  sufficient  to  go  to 
the  jury  on  the  issue  whether  the  fire 
started  from  a  spark  from  the  smokestack 
of  defendant's  engine  operating  a  sawmill 
on  plaintiffs  premises.  Hodges  v.  Balti- 
more Engine  Co.  (Md.)  1917C-766. 

(Annotated.) 

92.  Stationary  Engine.  In  an  action  for 
damages  to  plaintiff's  timber  by  fire  set  by 
defendant's  engine,  which  was  used  to  run. 
a  sawmill  on  plaintiff's  land,  evidence  la 
held  to  be  sufficie'nt  to  go  to  the  jury  on 
the  issue  whether  defendant  was  oper- 
ating such  engine.  Hodges  v.  Baltimore 
Engine  Co.  (Md.)  1917C-766. 

(Annotated.) 

93.  Owners  of  Premises  —  Canal — Injury 
to  Trespassing  Child.  Evidence  in  an  ac- 
tion for  drowning  of  a  child  in  the  canal" 
of  an  irrigation  company  is  held  to  be  in- 
sufficient to  support  a  verdict  on  the  the- 
ory that  it  fell  in  where  the  canal  crossed 
a  street,  and  should  have  been,  but  was 
not,  covered;  it  being  equally  consistent 
with  it  having  fallen  in  at  another  point. 
Fusselman  v.  Yellowstone  Valley  Land, 
etc.  Co.  (Mont.)  1918B-420.     (Annotated.) 

c.    Province  of  Court  and  Jury. 

94.  In  an  action  for  personal  injuries  by 
the  patron  of  an  amusement  device  at  a 
state  fair  against  the  fair  association,  it^ 
general  concessionary,  and  the  latter's  sub- 
concessionary,  where  plaintiff's  ticket  pur- 
ported to  be  issued  by  the  general  con- 
cessionary, the  question  whether  he  or  the 
subconcessionary  was  the  immediate  oper- 
ator of  the  device  is  for  the  jury.  Hart- 
man  V.  Tennessee  State  Fair  Assoc. 
(Tenn.)  1917D-931.  (Annotated.) 

95.  Expert  Evidence — Subjects  of  Opin- 
ion Evidence  —  Ultimate  Issue  in  Case. 
Where  witnesses  stated  that  it  is  not  gen- 
erally necessary  to  erect  barriers  on  the 
sidewalk  to  prevent  persons  from  using  it 
when  painting  from  a  suspended  stage, 
and  that  he  had  never  seen  a  man  fall  from 
a  stage,  his  opinion  as  to  whether  the  sus- 
pension of  the  stage  above  the  sidewalk 
made  the  sidewalk  dangerous  or  more  dan- 


642 


DIGEST. 

1916C— 1918B. 


gerous  is  incompetent,  since  it  is  the  very" 
question  the  jury  has  to  decide  on  all  the 
evidence  in  the  case.  Weilbacher  v.  J.  W. 
Putts  Co.  (Md.)   19160-115. 

96.  Negligence  in  Sunning  Sawmill.  In 
an  action  for  damages  to  plaintiff's  timber 
from  the  fire  caused  by  delendant's  engine 
while  running  a  sawmill  on  the  premises, 
evidence  is  held  to  require  the  submission 
of  defendant's  negligence  to  the  jury. 
Hodges  V.  Baltimore  Engine  Co.  (Md.) 
19170-766.  (Annotated.) 

97.  Contributory  Negligence.  Where 
reasonable  men,  acting  within  the  limits 
prescribed  by  law,  could  reach  different 
conclusions  from  the  admitted  or  estab- 
lished facts,  questions  of  contributory  neg- 
ligence are  for  the  jury.  Mahlstedt  v. 
Ideal  Lighting  Co.  (111.)  1917D-209. 

98.  The  question  of  contributory  negli- 
gence becomes  one  of  law  for  the  review- 
ing court  only  when  the  undisputed  evi- 
dence is  so  conclusive  that  it  is  clearly 
seen  that  the  accident  resulted  from  the 
negligence  of  the  injured  person,  and  could 
have  been  avoided  by  the  use  of  reasoaabls 
precautions.  Mahlstedt  v.  Ideal  Lighting 
Co.  (111.)   1917D-209. 

99.  Whether  deceased,  killed  by  explo- 
sion of  gas  from  a  gasoline  lighting  system 
sold  to  him  and  installed  in  his  house  by 
defendant,  was  guilty  of  contributory  neg- 
ligence in  not  covering  the  carburetor,  and 
in  lighting  a  match  in  the  cellar,  is  held 
to  be,  under  the  evidence,  a  question  for 
the  jury.  Mahlstedt  v.  Ideal  Lighting  Co. 
(111.)  1917D-209. 

100.  When  the  evidence  in  regard  to 
contributory  negligence  is  such  that  dif- 
ferent minds  may  reasonably  draw  differ- 
ent conclusions,  either  as  to  the  facts  or 
the  conclusions  to  be  drawn  from  the 
facts,  then  the  question  of  contributory 
negligence  is  one  of  fact  to  be  determined 
by  the  jury.  McGregor  v.  Great  Northern 
B.  Co.  (N.  Dak.)  1917E-141. 

101.  The  fact  that  plaintiff  attempted  to 
drive  along  a  street  which  was  open  for 
travel  and  was  the  one  he  usually  used, 
upon  which  a  steam  roller  was  standing, 
and  that  after  his  horse  shied  at  the  roller 
he  attempted  to  lead  it  past,  does  not  show 
contributory  negligence,  as  a  matter  of 
Itiw,  but  it  is  a  question  for  the  jury 
whether  his  acts  were  those  of  a  reason- 
able man  under  the  circumstances.  Tan- 
ner V.  Cnlpeper  Construction  Co.  (Va.) 
1917E-794. 

102.  Shooting  in  Self-defense.  Ordinar- 
ily,  where  a  person,  in  lawful  self-defense, 
slioots  at  an  assailant,  and,  missiug  him,  ac- 
cidentally wounds  an  innocent  bystander^ 
he  is  not  liable  for  the  injury,  if  guilty 
of  no  negligence;  and  the  question  of 
negligence  is  for  the  jury.  Shaw  v.  Lord 
(Okla.)   1916C-1147.  (Annotated.) 


103.  Capacity  of  Injured  Plaintiff  to 
Work.  The  value  of  evidence,  in  a  per- 
sonal injury  action,  that  plaintiff  is  unable 
to  do  as  much  and  as  hard  work  since  as 
before  the  injury  is  for  the  jury,  though 
plaintiff  is  also  shown  to  have  a  pulmonary 
disease.  Miller  v.  Delaware  Eiver  Trans 
Co.  (N.  J.)   1916C-165. 

105.  Wharves — Personal  Injury  from  De- 
fect— Liability.  Whether  a  county  main- 
taining a  public  dock  was  negligent  in 
leaving  a  fender  pile  loose  and  insecure,, 
contrary  to  its  own  plan  of  construction 
adopted  three  or  four  years  before  an  ac- 
cident to  a  person  on  the  dock,  held  fur  th© 
jury.  Gregg  v.  King  County  (Wash.) 
19160-135.  (Annotated.) 

106.  In  an  action  for  personal  injury 
from  falling  into  the  open  space  between 
the  two  floats  constituting  a  public  muni- 
cipal dock,  it  is  held  that  the  city's  negli- 
gence was  for  the  jury.  Harris  v.  B  emer 
ton  (Wash.)  1916C-160.  (Annotated.) 

107.  Evidence,  in  an  action  for  falling: 
into  opening  in  municipal  dock,  held  ta 
make  the  plaintiff's  contributory  negli- 
gence a  question  for  the  jury.  Harris  ▼. 
Bremerton  (Wash.)   1916C-160 

(Annotated.) 

108.  Negligence  —  Question     for     Jury. 

VvTaere  the  facts  are  such  that  reasonable 
men  may  differ  as  to  whether  an  act  was- 
ncgligent,  the  question  is  for  the  jury. 
Jonas  V.  South  Covington,  etc.  St.  E.  Co. 
(Ky.)    1916E-965. 

108a.  The  question  of  negligence  is  for 
the  jury  where  minds  of  reasonable  men 
may  differ  as  to  its  existence.  Gregg  v. 
King  County    (Wash.)    1916C-135. 

109.  In  an  action  by  one  hurt  when  he 
was  attempting  to  change  the  course  of  a 
runaway  motor  truck,  the  question  of  plain- 
tiff's negligence  is  held  to  be  for  the  jury. 
American  Express  Co.  v.  Terry  (Md.) 
19170-650.  (Annotated.) 

110.  When  the  question  is  whether  a  per- 
son has  been  guilty  of  negligence,  i.  e., 
whether  he  has  used  due  care  under  the 
circumstances,  or  has  acted  as  a  prudent 
man  would  have  acted,  or  whatever  the 
form  or  phrase  may  be,  the  evidence  is  ta 
be  addressed  to  the  jury,  for  them  to  de- 
termine, and  in  the  absence  of  some  error 
or  mistake,  their  verdict  will  not  be  dis- 
turbed. Boylan  v.  New  Orleans  E.  etc.  Co. 
(La.)  191SA-287. 

111.  The  credibility  of  plaintiff's  testi- 
mony on  whether  she  was  in  the  exercise 
of  due  care  at  the  time  of  her  injury  is 
held  to  be  for  the  jury,  though  it  was 
shaken  by  cross-examination.  Gallagher 
V.  Murphy  (Mass.)  1917E-594. 

d.     Instructions. 

112.  In  an  action  against  the  operator  of 
a  scenic  railway,  where  the  court  charged 


NEGLIGENCE. 


643 


that  it  was  bound  to  exercise  the  highest 
degree  of  care  as  were  common  carriers, 
defendant,  if  fearful  that  the  jury  might 
apply  tests  of  care  applicable  only  to  steam 
or  electric  railways,  should  request  explan- 
atory charges.  Best  Park  etc.  Co.  v.  Rol- 
lins   (Ala.)    1917D-929.  (Annotated.) 

113.  Failure  to  Submit  Matters  not 
Pxoved.  In  an  action  for  damages  sus- 
tained in  an  automobile  collision,  the  court 
submitted  the  special  question  whether  de- 
fendant wantonly,  wilfully,  and  malici- 
ously ran  his  automobile  upon  and  against 
plaintiff's  automobile,  and  in  this  connec- 
tion charged  that  it  was  plaintiff's  conten- 
tion that  defendant  suddenly  turned  his 
steering  wheel  and  ran  into  plaintiff,  and 
defendant's  contention  that  plaintiff's  car 
struck  defendant's  car  without  defendant's 
fault;  that  there  was  nothing  showing  that 
the  collision  happened  in  any  other  way; 
that  it  was  conceded  that,  if  plaintiff's 
claim  was  correct,  then  the  only  conclu- 
sion drawn  from  that  was  that  defendant 
wilfully,  intentionally,  and  maliciously  ran 
his  car  against  that  of  plaintiff;  and  that 
this  was  the  meaning  of  the  question  sub- 
mitted. The  evidence  supported  the  state- 
ment that,  if  the  accident  happened  as 
plaintiff  claimed,  the  only  conclusion  that 
could  be  drawn  was  that  defendant  acted 
wilfully,  intentionally,  and  maliciously. 
Held,  that  the  instruction  was  not  erron- 
eous because  of  the  failure  to  tell  the  jury 
what  would  constitute  gross  negligence; 
there  being  no  necessity  for  any  abstract 
discussion  of  gross  negligence.  Dishmaker 
V.  Heck  (Wis.)  1917A-400. 

114.  Presumption  of  Negligence  from  In- 
jury. An  instruction  that  injury  from  the 
operation  of  a  car  raises  a  presumption  of 
negligence  on  the  part  of  the  company,  and 
that  the  burden  is  on  the  company  to  prove 
itself  free  from  negligence  and  to  show 
contributory  negligence  of  the  passenger, 
is  correct.  Froeming  v.  Stockton  Electric 
E.  €o.  (Cal.)  1918B-408. 

115.  Burden  of  Proof,  Under  the  rule 
that,  where  plaintiff's  evidence  establishes 
his  contributory  negligence,  the  burden  of 
proving  it  is  removed  from  defendant,  an 
instruction  merely  that  if  the  jviry  found 
"from  the  evidence"  that  plaintiff  was  con- 
tributorily  negligent  sufficiently  indicates 
that  all  evidence,  plaintiff's  as  well  as  de- 
fendant's should  be  examined  on  that  ques- 
tion. Froeming  v.  Stockton  Electric  R.  Co. 
(Cal.)  1918B-408. 

116.  Injuring  Bystander  Wliile  Acting  in 
Self-defense,  It  is  error  to  instruct  the 
jury  in  effect  that  one  who,  in  his  lawful 
self-defense,  at  close  range  shoots  at  an 
assailant,  and,  missing  him,  accidentally 
wounds  a  bystander,  who,  at  the  time,  is 
1o  one  side  of  the  line  of  true  aim  at  such 
assailant,  and  a  few  feet  away  from  him, 
is,  in  an  action  for  damages,  liable  to  such 
bystander  if  he  knew  or  is  chargeable  with 
knowledge    of    the    presencb    of    such    by- 


stander, as  if  this,   of  itself,   constituted 

■  want  of  due  care,  and  therefore  was,  per 

se,   actionable   negligence.     Shaw   v.   Lord 

(Okla.)  1916C-1147.  (Annotated.) 

117.  Falling  Coal  Bucket.  The  refusal 
to  submit  to  the  jury  the  question  whether 
ordinary  care  or  the  precaution  usually  ex- 
ercised upon  the  dock,  was  exercised,  and' 
whether  decedent  knew  that  the  rig  had 
started,  and  that  coal  was  being  hoisted 
before  the  hoisting  of  the  particular  bucket 
from  which  coal  fell  and  killed  him  is  not 
erroneous,  where  they  do  not  cover  any 
facts  put  in  issue  by  the  pleadings,  Tay- 
lor V,  Northern  Coal,  etc.  Co.  (Wis.) 
1916C-167.  (Annotated.) 

118.  Fall  Into  Elevator  Shaft — Contribu- 
tory Negligence,  In  an  action  for  injuries 
to  plaintiff's  wife  caused  by  a  fall  as  she 
was  entering  an  elevator  in  a  store  where, 
under  the  evidence,  it  is  not  clear  whether 
she  exercised  a  proper  degree  of  care,  this 
question  is  properly  submitted  to  the  jury. 
Blair  v.  iSeitner  Dry  Goods  Co.  (Mich.) 
1916C-882. 

119.  Misstatement  of  Fact — ^Reference  to 
Speed  of  Truck  as  "Great."  Plaintiff  was 
injured  in  trying  to  change  the  course  of  a 
motor  truck,  which,  when  the  driver  dis- 
mounted to  deliver  a  parcel,  had  started 
and  was  runnning  down  a  slight  grade  at 
the  rate  of  three  or  four  miles  an  hour. 
The  speed  was  accelerating,  and  the  truck 
was  pointed  towards  wagons,  behind  which 
v/ere  men  and  horses.  It  is  held  that  a 
charge  that  if  the  defendant  negligently 
permitted  the  truck  to  drive  itself  at  a 
"great"  rate  of  speed,  in  such  a  manner  as 
to  endanger  the  lives  and  property  of  per- 
sons, and  plaintiff,  because  of  such  con- 
duct, while  acting  in  a  reasonable  manner, 
was  injured,  verdict  should  be  for  plain- 
tiff, was  warranted  under  the  question,  the 
expression  "great"  being  used  in  its  com- 
parative sense,  and  not  as  indicating  un- 
usual rapidity.  American  Express  Co.  v. 
Terry  (Md.)  1917C-650, 

120.  Assumption  of  Facts,  An  instruc- 
tion that,  if  the  jury  believe  deceased, 
while  in  the  exercise  of  ordinary  care  for 
her  own  safety,  lost  her  life  "by  and 
through  the  negligence  of  defendant  as 
charged  in  the  declaration,"  they  should 
find  defendant  guilty,  does  not  assume  that 
defendant  was  so  guilty  of  negligence,  and 
submit  only  the  question  of  whether  de- 
ceased lost  her  life  by  and  through  such 
negligence.  Wende  v.  Chicago  City  R.  Co. 
(HI.)    1918A-222, 

121.  Last  Clear  Chance  Doctrine.  In  an 
action  for  injuries  to  plaintiff's  delivery 
wagon  by  being  struck  by  defendant's 
street  car,  an  instruction  that  it  was  the 
duty  of  defendant's  eniploj-ees  in  charge  of 
the  car  to  exercise  ordinary  care  to  deter- 
mine whether  plaintiff's  wagon  was  in  a 
place  of  danger  and  that,  if  they  knew  it 
vas  in  such  place  of  danger,  defendant  was 


644 


negligent  if  it  failed  to  stop  the  car  in 
time  to  avoid  injury,  is  not  an  instruction 
lipon  the  last  fair  chance  doctrine.  David- 
eon  Bros.  Co.  V.  Des  Moines  City  R.  Co. 
(Iowa)   1&17C-1226.  (Annotated.) 


e.    Verdict  or  Findings. 

122.  The  rule  that  the  existence  of  neg- 
ligence cannot  be  left  entirely  to  conject- 
ure does  not  conflict  with  the  rule  that  a 
verdict  should  not  be  disturbed  where  rea- 
Eonable  men  may  fairly  differ  on  the  ques- 
tion of  negligence.  Adams  Express  Co.  v. 
Allendale  Farm  (Va.)  1916D-894. 

123.  Infant  Stealing  Ride  on  Vehicle. 
Where,  in  an  action  for  injuries  to  a  thir- 
teen year  old  child  from  jumping  or  falling 
from  defendant's  moving  wagon,  it  appears 
that  he  was  endeavoring  to  steal  a  ride, 
and  there  is  evidence  that  the  driver 
struck  or  struck  at  him  with  the  whip  to 
make  him  get  off,  and  that  in  doing  so  the 
child  fell  and  was  injured,  it  is  error  to 
direct  a  verdict  for  defendant.  McCabe  v. 
Kain  (Pa.)  1917D-378.  (Annotated.) 

NEGOTIABUJTT. 
See  Bills  and  Notes,  20-27. 

NEGOTIABLE  INSTRUMENTS. 

See  Bills  and  Notes;  Checks;   Letters  of 
Credit. 

NEGOTIATE; 
Meaning,  see  Bills  and  Notes^  7. 


NEGOTIATED. 
Meaning,  see  Bills  and  Notes,  28. 

NEGROES. 
See  Colored  Persons. 


NEUTRAMTT. 

Bight  to  bring  prize  to  neutral  port,  see 

War,  2-4. 
Right  of  belligerent  to  requisition  neutral 

property,  see  War,  5. 

NEWLY  DISCOVERED  EVIDENCE. 

As  ground  for  review,  see  Equity,  ."^9. 
Ground  for  new  trial,  see  New  Trial,  19-26. 


DIGEST. 
1916C— 1918B. 

Preventing  publication  of  false  political 
matter,  see  Injunctions,  8. 

Reading  papers  as  disqualifying  juror,  see 
Jury,  17,  18. 

Beading  by  jurors  as  error,  see  Jury,  40. 

Suppression  of  paper  as  military  measure, 
see  Martial  Law,  1. 

Publication  in  german  paper  insufficient, 
see  Trees  and  Timber,  2. 

Prejudicial  articles  as  ground  for  continu- 
ance, see  Trial,  10,  11. 

Derogatory  article  as  ground  for  change 
of  venue,  see  Venue,  4. 

1.  What  Constitutes — Single  Edition  of 
Newspaper.  A  noon  edition  of  the  Chicago 
Evening  Post  containing  substantially  the 
same  editorial  and  general  news  matter  as 
its  other  six  daily  editions  and  sold  |;en- 
erally  at  news  stands,  hotels,  etc.,  is  a 
"newspaper  of  general  circulation"  within 
Kurd's  Rev.  St.  1915-16,  c.  100,  §  5,  re- 
quiring certain  notices  to  be  published  in 
a  newspaper.     People  v.  Snow   (111.) 


NEWSPAPER. 


65, 


See  Libel  and  Slander,  5.  23,  29,  30,  37, 
77,  86.  116,  124,  144,  153. 

Liberty    of    the    press,    see    Constitutional 
Law,  82,  83. 

Comment  as  contemptuous,  see  Contempt, 
4-6. 

.Judicial    notice   of   publication,    see   Evi- 
dence, 8. 


such 
1917E-992. 


Publication    in 
pp.per    as    sufficient 
994. 


(Annotated.) 
Note. 

single   edition   of   news- 
publication.     1917Er- 


NEW  TRIAL. 

1.  Power  of  Court,  644. 

2.  Grounds,    645. 

a.  In  General,  645. 

b.  Newly   Discovered  Evidence,   646. 

(1)  In  General,  646. 

(2)  Materiality  of  Evidence,  646, 

(3)  Impeaching  Evidence,  646. 

(4)  Diligence,   646. 

(5)  Discretion  of  Court,  646. 

3.  Motion  for  New  Trial,  647. 

a.  Time  of  Motion  and  Hearing,  647. 

b.  Notice,  647. 

c.  Petition  or  Affidavit,  647. 

d.  Amendment  of  Motion,  647. 

e.  Evidence,   647. 

f.  Order,   Form   and   Contents,   648. 

g.  Effect  of  Limitation,  C48. 
h.  Review  of  Decision,  648. 

Motion  caniidt  be  made  in  appellate  court, 
see  Appeal  and  Error,  8. 

Appeal  from  decision  on  motion,  see  Ap- 
peal and  Error,  35,  36. 

Necessitv  of  exception  to  ruling,  see  Ap- 
peal and  Error,  389-392. 

Sufficiency  of  specification  of  error  for  re- 
view, see  Appeal  and  Error,  432. 

Grant  of  new  trial  by  appellate  court,  see 
Appeal  and  Error,  462-469. 

As  of  right,  see  Ejectment,  7-10. 

Prohibition  to  prevent  reconsideration  of 
order,  see  Prohibition,  1. 

Computation  of  time  for  filing  motion,  see 
Time,  3. 

1.     POWER  OF  COURT. 

1.  Discretion  as  to  Grant  of  Motion.  A 
motion  for  new  trial  on  the  ground  of 
newly    discovered    evidence    is    addressed 


NEW  TRIAL. 


645 


largely  to  the  sound  judicial  discretion  of 
the  trial  court,  and  the  appellate  court  will 
not  interfere  unless  a  manifest  abuse  of 
such  discretion  is  shown.  McGregor  v. 
Great  Northern  E.  Co.  (N.  Dak.)  1917E- 
141. 

2.  Power  of  Court  to  Grant  on  Own  Mo- 
tion. Where  the  court  discovers  that  it 
erroneously  sustained  a  demurrer  to  the 
answer,  it  may  at  any  time  while  it  has 
jurisdiction  of  the  cause  grant  a  new  trial 
on  its  own  motion.  Pullen  v.  Eugene 
(Ore.)  1917D-933. 

Note. 
Power  of  court  to  open  or  raeate  order 
determining  motion  for  new  trial.     I917C- 
1151. 

2.     GROUNDS, 
a.    In   General. 

3.  Effect  of  Statute  Specifjring  Grounds. 
L.  O.  L.  §  174,  prescribing  grounds  for 
granting  new  trial,  does  not  restrict  the 
court  to  the  grounds  specified.  Pullen  v. 
Eugene  (Ore.)  1917D-933. 

4.  Error  of  Law.  On  motion  for  new 
trial,  the  court  can  only  re-examine  the 
facts,  and  should  not  consider  errors  of 
law.     Pullen  v.  Eugene   (Ore.)    1917D-933. 

5.  Erroneous  Admission  of  Secondary 
Evidence.  In  an  action  for  merchandise 
sold  and  delivered,  the  error  in  permitting, 
over  proper  objection,  the  seller  to  intro- 
duce in  evidence  copies  of  invoices  which 
he  claimed  he  had  sent  to  the  buyer  is 
sufficient  to  support  the  discretion  exer- 
cised in  granting  a  new  trial  after  verdict 
for  the  seller.  Herman  &  Ben  Marks  v. 
Haas  (Iowa)   1917D-543.  (Annotated.) 

6.  Erroneous    Admission    of    Evidence, 

Where  the  propriety  of  admitting  evidence 
in  favor  of  the  successful  party  is  at  least 
doubtful,  the  doubt  should  be  resolved  in 
support  of  the  action  of  the  trial  court 
granting  a  new  trial.  Herman  &  Ben 
Marks  v.  Haas  (Iowa)  1917D-543. 

(Annotated.) 

7.  Grant  as  of  Right — Scope  of  Statute — 
Joining  Cause  of  Action  not  Within  Stat- 
ute. Burns'  Ind.  Ann.  St.  1908,  §  1110,  per- 
mitting a  new  trial  as  of  right  in  a  suit 
to  recover  real  estate,  in  an  action  to  quiet 
title  to  real  estate,  and  in  a  partition  pro- 
ceeding wherein  the  title  to  the  property 
was  involved,  does  not  apply  where  two  or 
more  substantive  causes  of  action  proceed 
to  judgment  in  the  same  cause,  one  en- 
titling the  losing  party  to  a  new  trial  as 
of  right,  and  the  other  not;  and  a  motion 
for  a  new  trial  without  cause  will  be  de- 
nied. Gilchrist  v.  Hatch  (Ind.)  1917E- 
1030. 

8.  Under  such  statute  plaintiff,  in  an  ac- 
tion to  cancel  a  deed  of  land  obtained 
from    him    by    defendant's    fraud    and    to 


quiet  title  in  himself,  setting  out  the  con- 
tract for  the  purchase  of  shares  in  a  com- 
pany in  payment  for  which  the  conveyance 
was  made  merely  to  show  the  deception 
practiced  upon  him  and  not  to  establislir 
any  rights  thereunder,  is  entitled  to  a  new 
trial  as  a  matter  of  right,  though  there  is 
no  such  right  in  an  action  brought  merely 
to  enforce  or  cancel  a  lien  on  realty  or  a 
contract  in  relation  thereto.  Gilchrist  v. 
Hatch  (Ind.)  1917E-1030. 

9.  In  a  cause  where  plaintiff  sought  to 
cancel  a  deed  obtained  from  him  by  th© 
fraud  of  defendants,  and  to  quiet  title  in 
himself,  and  in  which  the  ultimate  issue 
was  that  of  title,  and  where  a  defendant 
filed  a  cross-complaint  seeking  to  quiet  his 
title  to  the  land  in  controversy  and  for 
possession  and  damages  recoverable  by  a 
landlord  against  a  defendant  wrongfully 
holding  over,  plaintiff's  right  to  a  new 
trial,  under  Burns'  Ind.  Ann.  St.  1908, 
§  1110,  giving  a  new  trial  as  of  right  in  ac- 
tions to  recover  realty  or  quiet  title,  is 
not  abridged  by  the  form  of  the  issues  or 
barred  by  the  cross-eomplaint  setting  up 
the  landlord's  suit,  as  to  which  no  such 
right  to  a  new  trial  exists.  Gilchrist  v. 
Hatch   (Ind.)   1917E-1030. 

10.  Granting  New  Trial  on  Single  Issue. 
To  reverse  and  grant  a  new  trial  on  the 
issue  of  damages  only  does  n(Jt  deprive  ap- 
pellant of  property  without  due  process  of 
law.  Yazoo,  etc.  E.  Co.  v.  Scott  (Miss.) 
1917E-880.  (Annotated.) 

11.  To  reverse  and  grant  a  new  trial  on 
the  issue  of  damages  only  does  not  violate 
Miss.  Const.  1890,  §  31,  making  the  right 
of  trial  by  jurv  inviolate.  Yazoo,  etc.  E. 
Co.  V.  Scott  (Miss.)  1917E'-880. 

(Annotated.) 

12.  Disqualification  of  Juror — As  Ground 
fcr  New  Trial.  In  a  prosecution  for  mur- 
der, the  fact  that  a  juror  on  the  day  be- 
fore the  trial  stated  that  "he  had  heard 
much  £fbout  the  case  and  he  thought  it  was 
a  bad  case"  is  insufficient  to  authorize  a 
new  trial  on  the  ground  that  the  juror  was 
disqualified  from  acting  because  of  any 
opinion  he  had  formed  as  to  defendant's 
guilt.  Chilton  v.  Commonwealth  (Ky.) 
1918B-851. 

13.  Necessity  of  Giving  in  Open  Court — 
Prejudice.  Where  the  judge  in  chambers 
after  submission  of  the  cause  instructed 
the  jury  in  writing  at  their  request,  in  the 
absence  of  parties  and  counsel,  as  to  a 
matter  which  was  not  then  or  since  dis- 
closed, except  that  the  judge  considered 
the  question  immaterial,  such  action  is 
error  requiring  a  new  trial,  not  being 
within  the  provisions  of  St.  1913,  c.  716, 
§  1,  providing  that  no  new  trial  shall  be 
granted  for  any  error  in  pleading  or  pro- 
cedure if,  in  the  opinion  of  the  judge,  on 
motion  for  new  trial,  the  error  did  not  in- 
juriously  affect   substantial  rights   of  the 


646 


V.  Lewis    (Mass.)    1917A- 
(Annotated.) 


parties.    Lewis 
395. 

14.  Verdict  Sustained.  It  is  held  that 
the  court  did  not  err  in  denying  appel- 
lant's motion  for  a  new  trial,  and  that  the 
evidence  is  sufficient  to  support  the  ver- 
dict of  the  jury  and  judgment  of  the  court. 
McAlinden  v.  St  Maries  Hospital  Associa- 
tion (Idaho)  1918A-380. 

15.  Argument  of  Counsel.  When  counsel 
in  his  argument  to  the  jury  assumes  that 
prior  remarks  of  opposing  counsel  justify 
and  make  necessary  the  reply  which  he  is 
making  thereto,  opposing  counsel  may  by 
objection  take  the  ruling  and  instructions 
of  the  court  thereon.  If  he  makes  no  ob- 
jection and  appears  to  acquiesce  in  the  as- 
sumption of  counsel,  he  will  not  after  ver- 
dict ordinarily  be  granted  a  new  trial  be- 
cause of  alleged  impropriety  of  his  oppo- 
nent's argument.  Kriss  v.  Union  Pacific 
R.  Co.  (Neb.)  1918A-1122.       (Annotated.) 

16.  Statements  of  counsel  in  argument 
to  the  jury  are  held  not  to  warrant  the 
granting  of  a  new  trial.  Northern  Trust 
Co.  V.  Bruegger  (N.  Dak.)  1917E-447. 

17.  Prejudicial  Error.  Where  prejudicial 
errors  are  committed  on  the  trial  against 
each  party,  either  can  obtain  a  new  trial 
in  case  of  an  adverse  verdict.  Herman  & 
Ben  Marks  v.  Haas  (Iowa)  1917IX-543. 

18.  Insuffldeacy  of  Evidence.  Where  the 
evidence  warrants  the  submission  of  issues 
of  fact  to  the  jury,  the  trial  court  will  not, 
on  motion  for  new  trial,  disturb  the  ver- 
dict because  against  the  evidence,  though 
the  preponderance  is  against  the  verdict. 
Philadelphia,  etc.  R.  Co.  v.  Gatta  (Del.) 
1916E-1227. 

Notes. 

Conduct  of  counsel  in  getting  inadmis- 
sible evidence  before  jury  as  ground  for 
new  trial.     1917A-441. 

Admission  of  incompetent  evidence  as 
ground  for  granting  of  new  trial  Hy  trial 
court.     1917D-545. 

Bias  of  judge  existing  prior  to  trial  as 
ground  for  reversal  in  absence  of  showing 
of  prejudice  at  trial.     1917E-954. 

Allowing  recreation  to  jury  during  trial 
as  ground  for  new  trial.     1918B-855. 

b.     Newly  Discovered  Evidence. 
(1)     In   General. 

19.  Where  plaintiff  sought  to  recover  on 
account  of  defendants'  charges  that  he  had 
made  a  criminal  assault  upon  a  woman, 
newly  discovered  evidence  that  plaintiff 
had  received  replies  to  letters  making  in- 
quiries concerning  the  woman  warrants  a 
new  trial,  where  plaintifif  testified  that  he 
received  no  such  replies,  and  that  the 
woman  was  a  mere  dummy.  Egan  v  Dot- 
son  (S.  Dak.)  1917A-296. 


DIGEST. 

1916C— 1918B. 

(2)     Materiality  of  Evidence. 

20.  Showing  Insufficient.  The  showing 
for  a  new  trial  on  affidavits,  on  the  grounds 
of  surprise  and  newly  discovered  evidence, 
is  held  to  be  insufficient.  Northern  Trust 
Co.  V.  Bruegger   (N.  Dak.)   1917E-447. 


(3)     Impeaching  Evidence. 

21.  Matter  of  Impeaclunent.  Under  Code 
Cr.  Proc.  §  465,  subd.  7,  forbidding  a  new 
trial  for  newly-discovered  evidence  im- 
peaching or  discrediting  a  witness,  that 
witness  for  the  state  signed  affidavits 
while  intoxicated  inconsistent  with  his  tes- 
timony on  the  trial,  which  he  repudiated 
by  counter  affidavits,  is  not  ground  for  new 
trial.     People  v.  Becker  (Kan.)  1917A-600. 

(4)     Diligence. 

22.  Diligence  Insufficient.  A  carrier 
against  which  a  judgment  had  been  ren- 
dered for  the  loss  of  freight  sought  a  new 
trial  for  newly  discovered  evidence,  and 
showed  that  the  loss  was  reported  in  De- 
cember, 1913,  and  that  an  investigation 
was  at  once  started  to  find  the  article  de- 
scribed in  the  bill  of  lading,  as  a  "model 
plow";  that  the  agents  of  the  carrier 
looked  for  something  like  a  plow  and  could 
not  find  it;  that  the  traveling  claim  ad- 
juster after  the  trial  found  in  unclaimed 
freight  packages,  in  a  warehouse  between 
the  initial  and  terminal  stations,  a  small 
box  which  contained  the  model  plow. 
When  delivered  for  shipment  the  box  was 
plainly  marked,  "Model  Plow  or  Soil  Pul- 
verizer." It  is  held  that  denial  of  new 
trial  was  within  the  court's  discretion.  St. 
Louis,  etc.  E.  Co.  v.  Dague  (Ark.)"  1917B- 
577. 

23.  Newly  Discovered  Evidence — Show- 
ing of  Diligence.  An  affidavit,  presented 
to  show  diligence,  in  support  of  a  motion 
for  new  trial  on  the  ground  of  newly  dis- 
covered evidence,  should  specifically  state 
the  acts  performed  in  order  that  the  court 
may  determine  what  diligence  was  used, 
and  mere  general  assertions  of  diligence 
are  insufficient,  as  they  constitute  only  the 
opinions  or  conclusions  of  the  affiant.  Mc- 
Gregor V.  Great  Northern  E.  Co.  (N.  Dak.) 
1917E-141. 

24.  A  new  trial  should  not  be  granted  to 
admit  alleged  newly  discovered  evidence, 
when  it  develops  on  the  trial  of  the  motion 
tl'at  the  witnesses  whose  testimony  is  pro- 
posed to  be  offered  in  evidence  on  a  second 
trial  could  have  been  produced  on  the  first 
trial,  and  that  the  defendant  knew  that 
the  witnesses  were  in  possession  of  the 
facts,  if  they  were  facts,  to  which  they 
propose  to  testify  on  a  second  trial.  State 
V.  Pallet  (La.)  1918A-102. 

(5)     Discretion  of  Court. 

25.  Whether  a  new  trial  shall  he  gr^nt^d 
to  let  in  after-discovered  evidence  is  a  mat- 


NEW  TRIAL. 


64^ 


ter  for  the  trial  court,  whose  ruling  will 
rot  be  reversed  unless  for  clear  abuse  of 
■discretion.  Hunter  v.  Bremer  (Pa.)  1918A- 
152. 

3.     MOTIOIST  FOR  NEW  TEIAL. 
a.     Time  of  Motion  and  Hearing. 

26.  Time  for  Filing  Motion.  On  the 
trial  the  jury  made  special  findings  of  fact 
without  rendering  a  general  verdict.  The 
court  discharged  the  jury,  with  consent  of 
the  parties,  and  took  the  case  under  ad- 
visement. The  plaintiff  excepted  to  the 
special  findings,  and  immediately  filed  a 
motion  to  set  them  aside  and  for  a  new 
trial.  After  considering  the  matters  of 
law  for  some  days,  the  court  rendered  a 
judgment  in  substance  as  requested  by  the 
defendant.  Plaintiff  within  three  days 
filed  a  motion  for  a  new  trial.  Held,  that 
such  motion  was  in  time,  and  was  a  suffi- 
cient compliance  with  tne  rule.  Dinneen 
V.  American   Ins.   Co.    (Neb.)    1917B-1246. 

27.  Waiver  of  Failure  to  File  Motion  in 
Time.  Consent  or  waiver  by  the  people  as 
to  filing  a  motion  for  new  trial  after  the 
time  limited  by  Comp.  Laws,  §  11963.  is 
immaterial;  such  statute  making  jurisdic- 
tion to  grant  a  new  trial  dependent  on  sea- 
sonable filing  of  the  motion.  Nichols  v. 
Houghton  Circuit  Judge  (Mich.)  1917D- 
100. 

28.  Eflfect  of  Failure  to  File  in  Time — 
Power  of  Court  of  Own  Motion.  Comp. 
Laws,  §  11963,  providing  that  the  court  in 
which  an  indictment  has  been  tried  may, 
■"at  the  same  term  or  at  the  next  term 
thereafter,"  on  motion  of  defendant,  grant 
a  new  trial  for  any  cause  for  which  by  law 
a  new  trial  may  be  granted,  or  when  it 
shall  appear  to  the  court  that  justice  has 
not  been  done,  gives  such  court  no  power 
to  grant  a  new  trial  on  its  motion  at  a 
time  later  than  defendant  has  a  right  to 
file  a  motion.  Nichols  v.  Houghton  Cir- 
cuit Judge  (Mich.)  1917D-100. 

b.    Notice. 

29.  Sufficiency  of  Notice.  Notice  of  in- 
tention, though  in  terms  to  more  the  court 
to  vacate  the  judgment,  instead  of  the  de- 
cision, and  to  grant  a  new  trial,  is  suffi- 
cient.    Fearon  v.  Fodera  (Cal.)  1916D-312. 

c.     Petition  or  Affidavit. 

30.  Statement  of  Grounds.  In  a  motion 
for  a  new  trial  it  is  sufficient  to  set  forth 
the  grounds  in  the  language  of  the  statute, 
and  where  such  a  motion  recites  "errone- 
ous rulings"  as  one  of  its  grounds,  appel- 
lant can  have  a  review  of  any  ruling  made 
or.  the  trial  respecting  the  admission  of 
evidence.  Spadra-Clarksville  Coal  Co.  v. 
Nicholson   (Kan.)   1916D-652. 

31.  Proof  of  Misconduct  of  Jury — Con- 
flicting Affidavits.     Wihere  a  motion  for  a 


new  trial  is  supported  by  an  afRdavit  of 
certain  jurors  that  the  jury  commented  On 
the  defendant's  failure  to  testify,  but  nine 
other  jurors  make  affidavit  that  the  only 
mention  was  a  statement  by  one  juror, 
after  the  reading  of  the  instructions,  that 
they  could  not  consider  the  failure  to  tes- 
tify, the  motion  for  new  trial  is  properly 
overruled.  Mason  v.  State  (Tex.)  1917D- 
1094. 

32.  Showing  Required.  Where  a  motion 
for  a  new  trial  is  based  on  fhe  ground  of 
newly  discovered  evidence,  such  motion 
must,  in  addition  to  the  affidavit  of  the  ap- 
plicant, be  supported  by  the  affidavits  of 
the  new  witnesses,  which  must  set  forth 
the  newly  discovered  evidence  and  the 
facts  to  which  such  witnesses  will  testify, 
or  a  satisfactory  excuse  must  be  given  for 
not  obtaining  such  affidavits.  State  v. 
Klasner  (N.  Mex.)   1917D-824. 

33.  Affidavit  in  Motion  —  Newly  Dis- 
covered  Evidence  —  Diligence.  It  is  not 
enough  for  the  affidavit  for  a  new  trial 
for  newly  discovered  evidence  to  allege 
diligent  inquiry  before  trial;  but  the  par- 
ticular efforts  made  must  be  stated.  Fus- 
selman  v.  Yellowstone  Valley  Land,  etc. 
Co.  (Mont.)  1918B-420. 

34.  Newly  Discovered  Evidence  —  Affi- 
davit Showing  Diligence — Necessity.  In  a 
prosecution  for  murder,  where  a  new  trial 
is  sought  for  newly  discovered  evidence, 
the  defendant  must  file  his  own  affidavit 
stating  that  he  did  not  know,  and  by  the 
exercise  of  reasonable  diligence  could  not 
have  known,  of  the  existence  of  the  newly 
discovered  evidence  until  after  the  trial 
was  concluded.  Chilton  v.  Commonwealth 
(Ky.)  1918B-851. 

d.     Amendment  of  Motion. 

35.  An  amendment  of  a  motion  for  new 
trial,  setting  up  a  new  ground  is  a  motion 
for  new  trial  within  Comp.  Laws,  §  11963, 
limiting  the  time  for  filing  it.,  Nichols  v. 
Houghton  Circuit  Judge  (Mifeh.)  1917D- 
100.  (Annotated.) 

Note. 
Amendment  of    motion   for    new   trial. 
1917D-104. 

e.     Evidence. 

36.  Hearing  of  Motion — Oral  Testimony. 

Ky.  Civ.  Code  Prac.  §  340,  subsec.  2,  pro- 
vides for  new  trial  for  the  misconduct  of 
the  jury.  Section  343  declares  that  the 
application  must  be  by  motion,  and  that 
the  ground  must  be  sustained  by  affidavits. 
Held,  that  as  the  statute  did  not  authorize 
the  taking  of  evidence,  and  as  the  court 
extended  the  time  for  the  unsuccessful 
party  to  procure  affidavits,  the  denial  of 
her  motion  for  permission  to  call  witnesses 
and  examine  them  orally  to  show  miscon- 
duct of  the  jury,  cannot  be  held  an  abuse 
pf  discretion.  Smith's  Adm'x.  v.  Middles- 
boro  Electric  Co.   (Ky.)  1917A-1164. 


648 


DIGEST. 

1916C5— 1918B, 


f.    Order,  Form  and  Contents. 

37.  That  the  statute  in  force  prior  to 
Miss.  Code  1906,  §  800,  providing  that 
every  new  trial  granted  shall  be  on  such 
"terms"  as  the  court  shall  direct,  read 
"terms  and  conditions,"  is  immaterial,  as 
the  words  are  synonymous;  "terms"  mean- 
ing propositions,  limitations,  or  provisions 
stated  or  offered,  and  a  "condition"  is  that 
which  limits  or  modifies  the  existence  or 
character  of  something;  a  restriction  or 
qualification.  Yazoo,  etc.  B.  Co,  v.  Scott 
(Miss.)    1917E-880.  (Annotated.) 

38.  Under  Miss.  Code  1906,  §  800,  relating 
to  circuit  courts,  but  made  applicable  by 
sections  4909  and  4919  to  the  supreme 
court,  providing  that  every  new  trial 
granted  shall  be  on  such  terms  as  the  court 
shall  direct,  and  section  4919,  empowering 
the  supreme  court  to  render  judgment  such 
as  the  trial  court  should  have  rendered, 
unless  necessary  that  damages  be  assessed 
by  a  jury,  and  that  on  remand  the  trial 
court  shall  proceed  according  to  directions 
of  the  supreme,  court,  the  supreme  court 
has  power  to  award  a  new  trial  on  the 
issue  of  damages  only.  Yazoo,  etc.  R.  Co. 
V.  Scott  (Miss.)  1917E-880.     (Annotated.) 

g.     Effect  of  Limitation. 

39.  Evidence  Admissible  on  Betrial. 
"Where  the  court  on  appeal  remands  a  case 
on  the  issue  of  damages  only,  evidence  as 
to  liability  is  inadmissible  on  the  new 
trial.  Yazoo,  etc.  E.  Co.  v.  Scott  (Miss.) 
1917E-880. 

h.     Review  of  Decision. 

40.  Discretion  of  Trial  Court.  The  grant 
or  denial  of  a  motion  for  a  new  trial  for 
nisconduct  of  jury  is  discretionary  with 
the  judge,  and  unless  the  discretion  is 
abused,  or  there  has  been  palpable  error,  or 
the  trial  court  refused  to  consider  the  evi- 
dence by  which  its  determination  should 
be  guided,  such  finding  will  not  be  re- 
viewed, and  each  application  must  be  de- 
termined solely  by  its  own  peculiar  facts, 
with  a  view  not  so  much  to  the  attainment 
of  justice  in  the  particular  case  as  to  the 
ultimate  effect  of  the  decision  on  the  ad- 
ministration of  justice  in  general.  Sales 
V.  Maupin  (S.  Dak.)  1917C-1222. 

41.  Motion  for  New  Trial  to  Review  Or- 
der Denying  Motion.  The  office  of  a  mo- 
tion for  a  new  trial  and  of  a  petition  for 
a  new  trial  is  the  same;  and  a  motion  for 
a  new  trial  to  review  the  order  of  the 
court  denying  such  motion  or  petition  is 
unauthorized  by  statute  and  nnneoessary, 
and  does  not  have  the  effect  of  extending 
the  time  within  which  the  trial  court  can 
reconsider  its  order  denying  a  petition  for 
a  new  trial  beyond  the  term  at  which  the 
same  was  made.  Owen  v.  District  Court 
(Okla.)    1917C-1147.  (Annotated.) 


42.  Burden  of  Proving  Abuse  of  Discre- 
tion. A  party  appealing  from  an  order 
granting  a  new  trial  after  verdict  in  his 
fevor  has  the  burden  of  showing  abuse  of 
the  trial  court's  discretion,  and  must  show 
that  the  record  is  free  from  error  as 
against  the  adverse  party.  Herman  &  Ben 
Marks   v.   Haas   (Iowa)    1917D-543. 

43.  Discretion     of     Trial    Court.       The 

granting  of  a  new  trial  rests  largely  in 
the  discretion  of  the  trial  court,  and  will 
not  be  disturbed  on  appeal,  except  for  an 
abuse  of  discretion.  Herman  t  Ben 
Marks  v.  Haas  (Iowa)   1917D-543. 

44.  New  Trial  Improperly  Denied.  The 
court  erred  in  refusing  a  new  trial.  Sharpe 
A.  Denmark   (Ga.)   1917B-617. 

NEXT  FRIEND. 
See  Guardian  and  Ward. 

NIGHT  WORK 

Limiting  hours  of  employment,  see  Labor 
Laws,  3^. 


NOMINAL  DAMAGES. 
See  Libel  aoid  Slander,  115;  Replevin,  10. 


NON-MAILABLE  MATTER, 

See  Post-office,   1,  2. 
Espionage  Act,  see  War,  19-25. 


NON-NEGOTIABLE  INSTRUMENTS. 
See  Bills  and  Notes,  55. 

NON-RESIDENCE. 

Tolling  statute,  see  Limitation  of  Actions, 
37. 

NON-RESIDENTS. 

See  Aliens. 

Eight  of  non-resident  counsel  to  appear, 
see  Attorneys,  4. 

Automobile  tax  on,  see  Automobiles,  10. 

Personal  judgment  against,  see  Judgments, 
6. 

Succession  taxes  on  estates  of,  see  Taxa- 
tion, 178. 

NONSUIT. 

See  Dismissal  and  Nonsuit. 

Appealabilitv    of    order,    see    Appeal   and 

Error,  27,  2S. 
Review   of  order,  see  Appeal  and  Error, 

156. 
Ruling    on    wrons:    ground    sustained,    see 

Appeal  and  Error,  454. 

NON-TRADING  ASSOCIATIONS. 

See  Societies  and  Clubs. 


NORMAL  SCHOOLS— NUISANCES. 


649 


NOBMAL  SCHOOLS. 

See  Schools. 

NOTARY  PUBLIC. 

See  Putlic  Officers,  6. 

Acknowledgment  of  corporate  deed  before 
stockholder  notary,  see  Acknowledg- 
ments, 2. 

Powers  as  conservators  of  the  peace,  see 
Breach  of  Peace,  9. 

Power  to  issue  warrant  of  arrest,  see  Pro- 
cess, 2. 

Eligibility  of  woman,  see  Public  Officers, 
28. 

NOTICE. 

See  Jodicial  Notice. 

Notice  of  accident,  see  Accident  Insnrimce, 
20-22. 

Notice  of  appeal,  see  Appeal  and  Error, 
42-45. 

Motion  to  dismiss  appeal,  see  Api>eal  and 
Error,  82. 

Award  void,  no  notice  of  hearing,  see  Ar- 
bitration and  Award,  2. 

To  surety  to  produce  principal,  see  Bail, 
2,  3-. 

Of  dishonor,  see  Bills  and  Notes,  33,  34. 

To  passenger  of  change  of  cars,  see  Car- 
riers of  Passengers,  32. 

Of  hearing,  see  Certiorari,  4. 

Of  stockholders'  meeting,  see  Corporations, 
85-93. 

Of  taking  deposition,  see  Depositions,  2-4. 

To  owner  in  condemnation,  see  Eminent 
Domain,  59-63. 

Judicial  notice,  see  Evidence,  1-19. 

Effect  of  failure  to  notify  administrator 
of  finding  will,  see  Executors  and  Ad- 
ministrators, 9-11. 

Of  defalcation  to  surety  on  indemnity 
bond,  see  Insurance,  36. 

Of  claim  for  fidelity  insurance,  see  Insur- 
ance, 38. 

Notice  of  termination  of  lease,  see  Land- 
lord and  Tenant,  45,  46. 

Notice  to  quit,  see  Landlord  and  Tenant, 
47. 

Of  claim  to  employer  under  Workmen's 
Compensation  Act,  see  Master  and 
Servant,  234-240. 

Of  hearing  under  Workmen's  Compensation 
Act,  see  Master  and  Servant,  301. 

Of  claim  of  lien,  see  Mechanics' .  Liens, 
18-28. 

Of  claim  against  city,  see  Municipal  Cor- 
porations, 175-187. 

Publication,   see   Newspapers,   1. 

Motion  for  new  trial,  see  New  Trial,  29. 

Sufficiency  of  notice  of  pauper  aid,  see 
Poor  and  Poor  Laws,  5-7,  10. 

Record  as  notice,  see  Recording  Acts,  6-10. 

To  city  of  defect  in  street,  see  Streets  and 
Highways,  40. 

By  creditor  of  breach,  see  Suretyship,  15. 

Of  time  for  redemption,  see  Taxation,  111- 
114. 

To  owner  of  special  assessment,  see  Tax- 
ation, 134^136. 


When  necessary  as  prerequisite  to  expul- 
sion of  trespasser,  see  Trespass,  2. 

To  non-residents  on  probate  of  will  see 
Wills,   119. 

1.  Necessity  of  Writing.  The  general 
rule  is  that  notice  required  by  law  to  be 
given  is  notice  in  writing,  and  whenever 
by  statute  or  ordinance  a  duty  is  imposed 
on  an  individual,  for  the  neglect  of  which 
he  is  subject  to  a  penalty,  notice  is  re- 
quired before  liability  arises,  unless  the 
contrary  is  expressly  provided.  McPhail 
V.  Denver  (Colo.)  1916E-1143. 

(Annotated.) 
Note. 

Necessity  that  notice  required  or  au- 
thorized by  law  be  in  writing.  1916E- 
1147. 

NOTORIOUS. 

Meaning,  see  Descent  and  Distributioii,  5. 

NOVEL  IMPRESSION. 

No  presumption  against  remedy,  see  Ac- 
tions and  Proceedings,  4. 

NXnSANCES. 

1.  What  Constitutes,  650. 

a.  In  General,  650. 

b.  Power  to  Define  by  Statute  or  Or- 

dinance, 650. 

c.  Specific  Nuisances,  650. 

2.  Actions,  650. 

a.  Eight  to  Belief,  650. 

b.  Abatement  by  Injunction,  651, 

c.  Pleading,  651. 

d.  Estoppel  to  Object,  651. 

Appeal  from  judgment,  see  Appeal  and 
Error,  29, 

Driving  unregistered  auto,  see  Automo- 
biles, 27. 

Cemetery  as  nuisance,  see  Cemeteries,  1-3. 

Bunk  cars  on  right  of  way  as  nuisance, 
see  Fires,  6. 

Restraining  public  nuisance,  see  Injunc- 
tions, 27-29. 

Validity  of  ordinance  making  club  house 
system  a  nuisance,  see  Intoxicating 
Liquors,  48-50. 

Abatement  of  blind  tiger,  see  Intoxicating 
Liquors,  110. 

Abatement  of  saloon,  see  Intoxicating 
Liquors,  111, 

Suit  to  enjoin,  see  Laches,  2. 

^Malicious  action  to  abate,  see  Malicious 
Prosecution,  1. 

Open  shafts  of  prospector  on  public  lands, 
see  Mines  and  Minerals,  11. 

City  regulation,  see  Municipal  Corpora- 
tions, 47,  74,  91. 

Attractive  nuisances,  see  Negligence,  23- 
28. 

Special  assessment  for  abatement,  see  Tax- 
ation, 117. 


650 


DIGEST. 

1916C— 1918B. 


1.     WHAT  CONSTITUTES, 
a.     In  General. 


1.  Definition.  A  private  nuisance  is 
anything  done  to  the  hurt  or  annoyance 
of  the  landSj  tenements,  or  hereditaments 
of  another.  Whittemore  v.  Baxter  Laun- 
dry Co.  (Mich.)  19ieC-818. 

b.    Power  to  Define  by  Statute  or  Ordin- 
ance. 

2.  Statute  Defining  —  Exclusiveness. 
Hurd's  111.  Kev.  St.  1913,  c.  38,  §  22,  de- 
claring certain  acts  to  be  public  nuisances, 
is  merely  declaratory  of  the  common  law 
as  to  those  acts,  and  does  not  exclude 
other  common-law  nuisances  not  enumer- 
ated therein  from  being  classed  as  public 
nuisances.  People  v.  Clark  (111.)  1916I>- 
785. 

Note. 

Validity  of  smoke  ordinance  or  statute. 
1918B-173. 

c.    Specific  Nuisances. 

3.  Fertilizer  Mixing  Plant  as  Nuisance. 
A  fertilizer  mixing  plant  is  not  a  "nui- 
sance per  se,"  that  is,  a  nuisance  any- 
•where  and  under  all  circumstances,  but,  if 
a  nuisance  at  all,  is  a  "nuisance  per  acci- 
dens,"  that  is,  by  reason  of  its  location 
and  other  circumstances,  such  as  the  com- 
munity in  which  it  is  located  or  the  man- 
ner in  which  it  is  constructed  or  conducted. 
Woods  V.  Rock  Hill  Fertilizer  Co.  (S.  Car.) 
1917D-1149.  (Annotated.) 

4.  What  Constitutes^ — Telephone  Wires 
Erected  Over  Highway  Without  Permis- 
sion. Under  Me.  Eev.  St.  c.  55,  §  17,  pro- 
viding that  telephone  lines  shall  not  be 
constructed  upon  or  along  highways  or 
public  roads  without  written  permission 
from  the  selectmen  of  towns,  etc.  specify- 
ing the  method  of  locating  the  wires,  and 
declaring  wires  so  erected  to  be  legal 
structures,  but  not  declaring  those  other- 
wise maintained  to  be  nuisances,  the  wires 
of  an  unauthorized  company  and  of  pri- 
vate individuals  maintaining  lines  to  con- 
nect therewith,  running  eighteen  to  twenty- 
two  feet  above  the  ground,  and  not  inter- 
fering with  public  travel,  do  not  consti- 
tute a  nuisance,  and  will  not  be  enjoined. 
Mt.  "Vernon  Tel.  Co.  v.  Franklin  Farmers', 
etc.  Tel.  Co.  (Me.)  1917B-649. 

5.  Storage  of  Gasoline.  For  defendant 
to  sink  storage  tanks  on  the  extreme  edge 
of  its  property  and  within  a  few  feet  of 
complainant's  residence,  in  which  over 
20,000  gallons  of  gasoline  were  to  be 
stored,  constitutes  a  private  nuisance,  in 
view  of  the  dangerous  character  of  gaso- 
line and  the  liability  to  explosion.  "Whit- 
temore V.  Baxter  Laundry  Co.  (Mich.) 
1916C-818.  (Annotated.) 

6.  Fruit  Stand  in  Street.  The  establish- 
ment of  a  fruit  stand  in  a  public  street, 
on  the   outside   of  a  portion  of  two  sides 


of  a  building  in  violation  of  ordinances 
in  a  city  is  a  nuisance  per  se,  and  the 
maintenance  thereof  a  public  offense  which 
the  police  authorities  of  the  city  may  sum- 
marily abate.  Pastorino  v.  Detroit  (Mich.) 
1916D-768.  (Annotated.) 

7.  What  Constitutes  Public  Nuisance — 
Permitting  Street  Cars  to  be  Overcrowded. 
The  act  of  a  street  railway  company  in 
permitting  its  cars  to  be  overcrowdod  does 
not  constitute  a  nuisance  within  a  statuta 
(R.  S.  Can.  c.  146,  §  221)  defining  a  com- 
mon nuisance  as  "an  unlawful  act  or  omis- 
sion to  discharge  a  legal  duty  which  act 
or  omission  endangers  the  lives,  safety, 
health,  property  or  comfort  of  the  public 
or  by  which  the  public  are  obstructed  in 
the  exercise  or  enjoyment  of  any  right 
common  to  all  His  Majesty's  subjects" 
since  the  overcrowding  does  not  affect  the 
public  but  only  those  persons  who  have 
obtained  a  license  from  the  company  to 
enter  its  cars.  Toronto  R.  Co.  v.  Rex. 
(Eng.)   1918A-991.  (Annotated.) 

8.  Brick  Kiln  as  Nuisance.  The  opera- 
tion of  a  brick  manufacturing  plant,  so  as 
to  seriously  affect  the  property  and  health 
and  enjoyment  of  persons  living  in  the 
neighborhood  by  the  escape  of  smoke  and 
soot,  creates  a  nuisance,  which  equity  may 
perpetually  enjoin,  by  enjoining  the  burn- 
ing of  any  of  the  kilns  in  such  a  way  as 
to  cause  dense  soot  or  smoke  to  fall  on 
the  neighboring  property,  or  operating  the 
kilns  immediately  adjoining  the  neighbor- 
ing property  with  any  other  than  smoke- 
less fuel.  Face  v.  Cherry  ("Va.)  1917E- 
418.  (Annotated.) 

9.  A  bill  to  enjoin  the  operation  of  a 
brick  manufacturing  plant  as  a  nuisance, 
injuriously  affecting  plaintiffs'  property 
and  health  and  the  enjoyment  of  their 
home,  which  alleges  that  the  smoke,  soot, 
etc.  affects  plaintiffs'  dwelling  and  "other 
property  in  the  neighborhood,"  complains 
only  of  a  private  nuisance,  within  the  rule 
that  nuisances  of  a  private  nature  occur,  in 
the  erection  of  structures  obnoxious  or 
hurtful  to  buildings  used  for  residence  and 
business  purposes,  and  that  a  business 
which  imperils  the  comfort  or  health  of 
inmates  of  neighboring  dwellings  may  be 
enjoined.  Face  v.  Cherry  ("V^a.)  19i7E- 
418.       .  (Annotated.) 

Notes. 

Brick  kiln  as  nuisance.     1917E— 420. 

Fruit  stand  or  similar  structure  on  public 
highway  as  nuisance.     1916D-773. 

Storage  of  gasoline  or  other  explosive  as 
nuisance.     1916C-820. 

Place  for  storing  or  mixing  fertilizer  as 
nuisance.     1917D-1152. 

2.     ACTIONS, 
a.     Right  to  Relief. 

10.  Public  Nuisances — Bight  of  Individ- 
ual to  Enjoin.     To  prevent  multiplicity  of 


NUISANCE  PER  ACCIDENS— OBTAIN. 


661 


actions,  promote  justice,  and  secure  the 
public  tranquillity,  courts  refuse  to  enter- 
tain private  actions  to  remedy  purely  pub- 
lic nuisances,  which  may  and  should  be 
remedied  through  the  public  process  of  in- 
dictment. Woods  V.  Bock  Hill  Fertilizer 
Co.  (S.  Car.)  1917D-1149. 

11.  Where  a  public  nuisance  affects  some 
members  of  the  public  in  a  different  man- 
ner and  inflicts  upon  them  injury  of  a 
different  kind  from  that  suffered  by  the 
general  public,  it  is,  as  to  them,  a  private 
nuisance  for  which  they  have  the  private 
remedy  of  an  action.  Woods  v.  Rock  Hill 
Fertilizer  Co.'(S.  Car.)  I917D-1149. 

b.     Abatement  by  Injunction. 

12.  Obstruction  of  Highway  —  Right  of 
Individual  to  Injunction.  Relief  by  an 
injunction  against  a  nuisance  by  which  the 
highway  is  obstructed  need  not  be  sought 
by  an  abutting  owner,  but  may  be  had  by 
any  individual  who  can  show  special  dam- 
age to  himself.  Memphis  St.  R.  Co.  v. 
Rapid  Transit  Co.   (Tenn.)   1917C-1045. 

13.  Where  statute  authorizes  the  regula- 
tion of  jitneys,  and  prohibits  their  opera- 
tion, except  upon  conditions  named,  and 
those  conditions  are  not  fulfilled,  but  many 
jitneys  are  operated  with  consequent  dan- 
ger to  persons  and  property,  they  consti- 
tute a  nuisance,  and  may  be  enjoined  on 
the  bill  of  a  private  individual  who  can 
show  special  damage  to  himself.  Memphis 
St.  R.  Co.  V.  Rapid  Transit  Co.  (Tenn.) 
1917C-1045.  (Annotated.) 

c.     Pleading. 

14.  In  an  individual  action  for  damages 
from  a  fertilizer  mixing  plant,  prima  facie 
only  a  private  nuisance,  it  is  not  necessary 
to  the  sufficiency  of  the  complaint  that  it 
allege  injury  to  plaintiff  differing  in  kind 
from  that  suffered  by  others  who  may  have 
been  affected.  Woods  v;  Rock  Hill  Fer- 
tilizer Co.  (S.  Car.)  1917D-1149. 

(Annotated.) 

15.  Unnecessary  Averments  —  Injury  to 
Third  Persons.  In  an  action  for  damages 
from  defendant's  fertilizer  mixing  plant 
near  plaintiff's  residence,  the  allegation 
that  plaintiff's  mother  and  sister  lived 
with  her  and  suffered  from  the  odors, 
noises,  etc.  though  not  strictly  necessary 
to  the  statement  of  plaintiff's  cause  of 
action,  is  not  irrelevant  thereto,  because 
tending  to  show  the  nature  and  extent  of 
plaintiff's  damages.  Woods  v.  Rock  Hill 
Fertilizer  Co.  (S.  Car.)   1917D-1149. 

16.  That  which  is  per  se  or  prima  facie  a 
public  nuisance  is  presumed  to  affect  all 
the  public  alike,  though  it  may  not  affect 
all  to  the  same  extent,  and  one  complain- 
ing of  such  a  nuisance  must  allege  some 
injury  to  himself  differing  in  kind  and  not 
merely  in  degree  from  that  suffered  by  the 
general  public,  and,  if  he  fails  to  do  so, 


shows  no  cause  of  action.     Woods  v.  Rock 
Hill  Fertilizer  Co.  (S.  Car.)  1917D-1149. 

d.    Estoppel  to  Object. 

17.  Estoppel  to  Object  —  Consent  to 
Structure.  Where  the  owner  of  apartment 
houses  consented  to  and  encouraged  the 
construction  of  private  garages  in  the  rear 
of  such  buildings,  securing  the  preference 
for  his  tenants,  he  cannot  subsequently 
seek  an  injunction  on  the  ground  that  the 
noises  and  smells  from  such  garages  prove 
a  nuisance  by  reason  of  the  residential 
nature  of  the  neighborhood.  Mahoney 
Land  Co.  v.  Cayuga  Investment  Co. 
(Wash.)   1916C-1234.  (Annotated.) 

Note. 

Acquiescence  in  or  consent  to  erection  of 
structure  as  precluding  objection  thereto 
as  nuisance.     1916C-1235. 


NUISANCE  PER  ACCIDENS. 

See  Nuisances,  3. 

NUMBER  PLATES. 
Display  of,  see  Automobiles,  6,  8. 

NUNC  PRO  TUNC. 

Amendment  of  judgment,  see  Judgments, 
51. 

NUNCUPATIVE  WILL. 
See  Wills,  37-39,  45. 

NURSEa 

State  regulation,  see  Physicians  and  Sur- 
geons, 8-10. 

OMISSION. 

Construction  to  supply,  see  Wills,  174. 

OBITER  DICTA. 

As  precedent,  see  Courts,  36;  Stare  Decisis, 
10. 

OBJECTIONS. 

Sufficiency  of,  see  Trial,  37-45,  56. 

OBLIGATION. 

Meaning,  see  Assignments,  14. 

OBSTRUCTION  OP  WATERCOURSE. 

Liability  for  flood,  see  Waters  and  Water- 
courses, 24. 

OBTAIN. 

Meaning,  see  False  Pretenses,  5. 


652 


DIGEST. 

1916C— 1918B. 


OCCUPANCY. 


OPTION. 


Of  property  selected,  see  Homestead,  4,  5,      Executor's  power  to  sell  no  power  to  give 


Implies  agreement  to  pay  rent,  see  Land- 
lord and  Tenant,  32. 

OCCUPATION  TAX. 
See  Licenses;  Taxation,  86,  145-170. 

OCEAN  WAVE. 

Amusement  device  as  carrier  of  passengers, 
see  Theaters  and  Amusements,  8. 


OFFER  AND  ACCEPTANCE. 


option,  see  Executors  and  Administra- 
tors, 42. 

To  terminate  lease,  see  Landlord  and  Ten- 
ant, 45,  46. 

When  creates  a  vested,  when  a  contingent 
estate,  see  Perpetuities,  3. 

Taxation  of,  see  Taxation,  49. 

Defined,  see  Vendor  and  Purcbaser,  2. 

OB. 

Construed  as  "and,"  see  Wills,  198. 

OEDER  OF  COURT. 


See 


Contra^te.  1;  Sales,  2;  Vendor  and  Pur-      ^^^^^^^  ,,,  Judgments,  2,  11. 


OFFEBINa  BRIBE. 
See  Bribery,  2,  3. 

OFFICE. 
Defined,  see  Public  Officers,  7. 

OFFICERS. 
Defined,  see  Public  Of^cers,  2. 

OFFICERS  OF  CORPORATIONS. 

See  Corporations,  30-55. 

OFFICIAL  BONDS. 
See  Public  Officers,  67-75. 

OIL  LANDS. 
No  partition  in  kind,  see  Partition,  5. 

OIL  LEASE. 
Nature,  see  Landlord  and  Tenant,  2,  3. 

OLOGRAPHIC  WILL. 

See  WiUs,  13,  40,  46. 


ORDER. 

See  New  Trial,  37,  38. 
Appealable  judgments  and  orders,  see  Ap- 
peal and  Error,  26-39. 


ORDINANCES. 
Gee  Municipal  Corporations,  48-108. 

ORDINARY. 
Defined,  see  Schools,  25. 

ORIGINAL  CONTRACTOR. 

Defined,  see  Mechanics'  Liens,  10. 

OTHER. 

Meaning,  see  Statutes,  68. 

OTHER  ACTIONS  PEITOINQ. 
See  Actions  and  Proceedings,  14,  15. 

OTHER  CRIMES. 

Proof  of,  admissibility,  see  Criminal  Law, 
58,  59. 

OTHERS. 


OPENINO  STATEMENT. 

T.T1.       •  A  ^      ^  n     :>     A.      Meaning,  see  WiUs,  197. 

When  improper,  see  Argument  and  Conduct  *' 


of  Counsel,  4,  9. 

OPEN   SHAFT. 

Liability  of  prospector  for  loss  of  cattle, 
see  Mines  and  Minerals,  10. 

OPINION. 

As  disqualifying  juror,  see  Jury,  21, 

OPIUM. 
Federal  regulation,  see  Food,  20. 


OTHER  TIMBER. 
See  Liens,  4. 

OTHERWISE. 
Defined,  see  Public  Oflacers,  23. 

OUTCRY, 
eee  Rape,  I,  16,  17. 

OUTLAW. 
Unregistered  auto,  see  Automobiles,  28. 


PARENT  AND  CHILD. 


653 


OUT  OF  AND  IN  COURSE  OF  EMPLOY- 
MENT. 

Under  Workmen's  Compensation  Act,  see 
Master  and  Servant,  206-230. 

OUTSTANDING  TITLE. 
Pnrcliase  of,  see  Adverse  Possession,  37,  38. 

OVERHEARD  CONVERSATION. 

Effect  on  privilege,  see  Libel  and  Slander, 
56,  57. 

OVERSEER  OF  POOR. 

See  Poor  and  Poor  Laws,  4,  7. 

OWNERSHIP. 

Proof  of,  see  Evidence,  77. 
Presumption  as  to,  see  Evidence,  138. 

OWNERS  OF  PREMISES. 

See  License,  i. 

Collapse,  liability,  see  Buildings,  9. 

Liability  of  canal  owner  for  drowning  of 

child,  see  Negligence,  93. 
Liability   to   invitees,   see   Negligence,    8, 

23-28. 
Duty  to  extinguish  fires,  see  Negligence, 

17. 
Duty  toward  licensees,  see  Negligence,  14- 

'16,  18. 
Injury  by  swinging  door,  see  Negligence, 

19,  32. 
Abutting    highway,    duty   to    public,    see 

Negligence,  29-32. 

PARADES. 

Prohibition  of  red  or  black  flags  see  Flags, 
1,2. 

PARALYSIS. 

As    affecting    testamentary    capacity,    see 
Wills,  57. 

PARDONS. 

Effect  on  disbarment,  see  Attorneys,  62. 
Contract  to  procure  parole,  see  Contracts, 

26. 
Detention  of  pardoned  convict,  see  False 

Imprisonment,  2. 

1.  When  Effective.  A  pardon  is  effect- 
ive upon  delivery  and  acceptance.  Weigel 
v.  McCloskey  (Ark.)  1916C-503. 

2.  Where  a  contractor  of  convict  labor 
delegates  his  custody  of  the  convicts  to  a 
warden   appointed   by   him   and   confirmed 

;  by  the  court  under  the  statute,  it  is  the 
'duty  of  the  warden,  on  delivery  '  of  a 
pardon  to  him,  to  himself  examine  the 
books  to  see  if  the  pardon  covers  all  the 
offenses  for  which  the  convict  was  com- 
mitted if  he  would  eseane  liability  for 
false  imprisonment  in  holding  the  convict. 
Weigel  V.  McCloskey  (Ark.)  1916C-503. 


3.  Parole.  The  parole  of  a  convicted 
criminal  does  not  wipe  out  the  conviction, 
but  merely  suspends  its  operation  by  re- 
mitting for  the  time  being  the  confinement 
at  hard  labor,  until  the  end  of  the  term 
or  an  unconditional  pardon  is  granted;  the 
offender  in  the  meantime  being  subject  to 
prison  discipline  and  to  be  taken  into  cus- 
tody on  violation  of  any  of  the  conditions 
as  though  the  parole  had  not  been  granted. 
In  re  Sutton  (Mont.)  1917A-1223. 

4.  Right  to  Impose  Condition.  In  the 
granting  of  a  pardon,  the  governor  is  au- 
thorized, by  Const,  art.  7,  §  9,  and  Mont. 
Rev.  Codes,  §  9556,  to  impose  conditions 
without  restriction,  so  long  as  they  are 
neither  illegal,  immoral,  nor  impossible  of 
performance.  In  re  Sutton  (Mont.)  1917A- 
1223. 

PARENT  AND  CHILD. 

1.  Nature  of  Relation,  653. 

2.  Rights  of  Parent,  653. 

a.  Earnings  of  Child,  653. 

b.  Action  for  Loss  of  Services,  654. 

3.  Liability   of    Parents    for    Support   of 

Child,  654. 

4.  Emancipation,  654. 

5.  Contracts  Inter  Se,  654. 

See  Adoption  of  Children;  Seduction. 

Liability  of  bastard's  father  for  support, 
see  Bastardy,  9,  10. 

Legitimacy,  see  Conflict  of  Laws,  6. 

Measure  of  damages  for  death  of  child,  see 
Death  by  Wrongful  Act,  47-50. 

Measure  of  damages  for  death  of  parent, 
see  Death  by  Wrongful  Act,  52,  53. 

Proof  of  paternity,  see  Evidence,  41. 

Conveyance  by  father  for  support,  valid- 
ity, see  Fraudulent  Sales  and  Convey- 
ances, 2. 

Liability  of  parent  for  alienation,  see 
Husband  and  Wife,  48,  49. 

Insurable  interest  inter  se,  see  Life  Insur- 
ance, 8. 

Married  daughter  as  dependent  under 
Workmen's  Compensation  Act,  see 
Master  and  Servant,  268. 

Parent's  right  to  release  minor,  tee  Militia, 
1-3. 

Imupted  negligence  of  parent,  see  Negli- 
gence, 56,  57. 

1.     NATURE  OF  RELATION. 

1.  Respective  Rights  of  Parents.  Under 
the  law  of  Iowa  the  rights  of  parents  in 
relation  to  their  children  are  equal.  Cain 
v.  Garner  (Ky.)  1918B-824. 

2.     EIGHTS  OF  PARENT. 
a.     Earnings  of  Child. 

2.  Contract  by  Parent  for  Services  of 
Child.  A  contract  whereby  the  father  of 
an  infant  undertook  to  bind  him  to  work 
for  plaintiff  as  a  stable  boy  and  race  rider 
for  three  years  for  a  fixed  compensation,  to 
be  paid  to  the  father,  signed  by  the  father, 


654  DIGEST. 

1916C— 1918B. 
the  son,  and  the  plaintiff,  all  the  covenants      in  show  undue  inflnence. 


of  which  purported  to  be  the  covenants  of 
the  infant,  whether  regarded  as  executed 
directly  by  him  or  by  his  father,  is  the 
contract  of  the  infant.  Cain  v.  Garner 
(Ky.)   1918B-824.  (Annotated.) 

Note. 
Contract  by  parent  for  services  of  minor 
chil4  as  binding  latter.     1918B-827. 

b.     Action  for  Loss  of  Services. 

3.  Action  —  Parties  Plaintiff.  A  father 
who  is  supporting  the  family  may  main- 
tain an  action  for  loss  of  the  services  of 
a  minor  child  without  joining  the  mother 
as  a  party  plaintiff.  Ackeret  v.  Minne- 
apolis  (Minn.)    1916E-897. 

S.    LIABILITY  OF  PARENTS  FOB  SUP- 
PORT OF  CHILD. 

4.  Liability  of  Parent — ^Necessaries  Fur- 
nished. Child.  Parents  are  bound  to  pro- 
vide a  minor  child  with  necessaries.  If 
they  neglect  to  so  provide,  they  may  be- 
come liable  to  a  third  person  who  furnishes 
necessaries  even  without  their  consent. 
Where  they  are  ready  to  so  provide,  a 
third  person  can  claim  liability  only  on 
ground  of  contract,  express  or  implied. 
This  action  is  for  necessaries  supplied  to 
a  minor  son,  and  it  is  based  upon  an  im- 
plied contract.  Lufkin  v.  Harvey  (Minn.) 
1917D-583. 

4.    EMANCIPATION. 

5.  Sufficiency  of  Evidence.  Defendants 
rely  on  a  claim  that  their  son  had  been 
emancipated,  and  hence  a  contract  on  their 
part  to  pay  should  not  be  implied.  Eman- 
cipation may  be  complete,  in  which  case 
it  relieves  the  minor  from  custody  and 
control  of  the  parents  and  destroys  the 
filial  relation,  or  it  may  be  partial.  The 
evidence  shows  no  more  than  a  gift  to  the 
son  of  his  earnings  and  the  right  to  make 
contracts  of  employment.  Complete  eman- 
cipation cannot  be  inferred  from  such  evi- 
dence. If  the  earnings  given  are  sufficient 
to  supply  the  son  with  all  necessaries,  the 
parents  are  under  no  further  liability;  if 
not,  the  parents  remain  liable  for  any 
necessaries  which  the  wages  are  not  suffi- 
cient to  supply.  Lufkin  v.  Harvev  (Minn.) 
1917D-583.  (Annotated.) 

Note. 
Sufficiency   of   evidence  to   show   eman- 
cipation of  infant.     1917D-585. 

5.     CONTRACTS  INTER   SE. 

6.  Presumption  and    Burden  of    Proof. 

No  presumption  of  undue  influence  in  the 
case  of  a  conveyance  by  a  parent  to  a 
child,  in  consideration  of  support  of  the 
grantor,  arises  from  the  mere  relation  of 
the  parties,  and.  therefore,  the  burden  is 
upon  the  party   attacking  the   conveyance 


Soper  V.  Cisco 
(N.  J.)  191SB-452.  (Annotated.) 

7.  Services  by  Adult  Child  — Right  to 
Compensation.  A  child  remaining  in  the 
family  after  becoming  of  age  is  not  enti- 
tled to  pay  for  services  rendered  unless 
the  services  were  performed  pursuant  to  a 
prior  agreement  for  compensation  there- 
for; but  where  such  services  are  performed 
pursuant  to  a  prior  agreement  for  com- 
pensation, they  constitute  a  valid  consid- 
eration for  a  conveyance  of  real  estate. 
Thysell  v.  McDonald  (Minn.)   1917C-1015. 

8.  Services  by  Adult  Child — Agreement 
for  Compensation.  The  evidence  sustains 
the  finding  that  the  services  in  question 
were  performed  pursuant  to  an  agreement 
for  compensation,  and  that  the  son  was  a 
good-faith  purchaser  of  the  land.  Thysell 
V.  McDonald  (Minn.)  1917C-1U15. 

PARI  MUTUEL. 
See  Qamlng,  1. 

PAROLE. 
See  Pardons,  3. 

PARTIAL  INVALIDITT. 

Of  contracts,  see  Contracts,  42,  43. 

PARTIAL  INVALIDITY  OF  STATUTES. 
Effect,  see  Statutes,  28-46. 

PARTIES  TO  ACTIONS. 

1.  In  General,  655. 

2.  Joinder  of  Plaintiffs,  655. 

3.  Joinder  of  Defendants,  655. 

4.  Manner  of  Raising  Objection,  656. 

See  Conversion,  3,  4;  Death  by  Wrongful 
Act,  14 ;  Indictments  and  Informations, 
17;  Mandamus,  24;  Public  Lands,  1. 

On  appeal,  see  Appeal  and  Error,  40. 

Nonjoinder  harmless,  see  Appeal  and  Er- 
ror, 218. 

Harmless  error  in  striking  out,  see  Appeal 
and  Error,  326. 

Attorney's  lien  on  cause  of  action,  joining 
attorney,  see  Attorneys,  42. 

In  actions  to  enforce  negotiable  paper. 
Bills  and  Notes,  56-62. 

Stockholder's  suit,  see  Corporations,  139. 

To  offenses,  see  Crimijial  Law,  10. 

Action  for  wrongful  burial  at  sea,  see 
Dead  Body,  11. 

To  actions  by  executors  and  administra- 
tors, see  Executors  and  Administra- 
tors, 72. 

In  alienation  suits,  see  Husband  and  Wife, 
56,  57. 

Persons  concluded  by  judgment,  see  Judg- 
ments, 66-71. 

Action  for  insurance,  joinder  of  underwrit- 
ers, see  Marine  Insurance,  1. 

In  foreclosure  of  mechaTiics'  liens,  see  Me- 
chanics' Liens,  43-56. 


PAETIES  TO  ACTIONS. 


655 


On  foreclosure  of  mortgage,  see  Mortgages 
and  Deeds  of  Trust,  26.  27. 

Ir,  partition  suit,  see  Paxtitibn,  6,  7. 

Demurrer  for  nonjoinder,  see  Pleading,  41. 

Amendment  by  adding  parties,  see  Plead- 
ing, 74. 

Amendment  by  changing  capacity  of  party, 
see  Pleading,  75. 

Amendment  by  changing  names,  see  Plead- 
ing,  76. 

Breach  of  warranty,  see  Sales,  34. 

In  action  under  Bulk  Sales  Act,  see  Sales, 
70. 

Stipulation  by  one  not  a  party,  effect,  see 
Stipulations,  1. 

Eight  of  subrogated  insurer  to  sue  in  liis 
own  name,  see  Subrogation,  4. 

Joinder  of  several  insurers  in  action 
against  tortfeasor,  see  Subrogation,  5. 

Action  on  surety  bond,  see  Suretyship,  21, 
22. 

On  foreclosure  of  tax  lien,  see  Taxation, 
88. 

Absence  of  party  as  ground  for  continu- 
ance, see  Trial,  8,  9. 

In  suit  to  reinvest  trust  property,  see 
Trusts  and  Trustees,  36. 

To  proceeding  to  contest  will,  see  Wills, 
122-126. 

1.     IN  GENEEAL. 

1.  Defect  of  Parties  —  Waiver.  Under 
the  express  provision  of  Wyo.  Comp.  St. 
1910,  §  4383,  an  objection  to  a  defect  of 
parties  not  appearing  on  the  face  of  the 
petition  is  waived,  unless  taken  by  answer, 
except  only  the  objection  to  the  jurisdic- 
tion of  the  court,  and  that  the  facts  stated 
are  not  sufficient  to  constitute  a  cause  of 
action.  Becker  v.  Hopper  (Wyo.)  1916D- 
1041. 

2.  Effect  of  Omission  of  Party.  In  the 
federal  courts,  a  suit  in  equity  may  pro- 
ceed without  any  necessary  or  proper 
party,  who  is  not  an  indispensable  party, 
if  his  presence  would  oust  the  jurisdiction 
of  the  court. 

An  "indispensable  party"  is  one  who  has 
such  an  interest  in  the  subject-matter  of 
the  controversy  that  a  final  (decree  cannot 
be  rendered  between  the  other  parties  to 
the  suit  without  radically  and  injuriously 
affecting  his  interest,  or  without  leaving 
the  controversy  in  such  a  situation  that  its 
final  determination  may  be  inconsistent 
with  equity  and  good  conscience. 

The  original  debtor  is  not  an  indispen- 
sable party  to  a  suit  in  equity  by  his  cred- 
itor on  the  promise  of  the  grantee  of  the 
debtor  to  pay  the  creditor's  claim.  Silver 
King  Coalition  Mines  Co.  v.  Silver  King 
Consol.  Min.  Co.  (Fed.)  1918B-571. 

2.     JOINDEE  OF  PLAINTIFFS. 

3.  Bill  for  Contribution — Parties.  Where 
some,  but  not  all,  of  the  members  of  an 
insolvent  firm,  by  written  agreement,  rati- 
fied by  the  chancery  court,  appointed  trus- 


tees to  close  the  partnership  affairs,  all  the 
partners  should  be  made  parties  to  a  bill 
to  compel  one  member  who  signed  the 
agreement  to  pay  his  pro  rata  share  of 
debts,  for  he  is  entitled  to  an  accounting. 
Webb  v.  Butler  (Ala.)  1916D-815. 

4.  Action  for  Negligence  of  Attorney. 
Where  one  claimant  against  a  debtor  as- 
signed his  claim  to  another,  so  that  one 
suit  could  be  brought  on  both  claims,  and 
both  claimants  signed  the  attachment 
bond,  and  were  required  to  pay  the  amount 
thereof,  both  are  proper  parties  plaintiff 
in  an  action  against  the  attorney  who 
brought  the  former  suit  for  negligence 
which  resulted  in  their  being  compelled  to 
pay  the  amount  of  the  attachment  fund. 
Noziska  v.  Aten  (S.  Dak.)  19160-589. 

3.     JOINDEE  OF  DEFENDANTS. 

5.  Joinder  of  Parties  —  Persons  Inter- 
ested in  Realty  to  be  Charged.  On  a  bill 
to  charge  the  estate  of  a  decedent  with  a 
sum  alleged  to  be  the  property  of  his  sur- 
viving children  to  which  they  were  enti- 
tled upon  his  death,  as  part  of  the  pro- 
ceeds of  their  mother's  estate,  where  an 
exhibit  filed  with  the  bill  showed  that  two 
of  the  children  of  complainants'  deceased 
mother  were  married,  the  joinder  of  such 
children  and  their  husbands  and  wives  is 
required  to  bind  their  interest,  if  the  prop- 
erty is  to  be  treated  as  realty.  Henderson 
V.  Harper  (Md.)  1917C-93. 

6.  Husband  and  Wife — Action  for  Ees- 
toration  of  Property — Parties.  In  an  ac- 
tion by  a  divorced  husband  for  property 
conveyed  for  the  benefit  of  the  wife  in 
consideration  of  marriage,  the  children  are 
not  necessary  or  proper  parties,  though 
under  the  conveyance  they  have  an  inter- 
est in  the  property.  Anheier  v.  De  Long 
(Ky.)  1917A-1239. 

7.  Successor  of  Official.  In  a  suit  for 
an  injunction  against  officers  of  certain 
kbor  unions  and  others,  it  is  error  to  grant 
personal  relief  by  injunction  against  per- 
sons who,  pending  the  suit,  were  chosen 
to  succeed  some  of  the  original  defendants 
as  officers  of  such  unions,  but  who  were 
not  served  with  process  and  did  not  ap- 
pear, on  the  ground  that  they  were  before 
the  court  by  representation,  as  there  is  no 
such  privity  between  the  holder  of  an  office 
in  a  voluntary  association  and  his  suc- 
cessor as  to  bind  the  latter  by  process 
issued  against  the  former,  and  the  suit  was 
not  a  representative  one  within  equity  rule 
."8  (198  Fed.  xxix,  115  C.  C.  A.  xxix),  pro- 
viding that  when  a  question  is  one  of  com- 
mon or  general  interest  to  many  persons 
constituting  a  class  so  numerous  as  to 
make  it  impracticable  to  bring  them  all 
before  the  court,  one  or  more  may  sue  or 
defend  for  the  whole.  Hitchman  Coal,  etc. 
Co.  v.  Mitchell  (U.  S.)  1918B-461. 

8.  Injunction  in  Individual  Capacity 
Only.     In  a  suit  to  enjoin  certain  persons 


656 


DIGEST. 

19160— 1918B. 


iDdividually  and  as  officers  of  labor  unions, 
the  error,  if  any,  in  enjoining  them  only 
in  their  individual  capacities,  and  not  in 
their  official  capacities,  may  not  be  com- 
plained of  by  them.  Hitchraan  Coal,  etc. 
Co.  V.  Mitchell   (U.  S.)   1918B-461. 

9.  Improper  Inclusion  of  Persons  in  In- 
junction. In  a  suit  for  injunction  against 
officers  of  labor  unions,  a  clause  in  the  de- 
cree, enjoining  as  confederates  all  present 
and  future  members  of  the  unions,  is  not 
a  matter  of  which  the  defendants  may  com- 
piain.  Hitchman  Coal,  etc.  Co.  v.  Mit- 
chell  (U.  S.)   1918B-461. 

10.  Injunctions — Protection  of  Property 
— Proper  Parties.  Where  an  owner  of  a 
city  lot  makes  a  contract  of  sale,  and,  upon 
payment  of  a  part  of  the  purchase  money, 
executes  a  bond  for  title,  and  places  the 
purchaser  in  possession,  the  obligor  and 
the  obligee  are  proper  parties  to  a  suit 
against  the  city  to  enjoin  an  illegal  inter- 
ference with  the  possession  of  the  prop- 
erty.   Carey  v.  Atlanta  (Ga.)  19l6E^ll51. 

4.    MANNER  OF  EAISING  OBJECTION. 

11.  Eemedy  for  Nonjoinder.  In  an  ac- 
tion for  damages  to  land  resulting  from 
seepage,  defendant  is  not  entitled  to  a 
directed  verdict  because  the  land  was 
mortgaged  and  the  mortgagee  not  made  a 
party,  the  remedy  being  to  ask  to  have  the 
mortgagee  joined  as  a  party.  North  Ster- 
ling Irrigation  District  t.  Dickman  (Colo.) 
1916r)-973. 

PABTIES  TO  CBIME. 
See  Robbery,  3. 

PARTITION. 

1.  By  Act  of  Parties. 

2.  By  Judicial  Proceedings. 

a.  Jurisdiction. 

b.  Who  may  Maintain  Action. 

c.  Property  Subject. 

d.  Parties. 

e.  Actual  Division  of  Property. 

f.  Sale  of  Land. 

g.  Determination   of   Legal   Title   and 

Right  to  Possession. 

See  Remainders  and  Reversions,  1-3. 
App  alability  of  judgment,  see  Appeal  and 
Error,  34. 

1.     BY  ACT  OF  PARTIES. 

1.  By  Agreement  —  What  Constitutes. 
Cotenants  may  make  any  agreement  they 
choose  in  respect  to  the  use  by  each  other 
of  the  common  property,  but  such  agree- 
ments do  not  constitute  a  partition  there- 
of unless  they  provide  or  contemplate  that 
title  to  specific  portions  thereof  shall  vest 
in  such  cotenants  in  severalty.  Hunt  v. 
Meeker  County  Abstract,  etc.  Co.  (Minn  ) 
1916D-925. 


2.  Agreement  Impliedly  Suspending 
Right  to  Partition.  Such  right  may  be 
suspended  for  a  limited  time  by  express 
agreement,  or  by  acquiring  the  property 
for,  or  devoting  it  to,  some  purpose  which 
will  be  defeated  by  a  partition;  but  such 
right  is  not  suspended  by  the  existence  of 
an  interest  in  the  property,  or  of  a  right 
to  occupy  or  use  it,  which  may  continue 
and  be  given  effect  notwithstanding  the 
partition.  Hunt  v.  Meeker  County  Ab- 
stract, etc.  Co.  (Minn.)  1916D-925. 

(Annotated.) 

2.    BY  JUDICIAL  PROCEEDINGS, 
a.     Jurisdiction. 

3.  Service  by  Publication.  Under  N.  J. 
Chancery  Act,  §§  10,  11  (1  Comp.  St.  1910, 
p.  413),  providing  that  a  suit  in  equity 
may  proceed  against  a  defendant  by  n^me 
and  his  heirs  where  complainant  is  unable 
to  ascertain  whether  defendant  is  dead  and 
is  unable  to  ascertain  the  names  or  resi- 
dences of  his  heirs,  provided  notice  as  is 
required  by  law  to  be  published  against 
absent  defendants  is  given,  the  court  of 
chancery  has  jurisdiction  on  notice  by  pub- 
lication to  nonresident  owners  and  persons 
believed  to  be  dead,  their  heirs,  devi£e«>s  or 
personal  representatives,  to  decree  a  par- 
tition or  a  sale  in  lieu  of  partition  and 
make  good  title  thereto  by  decree  for 
actual  partition  or  through  deed  by  a  mas- 
ter in  chancery  in  pursuance  of  a  decree 
for  sale.  Cona  v,  Henry  Hudson  Co.  (N. 
J.)    1916E-999.  (Annotated.) 

Note. 

Validity  of  service  by  publication  in 
action  for  partition.     1916E-1002. 

b.     Who  may  Maintain  Action. 

4.  Right  to  Partition.  A  cotenant  has 
the  right  to  compel  a  partition  of  the 
common  property  unless  such  right  has 
been  suspended  or  waived  by  some  agree- 
ment, in  respect  to  the  property,  made  by 
himself  or  by  one  through  whom  he  claims. 
Hunt  V.  Meeker  County  Abstract,  etc.  Co. 
(Minn.)  1916D-925. 

c.     Property  Subject. 

5.  Known  oil  lands,  like  mines,  cannot 
bo  judicially  partitioned  in  kind,  at  the 
suit  of  one  of  the  co-owners;  or  by  a  cred- 
itor of  a  co-owner.  Gulf  Refining  Co.  v. 
Hayne   (La.)   1917D-130.  (Annotated.) 

Note. 

Partition  of  mining  interests  and  min- 
ing rights.     1917D-135. 

d.     Parties. 

6.  Proceeding  to  Validate — Inurement  of 

Title.     Though  the  purchaser  from  the  ex- 
ecutor was  not  made  a  party,  the  execu- 


PARTIES  TO  CRIME— PARTNERSHIP. 


657 


tor's  title,  having  been  perfected,  inured 
to  the  benefit  of  the  purchaser;  no  relief 
against  him  being  sought.  G'lover  v.  Brad- 
ley  (Fed.)    1917A-921. 

7.  Virtual  Representation.  In  a  parti- 
tion suit,  where  actual  appearance  of 
n;inor  children  in  interest  of  certain  lega- 
tees could  have  been  enforced,  their  in- 
terest cannot  be  bound  by  the  judgment 
on  the  theory  of  virtual  representation. 
Chambers  v.  Preston  (Tenn.)  1918B-428. 

(Annotated.) 

e.     Actual  Division  of  Property. 

8.  Mining  Property — Power  to  Partition 
in  Kind.  A  lessee  under  a  mineral  con- 
tract may  not  contest  the  title  of  his  lessor 
as  an  owner  in  indivision  with  others,  and 
compel  him  and  his  co-owners  to  make  a 
judicial  partition  in  kind  of  the  property 
leased.  Gulf  Refining  Co.  v.  Hayne  (La.) 
1P17D-130.  (Annotated.) 

f.    Sale  of  Land. 

9.  Testamentary  Restriction  on  Right — 
Sale  Subject  to  Restriction.  Where  one 
willed  a  farm  in  fee  to  his  wife,  directing 
tiiat  his  daughter  should  have  a  home 
thereon,  though  the  daughter  acquired  no 
interest  in  the  land,  a  charge  thereon  was 
created  in  her  behalf;  and  where  the 
mother  died  intestate,  and  a  partition  sale 
of  the  land  would  not  secure  to  the  daugh- 
ter the  full  benefit  of  the  provision  made 
for  her,  a  sale  would  not  be  decreed  at 
the  suit  of  other  children  ^of  the  mother, 
the  effect  of  which  would  deprive  the 
daughter  of  possession,  but  a  sale  may  be 
ordered,  subject  to  her  possessory  rights. 
Chew  V.  Sheldon  (N.  Y.)  1916D-1268. 

(Annotated.) 

g.     Determination     of     Legal     Title     and 
Right  of  Possession. 

10.  Under  and  pursuant  to  a  contract 
made  at  the  time  of  the  construction  of 
the  building  in  controversy,  plaintiff  is  in 
possession  of  the  second  floor  thereof  and 
defendant  of  the  first  floor  thereof.  It  is 
held  that  their  respective  rights  of  occu- 
pancy under  this  contract  may  exist  after 
partition  the  same  as  before,  and  that 
plaintiff  may  compel  a  partition,  but  that 
such  partition  will  be  subject  to  such 
rights  of  occupancy.  Hunt  v.  Meeker 
County  Abstract,  etc.  Co.  (Minn.)  19I6D- 
92^5.  (Annotated.) 

PARTNERSHIP. 

1.  The  Partnership  Relation,  657. 

a.  In  General,  657. 

b.  "What    Constitutes    a    Partnership, 

658. 

2.  Partnership  Property,  658. 

3.  Rights  and  Liabilities  Inter  Se,  658. 

42 


a.  Accounting  Between  Partners,  658. 

b.  Competition  by  Partner,  659. 

c.  Power  of  Majority,  659. 

d.  Contribution,  659. 

4.  Liability  to  Third  Parties,  659. 

a.  Nature  of  Liability,  659. 

b.  Authority  to  Bind  Firm,  659. 

e.  Discharge  of  One  Partner  from  Lia- 

bility,  660. 

d.  Firm  and  Individual  Creditors,  660. 

e.  Actions,  660. 

5.  Transfer  of  Partner's  Interest,  660. 

6.  Retirement  of  Partners,  660. 

7.  Dissolution,  660. 

a.  Dissolution   by   Death,  of  Partaer, 

660. 

b.  Rights  of   Partners   to   Capital   on 

Dissolution,    661. 

c.  Jurisdiction    in    Equity    to    Adjust 

Rights,  661. 

d.  Contribution,  661. 

Authority  of  partner  to  withdraw  firm  de- 
posit, see  Banks  and  Banking,  43. 

Partnership  as  disqualification,  see  Judges, 
14. 

Action  by  partner  for  libel  of  firm,  see 
Libel  and  Slander,  71,  86. 

Partnership  of  city  and  railroad  company, 
see  Municipal  Corporations,  42. 

1.     THE  PARTNERSHIP  RELATION, 
a.     In   General. 

1.  Intent  as  Essential  to  Creation  of 
Partnership.  Persons  may  form  a  part- 
nership, though  not  intending  bo  to  do, 
since  a  partnership  may  be  implied  by 
agreement,  whereby  persons  assume  a  re- 
lation in  law  constituting  a  partnership. 
Freeman  v.  Huttig  Sash,  etc.  Co.  (Tex.) 
1916E-446.  (Annotated.) 

2.  Definition  of  Partnership.  By  express 
provision  of  Cal.  Civ.  Code,  see.  2395,  a 
partnership  is  the  association  of  two  or 
more,  for  the  purpose  of  carrying  on  busi- 
ness together,  and  dividing  its  profits  be- 
tween them.  Westeott  v.  Gilman  (Cal.) 
1916E-437. 

3.  Knowledge  of  Parties  as  to.  Status. 
It  is  not  necessary,  as  regards  liability 
to  third  persons,  that  parties  know  th.it 
their  contract  in  law  creates  a  partnership; 
but  it  is  enough  that  by  contract,  or  con- 
duct, or  both,  they  have  in  law  engaged 
in  a  partnership  venture.  Westeott  v.  Gil- 
man  (Cal.)  1916E-437.  (Annotated.) 

4.  Partnership  for  Single  Adventure.  A 
partnership  may  be  for  the  prosecution  of 
one  or  two  adventures,  and  need  not  be 
for  the  conduct  of  a  general  and  continu- 
ous business.  Westeott  v.  Gilman  (Cal.) 
1916E-437. 

5.  The  existence,  or  not,  of  a  partnership 
cannot  be  determined  by  dissecting  the 
whole  relationship,  and  considering  each 
fragment  as  though  it  were  the  complete 
whole;  but,  especially  as  to  third  persons, 
it  is  to  be  determined  by  the  contract, 
taken  with  the  conduct  and  the  dealings 


658 

with  the  world  of  the  parties  to  it 
cott  V.  Gilman  (Cal.)  1916E-437. 

6.  While  the  element  of  profit  sharing 
does  not  alone  and  of  itself  establish  a 
partnership,  it  is  essential  to  a  partner- 
ship. Westcott  V.  Gilman  (Cal.)  1916E- 
437. 

Note. 

Intent  as  essential  to  creation  of  part- 
nership.    1916E-440. 


b.     What  Constitutes  a  Partnership. 

7.  SulBciency  of  Agreement  to  Create 
Partnership.  That  the  agreement  between 
G.  and  P.  for  obtaining  fruit  by  purchase 
or  on  consignment,  and  shipping  and  sell- 
ing it,  while  making  G.  the  buyer,  gives 
i'.,  the  seller,  the  right  to  veto  prospective 
purchases  if  the  price  is  not  satisfactory 
to  it,  does  not  prevent  the  contract  being 
oue  of  partnership,  at  least  as  concerns 
third  persons.  Westcott  v.  Gilman  (Cal.) 
19J6E-437. 

8.  That  by  the  agreement  between  G. 
and  P.  for  procuring,  shipping,  and  selling 
fiuit  G.  is  to  devote  his  service  to  procur- 
ing the  fruit,  while  P.  is  to  devote  its  ser- 
vices to  handling  and  selling  it,  each  with- 
out charges;  does  not  prevent  the  existence 
of  a  partnership  between  them.  Westcott 
V.  Gilman  (Cal.)   1916E-437. 

9.  Scope  of  Firm  Business.  The  busi- 
ness agreed  to  be  done  by  and  between  G. 
and  P.  is  not  limited  to  mere  shipping, 
the  contract,  in  the  form  of  a  letter  from 
P.  accepted  by  G.,  being:  "We  will  do  a 
joint  account  business  with  you  on  equal 
division  of  profits  and  losses.  The  busi- 
ness is  to  be  the  shipping  of  oranges  and 
lemons,  which  you  are  to  secure  without 
any  expense  to  the  joint  account,  on  con- 
signment, or  if  any  purchases  are  made,  it 
shall  only  be  done  with  our  consent  .  .  . 
when  the  amount  of  purchase  exceeds  $100. 
You  are  to  furnisrh  the  packing  house  and 
are  entitled  to  $5  per  car  for  each  car 
packed.  W*  will  furnish  the  funds  re- 
quired to  handle  the  business  and  do  the 
selling  free  of  expense  to  the  joint' account, 
all  legitimate  packing  house  expenses  are 
to  be  charged  against  the  joint  account." 
Westcott  v.  Gilman   (Cal.)   1916E-437. 

10.  Creation — Intention  as  Essential.  A 
partnership  agreement  executed  to  pro- 
tect one  of  the  parties  thereto  in  respect 
to  money  loaned  by  him  to  the  other  and 
with  no  intention  that  it  shall  become 
operative  according  to  its  terms  does  not 
create  a  partnership.  Kelly,  Douglas  &  Co. 
v.  Sayle  (Brit.  Col.)   1916E-444. 

(Annotated.) 

2.    PARTNERSHIP  PROPERTY. 

11.  rirm  Realty — Equitable  Conversion. 
Whether  real  estate  bought  by  the  mem- 


DIGEST. 

1916C— 1918B. 

West-  bers  of  a  partnership  and  standing  in  the 
name  of  one  or  both  partners  constitutes 
personal  assets  of  the  firm  depends  largely 
on  what  funds  were  used  in  the  purchase, 
what  use  was  to  be  made  of  the  property, 
and  the  intentions  of  the  partners  at  the 
time.     Sieg  v.  Greene   (Fed.)   1917C-1006. 

12.  Real  estate  which  belongs  to  a  part- 
nership is  treated  in  equity  as  personal 
property  only  so  far  as  it  may  be  needed 
to  pay  the  debts  of  the  partnership  and 
adjust  the  equities  of  the  partners.  Sieg 
v.  Greene  (Fed.)  1917C-1006. 


3.     EIGHTS  AND  LIABILITIES  INTER 
SE. 

a.     Accounting  Between  Partners. 

13.  Evidence.  There  being  no  evidence 
that  the  apparent  overdraft  in  a  firm's 
bank  account,  when  one  of  the  partners 
left  the  business  in  the  hands  of  others, 
represented  any  partnership  loss,  and  was 
not  met  by  deposits  with  the  bank's  east- 
ern correspondent  of  the  proceeds  of  stock 
shipped  east  by  the  firm,  as  in  the  ordinary 
course  of  business  it  would  be,  the  other 
partners  were  not  entitled  to  be  credited 
as  against  their  partner,  on  a  final  account- 
ing, with  the  amount  of  such  apparent 
overdraft  on  the  final  overdraft,  all  the 
rest  of  which,  at  least,  represented  a  mis- 
appropriation by  them.  Gorman  v.  Mad- 
den (S.  Dak.)  1916D-842. 

14.  That  among  the  checks  of  the  part- 
ners, with  whom  a  firm's  business  was  left 
by  the  partner,  which  checks  created  an 
overdraft  of  the  firm's  bank  account,  was 
one  for  the  amount  of  the  purchase  price 
of  a  horse  bought  for  the  firm  before  the 
settlement  of  the  previous  year's  business, 
does  not  show  that  the  horse  was  paid  for 
with  such  check,  so  as  to  entitle  such  part- 
ners to  credit  therefor  on  an  accounting 
with  their  partner;  the  balance  of  the 
overdraft,  at  least,  being  a  misappropria- 
tion by  them.  Gorman  v.  Madden  (S. 
Dak.)   1916D-842. 

15.  Though  the  answer,  in  action  by  one 
of  the  partners  against  the  others  for  an 
accounting  of  the  afifairs  of  the  firm  of 
M.  &  G.,  engaged  in  buying  and  selling 
live  stock,  alleges  that  during  the  course  of 
said  partnership  plaintiff  engaged  in  a 
business  "contrary  to  the  provisions  of  this 
said  partnership,"  yet  it  alleging  that  he 
"bought  and  soli  live  stock  as  such  part- 
ner," from  which  business  he  has  made 
profits  of  which  he  has  made  no  account- 
ang  to  defendants,  defendants  may  thehe- 
under  show  that  plaintiff,  as  representa- 
tive of  the  firm  of  M.  &  G.,  under  an  agree- 
ment between  the  members  thereof  that  he 
should  do  so,  engaged  in  such  other  busi- 
ness as  partner  with  others;  so  that  the 
firm  of  M.  &  G.  was  entitled  to  his  share 
of  the  profits  in  such  other  business.  Jjor- 
man  v.  Madden  (S.  Dak.)  1916D-842. 


PARTNERSHIP. 


6139 


b.     Competition  by  Partner. 

16.  Right  of  Partner  to  Engage  in  CoiOr 
peting  Bu-iness.  A  partner,  without  the 
consent  of  his  copartners,  cannot  carry  on 
a  business  of  the  same  nature  and  compet- 
ing with  that  of  the  firm,  and,  if  he  does 
so,  equity  may  enjoin  its  continuance. 
Crownfield  v.  Phillips  (Md.)   1916E-991. 

(Annotated.) 

17.  Where  after  disagreement  between 
partners,  and  pending  dissolution,  the  out- 
going partner  sets  up  a  competing  busi- 
ness which  seriously  interferes  with  the 
business  of  the  firm,  the  continuing  part- 
ner is  entitled  to  a  preliminary  injunction 
restraining  the  continuance  of  such  com- 
peting business  pending  settlement  of  the 
partnership  affairs.  Crownfield  v.  Phi.l.ps 
(Md.)  1916E-991.  (Annotated.) 

Note. 
Eight  of  partner  to  carry  on  business  in 
competition  with  firm.     1916E-993. 

c.    Power  of  Majority. 

18.  Power  of  Majority  of  Partners.  In 
case  of  a  diversity  of  opinion  regarding 
the  internal  affairs  of  a  partnership,  part- 
nerships act  by  a  majority,  and  such  a  ma- 
jority, when  acting  in  good  faith  and 
within  the  scope  of  the  partnership  busi- 
ness, binds  the  firm.  Reirden  v.  Stephen- 
son (Vt.)  1916C-109.  (Annotated.) 

19.  A  majority  of  the  members  of  a  part- 
nership engaged  in  manufacturing  butter 
tubs  which  had  sold  its  plant  and  most  of 
its  personal  property,  but  which  still  had 
some  personal  property  and  some  debts  due 
it,  and  which  so  far  as  appeared  had  not 
gone  out  of  business,  have  implied  author- 
ity to  employ  a  person  to  examine  the 
books  and  affairs  of  the  partnership  and 
ascertain  its  financial  standing  and  to  fix 
his  compensation  either  before  or  after  the 
work  is  completed.  Eierden  v.  S.eph?nson 
(Vt.)  1916C-109.  (Annotated.) 

20.  In  an  action  against  a  partnership 
by  a  person  employed  by  a  majority  of  the 
members  to  examine  its  books  and  affairs 
and  ascertain  its  financial  standing,  where, 
though  it  appeared  that  it  had  sold  most 
of  its  property,  there  was  no  finding  that 
it  had  gone  out  of  business,  or  that  the  firm 
was  not  to  continue,  this  cannot  be  as- 
sumed in  order  to  hold  a  judgment  for 
plaintiff  erroneous  on  the  ground  that  such 
members  of  the  firm  had  no  authority  to 
bird  it.  Eierden  v.  Stephenson  (Vt.) 
1916C-109.  'Annotated.) 

Note. 
Power  of  majority  of  partners  to  bind 
firm.     19160-110. 

d.     Contribution. 

21.  Where  a  firm  of  attorneys  acting 
honestly  and  in  good  faith,  but  under  a 


mistaken  conception  of  the  law,  rendered 
services  in  the  settlement  of  the  estate  of 
a  testator  contrary  to  the  terms  of  the 
will  and  obtained  compensation  therefor, 
and  the  court  directed  the  attorneys  to  re- 
fund the  same  to  the  estate,  a  partner  mak- 
ing the  refund  was  entitled  to  contribution 
from  a  copartner  as  against  the  objection 
that  the  attorneys  were  wrongdoers.  Es- 
tate of  Eyan  (Wis.)  1916D-840. 

(Annotated.) 

22.  Illegal  Transaction.  The  rule  that 
there  can  be  no  contribution  between 
wrongdoers  is  subject  to  the  modification 
that  a  claim  for  contribution  by  one  part- 
ner against  a  copartner  will  not  be  re- 
jected unless  the  firm  is  an  illegal  one,  or 
unless  the  act  relied  on  as  the  basis  of  the 
claim  was  not  only  illegal,  but  the  illegal- 
ity was  such  that  it  must  or  ought"  to  have 
been  known  to  the  partners  claiming  con- 
tribution. Estate  of  Eyan  (Wis.)  1916D- 
840.  (Annotated.) 

23.  For  Firm  Debts.  A  partner  forced 
to  pay  firm  debts  may  require  contribution 
from  his  copartners.  Webb  v.  Butler 
(Ala.)  1916D-815.  (Annotated.) 

24.  Liquidation  of  Assets — ^Agreement  as 
to  Method.  Where  defendant,  who  was  one 
of  several  banking  partners,  signed  an 
agreement  appointing  trustees  to  admin- 
ister the  firm  property,  and  the  agreement 
was  confirmed  by  the  chancery  court,  he 
cannot,  by  demurrer,  question  a  biil  to 
compel  him  to  pay  his  pro  rata  part  of  the 
debts,  the  firm  being  insolvent,  on  the 
ground  that  the  statute  provided  the  only 
method  of  settling  the  affairs  of  the  bank. 
Webb  V.  Butler  (Ala.)  1916D-815. 

4.     LIABILITY  TO  THIED  PARTIES, 
a.     Nature  of  Liability. 

25.  Liability  of  New  Firm.  An  agree- 
ment of  a  new  firm,  formed  from  an  old 
one  by  the  addition  of  a  new  member,  to 
pay  debts  of  the  original  firm,  must  be 
consented  to  by  all  the'  members  of  the 
new  firm.  Webb  v.  Butler  (Ala.)  1916D- 
815. 

26.  Incoming  Partner — Liability  for  Past 
Debts.  One  becoming  a  partner  of  a  go- 
ing firm  does  not  thereby  become  liable  for 
debts  previously  incurred,  in  the  absence 
of  an  agreement,  express  or  implied,  to  that 
effect,  but  the  presumption  is  against  the 
assumption  of  liability.  Freeman  v.  Hut- 
tig  Sash,  etc.  Co.  (Tex.)  1916E-446.. 

b.     Authority  to  Bind  Krm. 

27.  Where  two  of  three  partners,  en- 
gaged in  forming  a  corporation,  to  take 
over  land  on  which  they  had  an  option,  as- 
sure purchasers  of  interests  therein  that 
the  partnership  will  attend  to  the  detail 
work  and  bear  the  expense  of  forming;  a 
corporation   to   take   over   the   land,   such 


660 


DIGEST. 

1916C— 1918B. 


agreement  is  within  the  scope  of  the  firm 
business  and  is  binding  upon  the  third 
partner.  Tanner  v.  Sinaloa  Land,  etc.  Co. 
(Utah)  1916C-100. 

28.  A  partner  may  bind  the  firm  when 
acting  therefor  within  the  scope  of  the 
partnership  business.  Eeirden  v.  Stephen- 
son (Vt.)  1916C-109. 

c-     Discharge  of  One  Partner  from  Liabil- 
ity. 

29.  Right  to  Hold  Single  Partner.  Cred- 
itors may  discharge  one  partner  and  re- 
cover against  another,  because  the  credit 
is  extended  to  the  firm  on  the  individual 
liability  of  each.  Webb  r.  Butler  (Ala.) 
1916D-815. 

d.     Krm  and  Individual  Creditors. 

30.  Lien  of  Creditor  on  Partnership 
Property.  A  creditor  of  a  firm  acqui.es  no 
l:en  on  the  property  of  a  new  firm  created 
by  a  third  person  acquiring  the  interest  of 
a  partner  in  the  former  firm.  Freeman  v. 
Huttig  Sash,  etc.  Co.  (Tex.)  1916E-446. 

e.     Actions. 

31.  Action — Continuation  In  Name  of 
Survivors.  It  was  not  error  to  strike  out 
the  names  of  two  deceased  partners  as 
plaintiffs  and  permit  the  action  to  proceed 
to  judgment  under  the  names  of  the  sur- 
viving partners.  Sweetser  v.  Fox  (Utah) 
1916C-620. 

5.  TEANSFEB  OF  PAETNEB'S  INTEB- 
EST. 

32.  Incoming  Partner — Liability  for  Past 
Debts.  Where  a  purchaser  of  a  partner's 
interest  in  a  firm  became  a  partner  with 
the  copartners  in  a  new  firm,  the  pur- 
chaser, as  partner,  was  liable  for  goods 
ordered  by  the  firm  before  the  purchase 
and  delivered  thereafter,  and  for  goods  or- 
dered and  delivered  after  the  purchase,  but 
was  not  liable  fdr  goods  ordered  and  de- 
livered before  the  purchase.  Freeman  v. 
Huttig  Sash,  etc.  Co.  (Tex.)  1916E-446. 

33.  A  purchaser  of  a  partner's  interest 
in  a  going  firm  is  not  liable  for  existing 
firm  debts  for  goods  purchased  merely  be- 
cause the  new  firm  receives  and  uses  them 
for  its  own  brnefit.  Freeman  v.  Huttig 
Sash,  etc.  Co.  (Tex.)  1916E-t46. 

34.  The  purchase  of  a  partner's  net  in- 
terest in  a  going  firm  is  not  of  itself  suffi- 
cient to  create  an  assumption  of  his  in-, 
dividual  liability  for  existing  firm  debts. 
Freeman  v.  Huttig  Sash,  etc.  Co.  (Tex.) 
1916E-446. 

35.  The  purchaser  of  a  partner's  interest 
in  a  going  firm  is  not  personally  liable  for 
existing  firm  debts  merely  because  he  rec- 
ognized that  the  firm  property  was  subject 
thereto,  and  did  not  expect  "to  obtain  the 


partner's  interest  free  from  the  debts,  but 
expected  that  a  corporation,  to  be  formed, 
should  pay  them  in  taking  over  the  firm 
property,  and  though  he  advised  a  copart- 
ner to  apply  proceeds  of  sales  of  firm  goods 
to  the  payment  of  firm  debts,  irrespective 
of  the  time  of  their  creation.  Freeman  v. 
Kuttig  Sash,  etc.  Co.  (Tex.)   1916E-446. 

36.  A  purchaser  of  a  partner's  interest 
in  a  going  firm  did  not  intend  to  enter  the 
film  and  there  was  no  agreement  that  he 
should  become  a  partner,  but  it  was  the 
purpose  of  the  purchaser  and  the  remain- 
ing partners  that  the  business  should  be 
incorporated.  The  formation  of  the  cor- 
poration was  unavoidably  deferred,  and  it, 
in  fact,  was  never  formed,  and,  while  the 
purpose  to  form  it  remained,  the  business 
went  on  under  the  firm  name  under  the 
management  of  a  copartner  as  before. 
Held,  that  the  purchaser  became  a  pnrtner 
in  a  new  firm  composed  of  himself  and  the 
remaining  partners  in  the  old  firm.  Free- 
man V.  Huttig  Sash,  etc.  Co.  (Tex.)  1916E- 
446.  *  (Annotated.) 

37.  Mode    of   Determining   Value.    The 

assets  must  for  the  purposes  of  such  a  pur- 
chase be  valued  by  appraisal  and  the  an- 
nual accounting  and  balance  sheet  of  the 
firm  is  not  conclusive.  Wood  v.  Gauld 
(Can.)  1917C-939. 

38.  Valuation  of  Assets — ^Inclusion  of 
Good  W 11.  In  valuing  the  assets  of  a 
partnership  for  the  purpose  of  a  purchase 
by  the  survivor  of  the  interest  of  a  de- 
ceased partner,  the  value  of  the  good  will 
of  the  firm  is  to  be  included,  though  the 
annual  balance  sheets  of  the  firm  took  no 
account  of  it.  Wood  v.  Gauld  (Can.) 
1917C-939. 

Note. 
Right  of  surviving  partner  to  purchase 
deceased  partner's  interest.     1917C-946. 

6.     BETIEEMENT  OF  PAETNERS. 

39.  Liability  of  Eetiring  Partner.  A  re- 
tiring partner  is  not  released  from  liability 
to  the  creditors,  unless  they  agree  with  the 
new  fim  for  such  release.  Webb  v.  But- 
ler (Ala.)  1916D-815. 

40.  Change  in  Personnel — Effect.  Every 
change  in  the  personnel  of  a  partnership 
works  a  dissolution.  Webb  v.  Butler 
(Ala.)  1916D-815. 

7.     DISSOLUTION, 
a.     Dissolution  by  Death  of  Partner. 

41.  Eights  of  Surviving  Partner — Pur- 
chase of  Interest  of  Decedent — Preferen- 
tial Eight.  A  preferential  right  of  the  sur- 
viving partner  to  purchase  the  interest  of 
u  deceased  partner  will  be  implied  from 
provisions  in  the  articles  of  partnership 
that  the  interest  of  the  decedent  shall  not 
be  withdrawn  for  a  year  and  for  an  arbi- 
tration of  disputes  between  the  surviving 


PART  PAYMENT— PATENTS. 


661 


partner  and  the  representatives  of  the  de- 
cedent as  to  the  value  of  the  assets.  Wood 
T.  Gauld  (Can.)  1917C-939.     (Annotated.) 


b.     Eights  of  Partners  to  Capital  on  Dis- 
solution. 

42.  Time  to  File  Claims  Against  Estate. 
Under  Wis.  St.  1913,  §  3844,  providing  that 
every  claim  against  an  estate  not  presented 
for  allowance  within  the  time  fixed  by  the 
order  limiting  the  time  for  the  presenta- 
tion of  claims  shall  be  barred,  and  section 
3860,  declaring  that  if  a  claim  shall  accrue 
after  the  expiration  of  the  limited  time.it 
may  be  presented  and  proved  at  any  time 
within  one  year  after  accrual,  a  claim  by 
an  attorney  for  contribution  against  the 
estate  of  his  deceased  partner  based  on  a 
judgment  rendered  after  expiration  of  the 
time  limited  by  order  for  presentation  of 
claims  and  that  payment  thereof  by  the  at- 
torney is  not  barred  when  presented  within 
one  year  after  the  judgment.  Estate  of 
Byan  (Wis.)  1916D-840. 

Note. 
Bight  of  contribution  between  partners. 
1916D-820. 


c.    Jurisdiction  in  Equity  to  Adjust  Bights. 

43.  Accounting.  In  a  suit  to  dissolve  a 
partnership,  a  court  of  equity  will  force 
an  accounting,  though  the  accounts  were 
not  complicated.  Webb  v.  Butler  (Ala.) 
1916D-815. 

d.    Contribution. 

44.  The  partners,  who  overdrew  the  part- 
nership account  for  their  personal  benefit, 
are,  in  the  absence  of  partnership  assets  to 
meet  the  same,  personally  liable  for  the 
amount  of  the  overdraft,  on  an  accounting 
after  dissolution,  to  the  other  partner  who 
alone  repaid  the  bank.  Gorman  v.  Mad- 
den (S.  Dak.)  1916D-842.        (Annotated.) 

45.  Where  two  of  the  partners  drew  out 
for  their  personal  benefit  funds  from  the 
firm's  bank  account,  the  third  partner,  on 
au  accounting  after  dissolution,  is  entitled 
to  recover  a  third  of  such  account  from 
the  other  partners'  share  of  the  partnership 
assets  remaining,  or,  in  the  absence  of  such 
assets  from  them  personally.  Gorman  v. 
Madden  (S.  Dak.)  1916D-842. 

(Annotated.) 

46.  Between  Partners.  On  dissolution  of 
a  partnership,  the  partner,  who,  in  accord- 
ance with  partnership  agreement,  advanced 
money  for  the  business,  is  entitled,  as 
against  the  other  partners,  to  be  repaid  the 
same  from  the  partnership  assets.  Gor- 
man V.  Madden  (S.  Dak.)  1916D-842. 

(Annotated.) 


PAET  PAYMENT. 

Bar  of  statute  removed  by,  see  Frauds, 
Statute  of,  7. 

As  removing  bar,  see  Iiiinitation  of  Ac- 
tions, 44-46. 

PABT  PEEFOEMANCE. 

Of  oral  agreement,  see  Frauds,  Statute  of, 
19,  20. 

PAETY-WALLS. 

See  Adjoining  Landowners,  2-6. 
Kegulation  of,  see  Buildings,  2. 
Termination  of  rights  by  destruction,  see 
Easements,  8. 

PAE  VALUE. 
Meaning,  see  Counties,  11. 

PASSENOEE  DEPOT. 
Meaning,  see  Eailroads,  48. 

PASSENGEE  FOE  HIEE. 

Person  attending  live  stock,  see  Carrien 
of  Passengers,  13. 


PASSENaEES. 

Who  are,  see  Oairiers  of  Passengers,  11-14. 
Carriers'    duties   toward,   see   Carriers   of 
Passengers,  15-46. 


PATENTS. 

1.  Power  of  Patentee  to  Impose  Condi- 
tions on  Use — Eestriction  as  to  Materials. 
The  owner  of  a  patent  may  not,  under  U. 
S.  Bev.  Stat.  §  4884  (5  Fed.  St.  Ann.  419), 
giving  him  the  exclusive  right  to  use  the 
invention,  restrict  its  use  by  a  purchaser, 
by  a  notice  attached  to  the  machine  em- 
bodying the  patent,  to  specific  materials 
necessary  to  its  operation,  but  which  are 
no  part  of  the  patented  machine,  and  are 
not  themselves  patented,  nor  can  he,  by 
such  notice,  make  the  use  of  the  machine 
subject  to  further  conditions  as  to  use  or 
royalties  that  may  be  imposed  thereafter 
in  his  discretion.  Motion  Picture  Patents 
Co.  V.  Universal  Film  Mfg.  Co.  (U.  S.) 
1918A-959.  (Annotated.) 

2.  The  exclusive  right  to  use  the  inven- 
tion or  discovery  granted  by  U.  S.  Bev. 
Stat.  §  4884  (5  Fed.  St.  Ann.  419),  to  the 
patentee,  his  heirs  or  assignees,  did  npt 
invest  the  assignee  of  the  Latham  patent 
No.  707,934,  who  had  licensed  another  to 
make  and  sell  a  motion  picture  exhibiting 
machine  embodying  the  invention,  with 
the  power  to  limit,  by  a  notice  attached  to 
the  machine,  its  use  by  a  purchaser  or  the 
latter's  lessee  to  films  containing  the  in- 


662     < 


DIGEST. 

19160— 1918B. 


vention  of  tbe  reissued  Edison  patent  No. 
12,192,  80  long  as  the  assignee  continues  to 
own  such  patents,  nor  by  such  notice  to 
condition  the  use  upon  other  terms  to  be 
fixed  by  such  assignee  and  complied  with 
b}  the  user  while  the  machine  is  in  use 
and  while  the  assignee  owns  the  patents. 
Motion  Picture  Patents  Co.  v.  Universal 
Film  Mfg.  Co.  (U.  S.)  1918A-959. 

(Annotated.) 

PAUPERS. 
See  Poor  and  Poor  Laws. 


PAWNBEOKEES. 
Loan  brokers,  see  Brokers,  14. 

1.  Constitutional  Law  —  Begnlation  of 
Loan  Brokers— Validity.  Cal.  St.  1909,  p. 
969,  amended  by  St.  1911,  p.  978,  which 
by  section  1  declares  that  one  engaged  in 
loaning  or  advancing  money  on  the  secur- 
ity of  chattel  mortgages,  or  personal  prop- 
erty, or  on  security  of  a  lien  or  assign- 
ment of,  or  power  of  attorney  relating  to, 
wages,  shall  be  deemed  a  "personal  prop- 
erty broker,"  sections  2  and  3  of  whicu  al- 
low such  brokers  to  charge  and  receive  2 
per  cent  a  month,  and  section  5  of  which 
requires  such  brokers,  on  making  any  loan 
or  advancement,  to  give  the  borrower  a 
memorandum  showing  the  name  of  the 
lender,  the  nature  of  the  security,  etc.  and 
which  declares  the  failure  to  give  such 
memorandum  to  be  a  misdemeanor,  is  not 
in  conflict  with  Const,  art.  1,  §  11.  declar- 
ing that  all  laws  of  a  general  nature  shall 
have  a  uniform  operation,  nor  with  section 
21,  forbidding  the  granting  of  special 
privileges  and  immunities  to  any  class  of 
citizens,  which  on  the  same  terms  are  not 
given  to  all,  since  such  business  is  peculiar 
and  well  known  and  capable  of  classifica- 
tion. Matter  of  Stephan  (Cal.)  1916E- 
617.  (Annotated.) 

2.  Such  act  is  not  within  the  meaninsr  of 
Cal.  Const,  art.  4,  §  25,  subd.  23,  forbidding 
special  laws  "regulating  the  rate  of  inter- 
est on  money."  Matter  of  Stephan  (Cal.) 
1P16E-617.  (Annotated.) 

Note. 
State  or  municipal  regulation  of  personal 
property  loan  brokers.     1916E-618. 

PAYMENT. 

1.  What  Constitutes  Payment. 

2.  Application  of  Payments. 

a.  In  General. 
'   b.  Application  by  Debtor. 

c.  Application  by  Third  Party. 
3    Proof  of  Payment. 
4.  Eecovery  of  Voluntary  Payment. 

Assignment  of,  see  Assignments,  19. 

Liability  of  bank  for  unauthorized  pay- 
ments, see  Banks  and  Banking,  56. 

Of  negotiable  paper,  see  Bills  and  Notes, 
35-37. 


Check  as  payment,  see  Escrow,  3,  7. 

Eemoving  bar  by  part  payment,  see  Frauds, 
Statute  of,  7. 

Application  in  order  of  priority,  see  Me- 
chanics' Liens,  40. 

Payment  of  note  held  by  third  party  as 
defense  to  foreclosure  of  mortgage,  see 
Mortgai^es  and  Deeds  of  Trust,  24. 

Payment  in  full  as  prerequisite  to  subro- 
gation, see  Subrogation,  7. 

SuflBciency  of  part  payment  to  import  new 
contract,  see  Sundays  and  Holidays,  4. 

Becovery  of  taxes  erroneously  exacted  or 
paid,  see  Taxation,  101-106. 

Eecovery  of  taxes  erroneously  collected  un- 
der Foreign  Corporation  Tax  Act,  see 
Taxation,  170. 

1.     WHAT     CONSTITUTES    PAYMENT. 

1.  Note  as  Paym^it — Question  of  Law 
or  Fact.  Whether  defendant's  note  in  suit 
was  given  by  him  and  accepted  by  plain- 
tiff in  lieu  of  cash  as  payment  and  satis- 
faction pro  tanto  of  part  of  the  purchase 
price  under  a  conditional  sale  of  chattels 
is  a  mixed  question  of  law  and  fact.  Nor- 
man v.  Meeker  (Wash.)   1917D-462. 

2.  Note  as  Payment — Effect  of  Negotia- 
tion by  Payee.  The  negotiation  by  the 
payee  of  a  note  evidencing  a  debt  does  not 
operate  as  a  payment  of  the  debt  so  as  to 
discharge  the  lien  of  a  conveyance  made 
by  way  of  collateral  security.  Moody  v. 
Stubbs  (Kan.)  1917C-362.        (Annotated.) 

Note. 
Negotiation  of  note  of  debtor  as  consti- 
tuting payment  of  original  debt.     1917C- 
364. 

2.  APPLICATION  OP  PAYMENTS. 

a.    In   General. 

3.  In  the  absence  of  an  agreement  pro- 
viding otherwise,  payment  upon  a  debt  for 
salary  of  a  municipal  employee  consisting 
of  principal  and  interest  not  actually  ap- 
plied by  the  debtor  or  creditor  is  first  ap- 
plicable to  the  interest  due  and  then  to 
the  principal.  Shepard  t.  New  York  (N. 
Y.)  1917C-1062.  (Annotated.) 

b.     Application  by  Debtor. 

4.  The  debtor  may  elect  to  have  all  his 
payments  upon  the  indebtedness  treated 
as  payments,  first  upon  the  legal  interest 
and  principal,  in  which  case  no  usury  can 
be  sued  for  until  the  entire  debt  has  been 
paid.  Taulbee  v.  Hargis  (Ky.)  1918A- 
762. 

5.  Evidence  of  Proper  Application.  A 
surety  company  guaranteed  payment  for 
materials  used  by  a  construction  company 
in  paving  certain  streets,  another  construc- 
tion company,  with  the  same  oflicers  and 
the  same  general  manager,  had  a  contract 
for  paving  certain  other  streets,  and  each 


PEACE— PENSIONS. 


663 


company  purchased  its  materials  from 
plaintiff.  Held,  that  the  evidence  is  suffi- 
cient to  support  a  finding  that  certain 
checks  signed  by  the  first  construction 
company  and  delivered  to  plaintiff  by  the 
manager  of  both  companies,  with  direction 
to  credit  the  same  to  the  account  of  the 
second  company,  were  properly  applied  as 
directed,  and  that  under  the  circumstances 
in  evidence  the  surety  company  cannot 
complain.  Wyandotte  Coal,  etc.  Co.  v. 
Wyandotte  Paving  etc.  Co.  (Kan.)  1917C- 
580. 

c.     Application  by  Third  Party. 

6.  Right   of   Third   Person   to    Control. 

Third  persons,  such  as  guarantors,  sureties, 
indorsers,  and  the  like,  secondarily  liable 
on  one  of  several  debts,  cannot  control  the 
application  which  either  the  debtor  or  the 
creditor  makes  of  a  payment,  and  neither 
the  debtor  nor  the  creditor  need  apply  the 
payment  in  the  manner  most  beneficial  to 
such  persons.  Wyandotte  Coal,  etc.  Co.  v. 
Wyandotte  Paving  etc.  Co.  (Kan.)  1917C- 
580.  (Annotated.) 

Note. 
Eight  of  third  person  to  control  applica- 
tion of  payment.     1917C-582. 

3.     PROOF  OF  PAYMENT. 

7.  Payment — ^Evidence  for  Jury.  In  an 
action  on  notes  admittedly  received  as  col- 
lateral, the  question  whether  the  principal 
obligation  had  been  paid  is  held  to  be  for 
the  jury.  J^state  of  Philpott  (Iowa) 
1917B-839. 

8.  By  Third  Person — Evidence — Failure 
to  Present  to  Payee.  In  an  action  for  de- 
ceit in  the  sate  of  a  ship  and  her  freight, 
which  were  encumbered  by  a  disbursement 
draft,  evidence  that  the  draft  was  never 
presented  for  payment  to  the  bank  to 
which  it  was  first  indorsed  and  by  which 
it  was  indorsed  to  another,  and  that  the 
next  time  the  cashier  saw  it  it  was  in 
the  hands  of  plaintiff's  attorney,  is  admis- 
sible as  tending  to  show  that  plaintiff  paid 
the  draft.  Corry  v.  Sylvia  Y  Cia  (Ala.) 
1917E-1052. 

9.  That  evidence  is  not  objectionable  as 
not  being  the  best  evidence  of  the  payment 
of  the  draft.  Corry  v.  Sylvia  Y  Cia  (Ala.) 
1917E-I052. 

10.  Possession  of  Draft  by  Third  Person. 
Where  defendant  sold  a  ship  and  its  fre.ght 
to  plaintiff  without  informing  the  latter  of 
a  disbursement  draft  which  was  made  a 
lien  on  the  freight  and  the  ship,  posses- 
sion by  plaintiff's  agent  of  the  draft  is 
prima  facie  evidence,  in  an  action  for  the 
deceit,  that  plaintiff  had  paid  it.  Corry  v. 
Sylvia  Y  Cia  (Ala.)  1917E-1052. 

4.     RECOVERY  OF  VOLUNTARY  PAY- 

METSTT. 

11.  Mistake  of  Law — Recovery  Back — 
Payment  by  OfScer.     Where  the  officers  of 


a  township,  under  a  mistake  of  law,  wrong- 
fully pay  over  road  and  bridge  funds  to 
the  treasurer  of  a  city  whose  corporate 
limits  are  within  the  township,  the  town- 
ship may  recover  the  amount  of  such  funds 
from  the  city.  Lamar  Township  v.  Lamar 
(Mo.)   1916D-740.  (Annotated.) 

12.  Payment  to  Secure  License— Right  to 
Recover  Back.  Where  a  Tillage  council  re- 
fused to  issue  licenses  until  the  applicants 
had  paid  a  certain  sum  to  the  village  treas- 
ury under  an  invalid  ordinance,  and  the 
applicant,  without  seeking  redress  in  the 
courts,  made  the  payment  to  protect  the 
value  of  his  property,  there  was  no  duress, 
and  the  payments  cannot  be  recovered. 
Baldwin  v.  Chesaning  (Mich.)   1918B-512. 

(Annotated.) 
Note. 

Payment  to  prevent  apprehended  injury 
to  business  as  payment  under  duress. 
1918B-516. 

PEACE. 

See  Breach  of  Peace. 

PECUNIARY  INTEREST. 
See  Interest. 

PEDDLERS. 
See  Hawkers  and  Peddlers. 

PEDESTRIANS. 

Duties  and  rights,  see  Automobiles,  22. 
Injury  to,  see  Independent  Contractors,  15. 
Duty  toward  vehicles,  see  Negligence,  42. 

PENALTIES. 
See  Fines  and  Penalties;  Forfeitures. 

PENALTY. 

Notice  a  prerequisite  to  liability,  see  No- 
tice, 1. 

PENDING  ACTION. 

See  Actions  and  Proceedings,  8. 

When  action  is  pending,  see  Limitation  Of 

Actions,  15. 
Effect  of  repeal  of  statute,  see  Statutes, 

125. 

PENDING  APPEAL. 
See  Appeal  and  Error,  47. 

PENSIONS. 

1.  Soldiers'  Home — Nature  of  Institution. 
The  Michigan  Soldiers'  Home,  established 
by  Mich.  Pub.  Acts  1885,  No.  152,  is  an 
eleemosynary  institution  for  the  purpose 
of  dispensing  a  charity  to  a  favored  but 
dependent  class,  intended  to  furnish  a 
home  to  honorably  discharged  veterans, 
disabled  by  disease,  wounds,  etc.  from 
earning  their  living,  and  having  no  ade- 


664 


DIGEST. 

1916C— 1918B. 


quate  means  of  support,  who  would  other- 
wise become  objects  of  common  charity. 
Mason  v.  Board  of  Managers  (Mich.) 
1916C-848. 

2.  Effect  of  Admission  to  Soldiers'  Home. 
Mich,  Pub.  Acts  1885,  No.  152,  establish- 
ing the  Michigan  Soldiers'  Home,  by  sec- 
tion 2,  vested  the  general  government  in  a 
board  of  managers,  by  section  8,  required 
the  board  to  prepare  a  system  of  govern- 
ment, by  section  11,  declared  that  all  hon- 
orably discharged  and  disabled  soldiers 
and  sailors  otherwise  dependent  on  charity 
should  be  admitted,  subject  to  the  regula- 
tions of  the  managers.  Pub.  Acts  1905, 
No.  313,  provided  that  money  accumulated 
in  the  post  fund  of  the  home  might  be  used 
to  benefit  the  home  and  its  inmates,  and 
Pub.  Acts  1911,  No.  102,  that  pensions  of 
residents  might  be  taken  for  disciplinary 
purposes  to  be  held  in  trust  for  them. 
Held,  that  one  whose  pension  was  adequate 
for  his  support  was  not  entitled  to  ad- 
mission, and  that  a  regulation  imposed  as 
a  condition  of  admission  that  residents 
transfer  their  pensions  in  excess  of  $12 
per  month,  to  be  permanently  retained  and 
ultimately  turned  over  to  a  general  state 
fund,  was  beyond  the  power  of  the  board, 
and  that  the  amounts  so  retained  were 
held  in  trust,  to  be  accounted  for  accord- 
ing to  Act  No.  102.  Mason  v.  Board  of 
Managers  (Mich.)  1916C-848. 

(Annotated.) 

3.  In  such  accounting  the  amounts  due 
to  discharged  or  deceased  soldiers,  as  to 
whom  the  trust  had  terminated,  were  pay- 
able, with  interest  at  5  per  cent  per  annum 
from  the  time  of  death  or  discharge;  but, 
as  to  money  held  by  the  board  under  the 
disciplinary  regulation,  no  interest  was  re- 
coverable unless  the  board  had  received 
interest  thereon.  Mason  v.  Board  of  Man- 
agers (Mich.)  1916C-848.         (Annotated.) 

Note. 
Effect  with  respect  to  pension  of  pen- 
sioner becoming  inmate  of  soldiers'  home. 
1916C-854. 

PER  CAPITA  OR  PER  STIRPES. 

Construction    of    bequest,    see    Wills,    214, 
215. 

PEREMPTORY  CHALLENGES. 
See  Jury,  23,  24. 

PEREMPTORY  MANDAMUS. 
See  Mandamus,  29,  30. 

PERFECTION  OF  APPEAL. 
6ee  Appeal  and  Error,  46. 

PERFORMANCE  OF  CONTRACTS. 
See  Contracts,  45-53. 


PERJURY. 


Charging  perjury  in  instructions,  see  In- 
structions, 48. 

As  ground  for  vacating  award  under  Work- 
men's Compensation  Act,  see  Master 
and  Servant,  303. 

PERMANENT    ALIMONY. 
See  Alimony  and  Suit  Money,  1-8. 

PERMANENT  INJUNCTIONSb 
See  Injunctions. 

PERMISSIVE  WASTE. 
Defined,  see  Waste,  I. 

PERPETUATING  TESTIMONY. 
See  Depositions,  1. 

PERPETUITIES. 

See  Charities,  18,  19. 

Covenant  for  perpetual  renewal,  see  Land- 
lord and  Tenant,  50-52. 

1.  Trust  for  Maintenance  of  Estate.  A 
will  appointing  the  income  of  a  fund  to 
preserve,  maintain,  and  improve  real  es- 
tate, the  fee  of  which  was  bequeathed  to 
trustees  to  hold  for  the  benefit  of  a  minor 
during  her  minority,  and  upon  her  reach- 
ing the  age  of  twenty-one  years  to  convey 
the  same  to  her  in  fee,  discharged  of  all 
trust,  and  in  the  event  of  her  prior  decease 
giving  the  fee  to  two  trustees  and  the  sur- 
vivor with  a  gift  over  to  another  in  case 
of  the  decease  of  both  trustees,  is  an  in- 
valid attempt  to  appoint  the  fund  in  per- 
petuity for  the  maintenance  of  a  private 
estate  to  be  used  and  occupied  as  such. 
Thorp  V.  Lund   (Mass.)   1918B-1204. 

2.  Definitions.  As  commonly  understood, 
though  not  technically  exact,  a  "perpetu- 
ity" is  something  which  may  last  forever, 
aidd  the  "rule  against  perpetuities"  is  a 
rule  that  prevents  certain  existing  condi- 
tions from  continuing  for  an  indefinite 
time  and  promotes  alienability  by  destroy- 
ing future  interest.  Barton  v.  Thaw  (Pa.) 
1916D-570. 

3.  Vested  and  Contingent  Estates. 
Where  the  event  on  which  an  estate  is  to 
arise  is  an  option  to  purchase,  which  is  so 
uncertain  that  it  may  expire  at  some  time 
in  the  future  or  may  not  expire  at  all,  the 
interest  created  at  the  option  is  not 
"vested,"  but  is  "contingent"  and  within 
the  rule  against  perpetuities.  Barton  v. 
Thaw    (Pa.)    1916D-570.  (Annotated.) 

4.  Indefinite  Option.  A  covenant  in  a 
deed  conveying  coal* underlying  land,  pro- 
viding that  if  the  grantee,  his  heirs  or 
assignees,  shall  at  any  time  desire  to  pur- 
chase any  of  the  land,  the  grantors  will 
sell  same  to  them  at  a  certain  price,  being 


PERQUISITE— PERSONAL  REPRESENTATIVES. 


666 


a  mere  option  to  purchase,  which  under  its 
terms  can  be  exercised  at  any  time  in  the 
future,  is  void  under  the  rule  against  per- 
petuities. Barton  v.  Thaw  (Pa.)  1916D- 
570.  (Annotated.) 

5.  Application  of  Rule  Against  Perpetu- 
ities. The  statute  against  perpetuities 
(Iowa  Code,  §  2901)  does  not  apply  to  gifts 
for  charitable  uses.  Wilson  v.  First  Na- 
tional Bank  (Iowa)  1916D-481. 

6.  Gift  of  Eemainder  to  Charity.  A  will 
provided  that  testator's  bank  stock  should 
be  kept  in  his  name,  and  the  dividends 
paid  to  his  brother  and  sister  during  their 
lives,  and  on  their  death  "the  said  stock 
is  to  be  turned  over"  to  a  training  school, 
for  the  establishment  of  which  testator 
devised  certain  funds  in  trust,  and  the 
will  elsewhere  provided  that  on  the  death 
cf  the  brother  and  sister  the  bank  stock 
should  be  Transferred  to  the  board  of  di- 
rectors of  the  training  school.  Held  that, 
since  the  title  of  the  stock  was  in  the 
trustee  or  in  the  corporation  from  the 
death  of  the  testator,  subject  to  the  charge 
in  favor  of  his  brother  and  sister,  it  could 
not  be  claimed  that  the  gift  to  the  train- 
ing school  was  invalid  as  against  the  stat- 
ute of  perpetuities  on  the  ground  that  it 
was  in  the  nature  of  a  gift  over  after  the 
Itipse  of  a  prior  gift.  Wilson  v.  First 
National  Bank  (Iowa)  1916D-481. 

7.  Certainty  of  Vesting.  To  prevent  a 
future  interest  in  property  from  being  in- 
valid under  the  rule  against  perpetuities, 
it  is  not  enough  merely  that  it  will  in  all 
probability  vest  within  the  limitations 
specified,  but  it  must  necessarily  so  vest. 
Barton  v.  Thaw  (Pa.)   19160-570. 

8.  Construction  of  Grant  —  Lives  in 
Being.  A  deed  to  one  and  his  heirs  and 
on  his  death  without  issue  to  another  is 
not  a  violation  of  the  rule  against  per- 
petuities, as  "dying  without  issue"  means, 
under  the  express  terms  of  N.  Car.  Eev'sal 
1905,  §  1581,  a  dying  without  having  issue^ 
living  at  the  time  of  death  of  the  grantee. 
Lee  V.  Gates   (N.  Car.))   1917A-514. 

9.  Defeasible  Remainder.  A  provision 
giving  property  in  trust  for  a  daughter  for 
life,  and  at  her  death  to  pay  over  the  same 
to  her  issue,  but,  if  she  leift  none  surviv- 
ing, then  to  testator's  heirs  at  law.  does 
not  violate  the  statute  against  perpetu- 
ities; the  remainders  over  vesting  at  tes- 
tator's death,  though  defeasible  in  the  con- 
tingency named.  Allen  v.  Almy  (Conn.) 
1917B-112. 

10.  Scope  of  Rule  Against  Perpetuities 
— Gift  to  Public  Charity.  N.  Y.  Personal 
Property  Law  (Conaol.  Laws,  c.  41),  §  12, 
providing  that  no  gift  or  bequest  to  char- 
itable uses  which  shall,  in  other  respects, 
be  valid  under  the  laws  of  the  state  shall 
be  deemed  invalid  by  reason  of  the  in- 
definiteness  or  uncertainty  of  the  bene- 
ficiaries, and  that  if  the  instrument  grant- 


ing such  a  gift  names  a  trustee  the  legal 
title  shall  vest  in  him,  and  if  no  person 
is  named  as  trustee  shall  vest  in  the  su- 
preme court,  which  shall  have  control  over 
such  gifts  and  power  to  administer  them 
to  effect  the  purpose  of  the  instrument, 
sanctions  the  creation  of  charitable  trusts, 
and  relieves  such  trusts  from  the  operation 
of  the  statutes  against  perpetuities,  and 
restores  the  law  of  charitable  trustees  as 
recognized  in  England  prior  to  the  Revo- 
lution. Matter  of  MacDowell  (N.  Y.) 
1917E-853. 

Note. 
Option  to  purchase   realty  as  violating 
rule  against  perpetuities.    1916D-577. 

PERQUISITE. 
Meaning,  see  Judges,  4. 

PERSON. 

Includes  corporation,  see  Limitatton  of  Ac- 
tions, 5. 

PERSON& 
See  Public  Officers,  26. 

PERSONAL  INJURY. 

Of  attorneys,  see  Attorneys,   69-74. 

Measure  of  damages,  see  Damages,  6,  12r- 
14. 

Excessiveness  of  rerdict,  see  Damages,  29- 
33. 

Of  executors  and  administrators,  see  Ex- 
ecutors and  Administrators,  21,  22. 

Of  governor  for  official  acts,  see  Governor, 
1,  2. 

Of  guardian,  see  Guardian  and  Ward,  15, 
16. 

To  minor,  actions  for,  see  Infants,  24,  25. 

Liability  of  innkeeper  to  guest,  see  Inn- 
keepers, 4,  5,  8-10. 

Landlord's  liability,  see  Landlord  and 
Tenant,  17-19. 

Proceedings  under  Employers'  Liability 
Act,  see  Master  and  Servant,  40-100. 

Of  servant  under  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  101- 
364. 

Of  mortgagor  on  foreclosure,  see  Mortga- 
ges and  Deeds  of  Trust,  2,  28. 

Of  city  officers,  see  Municipal  Corporations, 
149,  150. 

Of  officers,  see  Public  Officers,  61-66. 

Of  receiver  for  attorney  fees,  lee  Receiv- 
ers, 6. 

For  special  assessment,  see  Taxation,  139- 
14L 

PERSONAL  PROPERTY. 
See  Property. 

PERSONAL  REPRESENTATIVES, 
gee  Executors  and  Administrators. 


666 

PETITIONS. 
See  Pleading.  » 

Sufficiency   on   motion  for  new  trial, 
New  Trial,  31-34. 


PETEOLEUM  PRODUCTS. 
Power  to  regulate,  see  Constitutional  Law, 
42. 

PETTY  OFFENSES. 
Right  to  jury  trial,  see  Jury,  7, 

PHAEMACISTS. 
See  Drugs  and  Druggists. 

PHOTOaBAPHS. 

As  evidence,  see  Evidence,  113. 


PHYSICAIi  EXAMINATION. 

Statute    requiring  examination   of   pupils, 
see  Schools,  33-3S. 

1.  Impartial  Physicians.  In  an  action 
for  malpractice,  while  the  court  may  re- 
quire plaintiff  to  submit  to  the  examina- 
tion by  impartial  physicians,  she  cannot  be 
required  to  submit  to  examination  by 
physicians  selected  by  defendant.  Just  v. 
Littlefield  (Wash.)   1917D-705. 

2.  Phjrsical  Examination  of  Party — Dis- 
cretion of  Court.  Where  plaintiff  had  been 
examined  by  two  physicians  representing 
defendant  company  prior  to  the  trial  of 
an  action  for  personal  injuries,  and  there 
was  no  evidence  that  she  or  her  physicians 
deceived  the  examining  doctor,  it  is  not 
an  abuse  of  discretion  to  refuse  request 
by  defendant  for  examination  of  plaintiff 
at  the  time  of  the  trial.  Cohen  v.  Phila- 
delphia Rapid  Transit  Co.  (Pa.)  1917D- 
350.  (Annotated.) 

Note, 
Power    of    court   to    compel    submission 
to  physical  examination.     1917D-351. 

PHYSICIANS  AND  SUEGEONS. 

1.  Nature  of  Eight  to  Practice,  666. 

2.  Validity  of  Statutes,  666. 

3.  Construction   of    Statutes,   667. 

4.  What  Constitutes  Practice  of  Medicine 

Without  License,  667. 

5.  Compensation,  668. 

6.  Contract  to  Render  Medical  Service,  663. 

7.  Liability  for  Malpractice,  668. 

a.  In  General,  668. 

b.  Degree  of  Care  Required,  668. 

c.  Actions,  669. 

(1)  Pleading,  669. 

(2)  Evidence,  669. 

(3)  Instructions,   670. 

(4)  Questions  for  Jury,  671. 

Authority  to   engage  physician  to  attend 
injured  employee,  see  Agency,   12. 


DIGEST. 

1916C— 1918B. 

Harmless  error  in  admitting  evidence,  see 
Appeal  and  Error,  235,  236. 

Malpractice,  excessiveness  of  verdict,  see 
Damages,  49-52. 

Sxpert  testimony  of  nurse  as  to  illness, 
see  Evidence,  60. 

Expert  testimony  as  to  possibility  of  cure, 
see  Evidence,  61. 

Medical  books  as  evidence,  see  Evidence, 
94,  95. 

Hospital  chart  as  evidence,  see  Evidence, 
105-107. 

Liability  of  hospital  for  surgeon's  malprac- 
tice, see  Hospitals  and  Asylums,  1. 

Validity  of  prescription  exception,  see 
Intoxicating  Liquors,  25. 

Right  to  sell  liquor,  see  Intoxicating 
Liquors,  80. 

Duties  of  medical  referee  under  Work- 
men's Compensation  Act,  see  Master 
and  Servant,  290,  291. 

Physical  examination  of  plaintiff  in  mal- 
practice trial,  see  Physical  Examina- 
tion, 1,  2. 

Compensation  for  treatment  of  pauper,  sea 
Poor  and  Poor  Laws,  1. 

Communications  with  patient  as  privileged, 
see  Witnesses,  27-29. 


1.     NATURE  OP  RIGHT  TO  PRACTICE. 

1.  What  Constitutes  Practice  of  Medi- 
cine—  Chiropractic.  Under'  Utah  Laws 
1911,  c.  93,  providing  that  any  person  shall 
be  regarded  as  practicing  medicine  who 
shall  diagnose,  treat,  operate  upon,  pre- 
scribe, or  advise  for  any  physical  or  men- 
tal ailment  or  any  abnormal  mental  or 
physical  condition  of  another  after  having 
received  or  with  intent  to  receive  any  com- 
pensation, or  who  shall  hold  himself  out 
as  a  physiciaa  or  a  surgeon,  a  "chiroprac- 
tor," one  professing  a  system  of  manipu- 
lations which  aims  to  cure  disease  by  the 
mechanical  restoration  of  displaced  or 
subluxated  bones,  especially  the  vertebrae, 
to  their  normal  relation,  who  advertises 
as  a  "Graduate  Chiropractor.     No  drugs,  or 

'  surgery,  or  osteopathy.  Try  chiropractic" 
— and  who  endeavors  not  so  much  to  cure 
ailments  as  to  permit  the  natural  "vital 
forces  of  the  body,"  impeded  by  luxation 
cf  vertebrae,  to  proceed  unhindered  to  any 
diseased  part  upon  readjusting  th"  dis- 
placed vertebrae  with  his  bare  hands,  for 
which  he  receives  compensation,  is  "prac- 
ticing medicine"  within  the  statute,  since 
he  "diagnosed"  the  symptoms  of  his 
patients  by  recognizing  the  presence  of 
disease  from  its  signs  or  symptoms  in  de- 
ciding as  to  its  character,  and  thereafter 
treated  them  for  compensation.  Board  of 
Medical  Examiners  v.  Freenor  (Utah) 
1917E-1156.  (Annotated.) 

2.     VALIDITY  OF  STATUTES. 

2.  Injunction  Against  Unlawful  Practice. 
Under  Utah  Comp.  Laws  1907,  §  1737,  pro- 
viding that  any  persons  practicing  medi- 
cine,  surgery,     or    obstetrics    within     the 


PHYSICIANS  AND  SURGEONS. 


667 


state  contrary  to  law  may,  at  the  instance 
oi  the  board  of  medical  examiners,  be  en- 
joined from  practicing  until  lawfully  ad- 
mitted to  practice,  the  district  court  has 
equitable  jurisdiction,  on  complaint  of  the 
medical  examiners,  to  grant  injunction 
against  a  chiropractor  practicing  medicine, 
as  the  legislature  has  power  to  change, 
abolish,  or  enact  rules  of  equity,  as  in  the 
instant  case  by  authorizing  restraint  of  a 
public  offense.  Board  of  Medical  Exam- 
iners V.  Freenor  (Utah)   1917E-1156. 

3.  Requirement  of   License — ^Validity. — 

Iowa  Code,  §  2580,  providing  that  it  shall 
be  a  misdemeanor  for  any  person  to  prac- 
tice medicine,  surgery,  or  obstetrics  in  the 
state  without  having  first  obtained  and 
filed  for  record  a  certificate  from  the  state 
board  of  medical  examiners,  is  not  re- 
pugnant to  the  bill  of  rights,  the  constitu- 
tion of  the  United  States,  or  the  constitu- 
tion of  the  state.  State  v.  McAninch 
(Iowa)   I918A-559. 

4.  Ophthalmologists.  The  exemption  in 
favor  of  duly  licensed  physicians  and  sur- 
geons, which  is  made  by  Cal.  Laws  1913, 
c.  598,  confining  to  registered  optometrists 
who  have  passed  the  prescribed  examina- 
tion the  right  to  employ  means  other  than 
the  use  of  drugs  to  measure  the  rang3  of 
human  vision,  and  the  accommodative  and 
refractive  states  of  the  human  eye,  does 
not  deny  the  equal  protection  of  the  laws 
guaranteed  by  U.  S.  Const.  14th  Amend. 
(9  Fed.  St.  Ann.  416),  to  a  regularly 
graduated  ophthalmologist  who  employs 
druglcss  means  for  such  purposes.  Mc- 
Naughton  v.  Johnson   (U.  S.)    1917B-801. 

(Annotated.) 

5.  Regulation  of  Optometrists — Validity. 

A  state  may,  in  the  exercise  of  its  police 
power,  confine  to  registered  optometrists 
who  have  passed  the  examination  pre- 
scribed by  Cal.  Laws  1913,  c.  598,  the  right 
to  employ  means  other  than  drugs  to  meas- 
ure the  range  of  human  vision,  and  the 
accommodative  and  refractive  states  of 
the  human. eye.  McNaughton  v.  Johnson 
(U.  S.)   1917B-801.  (Annotated.) 

6.  Drugless  Practitioners.  The  state's 
police  power  extends  to  requiring,  as  is 
done  by  Cal.  Laws  1913,  c.  354,  as  amended 
bj-  Laws  1915,  e.  105.  that  drugless  prac- 
titioners employing  faith,  hope,  and  the 
processes  of  mental  suggestion  and  men- 
tal adaptation  in  the  treatment  of  disease 
shall  have  completed  a  prescribed  course 
of  study  and  passed  an  examination. 
Crane  v.  Johnson  (U.  S.)  1917B-796. 

(Annotated.) 

7.  The  exemption  in  favor  of  persons 
treating  the  sick  by  prayer  from  the  ap- 
plication of  Cal.  Laws  1913,  c.  354,  as 
amended  by  Laws  1915,  c.  105,  which  pro- 
vides that  persons  may  not  practice  drug- 
less healing  unless  holding  a  "drugless 
practitioner  certificate,"  obtainable  only 
upon  completion  of  a  prescribed  course  of 


study  and  after  an  examination,  does  not 
render  the  statute  invalid  as  denying  the 
equal  protection  of  the  laws  guaranteed 
by  U.  S.  Const.  14th  Amend.  (9  Fed.  St. 
Ann.  416),  to  one  who  does  not  employ 
piayer  in  his  treatment  of  disease,  but  does 
use  faith,  hope,  and  the  processes  of  men- 
tal suggestions  and  mental  adaptation,  a 
form  of  treatment  in  which  skill  enhanced 
bv  praetiee  is  to  be  exercised.  Crane  v. 
Johnson  (U.  S.)  1917B-796.      (Annotated.) 

8.  State  Regulation  of  Nurses,  The  fact 
that  the  state  association  of  graduated 
nurses,  to  which  an  appeal  may  be  taken 
from  the  decision  of  the  state  board  of 
nurse  examiners  under  Mont.  Laws  1913, 
(.'.  50,  §  11,  is  a  voluntary  association,  does 
not  render  that  section  unconstitutional. 
State  V.  District  Court  (Mont.)  1917C- 
164.  (Annotated.) 

&.  The  state  can  require  such  qualifica- 
tions as  it  deems  necessary  for  the  prac- 
tice of  a  profession  which  is  potent  for 
harm  if  practiced  by  ignorant,  incapable, 
or  corrupt  persons,  and  may  prescribe  the 
means  for  determining  such  qualifications 
without  judicial  proceedings,  since  "due 
process  of  law"  is  not  necessarily  judicial 
process.  State  v.  District  Court  (Mont.) 
1917C-164.  (Annotated.) 

10.  Mont.  Laws  1913,  c.  50,  §  11,  provid- 
ing for  an  appeal  from  the  rejection  of 
any  application  for  registration  as  a  nurse 
to  the  state  association  of  graduated 
nurses  whose  decision  shall  be  final,  is  not 
unconstitutional  as  depriving  a  citizen  of 
the  right  to  follow  a  lawful  profession 
without  a  hearing  in  the  courts,  since  the 
act  expressly  provides  that  it  does  not 
apply  to  gratuitous  nursing  nor  to  any 
person  nursing  for  hire  who  does  not  as- 
sume or  pretend  to  have  special  training 
and  does  not  pretend  to  be  a  registered 
nurse.  State  v.  District  Court  (Mont.) 
1917C-164.  (Annotated.) 

Notes. 

State  regulation  of  practice  of  nursing. 
1917C-168. 

Special  regulation  of  Christian  Science 
or  other  drugless  treatment  of  disease. 
1917B-798. 

Special  regulation  of  persons  treating 
ocular  diseases.     1917B-803. 

3.     CONSTRUCTION  OF  STATUTES. 

11.  Utah  Laws  1911,  e.  93,  prohibiting 
practicing  medicine  without  a  license,  does 
not  concern  systems  of  treatments,  but 
merely  prohibits  anyone  from  treating  dis- 
eases who  has  not  the  requisite  qualifica- 
tions. State  Board  of  Medical  Examiners 
V.  Terrill  (Utah)  1918B-1117. 

(Annotated.) 

4,     WHAT     CONSTITUTES     PRACTICE 
OF  MEDICINE  WITHOUT  LICENSE. 

12.  What  Constitutes  Practice  of  Medi- 
cine— Massage   Treatment.    The    evidence 


668 


DIGEST. 

1916C5— 1918B. 


is  held  to  show  that  defendant  practiced 
medicine  without  a  license,  as  he  under- 
took to  examine,  diagnose,  and  prescribe 
for  all  ailments,  as  well  as  to  do  general 
massaging.  State  Board  of  Medical  Ex- 
aminers V.  Terrill  (Utah)  1918B-1117. 

(Annotated.) 

13.  A  decree,  enjoining  defendant  from 
diagnosing,  treating,  operating  on,  pre- 
scribing, or  advising  for  any  person 
afflicted  with  any  mental  or  physical  ail- 
ment or  condition,  from  which  he  expects 
or  does  receive  a  pecuniary  compensa- 
tion, or  from  practicing  medicine  within 
the  state  until  he  shall  have  received  a 
certificate  permitting  him  to  practice 
medicine,  does  not  prevent  him  from  doing 
the  business  of  an  ordinary  masseur,  since 
it  is  in  the  words  of  Utah  Laws  1911.  c. 
93,  prohibiting  practicing  medicine  with- 
out a  license.  State  Board  of  Medical 
Examiners  v.  Terrill   (Utah)    1918B-1117. 

(Annotated.) 

5.     COMPENSATION. 

14.  Making  Bight  Contingent  on  Suc- 
cess— Agreement  Construed.  Where  a  sur- 
geon advised  a  patient  to  seek  other  more 
celebrated  surgeons,  but  on  the  patient's 
objection  said  that,  if  she  was  willing  to 
take  a  chance  with  him,  he  was  willing 
to  take  a  chance  with  her,  such  statement 
does  not  show  that  the  surgeon  agreed 
to  demand  compensation  only  in  event  of 
a  successful  operation.  Harvey  v.  Eich- 
ardson  (Wash.)   1918A-881. 

6.     CONTKACT  TO  RENDER  MEDICAL 
SERVICE. 

15.  Failure  to  Attend  Patient — Defenses. 
It  is  no  excuse  for  a  physician,  who  agreed 
to  treat  one  person  that  at  the  time  treat- 
ment became  necessary  he  could  not  leave 
arother  patient.  Hood  v.  Moffett  (Miss.) 
1917E-410. 

16.  Relation  Between  Physician  and  Pa- 
tient— Workman  Treated  at  Company  Hos- 
pitaL  Plaintifif's  employer  had  an  arrange- 
ment with  defendants,  physicians,  who 
operated  a  hospital  in  Cloquet,  by  which 
the  employer  deducted  a  certain  sum  each 
month  from  the  pay  of  each  employee, 
and  turned  over  the  sums  so  deducted  to 
defendants,  who  agreed,  for  such  compen- 
sation, to  care  for  and  treat  all  injured 
employees  which  the  employer  should  send 
to  them.  Plaintiflf  was  injured  and  was 
taken  to  defendants'  hospital  and  treated 
by  them  under  this  arrangement.  It  is 
held  that  the  relation  of  patient  and 
physician  existed  between  plaintiff  and  de- 
fendants, and  that  the  latter  owed  plain- 
tiff the  duty  to  exercise  ordinary  care  and 
skill  in  treating  him.  Viita  v.  Fleming 
(Minn.)  1917E-678. 

17.  Necessity  of  Consent  to  Operation. 
Where    a    patient    voluntarily    submits    to 


an  operation  by  making  no  objection, 
though  she  knows  it  is  about  to  be  per- 
formed, her  consent  thereto  will  be  pre- 
sumed, unless  it  is  made  reasonably  clear 
that  she  was  the  victim  of  a  false  and 
fraudulent  representation,  Barfield  v. 
South  Highlands  Infirmary  (Ala.)  1916C- 
1097.  (Annotated.) 

18.  Degree  of  Responsibility.  Unless  so 
provided  by  an  express  contract,  a  phys- 
ician or  surgeon  does  not  warrant  that  he 
will  effect  a  cure,  or  that  he  will  restore 
the  patient  to  the  same  condition  as  be- 
fore the  necessity  for  treatment  arose,  or 
that  the  result  of  the  treatment  will  be 
successful.  Barfield  v.  South  Highlands 
Infirmary  (Ala.)   1916C-1097. 

Note, 
Consent    as    affecting   right   to    perform 
surgical  operation,     1916C--1105. 

7.     LIABILITY  FOR  MALPRACTICE, 
a.     In  General. 

19.  What  Constitutes,  It  is  not  negli- 
gence for  a  physician  or  surgeon  to  reduce 
a  fracture  by  the  method  generally  recog- 
nized by  surgeons  as  proper.  Craghead  ▼. 
McCuUough  (Colo.)  1916C-1075. 

20.  For  What  Injuries  Liable.  For  mal- 
practice in  treating  an  injury,  a  surgeon 
is  liable  only  for  results  from  his  negli- 
gence, and  not  for  those  from  the  original 
injury.  Cranford  v.  O'Shea  (Wash.) 
19ieC-1081. 

21.  Erroneous  Diagnosis.  While  a  phys- 
ician is  liable  for  the  results  of  improper 
treatment  administered  through  negligence, 
he  is  not  ordinarily  liable  for  damages 
consequent  upon  an  honest  mistake  or 
error  of  judgment  in  making  a  diagnosis, 
where  there  is  reasonable  doubt.  Just  v, 
Littlefield  (Wash.)  1917D-705. 

(Annotated.) 

22.  Failure  to  Make  Test  Before  Opera- 
tion. That  a  surgeon,  who  was  operating 
for  goiter,  did  not  take  a  blood  test  of 
the  patient  before  the  operation,  will  not, 
though  the  patient  died  prevent  him  from 
recovering  his  fee;  it  not  appearing  that 
it  was  the  custom  in  that  locality  to  take 
blood  tests,  or  that  the  failure  injured  the 
patient,  for  a  physician  or  surgeon  does 
not  guarantee  to  cure  his  patient,  or  that 
his  treatment  will  be  successful.  Harvey 
V.  Richardson  (Wash.)   1918A-881. 

(Annotated.) 
Notes. 
Failure  of  surgeon  to  make  test  before 
operation    as   malpractice,     1918A-883, 

Liability  of  physician  for  malpractice  in 
making   wrong    diagnosis.     1917D-708. 

b.     Degree  of  Care  Required. 

23.  A  physician  or  surgeon,  possessing 
the    requisite    qualifications   and   applying 


PHYSICIANS  AND  SURGEONS. 


]]is  skill  and  judgment  with  ordinary  care 
and  diligence  to  the  diagnosis  and  treat- 
ment of  the  patient,  is  not  liable  for  an 
honest  mistake  or  error  of  .fudgment  in 
making  a  diagnosis  or  prescriljing  a  mode 
of  treatment,  where  there  is  ground  for 
reasonable  doubt  as  to  the  practice  to  be 
pursued.  Barfield  v.  South  Highlands  In- 
firmary (Ala.)  1916C-1097.      (Annotated.) 

24.  In  the  absence  of  a  special  contract 
the  law  implies  that  a  surgeon  employea 
to  treat  an  injury  contracts  to  exercise 
reasonable  and  ordinary  care  to  accomplish 
the  purpose  for  which  he  is  employed,  but 
he  does  not  warrant  a  cure  and  is  not 
responsible  for  want  of  success  unless  it 
results  from  a  failure  to  exercise  ordinary 
care  or  from  want  of  ordinary  skill.  Crag- 
head  T.  McCuUough  (Colo.)   i916C-1075. 

25.  Degree  of  Care  and  Skill  Required. 
The  law  requires  a  physician  and  surgeon 
to  possess  the  skill  and  learning  which  is 
ordinarily  possessed  by  the  average  mem- 
ber of  such  profession  in  good  standing, 
and  requires  him  to  apply  such  sk  11  and 
learning  in  a  given  case  with  ordinary 
and  reasonable  care.  McAlinden  v.  St. 
Alaries  Hospital  Association  (Idaho) 
1918A-380. 

26.  Whether  errors  of  judgment  will  or 
will  not  make  a  physician  and  surgeon 
liable  for  damages  in  a  given  case,  depends 
not  raerelv  upon  the  circumstance  that  he 
may  be  ordinarily  skilful  as  such  physician 
and  surgeon,  but  also  upon  the  fact  of 
whether  he  has  exercised  in  the  treatment 
of  such  case  the  degree  of  reasonable  skill 
and  diligence  that  is  ordinarily  exercised 
in  his  profession.  McAlinden  v.  St.  Maries 
Hospital  Association  (Idaho)  1918A-380. 

27.  Whether  a  physician  and  surgeon  in 
a  given  case  possessed  and  exercised  that 
degree  of  skill  and  learning  possessed  by 
the  average  member  of  the  medical  and 
surgical  professions  in  good  standingr  in 
the  community,  and  used  that  reasonable 
care  and  diligence  according  to  his  best 
judgment  in  the  treatment  of  an  injured 
patient  that  the  average  member  of  such 
professions  would  have  used,  are  quest' ons 
of  fact  exclusively  for  the  jury  to  deter- 
mine. This  rule  is  not  changed  bv  the 
fact  that  men  learned  in  the  sciences  of 
medicine  and  surgery  have  given  conflict- 
ing testimony  touching  the  required  and 
approved  treatment  of  an  injury.  McAlin- 
den V.  St.  Maries  Hospital  Association 
(Idaho)   1918A-380. 

c.     Actions. 
(1)     Pleading. 

28.  Certainty.  A  complaint  in  an  action 
against  a  physician  for  malpractice,  which 
n.erely  averred  that  he  did  not  use  the 
usual  test  to  ascertain  plaintifTs  preg- 
nancy, is  subject  to  motion  to  make  more 
definite  and  certain,  as  medical  men  might 


differ  on  what  was  the  usual  test.     Just  ▼. 
Littlefield   (Wash.)    1917D-705. 

(2)     Evidence. 

29.  Evidence  as  to  Experience.  Where 
a  surgeon  sued  for  malpractice  testified  as 
an  expert,  evidence  as  to  his  age,  the  ex- 
tent of  his  practice,  and  his  place  of  resi- 
dence and  other  similar  matters  is  admis- 
sible, as  the  jury  were  entitled  to  be  in- 
formed of  his  opportunities  for  observation 
and  experience  in  his  line,  and  to  know 
what  manner  of  man  he  was,  and  it  was 
immaterial  that  testimony  as  to  thee  mat- 
ters was  given  by  another  witness  rather 
than  by  defendant.  Barfield  v.  South 
Highlands  Infirmary  (Ala.)  1916C-1097. 

30.  Necessity  of  Consent  to  Operation. 
If  a  patient  was  incapacitated  to  consent 
to  the  amputation  of  a  leg,  and  if  the 
necessity  therefor  was  extremely  urgent 
to  save  her  life,  a  surgeon  treating  her 
had  a  right  to  consult  with  her  mother 
and  to  act  upon  her  mother's  consent  as 
the  implied  consent  of  the  patient;  and 
hence,  where  there  was  evidence  of  these 
facts,  it  was  not  error  to  admit  evidence, 
in  an  action  for  malpractice,  thit  the 
mother  consented  and  stated  that  the 
patient  had  consented.  Barfield  v.  South 
Highlands  Infirmary  (Ala.)   1916C-1097. 

(Annotated.) 

31.  In  an  action  against  a  surgeon  for 
amputating  plaintiffs  leg  without  her  con- 
sent, evidence  that  plaintifTs  mother  and 
a  nurse  told  defendant  that  plaintiff  was 
willing  to  have  the  leg  amputated,  though 
felling  in  the  general  class  of  hearsay,  is 
admissible  as  bearing  upon  defendant's 
good  faith.  Barfield  v.  Smth  Hig  ilands 
Infirmary  (Ala.)   1916C-1097. 

(Annotated.) 

32.  Admissibility  of  Evidence.  In  an  ac- 
tion for  amputating  plaintiff's  leg  without 
her  consent  and  for  so  negligently  and 
unskilfully  treating  it  as  to  make  its  am- 
putation necessary,  where  there  was  no 
suggestion  in  the  declaration  or  the  evi- 
dence that  defendant  was  guilty  of  any 
negligence  or  lack  of  skill  in  treating 
plaintiff  after  the  amputation,  evidence  as 
to  matters  occurring  after  the  amputation 
is  properly  excluded.  Barfield  v.  South 
Highlands  Infirmary  (Ala.)   1916C-1097. 

33.  Amount  of  Charge.  In  an  action 
aoainst  a  surgeon  for  malpractice,  a  ques- 
tion asked  a  witness  as  to  the  surgeon's 
charge  for  his  treatment  was  properlv  ex- 
cluded, the  amount  of  the  charge  n'^t  being 
in  issue,  defendant  being  morally  and 
legal'y  bound  to  exercise  the  same  degree 
of  care,  diligence,  and  skill  whether  his 
charge  was  large  or  small,  and  no  inference 
ot  wrong  or  negligence  arising  from  the 
fact  that  the  charge  was  unreasonable, 
especially  tis  his  charge  was  shown  by 
other  evidence.  Barfield  v.  South  High- 
lands Infirmary  (Ala.)   1916C-1097. 


670 


DIGEST. 

1916C— 1918B. 


34.  Failure  of  Another  to  Cure.    In  an 

action  against  a  surgeon  for  amputating 
plaintiff's  leg  without  her  consent,  and 
tor  so  negligently  and  unskilfully  treating 
it  as  to  make  its  amputation  necessary,  the 
fact  that  another  physician  or  surgeon  had 
failed  in  an  attempt  to  treat  the  leg  ia 
proper  for  the  consideration  of  the  jury 
on  the  question  of  defendant's  alleged 
negligence  and  the  alleged  wrongful  am- 
putation, and  an  instruction  that  such  fact, 
if  it  was  a  fact  should  not  be  considered 
is  properly  reiused.  Barfield  v.  South 
Highlands  Infirmary  (Ala.)   1916C-I097. 

35.  Negligence  Established.  In  an  ac- 
tion against  a  physician  and  surgeon,  evi- 
dence held  sufficient  to  support  a  jury 
finding  of  negligence  in  connection  with 
the  treatment  of  a  fractured  collar  bone. 
Craghead  v.  McCuUough  (Colo.)  1916C- 
1075. 

36.  Proof  of  Negligence — Ees  Ipsa  Lo- 
quitur. A  surgeon's  failure  to  exercise  or- 
dinary care  in  treating  a  fracture  is  not 
established  by  proof  of  the  result  alone, 
but  must  be  shown  by  other  evidence. 
€raghead  v.  McCuUough  (Colo.)  1916C- 
1075. 

37.  Leaving  Sponge  in  Surgical  Wound. 
"Where  an  action  is  brought  to  recover 
damages  on  account  of  the  wrongful,  neg- 
ligent, and  careless  leaving  of  a  sponge 
in  the  abdomen  of  a  patient,  and  on  ac- 
count of  the  negligence  of  defendant  in 
permitting  said  sponge  to  remain  in  said 
patient's  abdomen  an  intestinal  obstruc- 
tion was  created,  resulting  in  a  partial 
closing  of  a  portion  of  the  intestinal  canal, 
and  causing  a  partial  paralysis  and  ob- 
structions thereof,  and  by  reason  of  such 
wrongful  and  negligent  acts,  and  for  no 
other  reason,  and  as  a  direct  result  thereof 
the  patient  died,  it  is  incumbent  upon  the 
plaintiff  to  prove  said  allegations  by  a  pre- 
ponderance of  the  evidence,  and  show  that 
the  presence  of  said  sponge  in  the  abdo- 
men of  the  patient  was  the  direct  and 
proximate  cause  of  the  death  of  the 
patient.  Ruble  v.  Busby  (Idaho)  1917D- 
665.  (Annotated.) 

38.  It  is  held  that  the  evidence  is  suffi- 
cient to  show  that  the  adhesive  condition 
of  the  intestines  of  the  patient  caused  her 
death,  and  that  such  adhesive  condition 
was  not  caused  by  the  presence  of  a  sponge, 
atd  that  the  evidence  is  sufficient  to  sup- 
port the  verdict  of  the  jury.  Ruble  v. 
Busby   (Idaho)    1917D-665.      (Annotated.) 

39.  Sufficiency  of  Evidence.  Assuming 
that  the  relation  of  patient  and  physician 
existed  between  plaintiff  and  defendants, 
the  evidence  was  sufficient  to  justify  the 
jury  in  finding  that  the  physician  failed 
to  exercise  towards  the  patient  that  de- 
gree of  care  and  skill  which  the  law  re- 
quires. Viita  V.  Fleming  (Minn.)  1917E- 
678. 


(3)     Instructions. 


40.  In  an  action  against  a  surgeon  for 
amputating  plaintiff's  leg  without  her  con- 
sent, an  instruction,  justifying  the  ampu- 
tation without  plaintiff's  affirmative  con- 
sent if  an  emergency  demanding  the  opera- 
tion, and  "not  produced  by  defendant," 
existed,  sufficiently  excludes  an  emergency 
superinduced  by  defendant's  own  negli- 
gence or  lack  of  skill,  or  voluntarily 
brought  on  by  him,  where  plaintiff  did  not 
consider  the  matter  of  sufficient  import- 
ance to  call  the  court's  attention  directly 
to  the  supposed  deficiency.  Barfield  v. 
South  Highlands  Infirmary  (Ala.)  1916C- 
1097.  (Annotated.) 

41.  In  an  action  against  a  surgeon  for 
amputating  plaintiff's  leg  without  her  con- 
sent, where  it  was  admitted  that  plaintiff 
refused  for  a  long  time  to  consent,  but  de- 
fendant's testimony  tended  to  show  that 
she  freely  consented  shortly  before  the 
operation,  an  insitruction  that,  if  she  was 
in  imminent  danger  of  losing  her  life,  and 
was  ad-vised  to  have  her  leg  amputated  to 
save  her  life,  it  was  her  right  and  privi- 
lege to  refuse  to  consent,  and  if  she  did 
refuse,  and  defendant  cut  off  the  leg  with- 
out her  consent,  it  was  wrongful,  is  mis- 
leading, and  properly  refused.  Barfield  v. 
South  Highlands  Infirmary  (Ala.)  1916C- 
1097.  (Annotated.) 

42.  Such  instruction  is  also  properly  re- 
fused because  it  ignored  evidence  tending 
to  show  that  she  was  wholly  incapacitated 
to  consent,  justifying  defendant  in  acting 
upon  a  consent  to  be  implied  on  considera- 
tions of  custom,  humanity,  and  reason. 
Barfield  v.  South  Highlands  Infirmary 
(Ala.)   1916C-1097.  (Annotated.') 

43.  Damages — Suffering.  It  is  held  that 
the  court  correctly  instructed  the  jurv  to 
the  effect  that  in  awarding  plaintiff  dam- 
ages, if  any  were  awarded,  it  would  not 
be  proper  to  allow  him  anything  for  the 
accident  which  he  sustained,  nor  for  the 
pain,  suffering,  and  anguish  therefrom  ac- 
cruing to  him;  but  that  the  award  of  dam- 
ages must  be  confined  solely  to  those  which 
had  accrued  by  reason  of  the  negligence 
of  defendant  and  its  agents.  McAlindeu 
V.  St.  Maries  Hospital  Association  (Idaho) 
1918A-380. 

44.  As  to  Care  and  SkilL  The  trial 
court  refused  to  instruct  the  jurv  as  re- 
quested that  defendant  was  bound  to 
possess  and  exercise  only  the  reasonable 
degree  of  care  and  skill  possessed  and  ex- 
ercised by  physicians  and  surgeons  in  sim- 
ilar localities  to  that  in  which  defendant 
practiced,  and  is  protected  from  the  charg? 
of  negligence  if  he  adopts  and  uses  in 
performing  an  operation  the  methods  in 
use  among-  competent  surgeons  in  the  local- 
ity in  which  the  operation  takes  place:  In 
its  gene-a'  charg?  the  court  instructed  th? 
jury  the  defendant  was  required  to  exer- 


PLANT— PLEADING. 


671 


else  such  reasonable  care  and  skill  a9  an 
ovdinary  physician  or  surgeon  in  good 
practice  would  exercise  under  like  circum- 
stances, and  that  among  the  circumstances 
to  be  .considered  was  the  location  of  the 
physician  in  Cloquet,  rather  than  in  Du- 
luth,  St.  Paul,  or  some  other  place.  It 
is  held  that  the  court,  in  refusing  to  give 
the  requested  instructions,  and  giving,  in- 
stead, the  instructions  quoted,  committed 
no  reversible  error. 

While  the  jury  was  being  selected  de- 
fendant's attorney  testified  that  a  certain 
company  was  interested  in  the  defense  of 
the  case.  Defendant  was  then  sworn  and 
asked  if  this  was  true.  Held  that  it  was 
not  prejudicial  error  to  overrule  an  ob- 
jection to  this  question,  but  the  conduct 
of  plaintiff's  counsel  in  asking  the  ques-' 
tion  is  disapproved.  Viita  v.  Fleming 
(Minn.)   1917E-678. 

(4)     Questions  for  Jury. 

45.  In  an  action  for  malpractice,  the 
question  whether  defendant  physician  is 
negligent  in  making  an  incorrect  diagnosis 
of  plaintiff's  condition  and  in  operating 
is  held  to  be  for  the  jury.  Just  v.  Little- 
field  (Wash.)  I&17D-705.  (Annotated.) 

PLANT. 

Meaning  within  Workmen's  Compensation 
Act.    See  Master  and  Servant,  174. 

PLEA. 

See  Pleading,  16-33. 

PLEADING. 

1.  Construction  of  Pleadings,  672. 

2.  Complaint  or  Declaration,  672. 

a.  In  General,  672. 

b.  Joinder  of  Causes,  673. 

c.  Ad  Damnum  Clause,  673. 

d.  Cure  of  Defects  by  Answer,  673. 

e.  Raising    Questions  of    Sufficiency, 

673. 

3.  Plea  or  Answer,  673. 

a.  In  General,  673. 

b.  Pleas  in  Abatement,  675. 

4.  Demurrer,   675. 

a.  Requisites,  675. 
,       b.  Grounds   of  Demurrer,   675. 

c.  Admissions  by  Demurrer,  675. 

d.  Ruling  on  Demurrer,  676. 

e.  Waiver   of  Objections,   676. 

f.  Standing  by  Demurrer,  677. 

5.  Reply,   677. 

6.  Rejoinder,  677. 

7.  Amendment  of  Pleadings,  677.» 

a.  Allowance  of  Amendment,  677. 

b.  Subject   of   Amendment.   677. 

c.  Time  of  Amendment,  678. 

d.  Effect  of  Amendment.  678. 

e.  Trial  Amendments,  678. 

8.  Issues  and  Variance,  679. 

9.  Motions,  680. 

10.  Filing  Pleadings,  680. 

11.  Verification,  680. 


See  Alteration  of  Instruments,  17;  Auto- 
mobiles, 36,  57;   Bills  and  Notes,  48, 
59,  63-67;  Conspiracy,  17;  Contracts, 
56,  57;  Conversion,  5,  6;  Damagts,  17; 
Divorce,  32,  33;   Fire  Insurance,  41- 
44;  Fires,  10,  11;  Forcible  Entry  and 
J>etainer,    7;    Fraud,    9-12;    Frauds, 
Statute  of,  23;  Habeas  Corpus,  9,  10 
Indictments     and    Informations;     In- 
junctions,   5,    36;     Intervention,    1-3 
Life    Insurance,    55;    Mandamus,    27 
Quieting  Title,   5;   Quo  Warranto,  4 
Replevin,  12,  13;  Sales,  51,  60;  Specific 
Perfornumce,  8;  Trespass,  6,  7. 

Complaint  in  action  on  open  account,  see 
Accounts  and  Accounting,  1. 

Joinder  of  causes,  see  Actions  and  Pro- 
ceedings, 9-12. 

Splitting  causes  of  action,  see  Actions  and 
Proceedings,  13. 

Admissions  in  pleading,  see  Admissions 
and  Declarations,  14. 

Pleading  over,  waiver  of  error,  see  Appeal 
and  Error,  177. 

Presumptions  on  appeal,  see  Appeal  and 
Error,  193. 

Harmless  error  in  rulings,  see  Appeal  and 
Error,  217-231. 

Record  must  show  error  in  ruling,  see  Ap- 
peal and  Error,  352. 

Necessity  of  exception  to  ruling,  see  Ap- 
peal and  Error,  362-368. 

Sufficiency  of  objection  for  review,  see 
Appeal  and  Error,  425-427. 

Amendment  after  remand,  see  Appeal  and 
Error,  476,  477. 

Pleading  to  merits,  general  appearance,  see 
Appearances,  3,  4. 

Complaint  for  disbarment,  see  Attorneys, 
51. 

Action  against  attorney  for  neglect,  see 
Attorneys,  73. 

In  actions  for  benefits,  see  Beneficial  Asso- 
ciations, 33. 

In  action  on  bond,  see  Bonds,  2. 

In  action  for  injury  to  passenger,  see  Car- 
riers of  Passengers,  55-59. 

Complaint  under  Civil  Damage  Act,  see 
Civil  Damage  Acts,  5. 

Actions  against  foreign  corporations,  see 
Corporations,  179. 

Bequisites  of  bill,  see  Creditors'  Blls,  3. 

In  election  contests,  see  Elections,  83,  84. 

In  condemnation  proceedings,  see  Eminent 
Domain,  68-75. 

Bill  in  equity,  see  Equity,  7-14. 

Demurrer,  see  Equity,  20. 

Cross-bill,  see  Equity,  15,  16. 

In  actions  by  executors  and  administrators, 
see  Executors  and  Administrators,  80, 
82,   83. 

Truth  of  charge  not  in  issue,  see  False  Im- 
prisonment, 3. 

Pleading  and  proof  of  foreign  law,  see 
Foreign  Laws,  2. 

Action  for  injury  by  esc&pe  of  gas,  see  Gas 
and  Gas  Companies.  4. 

Proceedings  for  appointment  of  guardian, 
see  Guardian  and  Ward,  6,  7. 


672 


DIGEST. 

1916C— 1918B. 


Action  for  necessaries  furnished  infant, 
see  Infants,  18. 

In  action  by  guardian  ad  litem,  see  In- 
fants, 21. 

Instructions  assuming  issues,  see  Instruc- 
tions, 60-62,  65. 

Conformity  of  judgment  to  pleadings,. see 
Judgments,  17. 

Judgment  on  pleadings,  see  Judgments,  21. 

Motion  to  remove  cause  as  affecting  ex- 
tension of  time  to  plead,  see  Judg- 
ments, 50. 

Complaint  for  blacklisting,  see  Labor  Com- 
binations, 4,  6-8. 

Variance,  see  Larceny,  6-8. 

Complaint  in  actions  for  defamation,  see 
Libel  and  Slander,  79-102. 

Answer  in  actions  for  defamation,  see 
Libel  and  Slander,  102. 

Amendment,  effect  of  limitations,  see  Lim- 
itation of  Actions,  38-42. 

Sufficiency  of  complaint,  see  Limitation  of 
Actions,  47,  48. 

Pleading  bar  of  statute,  see  Limitation  of 
Actions,  49-51. 

Joinder  of  causes,  see  Malicious  Prosecu- 
tion, 14. 

Actions  against  master  for  negligence  of 
servant,  see  Master  and  Servant,  368. 

Under  Employers'  Liability  Act,  see  Mas- 
ter and  Servant,  81,  82. 

In  proceedings  under  Workmen's  Compen- 
sation Act,  see  Master  and  Servant, 
328-330. 

Charging  offense  under  ordinance,  see  Mu- 
^cipal  Corporations,  101. 

In  tort  action  against  city,  see  Municipal 
Corporations,  188. 

Separate  counts  in  negligence  complaint, 
see  Negligence,  59. 

Complaint  under  "turntable  doctrine,"  see 
Negligence,  62. 

Complaint  or  declaration  for  negligence, 
see  Negligence,  58-65. 

Answer  in  negligence  cases,  see  Negli- 
gence, 66-68. 

Plea  of  contributory  negligence,  see  Negli- 
gence, 66-68. 

Amendment  in  negligence  action,  see  Neg- 
ligence, 69. 

Variance  in  negligence  action,  see  Negli- 
gence, 70,  71. 

Buling  on  demurrer  as  ground  for  new 
trial,  see  New  Trial,  2. 

Complaint  for  damages,  see  Nuisances.  14- 
16. 

"Waiver  of  defect  of  parties,  see  Parties 
to  Actions,  1. 

Joinder  of  plaintiffs,  see  Parties  to  Ac- 
tions, 3,  4. 

Joinder  of  defendants,  see  Parties  to  Ac- 
tions, 5-10. 

Remedv  for  non.ioinder  of  parties,  see  Par- 
ties to  Actions,  11. 

Complaint  for  malpractice,  see  Pbysicians 
and  Surgeons,  28. 

Variance,  see  Referees,  3. 

Suit  to  r^scinrl  contract,  see  Rescission, 
Cancellation  and  Reformation,  27. 


In  action  on  slierlff's  bond,  see  Sheriffs  and 
Constables,  10,  11. 

Action  for  injury  by  defect  in  highway, 
see  Streets  and  Highways,  42. 

In  action  on  surety  bond,  see  Suretyship, 
20. 

In  action  for  delay  of  telegram^  see  Tele- 
graphs and  Telephones,  31. 

Trial  amendments,  effect,  see  Trial,  59. 

In  action  for  penalty  for  usury,  see  Usury, 
25. 

In  proceedir.^  to  contest  will,  see  WillB^ 
12&-128. 

1.  CONSTRUCTION  OP  PLEADINGS. 

1.  Pleadings  are  liberally  construed 
after  verdict  and  judgment  to  sustain  the 
judgment,  and  any  formal  defect  is  deemed 
cured.  Myers  v.  Saltry  (Ky.)  1916E- 
1134. 

2.  Construction  Against  Pleador.  The 
language  used  in  equity  pleadings  is  to  be 
given  its  ordinary  meaning,  and  to  be  con- 
strued when  ambiguous  against  the  pleader 
and  hence  a  bill  averring  that  plaintiffs' 
land  was  bounded  on  the  west  by  lands  of 
named  persons,  that  a  river  flowed  along 
the  westerly  portion  of  plaintiffs'  land,  and 
that  portions  of  plaintiffs'  land  were  dam- 
aged by  logs  floating  in  the  river,  is  insuffi- 
cient to  show  that  plaintiffs  owned  any 
of  the  bed  of  the  stream.  Boutwell  v. 
Champlain  Realty  Co.  (Vt.)   1918A-726, 

3.  Statement  of  Conclusions.  The  best 
pleading  is  that  which  st-ates  facts  and 
not  conclusions  of  law,  leaving  no  room 
for  conjecture  as  to  any  fact  upon  which 
the  right  of  recoverv  is  based.  Stonegap 
Colliery  Co.  v.  Hamilton  (Va.)   1917E-60. 

2.  COMPLAINT  OR  DECLARATION. 

a.     In  General. 

4.  Averment  of  Ultimate  Facts.  A  dec- 
laration should  contain  sufficient  allega- 
tions of  all  the  facts  that  are  necessary 
to  state  a  cause  of  action.  As  a  general 
rule,  only  ultimate  facts  need  be  alleo-ed. 
Ingram-Dekle  Lumber  Co.  v.  Geiger  (Fla.) 
1918A-971. 

4%.  Averment  of  Venue  Sufficient. 
Venue  laid  in  the  margrin.  not  repeated  in 
the  body  of  the  declaration,  is  sufficient, 
though  the  action  be  local.  Henry  v.  Spit- 
ler  (Fla.)   1916E-1267. 

5.  Declaration  for  Personal  Injury — 
Requisites.  In  judging  of  the  sufficiency 
of  a  declaration  in  a  suit  for  damajjes  for 
personal  injuries,  the  essentials  of  such 
a  declaration  set  forth  in  the  case  of 
German-American  Lumber  Co.  v.  Brock, 
55  Fla.  577,  46  South.  Rep.  740,  are  ap- 
proved and  applied.  Florida  East  Coast 
R.  Co.  V.  Carter  (Fla.)  1916E-1299. 

6.  Negative  Pregnant.  In  an  action 
against  a  collector  of  internal  revenue  to 


PLEADING. 


673 


recover  back  a  part  of  the  exciss  tax  col- 
lected from  a  corporation  on  the  ground 
that  the  corporation  was  not  doing  busi- 
ness during  a  part  of  the  year  for  which 
the  tax  was  collected,  allegations  of  the 
petition  that  there  were  no  earnings  of 
the  corporation  from  March  18th  to  Dicem- 
ber  31st,  "subject  to  tax"  on  account  of  a 
lease  of  the  corporation's  property,  and 
on  account  of  its  property  being  turned 
over  to  the  lessee,  was  a  negative  preg- 
nant, from  which  it  was  to  be  implied  that 
the  corporation  did  receive  an  unnamed 
amount  of  income,  but  that  in  the  opinion 
of  the  pleader,  such  amount  should  be  ex- 
cluded from  consideration  in  computing 
the  amount  of  the  tax.  Blalock  v.  Georgia 
E.,  etc.  Co.  (Fed.)  1917A-679. 

(Annotated.) 

b.     Joinder  of  Causes. 

7.  Penalties.  Under  Ariz.  Civ.  Code 
1901,  pars.  1280  and  1291,  providing  that 
the  complaint  may  contain  several  differ- 
ent causes  of  action,  and  that  only  such 
causes  of  action  may  be  joined  as  are 
capable  of  the  same  character  of  relief, 
actions  ex  contractu,  not  being  joinable 
with  actions  ex  delicto,  and  actions  to  re- 
cover for  injuries  to  the  person,  to  prop- 
erty, or  to  character  not  being  joinable, 
where  the  state  sues  to  recover  the  pen- 
alty assessed  upon  any  electric  light  or 
power  company,  by  Laws  1912,  c.  50,  that 
should  permit  any  employee  about  its 
plant,  to  be  on  duty  more  than  8  hours  in 
24,  under  penalty  of  $100  fine  for  each 
day's  violation  of  the  act,  the  statute  pro- 
viding that  the  suit  for  such  penalty  may 
be  instituted  in  any  court  of  the  state 
having  competent  jurisdiction,  the  recov- 
ery sought  being  for  15  violations,  sepa- 
rately stated  in  the  complaint,  the  supe- 
rior court  has  jurisdiction  of  the  suit,  since 
the  several  penalties  sued  for  are  grounded 
in  the  same  right,  the  parties  and  the 
causes  of  action  the  same,  and  each  capa- 
ble of  the  same  character  of  relief.  Miami 
Copper  Co.  v.  State  (Ariz.)   1916E-49i. 

8.  Joinder  of  Counts.  A  declaration 
may  contain  any  number  of  counts,  pro- 
viding it  does  not  violate  the  rule  against 
vexatious  pleading,  and  each  count  pre^ 
Bents  a  separate  and  distinct  cause  of  ac- 
tion, which  is  appronriate  to  the  form 
of  action  pleaded.  Philadelphia,  etc.  E. 
Co.  T.  Gatta  (Del.)   1916E-1227. 

c.     Ad  Damnum   Clause. 

9.  Damages — Pleading  Special  Damage. 
A  paragraph  in  a  complaint  for  personal 
injuries  which  alleges  that  the  plaintiff's 
expenses  for  physician  and  surgeon  and 
medicine  were  "$ "  is  defective.  Grif- 
fin V.  Eussell  (Ga.)   1917D-994. 

10.  Averments  Sufficient  to  Warrant  Ex- 
emplary Damages.  Where  the  general  alle- 
gations   of   a    complaint   are   sufficient    to 

43 


show  that  the  wrong  complained  of  was 
inflicted  with  malice  or  pppr<.ssiou,  or  Imo 
circumstances,  the  complaint  will  be  suffi- 
cient to  authorize  the  infliction  of  exem- 
plary damages.  Dwyer  v.  Libert  (Idaho) 
1918B-973. 

d.     Cure  of  Defects  by  Answer. 

11.  Omission  in  Declaration  Cured  by 
Plea.  Matters  of  substance  omitted  from 
a  declaration  may  be  cured  by  plea.  Nash- 
ville, etc.  Ey.  V.  Anderson  (Tenn.)  1917D- 
902. 

12.  Cure  of  Defect  in  Contract — ^Admis- 
sion in  Pleading.  In  such  case  the  admis- 
sion in  the  defendant's  answer  of  the  cor- 
rectness of  the  description  of  the  property 
set  forth  in  the  complaint,  as  being  the 
same  that  was  intended  by  the  contract 
removes  the  objection  as  to  defective  de- 
scription, and  makes  the  pleadings  an 
agreement  supplying  any  defect  of  descrip- 
tion in  the  contract.  Drenneu  v.  Williams 
(Colo.)  1917A-664. 

e.     Eaising  Questions  of  Sufficiency. 

13.  Sufficiency  —  Failure  to  Object 
Promptly.  Where  no  objection  to  thd 
sufficiency  of  the  complaint  is  made  until 
the  introduction  of  evidence,  it  is  entitled 
to  all  the  intendments  in  its  favor,  which 
could  be  invoked  after  a  decision  on  th© 
merits  of  the  controversy.  Cooper  v. 
Hillsboro  Garden  Tracts  (Ore.)  1917E- 
840. 

14.  Formal  Objection*^ — ^Waiver  by  Fail- 
ure to  Demur.  If  a  defendant  in  an  action 
of  replevin  conceives  that  the  declaration 
filed     therein    is    defective    in    failing    to 

■specify  the  county  in  which  the  property 
which  forms  the  subject-matter  of  the  con- 
troversy is  detained,  he  should  test  the 
sufficiency  of  the  declaration  by  demur- 
ring thereto.  Henry  v.  Spitler  (Fla.) 
1916E-1267. 

15.  Insufficiency  —  Time  for  Objection. 
While  the  objection  that  the  petition  does 
not  state  a  cause  of  action  must  be  con- 
sidered at  any  stage  of  a  case  and  sus- 
tained if  well  taken,  it  will  be  received 
with  greater  favor  and  permitted  a  wider 
field  of  operation  if  raised  in  due  time  by 
motion  or  answer  than  when  interposed 
after  the  labor,  expense,  and  delay  of  a 
trial.     Carter  v.  Butler  (Mo.)  1917A-483. 

3.     PLEA  OE  ANSWER. 
a.     In  General. 

16.  Negative  Pregnant.  Where  it  clearly 
appears  from  other  parts  of  the  answer 
that  the  allegations  technically  admitted 
by  a  negative  pregnant  are  in  fact  denied, 
the  answer  will  be  held  good,  and,  inas- 
much as  a  general  denial  puts  in  issue 
every   allegation  in   the   complaint,   there 


674 


can  be  no  negative  pregnant  in  such  case. 
Lrennea  v.  Williams  (Colo.)  1917A-664. 

(Annotated.) 

17.  In  an  action  for  specific  perform- 
ance of  a  contract  to  convey  land,  wherein 
the  answer  sets  up  and  specifies  fraudulent 
representations  inducing  defendant  to  en- , 
ter  into  the  contract,  and  wherein  plaintiff 
replies,  denying  that  he  had  set  about  to 
defraud  the  defendant  or  his  wife  or  son 
out  of  their  property,  as  alleged  in  said 
amended  answer,  the  denial  of  plaintiff's 
motion  at  the  trial  to  strike  out  the  words 
"as  alleged  in  said  amended  answer"  is 
improper,  since  the  defendant  could  not 
have  been  misled  by  the  pleading.  Dren- 
nen  v.  Wniiams  (Colo.)  1917A-664. 

(Annotated.) 

18.  In  a  init  for  breach  of  a  contract  to 
purchase  motor  cars,  a  denial  that  the 
minimum  profit  was  and  is  $100  per  car 
is  a  negative  pregnant  and  admits  that  the 
profit  was  $99.99  per  car.  Thompson  v, 
Hamilton  Motor  Co.  (Cal.)   1917A-677. 

(Annotated.) 

19.  Answer  Held  Insufficient.  It  is  held 
uuder  the  facts  of  this  case  that  the  court 
did  not  err  in  sustaining  the  demurrer  to 
the  answer  and  entering  judgment  in 
favor  of  the  plaintiff.  Duvall  v.  National 
Ins.  Co.  (Idaho)  1917E-1112. 

20.  Right  to  Plead  Inconsistent  De- 
fenses. Inconsistent  defenses  may  be  sep- 
arately pleaded.  Dibble  v.  Beliance  Life 
Ins.  Co.  (Cal.)  1917E-34. 

21.  Necessity  of  Answer.  Where  a  bill 
seeking  a  recovery  of  part  of  advance  pre- 
mium paid  for  surety  bond  on  ground  of 
insured's  death  at  expiration  of  half  of 
period  raises  questions  of  estoppel  and 
waiver  which  the  demurrer  does  not  reach,* 
such  questions  require  an  answer.  Crouch 
V   Southern  Surety  Co.  (Tenn.)  1916C-1220. 

22.  Answer  —  To  Separate  Counts.  The 
defendant  must  make  separate  answer  to 
each  count,  where  the  declaration  contains 
several  proper  counts.  Philadelphia,  etc. 
K.  Co.  V.  Gatta  (Del.)  1916E-1227. 

23.  Affidavit  of  Defense  —  Sufficiency. 
An  affidavit  which  does  not  set  forth  the 
nature  of  the  defense  interposed  after  the 
overruling  of  a  demurrer  to  the  declara- 
tion, but  which  refers  to  the  notice  of 
special  matter,  which  sets  forth  the  nature 
of  the  defense,  sufficiently  complies  with 
Miss.  Code  1906,  §  755,  providing  that  a 
plea  shall  not  be  admitted,  unless  defend- 
ant makes  an  oath  that  he  has  a  good  de- 
fense, setting  forth  the  nature  thereof, 
and  the  court  properly  permitted  the  filing 
of  the  plea  and  notice.  Kiverside  Develop- 
ment Co.  V.  Hartford  Fire  Ins.  Co.  (Miss.) 
1916D-1274.    . 

24.  Necessity  of  Pleading  Justification 
Specifically.  Under  Mont.  Rev.  Codes, 
§  6540.  ?ubd.  2.  providing  that  the  answer 
must  contain  a  st-tement  of  any  new  mat- 


DIGEST. 

1916C— 1918B. 

ter  constituting  a  defense  or  counterclaim, 
the  defense  of  justification  for  an  illegal 
act  must  be  specifically  pleaded,  as  at 
common  law.  Herlihy  v.  Donohue  (Mont.) 
I917C-29. 


25.  Inconsistent  Defenses.  Defenses  are 
not  inconsistent  when  they  may  all  be 
true,  and  are  only  inconsistent  when  some 
of  them  must  necessarily  be  false  if  others 
are  true,  and  in  such  a  case  they  cannot 
be  united.  Susznik  v.  Alger  Logging  Co, 
(Ore.)  1917C-700.  (Annotated.) 

26.  In  an  action  for  injuries  based  on 
the  theory  of  the  relation  of  passenger  and 
carrier  between  plaintiff  and  defendant, 
an  answer  setting  up  the  Ore.  Workmen's 
Compensation  Act  as  affording  the  reme- 
dies for  plaintiff,  and  alleging  that  plain- 
tiff wa»  guilty  of  negligence,  does  not  set 
forth  inconsistent  defeases,  though  alle- 
gations in  the  first  defense  that  plaintiff 
was  riding  on  the  train  without  the  con- 
sent or  knowledge  of  defendant,  and  of 
plaintiff's  negligence,  are  irrelevant,  be- 
cause under  the  Workmen's  Compensation 
Act  such  questions  are  eliminated.  Susz- 
nik V.  Alger  Logging  Co.  (Ore.)  1917C- 
700.  (Annotated.) 

27.  Inconsistent  defenses  being  allowed 
by  Cal.  Code  Civ.  Proc.  §  441,  one  sued  on 
a  guaranty  may  show  that  the  contract 
was  procured  by  fraud,  and,  as  a  separate 
defense,  that,  if  valid,  no  liability  had 
arisen  under  it  by  reason  of  the  fact  that 
no  indebtedness  had  been  incurred  covered 
by  its  terms.  American  National  Bank  v. 
Donnellan   (Cal.)   1917C-744.  (Annotated.) 

28.  Under  the  law  of  Iowa  inconsistent 
defenses,  as  denial  of  contract,  postpone- 
ment of  performance,  and  mitigation  of 
damages,  may  be  joined.  Parsons  v.  Trow- 
bridge (Fed.)  1917C-750.  (Annotated.) 

29.  It  is  held  that  it  was  the  duty  of 
the  trial  court,  under  the  pleadings  in  this 
case,  either  to  have  granted  respondent's 
motion  to  strike  out  all  of  paragraph  3  on 
page  3  of  appellants'  first  alleged  further 
answer  and  defense  and  all  of  paragraph 
3;  beginning  at  the  bottom  of  page  5  of 
their  second  alleged  further  answer  and 
defense,  contained  in  their  amended  an- 
swer, or  to  have  required  them  to  elect 
fcpon  which  defense  they  intended  to  rely^ 
and  that  the  evidence  upon  the  trial 
should  have  been  confined  to  the  defense 
upon  which  they  elected  to  stand.  Harsh- 
barger  v.  Eby  (Idaho)  1917C-753. 

(Annotated.) 
•  30.  Under  section  4187,  Idaho  Ee«'. 
Codes,  a  defendant  may  set  forth  by  an- 
swer as  many  defenses  and  counterclaims 
as  he  may  have,  and  the  satne  may,  to  a 
certain  extent,  be  inconsistent  with  each 
other,  but  they  must  not  be  so  inconsistent 
that  the  proof  of  one  defense  would  nec- 
essarily disprove  the  other;  and,  where  the 
allegations  of  an  amender!  answer  are  in- 
consistent,  the    defendant    will    be    bound 


PLEADING. 


675 


by    those     against    him.     Harshbarger    v. 
Eby    (Idaho)    1917C-7o3.  (Annotated.) 

31.  Striking  Out  as  Sham — General  De- 
nial. Although  a  general  denial  to  tha 
allegations  of  the  complaint  may,  if  falsely 
pleaded,  be  characterized  as  sham,  yet  an 
inquiry  in  advance  of  the  trial  cannot  be 
entertained  by  the  court  as  to  the  good 
faith  of  the  defendants  in  pleading  it, 
nor  can  it  be  stricken  out  as  sham  on  an 
application  of  the  plaintiffs.     The  defend- 

'ant  has  the  right,  by  a  general  denial,  to 
put  the  plaintiff  to  the  proof  of  his  de- 
mand. Kline  v.  Harris  (N.  Dak.)  19I7D- 
1176.  (Annotated.) 

32.  An  answer,  by  way  of  a  general  de- 
nial, is  the  equivalent  of  and  substitute  for 
the  general  issue  under  .the  common-law 
system  of  pleading.  It  gives  to  the  de- 
fendant the  same  right  to  require  the 
plaintiff  to  establish  by  proof  all  the  ma- 
terial facts  necessary  to  show  his  right  to 
a  recovery  as  was  given  by  that  plea. 
Under  th«  common-law  system  the  general 
issue  could  not  be  stricken  out  as  sham, 
although  shown  by  affidavit  to  be  false. 
Kline  v.  Harris  (N.  Dak.)  1917D-1176. 

(Annotated.) 

33.  Admission  of  Sufficiency  —  Replica- 
tion. By  filing  a  replication  plaintiff  con- 
ceded that  the  allegations  of  the  answer 
operated  as  a  bar  to  the  relief  sought,  un- 
less the  new  allegations  of  the  replication 
were  sufficient  to  avoid  the  legal  effect  of 
the  answer's  allegations  as  a  bar  to  the 
<ause  of  action  originally  stated.  People 
V.  Chicago  E.  Co.  (111.)  1917B-821. 

Notes. 

Striking  out  general  denial  as  sham  or 
frivolous.     1917D-1177. 

Inconsistent  defenses  within  rules  of 
pleading.     1917C-704. 

Service  of  new  answer  to  amended  bill 
or  complaint.     1918A-205. 

Negatives   pregnant.     1917A-668. 

b.     Pleas  in  Abatement. 

34.  Actions  —  Parties  —  Nonexistence  of 
Plaintiff  as  Defense.  Upon  judgment  for 
defendant  on  his  plea  in  abatement  that 
there  was  no  such  person  as  the  alleged 
plaintiff  in  the  suit,  the  proper  judgment 
is  to  quash  the  writ.  Baldauf  v.  Nathan 
Eussell  (N.  J.)  1917D-1191.     (Annotated.) 

35.  The  defense  that  the  plaintiff  is  a 
fictitious  person  attacks  the  capacity'  of 
the  plaintiff  to  commence  or  continue  the 
fjuit,  and  is  properly  the  subject  of  a  plea 
in  abatement.     Balilauf  v.  Nathan  Russell 

.  (N.  J.)    1917D-1191.  (Annotated.) 

36.  As  there  are  no  formal  pleadings  in 
the  district  courts,  a  defense  that  the 
plaintiff  is  a  fictitious  person  may,  in  the 
absence  of  statute  providing  otherwise,  be 
raised  ore  tenus.  Baldauf  v.  Nathan  Rus- 
sell (N.  J.)  19I7D-1191.  (Annotated.) 


37.  Plea  Puis  Darrein  Continuance  — 
Waiver  of  Former  Pleas.  III.  Practice 
Act,  §  50  (Kurd's  Rev.  St.  1913,  c.  110, 
§  50),  provides  that  the  pleading  of  a  plea 
puis  darrein  continuance  shall  not  waive 
former  pleas,  so  that  the  law,  as  it  was 
prior  to  the  revision  of  the  Practice  Act  in 
1907,  that  such  a  plea  would  supersede 
an  answer  theretofore  filed  and  strike  the 
answer  from  the  record  by  operation  of 
law,  confessing  the  matters  set  forth  in 
the  petition,  no  longer  applies.  People  ▼. 
Chicago  R.  Co.  (111.)  1917B-821. 

Note. 

Nonexistence  of  plaintiff  (not  Corpora- 
tion) as  defense  to  action.     1917D-1193. 

4.    DEMURRER, 
a.     Requisites. 

38.  Necessity  of  Memorandum  of  Objec- 
tions. Ind.  Acts  1911,  c.  157  (Burns'  Ann. 
St.  1914,  §  344),  requiring  demurrer  to  a 
complaint  for  want  of  sufficient  facts  to  be 
accompanied  by  a  memorandum  showing 
the  insufficiency,  applies  to  an  affirmative 
reply.  Pittsburgh,  etc.  R.  Co.  v.  Home  Ins. 
Co.  (Ind.)  1918A-828. 

39.  Specification  Sufficient.  A  specifica- 
tion in  a  demurrer  that  a  "plea  presents 
no  defense  to  the  cause  of  action,"  may 
not  be  wholly  insufficient  where  the  plea 
is  short  and  contains  specific  statements. 
Johnson  v.  Florida  East  Coast  B.  Co.  (Fla.) 
1916C-1210. 

b.     Grounds  of  Demurrer. 

40.  Scope  of  Specifications.  Specifica- 
tions in  a  demurrer  that  no  negligence  was 
shewn  for  which  defendant  was  liable,  and 
that  it  was  not  shown  how  or  wherein  de- 
fendant's servants,  were  negligent,  do  not 
raise  the  point  that  the  complaint  failed 
to  show  the  servants  were  negligent  while 
acting  within  the  scope  of  their  employ- 
ment. Best  Park  etc.  Co.  v.  Rollins  (Ala.) 
1917D-929. 

41.  Nonjoinder  of  Parties.  Nonjoinder 
or  defense  of  the  want  of  necessary  par- 
ties, when  apparent  upon  the  face  of  the 
bill,  can  be  availed  of  by  demurrer  to  the 
bill.  Henderson  v.  Harper  (Md.)  1917C- 
93. 

c.     Admissions  by  Demurrer. 

42.  Scope  of  Admission  by  Demurrer — 
Want  of  Adequate  Legal  Remedy.  The 
averment  that  plaintiffs  had  no  complete 
and  adequate  remedy  at  law  is  not  ad- 
mitted by  demurrer.  Boutwell  v.  Champ- 
lain  Realty  Co.  (Vt.)   1918A-726. 

43.  Effect — Admission  of  Allegatlcns. 
Defendant's  demurrer  to  a  replication  ad- 
mits as  true  new  matters  alleged  in  the 
replication,  but  challenges  its  sufficiency 
to  avoid  the  bar  t*  the  originally  stated 


676 


DIGEST. 

1916C— 1918B. 


cause    of    action    presented  "by  tbe   plea. 
People  V.  Chicago  R.  Co.  (111.)  1917B-821. 

44.  Carrying  Demurrer  Back.  Upon  a 
demurrer  to  an  answer  which  is  carried 
back  to  a  petition  the  plaintiff  will  not  be 
deemed  to  have  admitted  allegations  in 
the  answer  which  -are  inconsistent  with 
and  contradictory  of  those  included  in  his 
petition.  Marney  v.  Joseph  (Kan.)  1917B- 
225. 

45.  Admission  of  Averments.  General 
demurrers  to  the  petition  and  amended  pe- 
tition admit  the  truth  of  all  material  aver- 
ments therein.  Axton  Fisher  Tobacco  Co. 
V.  Evening  Post  Co.  (Ky.)  1918B-560. 

d.     Ruling  on  Demurrer. 

46.  Pleading  Taken  as  True.  On  demur- 
rer the  averments  of  the  petition  attacked 
wust  be  taken  as  true.  Taulbee  v,  Hargis 
(Ky.)  1918A-762. 

47.  Truth  of  Pleading  Assumed.  For  the 
purposes  of  ruling  on  a  demurrer,  the  the- 
ory of  a  complaint  must  be  assumed  to  be 
based  on  fact.  Gilchrist  v.  Hatch  (Ind.) 
1917E-1030. 

48.  Scope.  A  demurrer  for  want  of  facts 
does  not  reach  a  defect  of  parties  plaintiff. 
Pittsburgh,  etc.  R.  Co.  v.  Home  Ins.  Co. 
(Ind.)   1918A-828. 

49.  Construction  as  Against  Demurrer. 
Under  the  N.  Car.  Code  rule  that  pleadings 
are  to  be  liberally  construed,  a  demurrer 
cannot  be  sustained  to  a  complaint  if  in 
any  portion  of  it  or  to  any  extent  it  pre- 
sents facts  sufficient  to  constitute  a  cause 
of  action,  or  if  facts  for  that  purpose  can 
be  fairly  gathered  from  it,  however  in- 
artificially  it  may  have  been  drawn  or  how- 
ever uncertain,  defective,  or  redundant 
may  be  its  statements.  Hoke  v.  Glenn 
(N.  Car.)  1916E-250. 

50.  Scope  and  Effect  of  Demurrer.  A  de- 
wurrer  is  addressed  to  a  plea  as  an  en- 
tirety, and  questions  its  legal  sufficiency 
as  the  statement  of  a  defense.  Johnson 
V  Florida  East  Coast  R.  Co.  (Fla.)  1916C- 
1210. 

51.  If  considered  as  a  whole,  a  plea 
does  not  in  substance  sufficiently  present 
nil  of  the  essential  elements  of  a  valid  de- 
fense to  the  declaration  or  to  a  designated 
count  thereof,  to  which  it  is  directed,  a  de- 
murrer thereto  should  be  sustained.  John- 
son v.  Florida  East  Coast  R.  Co.  (Fla.) 
1916C-1210. 

52.  Matters  Considered.  Allegations  of 
the  complaint  cannot  be  considered  in  pass- 
ing on  a  demurrer  to  a  plea  to  the  jurisdic- 
tion. Meixell  v.  American  Motor  Car 
Sales  Co.  (Ind.)  1916D-375. 

53.  Plea  to  Jurisdiction — Presumptions. 
On  demurrer  to  a  plea  to  the  jurisdiction 
by  a  d?fendant  non-resident  corporation, 
nothing  could  be  supplied  in  a  plea  by  in- 


tendment; and  hence,  in  the  absence  of  a 
contrary  allegation,  the  presumption  was 
that  the  cause  of  action  grew  out  of  a 
transaction  of  business  by  defendant  in  the 
state,  and  it  could  not  be  assumed  that  it 
had  no  property  within  tha  state,  though 
an  allegation  to  such  effect  was  contained 
in  an  affidavit  filed  by  it  with  the  Secre- 
tary of  State,  attempting  to  withdraw 
from  the  state  and  revoke  its  agency  for 
service  of  process.  Meixell  v.  American 
Motor  Car  Sales  Co.  (Ind.)  1916D-37o. 

54.  Strict  Construction.  Pleadings  are, 
when  attacked  on  demurrer,  strictly  con- 
strued against  the  pleader.  Myers  v.  Sal- 
try  (Ky.)  1916E-1134. 

55.  Carrying  Demurrer  Back.  Where  on 
demurrer  to  the  replication  no  motion  was 
mede  by  plaintiff  to  carry  the  demurrer 
back  to  the  plea,  the  sufficiency  of  the  plea 
as  a  defense  to  the  petition  was  not  pre- 
sented to  the  court  for  determination. 
People  V.  Chicago  R.  Co.  (111).  1917B-821. 

56.  A  demurrer  to  an  answer  may  be  car- 
ried back  to  a  petition  and  the  sufficiency 
of  the  petition  tested  upon  that  challenge, 
although  a  previous  demurrer  to  the  peti- 
tion had  been  considered  and  overruled. 
Marney  t.  Joseph  (Kan.)  1917B-225. 

57.  Action  Equivalent  to  Ruling.  Four 
years  after  the  death  of  plaintiff's  intes- 
tate additional  counts  were  filed  to  which 
defendant  pleaded  limitations.  To  this 
plea  plaintiffs  demurred,  but  the  record 
did  not  disclose  any  ruling  on  the  demur- 
rer. It  is  held  that  where  the  original 
declaration  was  entirely  eliminated  and 
the  court  proceeded  with  the  trial  sustain- 
ing the  cause  of  action  on  the  additional 
counts,  no  complaint  that  the  ruling  on  the 
demurrer  was  not  had  could  be  sustained, 
the  action  of  the  court  being  equivalent 
to  a  ruling  on  the  demurrer.  Lichtenstein 
V.  L.  Fish  Furniture  Co.  (HI.)  1918A-1087. 

58.  Supplemental  Pleading — Relation  to 
Original.  A  complaint  and  supplemental 
complaint  must  -be  considered  as  a  single 
pleading  when  tested  by  demurrer.  Cin- 
cinnati, etc.  R.  Co.  V.  McCullom  (Ind.) 
1917E-1165. 

e.    Waiver   of  Objections. 

59.  The  trial  court  cannot  relieve  the  de- 
fendant from  the  waiver  of  his  demurrer 
by  giving  him  permission  to  replead  with- 
out prejudice,  the  remedy,  if  it  was  de- 
sired to  preserve  the  questions  raised  for 
appeal  without  sufferincr  judgment,  being 
under  the  statute  authorizing  the  passing 
of  cases  to  the  supreme  court  before  final 
iudgment.  Citizens  Sav.  Bank,  etc.  Co.  v. 
Northfield  Trust  Co.  (Vt.)  1918A-S91. 

60.  Waiver  by  Pleading  to  Merits.  A 
demurrer  in  a  civil  case  at  law  is  waived 
by  pleading  to  the  merits  aft^r  th"  de- 
murrer is  overruled.  Citizens  Sav.  Bank, 
etc.  Co.  V.  Northfield  Trust  Co.  (Vt.) 
1918A-891. 


PLEADING. 


677 


f.     Standing  by  Demurrer. 

61.  A  party  cannot  elect  to  stand  by  his 
demurrer,  and  at  the  same  time  be  given 
the  benefit  he  would  have  received,  had  he 
elected  to  abandon  the  demurrer  and  plead 
over.  Wende  v.  Chicago  City  E.  Co.  (111.) 
1918A-222. 

62.  On  plaintiff  electing  to  stand  by  her 
demurrer,  which  had  been  overruled,  to  the 
plea  of  limitations  to  an  amended  count 
of  the  declaration,  the  court  should  render 
judgment  for  defendant  as  to  the  entire 
count  as  amended.  Wende  ▼.  Chicago  City 
E.  Co.  (111.)  1918A-222. 

5.     EEPLT. 

63.  In  Court  Exercising  Powers  of  Jus- 
Uce  of  Peace.  Since  the  only  pleading  re- 
quired in  the  county  court  when  exercising 
the  jurisdiction  of  a  justice  of  the  peace  is 
a  bill  of  particulars,  and  the  reply  in  the 
district  court  on  appeal  was  to  new  matter 
in  the  answer  and  was  not  inconsistent 
with  the  petition,  it  should  not  have  been 
stricken.  Berryman  v.  Childs  (Neb.) 
1918B-1029. 

64.  Reply  to  Counterclaim  —  Waiver. 
Where  a  decree  for  complainants  is  ren- 
dered dismissing  the  cross-complaint  for 
want  of  prosecution  and  is  afterwards 
opened  on  defendant's  motion  and  testi- 
mony heard  and  the  cause  tried  as  if  the 
issues  had  been  made  up  by  the  pleadings 
and  tried  on  the  merits,  defendant  thereby 
waives  complainant's  failure  to  answer  the 
counterclaim.  Streudle  v,  Leroy  (Ark.) 
1917D-618.  (Annotated.) 

65.  New  Matter  In  Reply.  Where  an  em- 
ployer, in  an  action  by  an  employee  for 
personal  injuries,  relies  on  a  release,  alle- 
gations of  the  reply  that  the  employer  dis- 
regarded his  promise  to  employ  the  em- 
ployee, forming  a  part  of  the  consideration 
of  the  release,  and  discharged  the  em- 
ployee, are  allegations  of  new  matter,  and 
under  Ore.  L.  O.  L.  §  95,  controverted  as 
on  direct  denial.  Vasquez  v.  Pettit  (Ore.) 
1917A-439. 

6.     REJOINDER. 

66.  Reply — Necessity    of    Denial.    Iowa 

Code  1897,  §  3576,  provides  there  shall  be 
no  reply  except  when  new  matter  is  al- 
leged, or  some  matter  is  alleged  in  the 
answer  to  which  plaintiff  claims  to  have  a 
defense  because  of  a  fact  avoiding  it.  Sec- 
tion 3577  declares  that  an  allegation  in 
the  reply  of  new  matter  in  avoidance  shall 
not  be  treated  as  a  waiver  of  the  denial 
of  the  allegations  of  the  answer  implied  by 
law.  It  is  held  that  plaintiff,  whose  reply 
avoided  some  of  the  allegations  of  the  an- 
swer, need  not  deny  the  others  in  order  to 
claim  the  benefit  of  the  statute.  Schworm 
v.  FraterTial  Bankers  Reserve  Soc.  (Iowa) 
1917B-373. 


7.     AMENDMENT  OF  PLEADINGS, 
a.     Allowance  of  Amendment. 

67.  Effect    of    Standing    on    Demurrer. 

Plaintiff,  by  electing  to  stand  by  her  de- 
murrer to  the  plea  of  limitations  to  an 
amended  count  of  the  declaration,  after  the 
demurrer  was  overruled,  forfeited  right  to 
amend  the  amended  count,  either  by  restor- 
ing it  to  its  original  form,  or  otherwise 
changing  it  so  as  to  remove  tne  objection 
raised  by  the  plea.  Wende  v.  Chicago  City 
E.  Co.  (111.)  1918A-222. 

68.  Statute  Permitting  Amendment  — 
Construction.  S.  Dak.  Code  Civ.  Proc. 
§  150,  providing  that  "the  court  may"  in 
furtherance  of  justice  "amend  any  plead- 
ing ...  by  adding  or  striking  out  the 
name  of  any  party,"  authorizes  the  court 
to  permit  amendments  by  the  parties,  and 
does  not  merely  authorize  the  judge  him- 
self to  order  amendments.  Hardy  v.  Woods 
(S.  Dak.)  1916C-398. 

69.  Amendment — New  Cause  of  Action. 

An  amended  statement,  which  merely  in- 
troduces an  additional  element  of  damages 
drawn  from  the  circumstances  alleged  in 
the  original  statement  in  replevin,  does  not 
introduce  a  new  cause  of  action  and  may 
therefore  be  allowed  at  any  time.  Arm- 
strong V.  Philadelphia  (Pa.)  1917B-1082. 

70.  Amendment  Without  Terms.  In  such 
action  the  allowance  of  plaintiffs'  amend- 
ment without  terms  is  not  an  abuse  of  the 
trial  court's  discretion.  Gist  v.  Johnson- 
Carey  Co.  (Wis.)  1916E'-460. 

71.  Amendment  Denied.  The  court  did 
not  err  in  refusing  to  allow  the  amendment 
to  the  petition,  or  in  excluding  the  evi- 
dence offered  in  support  thereof.  Jacob's 
Pharmacy  Co.  v.  Luckie  (Ga.)  1917A-1105. 

72.  Amendment  of  Pleading — Cause  of 
Action  not  Changed.  In  suit  on  an  insur- 
ance policy,  where  the  petition  alleged  that 
defendant  undertook  and  agreed  to  and 
with  the  plaintiff  to  insure  the  latter,  etc., 
an  amendment  by  adding  "and  did  insure," 
after  "undertook  and  agreed  to  and  with 
the  plaintiff  to  insure,"  does  not  change 
the  cause  of  action  from  one  for  a  failure 
to  insure  as  agreed,  to  one  for  the  breach 
of  a  contract  of  present  insurance,  in  view 
of  other  allegations  of  the  petition  perti- 
nent only  to  a  claim  for  breach  of  a  pres- 
ent contract,  while  "contract  to  insure" 
and  "contract  of  insurance"  are  used  inter- 
changeablv.  Royal  Ins.  Co.  v.  Walker 
Lumber  Co.  (Wyo.)  1917E-1174. 

b.     Subject  of  Amendment. 

73.  Tinder  S.  Dak.  Code  Civ.  Proc.  §  150, 
authorizins;  the  court  before  or  after  judg- 
ment, in  furtherance  of  justice,  to  amend 
any  pleading  by  adding  or  striking  out  the 
name  of  the  party,  the  court  has  power  to 


678 


DIGEST. 

1916C— 1918B. 


permit   such   an   amendment  to  he   made. 
Noziska  v.  Aten  (S.  Dak.)  1916C-589. 

(Annotated.) 

74.  Adding  New  Parties  Plaintiff.  Where 
tbe  attorney  for  plaintiflFs,  in  support  of  a 
motion  to  amend  a  complaint  in  the  name 
of  two  individuals  against  an  attorney  for 
negligence  which  resulted  in  plaintiffs  hav- 
ing to  pay  an  attachment  bond  which  they 
had  signed,  files  an  affidavit  showing  that 
at  the  time  he  drew  the  complaint  he 
thought  the  plaintiffs  were  partners,  and 
that  the  claim  on  which  the  former  suit 
\^as  brought  was  a  partnership  claim,  but 
that  he  afterwards  learned  that  two  others 
were  partners  of  one  of  the  plaintiffs,  and 
tbat  the  other  plaintiff  had  assigned  his 
claim  to  the  partnership  for  collection,  the 
showing  is  sufficient  to  warrant  the  court, 
ia  its  discretion,  to  permit  the  complain- 
ant to  be  amended  by  adding  the  other 
partners  as  parties  plaintiff.  Noziska  v. 
Aten  (S.  Dak.)  1916C-589.        (Annotated.) 

75.  Change  from  B,epresentative  to  Per- 
sonal Capacity.  An  amendment  of  the 
complaint,  in  an  action  to  quiet  title  ex- 
pressly brought  as  administrator  alleging 
that  the  property  belonged  to  the  estate, 
by  striking  out  the  allegations  showing 
that  the  suit  was  brought  in  a  representa- 
tive capacity  and  alleging  that  plaintiff 
claimed  individually  as  surviving  devisee, 
ia  not  objectionable  as  setting  up  a  new 
cause  of  action  and  changing  the  issues. 
Hardy  v.  Woods  (S.  Dak.)  1916C-398. 

(Annotated.) 

76.  Change  of  Names  of  Parties.  A  com- 
plaint may  be  amended  so  as  to  change  the 
names  of  the  parties  if  the  amendment 
does  not  prejudice  the  parties  and  is  in 
furtherance  of  justice.  Hardv  v.  Woods 
(S.  Dak.)  1916C-398. 

77.  Amendment  Changing  Cause  of  Ac- 
tion. Though  courts  are  liberal  iu  allow- 
itg  amendments,  the  amendment  must  not 
introduce  a  substantive  cause  different 
from  that  declared  on  in  the  original  dec- 
laration. Irvine  v.  Barrett  (Va.)  1917C- 
62. 

Notes. 

Eight  to  amend  action  by  adding  new 
parties  plaintiff.     1916C-591. 

Eight  of  plaintiff  to  amend  so  as  to 
change  capacity  in  which  he  sues  from 
representative  to  individual  one  or  vice 
versa.     1916C-401. 

c.     Time  of  Amendment, 

78.  Power  to  Permit.  Under  Const.  1897, 
art.  4,  §  24,  and  Del.  Bev.  Code  1852,  c. 
112,  §  11,  authorizing  the  superior  court 
to  allow  amendments,  the  court  in  its  dis- 
cretion may  allow  an  amendment  at  any 
time  before  judgment,  whether  limitations 
would  have  run  against  the  cause  stated 
in  the  amendment,  if  made  the  subject  of 


a    separate    action,   or    not,     Philadelphia, 
etc.  K.  Co.  V.  Gatta  (Del.)   1916E-1227. 

d.     Effect  of  Amendment. 

79.  Pleading  Anew  After  Amendment. 
A  count  of  a  declaration  being  amended  in 
a  material  respect,  defendant  may  plead 
do  novo  to  the  new  count  as  a  whole. 
Wende  v.  Chicago  City  E.  Co.  (III.)  1918A- 
222.  (Annotated.) 

80.  Effect  on  Original  Pleading.  A  count 
of  a  declaration  being  amended  in  a  ma- 
terial respect,  is  abandoned,  and  a  new 
count  substituted  for  it.  Wende  v.  Chicago 
City  E.  Co.  (111.)   1918A-222. 

81.  An  answer  interposed  to  the  original 
complaint  will  stand  as  an  answer  to  the 
complaint  as  thereafter  amended,  unless 
defendant  elects  to  answer  anew.  Van 
Woert  v.  New  York  Life  Ins.  Co.  (N.  Dak.) 
1918A-203.  (Annotated.) 

82.  Amendment  of  Complaint — Necessity 
of  New  Answer.  A  default  judgment  ren- 
dered in  a  case  at  issue  upon  the  amended 
complaint  and  the  answer  to  the  original 
complaint  may  be  set  aside  without  an 
affidavit  of  merits.  Van  Woert  v.  New 
York  Life  Ins.  Co.  (N.  Dak.)  1918A-203. 

(Annotated.) 

83.  Section  7445,  N.  Dak.  Comp.  Laws, 
applies  only  to  complaints  amended  after  a 
demurrer  thereto  has  been  sustained,  and 
has  no  application  to  an  amendment  made 
in  the  action  by  order  of  the  court,  or  by 
agreement  of  the  parties.  Van  Woert  v. 
New  York  Life  Ins.  Co.  (N.  Dak.)  1918A- 
203.  (Annotated.) 

84.  Effect  on  Previous  Pleading.  An 
amended  answer  supersedes  the  original  an- 
swer. Dibble  v.  Eeliance  Life  Ins.  Co. 
(Cal.)  1917E-34. 

e.     Trial  Amendments. 

85.  Amendment  at  Trial — Refusal  Proper. 
Where  on  the  third  day  of  the  trial  plain- 
tiff sought  to  file  an  amended  petition 
which  did  not  change  the  averments  of 
negligence  contained  in  the  original  peti- 
tion and,  like  the  original,  was  extremely 
general,  the  denial  of  leave  to  file  is  not 
an  abuse  of  discretion.  Smith's  Admx.  v. 
Middlesboro  Electric  Co.  (Ky.)  1917A- 
1164. 

86.  In  an  action  for  the  balance  due 
upon  a  contract  for  grading,  which,  after 
several  days  of  trial  and  after  the  close 
of  plaintiff's  evidence,  was  shown  to  have 
been  made  and  delivered  on  Sunday,  as 
previously  known  to  defendant,  the  allow- 
ance of  an  amendment,  so  as  to  proceed 
on  the  theory  that  plaintiff  was  entitled  to 
recover  on  a  quantum  meruit,  setting  up 
nothing  which  could  have  surprised  the 
defendant,  who  had  had  ample  time  to 
prepare  for  trial,  is  not  an  abuse  of  the 


PLEADING. 


679 


trial  court's  discretion.  Gist  v.  Johnson- 
Carey  Co.  (Wis.)  1916E-460. 

87.  Code  Va.  1904,  §  3384,  authorizing 
amendments  when  a  variance  between 
pleadings  and  proof  develops  during  the 
trial,  is  to  be  construed  with  liberality  by 
the  courts.  Conrad  v.  Ellison-Harvey  Co, 
(Va.)  1918B-1171. 

.   8.     ISSUES  AND  VAEIANCE. 

88.  Where  a  general  creditors'  bill  un- 
dertakes, in  connection  with  general  state- 
ments of  fraud,  to  state  in  detail  why  the 
transaction  is  attacked,  and  upon  what 
grounds  it  is  claimed  to  be  fraudulent,  the 
proof  will  be  limited  to  such  allegation. 
Morgan  v.  Dayton  Coal,  etc.  Co.  (Tenn.) 
1917E-42. 

89.  Evidence  Held  Admissible.  Evi- 
dence received  as  to  the  financial  condi- 
tion of  the  newspaper  plant  involved  and 
the  worthlessness  of  the  stock  of  the  hold- 
ing company  owning  and  operating  it  was- 
admissible  under  the  issues  tendered  by 
the  pleadings.  Northern  Trust  Co.  v. 
Bruegger   (N.  Dak.)    1917E-447. 

90.  Sufaciency  of  Objection.  In  view  of 
Va.  Code  1904,  §  3384,  authorizing  amend- 
ments whenever  a  variance  between  plead- 
ings and  proof  develops  during  the  trial, 
in  a  discharged  bookkeeper's  action  for 
salary,  where  the  declaration  contained 
only  the  common  counts  in  assumpsit  and 
plaintiff  offered  in  evidence  his  contract 
covering  his  original  employment  of  one 
year,  but  defendant  at  the  trial  made  uo 
objection  on  the  ground  of  variance  be- 
tween the  declaration  and  proof  or  upon 
the  insufficiency  or  the  inaptness  of  the 
evidence  to  sustain  recovery  on  the  com- 
mon counts,  but  his  sole  objection  to  the 
admission  of  the  contract  being  that  it 
was  not  then  in  force,  defendant  cannot  on 
review  successfully  contend  that  plaintiff 
should  have  declared  especially  on  his  eon- 
tract  and  its  breach,  since  parties  are  not 
permitted  to  make  one  objection  to  evi- 
dence in  the  trial  court  and  another  and 
different  one  in  the  appellate  court,  but  are 
regarded  as  having  waived  all  objections 
save  those  specifically  pointed  out.  Con- 
rad V.  Ellison-Harvey  Co.  (Va.)  1918B- 
1171. 

91.  Cause  of  Action  not  Pleaded.     The 

allegata  and  probata  must  meet  and  cor- 
respond, the  issues  being  made  by  the 
pleadings  to  which  the  proofs  must  be  con- 
fined. There  can  be  no  recovery  upon  a 
cause  of  action,  however  meritorious  it  may 
be,  that  is  in  substance  variant  from  that 
which  is  pleaded  bv  the  plaintiff.  Ingram- 
Dekle  Lumber  Co.V.  Geiger  (Fla.)  1918A- 
971. 

92.  As  to  Express  or  Implied  Contract. 
Under  the  rule  that  a  case  must  be  tried 
on  the  issues  made  by  the  pleadings,  a 
party  cannot  recover  upon  an  implied  con- 


tract, where  he  pleads  and  relies  upon  an 
express  contract.  Estate  of  Oldfield 
(Iowa)    1917D-1067. 

93.  Waiver  By  Request  for  Instructions 
on  Failure  to  Make  Issue.  Where  a  pas- 
senger's action  for  injuries  against  a  street 
railroad  was  tried,  and  evidence  offered 
pro  and  con,  upon  the  theory  that  contribu- 
tory ne^igence  was  in  issue,  both  parties 
asking  for  instructions  on  the  question, 
the  supreme  court  will  not  consider  whether 
it  was  properly  pleaded.  Kelly  v.  Santa 
Barbara  Consol.  E.  Co.  (Cal.)  1917C-67. 

94.  Waiver  of  Defect — ^Failure  to  Object 
at  Trial.  An  objection  that  proof  of  want 
of  authority  of  the  president  of  the  plain- 
tiff membership  corporation  to  contract  for 
it  could  not  be  made  under  defendant's 
pleadings  is  waived,  where  plaintiff  not 
only  did  not  urge  it  at  the  trial,  but,  by 
the  introduction  of  evidence  thereon,  as- 
sumed the  burden  of  proving  such  officer's 
authority.  Catholic  Foreign  Mission  Soc. 
v.  Oussani  (N.  Y.)  1917A-479. 

95.  Pleading  Waiver.  Even  though  the 
complaint  does  not  allege  a  waiver  of 
proof  of  notice,  where  facts  constituting 
the  waiver  are  introduced  by  the  defend- 
ant itself,  without  objection,  the  defendant 
will  not  be  permitted  to  say  that  since 
there  was  no  waiver  pleaded,  such  evi- 
dence ought  not  to  be  considered.  Dou- 
ville  V.  Pacific  Coast  Casualty  Co.  (Idaho) 
1917A-112. 

96.  Estoppel  —  Necessity  of  Pleading. 
While,  as  a  general  rule,  estoppel  or  waiver 
must  be  pleaded,  failure  to  do  so  may  be 
waived  by  plaintiff  by  proceeding  with  the 
trial  of  the  case  without  obj,ection,  as 
though  the  defense  relied  on  had  been 
pleaded.  First  Bank  of  Texola  v.  Terrell 
(Okla.)    1917A-681. 

97.  Names — ^Variance  in  Chain  of  Title. 
In  an  action  .to  quiet  title  in  which  plain- 
tiff claimed  as  devisee  from  one  who  ac- 
quired title  by  bidding  in  the  property  at 
mortgage  foreclosure  sale  under  the  name 
of  "J.  A.  Hardy,"  evidence  held  to  sustain 
a  finding  that  such  "J.  A.  Hardy"  was  the 
same  person  as  "Jesse  A.  Hardy,"  through 
whom  plaintiff  claimed  that  his  title  was 
derived.  Hardy  v.  Woods  (S.  Dak.) 
1916C-398. 

98.  Departure  —  Capacity  in  Which  In- 
strument Sued  on  is  Held.  In  an  action 
by  plaintiff  bank  on  a  check  which  the 
complaint  alleges  it  held  as  unqualified 
owner,  the  answer  alleges  that  it  is  held 
as  collateral,  and  the  reply  that  it  was 
taken  on  deposit,  defendant's  contention 
that  the  complaint  tenders  one  issue,  the 
reply  another  and  that  the  proof,  which 
shows  that  the  check  is  held  as  collateral, 
sustains  neither,  is  not  sound,  since  the 
real  issue  made  is  the  quality  of  the  bank's 
possession,  which  is  determined  by  the 
evidence;  a  "material  variance"  being  only 
one    that   actually    misleads   the   adverse 


680 


DIGEST. 

1916C— 1918B. 


party  to  his  prejudice  in  maintainincr  hig 
action  or  defense  on  the  merits.  German 
American  Bank  v.  Wright  (Wash.)  1917I>- 
S81. 

99.  Burden  of  Showing  Prejudice.  Un- 
der Rem.  &  Bal.  Wash.  Code,  §  299,  provid- 
ing that  no  variance  between  pleadings 
and  proof  shall-  be  deemed  material  unless 
it  has  misled  the  adverse  party  to  hia 
prejudice,  and  that,  whenever  it  shall  be 
alleged  that  a  party  has  been  so  misled, 
the  court  may  order  the  pleadings  to  be 
amended  upon  such  terms  as  shall  be  just, 
the  burden  is  upon  one  claiming  a  variance 
to  show  that  he  was  misled  thereby  to 
his  prejudice.  German  American  Bank  v. 
Wright   (Wash.)   1917D-381. 

100.  Express  or  Implied  Contract.  When 
the  plaintiff  alleges  an  express  contract  as 
the  basis  for  recovery,  he  cannot  recover 
on  an  implied  contract  or  quantum  meruit, 
especially  in  the  absence  of  any  allega- 
tions of  value.  Yancey  v.  Boyce  (N. 
Dak.)   1916E;-258. 

101.  Date  of  Contract.  An  allegation 
that  an  oral  contract  is  made  in  a  par- 
ticular year  may  be  supported  by  proof 
that  it  was  made  in  a  different  year,  where 
the  date  is  not  a  material  element  in  the 
description.  Gordon  v.  Spellman  (Ga.) 
1918A-852. 

102.  Averment  of  Sale  and  Proof  of  In- 
cumbrance. In  an  action  for  deceit  in  the 
sale  of  a  ship  and  her  freight,  allegations 
that  defendant  had  sold  the  freight  to 
another  before  selling  it  to  plaintiff  are 
supported  by  proof  that  he  had  assigned 
the  freight  as  security  for  a  disbursement 
draft  for  practically  the  entire  amount  of 
the  freight  due.  Corry  v.  Sylvia  Y  Cia 
(Ala.)  1917E-1052. 


9.     MOTIONS. 
103.  Repetition  —  Striking   Out. 


Upon 

motion,  matter  which  is  only  repetition  of 
that  already  pleaded  may  be  stricken  out. 
Eogers  v.  Nevada  Canal  Co.  (Colo.)  1917C- 
669. 

104.  Judgment  on  Pleadings — ^Admissions 
by  Motion.  A  motion  for  judgment  upon 
the  pleadings  admits  the  truth  of  all  well- 
pleaded  facts  in  the  pleading  of  the  oppo- 
site party.  Yancey  v.  Boyce  (N.  Dak.) 
1916E-258. 

10.     FILING  PLEADINGS. 

105.  Right  to  Demur  After  Default.  The 
defendant  in  an  action  at  law,  in  which 
the  office  judgment  has  become  final,  but 
has  not  been  entered  by  the  court,  may 
demur  to  the  declaration  notwithstanding 
the  lapse  of  the  statutory  period  and  the 
finality  of  the  judgment,  and,  if  the  de- 
murrer is  sustained,  formal  judgment  on 
the  office  judgment  cannot  be  entered. 
In  such  case,  the  office  judgment  becomes 


a  nullity,  if  the  declaration  is  not  amend- 
ed or  cannot  be  cured  by  amendment. 
Wilson  V.  Shrader  (W.  Va.)  1916D-886. 

106.  Default  —  When  Final.  The  office 
judgment  in  an  action  in  which  a  writ  of 
inquiry  is  necessary  does  not  become  final 
on  the  last  day  of  the  next  succeeding 
term  of  the  court,  and  the  defendant  may 
plead  to  the  declaration  at  any  time  be- 
fore execution  of  the  writ  of  inquiry. 
Wilson  V.  Shrader  (W.  Va.)  1916D-886. 

11.     VERIFICATION. 

107.  Time  to  Object  to  Failure  to  Ver- 
ify. Under  Ky.  Civ,  Code  Prac.  §  138, 
providing  that  no  objection  shall  be  taken 
after  commencement  of  the  trial  to  any 
pleading  for  want  of  verification,  want  of 
verification  to  a  petition  alleging  a  mis- 
take in  a  deed  will  be  treated  as  waived 
when  not  objected  to.  Hite  v.  Reynolds 
(Ky.)  1917B-619. 

PLEA  IN  ABATEMENT. 
See  Pleading,  34-37. 

PLEA  Pins  DARREIN  CONTINUANCR 
fiee  Pleading,  37. 

PLEA  TO  JURISDICTION. 

See  Pleading,  52,  53. 

PLEDGE. 

Soldier's   pledge   of  arms,  see  Army  and 

Navy,  10-12. 
Broker's  right  to  pledge,  see  Brokers,  13. 

1,  Liability  of  Indorser  on  Pledged 
Check — Necessity  of  Exhausting  Other 
Security.  Where  a  bank  sues  the  maker 
and  indorser  of  a  check,  pledged  to  it  by 
such  indorser,  there  was  no  requirement 
that  the  bank  shall  exhaust  other  security 
which  it  may  hold  as  collateral  to  the  in- 
dorser's  antecedent  debt,  for  which  the 
check  was  pledged  in  part.  German  Amer- 
ican Bank  v.  Wright  (Wash.)  1917D-381. 

2.  Note  as  Collateral — Right  to  Enforce 
— ^Payment  of  Debt.  A  holder  of  notes  re- 
ceived as  collateral  is  not  entitled  to  en- 
force them  after  payment  of  the  principal 
oblisration.  Estate  of  Philpott  (Iowa) 
1917B-839. 

POISONS. 
See  Drags  and  Druggists. 

POLICE. 

See  Civil  Service,  1. 

Arrests  without  warrant,  see  Arrest,  7,  8. 

Free  transport,  see  Carriers  of  Passengers, 

3. 
City    police     departments,    see     Municipal 

Corporations,  157-160. 
Status,  see  Public  Ofllcers,  3. 


POLICE  POWER. 


681 


POLICE  POWER. 

See  Intoxicating  Liquors,  7,  8,  17,  21,  24, 
26;  Labor  Laws,  18,  32. 

State  inspection  and  control,  see  Building 
and  Loan  Associations,  2. 

Generally,  see  Constitutional  Law,  14-44. 

Defined,  see  Constitutional  Law,  14. 

Eespecting  commerce,  see  Interstate  Com- 
merce, 6-10. 

Regulation  of  rates,  see  Public  Service 
Commissions,  28. 

POLICE  STATION  BLOTTER. 

As  evidence,  see  Evidence,  89. 

POLICY. 

See  Insurance;  Public  Policy. 

POLITICAL  CRITICISM. 
See  Ubel  and  Slander,  33,  37,  149. 

POLLING  PLACE. 
See  Elections,  21-25. 

POLL   TAXES. 
See  Taxation,  200. 

POLYGAMY. 

See  Bigamy,  2. 

1.  To  Show  Motive,  In  a  prosecution 
for  polygamy,  where  the  evidence  showed 
that  defendant  lived  with  the  plural  wife 
tor  only  a  few  days,  evidence  that  he  stole 
valuable  jewelry  from  her  while  living 
with  her  is  admissible  to  show  motive  for 
the  crime  charged.  State  v.  Von  Klein 
(Ore.)  1916C-1054. 

POOR  AND  POOR  LAWS, 

1.  Medical  Services  to  Pauper — Liability 
of  Municipality,  Burns'  Ind.  Ann.  St.  1908, 
§  9741  et  seq.,  providing  for  the  support 
of  the  poor,  and  requiring  the  overseer 
of  the  poor  in  each  township  to  care  for 
all  poor  persons,  and  in  cases  of  necessity 
to  promptly  provide  medical  attendance 
for  the  poor  not  provided  for  in  public 
institutions,  etc.,  repeals  former  laws  on 
the  subject,  and  a  township  is  liable  for 
medical  attendance  rendered  a  poor  per- 
son in  an  emergency  without  opportunity 
to  communicate  with  the  overseer,  and  a 
surgeon  rendering  services  under  an  emer- 
gency demanding  immediate  medical  atten- 
tion is  entitled  to  recover  the  reasonable 
value  thereof.  Newcomer  v.  Jefferson 
Township  (Ind.)   1916D-181. 

(Annotated.) 

2.  The  provisions  of  Ind.  Acts  1901,  c. 
147,  embodied  in  Burns'  Ann.  St.  1908, 
§  9741,  providing  for  the  support  of  tho 
poor,   are  not   controlled  by  County   Re- 


form Law  of  1899,  Bums'  Ann.  St.  1908, 
§  5918  et  seq.,  referring  to  county  expend- 
itures alone,  without  reference  to  the  man- 
datory requirements  of  the  act  of  1901  as 
to  township  expenditures,  except  that 
township  overseers  are  limited  in  such  ex- 
penditures in  certain  cases  to  temporary 
aid  not  exceeding  $15,  except  on  authority 
of  the  boards  of  commissioners.  New- 
comer V.  Jefferson  Township  (Ind.)  1916D- 
ISl,  (Annotated.) 

3.  Who  is  "Poor  Person."  The  fa!?t  that 
a  person  owned  a  horse  and  cow  did  not 
conclusively  show  that  he  was  not  a  "poor 
person"  in  need  of  assistance  from  a  town 
within  the  pauper  laws.  Waitsfield  v. 
Craftsbury  (Vt.)  1916C-387.    (Annotated.) 

4.  Overseer  of  Poor — Powers.  Since  the 
function  of  relieving  the  poor  is  govern- 
mental in  its  nature,  the  overseer  of  the 
poor  is  a  public  officer  rather  than  a  gen- 
eral agent  of  the  town,  and  hence  cannot 
by  his  conduct  relieve  a  town  from  lia- 
bility for  relief  of  the  poor  under  the 
ordinary  rules  as  to  waiver  of  rights  by 
the  conduct  of  an  agent.  Waitsfield  v, 
Craftsbury  (Vt.)  1916C-387. 

5.  The  fact  that,  after  notice  was  given 
by  plaintiff  town  to  defendant  town  of  the 
furnishing  of  supplies  to  a  pauper  from 
defendant  town,  the  overseer  of  the  poor, 
in  refusing  to  pay  for  supplies,  placed  his 
refusal  upon  the  ground  that  he  did  not 
consider  such  person  a  pauper  would  not 
prevent  defendant  from  defending  an  ac- 
tion to  recover  for  such  supplies  on  the 
ground  of  the  insufficiency  of  the  notice 
prescribed  by  Vt.  P.  S.  3668.  Waitsfield  v. 
Craftsbury  (Vt.)  1916C-387. 

6.  The  fact  that  the  overseer  of  the  poor 
of  a  town  sought  to  be  charged  with  sup- 
plies furnished  a  pauper,  upon  receiving 
notice  from  plaintiff  town,  visited  the 
pauper's  family,  and  ascertained  their 
financial  condition,  and  conferred  with  the 
overseer  of  plaintiff  town  as  to  their  con- 
dition, would  not  prevent  such  town  from 
defending  an  action  by  plaintiff  to  re- 
cover for  assistance  furnished  the  pauper 
on  the  ground  of  the  insufficiency  of  the 
notice  give  pursuant  to  Vt.  P.  S.  3668. 
Waitsfield  v.  Craftsbury  (Vt.)  1916C-387. 

7.  The  notice  required  by  Vt.  P.  S.  3663 
(Acts  1892.  No,  55),  providing  that  no  ac- 
tion shall  be  commenced  by  a  town  fur- 
nishing assistance  to  a  pauper  until  the 
overseer  of  the  poor  has  given  notice  of 
the  pauper's  condition  to  the  overseer  of 
the  town  where  he  last  resided  for  three 
;^  ears,  and  until  such  overseer  has  neglected 
to  provide  for  such  person  for  60  days 
pfter  such  notice,  must  be  in  writing. 
Waitsfield  v.  Craftsbury  (Vt.)   1916C-387, 

8.  Reimbursement  of  Town.  The  right 
of  a  town  to  be  reimbursed  by  another 
town  for  expenditures  made  in  assisting 
pfuners  chargeable  to  such  other  town 
must  necessarily  be  governed  by  arbitrary 


682 


DIGEST. 

1916C— 1918B. 


regulations.  Waitsfield  v.  Craftsbnry  (Vt.) 
1916C-387. 

9.  Duty  to  Furnish  Aid — Notice  to  Over- 
seer. Under  Vt.  P.  S.  3665,  requiring 
overseers  of  the  poor  to  see  that  indigent 
persons  are  suitably  supported  and  re- 
lieved at  the  charge  of  the  town,  an  over- 
seer of  the  poor  must  afford  such  relief 
■whenever  he  is  informed  in  any  manner 
that  relief  is  required.  Waitsfield  v. 
Craftsbury  (Vt.)  1916C-387. 

10.  Mere  informalities  in  the  notice 
given  to  the  town  of  a  pauper's  residence 
by  a  town  furnishing  assistance,  required 
to  be  given  before  commencement  of  an 
action,  do  not  vitiate  the  notice.  Waits- 
field V.  Craftsbury  (Vt.)  1916C-387. 

11.  Paupers  —  Reimbursement  of  Town 
Furnishing  Aid— Notice.  Vt.  P.  S.  3668, 
requiring  the  notice  given  by  a  town  fur- 
nishing aid  to  a  pauper  to  the  town  of 
the  pauper's  last  residence  to  disclose  the 
condition  of  the  alleged  pauper,  refers  to 
his  pecuniary  or  financial  condition. 
Waitsfield  v.  Craftsbury  (Vt.)  1916C-387. 

Notes. 

Who  is  pauper  or  poor  person  within 
poor  laws.     1916C-389. 

Liability  of  municipality  to  individual 
for  medical  attendance  furnished  pauper. 
1916D-183. 

POPULATION. 

Classification  of  counties  by,  see  Counties, 

5. 
Judicial  notice  of,  see  Bvidence,  13. 

POSSESSION. 

See  Adverse  Possession. 
Bights  of  tenant,  see  Landlord  and  Tenant, 
8,  9,  39. 

POSTDATINQ. 
Effect,  see  Checks,  1. 

POST-OFFICE. 

Letters  as  evidence,  see  Evidence,  46,  47, 
101,  102. 

Presumption  as  to  receipt,  see  Evidence, 
135,  136. 

Presumption  as  to  authority  to  write  let- 
ter, see  Evidence,  145 1/^, 

Mailing  of  notice  of  claim  of  lien,  see 
Mechanics'  Liens,  27. 

Mail  carrier  a  public  oflBcer,  see  Public 
Officers,  7. 

Espionage  Act,  see  War,  19-25. 

1.  Burden  of  Showing  Mailable  Char- 
acter of  Publication.  Complainant,  suing 
to  enjoin  the  postmaster  from  excluding 
its  magazine  from  the  mail,  pursuant  to 
an  order  of  the  postmaster  general  holding 
it  nonmailable,  has  the  burden  of  over- 
coming   the    presumption    that    the    post- 


master general's  conclusion  was  right,  or 
of  showing  that  he  had  exceeded  his 
power,  or  exercised  it  wantonly  or  mali- 
ciously; and  this  should  be  done  by  a  pre- 
ponderance of  evidence.  Masses  Pub.  Co. 
v.  Patten  (U.  S.)  1918B-999. 

2.  What  Matter  is  Non-mailable.  The 
Espionage  Act  (Fed.  St.  Ann.  Pamph. 
Supp.  No.  11,  p.  16)  excludes  from  the 
mails  any  publication,  the  natural  and 
reasonable  effect  of  which  is  to  encourage 
resistance  to  a  law  of  the  United  States, 
and  the  words  of  which  are  used  in  an 
endeavor  to  persuade  to  resistance,  though 
the  duty  to  resist  is  not  mentioned  di- 
rectly, and  the  interest  of  the  persons  ad- 
dressed in  resistance  is  not  directly  sug- 
gested. Masses  Pub.  Co.  v.  Patten  (U.  S.) 
191SB-999. 

3.  Indictment.  In  an  indictment,  under 
U.  S.  Penal  Code  (Act  March  4,  1909, 
c.  321),  §  215,  35  Stat.  1130  (Fed.  St.  Ann. 
1909  Supp.  p.  464),  for  using  the  mails  to 
oromote  a  scheme  to  defraud,  it  is  not 
necessary  to  use  the  word  "knowingly," 
in  charging  the  deposit  of  letters  in  the 
mails  by  defendant,  where  that  is  neces- 
sarily implied  from  the  other  averments. 
Samuels  v.  United  States  (Fed.)  1917A- 
711. 

4.  Claim  of  Medical  Ability  — How 
Proved.  On  the  trial  of  a  defendant 
charged  with  using  the  mails  to  promote 
a  scheme  to  defraud,  by  sending  through 
the  mail  letters  and  circulars  containing 
false  representations  as  to  the  value  of  a 
medicine  made  and  sold  by  him.  and  also 
that  he  was  a  great  scientist,  a  book  pub- 
lished by  him,  treating  of  the  eye,  was 
inadmissible  to  prove  the  latter  claim, 
which  could  only  be  established  by  wit- 
nesses who  were  competent  to  testify  on 
the  subject.  Samuels  v.  United  States 
(Fed.)  1917A-711. 

5.  Instructions  Approved.  Instructions 
given  in  a  prosecution  for  using  the  mails 
to  promote  a  scheme  to  defraud  consid- 
ered, and  held  without  error.  Samuels  v. 
United  States   (Fed.)   1917A-711. 

6.  Instruction  Properly  Refused.  In  a 
prosecution  for  using  the  mails  to  pro- 
mote a  scheme  to  defraud,  by  making 
representations  in  letters  and  circulars 
sent  through  the  mails  as  to  the  curative 
properties  of  an  article  made  and  sold  as  a 
medicine,  a  vital  issue  is  as  to  the  intent 
of  defendant,  to  which  his  knowledge  of 
the  truth  or  falsity  of  the  representations 
is  pertinent;  and  the  testimony  of  users  of 
the  remedy  as  to  its  beneficial  effect, 
while  admissible,  is  not  determinative  of 
such  issue,  and  a  refusal  to  instruct  to 
that  effect  is  not  error.  Samuels  v.  United 
States  (Fed.)  1917A-711. 

7.  Use  of  Mail  to  Defraud — Evidence 
Sufficient.  Evidence  in  a  prosecution  for 
using  the  mails  to  promote  a  scheme  to 
defraud  held  to  be  sufficient  to  require  the 


POVERTY— PREAMBLE. 


683 


submission  of  tlie  case  to  the  jury.     Sam- 
uels V,   United   States    (Fed.)    1917A-711. 

8.  That  a  defendant  charged  with  using 
the  mails  to  defraud  by  sending  out  let- 
ters and  circulars  containing  false  repre- 
sentations as  to  the  virtues  of  a  medicine 
made  and  sold  by  him,  as  shown  by  the 
letters  set  out  in  the  indictment,  merely 
copied  testimonials,  obtained  from  users, 
containing  statements  as  to  benefits  de- 
rived from  such  use,  does  not  render  the 
indictment  insufficient,  where  it  is  alleged 
that  he  knew  the  representations  made 
therein  to  be  false.  Samuels  v.  United 
States  (Fed.)  1917A-711. 

9.  Evidence  —  Other  Offenses.  In  a 
prosecution  for  using  the  mails  to  pro- 
mote a  scheme  to  defraud,  evidence  of 
other  advertisements  by  the  defendant  be- 
sides those  contained  in  the  letters  set  out 
in  the  indictment,  but  of  a  similar  nature, 
as  also  of  other  false  claims,  is  admissible 
on  the  question  of  fraudulent  intent,  es- 
pecially when  committed  continuously  and 
for  a  long  period  of  time.  Samuels  v. 
United  States  (Fed.)   1917A-711. 

10.  Decoy  Letters — Admissibility  of  An- 
swers. In  such  case  the  fact  that  letters 
sent  by  defendant  through  the  mails  were 
in  response  to  decoy  letters  sent  by  post- 
office  inspectors  does  not  render  them  in- 
admissible. Samuels  v.  United  States 
(Fed.)   1917A-711. 

11.  Use  pf  Mails  to  Defraud — Sale  of 
Real  Estate.  The  construction  of  the 
Federal  Criminal  Code,  §  215  (Act  March 
4,  1909,  c.  321,  35  Stat.  1130;  Fed.  St.  Ann. 
1909,  Supp.  p.  464),  making  criminal  the 
use  of  the  mails  in  the  execution  of  a 
scheme  to  defraud,  is  involved,  so  as  to 
sustain  a  writ  of  error  from  the  federal 
supreme  court,  in  a  decision  of  a  district 
court  bv  which  a  demurrer  to  an  indict- 
ment charging  violations  of  this  section 
was  sustained  on  the  ground  that  allega- 
tions of  the  employment  of  false  repre- 
sentations in  furtherance  of  a  plan  to  sell 
real  estate  did  not  constitute  a  scheme  to 
defraud,  punishable  under  that  section,  if 
the  land  to  be  sold  was  worth  the  pur- 
chase price  asked.  United  States  v.  New 
South  Farm,   etc.  Co.   (U.   S.)    1917C-455. 

(Annotated.) 

12.  Persons  employing,  in  furtherance 
of  a  plan  to  sell  ten-acre  farms,  false 
representations  as  to  climate,  fertility, 
crops,  advantages,  prospective  improve- 
ments, etc.,  have  engaged  in  a  "scheme 
or  artifice  to  defraud,  or  for  obtaining 
money  or  property  by  means  of  false  or 
fraudulent  pretenses,  representations,  or 
promises,"  within  the  meaning  of  the  Fed- 
eral Criminal  Code,  §  215  (Fed.  St.  Ann. 
1909  Supp.  p.  464),  making  criminal  the 
use  of  the  mails  in  the  execution  of  such 
scheme,  although  the  lands  to  be  sold  may 
be  worth  as  much  as  the  purchase  price 
asked.  United  States  v.  New  South  Farm, 
etc.  Co.  (U.  S.)  1917C-455.     (Annotated.) 


POVERTY. 
See  Poor  and  Poor  Laws. 

POWER  COMPANIES. 
See  Electricity. 

POWER   OF   ATTORNEY. 

See  Powers,  1. 

POWER  OF  TAXATION. 

See  Taxation,  1-34. 

POWERS. 

Sufficiency  of  signature,  see  Landlord  and 

Tenant,  47. 
Testamentary    powers,    construction,    see 

Wills,  222-227, 

1.  Execution  —  Necessity  That  Instru- 
ment Refer  to  Power.  Where  sons  gave 
their  father  a  power  of  attorney  author- 
izing him  for  his  own  sole  use  and  benefit, 
to  sell,  transfer,  etc.,  or  dispose  of  certain 
realty,  and  acknowledge  or  make  any 
deeds,  etc.,  to  effectuate  such  purposes, 
authorizing  him  to  collect  the  price  and 
to  appropriate  the  same  to  his  own  use, 
etc.,  and  the  father  thereafter  in  convey- 
ing the  land  executed  a  deed,  not  as  at- 
torne-  for  the  sons,  but  in  his  own  name, 
such  deed  passed  title,  since  the  father 
had  no  interest  in  the  land  except  that 
given  him  under  the  power,  since  when  an 
instrument  executed  under  power  does  not 
mention  it,  but  can  have  no  operation  ex- 
cept as  an  execution  of  it,  it  is  treated  as 
intended  to  have  that  effect.  Bennett  v. 
Laws  (Colo.)   1917A-240.         (Annotated.) 

POWER  TO  CONTRACT. 

See  Corporations,  17,  18. 

PRACTICE. 
See   Actions   and   Proceedings;    Motions; 
Pleading;  Trial. 

Liberality  under  Workmen's  Compensation 
Act,  see  Master  and  Servant,  288,  296. 

PRACTICE  OF  LAW. 

Nature  of  right  to  practice,  see  Attor- 
neys, 1. 

PRACTICE   OF  MEDICINE. 
See  Physicians  and  Surgeons. 

PREAMBLE. 

As  part  of  ordinance,  see  Municipal  Cor- 
porations, 53. 

Effect  on  enacting  clause,  see  Statutes, 
21. 

Effect  on  construction  of  statute,  see 
Statutes,  113,  114. 


684 

PEECEDENTS. 
See  Stare  Decisis. 

PRE-EXISTING  DEBT. 

As  consideration,  see  Bills  and  Notes,  14, 

50. 
SuflSciency    as   consideration,   see  Cliattel 

Mortgages,  5. 

PEEFEEENCES. 

See  Bankruptcy,  18-20. 
Bight  to   prefer  creditor,  see  Fraudulent 
Sales  and  Conveyances,  1. 

FBEFEBBED  STOCK. 

See  Corporations,  59,  76-78. 

PEEJUDICE. 

As  disqualification  of  juror,  see  Jury,  16- 

18. 
As    affecting    testamentary    capacity,    see 

Wills,  61,  63. 

PEEJUDICIAL  EEEOE. 

Essential    for    reversal,    see    Appeal    and 

Error,  212-334. 
Ground  for  new  trial,  see  New  Trial,  17. 

PSEI.IMTNABY  HEAEINQ. 
See  Criminal  Law,  11-15,  18-22. 


PEELIMINAET  INJUNCTION. 

Eestraining  order  distinguished,  see  In- 
junctions, 37,  38. 

PEEMATUEE   APPEAL. 
See  Appeal  and  Error,  50. 

PEEMEDITATION. 
How  proved,  see  Homicide,  20. 

PEEMISES  OF  SCHOOL. 
Meaning,  see  Intoxicating  Liquors,  71. 

PEEMIUMS. 
See  Accident  Insurance;   Fire  Insurance; 
Insurance;  Life  Insurance. 

PEEEOGATIVE  WEITS. 
See  Habeas  Corpus;  Mandamus;   ProMbi- 
tion;  Quo  Warranto. 

PRESCRIPTION. 

See  Adverse  Possession;  Limitation  of  Ac- 
tions. 

Inoperative  against  grantee  when,  see 
Adverse  Possession,  29. 

Title  how  acquired,  see  Adverse  Posses- 
sion, 36. 


DIGEST. 

1916C— 1918B. 

Effect  of  interruption  of  user,  see  Ease- 
ments, 2. 

Bight  of  fruit  stand  in  street,  see  Streets 
and  Highways,  22. 

Prescriptive  easement  for  poles  and  wires, 
see  Telegraphs  and  Telephones,  8-10. 

1.  Essentials  of  Prescription.  An  ease- 
ment can  be  created  by  prescription  only 
by  an  adverse  use  of  the  privilege  with 
knowledge  of  the  owner,  or  by  a  use  so 
open,  notorious,  visible,  and  uninterrupted 
that  knowledge  will  be  presumed,  exer- 
cised under  a  claim  of  right  adverse  to 
the  owner,  and  acquiesced  in  by  him  for 
a  period  equal  to  that  prescribed  by  stat- 
ute for  tue  acquisition  of  adverse  title  to 
land.  Rollins  v.  Blackden  (Me.)  1917A- 
875. 

2.  To  acquire  an  easement  by  prescrip- 
tion, acquiescence  by  the  owner  of  the 
property  over  which  it  is  sought  to  be 
exercised  must  be  shown,  but  the  adverse 
use  of  the  privilege  for  twenty  years  with- 
out interruption  or  denial  by  the  owner 
raises  a  conclusive  presumption  of  acqui- 
escence, where  it  is  shown  that  the  owner 
had  knowledge  of  the  use.  Bollins  v. 
Blackden  (Me.)  1917A-875. 

3.  Permissive  Use.  Where  the  use  of 
an  easement  claimed  by  prescription  is 
shown  to  have  been  permissive,  no  rights 
arise.  Rollins  v.  Blackden  (Me.)  1917A- 
875. 

4.  Each  of  the  elements  essential  to  the 
creation  of  a  prescriptive  easement  is  open 
to  contradiction  and  liable  to  be  dis- 
proved. Bollins  V.  Blackden  (Me.)  1917A- 
875. 


5.  Private  Way  Over  Railroad  Right  of 
Way.  If  the  grantor,  after  conveying  the 
strip  of  land  to  the  railroad  company,  con- 
tinued to  use  the  private  way,  including 
that  part  which  was  intersected  by  the 
strip  conveyed  to  the  railroad  company, 
the  fact  that  he  had  made  such  convey- 
ance would  not  prevent  him  from  acquir- 
ing under  the  statute  a  private  way  by 
prescription. 

(a)  If  the  railroad  was  constructed  and 
the  tracks  were  made  to  cross  the  private 
way  by  means  of  a  trestle,  the  land  of  the 
railroad  company  at  such  point  of  inter- 
section was  "improved  land"  within  the 
meaning  of  the  statute,  and  the  period  of 
prescription  would  be  seven  vears. 

(b)  If  the  private  way  was  less  than 
fifteen  feet  in  width,  and  the  prescriber 
kept  it  in  repair  and  used  it  as  such  con- 
tinuously for  the  statutory  period,  he 
would  acquire  a  private  way  by  prescrip- 
tion. Carlton  v.  •  Seaboard  Air-Line  Ey. 
(Ga.)  1917-497. 

PRESENTATION  OF  CLAIMS. 

See  Executors  and  Administrators,  24-26. 
Against  citv,  see  Municipal  Corporations, 
73,  175-187. 


PRESENTMENT— PROCESS. 


685 


PRESENTMENT. 

See  Checks,  2-7. 

Defined,  see  Grand  Jury,  2. 

PRESENTMENT  AND  DEMAND. 
See  Bills  and  Notes,  31,  32. 

PRESIDENT. 

Of  corporation,  powers,  see  Corporations, 
48-51. 

PRETENSES. 
See  False  Pretenses. 

PREVENTION  OF  CRIME. 

Duties   of  sheriff,  see  Sheriffs  and  Con- 
stables, 2-7,  16. 

PRICE. 
See  Inadequacy  of  Price. 

PRINCIPAL  AND    AGENT. 
See  Agency. 

PRINCIPAL  AND  SURETY. 

See  Suretyship. 

PRIORITY. 
Of  liens,  see  Mechanics'  Liens,  39,  40. 

PRIVATE   NinSANCB. 

See  Nuisances. 

PRIVILEGE  AGAINST  SELF-INCRIMI- 
NATION. 

See  Witnesses,  84-88. 

PRIVILEGED    COMMUNICATIONS. 

See  Libel  and  Slander,  37-68,  75,  113,  119, 
152j  Witnesses,  17-47. 

PRIVILEGES  AND  IMMUNITIES. 
See  Constitutional  Law,  73-79. 

PRIZE. 
See  Admiralty,  2,  3. 

PRIZE  FIGHTS. 

Importation   of  fight  films,  see   Theaters 
and  Amusements,  1. 

PROBABLE  CAUSE. 
See  Malicious  Prosecution,  8-13,  19-24,  27. 

PROBATE  COURTS. 
See  Courts. 


PROBATE  HOMESTEAD. 
See  Executors  and  Administrators,  27-31. 

PROBATE  OF  WILLS. 

See  Wills,  114-144. 

PROBATE  SALES. 
See  Executors  and  Administrator^  32-46. 

PROCEEDINGS. 
See  Actions  and  Proceedings. 

PROCESS. 

1.  Necessity  and  Validity,  685. 

2.  Issuance,  685. 

3.  Service  and  Eetum,  686. 

a.  On  Whom  Served,  686. 

(1)  Non-resident,  686. 

(2)  Exemption  from   Service,  68C. 

b.  Constructive  Service,  686. 

(1)  In  General,  686. 

(2)  By  Publication,  686. 

(3)  Leaving    Copy    at    Place    of 

Abode,  687. 

4.  Service  by  Fraudulent  Means,  687. 

See  Abuse  of  Process;  Creditors'  Bills; 
Executions;  Habeas  Corpus;  Quieting 
Title,  2;  Sheriffs  and  Constables. 

Waiver  of  service  by  appearance,  see  Ap- 
pearances, 4. 

Sufl[iciency  of  wan  ant,  see  Arrest,  2. 

Evasion  of  service,  see  Contempt,  2. 

Service  on  convict,  see  Convicts,  2. 

In  actions  against  foreign  corporations, 
see  Corporations,  161,  162,  170-177. 

In  stockholder's  suit,  see  Corporations, 
142,  143. 

Decree  on  insufficient  service,  validity,  see 
Judgments,  ^,  6,  8-10. 

Service  by  publication  in  partition  suit, 
see  Partition,  3. 

How  served  on  alien  enemy,  see  War,  12. 

1.     NECESSITY  AND  VALIDITY. 

1.  Failure  to  Serve  Co-party — ^Waiver  of 
Objection.  The  benefit  of  Ky.  Civ.  Code 
Prac.  §  102,  providing  that  in  an  action 
not  on  contract,  where  part  only  of  de- 
fendants have  been  served,  plaintiff  can 
only  demand  a  trial  at  any  term,  as  to 
those  served,  on  discontinuing  on  the  first 
day  of  such  term  as  to  the  others,  is 
waived  by  a  defendant  going  to  trial  with- 
out seasonable  objection.  Rosenberg  v. 
Dahl  (Ky.)  1916E-1110. 

2.    ISSUANCE. 

2.  Notaries  Public — Power  to  Issue  War- 
rant. Notaries  public,  by  section  4,  chap- 
ter 51,  serial  section  2798,  W.  Va.  Code 
1913,  constituted  conservators  of  the 
peace,  have  no  authority  as  such  to  issue 
warrants,  returnable  before  themselves,  or 
before  justices  of  the  peace^  for  violations 


686 


DIGEST. 

1916C— 1918B. 


of  section  16cII,  chapter  144,  serial  sec- 
tion 5174,  Code  1913;  nor  is  any  one  un- 
less the  wife  or  an  agent  of  the  West 
Virginia  Humane  Society,  authorized  to 
make  such  complaints.  Howell  v.  Wysor 
(W.  Va.)  1916C-519. 

3.     SERVICE  AND  EETUBN. 

a.    On  Whom  Served. 

(1)     Non-resident. 

3.  Service  on  Non-resident  Partnership 
— Statute  Invalid.  Civ.  Code  Prac.  Ky. 
§  51,  providing  that  in  an  action  against 
a  partnership,  the  members  of  which  re- 
side in  another  state,  engaged  in  business- 
in  the  state,  the  summons  may  be  served 
on  the  agent  in  the  county  where  the  busi- 
ness is  carried  on  or  where  the  cause  of 
action  occurs,  denies  due  process  of  law 
when  construed  to  justify  a  personal  judg- 
ment against  non-resident  partners  doing 
business  in  the  state,  where  service  of 
summons  was  had  on  their  agent  in  the 
state,  since  a  "partnership"  is  not  a  legal 
entity  separate  from  the  partners,  and 
since  one  may  do  business  in  another  state 
bv  virtue  of  the  federal  constitution  with- 
out subjecting  his  person  to  the  jurisdic- 
tion of  the  courts  of  that  state.  Flexner 
V.  Farson  (HI.)  1916D-810      (Annotated.) 

Note. 
Validity  of  statute  providing  for   ser- 
vice on  agent  of  non-resident  partnership. 
1916D-813. 

(2)     Exemption  from  Service. 

4.  HI.  Practice  Act  (Laws  1907,  p."  470), 
S  126,  exempting  members  of  the  general 
assembly  from  service  of  civil  process 
during  the  sessions  of  the  assembly,  vio- 
lates Const,  art.  4,  §  22,  prohibiting  the 
enactment  of  local  or  special  laws  grant- 
ing to  any  corporation,  association,  or 
individual  any  special  or  exclusive  privi- 
lege, immunity,  or  franchise,  as  the  con- 
stitutional inhibition  applies,  unless  there 
is  a  sound  basis  in  reason  and  principle 
for  regarding  the  beneficiaries  of  the  act 
as  a  distinct  and  separate  class  for  the 
purpose  of  the  particular  legislation,  and 
the  statute  is  not  based  upon  any  actual, 
substantial  difference  in  circumstances  or 
condition  between  the  members  of  the 
general  assemblv  and  other  public  officials 
of  the  state  who  in  the  performance  of 
their  official  duties  are  required  to  spend 

•  a  portion  of  their  time  in  counties  in 
which  they  do  not  reside,  especially  in 
view  of  Practice  Act,  §  66,  providing  for 
continuances  until  after  the  adjournment 
of  the  general  assembly  upon  a  showing 
that  any  party  to  any  civil  or  criminal 
suit  or  proceeding  is  a  member  of  either 
house  of  the  general  assemblv.  Phillips 
T.  Browne  (111.)  1917B-637.     (Annotated.) 


5.  Exemption  Itom  Service— Member  of 

Legislature.  Const,  art.  4,  §  14.  exempting 
senators  and  representatives  from  arrest 
during  the  sessions  of  the  general  assem- 
bly, did  not  impliedly  deprive  the  assem- 
bly of  power  to  enact  Practice  Act  (Laws 
HI.  1907,  p.  470),  §  126,  exempting  mem- 
bers of  the  assembly  from  service  of  civil 
process  during  sessions  of  the  assembly; 
since  the  constitution  is  not  a  grant  of 
power  to  the  legislature,  but  a  limitation 
upon  its  powers.  Phillips  v.  Browne  (HI.) 
1917B-637.  (Annotated.) 

6.  HI.  Const,  art.  4,  §  14,  exempting  mem- 
bers of  the  general  assembly  from  arrest, 
except  for  treason  or  felony,  during  ses- 
sions of  the  assembly,  does  not  exempt 
them  from  service  of  civil  process  during 
such  sessions.  Phillips  v.  Browne  (HI.) 
1917B-637.  (Annotated.) 

Note. 
Service  of  civil  process  upon  members 
of  legislature.     1917B-641. 

b.    Constructive  Service. 
(1)     In  General. 

7.  Beading  to  Defendant  Over  Tele- 
phone. Under  N.  Car.  Revisal  1905,  §  439, 
providing  that  summons  shall  be  served 
by  the  sheriff  or  other  officer  reading  the 
same  to  the  party  or  parties  named  as 
defendant  and  such  reading  shall  be  a 
legal  and  sufficient  service,  service  cannot 
be  made  by  the  officer  reading  the  sum- 
mons to  the  defendant  over  the  telephone, 
though  the  officer  may  recognize  defend- 
ant's voice  and  know  he  is  talking  to  the 
proper  person.  S.  Lowman  &  Co.  v.  Bal- 
lard (N.  Car.)   1917B-899.      (Annotated.) 

Note. 
Validity    of    service,   notice,    or    other 
transaction  by  telephone.     1917B-903. 

(2)     By  Publication. 

8.  Sufficiency  of  Publication — Once  Each 
Week  for  Stated  Number  of  Weeks.     The 

orders  for  publication  required  bv  chapter 
4129,  Fla.  Laws  of  1893,  to  be  published 
once  a  week  for  four  consecutive  weeks 
if  the  defendant  be  stated  to  be  a  resi- 
dent of  the  United  States  are  required  to 
be  published  once  a  week  for  four  weeks 
of  seven  days  each,  or  at  least  twenty- 
eight  days  from  the  date  of  the  first  pub- 
lication to  the  day  fixed  in  the  order  for 
the  defendant  to  appear.  Mvakka  Co.  v. 
Edwards  (Fla.)   1917B-201.     (Annotated.) 

9.  The  word  "for,"  in  chapter  4129,  Fla. 
Laws  1893,  requiring  that  publication  of 
process  against  non-residents  shall  be  had 
"once  a  week  for  four  consecutive  weeks," 
means  "throughout"  or  "during  the  contin- 
uance of"  such  period.  Mvakka  Co.  v. 
Edwards   (Fla.)  1917B-201.  "  (Annotated.) 


PRODUCTION  OF  DOCUMENTS— PROHIBITION. 


687 


10.  Scope  of  Statute — Citation  to  Rule 
Day.  Tlio  publication  provisions  of  chap- 
ter 4129,  Fla.  Acts  of  1893,  authorizing 
constructive  service  of  initial  process  in 
chancery,  have  reference  to  the  appear- 
ance day  stated  in  the  act,  and  not  to  rule 
days  on  which  defaults  for  failure  to 
plead  or  demur  may  be  entered  under  the 
statute  and  chancery  rules.  Myakka  Co. 
V.  Edwards  (Fla.)  1917B-201. 

11.  Sufficiency  of  Publication  —  Once 
Each  Week — When  Service  Complete.  Un- 
der chapter  4129,  Fla.  Acts  of  1893,  au- 
thorizing constructive  service  by  publi- 
cation of  initial  process  to  acquire  juris- 
diction of  a  non-resident  defendant  in  a 
chancery  case,  where  the  first  publication 
is  less  than  four  weeks  or  twenty-eight 
days  prior  to  the  appearance  day  fixed  in 
the  order  of  publication,  the  requirement 
that  such  publication  shall  be  "once  each 
week,  for  four  consecutive  weeks,"  is  not 
complied  with,  and  jurisdiction  of  the  per- 
son is  not  acquired.  Myakka  Co.  v.  Ed- 
wards   (Fla.)    1917B-201.         (Annotated.) 

Note. 
Construction  of  requirement  of  publica- 
tion once  per  week  for  certain  number  of 
weeks.     1917B-209. 

(3)     Leaving  Copy  at  Place  of  Abode. 

12.  Leaving  at  Residence.  Service  of 
summons  on  defendant  by  leaving  a  copy 
"at  his  usual  place  of  residence,"  held 
valid,  within  the  meaning  of  that  term 
as  used  in  section  69  of  the  Neb.  Code,  on 
a  record  showing  that  the  sheriff  went  into 
defendant's  yard;  that  he  handed  a  copy 
of  the  summons  to  defendant's  wife,  who 
was  at  the  time  not  more  than  20  feet 
from  the  house  in  which  he  resided ;  that 
he  asked  her  to  give  the  copy  to  defend- 
ant; that  she  said  she  would  do  so;  and 
that  she  went  into  the  house  with  it. 
Bursow  v.  Doerr  (Neb.)  1916C-248. 

4.         SERVICE       BY       FRAUDULENT 

MEANS. 

13.  On  a  motion  to  set  aside  the  return 
of  service  upon  a  defendant,  evidence  held 
not  to  show  that  plaintiffs  fraudulently 
induced  defendant  to  come  into  the  state, 
so  that  process  could  be  served  upon  him. 
Crandall  v.  Trowbridge  (Iowa)  1916C-608. 

(Annotated.) 

14.  Unless  the  facts  and  circumstances 
show  that  a  defendant  was  fraudulently 
induced  to  enter  the  state,  so  that  he  could 
be  served,  honesty  of  intent  on  the  part 
of  plaintiffs  will  be  presumed.  Crandall 
V.  Trowbridge   (Iowa)  1916C-608. 

(Annotated.) 

15.  A  fraudulent  intent  to  induce  a  de- 
fendant to  come  into  the  state,  so  that 
process  could  be  served  upon  him,  may  be 
inferred  from  the  acts  and  representations 


of  the  parties  and  the  other  facts  and 
circumstances.  Crandall  v.  Trowbridge 
(Iowa)   1916C-608.  (Annotated.) 

16.  WTiere  all  the  plaintiffs  were  joint 
makers  of  the  notes,  to  cancel  which  the 
suit  was  brought,  and  were  investigating 
the  facts  together,  they  are  chargeable 
with  the  acts  of  each  other,  or  of  their 
attorney,  by  which  a  defendant  was  fraud- 
ulently induced  to  enter  the  state,  so  that 
he  could  be  served.  Crandall  v.  Trow- 
bridge (Iowa)  1916C-608.        (Annotated.) 

17.  Service  upon  a  defendant,  whose 
presence  within  the  state  was  procured  by 
the  fraud  or  trickery  of  the  plaintiffs  or 
those  acting  in  their  behalf,  does  not  give 
the  court  jurisdiction^  Crandall  v.  Trow- 
bridge (Iowa)  1916C-608.        (Annotated.) 

Note. 
Validity  of  personal  service  of  process 
procured  by  fraud  or  force.     1916C-612. 

PRODUCTION  OF   DOCUMENTS. 
See  Discovery. 

PROFESSION. 

See  Attorneys;  Licenses;  Physicians  and 
Surgeons. 

PROHIBITED  DEGREES  OF  RELATION- 
SHIP. 
See  Marriage,  3. 

PROHIBITION. 

1.  Reconsideration  of  Denial — After  Ex- 
piration of  Term.  A  writ  of  prohibition 
will  issue  to  prevent  a  trial  court  from 
reconsidering  its  order  denying  a  new 
trial  on  a  motion  or  petition  for  a  new 
trial  and  rehearing  the  same  after  the 
expiration  of  the  trial  term,  since  such 
action  is  an  unauthorized  applicj<tion  of 
judicial  force  and  is  void.  Owen  v.  Dis- 
trict Court  (Okla.)  1917C-1147. 

(Annotated.) 

2.  Right  to  Remedy — Remedy  by  Appeal 
Inadequate.  Under  Mont.  Rev.  Codes, 
§  7228,  authorizing  writ  of  prohibition 
where  there  is  not  a  plain,  speedy,  and 
adequate  remedy  at  law,  the  remedy  by 
appeal  from  a  threatened  peremptory  writ 
of  mandamus  to  do  an  act  which  may  be 
required  to  be  done  forthwith,  and  the 
respondent  therein  thereby  rendered  liable 
for  contempt  while  the  appeal  was  being 
perfected  and  a  stay  obtained,  is  neither 
speedy  nor  adequate,  since  a  "speedy  rem- 
edy" is  one  which,  having  in  mind  the 
subject-matter  involved,  can  be  pursued 
with  expedition  and  without  essential  det- 
riment to  the  party  aggrieved,  and  it  is 
neither  "speedy  nor  adequate"  if  its  slow- 
ness is  likely  to  produce  immediate  injury 
or  mischief.  State  v.  District  Court 
(Mont.)   1917C-164. 


688 


DIGEST. 

1916C— 1918B. 


3.  Against      TJnwarranted      Injunction. 

The  writ  of  prohibition  is  that  process  by 
which  a  Buperior  court  prevents  an  in- 
ferior tribunal  from  exercising  jurisdic- 
tion with  which  it  has  not  been  vested  by 
law.  Hence,  where  the  chancery  court  at- 
tempts to  enjoin  execution  of  a  judgment 
in  a  criminal  proceeding,  a  writ  of  pro- 
hibition will  be  issued  to  prevent  the  court 
from  exceeding  its  jurisdiction.  Ferguson 
V.  Martineau  (Ark.)  1916E-421. 

4.  That  a  chancery  court  which  enjoined 
the  execution  of  a  criminal  judgment  did 
not  propose  to  issue  any  further  order  ia 
no  ground  for  the  denial  of  a  writ  of  pro- 
hibition, for  the  denial  of  the  writ  would 
leave  the  injunction  in  force.  Ferguson 
Y.  Martineau  (Ark.)  1916E-421. 

5.  Courts  Subject  — Probate  Court.  As 
the  Arkansas  supreme  court  controls  in- 
ferior courts  only  through  its  supervisory 
jurisdiction  over  the  circuit  court,  it  can- 
not issue  a  writ  of  prohibition  against  the 
probate  court.  Ferguson  v.  Martineau 
(Ark.)  I916E-421. 

PROHIBITION  LAWS. 
See  Intoxicating  Liquors;  Local  Option. 

PROMISSORY  NOTES. 

See  Bills  and  Notes. 

Bank's  payment  out  of  maker's  depoeit, 
see  Banks  and  Banking,  65^  66. 

PROMOTERS. 
See  Corporations,  28,  29. 

PROPERTY. 

See  Lost  Property. 

Wild  animals,  see  AnimaJs,  20-26. 

Defined,  see  Constitutional  Law,  48. 

In  corpse,  see  Dead  Body,  1,  2,  6. 

Inheritable  property,  see  Descent  and  Dis- 
tribution, 3,  4. 

Promissory  note  as  property,  see  False  Pre- 
tenses, 2. 

Joint  tenancy  in  personalty,  see  Joint  Ten- 
ants, 7. 

Property  consumable  in  use  as  subject  of 
mortgage,  see  Mortgages  and  Deeds  of 
Trust,  16. 

City  regulation  of  use,  see  Municipal  Cor- 
'  por..tions,  86. 

Taxation  of  intangible  property,  see  Tax- 
ation, 25,  33,  45. 

Eight  to  dispose  of  by  will,  see  Wills,  1-3. 

1.  Bents — Nature  as  Real  or  Personal. 
Unaccrued  rents  are  not  personal  property. 
They  are  incorporeal  hereditaments.  They 
are  an  incident  to  the  reversion  and  follow 
the  land.  Though  separable  from  the  land, 
they  are,  until  such  separation,  part  of 
the  land.  State  v.  Royal  Mineral  Associa- 
tion (Minn.)  1918A-14o.  (Annotated.) 


Note. 
Rent    as    realty   or  personalty,  1918A- 
148. 

PROPERTY  RIGHTS. 

Police  power  not  to  infringe,  see  Constitu- 
tional Law,  28. 


PROSECUTING  ATTORNEYS. 

Improper  remarks  in  bill  of  exceptions,  see 

Appeal  and  Error,  64. 
Expressions    as    to   guilt    of    accused,   see 

Argument  and  Conduct  of  Counsel,  18. 
Expressions  as  to  wealth  of  accused,  see 

Argument  and  Conduct  of  Counsel,  19. 
Abusive  language,  see  Argument  and  Con- 
duct of  Cou_sel,  30. 
Right  to  file   disbarment  proceedings,  see 

Attorneys,  44,  47. 
Authority  of  report  criticising  prosecutor, 

see  Grand  Jury,  2. 
Invalid  appointment,  effect  on  indictment, 

see  Indictments  and  Informations,  2.    - 
Duty   to  serve  school  board,  see   Schools, 

15. 

1.  Prosecuting  Attorney  —  Fees  —  Taxa- 
tion as  Costs.  The  county  attorney  is  en- 
titled to  have  taxed  as  costs  a  fee  of  $25 
en  each  count  covered  by  the  conviction 
and  the  direction  to  the  clerk  to  omit  such 
fee  from  the  taxation  of  costs  was  error. 
State  v.  Missouri  Pacific  R.  Co.  (Kan.) 
1917A-612. 

2.  Trial — Misconduct  of  Counsel — Neces- 
sity of  Objection.  Where  complaint  is 
made  that  the  solicitor  general,  during  the 
trial  of  the  case,  indulged  in  improper 
remarks  to  the  jury,  but  no  objection  was 
made  thereto  at  the  time,  and  no  ruling 
was  invoked,  this  will  not  require  a  new 
trial.     Bird  v.  State  (Ga.)   1916C-205. 

3.  Striking    Report    from    Records.     A 

prosecuting  attorney  may  move  the  circuit 
court  to  expunge  from  its  records  a  report 
of  a  grand  jury  assailing  his  ofl5(*ial  con- 
duct without  serving  notice  of  motion  on 
any  member  of  the  grand  jury.  Bennett 
V.  Kalamazoo  Circuit  Judge  (Mich.) 
1916E-223. 

4.  A  prosecuting  attorney,  seeking  an  or- 
der of  the  circuit  court  expunging  from  its 
records  a  report  of  a  grand  jury  assailing 
his  official  conduct,  should,  before  apply- 
ing to  the  supreme  court  for  relief  by 
mandamus,  obtain  from  the  circuit  court 
a  decision  on  his  application  to  strike  out 
the  report.  Bennett  v.  Kalamazoo  Circuit 
Judge  (Mich.)  1916E-223. 

5.  Power  to  Appoint  Substitute.  As 
Const,  art.  9,  §  5,  provides  that  the  office 
of  state's  attorney  shall  be  filled  by  the 
voters  at  an  election,  the  court  may  not, 
as  attempted  by  Acts  1905,  c.  90,  amend- 
ing S.  Dak.  Pol.  Code,  §  934,  be  authorized 
to  supplant  such  officer,  when  there  is  no 
real  temporary  vacancy,  merely  because  "in. 


PROSTITUTION. 


689 


the  opinion  of  the  court  the  ends  of  jus- 
tice would  be  promoted  thereby,"  by  an 
appointee  to  file  an  information  and  prose- 
cute the  cause.  State  v.  Flavin  (S.  Dak.) 
1938A-713.  (Annotated.) 

Note. 
Validity   of   appointment   of   deputy   or 
si)ecial  prosecuting  attorney.     1918A-718. 

PEOSTITTJTION. 

1.  In  General,  689. 

2.  Deriving  Support  from  Prostitute,  690. 

3.  Federal  White  Slave  Traflfic  Act,  690. 

See  Disorderly  Houses,  3-6. 

Deportation,  see  Aliens,  17. 

Policy  on  bawdy  house,  validity,  see  Fire 

Insurance,  1. 
State   regulation   in   cities,  see  Municipal 

Corporations,  20. 

1.     IN  GENERAL. 

1.  Definition — As  Including  Act  of  Man. 
Though  "prostitution,"  in  its  broadest 
sense,  means  the  setting  one's  self  to  sale, 
or  devoting  to  infamous  purposes  what  is 
in  one's  power,  in  its  restricted  sense,  as 
used  in  Iowa  Code,  §  4943,  making  it  a 
crime  to  resort  to  a  house  of  ill  fame  for 
the  purpose  of  prostitution,  it  means  the 
practice  of  a  female  offering  herself  in 
indiscriminate  intercourse  with  men,  and 
is  not  applicable  to  the  conduct  of  men. 
State  v.  Gardner  (Iowa)   1917D-239. 

(Annotated.) 

2.  That  Iowa  Code,  §  4943,  makes  it  a 
crime  for  "any  person"  to  resort  to  a  house 
of  ill  fame  for  the  purpose  of  prostitu- 
tion, does  not  extend  the  application  of 
the  section  as  to  prostitution  to  men. 
State  V.  Gardner  (Iowa)   1917D-239. 

(Annotated.) 

3.  Iowa  Code,  §  4943,  making  it  a  crime 
to  resort  to  a  house  of  ill  fame  for  the 
purpose  of  prostitution  or  lewdness,  does 
not,  by  associating  the  two  purposes,  ex- 
tend the  application  of  the  section  as  to 
the  former  to  men.  State  v.  Gardner 
(Iowa)   1917D-239.  (Annotated.) 

4.  It  being  settled  at  the  time  of  adop- 
tion of  Iowa  Code,  §  4943,  making  it  a 
crime  to  resort  to  a  house  of  ill  fame  for 
the  purpose  of  prostitution,  that  men 
could  not  be  guilty  of  prostitution,  that 
section  must  be  strictlv  construed.  State 
v.  Gardner   (Iowa)   19l'7D-239. 

(Annotated.) 

5.  Frequenting  House  of  111  Fame — Pur- 
pose— Error  Held  Prejudicial.  In  a  prose- 
cution for  resorting  to  a  house  of  ill  fame 
for  the  purpose  of  prostitution  or  lewd- 
ness, forbidden  by  Iowa  Code,  §  4943,  the 
error  in  holding  that  the  statute  punishes 
men  for  resorting  to  a  house  of  ill  fame 
for  the  purpose  of  prostitution  necessitates 
a  reversal.  State  v.  Gardner  (Iowa) 
1917D-239. 

44 


6.  Visiting  House  of  111  Fame — Purpose. 
While  on  a  charge  of  lewd  and  lascivious 
''conduct,"  that  is,  customary  behavior,  or 
of  leading  a  life  of  lewdness,  there  may  not 
be  a  conviction  merely  because  there  was 
an  unlawful  indulgence  of  the  animal  de- 
sires, where  the  charge  is  resorting  for 
the  purpose  of  lewdness,  it  is  sufficient 
that  the  place  was  visited  for  the  purpose 
of  committing  an  act  of  lewdness,  as  the 
term  is  understood  in  the  accepted  usage 
of  the  language,  that  is,  a  lustful  or  las- 
civious act.  State  v.  Gardner  (Iowa) 
1917D-239. 

7.  Instructions.  The  refusal  of  an  in- 
struction in  a  prosecution  for  resorting  to 
a  house  of  ill  fame  for  the  purpose  of 
prostitution  or  lewdness  that  defendant 
might  go  to  a  house  of  ill  fame  if  his 
purpose  was  that  of  friendly  visiting  was 
not  error,  where  the  court  charged  that 
defendant  could  not  be  convicted  unless 
he  resorted  to  the  house  for  the  purpose 
of  prostitution  or  lewdness.  State  v. 
Gardner  (Iowa)  1917D-239. 

8.  Where  the  evidence  showed  that,  if 
defendant  resorted  to  a  house  of  ill  fame 
for  the  purpose  of  lewdness  at  all,  he  did 
so  many  times,  it  was  proper  to  refuse 
an  instruction  that  an  occasional  visit  for 
such  purpose  will  not  support  a  conviction. 
State  V.  Gardner  (Iowa)   1917D-239. 

9.  In  a  prosecution  for  resorting  to  a 
house  of  ill  fame  for  the  purpose  of  lewd- 
ness, it  was  not  error  to  refuse  an  in- 
struction that  it  would  not  constitute  the 
house  one  of  ill  fame  if  one  woman  alone 
therein  had  sexual  intercourse  with  various 
men,  where  there  was  no  evidence  that  no 
other  woman  practiced  such  illicit  com- 
merce in  the  house.  State  v.  Gardner 
(Iowa)    1917D-239. 

10.  Proof  of  Character  of  House— Gen- 
eral Eepute.  While  evidence  of  general 
reputation  of  a  house  as  one  of  ill  fame 
is  admissible,  there  can  be  no  conviction 
of  "resorting  to  such  a  house  without  other 
evidence  that  the  house  was  kept  and 
used  as  a  house  of  ill  fame.  State  v. 
Gardner  (Iowa)  1917D-239. 

11.  Instructions — Befusal,|  of  Request — 
Matters  Covered  by  General  Charge.  The 
refusal  of  an  instruction  that,  while  evi- 
dence of  general  reputation  of  a  house  of 
ill  fame  is  admissible,  there  can  be  no 
conviction  unless  there  is  other  evidence 
that  the  house  was  used  for  that  purpose, 
is  not  error^  where  the  court  gave  equiva- 
lent instructions.  State  v.  Gardner  (Iowa) 
1917D-239. 

12.  Attempt  to  Entice  Female  —  What 
Constitutes  "Immoral  Purposa."  The  Don- 
Ian  Act  (Laws  Mont.  1911,  c.  1),  §  2,  pro- 
vides that  any  person  who  shall  entice  or 
attempt  to  entice  any  girl  to  reside  with 
another  for  "immoral  purposes,"  etc.,  shall, 
etc.  Defendant,  who  conducted  an  em- 
ployment  agency   at  Butte,  attempted   to 


690 


DIGEST. 

1916C— 1918B, 


entice  a  seventeen-year-old  girl  to  accept 
a  position  in  a  hotel  in  the  state  of  Wyo- 
ming, informing  her  that  the  place  was  a 
sporting  house,  and  that  her  duties  would 
be  to  dance,  play  cards,  drink  beer,  and 
entertain  men.  The  evidence  tended  to 
show  that  the  place  was  not  one  where  a 
girl  could  stay  for  any  length  of  time  and 
be  respectable.  It  is  held  that  employ- 
ment to  which  defendant  tried  to  entice 
the  girl  was  an  efficient  school  for  special 
immorality  covered  by  term  "immoral  pur- 
poses." State  V.  Keed  (Mont.)  19irE- 
783. 

13.  Enticement  for  Immoral  Purpose — 
Instruction  as  to  Purpose.  In  a  prosecu- 
tion for  an  attempt  to  entice  a  girl  to 
enter  employment  of  another  for  immoral 
purposes,  an  instruction  defining  "immoral" 
as  ''anything  inconsistent  with  rectitude, 
..."  and  "that  purpose  is  the  object, 
..."  and  that  "therefore  an  immoral, 
purpose  is  one  which  is  violative  of  con- 
science or  moral  law  inconsistent  with 
purity,  rectitude,  or  good  morals,  or  hostile 
to  the  welfare  of  the  general  public,"  is 
insufficient  as  a  definition  of  the  words 
"immoral  purposes,"  as  used  in  the  Donlan 
Act  (Laws  Mont.  1911,  c.  1).  State  v. 
Eeed  (Mont.)  1917E-783. 

Note. 
Whether   man    can    be    "prostitute,"   or 
guilty  of  resorting  to  house  of  ill  fame  for 
purpose  of  prostitution.     1917D-248. 

2.    DERIVING  SUPPORT  FEOM  PROS- 
TITUTE. 

14.  What  Constitutes  Acceptance. 
Where,  pursuant  to  the  directions  of  a 
police  officer  who  demanded  money  for 
protection,  a  common  prostitute  paid 
money  to  a  person  designated,  the  accept- 
ance of  the  money  by  that  person  is  an 
acceptance  by  the  police  officer  of  the 
earnings  of  a  common  prostitute.  State  v. 
Schuman  (Wash.)  1918A-633. 

15.  Nature  of  Offense — Intent.  Where 
a  policeman  accepts  money  from  a  com- 
mon prostitute,  which  is  paid  in  consid- 
eration of  his  allowing  her  to  frequent  a 
caf6  and  there  to  solicit  men  for  sexual 
intercourse,  the  money  is  paid  and  re- 
ceived with  intent  to  aid,  assist,  or  abet 
the  practice  of  prostitution.  State  v. 
Schuman  (Wash.)   1918A-633. 

16.  An  information  charging  that  ac- 
cused and  another  wilfully,  unlawfully,  and 
feloniously  accepted  the  earnings  of  one 
who  ^ve.&  then  a  <;ommon  prostitute  is  suffi- 
cient to  indicate  that  defendant  knew  the 
moneys  were  obtained  bv  prostitution. 
State  V.  Schuman  (Wash.)  1918 A- 633. 

17.  Accepting  Earnings  of  Prostitute — 
Sufficiency  of  Information.  An  informa- 
tion charging  that  defendants,  and  each 


of  them,  did  wilfully,  unlawfully,  and 
feloniously  accept  the  earnings  of  one  who 
was  then  and  there  a  common  prostitute  is 
sufficient  under  Rem.  &  Bal.  Wash.  Code, 
§  2055,  requiring  a  statement  of  the  acts 
constituting  the  offense  in  ordinary  and 
concise  language,  without  repetition,  and 
in  such  manner  as  to  enable  a  person  of 
common  understanding  to  know  what  is 
intended.  State  v.  Schuman  (Wash.) 
1918A-633. 

18.  Evidence  —  Other  Offenses  —  Receiv- 
ing Earnings  of  Prostitute.  In  a  prosecu- 
tion against  a  police  officer  for  receiving 
the  earnings  of  a  common  prostitute, 
which  it  was  claimed  he  demanded  for  his 
protection,  evidence  that  at  the  same  time 
he  demanded  and  received  money  from 
other  prostitutes  is  admissible.  State  v. 
Schuman  (Wash.)  1918A-633. 


3.        FEDERAL        WHITE 
TRAFFIC  ACT. 


SLAVE 


19.  Validity  of  Mann  Act.  Construing 
as  applicable  to  transportation,  unaccom- 
panied by  the  expectation  of  pecuniary 
gain,  the  provisions  of  the  White  Slave 
Traffic  Act  of  June  25,  1910  (36  Stat,  at 
L.  825,  c.  395,  Fed.  St.  Ann.  1912  Supp. 
p.  419),  making  criminal  the  transporta- 
tion or  the  causing  to  be  transported,  or 
the  obtaining,  aiding,  or  assisting  in  the 
transportation  in  interstate  commerce  of' 
women  or  girls  for  the  purpose  of  prosti- 
tution, debauchery,  or  other  immoral  pur- 
poses, does  not  render  the  statute  invalid 
as  in  excess  of  the  constitutional  power  of 
Congress  over  interstate  commerce.  Cami- 
netti  V.  United  States  (U.  S.)  1917B-1168. 

(Annotated.) 

20.  "White  Slave  Traffic  Act — Scope  of 
Act.  Transportation  of  a  woman  in  inter- 
state commerce  in  order  that  she  may  be 
debauched  or  become  a  mistress  or  con- 
cubine, although  unaccompanied  by  the 
expectation  of  pecuniary  gain,  is  con- 
demned by  the  provisions  of  the  White 
Slave  Traffic  Act  of  June  25,  1910  (36 
Stat,  at  L.  825,  c.  395,  Fed.  St.  Ann.  1912, 
Supp.  p.  419),  making  it  an  offense  know-, 
ingly  to  transport  or  cause  to  be  trans- 
ported in  interstate  commerce  any  woman 
or  girl  for  the  purpose  of  prostitution  or 
debauchery,  or  for  any  other  immoral  pur- 
pose, or  with  the  intent  or  purpose  to  in- 
duce such  woman  or  girl  to  become  a 
prostitute,  or  to  give  herself  up  to  de- 
bauchery, or  engage  in  any  other  immoral 
practice.  Caminetti  r.  United  States  (U. 
S.)  1917B-1168.  (Annotated.) 

21.  Effect  on  State  Legislation.  An  at- 
tempted transportation,  completed  before 
transportation  was  commenced,  of  a  female 
to  another  state  for  immoral  purposes,  is 
intrastate  commerce,  not  within  purview 
of    the    Mann    Act   (Act  Cong.  June  25, 


PROTEST— PUBLIC  CONTRACTS. 


691 


1910,  c.  395,  36  Stat.  825  [Fed.  St.  Ann. 
1917  Supp.  p.  419]),  and  therefore  punish- 
able by  the  Donlan  Act  (Laws  1911,  c.  1). 
State  V.  Eeed  (Mont.)  1917E-783. 

(Annotated.) 

PEOTEST. 

Liability  of  bank  for  failing  to  protest 
note,  see  Banks  and  Banking,  62-64. 

Payment  under,  see  Payment. 

See  also,  Taxation,  106. 

Against  special  assessment,  see  Taxation, 
127-130. 

PROVINCE  OF  COURT  AND  JURY. 

See  Questions  of  Iiaw  and  Fact. 

PROVOCATION. 

Effect  on  measure  of  damages,  see  Assault, 
15-17. 

PROXIES. 

See  Corporations,  99,  100. 

PUBLIC  ACCOUNTS. 
See  Accounts  and  Accounting. 

PUBLIC  ADMINISTRATOR. 
See  Executors  and  Administrators,  5,  9-11. 

PUBLICATION. 

See  Libel  and  Slander,  5-7. 
Newspaper,  what  is,  see  Newspapers,  1. 
Of  summons,  see  Process,  8-11. 
Of  ordinance  on  Sunday,  see  Sundays  and 

Holidays,  9. 
Of  ordinance  in  german  paper  insufficient, 

see  Trees  and  Timber,  2. 
Of  wills,  see  Wills,  30. 

PUBLIC  CHARITIES. 
See  Charities. 

PUBLIC  CONTRACTS. 

1.  P<)wer  to  Make  and  Validity,  691. 

2.  Eights  and  Liabilities  on  Bonds,  691. 

3.  Actions,   692. 

1.     POWER  TO  MAKE  AND  VALIDITY. 

1.  Printing — Public  Contract  —  Limita- 
tion to  Residents — Validity.  Miss.  Laws 
1916,  c.  135,  §  3,  prohibiting  the  letting  by 
boards  of  supervisors  of  counties  of  con- 
tracts to  furnish  the  county  with  blank 
books,  stationery,  etc.,  to  any  bidder  who 
18  a  non-resident  of  the  state,  who  has  not 
a  printing  plant  in  the  state  or  who  is  not 
a  bona  fide  resident  of  the  state  actually 
engaged  in  the  printing  business  is  not 
violative  of  Const.  U.  S.  art.  1,  §  8  (8  Fed. 
St.  Ann.  363),  giving  Congress  the  right 
to  regulate  commerce  among  the  several 


states,  since  such  provision  of  the  consti- 
tution is  not  intended  to  aflPeet  contracts 
which  have  an  indirect  or  remote  bearing 
on  commerce  between  the  states,  and  a 
state  in  the  exercise  of  its  police  power 
may  make  regulations  which  indirectly 
affect  interstate  commerce;  it  being  oifly 
direct  interferences  with  the  freedom  of 
such  commerce  that  bring  the  case  within 
the  exclusive  domain  of  federal  legisla- 
tion. State  V.  Senatobia  Blank  Book  and 
Stationery  Co.  (Miss.)   1918B-953. 

(Annotated.) 

2.  Miss.  Laws  1916,  c.  135,  §  3,  is  not 
violative  of  Const.  §  107,  providing  that 
stationery,  printing,  etc.,  used  by  the  legis- 
lature and  other  departments  of  the  gov- 
ernment shall  be  furnished  under  con- 
tract subject  to  the  approval  of  the  gov- 
ernor and  state  treasurer,  since  a  county 
is  not  a  department  of  the  state  but  a 
political  subdivision.  State  v.  Senatobia 
Blank  Book  and  Stationery  Co.  (Miss.) 
1918B-953.  (Annotated.) 

3.  Miss.  Laws  1916,  c.  135,  §  3,  is  not 
violative  of  Const.  U.  S.  Amend.  14  (a) 
(9  Fed.  St.  Ann.  392,  416,  538),  providing 
that  no  state  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or 
immunities  of  the  citizens  of  the  United 
States,  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property  with- 
out due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal 
protection  of  laws.  State  v.  Senatobia 
Blank  Book  and  Stationery  Co.  (Miss.) 
1918B-953.  (Annotated.) 

4.  Miss.  Laws  1916,  c.  135,  §  3,  is  not 
violative  of  Const.  U.  S.  art.  4,  §  2  (9  Fed. 
St.  Ann.  158),  providing  that  the  citizens 
of  each  state  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  of 
the  several  states,  since  counties  are  mere 
political  subdivisions  of  the  state  for  the 
purpose  of  exercising  a  part  of  its  powers 
and  may  exert  only  such  powers  as  are  ex- 
pressly granted  to  them  or  necessarily  im- 
plied from  those  granted,  so  that  regula- 
tion of  their  contracts  is  a  regulation  of 
the  contracts  of  the  state,  and  no  person 
engaged  in  stationery  business  is  entitled 
to  absolute  right  to  contract  with  the 
state.  State  v.  Senatobia  Blank  Book 
and  Stationery  Co.  (Miss.)  1918B-953. 

(Annotated.) 

2.    RIGHTS     AND     LIABILITIES     ON 
BONDS. 

5.  Sufficiency  of  Performance — ^Effect  of 
Accepting  Work.  Where  a  contractor  for 
street  paving,  under  a  contract  providing 
that  the  improvement  was  to  be  made  un- 
der the  supervision  and  to  the  satisfaction 
of  the  city  engineer,  gave  two  bonds,  one 
lor  faithful  performance  of  the  work  ac- 
cording to  the  plans  and  specifications, 
and  the  other  guaranteeing  the  improve- 
ment for  seven  years,  in  an  action  on  the 


692 


DIGEST. 

1916C— 1918B. 


guaranty  bond,  the  city,  after  having  ac- 
cepted the  improvement,  may  attack  the 
performance  as  not  being  in  conformity 
with  the  plans  and  specifications,  though 
ordinarily  it  could  not  be  done  if  only  the 
first  bond  had  been  given.  Ottumwa  v. 
McCarthy  Improvement  Co.  (Iowa)  1917E- 
1077. 

3.     ACTIONS. 

6.  Failure  to  Eequire  Bond — ^Liability 
of  Municipality  to  Materialman.  Que 
furnishing  material  to  a  contractor,  erect- 
ing a  schoolhouse  for  a  school  district 
which  neglected  to  exact  a  bond  required 
by  Ore.  L.  O.  L,  §  6266,  of  anyone  con- 
tracting with  any  school  district  for  the 
construction  of  any  building,  with  the 
additional  obligation  that  he  will  promptly 
pay  all  materialmen,  has  a  right  of  action 
against  the  district  for  damages  conse- 
quent upon  the  contractor's  insolvency 
leaving  a  balance  due  for  the  materials 
furnished.  Northwest  Steel  Co.  v.  School 
.District  (Ore.)  1917B-1086.     (Annotated.) 

Note. 

Liability  of  municipality  or  oflBcer  for 
failure  to  take  from  contractor  bond  for 
protection  of  laborers  or  materialmen. 
1917B-1089. 

PUBLIC  DOCK. 

Liability  of  county  for  injury  to  child  on 
dock,  see  Negligence,  6,  7,  9. 

PUBLIC  FUNDS. 

Bestraining    improper    payment,    see    In- 
junctions, 22. 


PUBLIC  HIGHWAYS. 
See  Streets  and  Hignways. 

PUBLIC  INTEREST. 

Privileged  communications,  see  Libel  and 
Slander,  63-65. 

PUBLIC  LANDS. 

Illegality  of  public  land  contract,  see  Con- 
tracts, 29. 

Liability  of  prospector  for  cattle  lost  in 

open  shaft,  see  Mines  and.  Minerals, 

10. 
Taxation  of  state  land  under  contract  of 

purchase,  see  Taxation,  26,  27,  39,  48, 

49. 
Selection  of  lieu  lands  jn  forest  reserves, 

see  Trees  and  Timber,  21. 
Federal     grants     of     riparian     lands,     see 

Waters  and  Watercourses,  3. 


1.  Actions  Between  Entrymen — Neces- 
sity of  Joining  Government.  The  United 
States  is  not  a  necessary  party  to  a  suit 
by  a  prior  entryman  whose  entry  has  been 
rejected  by  the  Land  Department  in  favor 
of  a  subordinate  entryman,  to  charge  the 
latter  with  a  trust  in  his  lavor,  because  a 
patent  from  the  United  States  is  involved. 
Daniels  v.  Wagner  (U.  S.)  1917A-40. 

2.  Grant  of  Land  Under  Navigable 
Waters — Eestrictions  in  Grant.  Where  a 
grant  of  public  lands  under  navigable 
waters  contains  an  express  restriction 
against  interference  or  obstruction  with 
the  free  and  unrestricted  rights  of  public 
access  and  use,  the  grant'ee  cannot  main- 
tain obstructions  and  devices  in  the  main- 
tenance of  an  amusement  park  which  in- 
terfere with  such  public  use.  People  v. 
Steeplechase  Park  Co.  (N.  Y.)  1918B- 
1093. 

3.  Limitations  on  Unrestricted  Grant. 
A  grant  of  public  lands  under  navigable 
water  containing  no  restrictions  is  held  to 
be  an  unqualified  grant  of  the  fee  therein, 
and  not  subject  to  any  easement  in  favor 
of  the  public.  People  v.  Steeplechase 
Park  Co.  (N.  Y.)  1918B-1093. 

4.  Fences,  barriers,  platforms,  pavilions, 
and  other  structures  of  a  private  amuse- 
ment park,  constructed  by  the  grantee  on 
lands  under  navigable  water  between  high 
and  low  water  mark,  although  an  inter- 
ference with  the  public  use  of.  and  access 
to,  such  lands  cannot  be  enjoined,  where 
the  grant  of  such  lands  from  the  state  was 
unqualified.  People  v.  Steeplechase  Park 
Co.  (N.  Y.)  1918B-1093. 

5.  Where  the  state  through  its  land 
commissioners  unqualifiedlv  granted  to  de- 
fendant lands  under  navigable  water  be- 
tween high  and  low  water  marks,  the  ex- 
clusive use  and  right  of  possession  vested 
in  the  grantee,  and  the  use  of  such  lands 
as  an  amusement  park  does  not  affect  the 
validity  of  the  grant.  People  v.  Steeple- 
chase Park  Co.  (N.  Y.)  1918B-1093. 

6.  Power  of  State  to  Make  Grant.  The 
commissioners  of  the  land  office  under 
N.  Y.  Public  Lands  Law  (Consol.  Laws, 
c.  46),  §  75,  and  Const,  art.  5,  §§  5.  6,  have 
authority  to  make  unqualified,  unrestricted 
grants  of  lands  under  water  between  high 
and  low  water  marks.  People  v.  Steeple- 
chase Park  Co.  (N.  Y.)  1918B-1093. 

(Annotated.) 

Note. 
Power  of  state  to   grant  title   to  land 
under  navigable  water.     1918B-1107. 


PUBLIC  NUISANCE. 
See  Nuisances. 


PUBLIC  OFFICERS. 


PUBLIC  OFFICERS. 

1.  In  General,  693. 

2.  Creation  of  Office,  694. 

3.  Appointment  and  Election,  694. 

4.  Qualifications  and  Eligibility,  695. 

5.  Compensation  and  Expenses,  696. 

a.  In  General,  696. 

b.  Wrongful    Exclusion    from    OfS.ce, 

696. 

c.  Neglect  of  Duty,  696. 

d.  De  Facto  Officer,  696. 

<J.  Duration  of  Term  of  Office,  696. 

7.  Termination  of  Term,  697. 

a.  In  General,  697. 

b.  Removal,  697. 

(1)  In  General,  697, 

(2)  Jurisdiction  or  Authority  tO 

Remove,  697. 

(3)  Grounds,  697. 

(4)  Proceedings,  698. 

8.  De  Facto  Officers,  698. 

9.  Civil  Liability  Generally,  699. 
10.  Official  Bonds,  699. 

a.  In  General,  699. 

b.  Actions  on  Official  Bonds,  700. 

See  Prosecuting  Attorneys;  Sheriffs  and 
Constables. 

Status  of  attorney  as  officer,  see  Attor- 
neys, 2. 

Salary  part  of  assets,  see  Bankruptcy,  3. 

County  officers,  see  Counties,  20-22. 

Election  officers,  see  Elections,  15-18. 

Misuse  of  public  funds,  see  Embezzlement, 

Presumption  as  to  acts  of,  see  Evidence, 

133,  134. 
Exemption  of  public  property,  see  Execu- 
tions, 3. 
Subject  to  writ,  see  Habeas  Corpus,  3. 
Restraining  improper  acts,  see  Injunctions, 

13-22. 
Judge  as  public  officer,  see  Judges,  3. 
Removal,  right  to  jury,  see  Jury,  9. 
Communications   to    officer,    privilege,   see 

Libel  and  Slander,  60-62. 
Communications     against,     privilege,     see 

Libel  and  Slander,  62. 
Mandamus  to  enforce  right  to  office,  see 

Mandamus,  10-13. 
City  officers,  see  Municipal  Corporations, 

131-150. 
School   boards    and   officers,    see    Schools, 

13-15. 
Liability   of  state  for  officers'  torts,  see 

States,  8. 
Sheriff  as  public  officer,  see  Taxation,  196. 
Forest  officers,  acts  and  duties,  see  Trees 

and  Timber,  19,  20. 

1.  IN  GENERAL. 
1.  Who  are  State  Officers — Officer  of 
Municipality.  The  general  rule,  in  the 
absence  of  special  constitutional  provi- 
sion, is  that  all  officers  whose  duties  per- 
tain to  the  exercise  of  the  police  power 
of  t^e  state  are  in  that  sense  state  offi- 
cers, and  under  the  control  of  the  legis- 
lature, even  though  they  may  be  officers 
of  a  municipality  and  charged  with  the 
enforcement  of  the  local  police  regulations 


of  puch  municipality.  State  v.  Linn 
(Okla.)    1918B-139. 

2.  Officers  Defined.  "Officers"  are  crea- 
tures of  the  law,  whose  duties  are  usually 
provided  for  by  statute.  In  a  way  they 
are  agents  j  but  they  are  never  general 
agents  in  the  sense  that  they  are  neither 
hampered  by  custom  nor  law,  and  in  the 
sense  that  they  are  absolutely  free  to  fol- 
low their  own  volition.  Persons  dealing 
with  them  do  so  with  full  knowledge  of 
the  limitations  of  their  agency  and  of  the 
laws  prescribing  their  duties.  They  are 
trustees  as  to  public  money  which  comes 
to  their  hands.  Lamar  Township  v.  Lamar 
(Mo.)   1916D-740.  (Annotated.) 

3.  Policemen — Status  as  Public  Officers. 
A  policeman  holds  an  office  within  the 
meaning  of  section  2,  of  art.  15,  of  the 
Kan.  state  constitution.  Haney  v.  Cofran 
(Kan.)  1917B-660.  (Annotated.) 

4.  Construction — "Associates  In  Office." 
"Associates  in  office"  are  those  who  are 
united  in  action;  who  have  a  common  pur- 
pose; who  share  the  responsibility  or  au- 
thority and  among  whom  is  reasonable 
equality;  those  who  are  authorized  by  law 
to  perform  the  duties  jointly  or  as  a  body. 
Barton  v.  Alexander   (Idaho)    1917D-729. 

(Annotated.) 

5.  Nature  of  Contract  With  Public.  A 
public  officer  is  a  public  servant,  and  his 
candidacy  for  appointment  or  election,  his 
commission,  his  oath  in  connection  with 
the  law  under  which  he  serves,  and  the 
emoluments  of  his  office  constitute  the 
contract  between  him  and  the  public  he 
serves.  Cleveland  v.  Luttner  (Ohio) 
1917D-1134. 

6.  Notaries   Public — Notary  as   Officer. 

N.  Oar.  Eevisal  1905,  §  989,  provides  that 
the  execution  of  all  deeds  may  be  proved 
or  acknowledged  before  any  of  the  "offi- 
cials" therein  specified.  Section  2347  au- 
thorizes the  governor  to  appoint  notaries, 
who  shall  hold  their  "office"  for  two  years, 
and  shall  qualify  by  taking  an  oath  of 
office  and  the  oaths  prescribed  for  officers. 
Section  2350  gives  notaries  power  to  take 
and  certify  the  acknowledgment  of  deeds, 
to  administer  oaths  and  affirmations  in 
matter  incident  to  their  "offices,"  etc.,  and 
subsequent  sections  refer  to  their  "office," 
their  "official  acts,"  etc.  It  is  held  that 
the  position  of  notary  public  is  an  "office," 
within  Const,  art.  6,  §  7,  providing  that 
every  voter,  except  as  in  that  article  dis- 
qualified, shall  be  eligible  to  office,  espe- 
cially as  the  probate  of  a  deed  is  a  judi- 
cial act,  and  the  judicial  function  is  per- 
formed by  the  notary,  and  not,  as  claimed, 
by  the  clerk  of  the  court.  State  v.  Knight 
(isr.  Car.)  1917D-517. 

7.  Office  and  Employment  Distinguished. 
U.  S.  Const,  art.  14.  §  7,  provides  that  no 
person  who  shall  hold  any  office  or  place 
of  trust  or  profit  under  the  United  States 
or  any  department  thereof,  or  under  this 


694 


DIGEST. 

1916C— 1918B. 


state,  or  any  other  state,  shall  holfl  or 
exercise  any  other  office  or  place  of  trust 
or  profit  under  the  authority  of  the  state. 
Postal  Laws  and  Regulations  of  1913, 
which  provides  for  the  appointment  of 
rural  carriers  by  the  Postmaster  General, 
and  requires  such  carriers  to  take  oath  to 
support  the  Constitution  and  to  give  bond 
for  faithful  performance  of  their  duties, 
fixes  the  terms  and  duties  of  such  car- 
riers; it  also  inhibits  rural  carriers  from 
holding  any  state,  county,  municipal,  or 
township  bifice.  Const.  U.  S.  art.  2,  §  2, 
authorizes  Congress  to  vest  the  appoint- 
ment of  inferior  officers  in  the  President 
alone,  or  in  the  heads  of  departments.  It 
is  held  that,  while  the  line  between  offices 
or  places  of  trust  and  nrofit  is  not  clear, 
an  "office"  is  a  public  position  to  which  a 
portion  of  the  sovereignty  of  the  country 
attaches  for  the  time  being,  and  which  is 
exercised  for  the  benefit  of  the  public,  and 
within  the  constitutional  provision  there 
is  no  distinction  between  "offices"  and 
"places  of  trust  or  profit"  with  respect  to 
the  inhibition  against  double  office-hold- 
ing; hence  a  rural  mail  carrier  was  a  "pub- 
lic officer,"  and  his  holding  of  a  state 
office  subjected  him  to  the  statutory  penal- 
ties. Groves  v.  Barden  (N.  Car.)  1917D- 
316.  (Annotated.) 

8.  Status  of  Commissioners.  That  Con- 
gress in  giving  the  state  permission  to 
build  a  bridge  over  a  stream  required  that 
the  state  should  by  legislative  enactment 
provide  for  adequate  compensation  to  per- 
sons suffering  injuries,  does  not  make  com- 
missioners appointed  under  Mass.  St.  1911, 
c.  439,  providing  for  assessment  of  such 
damages,  federal  officers,  but  such  com- 
missioners being  appointed  by  the  state 
courts  are  officers  of  the  state  court. 
Brackett  v.  Commonwealth  (Mass.)  1918B- 
863. 

Notes. 
Distinction  between  office  and  employ- 
ment,    1917D-319. 

Policeman  as  public  officer.     1917B-663. 

2.     CREATION  OF  OFFICE. 

9.  Power  of  Legislature — Creation  and 
Change  of  Offices.  An  office  created  by 
the  legislature  is  wholly  within  that  body's 
power,  and  it  may  prescribe  the  powers 
and  duties  of  the  incumbent,  the  mode  of 
filling  the  office,  and  from  time  to  time 
change  such  mode,  or  impose  additional 
duties  upon  officers  already  elected  or  ap- 
pointed. Perkins  v.  Board  of  County 
Commissioners  (111.)  1917A-27. 

Note. 
Power  of  body  having  authority  to  re- 
move public  officer  to  appoint  committee 
to  conduct  hearing.     1916C-1273. 

3.     APPOINTMENT     AND     ELECTION. 

10.  Veterans"  Preference  Acts — Discre- 
tion of  Appointing  Power.     The  action  of 


the  governor  in  making  appointments  un- 
der S.  D.  Laws  1913,  c.  109,  creating  the 
board  of  public  health,  and  medical  exam- 
iners, is  not  ministerial,  but  involves  the 
exercise  or  discretion,  notwithstanding 
Pol.  Code,  §||  3242,  3243,  providing  that 
honorablv  discharged  soldiers  and  sailors 
shall  be  preferred  for  appointment  to  pub- 
lic office  and  making  a  violation  thereof 
a  misdemeanor.  Phelps  v.  Byrne  (S.  D.) 
1918B-996.  (Annotated.) 

11.  Anti-nepotism  Law— Title.  The  title 
to  the  anti-nepotism  bill  or  act  (Laws 
Idaho  1915,  c.  10)  is  sufficiently  broad  to 
include  and  cover  all  of  the  provisions  of 
said  act  and  is  not  repugnant  to  the  pro- 
visions of  section  16,  art.  3,  of  the  state 
constitution.  Barton  t.  Alexander  (Idaho) 
1917D-729.  (Annotated.) 

12.  Scope  of  Act  — Political  Divisions 
Embraced.  Irrigation,  drainage,  improve- 
ment, and  school  districts  do  not  come 
within  the  provisions  of  said  act,  since 
they  are  not  municipal  subdivisions  of  the 
state  and  are  not  specially  included  in 
said  act.  Barton  v.  Alexander  (Idaho) 
1917D-729.  (Annotated.) 

13.  Appointments  Prior  to  Act.  Where 
appointments  of  persons  related  to  officers 
within  the  prohibited  degree  have  been 
made  prior  to  the  going  into  effect  of  said 
act,  such  appointees  cannot  legally  be  paid 
out  of  the  public  funds  any  salary  or. 
wages  for  services  rendered  subsequent  to 
the  going  into  effect  of  said  act,  to  wit, 
the  8th  day  of  May,  1915.  Barton  v. 
Alexander  (Idaho)  1917D-729. 

(Annotated.) 

14.  Retroactive  Effect.  The  provisions 
of  said  act  do  nat  operate  retrospectively. 
Barton  v.  Alexander   (Idaho)    1917D-729. 

(Annotated.) 

15.  Construction  of  Act  —  Computation 
of  Belationship.  Under  the  provisions  of 
section  5705,  Idaho  Rev.  Codes,  the  de- 
grees of  kindred  are  computed  according 
to  the  rules  of  the  civil  law,  which  rules 
are  applicable  to  the  act  in  question. 
Barton  v.   Alexander   (Idaho)    1917D-729. 

(Annotated.) 

16.  Validity  of  Anti-nepotism  Act.  Said 
act  is  a  police  regulation,  and  its  provi- 
sions are  reasonable  and  enforceable  and 
not  unconstitutional.  Barton  v.  Alexan- 
der (Idaho)   1917D-729.  (Annotated.) 

17.  Appointments   Prior   to   Act.    If   a 

person  is  legally  appointed  and  eligible 
to  hold  the  office  to  which  he  is  appointed, 
the  proper  board  or  officer  is  not  prohib- 
ited by  said  act  from  passing  upon  and 
allowing  the  claim  of  such  appointee  for 
salary,  or  wages,  although  such  appointee 
may  be  related  to  such  officer  or  a  mem- 
ber of  the  board  which  is  required  under 
the  law  to  pass  upon  such  claim.  Barton 
V.  Alexander  (Idaho)  1917D-729. 

(Annotated.) 


PUBLIC  OFFICERS. 


695 


18.  Effect  of  Act — Payment  of  Salary 
After  Illegal  Appointment.  If  a  person  is 
illegally  appointed  under  the  provisions  of 
said  act,  the  officer  of  the  state,  district, 
county,  city,  or  other  municipal  subdivi- 
sion of  the  state  who  pays  out  of  any  pub- 
lic funds  under  his  control  or  draws  or 
authorizes  the  drawing  of  any  warrant  or 
authority  for  the  payment  out  of  any  pub- 
lic funds  of  the  salary,  wages,  pay,  or 
compensation  of  any  such  ineligible  per- 
son, knowing  him  to  be  ineligible,  is  guilty 
of  a  misdemeanor  and  may  be  punished 
as  provided  in  the  first  section  of  said  act. 
Barton  v.  Alexander  (Idaho)    1917D-729. 

(Annotated.) 

19.  Said  act  prohibits  the  onieers  there- 
in mentioned  from  making  appointments 
on  agreement  or  promise  with  other  offi- 
cers. Barton  t.  Alexander  (Idaho)  1917D- 
729.  (Annotated.) 

20.  Said  act  nrohibits  the  officers  there- 
in named,  or  boards  or  councils  composed 
of  such  officers,  from  appointing  any  one 
to  office  related  to  them  or  to  any  mem- 
ber of  such  board  or  council  within  the 
third  degree  by  affinity  or  consanguinity. 
Barton  v.  Alexander   (Idaho)    1917D-729. 

(Annotated.) 

21.  The  phrase  "associates  in  office,"  as 
used  in  said  act,  refers  to  officers  who  are 
required  under  the  law  to  act  together, 
each  having  substantially  equal  authority 
in  matters  coming  before  them  as  boards 
or  councils  under  the  law.  Barton  v. 
Alexander  (Idaho)  1917D-729. 

(Annotated.) 

22.  The  commandant  of  the  Soldiers' 
Home  is  not  an  "associate  in  office"  of  the 
board  of  trustees  of  the  Soldiers'  Home. 
Barton  v.  Alexander   (Idaho)    1917D-729. 

(Annotated.) 

23.  "Otherwise"  —  Meaning  of  Term. 
Under  Ark.  Sp.  Laws  1911,  p.  1026,  pro- 
viding that,  when  any  vacancy  in  the 
office  of  road  overseer  shall  occur  from 
any  cause  whatever  or  upon  failure  to 
elect  by  a  tie  vote  or  otherwise,  the 
county  court  or  judge  thereof  in  vacation 
sha-i  appoint  an  overseer  for  such  district 
or  to  fill  such  vacancy,  where  a  road  over- 
seer elected  to  succeed  himself  died  be- 
fore the  commencement  of  his  second 
term,  the  county  judge,  upon  his  failure 
to  qualify  for  the  second  term,  had  power 
to  appoint  an  overseer,  since  the  phrase 
"or  otherwise"  should  be  given  its  broad- 
est and  most  comprehensive  meaning,  "in 
a  different  manner,  ^n  any  other  way,"  it 
being  the  intention  of  the  legislature  to 
authorize  the  county  judge  to  appoint 
where  there  is  no  election  or  where  the 
person  elected  for  any  reason  fails  to 
qualify.  Townsley  v.  Hartsfield  (Ark.) 
1916C-643.  (Annotated.) 

24.  Ineligibility  of  Candidate  Receiving 
Majority  vote — Rights  of  Minority  Candi- 
date.    A    minority    vote    for    a    qualified 


candidate  does  not  entitle  snch  candidate 
to  the  office,  even  though  the  candidate 
receiving  the  highest  number  of  votes  was 
disqualified  to  hold  the  office  and  snch  fact 
was  known  to  the  voters  at  the  time  of 
the  election.  However,  the  failure  of  the 
qualified  candidate  to  receive  a  plurality 
of  the  votes  cast  renders  the  election  a 
nullity.  Wall  v.  Jensen  (N.  D.)  1918B- 
9^2.  (Annotated.) 

Note. 

Validity  and  construction  of  anti-nepo- 
tism law.     I917D-735. 

4.     QUALIFICATIONS      AND      ELIGI- 
BILITY. 

25.  Eligibility— As  of  What  Time  Re- 
quired. Under  the  statute  providing  that, 
when  a  contestee  is  not  eligible  to  the 
office  to  which  he  has  been  declared 
elected,  etc.,  the  question  of  a  eontestor's 
eligibility  was  to  be  considered  as  of  the 
time  when,  if  elected,  he  entered  upon 
the  duties  of  the  office.  Neelley  v.  Farr 
(Colo.)  1918A-23. 

26.  Restriction  to  Voters  —  Women. 
Under  N.  Car.  Const,  art.  6,  §  7,  providing 
that  every  voter,  except  as  in  that  article 
disqualified,  shall  be  eligible  to  office,  and 
section  8,  providing  that  the  classes  of 
"persons"  therein  specified  shall  be  dis- 
qualified for  office,  only  a  voter  is  quali- 
fied to  hold  office;  the  word  "persons,"  in 
section  8,  though  comprehensive  enough 
to  include  women,  applies  only  to  voters, 
as  they  are  the  only  persons  referred  to 
in  that  article.  State  v.  Knight  (N.  Car.) 
1917D-517. 

27.  Inconsistent  Offices — Resignation  not 
Legally  Accepted.  Under  Pa.  Act  March 
31,  1860  (P.  L.  382),  prohibiting  any  coun- 
cilman from  being  at  the  same  time  any 
other  officer  who  shall  receive  a  salary,  a 
councilman  is  disqualified  from  holding 
the  office  of  water  superintendent  of  a 
borough,  though  he  had  resigned  from  the 
council,  where  he  voted  for  the  resolution 
accepting  his  resignation;  such  resolution 
being  ineffective  by  reason  of  his  illegal 
vote,  and  he  being  still  a  de  jure  member 
of  the  council.  Commonwealth  v.  Bauden- 
bush  (Pa.)  1917C-517. 

28.  Right  of  Woman  to  be  Notary  Pub- 
lic. As  the  position  of  notary  public  is  an 
"office,"  the  legislature  cannot  change  its 
character  by  calling  it  a  place  of  trust  and 
profit,  and  N.  Car.  Pub.  Laws  1915.  c.  12, 
authorizing  the  appointment  of  women  as 
notaries  public,  and  providing  that  this 
position  shall  be  deemed  a  place  of  trust 
and  profit,  and  not  an  office,  is  invalid. 
State  v.  Knight  (N.  Car.)  1917D-ol7. 

(Annotated.) 

29.  Railroad  Policemen — Time  for  Qual- 
ifying. Const.  I  236,  provides  that  the 
general  assembly  shall  prescribe  a  time 
when  the  officers  authorized  by  the  consti- 


6% 


DIGEST. 

1916C— 1918B. 


tution  to  be  appointed  shall  enter  npon 
their  duties.  Ky.  St,  §  3755,  provides  that, 
if  the  official  bond  is  not  given  and  the 
oath  of  office  taken  within  30  days  after 
notice  of  appointment,  the  office  shall  be 
considered  vacant.  Section  779a  provides 
that  railroads,  on  application  to  the  gov- 
ernor, may  have  certain  persons  appointed 
to  act  as  policemen  on  trains,  who  shall 
qualify  by  executing  bond  and  taking  the 
oath  of  office,  and  be  paid  by  the  railroad, 
which,  when  it  no  longer  requires  their 
services,  may  file  notice  to  that  effect. 
Held  that,  where  a  special  railroad  police- 
man appointed  and  commissioned  in  June, 
1906,  did  not  take  the  oath  and  execute 
bond  until  July,  1907,  the  date  of  his  no- 
tice of  his  appointment  should  have  been 
avowed  to  render  evidence  of  his  powers 
to  act  himself  or  by  deputy  admissible, 
and  that  there  was  a  presumption  that  he 
did  not  execute  the  bond  and  take  the 
oath  within  the  prescribed  30  days  after 
notice  of  his  appointment,  so  that  the  office 
was  vacant.  Cincinnati  etc.  B.  Co.  v. 
Cundiff  (Ky.)  1916C-513. 

Note. 
Right  of  woman   to   be   notary   public. 
1917D-534. 

5.     COMPENSATION  AND  EXPENSES, 
a.    In  General. 

30.  Eight  to  Salary— De  Facto  Officer. 
The  salary  and  emoluments  of  a  public  of- 
fice attach  to  the  office  itself,  and  not  to 
the  office,  except  as  he  is  an  officer  de  jure. 
Jones  V.  Dusman  (Pa.)  1916I>-472. 

31.  Estoppel  of  Public  Officer — ^Receipt 
of  Fees  Under  Statute.  Where  an  officer 
collected  fees  under  a  statute,  in  force 
when  he  was  elected  and  when  he  qualified, 
he  could  not  dispute  the  validity  of  a  pro- 
vision of  the  statute  prescribing  how  the 
fees,  when  collected,  should  be  disbursed. 
Greene  County  t.  Lydy  (Mo.)  1917C-274. 

(Annotated.) 

Notes. 

Estoppel  of  public  officer  to  deny  valid- 
ity of  statute  by  accepting  compensation 
thereunder.     1917C-284. 

Bight  to  fee  or  allowance  as  between 
officer  and  deputy.     1918A-840. 

Neglect  of  duty  as  affecting  right  of 
public  officer  to  salary.     1918B-435. 

b.     Wrongful  Exclusion  from  Office. 

B2.  Eight  of  De  Jure  Officer — Salary 
Paid  to  De  Facto  Officer.  Where  a  police- 
man is  wrongfully  dismissed  from  office,  he 
may  recover  his  salary  from  the  city  for 
the  period  of  the  wrongful  ouster,  less  the 
amount  otherwise  earned  by  him  in  the 
exercise  of  due  diligence  during  such 
period,  though  another  has  been  employed 
in  his    place    and    been    paid  the  salary 


thereof.     Cleveland     v.     Luttner     (Ohio) 
1917IX-1134.  (Annotated.) 

Note. 
Eight  of  de  jure  officer  to  recover  from 
State   or  municipality   salary   paid   to    de 
facto  officer  during  latter's    incumbency. 
1917D-1I37. 

c.  Neglect  of  Duty. 

33.  Effect  of  Neglect  of  Duty.  The 
right  of  a  de  jure  officer  to  salary  is  not 
affected  by  the  quantity  of  services  ren- 
dered by  him  or  even  neglect  to  render 
them  where  such  failure  falls  short  of 
actual  abandonment  of  the  office.  Bar- 
tholomew V.  Springdale  (Wash.)  1918B- 
432.  (Annotated.) 

34.  Effect  on  Eight  to  Salary.  The  com- 
pensation of  a  public  officer  is  a  matter  of 
statute,  incidental  to  the  office,  and  not 
of  contract;  nor  does  it  depend  on  the 
amount  or  value  of  the  services  rendered. 
While  such  officer  holds  the  office,  his  right 
to  the  salary  is  in  no  wise  impaired  by  his 
absence  from  office  or  neglect  of  duty. 
Young  V.  Morris   (Okla.)   19l8B-4oO. 

(Annotated.) 

d.  De  Facto  Officer. 

35.  Eight  of  de  Facto  Officer  to  Compen- 
sation. A  city's  unqualified  acceptance  of 
services  performed  by  one  as  officer  estops 
it  to  invoke  any  rule  of  law  to  defeat  pay- 
ment of  his  salary  for  such  period. 
Thompson  v.  Denver  (Colo.)  1918B-915. 

6.     DURATION  OF  TERM  OP  OFFICE. 

36.  An  appointment  of  a  policeman  dur- 
ing good  behavior  under  civil  service  reg- 
ulations violates  the  constitutional  provi- 
sions that  the  legislature  shall  not  create 
any  office  the  tenure  of  which  shall  be 
longer  than  four  years.  Haney  v.  Cofran 
(Kan.)  1917B-660. 

37.  Policemen — Tenure  of  Office.  Under 
chapter  114  of  the  Kan.  Laws  of  1907,  and 
amendments  thereto,  in  cities  governed  by 
the  commission  form  of  government,  the 
terms  of  police  officers  should  be  definitely 
fixed  by  city  ordinance,  and  the  terms  of 
such  officers  should  expire  with  the  term 
of  office  of  the  board  appointing  them. 
Haney  t.  Cofran  (Kan.)  1917B-C60. 

38.  Effect  of  Expiration  of  Term.  Under 
Const.  §  93,  providing  that  inferior  and 
state  officers  may  be  appointed  as  pre- 
scribed by  law  for  a  term  not  more  than 
four  years  and  until  their  successors  are 
appointed  and  qualified,  the  appointment 
of  a  special  railway  police  officer  under 
Ky.  St.  §  779a,  on  application  to  the  gov- 
ernor to  serve  during  the  railroad's  pleas- 
ure, does  not  provide  for  a  succession  in 
such  office,  80  that,  when  the  term  expires 
either  by  operation  of  law  or  by  the  will 
of  the  railroad,  the  office  ceases,  and  an- 


PUBLIC  OFFICERS. 


697 


other  appointee  does  not  take  it  as  suc- 
cessor. Cincinnati  etc.  E.  Co.  v.  Cundiflf 
(Ky.)   1916C-513. 

39.  Term  of  Office.  Under  Const,  §  93, 
providing  that  inferior  and  state  officers 
may  be  appointed  for  a  term  not  exceeding 
four  years  and  until  their  successors  are 
qualified,  and  Ky.  St.  §  779a,  providing  for 
the  appointment  of  railway  police  officers, 
to  be  paid  by  the  railway  and  to  hold  of- 
fice during  its  pleasure,  it  was  intended 
to  create  the  office  for  the  four-year-term 
permitted  by  the  constitution,  and  the 
failure  to  fix  the  term  as  one  not  longer 
than  four  years  does  not  make  the  statute 
unconstitutional.  Cincinnati  etc.  B.  Co.  v. 
Cundiff  (Ky.)  1916C-513. 

40.  The  legislative  plan  for  accomplish- 
ing the  requirement  mentioned  in  the  last 
foregoing  paragraph,  as  embodied  in  c.  5, 
Stats.,  undisturbed  by  c.  328,  Wis.  Laws 
of  1911,  inserted  in  said  chapter  at  sec. 
86,  does  not  admit  of  any  change  which 
would,  or  might  probably  prevent  such  ac- 
complishment. State  V.  Board  of  State 
Canvassers  (Wis.)  1916D-159. 

41.  Commencement  of  Term.  Under  sec. 
1,  art.  13,  of  the  constitution,  the 
political  year  of  the  state  commences  on 
the  first  Monday  of  January  of  such  year 
and  all  constitutional  officers  elected  at 
the  November  election  in  any  year  are  re- 
quired to  be  circumstanced  to  take-  up 
their  respective  offices  at  such  time.  State 
v.  Board  of  State  Canvassers  (Wis.) 
1916D-159. 

7.    TERMINATION   OF   TEEM. 
a.     In   General. 

42.  Vacancy — Death  Before  Commence- 
ment of  Term.  Where  an  officer  elected 
to  succeed  himself  dies  before  the  com- 
mencement of  his  second  term,  a  vacancy 
is  thereby  created  for  the  first  term,  but 
not  in  the  second  term,  and  one  duly  ap- 
pointed and  qualified  to  fill  the  vacancy 
in  the  first  term  holds  during  the  un- 
expired term  of  the  deceased  officer  and 
until  his  successor  has  been  elected  or  ap- 
pointed and  qualified  as  provided  by  law. 
Townsley  v.  Hartsfield   TArk.)    1916'C-«13. 

43.  Neglect  of  Duty — Effect  as  Creatii.13 
Vacancy.  The  law  of  this  state  requires 
that  the  incumbent  of  a  public  office  shall 
devote  his  personal  attention  to  the  duties 
of  the  office  to  which  he  is  elected  or  ap- 
pointed (article  2.  §  11,  Okla.  Const.)-,  but 
does  not  contemplate  that  such  officer  shall 
lose  his  title  to  office  because  he  may  be 
absent  for  a  short  period  of  time,  for  any 
reason,  and  does  not,  during  such  period  of 
time,  personally  give  all  his  time  and 
attention  to  the  duties  of  his  office.  While 
such  failure  of  duty  may  furnish  grounds 
of  removal,  it  does  not  ipso  facto  create 
a  vacancy.  Young  v.  Morris  (Okla.) 
1918B-450. 


b.     Removal. 
(1)     In  General. 

44.  Right    to    Bring     Proceeding.    The 

statute  (Comp.  Laws  N.  Dak.  1913,  §  1048) 
authorizing  certain  persons  to  bring,  a  pro- 
ceeding to  "contest  the  right  of  any  per- 
son declared  duly  elected  to  any  office" 
applies  to  a  proceeding  to  deprive  a  per- 
son of  office  for  violation  of  the  corrupt 
practice  act.  Diehl  v.  Totten  (N.  Dak.) 
1918A-884. 

(2)     Jurisdiction  or  Authority  to  Remove. 

45.  Officer  Subject  to  Removal— Muni cl- 
pal  Officer.  Though  a  mayor  of  a  munici- 
pality be  a  civil  officer  within  Const,  art, 
5,  §  5,  he  may,  under  Tenn.  Pub.  Acts  1^15, 
c.  11,  be  ousted  for  misconduct  in  office. 
State  V.  Howse  (Tenn.)  1917C-1125. 

(3)     Grounda. 

46.  Failure  to  Enforce  Law — Fraud  on 

Municipality.  Defendant  mayor,  after  be- 
ing elected  on  a  law  enforcement  plat- 
form in  which  he  announced  that  he  could 
and  would  enforce  all  criminal  laws,  al- 
lowed saloons  and  disorderly  houses  to  lun 
in  open  violation  of  state  law.  He  also 
participated  in  a  plan  to  evade  the  char- 
tei  whereby  a  market  house  costing  many 
thousand  dollars  was  paid  for  by  separate 
vouchers  as  if  the  work  was  less  than 
$500,  so  that  bids  were  rendered  unneces- 
sary. Such  market  house  was  adjacent  to 
the  place  of  business  of  the  mayor's  firm, 
and  it  appeared  that  the  mayor  and  others 
reaped  benefits  therefrom.  The  mayor 
also  allowed  subordinates  to  sign  his  name 
to  vouchers,  and  the  practice  led  to  the 
commission  of  gross  frauds  on  the  treas- 
ury. It  is  held  that  the  mayor  was  guilty 
of  misconduct  in  office  warranting  his 
ouster  under  Tenn.  Pub.  Acts  1915,  c.  11. 
State  V.  Howse  (Tenn.)  1917C-1125. 

47.  Removal  —  Intoxication.  Where  an 
officer  of  the  kinds  enumerated  in  Ala. 
Const.  1901,  §§  173,  175,  relating  to  im- 
peachments, is  an  habitual  drinker,  he  is 
subject  to  removal  under  the  provision  of 
section  173  that  "intemperance  in  the  use 
of  intoxicating  liquors  or  narcotics  to  such 
an  extent,  in  view  of  the  dignity  of  the 
office  and  importance  of  its  duties,  as 
unfits  the  officer  for  the  discharge  of  such 
duties,"  shall  authorize  his  removal  from 
office.     State  v.  Pratt  (Ala.)  1917D-990. 

(Annotated.) 

48.  "Intemperance,"  as  the  term  is  used 
in  Const.  Ala.  1901,  §  173,  providing  that 
such  intemperance  in  the  use  of  intoxicat- 
ing liquors  or  narcotics,  in  view  of  the 
dignity  of  the  office  and  importance  of  its 
duties,  as  unfits  the  officer  for  the  dis- 
charge of  such  duties,  shall  be  ground  for 
his  removal  from  office,  means  such  im- 
moderate use  of  intoxicants  or  narcotics, 
in  view  of  the  dignity  of  the  office  and 


698 


DIGEST. 

1916C— 1918B. 


of  the  natnre  and  importance  of  its  duties, 
as  unfits  the  officer  for  the  discharge  of 
such  duties,  and  hence  must  vary  with  the 
grade  of  the  office  and  nature  and  im- 
portance of  its  duties.  State  v.  Pratt 
(Ala.)  1917D-990.  (Annotated.) 

49.  Proof  that  a  judge  of  probate  has 
been  for  many  years  during  his  incum- 
bency of  the  office  an  almost  constant 
alcoholic  drinker,  that  such  indulgence  has 
injuriously  affected  his  mental  and  moral 
faculties  and  normal  sensibilities,  that  his 
personal  conduct  evidences  a  well-nigh 
reckless  disregard  of  or  indifference  to 
his  own  welfare  and  the  dignity  of  his 
position,  authorizes  his  removal  from  office 
under  Const.  Ala.  1901,  §  173.  State  v, 
Pratt  (Ala.)  1917D-990.  (Annotated.) 

(4)     Proceedings. 

50.  Order  for  Eemoval — Directing  Elec- 
tion of  Successor.  In  a  proceeding  to  oust 
a  mayor  from  office,  the  court  cannot  de- 
cree that  the  board  of  commissioners  pro- 
ceed to  the  election  of  a  successor;  that 
being  a  matter  unnecessary  for  determina- 
tion. State  v.  Howse  (Tenn.)  1917C- 
1125. 

51.  Removal  —  Hearing  —  Bight  to  Ap- 
point Committee.  Where  charges  are  filed 
before  a  city  council  against  relator  to 
remove  him  from  the  position  of  milk 
sample  collector  for  cause,  the  fact  that 
k  joint  committee  is  appointed  to  take  the 
evidence  and  report  findings  to  the  council 
does  not  deprive  him  of  a  trial  before 
council  as  a  whole;  if  it  meets  in  joint 
session  after  the  report  and  findings  of 
the  committee  are  filed,  and  gives  relator 
an  opportunity  for  a  hearing  before  it, 
of  which  he  neglects  to  avail  himself,  prior 
to  the  adoption  of  a  resolution  finding  him 
gnilty  of  the  charges  in  accordance  with 
the  findings,  and  ordering  his  removal. 
Chace  v.  City  Council  (R.  I.)  1916C-1257. 

(Annotated.) 

52.  Proof  of  Misconduct  —  Oral  Testi- 
mony. While  Shannon's  Tenn.  Code, 
§  6272,  declares  that  in  chancery  suits 
testimony  shall  be  taken  in  writing,  oral 
testimony  may.  in  a  proceeding  to  oust 
an  unfaithful  officer  under  Pub.  Acts  1915, 
c.  11,  declaring  that  proceedings  shall  be 
summary,  be  received,  though  the  act 
declared  that  the  ordinary  chancery  prac- 
tice should  be  followed.  State  v.  Howse 
(Tenn.)    1917C-1125. 

53.  While  Tenn.  Pub.  Acts  1915,  c.  11, 
providing  for  the  ouster  of  public  officers, 
declares  that  the  suits  shall  be  triable  as 
equitable  actions  conducted  in  accordance 
with  procedure  of  courts  of  chancery,  the 
defendant  officers  are  not  entitled  to  jury 
trial  because  in  ordinary  chancery  cases 
material  issues  of  fact  may  be  suiamitted 
to  a  jury  as  a  matter  of  right;  the  statutes 
declaring   that   the   proceeding   should   be 


summary.     State  v.  Howse  (Tenn.)  1917C- 
1125. 

54.  Eight  to  Jury  Trial.  Const.  1870, 
art.  1,  §  6,  declares  that  the  right  of  trial 
by  jury  shall  remain  inviolate.  Tenn. 
Pub.  Acts  1915,  c.  11,  providing  for  the 
ouster  of  unfaithful  municipal  officers,  de- 
clares that  the  proceeding  ehall  be  sum- 
mary. It  is  held,  in  view  of  long-estab- 
lished construction,  that  the  guaranty  of 
jury  trial  did  not  preclude  summary  pro- 
ceedings which  are  forms  of  trial  in  which 
the  established  course  of  legal  proceeding 
is  disregarded  especially  in  the  matter  of 
trial  by  jury,  and  the  legislature  might 
validly  provide  that  ouster  proceedings 
sliould  be  summary,  and  so  an  officer 
against  whom  such  proceedings  were  had 
is  not  entitled  to  jury  trial.  State  v. 
Howse  (Tenn.)  1917C-1125. 

55.  Acts  During  Previous  Term  of  Office. 
In  a  proceeding  under  Tenn.  Pub.  Acts 
1915,  c.  11,  to  oust  a  municipal  officer  fSr 
misconduct  in  office,  evidence  of  his  acts 
of  malfeasance  committed  in  a  term  pre- 
vious to  the  pending  term  is  admissible, 
particularly  where  on  his  first  election  he 
promised  to  enforce  the  laws,  while  on 
the  latter  he  was  supported  by  the  ele- 
ment not  desiring  law  enforcement.  State 
V.  Howse  (Tenn.)   1917C-1125. 

56.  Evidence — Acts  Prior  to  Statute.  In 
a  proceeding  to  oust  a  municipal  officer 
brought  under  Tenn.  Pub.  Acts  1915,  c.  11, 
evidence  of  acts  of  malfeasance  done  dur- 
ing the  officer's  term,  but  before  passage 
of  the  act,  is  admissible;  the  act  making 
nothing  illegal  which  was  not  illegal  be- 
fore.    State  V.  Howse  (Tenn.)  1917C-1125. 

57.  Proceedings  Against  Several — Right 
to  Severance.  In  a  proceeding  to  oust 
more  than  one  municipal  officer  the  ques- 
tion of  severance  rests  in  the  discretion  of 
the  trial  court.  State  v,  Howse  (Tenn.) 
1917C-1125. 

8.     DE   FACTO   OFFICERS. 

58.  The  railroad,  which  has  obtained  the 
officer's  appointment,  has  no  right  to  re- 
gard him  as  a  de  facto  officer,  since  it  is 
incumbent  upon  it  to  see  or  know  that  he 
has  qualified  to  act  as  an  officer  de  jure 
before  he  is  given  employment  on  its 
trains.  Cincinnati,  etc.  R.  Co.  v.  Cundiff 
(Ky.)   1916C-513. 

59.  Status  as  De  Facto  Officer.  A  special 
railway  police  officer  whose  office  has  be- 
come vacant  for  failure  to  take  the  oath 
and  execute  his  bond  within  the  time  pre- 
scribed by  the  constitution  is  not  a  "de 
facto  officer."  Cincinnati,  etc.  B.  Co.  v. 
Cundiff  (Ky.)  1916C-513. 

60.  Responsibility  of  Railroad  for  Acts. 
In  view  of  Ky.  St.  §  3755,  providing  that, 
if  an  official  bond  is  not  given  and  the 
oath  of  office  taken  within  30  days  after 


PUBLIC  OFFICERS. 


699 


notice  of  appointment  to  a  public  office, 
it  shall  be  considered  vacant,  a  railroad 
employing  a  special  police  officer  is  not 
in  the  position  of  a  third  person  who  may 
claim  that  the  acts  of  a  de  facto  officer 
are  valid  as  to  him,  but  is  responsible  for 
his  claim  of  right,  so  that  for  his  acts 
thereunder  it  is  liable.  Cincinnati,  etc.  E. 
Co.  V.  Cundiff  (Ky.)  1916C-513. 

Note. 
Right  of  de  jure  officer  to  recover  sal- 
ary  from   de  facto   officer   during  latter's 
incumbency.     1916D-474. 

9.     CIVIL    LIABILITY    GENERALLY. 

61.  A  bank  commissioner,  in  the  exer- 
cise of  discretionary  duties,  is  not  respon- 
sible to  any  one  receiving  an  injury 
through  a  breach  of  his  official  duty,  unless 
he  acts  maliciously  and  wilfully  wrong  or 
clearly  abuses  his  discretion  to  the  extent 
of  acting  unfaithfully  and  in  bad  faith. 
State  V.  American  Surety  Co.  (Idaho) 
19I6E-209.  (Annotated.) 

62.  State  Banking  Board — Personal  Lia- 
bility of  Members.  Where  such  board 
takes  such  an  action  and  is  justified  by 
the  facts  in  doing  so,  the  motives  of  its 
members  are  immaterial,  since  no  liability 
can  be  based  upon  the  performance  of  a 
clear  and  positive  public  and  official  duty. 
Youmans  v.  Hanna   (N.  Dak.)   1917E-263. 

63.  Liability  —  Payment  Under  Invalid 
Law.  The  state  auditor  of  public  ac- 
counts and  the  state  treasurer  cannot  be 
compelled  to  account  for  and  restore 
moneys  paid  out,  before  the  institution  of 
a  taxpayer's  suit,  pursuant  to  appropria- 
tions made  by  the  general  assembly,  since 
their  duties  in  issuing  and  paying  war- 
rants are  purely  ministerial,  and  neither 
is  required  to  decide  the  validity  of  a  law 
apparently  enacted  for  a  governmental 
purpose.  Fergus  v.  Brady  (111.)  1918B- 
220. 

64.  Payment  for  Purpose  not  Govern- 
mental. A  public  officer  having  only  min- 
isterial duties  may  be  held  personally  lia- 
ble for  the  payment  of  an  appropriation 
for  a  purpose  which  is  not  governmental 
in  its  nature.  Fergus  v.  Brady  (HI.) 
1918B-220. 

65.  Tax  Sale  Under  Void  Statute.  An 
officer,  who  sells  property  for  taxes  acting 
under  a  void  statute,  is  not  liable  to  the 
purchs^ser  of  such  property  at  the  tax  sale, 
since  the  rule  of  caveat  emptor  applies. 
Fields  V.  Altman  (Ala.)   1918B-189. 

(Annotated.) 

66.  Brccovery  by  De  Jure  from  De  Facto 
Officer.  Thorfgh  a  de  facto  officer  may  re- 
tain the  salary  of  the  office  as  against  all 
the  world,  including  the  municipality  pay- 
ing it,  except  the  de  jure  officer,  the  latter 
may  recover  from  the  former  fees  col- 
lected by  him  while  he  occupied  the  office 
to  which  the  latter  was  entitled.  Jones  v. 
Dusman  (Pa.)  1916D-472.        (Annotated.) 


Notes. 

Personal  liability  of  public  officer  for  in- 
juries caused  by  defective  condition  of 
street  or  highway.     1917D-939. 

Personal  liability  of  officer  for  sale  of 
property  for  taxes  under  void  statute. 
I918B-190. 

10.     OFFICIAL  BONDS, 
a.     In  General. 

67.  State  Fund  for  Bonding— Validity. 
Chapter  62,  Laws  N.  Dak.  1915,  is  not  vio- 
lative of  section  11  of  the  state  constitu- 
tion, which  requires  that  all  laws  of  a 
general  nature  shall  have  a  uniform  opera- 
tion. State  V.  Taylor  (N,  Dak.)  1918A- 
583.  (Annotated.) 

68.  Said  chapter  62  Laws  N.  Dak.  1915 
does  not  contravene  section  186  of  the 
constitution,  which  provides  that  no  money 
shall  be  paid  out  of  the  state  treasury  ex- 
cept upon  an  appropriation,  by  law,  and 
on  warrant  drawn  by  the  proper  officers. 
State  V.  Taylor  (N.  Dak.)  1918A-583. 

(Annotated.) 

69.  Said  chapter  62,  Laws  N.  Dak.  1915, 
does  not  contravene  sections  175,  176,  or 
179  of  the  state  constitution  relating  to 
taxation  and  the  expenditure  ot'  moneys 
raised  by  taxation.  State  v.  Taylor  (N. 
Dak.)   1918A-583.  (Annotated.) 

70.  Said  chapter  62  Laws  N.  Dak.  1915, 
does  not  require,  taxes  to  be  levied  and 
collected  for  other  than  public  purposes, 
or  authorize  the  taking  of  private  prop- 
erty for  private  use  without  compensation, 
State  v.  Taylor  (N.  Dak.)  1918A-583. 

(Annotated.) 

71.  The  establishment  and  operation  ot 
a  fund  for  the  bonding  of  municipal  offi- 
cers and  the  collection  of  premiums  from 
the  various  municipalities  whose  officers 
are  bonded  for  the  purpose  of  creating  a 
fund  to  secure  the  payment  of  losses  which 
may  result  bv  reason  of  the  nonfeasance, 
misfeasance,  or  defalcation  of  such  public 
officers,  is  a  valid  exercise  of  the  police 
power  of  the  state.  State  v.  Taylor  (N. 
Dak.)  1918A-583.  (Annotated.) 

72.  Chapter  62,  Laws  N.  Dak.  1915,  is  not 
invalid  on  account  of  delegating  legislative 
power  to  the  commissioner  of  insurance 
and  state  auditing  board.  State  v.  Taylor 
(N.  Dak.)  1918A-583. 

73.  Chapter  62  of  the  Laws  of  N.  Dak. 
1915,  establishing  a  state  bonding  fund 
for  the  purpose  of  furnishing  official  bonds 
for  county,  city,  village,  school  district, 
and  township  officers  is  not  unconstitu- 
tional, as  conferring  judicial  powers  on 
the  state  examiner  and  commissioner  of 
insurance.  State  v.  Tavlor  CN.  Dak.) 
1918A-583.  (Annotated.) 

74.  Said  chapter  62  Laws  N.  Dak.  1915. 
does  not  violate  any  express  or  implied 
constitutional    guaranty   of    the   right    of 


700 

local     Belf-government. 
(N.  Dak.)  1918A-533. 

Note. 
Validity    of    statute    establishing    fund 
for  bonding  of  public  officers.     1918A-603. 

b.  Actions  on  Official  Bonds. 
75.  Action  on  Bond  of  Examiner — Condi- 
tions Precedent.  In  an  action  by  an  in- 
jured party  against  the  surety  on  the  bond 
of  the  bank  commissioner  executed  under 
section  191,  Idaho  Rev.  Codes,  for  failure 
of  said  commissioner  to  faithfully  perform 
his  duty,  it  is  not  necessary  to  first  pro- 
ceed and  have  the  damages  of  the  injured 
party  adjudged  against  the  commissioner. 
State  V.  American  Surety  Co.  (Idaho) 
1916E-209. 

PUBLIC  PARKS. 
See  Parks  and  Public  Squares. 

PUBLIC  POLICY. 

See  Assignments,  18. 

Solicited  contract  with  client,  see  Attor- 
neys, 22. 

Division  of  fee  with  layman,  see  Attor- 
neys, 23. 

Formulation  of  public  policy,  see  Constitu- 
tional Law,  10. 

Agreements  contrary  to,  see  Contracts,  33- 
40. 

Covenant  void  as  against,  see  Deeds,  31. 

Policy  on  bawdy  house,  validity,  see  Fire 
Insurance,  1. 

Prohibition  in  cities  of  first  class,  see  In- 
toxicating Liquors,  4. 

Surrender  by  monk  of  property  rights,  see 
Religious  Societies,  3. 

1.  "Where  a  public  right  is  to  be  dis- 
posed of  by  government  officers  or  agents, 
public  policy  forbids  that  one  competing 
applicant  shall  contract  for  the  extinguish- 
ment of  another's  competition,  and  invali- 
dates all  contracts  made  for  that  purpose. 
Kuhn  V.  Buhl   (Pa.)   1917D-415. 

2.  The  legislature  having,  by  Ala.  Code 
1907,  §  3867,  providing  that  property  al- 
ready devoted  to  public  use  shall  not  be 
taken  for  a  different  character  of  use 
unless  there  is  an  actual  necessitv  there- 
for, declared  the  public  policy  of  t^e  state 
regarding  the  condemnation  of  land  al- 
ready devoted  to  public  use,  courts  cannot, 
in  determining  the  right  of  a  telegraph 
company  to  condemn  an  easement  along  a 
railroad  right  of  way.  be  influenced  by 
consideration  of  the  public  interest.  Louis- 
ville, etc.  R.  Co.  V.  Western  Union  Tel.  Co. 
(Ala.)   1917B-696. 

3.  The  public  welfare  is  safeguarded  not 
only  by  constitutions,  statutes  and  judif'ial 
decisions,  but  by  sound  and  substantial 
public  policies  underlying  all  of  them. 
Pittsburgh,  etc.  R.  Co.  v.  Kinney  (Ohio) 
1918B-286. 


DIGEST. 

1916C— 1918B. 
State     ▼.    Taylor  PUBLIC  RECORDS. 

(Annotated.)       g^^  Records. 


PUBLIC  SERVICE. 
Meaning,  see  Taxation,  2. 

PUBLIC   SERVICE    COMMISSIONS. 

Meaning,  see  Taxation,  2. 

Fixing  rates  of  carriers,  see  Carriers,  4-14. 

Regulation  of  electric  companies,  see 
Electricity,  1,  25-31. 

Delegation  of  power  to,  see  Eminent  Do- 
main, 57. 

Proceedings  for  condemnation  before,  see 
Eminent  Domain,  121-130. 

Regulation  of  gas,  see  Gas  and  Gas  Com- 
panies, 5-7. 

Control  of  commission,  see  Telegraphs  and 
Telephones,  17-21. 

1.  The  object  of  the  act  creating  the 
public  utilities  commission  is  to  bring 
under  the  public  control  for  the  common 
good  property  applied  to  a  puBlic  use,  in 
which  the  public  has  an  interest,  and  the 
owner  of  such  property  must  submit  to 
such  control  to  the  extent  of  the  public  in- 
terest so  long  as  the  public  use  is  main- 
tained. State  Public  Utilities  Cora.  v. 
Bethany  Mut.  Tel.  Assoc.  (111.)  1917B-495. 

(Annotated.) 

2.  While  it  is  not  essential  to  a  public 
use  that  its  benefits  should  be  received  by 
the  whole  public,  or  within  a  large  part  of 
it,  they  must  not  be  confined  to  specified 
privileged  persons,  but  must  be  extended 
to  all  persons  in  common  upon  the  same 
terms,  it  being  immaterial  how  few  avail 
themselves  of  the  rights  so  extended. 
State  Public  Utilities  Com.  v.  Bethany 
Mut.  Tel.  Assoc.  (111.)  1917B-495. 

(Annotated.) 

3.  "Public  utility,"  aside  from  its  statu- 
tory definition,  implies  a  public  use,  carry- 
ing with  it  the  duty  to  serve  the  public 
and  treat  all  persons  alike  without  dis- 
crimination, and  it  precludes  the  idea  of 
service  which  is  private  in  its  nature, 
whether  for  the  benefit  and  advantage  of 
a  few  or  of  many.  State  Public  Utilities 
Com.  V.  Bethany  Mut.  Tel.  Assoc.  (111.) 
1917B-495.  (Annotated.) 

4.  The  words  "public  use"  mean  of  or 
belonging  to  the  people  at  large,  open  to  all 
the  people  to  the  extent  that  its  capacity 
mav  admit  of  the  public  use.  State  Pub- 
lic Utilities  Com.  v.  Bethanv  Mut.  Tel. 
Assoc.   (111.)    1917B-49.3.  (Annotated.) 

5.  Reasonableness  of  Order  —  Judicial 
Review.  The  question  whether  an  order 
of  the  state  railroad  and  warehouse  com- 
mission is  reasonable  is  a  judicial  question. 
State  V.  Great  Northern  R.  Co.  (Minn.) 
1917B-1201. 

6.  Under  Minn,  statute  the  district 
court  on  appeal  from  an  order  of  the  com- 


PUBLIC  SERVICE  COMMISSIONS. 


m 


mission  does  not  put  himself  in  the  place 
of  the  commission  and  substitute  its  find- 
ings for-  those  of  the  commission,  nor  does 
it  set  aside  such  an  order  on  its  own  con- 
ception of  its  wisdom.  The  court  reviews 
the  order  only  so  far  as  to  determine 
whether  or  not  it  is  unlawful  and  unrea- 
sonable. State  V.  Great  Northern  E.  Co. 
(Minn.)  1917B-1201. 

7.  Review  of  Public  Service  Commission. 
In  the  consideration  of  a  petition  in  error 
filed  in  this  court  to  reverse,  vacate  or 
modify  an  order  of  the  public  utilities 
commission  on  the  ground  that  it  is  un- 
lawful or  unreasonable,  the  court  will  ex- 
amine the  entire  record  to  determine 
whether  a  finding  of  facts  made  by  the 
commission  is  so  involved  with  and  de- 
pendent on  questions  of  law  as  to  be  in 
effect  a  decision  of  the  latter.  Hocking 
Valley  R.  Co.  v.  Public  Utilities  Commis- 
sion (Ohio)  1917B-1154. 

8.  The  111.  Public  Utilities  Act  is  not 
void  because  the  right  to  a  supersedeas  on 
appeal  from  an  order  of  the  commission 
is  restricted,  for  while  the  constitution 
preserves  the  right  of  an  appeal  or  writ 
of  error  in  all  civil  cases,  the  right  to  have 
the  same  made  a  supersedeas  is  not  guar- 
anteed. State  Public  Utilities  Com.  v. 
Chicago,  etc.  E.  Co.  (111.)  1917C-50. 

(Annotated.) 

9.  The  m.  Public  Utilities  Act,  declar- 
ing that  the  findings  and  conclusions  of 
the  commission  on  questions  of  fact  shall 
be  taken  as  prima  facie  true  on  appeal,  and 
that  no  rule,  regulation,  or  order  of  the 
commission  shall  be  set  aside,  unless  it 
appears  that  the  findings  of  the  commis- 
sion were  against  the  weight  of  the  evi- 
dence, does  not  invalidate  the  act  on  the 
theory  that  it  deprives  public  utilities  of 
their  property  without  due  process  of  law; 
only  a  rebuttable  presumption  being  cre- 
ated. State  Public  Utilities  Com.  v.  Chi- 
cago etc.  R.  Co.  (111.)  1917C-50. 

(Annotated.) 

10.  In  reviewing  on  certiorari  an  order 
of  a  public  service  commission  for  the  ex- 
tension of  gas  mains,  the  court  has  no 
power  to  pass  on  the  wisdom  or  expediency 
of  the  order  or  of  the  weight  of  the  evi- 
dence on  which  it  is  based  but  can  annul 
it  only  if  it  is  an  unlawful,  arbitrarv  or 
capricious  exercise  of  power.  People  v. 
McCall    (N.    Y.)    1916E-1042. 

11.  Review  of  Findings.  The  findings 
of  the  public  service  commission,  having 
the  force  and  effect  of  reports  of  special 
masters  in  courts  of  equity,  are  conclusive 
in  the  supreme  court  on  appeal.  Western 
Union  TpI.  Co.  v.  Burlington  Traction  Co. 
(Vt.)  1918B-841. 

12.  Judicial  Power  After  Condemnation 
by  Commission.  The  courts  will  enforce 
and  protect  the  rights  of  the  landowner 
and  of  the  public  service  corporation  con- 


demning land  for  placing  lighting  wires, 
etc.,  under  Acts  Vt.  1908,  No.  116,  5  13, 
after  the  public  service  commission  has 
found  in  favor  of  condemnor  and  awarded 
compensation.  George  v.  Consolidated 
Lighting  Co.  (Vt.)  1916C-416. 

13.  Vt,  Acts  1908,  No.  116,  §  13,  pro- 
viding that  if  a  public  service  corporation, 
such  as  a  lighting  company,  cannot  agree 
with  the  landowner  as  to  the  necessity  of 
taking  and  for  public  purposes  or  as  to 
compensation,  it  may  petition  the  public 
service  commission,  which  shall,  upon  no- 
tice, determine  the  questions  of  the  neces- 
sity and  compensation  and  render  judg- 
ment, is  applicable  in  proceedings  by  a 
lighting  company,  the  charter  of  which  as 
amended  by  Acts  1902,  No.  202,  §  3,  pro- 
vided a  constitutional  method  for  the  ex- 
ercise of  the  power  of  eminent  domain 
granted  thereby.  George  v.  Consolidated 
Lighting  Co.  (Vt.)  1916C-416. 

(Annotated.) 

14.  Judicial  Review  of  Order  of  Commis- 
sion— Power  of  Court  of  Equity.  A  court 
of  chancery,  not  acting  as  an  appellate 
tribunal,  will  not  interfere  with  the  pro- 
ceedings and  determinations  of  inferior 
boards  or  tribunals  ot  special  jurisdiction, 
while  acting  within  their  powers  or  exer- 
cising a  discretion  conferred  upon  them 
by  the  legislature,  except  in  special  cases 
presenting  some  acknowledged  and  well- 
defined  ground  of  equity  jurisdiction. 
Sayers  v,  Montpelier  etc.  E.  Co.  (Vt.) 
1918B-1050. 

15.  The  primary  interference  of  the 
courts  with  the  administrative  functions 
of  a  public  service  commission,  being  in- 
compatible with  the  proper  exercise  of 
governmental  powers,  although  such  com- 
missions are  exercising  special  and  limited 
powers,  as  to  which  nothing  will  be  pre- 
sumed in  favor  of  their  jurisdiction, 
within  the  proper  limits  of  the  authority 
conferred  upon  them  by  the  legislature, 
their  jurisdiction  is  exclusive,  and  can  be 
reviewed  only  in  the  manner  provided  by 
the  statute.  Sayers  v.  Montpelier,  etc.  E. 
Co.  (Vt.)  1918B-1050. 

16.  The  courts  have  power  to  prevent  an 
abuse  of  discretion  by  a  public  service 
commission,  and  to  require  that  its  powers 
be  exercised  according  to  law  and  in  a 
manner  not  to  injure  property  rights  un- 
justly. Savers  v.  Montpelier,  etc.  E.  Co. 
(Vt.)  1918B-1050. 

17.  Whether  the  orders  of  a  public  ser- 
vice commission  deprive  a  party  of  a 
statutory  riqrht,  whether  he  has  had  a  fair 
and  adequate  hearing  or  whether,  for  any 
reason,  the  orders  are  contrary  to  law,  are 
all  justifiable  questions,  and  if  they  arise 
in  circumstances  calling  for  equitable  re- 
lief, a  court  of  chancery  will  afford  a  rem- 
edv.  Savers  v.  Montpelier,  etc.  E.  Co. 
^Vt.)    191SB-1050. 


702 


DIGEST. 

1916C— 1918B. 


18.  Begulation  of  Public  Utilities. 
Power  to  regulate  public  utilities  presup- 
poses an  intelligent  regulation,  and  neces- 
sarily carries  with  it  the  power  to  employ 
the  means  necessary  and  proper  for  such 
intelligent  regulation.  Idaho  Power,  etc. 
Co.  V.  Blomquist  (Idaho)  1916E-282. 

19.  Delegation  of  Legislative  Powers. 
The  legislature  may  not  delegate  its  purely 
legislative  power  to  a  commission;  but, 
having  laid  down  by  law  the  general  rules 
of  action  under  which  a  commission  may 
proceed,  it  may  require  of  that  commis- 
sion the  application  of  such  rules  to  par- 
ticular situations  and  conditions,  and  au-' 
thorize  an  investigation  of  facts  by  the 
commission,  with  a  view  to  mating  orders 
in  a  particular  matter  within  the  rules  laid 
down  by  such  law.  Idaho  Power,  etc.  Co. 
V.  Blomquist   (Idaho)   1916E-282. 

20.  Extension  of  Public  UtUity — Power 
of  Public  Service  Commission.  The  legis- 
lature has  ample  power  to  give  the  public 
utilities  commission  authority  to  refuse 
to  give  a  certificate  of  convenience  and 
necessity  to  a  public  utility,  where  it  seeks 
to  duplicate  a  plant  or  system  that  is  am- 
ply sufficient  to  serve  properly  the  inhabi- 
tants of  a  community.  Idaho  Power,  etc. 
Co.  v.  Blomquist  (Idaho)  1916E-282. 

(Annotated.) 

21.  Necessity  of  Regulation.  Experience 
and  history  clearly  show  that  public  utility 
corporations  cannot  be  safely  intrusted  to 
properly  serve  the  public  until  they  are 
regulated  and  placed  under  public  control. 
Idaho  Power,  etc.  Co.  v.  Blomquist  (Idaho) 
1916E-282. 

22.  Under  the  provisions  of  said  act,  un- 
regulated competition  is  not  needed  to 
protect  the  public  against  unreasonable 
rates  or  unsatisfactory  service;  and  there 
can  now  be  no  justification  for  unregulated 
competition  or  a  duplication  of  utility 
plants  under  the  pretense  of  preventing 
monopoly.  Idaho  Power,  etc.  Co.  v.  Blom- 
quist (Idaho)  1916E-282. 

23.  Held,  that  the  power  of  regulation 
as  provided  by  said  act  is  not  required  to 
be  specifically  conferred  by  the  provisions 
of  the  state  constitution,  and  that  there 
is  no  inhibition  in  the  constitution  upon 
the  legislature  prohibiting  the  enactment 
of  such  a  law.  Idaho  Power,  etc.  Co.  v. 
Blomquist  (Idaho)  1916E-282. 

24.  Power  to  Fix  Bates.  Under  the  pro- 
visions of  said  act,  the  commission  has 
power  absolutely  to  fix  the  ratbs,  and  it 
is  unlawful  for  the  utility  to  charge  more 
or  less  than  the  rates  so  fixed.  Idaho 
Power,  etc.  Co.  v.  Blomquist  (Idaho) 
1916E-282. 

25.  Bestricting  Competition  Between 
Public  Service  Companies.  Formerly  com- 
petition was  supposed  to  be  the  proper 
means  of  protecting  the  public  and  pro- 
moting the  general  welfare  in  respect  to 
service  of  public  utility  corporations,  but 


experience  has  demonstrated  that  public 
convenience  and  public  needs  do  not  re- 
quire the  construction  and  maintenance  of 
numerous  instrumentalities  in  the  same  lo- 
cality, but  rather  the  construction  and 
maintenance  only  of  those  necessary  to 
meet  the  public  necessities,  when  such  util- 
ities are  properly  regulated  by  law. 
Idaho  Power,  etc.  Co.  t.  Blomquist  (Idaho) 
1916E-282. 

26.  Idaho  public  utilities  act  provides 
that  competition  between  public  utility 
corporations  of  the  classes  specified  shall  be 
allowed  only  where  public  convenience  and 
necessity  demand  or  require  it.  Idaho 
Power,  etc.  Co.  v.  Blomquist  (Idaho) 
1916E-282. 

27.  Section  18,  art.  11,  of  the  Idaho  state 
constitution,  prohibits  combinations  for 
the  purpose  of  fixing  prices  or  regulating 
production,  and  requires  the  legislature  to 
pass  annropriate  laws  to  enforce  the  pro- 
visions of  that  section,  and  said  public 
utilities  act  is  justified  by  the  provisions 
of  said  section,  since  its  ultimate  effect 
will  be  to  prevent  unreasonable  rates  and 
cambinations  by  public  utilities,  Idaho 
Power,  etc.  Co.  v.  Blomquist  (Idaho) 
1916E-282. 

28.  Begul?'1on  of  Bates — Validity.  The 
regulation  of  rates  for  the  purpose  of  pro- 
moting the  public  health,  comfort,  safety, 
and  welfare  is  an  exercise  of  the  police 
power  of  the  sovereign.  Woodburn  t. 
Public  Service  Commission  (Ore.)  1917E- 
990. 

29.  Inability  to  Begulation.  When  an 
owner  devotes  his  property  to  a  use  in 
which  the  public  has  an  interest,  he  must 
submit  +0  be  regulated  and  controlled  by 
the  public  for  the  common  good.  Wood- 
burn  V.  Public  Service  Commission  (Ore) 
1917E-996. 

30.  Waiver  of  Nonjoinder  of  Beceiver. 
Under  Mo.  Laws  1913,  p.  640,  §  110,  pro- 
viding that  no  public  utility  shall  urge 
grounds  not  set  forth  in  its  application  for 
rehearing  before  the  public  service  com- 
mission, defendant  railway  company 
waives  the  point  that  its  receiver  was  not 
joined  in  proceedings  before  the  commis- 
sion by  not  raising  the  point  on  rehearing. 
State  V.  Atkinson  (Mo.)   1917E-987. 

31.  Be  view  of  Order  of  Commission — 
Objection  not  Made  at  Hearing.  An  ob- 
jection that  defendant  railway  company's 
receiver  was  not  brought  before  the  com- 
mission by  proper  notice  is  not  saved 
where  raised  for  the  first  time  on  a  mo- 
tion for  rehearing  in  the  circuit  court. 
State  v.  Atkinson  (Mo.)  1917E-987. 

Notes. 

"Validity  of  statute  conferring  on  public 
service  commission  or  other  body  jurisdic- 
tion of  eminent  domain  proceedings. 
1916C-420. 


QUESTIONS  OF  LAW  AND  FACT. 


703 


Eeview  by  public  service  commission  of 
municipal  regulation  of  public  service  cor- 
poration.    1916E-1083. 

Validity  of  statute  conferring  on  public 
service  commission  power  to  determine 
necessity  for  construction  or  extension  of 
public  utility.     1916E-299. 

Power  of  public  service  commission  to 
make  test  order.     1917E-794. 


PUBLIC  SERVICE  CORPORATIONS. 

See  Carriers  of  Goods;  Carriers  of  Live- 
stock; Carriers  of  Passengers;  Elec- 
tricity; Gas;  Irrigation;  Public  Ser- 
vice Commission;  Railroads;  Street 
Railways;  Telegraphs  and  Telephones; 
Waterworks  and  Water  Companies. 


PUBLIC  SQUARES. 
See  Parks  and  Public  Squares. 

PUBLIC  TRIAL. 

Right  of  accused,  see  Criminal  Law,  29. 

PUBLIC  USE. 

Defined,  see  Public  Service  Commission,  4. 
Defined,  see  Telegraphs  and  Telephones,  1. 

PUBLIC  UTILITIES  ACT. 
Sufficiency  of  title,  see  Statutes,  10. 

PUBLIC  UTILITIES  COMMISSION. 

See  Public  Service  Commissions. 

Control     of     streets     and    highways,     see 
Streets  and  Highways,  48,  49. 


PUBLIC  UTILITY. 

Taxieab  company,  see  Carriers  of  Passen- 
gers, 84. 

Power  to  regulate,  see  Constitutional  Law, 
8,  40,  41. 

Operation  of,  by  cities,  see  Municipal  Cor- 
porations, 37-43. 

Defined,  see  Telegraphs  and  Telephones,  1. 


PUBLIC  WAYS. 
See  Streets  and  Highways. 

PUBLIC  WORKS. 

Employment  of  aliens,  see  Aliens,  8-10. 

PUBLISH. 
Meaning,  see  Trees  and  Timber,  2. 

PUIS  DARREIN  CONTINUANCE. 
See  Pleading,  37. 


PULLMAN  CARS. 
See  Railroads,  18. 

PUNISHMENT, 

See  Sentence  and  Punishment. 
Of  convicts,  see  Convicts,  3, 

PUNITIVE  DAMAGES. 

See  Damages,  1,  2;  False  Imprisonment, 
10;  Libel  and  Slander,  8,  9,  162;  Ma- 
licious Prosecution,  32,  34,  35. 

PURCHASE-MONEY  LIEN. 
See  Liens,  9.  .    ' 

PURCHASE-MONEY  MORTGAGE. 

Priority,  see  Mortgages  and  Deeds  of 
Trust,  14,  15. 

PURE  FOOD  LAWS. 

See  Drugs  and  Druggists;  Food. 

PURE  SEED  LAW. 
See  Agriculture,  11-15. 

PURGING  OF  USURY. 
Power  of  court,  see  Usury,  1. 

QUALIFICATIONS  OF  VOTERS. 
See  Elections,  2-11. 

QUALIFIED  PRIVILEGE. 
Meaning,  see  libel  and  Slander,  48,  50. 

QUANTUM  MERUIT. 

Illegal   contract,   recovery  for  work,   see 

Contracts,  31. 
For  illegal  overtime,  see  Labor  Laws,  10. 

QUASHING  INDICTMENTS. 
See  Indictments  and  Informations,  21-24. 

QUESTIONS  OF  LAW  AND  FACT. 

See  Adjoining  Landowners,  13;  Adverse 
Possession,  34;  Agency,  30;  Assault, 
10.  13,  16;  Automobiles,  44-46;  Con- 
tracts, 51,  60-62;  Death  by  Wrongful 
Act,  44;  Electricity,  22,  23;  Food,  27; 
Habeas  Corpus,  12,  20;  Larceny,  0; 
Libel  and  Slander,  51;  Life  Insurance, 
18.  19;  Negligence,  94-111;  Payment, 
1,  7;  Sales,  39,  56. 

Vicioiisness  of  animal,  see  Animals,  6. 

Examination  of  questions  of  fact  on  ap- 
peal, see  Appeal  and  Error,  103-167. 

In  action  against  attorney  for  neglect,  see 
Attorneys,  72. 


704 


DIGEST. 

1916C— 1918B. 


In  action   for  in.inry    to    passengers,   see 

Carriers  of  Passengers,  71-80. 
Whether    confession    was    voluntary    for 

jury,  see  Confessions,  3. 
Weight  of  finger-print  evidence,  see  Homi- 
cide, 59. 
Whether  owner  could  foresee  danger,  see 

Indepencient  Contractors,  12. 
Total   or   partial   destruction   of  building, 

see  Landlord  and  Tenant,  48. 
Truth    of   application   for   jury,   see   Life 

Insurance,  18. 
Probable   cause,  for  court,  see  Malicious 

Prosecution,  8,  10,  27. 
•Advice  of  counsel  for  jury,  see  Malicious 

'    Prosecution,  26. 
Contributory    negligence   of  servant,    see 

Master  and  Servant,  34-37. 
In  proceedings  under  Workmen's  Compen- 
sation Act,  see  Master  and  Servant, 

344-355. 
Care  required  of  child,  see  Negligence,  53. 
Negligence  in  leaving  vehicle  on  track,  see 

Negligence,  86. 
Negligence  of  child  coasting  in  street,  see 

Negligence,  87. 
Negligence   in   maintenance   of   dock,   see 

NegUgence,  105,  106. 
Negligence   in    running   to   stop  runaway 

truck,  see  Negligence,  109. 
Credibility  of  witness,  see  Negligence,  111. 
Contributory   negligence,   see   Negligence, 

97,  98,  100,  107. 
In  malpractice  action,  see  Physicians  and 

Surgeons,  45. 
In    actions    for    injury  at  crossings,    see 

Railroads,  76,  77. 
See  Rescission,  Cancellation  and  Reforma- 
tion, 8. 
Contributory  negligence  of  injured  pupil, 

see  Schools,  8. 
Negligence  of  street  railway  company  in 

collision,  see  Street  Railways,  42. 
In  action  for  injuries  by  street  cars,  see 

Street  Railways,  42,  43. 
Negligence  in  leaving  horse  unhitched,  see 

Streets  and  Highways,  37. 
Whether  steam  roller  was  left  on  street  an 

unreasonable    time,    see    Streets    and 

Highways,  44. 

Location  of  defect  in  highway,  see  Streets 
and  Highways,  45,  46. 

Negligence  in  delivering  message,  see 
Telegraphs  and  Telephones,  34. 

Where  facts  are  agreed  upon,  see  Trial,  62. 

Whether  embankment  caused  flood,  see 
Waters  and  Watercourses,  35. 

Mental  capacity  of  rape  victim,  see  Wit- 
nesses, 10. 

QUIET  ENJOYMENT. 

Implied  covenant,  see  Landlord  and  Ten- 
ant, 4-7. 


QUIETING  TITLE. 

1.  Right  to  Maintain  Suit. 

2.  Actions. 

a.  Process. 

b.  Limitation  of  Actions. 

c.  Pleadinif. 

d.  Evidence. 

e.  Cross  Bill,  AflSrmative  Belief. 

f.  Judgment. 

Matters   concluded   by   decree,   see   Judg- 
ments, 79. 
New  trial  as  of  right,  see  New  Trial,  7-9. 

1.     EIGHT  TO  MAINTAIN  SUIT. 

1.  Title  to  Property.  Where  defendants 
are  in  adverse  possession  of  certain  stand- 
ing tim&er  claimed  by  complainant,  com-, 
plainant's  rieht  to  the  timber  should  be  de- 
termined in  an  action  at  law.  W.  T.  Smith 
Lumber  Co.  v.  Jernigan  (Ala.)  1916C-654. 

2.     ACTION. 
a.    Process. 

2.  Jurisdiction  —  Constructive  Service. 
A  court  of  equity  has  power  to  proceed  in 
rem  in  a  suit  to  quiet  title  or  remove  a 
cloud  on  title  to  land  in  this  state,  upon 
the  proper  publication  of  an  order  against 
a  nonresident  defendant.  Myakka  Co.  v. 
Edwards  (Fla.)  1917B-201. 

b.     Limitation  of  Actions. 

3.  Application  of  Statute  of  Limitations. 
An   action  to   have  a  judgment   and  sale 

and  other  incidental  proceedings  ad- 
judged void  for  want  of  jurisdiction  over 
the  subject-matter,  or  to  impeach  such  sale 
for  constructive  fraud  in  the  purchase  by 
a  trustee  of  the  property  sold,  is  subject 
to  the  ten-year  limitation  and  one  year's 
extension,  under  N.  Y.  Code  Civ.  Proc. 
§§  388,  396,  respectively,  providing  that  an 
action,  the  limitation  of  which  is  not  spe- 
cially prescribed,  must  be  commenced 
within  ten  years,  and  that,  if  a  person 
entitled  to  maintain  an  action  is.  at  the 
time  of  accrual  of  the  right,  within  the 
age  of  twenty-one  years,  the  time  of  disa- 
bility is  not  a  part  of  the  time  limited, 
except  that  the  time  so  limited  cannot  be 
extended  by  such  disability  more  than  one 
vear  after  the  disabilitv  ceases.  Ford  v. 
Clendenin  (N.  Y.)   1917A-658. 

(Annotated.) 

4.  An  owner  of  land  in  possession  thereof 
may  bring  suit  at  any  time  to  have  ap- 
parent but  unreal  incumbrances  cleared 
without  his  rights  being  barred  by  the 
statute  of  limitations;  but  a  person  claim- 
ing to  own  real  property  in  the  possession 
of  another  must  assert  his  right  within 
the  time  prescribed  bv  statute.  Ford  v. 
Clendenin  (N.  Y.)  1917A-658. 

(Annotated.) 
Note. 

Running  of  statute  of  limitations  against 
action  to  quiet  title.     I917A-661. 


QUI  TAM  ACTIONS— QUO  WARRANTO. 


705 


e.    Pleading. 

5.  Dismissal  Proper.  Where  in  a  bill 
to  remove  a  cloud  upon  the  title  to  land 
there  is  no  allegation  that  the  complain- 
ants were  in  the  possession  of  the  land 
when  the  bill  was  filed,  and  when  the  alle- 
gations that  the  lands  "have  been  for  sev- 
eral years  and  are  now  uncultivated  and 
unimproved"  is  denied  by  the  answer,  and 
the  case  is  finally  heard  on  bill,  answer 
and  replication,  there  is  no  error  commit- 
ted in  dismissing  the  bill.  Mayfield  v. 
Wernicke  Chemical  Co.  (Fla.)  1917A-1193. 

d.     Evidence. 

8.  Admission  In  Answer.  Under  Ala. 
Code  1907,  §  5443  et  seq.,  allowing  per- 
sons in  possession  of  and  claiming  title 
to  land  to  file  a  bill  to  quiet  title, 
an  answer  admitting  peaceable  posses- 
sion of  the  land  at  the  filing  of  the  bill, 
and  that  there  were  no  pending  suits  to 
test  the  validity  of  the  title,  makes  out  a 
prima  facie  case,  entitling  complainant  to 
the  relief  sought.  Vidmer  v.  Lloyd  (Ala.) 
1917A-576. 

7.  Submission  of  Controversy — Presump- 
tion as  to  Facts  not  Stipulated.  In  an  ac- 
tion to  quiet  title  against  a  sale  by  the 
guardian  or  an  insane  person,  where  all 
the  facts  were  stipulated,  it  will  be  pre- 
sumed that  the  proceedings  which  were 
not  contained  in  the  stipulation  were  law- 
ful and  regular,  even  if  ordinarily,  the 
burden  would  be  upon  the  purchaser  to 
establish  such  regularity.  Eichelson  v. 
Mariette  (S.  Dak.)    1917A-883. 

8.  Burden  of  Proof — Effect  of  Admission 
In  Answer.  Where  a  paragraph  of  the  an- 
swer of  the  bill  to  quiet  title  made  out  a 
prima  facie  case  for  complainant,  the  bur- 
den is  on  the  defendant  to  establish  his 
claim  to  the  land  under  another  paragraph 
of  the  answer.  Vidmer  v.  Lloyd  (Ala.) 
1917A-576. 

9.  Sufla.clency  of  Evidence.  In  a  suit  to 
establish  ownership  to  a  tr,act  of  land 
claimed  to  be  embraced  in  a  patent  and 
to  hsve  been  conveyed  to  plaintiff  by  the 
devisees  under  the  patentee's  will,  the  evi- 
dence is  held  to  sustain  the  jury's  finding 
in  favor  of  the  plaintiff  as  to  certain 
tracts.  Tennis  Coal  Co.  v.  Sackett  (Ky.) 
1917E-629. 


from  dismissing  without  his  consent. 
Larkin  v.  Superior  Court  (Cal.)  1917D- 
6i0.  (Annotated.) 

11.  Cross  Bill  for  Affirmative  Relief.  In 
a  suit  to  quiet  title,  judgment  in  defend- 
ant's favor  protects  him  against  any  of 
plaintiff's  claims,  so  a  cross  complaint 
praying  that  title  be  adjudged  in  defend- 
ant is  effective  merely  to  prevent  plaintiff 
from  dismissing  it  before  trial  without  the 
consent  of  defendant.  Larkin  v.  Superior 
Court  (Cal.)  1917D-670.  (Annotated.) 

Note. 
Eight  to  aflSrmative  relief  on  cross  bill 
in  suit  to  quiet  title.     1917D-674. 

f.     Judgment. 

12.  What  Constitutes  Collateral  Attack. 
An  action  to  quiet  title,  brought  by  one 
who  had  been  insane  but  had  been  restored 
to  reason,  against  a  purchaser  at  a  sale  by 
the  plaintiff's  guardian  for  the  purpose  of 
annulling  the  guardian's  sale,  is  a  direct 
and  not  a  collateral  attack  upon  the  order 
confirming  the  sale.  Bichelson  v.  Mari- 
ette (S.  Dak.)  1917A-83. 

13.  Under  such  statute,  a  judgment,  in 
a  suit  to  quiet  title  in  the  federal  court 
putting  the  title  to  and  ownership  of  land 
in  issue  between  plaintiff's  vendors  and 
the  claimants  of  the  surface  under  whom 
defendants  herein  claimed  mineral  rights 
by  a  purchase  pending  that  suit,  conclu- 
sive between  the  parties,  and  determining 
that  the  claimants  of  the  surface  were  not 
the  owners,  and  forbidding  them  to  claim 
ownership,  and  enjoining  them  from  using 
or  trespassing  upon  the  land,  concludes 
their  right  to  hold  adversely,  and  is  a 
break  in  the  continuity,  conclusive  against 
the  purchaser.  Tennis  Coal  Co.  v»  Sackett 
(Ky.)  19a7E-629.  (Annotated.) 


QXn  TAM  ACTIONS. 
See  Penalties. 

QUITCLAIM  DEED. 
See  Deeds. 

QUORUM. 
Of  grand  jury,  see  Grand  Jury,  8, 


e.     Cross  Bill,  Affirmative  Relief. 

10.  In  a  suit  to  quiet  title,  though  de- 
fendant filed  a  pjross  complaint  asking  that 
his  title  be  adjudged  good,  the  suit  may 
be  dismissed  under  Cal.  Code  Civ.  Proc. 
§  583,  for  plaintiff's  failure  to  bring  it  to 
trial  within  five  years  after  answer,  for 
the  filing  of  the  cross  complaint  does  not 
make  defendant  an  actor,  as  it  gives  de- 
fendant no  greater  rights  than  he  would 
have  had  under  an  answer  denying  plain- 
tiff's title,  but  merely  precludes  plaintiff 
45 


QUOTIENT  VERDICT. 
See  Verdicts,  2-4. 

QUO  WARRANTO. 

1.  Section  679  of  the  code  abolishes  the 
writ  of  quo  warranto  and  substitutes  there- 
for a  civil  action  governed  by  the  same 
rules  of  procedure  as  other  actions.  Pre- 
sumptions as  rules  of  evidence  may  be  in- 
voked against  the  state  in  such  an  action 
as  readily  as  against  an  individual  in  or- 


706 


DIGEST. 

1916C— 1918B. 


dinary    civil     actions.    State    v.    Harper 
(Kan.)   1917B-464.  (Annotated.) 

2.  Burden  of  Proof.  In  a  proceeding  by 
the  state  in  courts  of  general  jurisdiction 
to  inquire  by  what  authority  a  municipal- 
ity exercises  governmental  functions  the 
doctrine  that  the  burden  of  proof  is  upon 
the  defendant  and  that  the  state  is  not 
required  to  show  anything  rests  upon  the 
common-law  theory  as  to  the  nature  and 
character  of  information  in  quo  warranto 
and  has  no  application  in  this  state.  State 
V.   Harper    (Kan.)    1917B-464. 

(Annotated.) 

3.  Motion  for  Judgment  on  Pleadings — 
Conclusiveness  of  Return.  In  quo  war- 
ranto proceedings,  the  facts  in  the  return, 
where  facts  are  in  dispute  as  between  the 
petition  and  the  return,  must,  on  general 
demurrer  and  motion  for  judgment  on  the 
pleadings,  be  taken  as  the  facts  in  the 
case.     State  v.  Merchants  Exchange  (Mo.) 

.1917E-871. 

4.  Demurrer — ^Effect  as  Admission.  A 
demurrer  to  an  information  in  quo  war- 
ranto proceeding  admits  all  the  allegations 
contained  in  the  information,  and  it  is  the 
duty  of  the  appellate  court  in  reviewing 
the  case  to  assume  that  the  allegations  are 
true  as  stated.  State  Senatobia  Blank- 
Book  and  Stationery  Co.  (Miss.)  1918B- 
953. 

5.  Violation  of  Charter  by  Corporation. 
Quo  warranto  is  the  proper  remedy  for  the 
attorney  general  of  the  state  to  pursue, 
where  a  corporation  practiced  fraud  in 
obtaining  its  charter  and  the  acts  of  the 
alleged  corporation  under  the  charter  have 
been  all  in  violation  of  law.  State  v.  Sen- 
atobia Blank-Book  and  Stationery  Co. 
(Miss.)   1918B-953. 

6.  Mode  of  Entitling  Papers.  Under 
Mo.  Rev.  St.  1909,  §§  2631,  2632,  providing 
that  in  case  any  person  shall  usurp  any 
office  the  attorney  general  shall  exhibit 
to  the  court  an  information  in  the  nature 
of  a  quo  warranto  at  the  relation  of  any 
person  desiring  to  prosecute  the  same,  etc., 
in  original  informations  in  the  nature  of 
quo  warranto  it  is  the  better  practice  to 
style  the  comolaining  party  as  relator  and 
the  party  called  to  answer  respondent; 
for  the  word  "relator"  is  defined  as  an 
informer,  a  person  in  whose  behalf  certain 
writs  are  issued,  such  as  informations  in 
the  nature  of  quo  warranto,  while  the 
word  "respondent"  is  defined  as  referring 
to  a  partv  answering.  State  v.  Duncan 
(Mo.)  1916D-1. 

Note. 

Burden  of  proof  in  quo  warranto  pro- 
ceedine  or  action  in  nature  thereof. 
1917B-467. 


RAIL-^OAD  COMMISSIONERS. 

See  Railroads,  2-35. 


RAILROAD  CROSSING. 

Contributory    negligence   of    traveler,   see 
Negligence,  84. 

RAILROADS. 

1.  Construction  of  Charter,  707. 

2.  Railroad  Commissions,  707. 

a.  Nature,    Powers    and    Proceedings, 

707. 

b.  Collateral   Attack   on  Proceedings, 

711. 

c.  Review  of  Acts,  711. 

3.  Statutory  Regulations,  712, 

a.  As  to  Stations,  712. 

b.  Crossings,  712. 

c.  Lookout  Law.  712. 

4.  Eights,  Powers  and  Duties,  712. 

a.  Station  Grounds.  712. 

b.  Permission  to  Maintain  Telegraph 

Wires,  713. 

c.  Spur  Tracks,  713. 

d.  Dutv    to    Operate    and    Maintain 

Road,  713. 

5.  Right  of  Way,  713. 

6.  Liability  for  Fires,  713. 

7.  Liability  for  Injuries  to  Persons,  714. 

a.  Persons  at  Crossings,  714. 

(1)  Duties  in  General. 

(2)  Warning   of   Approaching  of 

Trains  and  Lookout,  714. 

(3)  Condition    of     Crossing    and 

Gates,  714. 

(4)  Operating  Hand  Car,  714. 

(5)  Contributory  Negligence,  714. 

(a)  Duty  to  Stop,  Look  and 

Listen,  714. 

(b)  Crossing    in    Front    of 

Approaching       Train, 
714. 

(6)  Actions,  714. 

(a)  Evidence,  714. 

aa.  Weight  and  Suf- 
ficiency, 714. 

(b)  Questions  for  Jury,  715. 

(c)  Questions  for  Court,  715. 

b.  Licensees  and  Trespassers  on  Right 

of  Way,  715. 

(1)  Liability,  715. 

(2)  Actions,  716. 

Adverse   possession   of  right  of  way,  see 

Adverse  Possession,  28. 
Removal  of  weeds,  see  Agriculture,  1,  4. 
Duties  toward  passengers,  see  Carriers  of 

Passengers,  15-46. 
Ejectment  to  oust  tracks,  see  Ejectment, 

2,3. 
Compensation    in    condemnation   for   road, 

see  Eminent  Domain,  36. 
Liability  for  loss  by  fire,  see  Fires,  6-16. 
Statutory  liability  for  fires,  see  Fires,  14- 

16. 
State  regulation  of  crossings,  validity,  see 

Interstate  Commerce,  9. 
Eight-hour  day,  see  Labor  Laws,  19-22. 
Duties  as  to  safety  of  cars  and  premises, 

see  Master  and  Servant,  11-17. 
Duties  as  to  safety  of  appliances  and  ma 

chinery,     see  '  Master    and    Servant, 

18-20. 


RAILROADS. 


707 


Application   of  Employers'   Liability  Act, 

see  Master  and  Servant,  41. 
Employee  of  interstate  road  as  within  Fed- 
eral   Employers'    Liability    Act,    see 

Master  and  Servant,  60. 
Power  of  trustees  to  release  mortgage,  see 

Mortgages  and  Deeds  of  Trust,  22. 
City's  right  to  build  railway  jointly  with 

company,  see  Municipal  Corporations, 

42. 
Prescriptive  easement  over  right  of  way, 

see  Prescription,  5. 
Railroad  police,  see  Public  OflB.cers,  29. 
Assessment    and    taxation,    see    Taxation, 

53-62. 
Special   assessment   of  right   of  way,   see 

Taxation,   121,  122. 
Valuation  under  Foreign  Corporation  Tax 

Act,  see  Taxation,  165-169. 
Contract  for  use  of  right  of  way  for  poles, 

see  Telegraphs  and  Telephones,  6,  7. 
Liability   for  flood   by  embankment,    see 

Waters  and  Watercourses,  31-38, 

1.     CONSTRUCTION  OF  CHARTER. 

1.  Implied  Powers.  The  omission  of  a 
particular  power  from  those  enumerated 
in  the  charter  of  a  railroad  is  a  prohibi- 
tion against  its  exercise,  unless  there  is 
an  imperative  implication  to  the  contrary. 
Connellsville,  etc.  R.  Co.  v.  Markleton 
Hotel  Co.  (Pa.)  1916E-1213. 

2.     RAILROAD   COMTVnSSIONS. 
a.     Nature,  Powers  and  Proceedings. 

2.  Power  to  Regulate  Rates — Validity  of 
Grant.  The  111.  Public  Utilities  Act,  pro- 
vidinor  for  the  hearing  of  rate  cases  by  the 
public  utilities  commission,  is  not  invalid 
as  depriving  public  utilities  of  their  prop- 
erty without  due  process  of  law;  the  per- 
sons affected  by  the  hearings  being  given 
notice  and  opportunity  to  be  heard.  State 
Public  Utilities  Com.  v.  Chicago,  etc.  R.  Co. 

(111.)  1917C-50.  (Annotated.) 

3.  The  state  may  regulate  the  fares  and 
rates  which  may  be  charged  by  railroads 
and  other  carriers,  and  such  power  may  be 
lawfully  delegated  by  the  legislature  to  an 
administrative  commission,  as  the  public 
utilities  commission.  State  Public  Utili- 
ties Com.  V.  Chicago,  etc.  R.  Co.  (111.) 
1917C-50.  (Annotated.) 

4.  Section  86  declares  the  111.  act  shall 
not  take  effect  until  January  1,  1914,  while 
section  72  provides  that  when  complaint 
has  been  made  to  the  commission  concern- 
ing any  rate,  and  the  commissioners  found 
after  hearing  that  a  public  utility  has 
charged  an  excessive  amount,  the  commis- 
sion may  order  reparation  to  be  made.  By 
schedules  filed  December  31,  1913,  the  de- 
fendant street  railway  and  interurban  rail- 
way companies  increased  the  rates  which 
were  charged  on  July  1st  of  that  year. 
These  rates  were  put  into  effect  December 
31,  1913,  and  filed  subsequently  with   the 


public  utilities  commission.  It  is  held 
that  on  complaint  against  the  rates  the 
commission  could  not,  pending  determina- 
tion of  the  question,  prohibit  defendant 
from  charging  rates  in  excess  of  those 
charged  July  1,  1913,  for  the  statute  did 
not  intend  public  utilities  to  continue  such 
rates  and  a  remedy  for  unjust  rates  was 
lurnished.  State  Public  Utilities  Com.  v. 
Chicago,  etc.  R.  Co.  (111.)  1917C-50. 

5.  Regulatory  Power  In  General.  The 
franchises,  rights  and  privileges  of  a  rail- 
road company  are  granted  because  of  the 
public  nature  of  the  business  carried  on 
by  it;  the  resulting  benefits  to  the  public  • 
constitute  the  consideration  of  the  grant, 
and  the  company  while  exercising  such 
rights  and  franchises  is  subject  as  to  its 
state  business  to  state  regulation,  either 
by  direct  statutory  provision  or  by  an  ad- 
ministrative body  authorized  to  act.  Hock- 
ing Vallev  R.  Co.  v.  Public  Utilities  Com- 
mission (Ohio)  1917B-1154. 

6.  Requiring  Particular  Class  of  Service. 
An  order  of  the  public  utilities  commis- 
sion requiring  a  railroad  company  to  con- 
tinue an  interurban  service  on  a  portion 
of  its  road,  under  the  circumstances  of 
this  case,  is  not  unlawful  or  unreasonable 
and  is  not  a  denial  of  due  process  of  law 
or  the  equal  protection  of  the  laws  or  a 
taking  of  property  without  compensation. 
Hocking  Valley  R.  Co.  v.  Public  Utilities 
Commission  (Ohio)  1917B-1154. 

(Annotated.) 

7.  Compelling  Continuance  of  Service. 
In  a  proceeding  before  the  public  utilities 
commission  to  compel  a  railroad  company 
to  continue,  on  a  portion  of  its  road,  an 
interurban  service  which  it  has  volun- 
tarily established  and  maintained  for 
many  years,  during  which  the  personal 
and  business  relations  of  the  people  of  the 
communities  served,  relying  on  the  con- 
tinuance of  such  service,  have  become  ad- 
justed thereto,  the  burden  of  showing  a 
state  of  facts  which  justify  the  discon- 
tinuance of  the  service  is  on  the  company. 
Hocking  Valley  R.  Co.  -v.  Public  Utilities 
Commission  (Ohio)  1917B-1154. 

(Annotated.) 

8.  Regulation  of  Railroad  by  Commis- 
sion— Extent  of  Train  Service.  In  deter- 
mining whether  such  relief  shall  be 
granted,  the  earnings  and  cost  of  opera- 
tion of  branch  line  service  must  be  deter- 
mined as  near  as  possible,  and  where  it 
plainly  appears  that  the  cost  of  operating 
the  branch  line  with  separate  daily  pas- 
senger service  installed  greatly  exceeds 
the  railroad's  earnings  and  revenues  deriv- 
able from  the  operation  of  such  branch 
line,  the  carrier  is  prima  facie  within  the 
statutory  exception,  and  prima  facie  is  en- 
titled to  be  permitted  to  operate  a  daily 
mixed  passenger  and  freight  train.  In  tp 
Minneapolis,  etc.  R.  Co.  (N.  Dak.)  1917B- 
1205,  (Annotated.) 


708 


DIGEST. 

1016C— 1918B. 


9.  The  statute  granting  such  relief  has 
particular  application  to  branch  lines,  and 
the  revenues  from  service  and  cost  of 
branch  line  service  only  must  be  consid- 
ered. The  petitioner  cannot  be  compelled 
to  operate  a  separate  daily  passenger  ser- 
vice on  this  branch  line  at  a  great  loss, 
and  be  compelled  to  make  up  such  loss 
rrom  its  main  line  revenues.  The  intent 
of  the  statute  is  that  the  revenues  from 
branch  lines  shall  justify  a  daily  passenger 
service  independent  of  whether  the  rail- 
road as  a  whole  within  the  state  is  return- 
ing a  fair  dividend  on  its  investment.  In 
re  Minneapolis,  etc.  E.  Co.  (N.  Dak.) 
1917B-1205.  (Annotated.) 

10.  That  the  right  of  the  railroad  to 
apply  to  the  commission  to  be  relieved 
from  maintaining  a  separate  daily  pas- 
senger service  (by  installation  of  a  daily 
mixed  passenger  and  freight  service  on 
branch  lines)  is  permissive  in  language, 
and  not  a  positive  direction  to  the  board, 
and  vests  in  it  a  discretion,  does  not  nega- 
tive a  right  of  appeal.  In  re  Minneapolis, 
etc.  R.  Co.  (N.  Dak.)  1917B-1205. 

11.  The  proof  discloses  that  the  G.  N. 
Grosby-Berthold  line  furnishes  ample  pas- 
senger service  for  four-fifths  of  the  length 
of  this  "Soo  branch  line.  A  separate  pas- 
senger service  should  not  be  forced  for  the 
convenience  alone  of  the  town  of  Ambrose 
and  vicinitv,  when  to  do  so  will  cause  an 
additional  annual  expenditure  of  $14,000, 
added  to  a  loss  already  sustained  under 
mixed  train  service,  the  revenues  being 
inadequate  to  meet  even  the  expenses  of  a 
mixed  train  service.  In  re  Minneapolis, 
etc.  R.  Co.  (N.  Dak.)   1917B-1205. 

(Annotated.) 

12.  Order  Requiring  Sunday  Train  Ser- 
vice—Validity. The  ordeit  of  the  commis- 
sion reviewed  in  this  case  is  an  order  com- 
pelling the  operation  of  a  Sunday  local 
day  passenger  train.  The  trial  court  de- 
clined to  pass  upon  the  question  of  pecu- 
niary loss  or  profit.  The  order  of  the  com- 
mission being  by  statute  prima  facie  rea- 
sonable, and  the  burden  being  on  the 
appellant  upon  all  issues  raised  by  the 
appeal,  we  are  obliged  to  assume  that  the 
order  did  not  impose  a  financial  burden, 
but,  the  compulsion  of  Sunday  labor  and 
of  the  operation  of  Sunday  local  passenger 
trains  is  contrary  to  the  legislative  policy 
of  the  state,  and  while  under  some  circum- 
stances the  operation  of  Sunday  trains 
may  be  made  compulsory,  under  the  facts 
of  this  case  the  judgment  of  the  trial 
court  holding  this  order  to  be  unreason- 
able and  void  must  be  sustained.  State  v. 
Groat  Northern  R.  Co.  (Minn.)  1917B- 
1201.  (Annotated.) 

13.  Pecuniary  loss  or  profit  to  the  car- 
rier is  important,  but  not  the  only  crite- 
rion. The  question  of  reasonableness  is  to 
be  determined  by  a  consideration  of  the 
interests  both  of  the  carrier  and  of  the 


public.    State  v.   Great  Northern   R.   Co. 
(Minn.)  1917B-1201. 

14.  Jurisdiction  —  Failure  to  Exercise 
Consistently.  The  jurisdiction  of  the  pub- 
lic utilities  commission  of  the  District  of 
Columbia  over  a  public  utility  under  the 
act  of  March  4,  1913  (37  Stat,  at  L.  938, 
c.  150),  §  8,  cannot  be  defeated  because 
such  jurisdiction  has  not  been  assumed 
over  other  similar  concerns,  where  the  ex- 
cuse offered  by  the  commission  is  that  it 
did  not  consider  that  the  omitted  concerns 
did  business  sufficiently  large  in  volume  to 
come  within  the  meaning  of  the  act,  and 
there  is  nothing  to  impeach  the  good  faith 
of  the  commissions,  or  to  give  the  concern 
included  just  cause  for  complaint.  Termi- 
nal Taxicab  Co.  v.  Kutz  (U.  S.)  1916D- 
765. 

15.  Power  of  Commission  —  Regulating 
Running  Time  of  Trains.  An  order  of  the 
public  service  commission,  forbidding  a 
railroad  company  to  delay  local  trains  to 
permit  the  passage  of  delayed  through 
trains,  is  unreasonable,  where  the  evidence 
shows  that  the  local  trains  are  never  de- 
layed more  than  10  minutes  and,  unless 
they  are  so  delayed,  the  through  trains  are 
delayed  more  than  half  an  hour.  North- 
ern Central  R.  Co.  v.  Laird  (Md.)  1916D- 
1030.  (Annotated.) 

16.  Regulation  of  Railroad  —  Requiring 
Sleeping  Car  Service.  Under  Laws  Mo. 
1913,  p.  556,  empowering  the  public  ser- 
vice commission  to  require  equipment  and. 
service  for  the  comfort  and  convenience  of 
passenger  transportation,  the  commission 
may  require  a  railroad  to  operate  sleeping 
cars.     State  v.  Atkinson  (Mo.)  1917E-987. 

(Annotated.) 

17.  Under  Laws  Mo.  1913,  p.  556,  au- 
thorizing the  public  service  commission  to 
require  service  for  the  comfort  and  con- 
venience of  passengers,  testimony  that  de- 
fendant railway  company  operated  its 
sleeping  car  service  for  thirty  years 
through  territory  increasing  in  population 
sustains  an  order  requiring  its  restoration 
for  a  year,  where  defendant  did  not  dis- 
close its  entire  earnings  from  the  aban- 
doned service.  State  v.  Atkinson  (Mo.) 
1917E-987.  (Annotated.) 

18.  An  order  of  the  public  service  com- 
mission requiring  Pullman  car  service  on 
a  branch  line  is  not  necessarily  unreason- 
able because  entailing  an  operating  loss  on 
the  branch  line  when  considered  alone,  and 
not  as  a  feeder  to  main  line  traffic.  State 
V.  Atkinson  (Mo.)  1917E-987. 

(Annotated.) 

19.  Effect  of  Order — Liability  of  Corpo- 
ration Obeying  Order.  Under  Vt.  P.  S. 
4544,  making  it  the  duty  of  the  public  ser- 
vice commission  to  determine  by  whom  its 
orders  shall  be  executed,  the  defendant 
railroad,  in  carrving  out  the  commission's 
plans  for  the  elimination  of  grade  cross- 


RAILROADS. 


709 


ings  on  its  tracks  and  in  constituting  farm 
crossings  for  the  use  of  plaintiff,  was  act- 
ing as  the  agent  selected  by  the  commis- 
sion; and  if  the  order  was  a  valid  exercise 
of  the  powers  of  the  commission,  it  re- 
lieves the  defendant  from  liability.  Say- 
ers  V.  Montpelier,  etc.  E.  Co.  (Vt.)  1918B- 
1050. 

20.  Jurisdiction  of  Commission — Aboli- 
tion of  Grade  Crossing — Incidental  Powers. 

Under  Vt.  P.  S.  4611,  giving  the  public 
service  commission  jurisdiction  in  all  mat- 
ters respecting  highway  grade  crossings, 
and  P.  S.  4544,  as  amended  by  Acts  1908, 
No.  108,  providing  that  on  petition  of  the 
selectmen  of  a  town,  within  which  a  pub- 
lic highway  crosses  a  railroad,  or  the  gen- 
eral manager  or  attorney  of  such  railroad 
alleging  that  public  safety  requires  an 
alteration  in  such  crossing,  and  praying 
that  the  same  may  be  ordered,  the  com- 
mission is  required  to  determine  what 
changes  if  any,  shall  be  made  and  by 
whom,  the  primary  object  of  the  statute 
being  to  provide  an  effectual  means  to  se- 
cure the  elimination  of  dangerous  highway 
crossings,  the  incidental  power  to  change 
the  location  of  an  existing  highway  is  ex- 
pressly conferred  upon  the  commission,  but 
is  to  be  exercised  as  a  mere  incident  of 
the  real  purpose  of  the  statute.  Sayers  v. 
Montpelier,  etc.  B.  Co.  (Vt.)  1918B-1050. 

(Annotated.) 

21.  The  authority  of  the  public  service 
commission  to  change  the  location  of  high- 
ways goes  no  further  than  to  order  such 
changes  as  are  necessary  and  fairly  inei- 
den-t  to  the  purpose  of  adapting  railroads 
and  public  highways  to  each  other  in  such 
a  manner  as  best  to  promote  the  safety 
and  convenience  of  the  traveling  public. 
Sayers  v.  Montpelier,  etc.  E.  Co.  (Vt.) 
1918B-1050.  (Annotated.) 

22.  The  power  of  the  public  service  com- 
mission to  change  the  location  of  high- 
ways, by  necessary  implication,  carries 
with  it  the  power  to  discontinue  the  por- 
tion that  occupied  the  old  location  and  to 
close  the  crossing  to  public  travel.  Sav- 
ers V.  Montpelier,  etc.  E.  Co.  (Vt.)  1918B- 
1050.  (Annotated.) 

23.  Wlien  the  change  in  the  location  of 
a  grade  crossing  deprives  one  of  the  bene- 
fits of  a  public  highway,  the  public  service 
commission  has  the  right  to  order  a  farm 
crossing  for  the  benefit  of  such  individual, 
to  the  end  that  their  power  in  that  regard 
may  be  effectual,  since  whatever  is  rea- 
sonably necessary  in  order  to  abolish  grade 
crossings,  or  fairly  may  be  regarded  as 
incidental  thereto,  is  within  the  jurisdic- 
tion of  the  commission.  Savers  v.  Mont- 
pelier, etc.  E.  Co.  (Vt.)  1918B-1050. 

(Annotated.) 

24.  Vt.  P.  S.  4549,  as  amended  by  Acts 
1908,  No.  108,  §  3,  expressly  confers  full 
authority  upon  the  public  service  commis- 
sion to  condemn  lands  and  award  damages 


in  a  proceeding  for  the  abolition  of  a 
grade  crossing.  Sayers  v.  Montpelier,  ete. 
E.  Co.  (Vt.)  1918B-1050.         (Annotated.) 

25.  Powers  of  Public  Service  Commis- 
sion. In  amending  the  statute  with  a 
view  to  conferring  full  authority  upon  the 
public  service  commission  to  condemn 
lands  and  award  damages,  proceedings  for 
the  abolition  of  grade  crossings,  it  was  not 
necessary  to  change  the  section  relating  to 
general  jurisdiction,  since  the  provision 
that  the  commission  shall  determine  what 
alterations,  changes,  or  removals  shall  be 
made  is  broad  enough  to  cover  the  loca- 
tion of  new  highways.  Sayers  v.  Mont- 
pelier, etc.  E.  Co.  (Vt.)  1918B-1050. 

(Annotated.) 

26.  Requiring  Station  at  Particular  Place 
— Reasonableness  of  Order.  In  proceed- 
ings for  injunction  against  enforcement  of 
railroad  commission's  orders  requiring  erec- 
tion of  station,  it  is  held  that  there  was 
evidence  to  sustain  chancellor's  decree  dis- 
approving orders  of  the  commission.  Mis- 
sissippi E.  Com.  V.  Mobile,  etc.  E.  Co. 
(Miss.)   1918B-828.  (Annotated.) 

27.  Regulation  of  Railroad  Rates  — 
Power  to  Require  Reduction  Pending  Ap- 
peal. 111.  Public  Utilities  Act  (Kurd's 
Rev.  St.  1915-16,  e.  Ilia),  §  32,  provides 
that  all  rates  and  charges  made,  demanded, 
or  received  by  any  public  utility,  or  by 
any  two  or  more  public  utilities,  shall  be 
just  and  reasonable,  while  section  33  pro- 
vides that  every  public  utility  to  file  with 
the  public  utilities  commission  and  keep 
open  to  public  inspection,  schedules  show- 
ing all  rates,  charges  and  classifications 
which  are  in  force  for  any  service  per- 
formed by  it  or  them,  and  that  such  rates, 
charges,  and  classifications  shall  not  with- 
out consent  of  the  commission  excged 
those  in  effect  on  July  1,  1913,  but  that 
the  commission  may  approve  or  fix  rates 
and  charges  in  excess  or  less  than  those 
shown  by  the  schedules.  Section  35  de- 
clares that  no  service  shall  be  rendered 
until  such  schedules  are  filed,  save  in  case 
of  emergency,  and  section  36,  that  no 
change  shall  be  made  by  any  public  util- 
ity, in  any  rate  mentioned  in  such  sched- 
ule, unless  the  commission  so  orders,  and 
that  no  change  shall  be  made  without 
good  cause  shown  and  a  finding  that  an 
increase  is  justified,  while  section  37  re- 
quires public  utilities  to  make  their 
charges  according  to  the  schedules  unless 
altered.  Sections  68  and  69  provide  for 
appeals  from  orders  of  the  commission. 
It  is  held  that  the  commission  cannot, 
where  rates  filed  with  it  are  attacked,  re- 
quire a  public  utility  to  charge  a  less  rate, 
pending  its  determination,  whether  the 
rates  attacked  are  unjust  and  unreason- 
able. State  Public  Utilities  Com.  v. 
Chicago,  etc.  E.  Co.  (111.)  19170-50. 

28.  Regulation  of  Rates — Determination 
of  Reasonableness.     Whether  rates  estab- 


110 


DIGEST. 

1916C— 1918B. 


lished  bj  street  or  interurban  railway  com- 
panies before  the  public  utilities  act  went 
into  effect  were  just  and  reasonable  is  a 
question  for  determination  of  the  commis- 
sion. State  Public  Utilities  Com.  t. 
Chicago,  etc.  R.  Co.  (111.)  1917C-oO. 

29.  Effect  of  Maximum  Fare  Law.  The 
111.  Maximum  Fare  Law  of  1907  (Laws 
1907-08,  p.  476),  fixing  the  reasonable 
miximum  passenger  fare  of  railroad  com- 
panies at  two  centa  per  mile,  enacted  un- 
der Const,  art.  11,  §  12,  authorizing  an 
enactment  of  laws  establishing  reasonable 
maximum  rates  or  charges  for  transporta- 
tion by  railroad  companies  which  was  ex- 
pressly saved  from  repeal  by  public  utili- 
ties act,  §  41,  does  not  deprive  the  public 
utilities  commission  of  power  to  fix  a  less 
passenger  rate  for  a  company  organized 
under  the  railroad  act,  the  constitution 
and  the  maximum  fare  law  merely  pre- 
scribing the  greatest  rate  which  might  be 
charged.  State  Public  Utilities  Com.  v. 
Chicago,  etc.  R.  Co.' (111.)  1917C-50. 

30.  Review  of  Findings.  In  proceedings 
before  the  public  service  commission  by  a 
telegraph  company  to  compel  a  traction 
company  to  remove  its  high-tension  power 
line  from  dangerous  proximity  to  the  tele- 
graph company's  wires,  the  findings  of  the 
commission,  that  both  parties  were  corpo- 
rations subject  to  its  supervision,^  under 
Vt.  Acts  1908,  No.  116,  and  that  their  lines 
were  used  in  service  to  the  public  in  and 
about  their  business  carried  on  in  the 
state,  are  determinations  of  mixed  ques- 
tions of  law  and  fact,  and  conclusive  on 
appeal  as  showing  that  the  traction  com- 
pany fell  within  the  provisions  of  section 
3  of  the  act.  Western  Union  Tel.  Co.  v. 
Burlington  Traction  Co.  (Vt.)   1918B-841. 

31.  Requiring  Separation  of  Electric 
Wires.  Where  a  traction  company  con- 
structed its  high-tension  power  line^  on  its 
right  of  way  in  dangerous  proximity  to 
the  wires  of  a  telegraph  company,  though 
the  telegraph  company's  lines  needed  some 
repair  by  way  of  new  poles,  the  order  of 
the  public  service  commission,  made  on 
petition  of  the  telegraph  company,  requir- 
ing that  the  traction  company  remove  its 
high-tension  power  line  to  a  minimum  dis- 
tance of  30  feet,  is  not  an  unreasonable 
exercise  of  the  commission's  authority. 
Western  Union  Tel.  Co.  v.  Burlington  Trac- 
tion Co.  (Vt.)  1918B-841.         (Annotated.) 

32.  Vt.  Acts  1908,  No.  116,  §  9,  giving 
the  public  service  commission  jurisdiction 
to  enter  judgment  and  make  orders  or  de- 
crees in  all  matters  respecting  the  manner 
-of  operating  and  conducting  any  business, 
subject  to  its  supervision  under  the  act.  so 
as  to  be  reasonable  and  expedient  and  to 
promote  the  safety,  convenience,  and  ac- 
commodation of  the  public,  and  respecting 
the  sufficiency  and  maintenance  of  proper 
eystems,  plants,  conduits,  appliances,  wires, 
and    exchanges,     and,    when    the     public 


safety  and  welfare  require,  respecting  tbe 
location  of  such  wires  or  any  portion 
thereof  underground,  confers  jurisdiction 
on  the  commission  to  hear  and  determine 
proceedings  by  a  telegraph  company 
against  a  traction  company  to  compel  re- 
moval of  power  wires  from  dangerous 
proximity  to  telegraph  wires.  Western 
Union  Tel.  Co.  v.  Burlington  Traction  Co. 
(Vt.)    1918B-841.       ,  (Annotated.) 

33.  In  proceedings  before  the  oublic  ser- 
vice commission  by  a  telegraph  company 
to  compel  a  traction  company  to  remove 
its  power  wires  from  dangerous  proximity 
to  telegraph  wires,  where  the  traction  com- 
pany sought  to  base  any  claim  upyon  the 
intention  of  the  legislature  to  take  away 
by  its  charter  the  private  rights  of  indi- 
viduals or  the  telegraph  company,  another 
public  service  corporation,  the  burden  is 
with  the  traction  company  to  show  that 
such  an  intention  appeared  by  express 
words  or  necessary  implication  in  its  char- 
ter. Western  Union  Tel.  Co.  v.  Burling- 
ton Traction  Co.  (Vt.)  1918B-841. 

(Annotated.) 

34.  Where  the  public  service  commis- 
sion determined  the  necessity  of  an  elimi- 
nation of  the  danger  in  the  close  proxim- 
ity of  a  traction  company's  high-tension 
power  wires  and  a  telegraph  company's 
wires,  it  is  within  the  province  of  the 
commission  to  determine  the  manner  in 
which  the  elimination  could  best  be  ac- 
complished, with  a  view  to  the  operation 
of  both  lines  and  to  the  public  safety. 
Western  Union  Tel.  Co.  v.  Burlington 
Traction  Co.  (Vt.)  1918B-841. 

(Annotated.) 

35.  An  order  of  the  public  service  com- 
mission, made  on  petition  of  a  telegraph 
company,  requiring  a  traction  company, 
owning  its  right  of  way,  to  remove  its 
high-tension  power  wires  from  dangerous 
proximity  to  telegraph  wires,  does  not  ex- 
ceed the  constitutional  powers  of  the  com- 
mission as  being  confiscatory  of  the  trac- 
tion company's  property  and  a  taking 
without  "due  process  of  law,"  in  violation 
of  Federal  Const.  Amends.  5  and  14;  pri- 
vate ownership  of  its  right  of  way  not 
giving  the  traction  company  the  right  to 
erect  its  high-tension  line  thereon  with- 
out regard  to  the  rule  restricting  every 
man  against  using  his  property  to  the 
prejudice  of  others.  Western  Union  Tel. 
Co.  V.  Burlington  Traction  Co.  (Vt.) 
1918B-841.  (Annotated.) 

Notes. 

Power  of  public  service  commission  to 
regulate  running  time  of  trains.  1916D- 
1034. 

Validity  of  order  of  public  service  com- 
mission requiring  running  of  Sunday  train. 
1917B-1205. 

Validity  of  regulation  of  extent  of  train 
service  to'be  furnished  by  railroad.  1917B- 
1217. 


RAILROADS. 


711 


Validity  of  statute  conferring  on  com- 
mission power  to  fix  rates  for  public  ser- 
vice  corporations.     1917C-57. 

b.     Collateral  Attack  on  Proceedings. 

36.  Collateral  Attack  on  Order.  Within 
certain  limitations,  one  may  attack  an 
order  of  the  public  service  commission 
abolishing  a  grade  crossing,  collaterally, 
notwithstanding  he  was  a  party  and  could 
liave  had  an  appeal.  Sayers  v.  Mont- 
pelier,  etc.  E.  Co.  (Vt.)  1918B-1050. 

c.    Review  of  Acts. 

37.  Beview  of  Statute  Creating.  A 
«ourt  authorized  to  hear  an  appeal  from 
a  public  service  commissioner  "upon  any 
question  involving  the  jurisdiction  of  the 
commission"  cannot  on  such  an  appeal  de- 
termine whether  the  act  creating  the  com- 
mission is  valid.  Winnipeg  Electric  R.  Co. 
V.  Winnipeg  (Man.)  1916E-181. 

38.  Review  of  Public  Service  Commis- 
sion. Upon  application  to  the  court  to  re- 
strain the  execution  of  an  order  of  the 
public  service  commission  fixing  railroad 
rates,  the  power  of  the  court  is  limited  to 
the  determination  of  the  question  whether 
the  rates  fixed  are  unreasonable  or  unlaw- 
ful, which  must  be  clearly  made  to  appear 
before  the  court  may  restrain  the  execu- 
tion of  the  order,  since  a  court  under  the 
guise  of  exerting  judicial  power  may  not 
usurp  administrative  functions  by  set- 
ting aside  an  administrative  order  upon 
its  own  ideas  as  to  whether  the  adminis- 
trative power  was  wisely  exercised.  Penn- 
sylvania R.  Co.  V.  Towers  (Md.)  1917B- 
1144. 

39.  Order  of  Commission  Reversed.     The 

order  and  judgment  appealed  from  are  re- 
versed. Since  trial,  this  line  has  been  ex- 
tended into  Montana,  and  questions  of 
interstate  commerce  may  now  be  involved, 
which  conditions  will  be  taken  into  con- 
sideration in  future  proceedings  had  here- 
in. In  re  Minneapolis,  etc.  R.  Co. 
(N.  Dak.)   1917B-1205. 

40.  That  the  subject-matter  is  legisla- 
tive or  administrative  does  not  render  a 
statute  unconstitutional  authorizing  a  re- 
view of  the  action  of  the  board  in  the 
courts  on  an  appeal  to  them.  In  re  Min- 
neapolis, etc.  R.  Co.  (N.  Dak.)  1917B- 
1205. 

41.  Appeal  from  Order.  The  board  of 
commissioners  of  railroads  of  this  state 
ordered  a  separate  daily  passenger  service 
to  be  installed  on  the  Ambrose-Flaxton 
branch  of  the  appellant  railway  company, 
which  appealed  to  the  district  court  where 
the  board's  decision  was  aflSrmed,  and  it 
appeals  to  this  court,  alleging  that  the 
findings  are  insufficient  to  support  the 
judgment  of  the  district  court.  The 
board's  order  was  a  denial  of  the  rail- 
road's   application    to    be    relieved   under 


c.  200,  N.  Dak.  Sess.  Laws  1907,  Comp. 
Laws  1913,  §§  4789-4795,  from  running  a 
daily  passenger  service,  which  had  been 
ordered  by  the  board.  The  board  denins 
the  right  of  the  railroad  to  appeal,  assert- 
ing that  its  order  is  final  and  that  a  stat- 
ute granting  a  right  of  appeal  would  be 
unconstitutional  because  administrative, 
instead  of  judicial,  functions  are  con- 
cerned. Since  the  decision  below  was 
made,  this  branch  line  has  been  extended 
into  Montana.  Both  parties  request  a  de- 
cision on  the  merits  and  that  the  case  not 
be  treated  as  moot.  Held: — Though  c.  200, 
Sess.  Laws  1907,  Comp.  Laws  1913,  §§  4789- 
4795,  did  not  expressly  grant  an  appeal 
to  the  courts,  yet  as  it  is  in  pari  materia 
with  similar  earlier  statutes  in  themselves 
granting  and  contemplating  generally  a 
right  of  appeal  from  decisions  of  the 
board  to  the  courts,  a  right  of  appeal 
exists  as  to  the  matters  embraced  in  the 
statute  in  question.  In  re  Minneapolis, 
etc.  R.  Co.  (N.  Dak.)  1917B-1205. 

42.  Beview  of  Order.  Under  Md.  Laws 
1910,  c.  180,  §§  11,  43.  providing  that  a 
railroad  company  aggrieved  by  an  order 
of  the  public  service  commission  may  in- 
stitute proceedings  to  set  aside  such  order 
on  the  ground  that  it  is  unreasonable  or 
unlawful,  an  unreasonable  order  is  an  un- 
lawful one,  and  it  is  the  duty  of  the  court 
to  consider  its  reasonableness.  Northern 
Central  R.  Co.  v.  Laird  (Md.)  1916D-1030. 

43.  Judicial  Review,  Where  the  plain- 
tiff, who  was  a  party  to  proceedings  be- 
fore the  public  service  commission  for  the 
abolition  of  grade  crossings,  acquiesced 
therein  to  the  extent  of  accepting  the 
commissioners'  award  of  land  damages 
and  agreeing  to  accept  the  old  highway 
crossing  as  a  farm  crossing  for  the  exclu- 
sive use  of  his  premises,  primary  jurisdic- 
tion over  his  petition  to  have  the  farm 
crossing  changed  is  in  the  public  service 
commission,  and  not  a  court  of  chancery, 
which  has  no  power  to  eliminate  grade 
crossings  or  locate  highways.  Savers  v. 
Montpelier,  etc.  R.  Co.  (Vt.)   1918B-1050. 

44.  Under  Vt.  Acts  1908,  No.  108,  §  4, 
providing  that  any  person  aggrieved  by 
an  order  of  the  public  service  commission 
in  proceedings  for  the  abolition  of  grade 
crossings,  who  was  a  party  to  such  pro- 
ceedings, may  appeal  to  the  supreme  court 
in  the  same  manner  as  provided  in  P.  S, 
§  4599,  an  appeal  by  the  petitioner,  if  dis- 
Fatisfied  with  the  action  of  the  commission 
on  his  petition  to  determine  the  location 
of  a  farm  crossing  and  substituting  an 
overpass,  will  preserve  all  his  rights.  Say- 
ers V.  Montpelier,  etc.  R.  Co  (Vt.)  1918B- 
1050. 

45.  Remedy  for  Review  —  Injunction. 
Injunction  by  railroad  company  objecting 
to  reasonableness  of  railroad  commission's 
orders,  requiring  erection  of  a  new  dppot, 
is  a  proper  remedy,  since  the  commission 
in  making  such  order  was  acting  in  its 


712 


DIGEST. 

1916C— 1918B. 


legislative  or  administrative  capacity,  and 
not  in  a  judicial  or  quasi  judicial  capac- 
ity. Mississippi  R.  Com.  v.  Mobile,  etc. 
B.  Co.  (Miss.)  1918B-828. 

46.  Presumption  in  Favor  of  Order.  In 
view  of  Miss.  Code  1906,  §  4836,  providing 
that  the  railroad  commission's  findings 
shall  be  prima  facie  evidence  that  their 
determination  was  right  and  proper,  one 
who  attacks  such  order  has  the  burden  of 
proving  its  unreasonableness  "by  clear 
and  satisfactory  evidence."  Mississippi  R. 
Com.  V.  Mobile,  etc.  R.  Co.  (Miss.)  1918B- 
828. 

47.  Decree  Disapproving  Order — Beview 
by  Appellate  Court.  A  chancellor's  de- 
cree, disapproving  railroad  commission's 
orders,  requiring  erection  of  railroad  de- 
pot, will  be  conclusive  on  appeal,  where 
there  is  evidence  to  support  it,  such  de- 
cree being  considered  of  the.  same  force 
and  effect  as  other  chancery  decrees,  and 
the  appellate  court  in  such  cases  will  not 
retry  the  case.  Mississippi  R.  Com.  v. 
Mobile,  etc.  R.  Co.  (Miss.)  1918B-828. 

3.     STATUTORY  REGULATIONS, 
a.     As  to  Stations. 

48.  "Depot"— Meaning  of  Term.  Under 
Miss.  Code  1906,  §  4047,  making  it  unlaw- 
ful to  back  a  train  into  or  along  a  pas- 
senger depot,  or  within  fifty  feet  thereof, 
at  more  than  three  miles  an  hour,  without 
warning,  and  providing  for  damages  for 
every  injury  inflicted,  etc.,  the  words  "pas- 
senger depot"  include  not  only  the  build- 
ing at  the  station,  but  also  all  passage- 
ways, walkways,  or  platforms  prepared  for 
passengers  in  boarding  and  leaving  trains, 
80  that,  where  a  backing  engine  killed  one 
opposite  a  platform  extending  from  the 
depot  building  along  the  track  for  more 
than  181  feet,  the  railroad  company  is 
liable.  Illinois  Central  R.  Co.  v.  Causey 
(Miss.)  1917A-1281.  (Annotated.) 

49.  Backing  Train  Into  Depot  —  Con- 
struction of  Statute.  Miss.  Code  1906, 
§  4047,  forbidding  a  railroad  to  back  a 
train  or  engine  into  or  along  a  passenger 
depot,  and  within  fifty  feet  thereof,  at 
more  than  three  miles  an  hour,  without 
warning,  was  intended  to  preserve  and 
protect  human  life,  and  should  be  given 
full  scope  in  accordance  with  its  plain 
meaning,  not  restricted  bv  strained  inter- 
pretation. Illinois  Central  B.  Co.  v.  Causey 
(Miss.)  1917A-1281. 


Legal 
1283. 


Note, 
meaning     of 


"depot."     1917A- 


b.     Crossings. 

50.  Begulatlon — Effect  of  Open  Gates  at 
Crossing — Scope  of  Act.  N.  J.  P.  L.  1909, 
p.  54.  provides  that,  whenever  any  rail- 
road  company   maintains   safety   gates  at 


a  crossing  and  a  person  is  struck  by  a 
locomotive  while  attempting  to  cross  the 
tracks  when  the  gates  are  not  down,  the 
question  whether  he  was  guilty  of  con- 
tributory negligence  shall  be  determined 
by  the  jury  in  all  actions  to  recover  dam- 
ages therefor.  It  is  held  that  the  act  is 
not  limited  to  crossings  in  cities,  but  ap- 
plies as  well  to  injuries  at  crossings  partly 
in  a  township  and  partly  in  a  borough, 
where  the  railroad  comoany  had  estab- 
lished crossinpT  gates.  Brown  v.  Erie  B. 
Co.  (N.  J.)  1917C-496. 

51.  Crossing  Gates — Hours  of  Operation 
of  Gates — Posting  Notice.  N.  J.  P.  L. 
1909,  p.  13/,  provides  that  whenever  a 
railroad  has  installed  safety  gates  at  a 
crossing  any  person  approaching  the  cross- 
ing shall,  during  such  hours  as  posted  no- 
tice at  the  crossing  shall  specify,  be  en- 
titled to  assume  tliat  such  gates  are  in 
proper  order  and  duly  operated,  unless  a 
written  notice  bearing  the  inscription  "out 
of  order"  be  posted,  and  in  any  action 
brought  for  injuries  to  a  person  at  such 
crossing  plaintiff  shall  not  be  barred  be- 
cause of  a  failure  to  stop,  look,  and  listen 
before  crossing.  It  is  held  that,  where  a 
railroad  comijany  had  provided  gates  at 
a  grade  crossing,  that  it  had  not  posted 
any  notice  specifying  at  what  hours  the 
gates  would  be  operated  did  not  render 
the  section  inapplicable,  and  the  company, 
not  having  posted  such  notice,  was  es- 
topped to  complain  that  a  person  passing 
over  the  tracks  when  the  gates  were  up 
was  not  entitled  to  assume  that  they  were 
in  good  order  and  would  be  properly  oper- 
ated. Brown  v.  Erie  R.  Co.  (N.  J.)  1917C- 
496. 

c.    Lookout  Law. 

52.  Lookout  for  Trespassers.  Under  the 
lookout  law  requiring  train  operatives  to 
keep  a  lookout  for  trespassers,  they,  dis- 
covering a  light  ahead  on  the  track,  should 
use  care  in  approaching  it.  Chicago,  etc. 
R.  Co.  V.  Gunn  (Ark.)  1916E-648. 

53.  Operation  of  Hand  Car — Liability. 
Kirby's  Ark.  Dig.  §  6607,  providing  that 
all  persons  jrunning  trains  in  the  state 
shall  keep  a  constant  lookout  for  persons 
and  property  on  the  track  and  that  rail- 
road companies  shall  be  liable  for  any 
damage  done  to  any  person  or  property 
by  reason  of  failure  to  keep  such  lookout, 
and  imposing  on  such  companies  the  bur- 
den of  showing  that  the  duty  was  per- 
formed, is  limited  to  the  operation  of 
trains  as  such,  and  does  not  apply  to  the 
operation  on  the  track  of  a  hand  car  be- 
longing to  the  railroad  company.  St. 
Louis  Southwestern  R.  Co.  v.  Mitchell 
(Ark.)  1916E-317.  (Annotated.) 

4.     RIGHTS,  POWERS  AND  DUTIES, 
a.     Station  Grounds. 

54.  Grant  of  Exclusive  Privileges  on 
Depot  Grounds — Validity.    A  railway  com- 


RAmROADS. 


713 


pany  is  not.  prohibited  by  sections  7,  8, 
and  9,  chapter  9,  W.  Va.  Acts  1913,  or 
by  any  rule  or  principle  of  the  common 
law  from  granting  to  a  local  transfer  com- 
pany, in  good  faith  and  for  public  con- 
venience, the  exclusive  privilege  of  occu- 
pying a  portion  of  its  station  platform 
and  ground  tor  the  purpose  of  soliciting 
patronage  in  the  business  of  transferring 
through  passengers  and  baggage,  arriving 
on  its  trains,  to  the  station  of  another  rail- 
way company.  The  rights  of  a  competing 
transfer  company  are  not  thereby  vio- 
lated. Eose  v.  Public  Service  Commission 
<W.  Va.)  1918A-700.  (Annotated.) 

Notes. 

Eight  of  railroad  company  to  grant  ex- 
■clusive  privileges  on  depot  grounds. 
1918A-702. 

Duty  of  railroad  company  to  block 
frogs,  switches  and  guard  rails.  1916E— 
€42. 

b.     Permission     to     Maintain     Telegraph 
Wires. 

55.  A  railroad  might  properly  empower 
a,  telegraph  company  to  construct  and 
maintain  a  line  over  its  right  of  way  for 
the  joint  use  of  the  railroad  and  company, 
preference  being  given  to  the  railroad's 
nse  in  the  moving  of  trains,  as  the  exer- 
cise of  such  right  was  in  furtherance  of 
the  duty  to  move  its  trains.  Cobb  v. 
Western  Union  Tel.  Co.  (Vt.)  1918B-1156, 

c.     Spur  Tracks. 

56.  power  of  Employer  to  Remove  Dan- 
ger. A  railroad,  from  which  a  switch 
track  ran  into  the  yard  of  a  manufactur- 
ing plant  so  near  a  post  that  the  opera- 
tion of  trains  was  dangerous  to  the  road's 
employees,  could  require  the  owners  of  the 
plant  to  remove  the  post,  or  refuse,  until 
the  change,  to  do  switching.  Devine  v. 
Delano  (Dl.)   1918A-689. 

d.     Duty  to  Operate  and  Maintain  Eoad. 

57.  Abandonment  of  Functions.  A  "rail- 
road" is  a  public  service  transportation 
corporation,  all  of  whose  operating  prop- 
erty is  devoted  to  the  public  service  of 
transportation  over  lines  and  terminals 
having  a  fixed  location,  as  other  real  prop- 
erty, and  whose  operating  personal  prop- 
ertv  is  fixed  in  location  and  use  in  the 
sense  that  it  must  be  used  in  connection 
with  and  upon  its  lines  and  terminals;  it 
cannot  abandon  its  duty  to  serve  the  pub- 
lie,  nor  dispose  of  its  real  or  personal 
property  so  as  to  cause  a  discontinuance 
of  such  service,  but  is  bound  to  maintain 
it,  and  .incidentally  to  maintain  an  organ- 
ized entity  necessarily  consisting  of  equip- 
ment and  operating  property  such  as  will 
make  such  public  service  possible.  North- 
ern Pacific  B.  Co.  V.  State  (Wash.)  1916E- 
1166. 


5.    EIGHT  OP  WAT. 

58.  That  by  Mo.  Const,  art.  12,  §  14,  rail- 
roads are  made  "public  highways"  does 
not  nullify  the  provisions  of  Const,  art. 
2,  §  21,  which  forbids  the  taking  of  pri- 
vate property  for  public  use  without  just 
compensation.  State  v.  Missouri,  etc.  E. 
Co.  (Mo.)  1916E-949. 

59.  Abandonment  of  Eight  of  Way.  An 
easement  so  held  may  be  lost  by  aban- 
donment, and  the  evidence  is  held  to  sup- 
port the  findings  of  the  trial  court  that 
there  was  an  intentional  abandonment  of 
the  right  of  way  involved  in  this  action. 
Norton  v.  Duluth  Transfer  E.  Co.  (Minn.) 
1916E-760. 

60.  Purchase  of  I>aiid  for  Bight  of  Way 
— ^Interest  Acquired.  The  conveyance  of 
a  strip  of  land  to  a  railroad  company  for 
a  right  of  way,  "to  have  and  to  hold  the 
same,  .  .  .  for  and  so  long  as  the  same  is 
used  for  railroad  purposes,"  held  to  con- 
vey an  easement  only,  and  not  the  abso- 
lute fee-simple  title.  Norton  v.  Duluth 
Transfer  E.  Co.  (Minn.)  1916E-760. 

(Annotated.) 
Note. 

Estate  or  interest  acquired  by  railroad 
in  land  purchased  for  right  of  way. 
1916E-763. 

6.     LIABILITY  FOE  FIEES. 

61.  Construction  —  Meaning  of  "Com- 
pany." Burns' Ind.  Ann.  St.  1914,  §§  5525a 
and  5525b,  imposing  liability  for  fire  upon 
all  railroad  corporations  and  providing 
that  term  "railroad  corporations"  shall  be 
deemed  to  mean  all  railroad  companies, 
and  individuals,  owning  or  operating  rail- 
roads, do  not  exclude  railroads  operated 
by  partnerships,  since  the  word  "com- 
panies" is  broad  enough  to  include  all  in- 
corporated associations,  and  partnerships, 
having  no  separate  legal  entity,  would 
also  be  included  under  the  term  "individ- 
uals." Pittsburgh,  etc.  E.  Co.  v.  Chappell 
(Ind.)   1918A-627. 

62.  Validity  of  Statute.  That  statute 
does  not  violate  the  provisions  of  Const. 
tJ.  S.  Amend.  14,  §  1,  or  Const.  Ind.  art.  1, 
§  23,  guaranteeing  the  privileges  and  im- 
munities of  citizens  and  the  equal  pro- 
tection of  the  laws,  because  it  does  not 
impose  the  same  liabilities  upon  factory 
owners  and  other  users  of  steam  powers, 
since  the  separate  classification  of  rail- 
roads for  the  im'iosition  of  such  liability 
is  within  the  police  power  of  the  state. 
Pittsburgh,  etc.  E.  .Co.  v.  Chanpell  (Ind.) 
1918A-627.  (Annotated.) 

63.  The  application  of  Burns'  Ind.  Ann, 
St.  1914,  §  5525a,  imposing  a  liability  upon 
railroad  companies  for  fires  caused  by 
their  locomotives  regardless  of  negligence, 
to  a  corporation  formed  under  Burns'  Ann. 
St.  1914,  §  5195,  cl.  8,  authorizing  it  to  use 
locomotives    propelled    by    the    power    of 


714 


steam  generatcct  by  fire,  at  the  time  when 
the  law  made  such  corporation  liable  only 
for  fires  caused  by  negligence,  does  not 
deprive  the  railroad  of  its  property  with- 
out due  process  of  law  contrary  to  Const. 
U.  S.  Amend.  14,  §  1,  or  BUI  of  Eight,  §  21, 
or  impair  the  obligation  of  a  contract  con- 
trary to  Const.  U.  S.  art.  1,  §  10,  or  Const. 
Ind.  art.  1,  §  24,  since  the  enactment  of 
that  statute  was  the  exercise  of  police 
power  and  the  legislature  cannot  contract 
away  its  police  power.  Pittsburgh,  etc. 
E.  Co.  V.  Chappell  (Ind.)  1918A-627. 

(Annotated.) 

Note. 
Validity  of  statute  making  railroad  ab- 
solutely liable  for  damage  by  fire.    1918A- 
632. 

7.    LIABILITY     FOR     INJUBIES     TO 
PEESONS. 

a.     Persons   at   Crossings. 

(1)     Duties  in  General. 

64.  Crossing  Accident— Degree  of  Care. 

The  duty  of  railroads  to  persons  crossing 
its  right  of  way  for  a  pathway  in  eities 
and  towns,  where  the  population  is  con- 
gested, and  the  public  have  been  accus- 
tomed to  use  the  tracks,  is  higher  than  in 
sparsely  settled  country  districts.  Imler 
V.  Northern  Pacific  E.  Co.  (Wash.)  1917A- 
933. 

65.  The  duty  of  a  railroad  to  persons 
crossing  its  tracks  at  points  established 
by  the  company  or  by  an  implied  license 
under  long  user  by  the  public  is  that  of 
strict  accountability,  since  it  is  necessary 
for  men  and  traffic  to  cross  railway  tracks 
in  the  pursuit  of  their  legitimate  under- 
takings and  conveniences  by  reason  where- 
of a  legal  right  to  so  cross  arises.  Imler 
V.  Northern  Pacific  R.  Co.  (Wash.)  1917A- 
933. 

(2)     Warning  of   Approaching  of  Trains 
and  Lookout. 

66.  Accident  at  Crossing  —  Failure  to 
Give  Signals.  Where  a  fast  train,  not 
sounding  its  bell  or  whistle,  collided  with 
ir. testate  in  a  wagon  on  a  misty  morning 
before  the  sun  had  risen,  the  crossing 
being  unprotected  except  for  an  automatic 
signal  bell  which  was  out  of  order  and 
was  ringing  continuously,  and  a  passing 
freight  train  made  considerable  noise,  the 
railroad  company  was  negligent.  Hamil- 
ton V.  Erie  E.  Co.  (N.  Y.)  1918A-928. 

Note. 
Running  train  without  headlight  as  neg- 
ligence towards  person  on  track  at  place 
other  than  crossing.     1918A-1181. 

(3)     Condition  of  Crossing  and  Gates. 

67.  Obstruction  in  Street — Statutory  Au- 
thority.    A  railroad  company  which  by  ex- 


DIGEST. 

1916C— 1918B. 

press  statutory  authority  maintains  a  gate 
post  at  a  particular  place  in  a  public  street 
is  not  bound  to  take  any  precautions  to 
prevent  persons  coming  in  collision  there- 
with, and  is  not  liable  to  one  injured  by 
running  into  the  post  in  the  dark.  Great 
Central  E.  Co.  ▼.  Hewlett  (Eng.)  1917A- 
997.  (Annotated.) 


(4)     Operating  Hand  Car. 

68.  Where  employees  of  a  railroad  com- 
pany operate  a  hand  car  along  the  track 
and  over  crossings,  they  are  bound  to  ex- 
ercise reasonable  care  in  so  doing,  whether 
commanded  to  do  so  by  statute  or  not. 
St.  Louis  Southwestern  R.  Co.  v.  Mitchell 
(Ark.)  1916E-317.  (Annotated.) 

Note. 

Liability  of  railroad  companv  for  in- 
juries caused  by  operation  of  hand  car. 
1916E-321. 

(5)     Contributory  Negligence, 
(a)     Duty  to  Stop,  Look  and  Listen. 

69.  In  an  action  for  injuries  to  plaintiff 
at  a  railroad  crossing  by  being  struck  by 
a  railroad  hand  car  it  is  proper  to  charge 
that  the  operatives  of  the  car  were  re- 
quired to  keep  a  lookout  for  persons  cross- 
ing the  track,  and  if  their  failure  to  use 
reasonable  care  in  stopping  the  car  con- 
stituted negligence  plaintiff  could  recover 
unless  he  himself  was  negligent  in  failing 
to  stop,  look,  and  listen  to  see  if  a  car 
or  train  was  coming,  under  the  rule  that  a 
railroad  track  is  a  warning  of  danger  and 
that  a  person  approaching  it  in  the  exer- 
cise of  ordinary  care  must  stop,  look,  and 
listen.  St.  Louis  Southwestern  E.  Co.  v. 
Mitchell  (Ark.)   1916E-317.     (Annotated.) 


(b) 


Crossing    in    Front  of    Approaching 
Train. 


70.  Crossing  Accident  —  Contributory 
Negligence  of  Driver.  The  driver  of  a 
private  conveyance  who  collides  with  a 
train  while  attempting  to  cross  a  railroad 
track  at  a  public  crossing  known  by  him 
to  be  a  very  dangerous  one  on  account  of 
complete  obstructions  to  his  view  of  the 
defendant's  train,  and  who,  knowing  that 
a  train  was  about  due,  concededly  did  not 
stop  and  listen  or  exercise  any  precaution 
to  ascertain  whether  a  train  was  approach- 
ing, except  to  look  around  as  he  was  driv- 
ing, when  he  knew  his  vision  of  the  track 
was  completely  obstructed,  is  guilty  of  con- 
tributory negligence  as  a  matter  of  law. 
Christopherson  v.  Minneapolis,  etc.  E.  Co. 
(N.  Dak.)   1916E-683. 

(6)     Actions. 

(a)     Evidence. 

(aa)     Weight    and   Sufficiency. 

71.  Railroad  Records  —  Weight.  In  an 
action  for  injuries  at  a  railroad  crossing. 


RAILROADS. 


715 


a  request  to  charge  that  if  the  jury  found 
that  the  original  record  of  the  movement 
of  the  railroad's  trains  had  been  proven 
they  must  accept  it  as  they  would  any 
other  written  evidence  made  at  the  time 
of  the  transaction,  and  unless  they  had 
reason  to  believe  that  the  record  had  been 
changed  or  tampered  with  they  should  find 
it  to  give  the  correct  movement  of  the 
trains,  is  properly  refused,  since  such  rec- 
ord did  not  import  verity  and  was  enti- 
tled to  no  greater  weight  than  other  sim- 
ilar records.  St.  Louis  Southwestern  B. 
Co.  V.  Mitchell  (Ark.)  1916E-317. 

72.  Evidence  Suf^cient  to  Authorize 
Eecovery,  In  view  of  the  lookout  law, 
evidence  in  an  action  for  the  killing  by  a 
train,  running  35  miles  an  hour,  with  a 
lantern  in  place  of  a  headlight,  the  head- 
light having  been  broken,  of  a  trespasser 
riding  on  a  speeder  held  to  authorize  a 
recovery;  the  light  on  the  speeder  having 
been  seen,  though  not  recognized  as  such, 
when  the  train  was  a  quarter  of  a  mile 
distant,  only  a  crossing  signal  having  been 
given,  and  no  effort  to  stop  the  train  hav- 
ing been  made  till  it  was  nearly  on  the 
speeder.  Chicago,  etc.  E.  Co.  v.  Gunn 
(Ark.)   1916E-6-i8. 

73.  Injury  to  Person  Near  Track — Object 
Falling  from  Train.  Plaintiff's  affirmative 
showing  that  he  stood  30  or  40  feet  away 
from  the  track  in  a  public  road  while  de- 
fendant's fast  mail  train  passed,  and  that 
a  flying  piece  of  coal  from  the  tender 
struck  him  on  the  foot  and  knocked  him 
down,  makes  a  case  to  which  the  doctrine 
of  res  ipsa  loquitur  applies.  St.  Louis'  etc. 
E.  Co.  V.  Armbrust  (Ark.)   1917D-537. 

(Annotated.) 

74.  In  such  case,  defendant's  evidence 
that  the  tender  was  properly  loaded  and 
that  the  coal  had  settled  since  it  had  been 
loaded  is  not  sufficient  to  overcome  plain- 
tiff's prima  facie  proof  of  negligence,  un- 
der the  statute  making  railroads  respon- 
sible for  damages  caused  by  the  running 
of  their  trains,  and  the  question  of  de- 
fendant's negligence  is  for  the  jury.  St. 
Louis,  etc,  E.  Co.  v.  Armbrust  (Ark.) 
1917D-537.  (Annotated.) 

75.  In  such  case,  plaintiff's  prima  facie 
showing  of  negligence  entitles  him  to  a 
recovery,  unless  defendant  shows  by  a  pre- 
ponderance of  the  evidence  that  it  was  not 
guilty  of  negligence.  St.  Louis,  etc.  E. 
Co.  V.  Armbrust   (Ark.)   1917D-537. 

(Annotated.) 

(b)     Questions  for  Jury, 

76.  In  an  action  for  injuries  to  plaintiff 
by  being  struck  by  a  railroad  hand  ear  at 
a  crossing  at  night,  the  car  following  a 
train  and  approaching  without  lights, 
whether  plaintiff  was  negligent  in  failing 
to   observe   the   car   before    going    on   the 


track  is  for  the  jury.    St.  Louis  Southwest- 
ern E.  Co.  V.  MiteheU  (Ark.)  1916E-317. 

(Annotated.) 

(c)     Questions   for   Court. 

77.  Where  the  facts  respecting  the  fail- 
ure to  exercise  care  by  the  driver  of  a 
team  about  to  cross  a  railroad  track  are 
conceded  or  uncontradicted,  and  it  can  be 
said  that  reasonable  men  could  not  draw 
different  conclusions  or  inferences  there- 
from, the  question  of  the  contributory  neg- 
ligence of  such  driver  is  one  of  law  for 
the  court.  Christopherson  v.  Minneapolis, 
etc.  E,  Co.  (N.  Dak.)  1916E-683. 

Note. 
Liability  of  railroad  company  to  person 
wrongfully  riding  on  train  by  permission 
or  direction  of  railroad  employee.     191 7C- 
358. 

b.     Licensees  and  Trespassers  on  Eight  of 
Way. 

(1)     Liability. 

78.  Duty  to  Licensee  on  Track.  Where 
plaintiff's  decedent  is  walking  on  defend- 
ant railroad's  right  of  way  where  a  license 
has  been  established  by  customary  and 
frequent  use,  it  is  defendant's  duty  to  keep 
a  reasonable  lookout  in  anticipation  of  the 
presence  of  such  licensees  on  the  right  of 
way  and  to  use  reasonable  care  to  avoid 
injury  after  discovering  decedent's  pres- 
ence thereon.  Imler  v.  Northern  Pacific 
E.  Co.  (Wash.)  1917A-933. 

79.  Sunning  Train  on  Unusual  Track. 
A  railroad  company  owes  no  duty  to  li- 
censees using  its  right  of  way  as  a  path- 
way to  run  its  trains  traveling  in  one 
direction  on  one  of  its  double  tracks  and 
trains  in  the  opposite  direction  on  the 
other  track,  though  customarily  so  oper- 
ated, since,  under  both  its  duty  to  the 
public  and  its  rights  as  owner  of  the  right 
of  way,  it  may  run  its  trains  in  any  direc- 
tion on  either  track  as  it  may  see  fit. 
Imler  v.  Northern  Pacific  E.  Co.  (Wash.) 
1917A-933.  (Annotated.) 

80.  Suction  of  Passing  Train.  Plaintiff's 
injury,  if  occurring  as  the  result  of  suc- 
tion created  by  the  rapidly  moving  train, 
is  an  unusual  occurrence  such  as  the  en- 
gineer could  not  have  reasonably  expected 
would  result  from  the  rapid  movement  of 
the  train;  and  hence  such  movement  is  not 
negligence.  Davis  v.  Southern  E.  Co.  (N. 
Car.)   1918A-861.  (Annotated.) 

81.  Injury  to  Person  Near  Track — Negli- 
gence— Speed  of  Train.  Defendant  rail- 
road, whose  heavy  freight  train,  drawn  by 
two  engines  on  an  upgrade  and  a  partial 
curve,  overtook  plaintiff,  walking  on  a 
parallel  track  used  by  another  road  and 
upon  the  ends  of  the  cross-ties  next  to 
defendant's  track,  about  5V2  feet  from  the 


716 


DIGEST. 

1916C— 1918B. 


ends  of  the  cross-ties  on  defendant's 
tracks,  when  about  485  feet  from  a  tank 
at  which  the  train  had- stopped  for  water, 
while  running  from  3  to  25  or  30  miles  an 
hour,  is  held  to  have  been  guilty  of  no 
negligence  proximately  causing  injury  to 
plaintifif,  who  was  drawn  under  the  train 
and  had  his  foot  cut  off.  Davis  v.  South- 
ern R.  Co.  (N.  Car.)  1918.\-861. 

82.  Trespasser  on  Trestle.  One  struck 
by  a  train  while  crossing  a  trestle  of  a 
railroad  company  is  a  "trespasser"  for 
whose  death  no  recovery  can  be  ^ad,  where 
the  servants  in  charge  of  the  train  did  not 
discover  his  position  of  peril  and  the  pub- 
lic were  warned  not  to  use  the  trestle, 
this  being  so  despite  frequent  use  of  the 
trestle  by  persons  in  the  vicinity.  Curd's 
Adm'x.  v.  Cincinnati,  etc.  E.  Co.  (Kv.) 
1916E-614.  (Annotated.) 

83.  Trespassers  on  Track  —  Implied  Li- 
cense. The  mere  use  of  a  railroad  track 
by  the  public  does  not  convert  the  usfrs 
from  trespassers  into  licensees,  unless  the 
use  be  at  a  public  crossing  or  in  a  city 
or  populous  community  where  large  num- 
bers of  people  use  the  track,  thereby  put- 
ting the  company  upon  the  duty  of  an- 
ticipating their  presence.  Curd's  Adm'x. 
V.  Cincinnati,  etc.  E.  Co.  (Ky.)  1916E- 
614. 

84.  Dnty  to  Trespasser — ^Keepin?  Look- 
out. While  a  railroad  company  is  bound  to 
maintain  a  lookout  to  avoid  injuring  li- 
censees on  its  tracks,  it  is  under  no  duty 
to  look  out  for  trespassers.  Curd's  Adm'x. 
V.  Cincinnati,  etc.  E.  Co.  (Ky.)  1916E-614. 

Notes. 

Bnnning  train  on  wrong  or  unusnal  track 
as  negligence.     1917A-936. 

Liability  of  railroad  to  person  on  or  near 
right  of  wav  injured  by  suction  from  pass- 
ing train.    '1918A-872. 

Liability  of  railroad  company  for  per- 
sonal injuries  caused  by  objects  thrown  or 
falling  from  train.     19i7D-540. 

(2)     Actions. 

85.  Injury  to  Person  Near  Station  Plat- 
form— Contributory  Negligence.  Pliintiff, 
an  elderly  woman,  knowing  that  defend- 
ant's car  was  late,  that  the  night  was 
dark,  that  the  platform  was  not  lighted, 
and  that  there  were  no  means  of  signaling 
the  car,  who  went  on  defendant's  right  of 
way  some  distance  from  the  platform  and 
tried  to  signal  the  car,  and  was  struck  by 
the  moving  car  and  injured,  was  guilty  of 
contributory  negligence  and  entitled  de- 
fendant to  a  directed  verdict.  Wells  ▼. 
Ann  Arbor  E.  Co.  (Mich.)  1917A-1093. 

8fi.  Failure  to  Discover  Peril — Person  on 
Railroad  Track.  In  an  action  to  recover 
for  the  death  of  a  licensee  walking  on  a 
right  of  way  of  defendant  railroad,  where 
it  did  not  appear  that  decedent  was  on  the 


track,  the  fact  that  the  engineer  had  an 
unobstructed  view  for  more  than  a  mile 
does  not  establish  negligence  in  failing 
to  discover  decedent's  peril,  since  the  en- 
gineer was  not  bound  to  anticipate  that  a 
man  walking  along  the  right  of  way  would 
step  in  front  of  the  train.  Imler  v.  North- 
ern Pacific  E.  Co.   (Wash.)   1917A-933. 

87.  Injury  to  Employee  of  Another  Com- 
pany. Where,  in  an  action  for  the  death 
of  a  Pullman  car  employee  engaged  in  re- 
pairing cars,  from  a  car  being  shifted  with- 
out warning  to  him  by  the  defendant  rail- 
road company,  plaintiff's  evidence,  taken 
alone,  showed 'that  the  accident  was  due  to 
the  defendant's  negligence  while  deceased 
was  exercising  proper  care,  the  trial  court 
properly  refused  to  direct  a  verdict  for  de- 
fendant, or  to  set  aside  a  verdict  for  plain- 
tiff, though  defendant's  evidence  on  the 
determining  issue  whether  the  deceased 
was  warned  conflicted  with  plaintiff's  evi- 
dence and  was  of  a  more  positive  char- 
acter. Philadelphia,  etc.  E.  Co.  v.  Gatta 
(Del.)  1916E-1227. 

RAPE. 

1.  Nature  and  Elements  of  Offense. 

2.  Prosecution  and  Punishment. 

a.  Indictment. 

b.  Evidence,  Admissibility. 

c.  Instructions. 

d.  Defenses. 

3.  Civil  Liability  and  Actions  to  Enforce. 

Civil  action,  excessiveness  of  damages,  see 

Damages,  48. 
Death  sentence  for  attempt,  see  Sentence 

and  Punishment,  15. 
Competency  of  prosecutrix,  see  Witnesses, 

10. 

1.  NATUEE   AND   ELEMENTS   OP 

OFFENSE. 

1.  What  Constitutes — Failure  to  Make 
Complaint.  Though  the  female  makes  no 
outcry  or  immediate  complaint,  it  is  a  rape 
if  intercourse  is  procured  by  force  and 
without  her  consent.  Jensen  v.  Lawrence 
(Wash.)  1917E-133. 

2,  PEOSECUTION  AND  PUNISHMENT. 

a.     Indictment. 

2.  Averment  That  Prosecutrix  was 
Human  Being.  An  indictment  charging 
rape  on  a  female  under  the  age  of  con- 
sent and  that  she  was  not  then  and  there 
the  wife  of  accused  is  not  erroneous  in 
failing  to  charge  an  assault  or  aver  that 
prosecutrix  was  a  human  being.  State  v. 
Keeler  (Mont.)  1917E-619. 

b.     Evidence,    Admissibility. 

3.  Age  —  Testimony  as  to  Age  of  An- 
other. In  a  prosecution  for  statutory  rape, 
testimony  of  defendant's  adoptive  parents 


RAPE. 


717 


as  to  her  age  and  the  date  of  lier  birth, 
made  upon  information  by  her  aunt,  who 
■was  dead  at  the  time  of  the  trial,  and  her 
appearance  when  they  first  knew  her  at 
the  age  of  three,  is  admissible.  State  v. 
Tetrault  (N.  H.)   1918B-425. 

4.  Conduct  of  Prosecutrix  With  Others. 

In  a  prosecution  for  rape,  where  the  state 
did  not  claim  that  the  defendant  had  ex- 
clusive opportunity,  evidence  that  the  pros- 
ecutrix was  seen  away  from  her  home  with 
other  men  at  about  the  time  in  question 
is  inadmissible.  State  v.  Tetrault  (N.  H.) 
1918B-425. 

5.  Evidence  —  Subsequent  Familiarities. 

In  a  prosecution  for  rape,  evidence  as  to 
advances  made  to  the  prosecutrix  by  the 
defendant,  when  they  met  at  a  time  sub- 
sequent to  the  date  of  the  alleged  offense, 
is  admissible,  as  it  is  such  as  to  indicate 
that  they  had  probably  had  improper  rela- 
tions before,  and  tends  to  corroborate  the 
state's  theory  of  the  defendant's  guilt. 
State  v.  Tetrault  (N.  H.)  1918B-425. 

6.  Age — Testimony  by  Persons  as  to  His 
Own  Age.  In  a  prosecution  for  rape,  the 
testimony  of  prosecutrix  as  to  her  age, 
while  founded  on  hearsay,  is  admissible. 
State  V.  Tetrault  (N.  H.)  1918B-425. 

(Annotated.) 

7.  Denial  by  Accused.  In  a  prosecutio^ 
for  rape,  it  was  error  to  exclude  the  de- 
fendant's denial  of  the  use  of  any  force 
after  having  admitted  the  prosecuting  wit- 
ness' testimony  that  she  never  gave  him 
any  occasion  for  anything  out  of  the  way. 
State  V.  Asbury  (Iowa)   1918A-856. 

8.  Opinions  —  Possibility  of  Committing 
nape.  Testimony  of  witnesses  that,  in 
their  opinion,  rape  could  not  be  committed 
upon  an  adult  female  under  the  circum- 
stances disclosed  by  the  record,  is  inad- 
missible, as  an  invasion  of  the  province 
of  the  jury.  State  v.  Asbury  (Iowa) 
1918A-856. 

9.  Flight  of  Accused — Proof  by  Indirec- 
tion. "While  evidence  of  accused's  flight  is 
admissible  in  a  prosecution  for  rape,  it  may 
not  be  shown  except  by  proper  evidence, 
and  it  is  improper  to  ask  a  witness  on 
cross-examination  whether  she  saw  the  de- 
fendant after  he  broke  jail,  where  the 
witness  had  merely  testified  that  she  knew 
the  defendant  and  was  acquainted  with 
his  reputation  for  moral  character  and 
virtue,  that  it  was  good,  and  that  the  wit- 
ness never  heard  it  questioned.  State  v. 
Asbury  (Iowa)  1918A-856. 

10.  Church  Membership  of  Prosecutrix — 
Prejudice.  While  there  may  be  doubt 
whether  testimony  of  the  prosecutrix  that 
she  was  a:  church  member  was  prejudicial 
to  accused,  error  in  receiving  it  must  be 
presumed  to  be  prejudicial,  in  the  ab- 
sence of  any  showing  to  the  contrary, 
especially  where  defendant  was  not  al- 
lowed to   show   his   membership  in   secret 


societies.  State  v,  Asbury  (Iowa)  1918A- 
856. 

11.  Subsequent  Acts.  In  a  statutory 
rape  case,  evidence  of  acts  of  intercourse 
after  the  one  relied  on  for  conviction  ifl 
admissible.  State  v.  Keeler  (Mont.) 
1917E-619. 

C.     Instructions. 

12.  As  to  Possibility  of  Unjust  Prosecu- 
tion. An  instruction  that  rape  cases  are 
prosecutions  attended  with  great  danger, 
and  afford  an  opportunity  for  the  display 
of  malice  and  private  vengeance,  such 
charges  being  easily  invented  and  main- 
tained, and  that  the  jury  should  hesitate 
to  convict  solely  on  the  testimony  of  the 
prosecutrix,  is  properly  refused,  where 
there  is  nothing  in  the  record  to  indicate 
that  the  prosecution  for  statutory  rape 
was  instituted  through  malice  or  for  pri- 
vate vengeance.  State  v.  Keeler  (Mont.) 
1917E-619. 

d.    Defenses. 

13.  Assault  With  Intent  to  Commit — 
Impotency  as  Defense.  In  a  prosecution 
for  assault  with  intent  to  rape,,  the  fact 
that  accused  was  74  years  of  age  and  had 
no  further  desire  or  capacity  to  perform 
the  sexual  act  is  no  defense.  Hunt  v. 
State  (Ark.)  1916D-533.  (Annotated.) 

Note. 
Impotency  as  defense  to  charge  of  rape 
or    assault   with   intent   to   rape.     1916D- 
535. 

3.     CIVIL    LIABILITY   AND   ACTIONS 
TO  ENFORCE. 

14.  Evidence — Corroboration  of  Plaintiff. 

In  a  civil  action  for  rape,  in  the  absence 
of  specific  statute  requiring  it,  plaintifFs 
testimony  need  not  be  corroborated.  Jen- 
sen V.  Lawrence  (Wash.)  1917E-133. 

15.  Instruction  Approved.  In  a  civil 
action  for  rape,  an  instruction  defining 
rape  and  charging  as  to  evidence  necessary 
is  held  to  have  properly  submitted  the 
issues  to  the  jury.  Jensen  v.  Lawrence 
(Wash.)   1917E-133. 

16.  Failure  to  Make  Outcry— Effect.    In 

a  civil  action  for  rape,  plaintiff's  failure 
to  make  complaint  is  merely  an  important 
circumstance  to  go  to  the  jury,  and  is 
not  conclusive  on  plaintiff's  right  to  re- 
cover as  a  matter  of  law.  Jensen  v.  Law- 
rence  (Wash.)   1917E-133.  ■ 

17.  The  court  instructed  that  if  at  the 
time  or  within  a  reasonable  time  plaintiff 
did  not  make  outcry,  and  did  not  do  so 
thereafter  as  soon  as  opportunity  offered, 
unless  she  was  prevented  by  fear  and 
threats,  she  was  not  entitled  to  recover, 
and  that  if  plaintiff  failed  to  disclose  the 
alleged  outrage  within  a  reasonable  time 
after  she   had   opportunity,  it   was   a   cir- 


718 


DIGEST. 

1916C— 1918B. 


cumstance  which  the  jury  could  consider  as 
tending  to  impeach  the  truth  of  her  story. 
It  is  held  that  the  instruction  was  as  favor- 
able to  defendant  as  could  be  desired. 
Jensen  v.  Lawrence  (Wash.)  1917E-133. 

Note. 
Inadequacy  or  excessiveness  of  verdict 
in  civil  action  for  rape.     1917E-135. 
Bates,  see  Gas  and  Qas  Companies,  1,  6,  7; 
Municipal  Corporations,  43,  44;  Tele- 
graphs and  Telephones,  13-15. 

RATIFICATION. 

See  Agency,  27-30. 

Of    alteration,   see  Alteration  of    Instru- 

ments,  13,  14, 
Of  acts  of  officers,  see  Corporations,  35,  36. 
Of  minor's  contract,  see  Infants,  15-17. 
Of  Sunday  contract,  see  Sundays  and  Holi- 

days,  2. 

BAZOB. 
As  deadly  weapon,  see  Weapons,  2. 

BEAL  ESTATE. 

See  Adjoining  Landowners;  Adverse  Pos- 
session;   Boundaries;    Deed;    Estates; 
Fixtures;  Homestead;  License;  Prop-^ 
erty. 

BEAL  ESTATE  AGENCY. 
See  Agency;  Broken. 

REALTY. 

Meaning,  see  Trademarks  and  Trade- 
names, 6. 

REASONABLE  TIME. 
Defined,  see  Time,  6. 

RECEIVERS. 

1.  Definition,  718. 

2.  Appointment,  718. 

a.  Jurisdiction,    718. 

b.  Who  may  Apply,  718. 

c.  Nature  of  Proceeding. 

3.  Continuing    KeceiversMp    Pending    Ap- 

peal, 719. 

4.  Rights,   Duties    and   Liabilities    of    Re- 

ceivers, 719. 

a.  Liiability  for  Attorney's  Fees,  719. 

b.  Actions  by  Receivers,  719. 

5.  Allowance    of    Claims    Against    Assets, 

719. 

6.  Receivers'  Sales,  720. 

7.  Discharge  of  Receiver,  720. 

See  Corporations,  148,  149. 

Bonds  to  indemnify  bankrupt,  see  Bank- 
ruptcy, 27-29. 

Of  in:-olvpnt  bank,  see  Banks  and  Bank- 
ing, 72. 


To   wind  up    business,  see  Building    and 

Loan  Associations,  6,  8,  9. 
Attachment    of     receivership     funds,    see 

Garnishment,  3. 

1.     DEFINITION. 

1.  Nature  of  Ofllce.  A  receiver  is  a  min- 
isterial officer  of  the  court  of  equity  wnich 
appoints  him,  presumed  to  be  indifferent 
to  the  parties  of  the  suit,  and  holding  the 
property  for  all  parties  interested;  his 
title  and  possession  being  that  of  the 
court.  Northern  Brewery  Co.  v.  Princess 
Hotel  (Ore.)   1917C-621. 

2.     APPOINTMENT, 
a.     Jurisdiction. 

2.  Orders  to  Third  Persons.  The  plain- 
tiff's lessee  bored  producing  gas  wells  on 
the  plaintiffs'  land  and  on  the  lessee's  land, 
and  connected  the  wells  by  pipes  con- 
verged in  a  building  erected  by  the  lessee 
on  the  plaintiffs'  land,  where  a  meter,  a 
pressure  gauge,  and  other  gas  appliances 
were  installed.  From  this  point  the  gas 
produced  was  conducted  to  a  pipe  line 
location  in  a  highway  alongside  the  plain- 
tiffs' land.  The  pipe  line  belonged  to  a 
corporation  for  which  a  receiver  was  ap- 

kpointed  by  the  district  court.  The  re- 
ceiver was  authorized  by  the  court  to 
purchase  gas  from  the  plaintiffs'  lessee, 
which  the  receiver  distributed  to  consum- 
ers. The  plaintiffs  took  possession  of  the 
building,  pipes,  and  appliances  on  their 
own  land  and  stopped  the  flow  of  gas  into 
the  pipe  line  under  a  claim  of  right  predi- 
cated upon  their  contract  with  the  lessee. 
Upon  application  made  in  the  receivership 
suit,  the  receiver  procured  an  order  di- 
recting a  person  designated  by  the  court  to 
remove  the  obstructions  preventing  the 
flow  of  gas  into  the  pipe  line  and  enjoin- 
ing the  plaintiffs  from  maintaining  such 
obstruction  or  interfering  with  the  order. 
Neither  the  plaintiffs  nor  their  lessee  were 
parties  to  the  receivership  suit,  and  the 
order  was  procured  without  notice  to  them. 
The  order  having  been  executed,  the  plain- 
tiffs moved  to  set  it  aside  because  it  had 
been  made  without  jurisdiction.  The  court 
modified  the  order  but  did  not  vacate  it. 
Held,  the  court  had  no  jurisdiction  over 
the  parties  or  over  the  property  affected  by 
the  order,  the  order  was  void,  and  the  court 
may  be  required  by  writ  of  mandamus  issu- 
ing from  this  court  to  set  aside  the  order. 
Bishop  V.  Fisher  (Kan.)   1917B-450. 

b.     Who  may  Apply. 

3.  Bankruptcy  —  Receiver  —  Application 
for  Appointment — Persons  Entitled  to  Ap- 
ply. Under  Bankr.  Act  of  July  1,  1898, 
c.  541,  §  59b,  30  Stat.  561  (1  Fed.  St.  Ann. 
2d  ed.  990),  providing  thit  thrc"  or  more 
creditors  may  file  a  petition  to  have  a 
debtor  adjudged  a  bankrupt,  and  section  2, 


RECEIVERS. 


719 


cl.  3  (1  Fed.  St.  Ann.  2d  ed.  552),  author- 
izing courts  of  bankruptcy  to  appoint  re- 
ceivers upon  the  application  of  parties  in 
interest,  if  necessary  for  the  preservation 
of  the  estate,  to  take  charge  of  the  prop- 
erty of  the  bankrupt  after  the  filiu:^  of 
the  petition  and  until  it  is  dismissed,  or 
the  trustee  has  qualified,  an  application 
for  the  appointment  of  a  receiver  is  sepa- 
rate and  distinct  from,  and  ancillary  to, 
the  proceedings  in  bankruptcy,  and  may 
be  made  by  any  creditor  having  a  provable 
debt  against  the  bankrupt  that  would  be 
affected  by  his  discharge,  whether  he  be 
one  of  the  petitioning  creditors  or  not. 
T.  E.  Hill  Co.  v.  United  States"  Fidelity, 
etc.  Co.  (III.)  1917E-78. 

c.     Nature   of  Proceeding. 

4.  The  appointment  of  a  receiver  with- 
out bond  from  the  petitioners,  to  take  pos- 
session of  the  property  of  a  person  charged 
with  bankruptcy,  is  a  conservatory  pro- 
ceeding, instituted  for  the  benefit  of  the 
debtor  and  his  creditors,  and  cannot  be 
likened  to  the  issuance  of  a  writ  of  at- 
tachment by  the  state  courts.  Harvey  v. 
Gartner   (La.)    1916D-900.       (Annotated.) 

3.  CONTINUING         KECETVEBSHIP 

PENDING  APPEAL. 

5.  Where,  in  an  involuntary  bankruptcy 
proceeding,  the  court  on  application  of  one 
of  the  petitioning  creditors  appointed  a  re- 
ceiver and  thereafter  dismissed  the  bank- 
rupt's petition,  it  is  within  the  discretion 
of  the  bankruptcy  court  to  continue  the 
receivership  pending  an  appeal  to  the  cir- 
cuit court  of  appeals.  T.  E.  Hill  Co.  v. 
United  States  Fidelity,  etc.  Co.  (111.) 
1917E-78. 

4.  EIGHTS,     DUTIES     AND    LIABILI- 

TIES  OF   EECEIVERS. 

a.     Liability    for   Attorney's   Fees. 

6.  Where  attorneys  were  employed  by  a 
receiver  of  an  insolvent  corporation  under 
an  order  of  the  court  authorizing  such 
employment,  and  where  the  receiver,  the 
attorneys  participating,  in  good  faith  en- 
deavored to  procure  a  proper  allowance  of 
attorneys'  fees  from  the  court,  and  paid 
over  to  the  attorneys  the  entire  amount 
allowed  by  the  court,  such  attorneys  can- 
not hold  the  receiver  personally  liable  for 
the  value  of  their  services.  Willett  v. 
Janecke  (Wash.)  1917B-35L     (Annotated.) 

Note. 
Personal  liability  of  receiver  for  attor- 
ney's fees.     1917B-354. 

b.     Actions  by  Eeeeivers. 

7.  Set-off  Against  Receiver— Claims  Ma- 
turing After  Receivership.  That  a  cor- 
poration    for    which     receivers    were     ap- 


pointed was  not  definitely  known  to  be 
insolvent  at  the  time  of  the  appointment, 
and  that  the  receivers  were  empowered  to 
conduct  the  business  as  a  going  concern 
and  apply  the  money  coming  into  tiielr 
hands  from  the  sale  of  property,  does  not 
entitle  creditors  of  the  corporation  to  set 
off  deposits  of  the  corporation  helJ  by 
them  at  the  date  of  the  appointment 
against  notes  of  the  corporation  held  by 
them,  where  such  notes,  tnough  discounted 
before  the  appointment,  did  not  mature 
until  afterwards.  Blum  Bros.  v.  Girard 
National  Bank  (Pa.)  1916D-609. 

(Annotated.) 

8.  Set-off  of  Receiver's  Certificates.  Also 
held  that  the  defendants  should  not  be 
allowed  to  offset  in  such  action  receiver's 
certificates  held  by  them.  Ten  Broek  v. 
Caldwell  (Neb.)  1916D-613.      (Annotated.) 

9.  Bight  to  Sue  in  Foreign  Jurisdiction. 
A  court  of  competent  jurisdiction  in  the 
state  of  Missouri  appointed  a  receiver  of 
hotel  property  in  the  city  qf  St.  Louis,  and 
ordered  the  receiver  to  sell  the  property. 
These  defendants  made  an  offer  in  writing 
to  purchase  the  property  and  pay  $9,000  in 
cash  therefor  and  $10,000  in  receiver's 
certificates  which  they  held.  The  court 
approved  the  offer,  and  directed  the  re- 
ceiver to  accept  the  same,  which  he  did. 
Thereupon  the  defendants  took  the  prop- 
erty and  gave  the  receiver  the  $10,000  in 
receiver's  certificates  and  $8,000  in  cash, 
but  refused  to  pay  the  remaining  $1,000. 
The  court  then  ordered  the  receiver  to 
begin  proceedings  against  the  defendants 
to  recover  the  remainder  of  the  purchase 
price.  Held,  that  the  receiver  could  main- 
tain such  action  in  this  state;  these  de- 
fendants being  found  here.  Ten  Broek  v, 
Caldwell    (Neb.)    1916D-613. 

10.  Set-off  Against  Receiver.  The  rule 
that  a  receiver  of  an  insolvent  is  merely 
an  assignee,  possessing  only  the  rights  of 
the  insolvent,  so  that  choses  in  action 
pass  subject  to  any  right  of  set-off  exist- 
ing at  the  time  of  the  appointment,  ap- 
plies to  the  receiver  of  an  insolvent  com- 
mercial bank,  and  the  rights  of  those  in- 
debted to  the  bank  must  be  determined 
by  their  relations  to  it,  as  they  existed  at 
the  time  of  the  appointment  of  the  re- 
ceiver, who  must  allow  the  right  of  set- 
off when  it  exists  as  it  would  have  existed 
if  the  bank  itself  had  sought  to  enforce 
the  collection  of  claims.  Williams  v. 
Johnson  (Mont.)  1916D-595.    (Annotated.) 

Note. 
Set-off  against  receiver.     1916D-599. 

5.     ALLOWANCE  OF  CLAIMS  AGAINST 

ASSETS. 

11.  Insolvency  of  Company — Premiums 
as  Trust  Fund.  Premiums  on  policies  of 
insurance,  collected  by  the  receiver  of  an 
i?j  solvent    soliciting    agent,    constitute    a 


720 


-  DIGEST. 

1916C— 1918B. 


trust  fund  for  the  use  and  benefit  of  the 
insurers  as  cestuis  que  trustent,  to  the  ex- 
clusion of  general  creditors,  except  as  to 
the  surplus  remaining  after  payment  of 
claims  primarily  chargeable  against  it. 
"Williams  V.  S.  M.  Smith  Ins.  Agency  (W. 
Va.)  1917A-813. 

6.     RECEIVER'S  SALES. 

12.  Sale — Necessity  of  ConflrmatioiL  A 
receiver  being  a  ministerial  officer,  his  sale 
of  mortgaged  personalty  must  be  confirmed 
by  the  court  in  order  to  be  valid.  North- 
ern Brewery  Co.  v.  Princess  Hotel  (Ore.) 
1917C-621. 

7.     DISCHARGE  OF  RECEIVER. 

13.  Grounds  —  Change  in  Management. 
This  suit  was  commenced  by  a  ptcferred 
stockholder  for  a  dividend,  for  the  appro- 
priation of  the  property  of  the  corporation 
to  the  payment  of  such  dividend,  for  the 
redemption  of  her  stock,  and  for  the  ap- 
pointment of  a  receiver  to  accomplish  the 
purposes  of  the  suit.  A  receiver  was  ap- 
pointed at  the  commencement  of  the  suit 
on  the  allegations  of  the  verified  petition, 
which  contained  numerous  specifi.ations  of 
misconduct  on  the  part  of  the  board  of 
directors,  and  charged  imminence  of  in- 
solvency. A  referee  was  appointed  to 
hear  the  cause,  who  returned  findings  of 
fact  and  conclusions  of  law  which  the 
court  adopted,  except  a  recommendation 
that  the  receiver  be  discharged.  Before 
the  reference  was  made  a  new  and  en- 
larged board  of  directors  was  chosen  at  a 

.regular  stockholders'  meeting,  which  new 
board  the  referee  found  to  be  harmonious, 
and  against  which  no  objection  of  any 
kind  was  lodged.  The  charge  of  threat- 
ened insolvency  was  not  sustained.  Held, 
the  retention  of  the  receiver  after  the  elec- 
tion of  the  new  board  of  directors  con- 
stituted an  abuse  of  judicial  discretion. 
Held,  further,  the  findings  of  fact  disclose 
tbat  the  original  appointment  of  the  re- 
ceiver was  not  justified.  Inscho  v.  Mid- 
Continent  Development  Co.  (Kan.)  19I7B- 
546. 

RECEIPT  IN  rUIiL. 

Effect  of  receipt  in  full,  sea  Accord,  and 
Satisfaction,  3. 


EECEIVINO. 

Receipt  without  notice,  see  Conversion,  2. 

RECEIVING  DEPOSIT  "WHILE   INSOL- 
VENT. 

See  Banks  and  Banking,  13-22. 

RECENT. 

Meaning,  see  Larceny,  9. 


RECOGNIZANCE. 


See  BaiL 

RECONVERSION. 
See  Conversion  and  Reconversion. 

RECORD. 
What  constitutes,  see  Certiorari,  E. 


RECORDING  ACTS. 

1.  Construction. 

2.  Purpose. 

3.  Fees  for  Recording. 

4.  Record  as  Notice. 

5.  Effect  of  Recording. 

6.  Unrecorded  Instruments. 

See  Chattel  Mortgages,  6-14. 

Liability  .  for  recording  broker's  contract, 

see 'Brokers,  12. 
■Withholding    from    record    as    ground   for 

cancellation,  see  Fraudulent  Sales  and 

Conveyances,  8. 
Failure  to  record  fine  lien,  effect,  see  Liens, 

3. 
Record  notice  of  fraud,  see  Limitation  of 

Actions,  17. 
Record     notice     of     mortgagee's     divorce, 

effect  on  mortgage,  see  Mortgages  and 

Deeds  of  Trust,  18. 

1.     CONSTRUCTION. 

1.  Mistake  in  Record — Effect.  To  en- 
title a  party  to  the  benefit  of  the  record- 
ing act  it  is  sufficient  if  he  properly  file 
his  instrument  for  record.  Neas  v.  White- 
ner-London  Realty  Co.   (Ark.)   1917B-780. 

2.  Persons  Protected — Purchaser  at  Ex- 
ecution Sala  Under  S.  Car.  Civ.  Code, 
1912,  §  3542,  providing  that  all  deeds,  etc., 
shall  be  valid  so  as  to  affect  from  the  time 
of  delivery  or  execution  the  rigats  of 
subsequent  creditors  whether  lien  creditors 
or  simple  contract  creditors,  or  purchasers 
for  a  valuable  consideration  without  no- 
tice only  when  recorded  within  10  days 
from  the  time  of  such  delivery  or  execu- 
tion, where  a  creditor  had  no  notice  of  a 
conveyance  when  he  extended  credit  to 
tije  grantor,  a  purchaser  of  the  land  con- 
veyed under  an  execution  on  a  judgment 
obtained  by  the  creditor  acquired  a  good 
title  notwithstanding  actual  notice  to  him, 
at  the  time  of  the  sale,  of  the  conveyance, 
as  the  rights  of  the  purchaser  under  an 
execution  are  the  same  as  those  of  the 
creditor  upon  whose  suit  the  property  is 
sold.  B'ackwell  v.  Harrelson  (S.  Car.) 
1916E-1263. 

2.     PURPOSE. 

3.  Purpose  of  Recording  Acts.  The  ob- 
ject of  the  recording  acts  is  to  enable  the 
owner  of  prooerty  in  possession  of  a  third 
person,  or  a  lienholder,  to  protect  himself 
aeainst  the  world,  on  the  theorv  that  he 
cannot  know  what  particular  persons  might 


RECORDING  ACTS. 


721 


acquire  rights  from  the  person  in  posses- 
sion. AUis-Chalmers  Co.  v.  Atlantic 
(Iowa)  1916D-910. 

3.     FEES   FOB  EE  CORDING. 

4.  Validity  of  Exemption  from  Record- 
ing Fees.  The  provision  of  the  Mont. 
Farm  Loan  Act  (Laws  1915,  c.  28)  exempt- 
ing the  mortgages  to  be  given  thereunder 
from  taxation  and  recording  fees,  while,  as 
respects  taxation,  it  creates  no  real  dis- 
tinction between  such  mortgages  and  oth- 
ers, and,  while  the  state  may  exempt  its 
officer  and  commissioner  of  farm  loans 
from  paying  such  fees,  yet  it  furthers  the 
interest  of  the  lender  by  discriminating 
between  him  and  all  other  mortgagees  in  a 
way  not  justified  by  any  relation  to  the 
encouragement  of  agriculture,  and  is  a  de- 
nial of  the  equal  protection  of  the  laws. 
Hill  V.  Rae  (Mont.)  1917E-210. 

5.  By  Whom  Payable.  It  is  the  contem- 
plation of  the  law  that  recording  fees  are 
to  be  paid  by  those  whose  interests  are 
protected  by  recordation,  in  case  of  mort- 
gages by  the  mortgagees,  and  such  fees 
are  never  a  charge  against  the  mortgagor. 
Hill  V.  Eae  (Mont.)  1917E-210. 

4.     RECORD  AS  NOTICE. 

6.  Scope  of  Notice  from  Record — ^Instru- 
ment Outside  Chain  of  Title.  The  word 
"purchasers,"  in  section  53  of  the  act  re- 
specting conveyances  (N.  J.  Comp.  Stat, 
p.  1552),  means  purchasers  of  the  same 
land  and  not  purchasers  from  the  same 
grantor.  A  purchaser  of  othef  lands  from 
the  same  grantor  is  not  charged  with  no- 
tice of  building  restrictions  contained  in 
an  earlier  deed  not  in  his  chain  of  title. 
Glorieux  v.  Lighthipe  (N.  J.)  1917E-484. 

(Annotated.) 

7.  Constructive  Notice — ^Instrument  De- 
fectively Describing  Property.  A  deed  ex- 
ecuted in  May,  1909,  conveying  ten  acres 
from  a  body  of  surrounding  land  described 
ac  lying  in  sections  16  and  22,  to  hi  laid 
off  so  as  to  include  a  certain  shoal  on  a 
creek,  and  to  be  surveyed  and  platted, 
and  a  certified  plat  to  be  a  part  of  the 
deed  to  perfect  the  description,  on  record 
before  the  plat  was  filed,  sufficiently  de- 
scribed the  lands  ^o  put  a  purchaser  on 
inquiry,  and  hence  was  such  constructive 
notice  as  to  defeat  his  rights  as  a  bona 
fide  purchaser.  Nolen  ▼.  Henry  (Ala.) 
1917B-792.  (Annotated.) 

8.  Kirby's  Ark.  Dig.  §  762,  declares  that 
every  instrument  in  writing  affecting  the 
title  of  realty  shall  be  constructive  notice 
from  the  time  it  is  filed  for  record.  Sec- 
tion 763  declares  that  no  instrument  for 
the  conveyance  of  land  shall  be  good 
against  a  subsequent  purchaser  for  value 
without  actual  notice,  unless  after  due 
acknowledgment  and  execution  it  shall  be 
filed  for  record  in  the  office  of  the  clerk 

46 


and  ex  officio  recorder.  Section  5396  de- 
clares that  every  mortgage  shall  be  a  lien 
on  the  property  mortgaged  from  the  time 
it  is  filed  in  the  office  of  the  recorder.  A 
mortgage  which  included  several  parcels 
of  land  correctly  described  some  of  the 
parcels,  but  did  not  give  the  range  num- 
ber of  two  sections  which  were  attempted 
to  be  included.  After  recordation  of  the 
mortgage  the  mortgagor  disposed  of  the 
land  to  bona  fide  purchasers  for  value 
without  notice.  It  is  held  that,  as  the 
doctrine  of  constructive  notice  is  harsh, 
and  such  statutes  are  strictly  construed, 
the  purchaser,  not  having  actual  notice  of 
the  mortgage,  will  not  be  charged  with 
constructive  notice  thereof  on  the  theory 
that  an  inspection  of  the  mortgage  might 
have  led  to  inquiry  by  which  he  would 
have  discovered  that  the  land  he  after- 
wards purchased  was  included.  Neas  v. 
Whitener-London  Realty  Co.  (Ark.)  1917B- 
780.  (Annotated.) 

9.  Deed  Ineffective  When  Made.  Under 
S,  Car.  Civ.  Code  1912,  §  3542,  wher-  a 
grantor  had  no  title  to  land  when  his  deed 
was  executed  or  recorded,  but  subsequently 
acquired  title,  the  record  of  the  deed  is  not 
constructive  notice  to  creditors  subse- 
quently extending  credit  to  him,  and  as 
against  such  creditors  the  deed  is  not 
effective.  Blackwell  v.  Harrelson  (S.  Car.) 
1916E-1263. 

10.  Record  as  Constructive  Notice  of 
Fraud.  The  record  of  a  deed  fair  and 
regular  on  its  face,  executed  for  the  pur- 
pose of  hindering,  delaying,  and  defraud- 
ing creditors  in  the  collection  of  their 
debts,  does  not  impart  notice  of  the  fraud 
of  the  parties  to  the  deed  in  executing  it 
for  the  purpose  named.  Underwood  v. 
Fosha  (kan.)   1917A-265.        (Annotated.) 

Notes. 

Record  of  instrument  out  of  line  of  title 
as  constructive  notice.     1917E'-486. 

Constructive  notice  from  record  of  in- 
strument containing  defective  description 
of  real  property.     I917B-785. 

5.     EFFECT  OF  RECORDING. 

11.  Deeds — Recording  —  Effect.  The  re- 
cording of  the  deed  by  the  grantor  ma-ie 
it  effective  as  to  all  persons  benefited  by 
it  who  did  not  dissent.  Miller  v.  Miller 
(Kan.)   1917A-918. 

6.     UNRECORDED  INSTRUMENTS. 

12.  Unrecorded  Mortgage  —  Valid  Be- 
tween Parties.  Under  Kirby's  Ark.  Dig. 
§  5396,  providing  that  every  mortgage  of 
real  or  personal  property  shall  be -a  lien 
thereon  from  the  time  it  is  filed  in  the  re- 
corder's office  for  record,  an  unrecorded 
mortgage  is  valid  between  the  parties  and 
as    against   persons   holding    the   property 


722 


DIGEST. 

1916C— 1918B. 


under  a  voluntary  conveyance.  Western 
Tie,  etc.  Co.  v.  Campbell  (Ark.)  1916C- 
943. 

13.  Unrecorded  Deed  Invalid.  An  unre- 
corded deed  for  a  railroad  right  of  way 
is  void  as  to  a  subsequent  purchaser  of 
the  servient  land,  without  notice  thereof. 
Dulin  V.  Ohio  Eiver  E.  Co.  (W.  Va.) 
1916D-1183. 

BECOBD  ON  APPEALb 
See  Appeal  and  Error,  52-5S. 

BECOBDS. 

See  Courts,  37. 

Of  corporation,  inspection,  see  Corpora- 
tions, 104-114. 

As  evidence,  see  Evidence,  83-89. 

Destroyed  record,  parol  proof,  see  Evi- 
dence, 126. 

Entry  of  judgment,  see  Judgments,  14. 

Of  municipal  corporations,  see  Municipal 
Corporations,  155,  156. 

BECSTMINATION. 
See  Divorce,  23-26. 

REDEMPTION. 
See  Equity  of  Bedemption. 

BE-ENTBT. 

Effect  on  rent,  see  Landlord  and  Tenant^ 
33,  34,  41. 

BEFEBEES. 

1.  Appointment  of  Referee- 

2.  Powers  of  Referee. 

3.  Mode  of  Procedure. 

4.  Findings  and  Report. 

a.  In   General. 

b.  Review  by  Court. 

c.  Exceptions  to  Findings. 

5.  Compensation  of  Referee. 

SuflBciency  of  objection  for  review,  see 
Appeal  and  Error,  429. 

Duties  of  medical  referee  under  Work- 
men's Compensation  Act,  see  Master 
and  Servant,  290,  291. 

1,     APPOINTMENT  OF  REFEREE. 

1.  Beference  —  In  Action  at  Law — Er- 
roneous Designation  of  Referee.  It  is  com- 
petent for  a  federal  court  to  refer  an  ac- 
tion at  law  by  consent  of  the  parties,  and 
the  fact  that  the  referee  is  designated  a 
"special  master"  does  not  impair  the  valid- 
ity of  the  reference.  Philadelphia  Casu- 
alty Co.  V.  Fechheimer  (Fed.)  1917D-64. 

2.     POWERS  OF  REFEREE. 

2.  Powers  —  Reporting  Conclusions.       A 

master  in  chancery  derives  his  authority 
from   the   order   of   reference,   and   where 


such  an  order  only  authorizes  him  to  taktt 
and  report  the  evidence,  he  exceeds  his 
authority  in  reporting  his  conclusions. 
Houlihan  v.  Morrissey  (111.)  1917A-364. 

3.     MODE   OP  PROCEDURE. 

3.  Variance  of  Beport  from  Pleadings — 
Effect.  Where  a  cause  of  action  is  re- 
ferred and  tried  by  a  referee,  judgment 
must  be  rendered  according  to  the  facts 
reported,  regardless  of  the  form  of  action, 
if  the  court  could  allow  an  amendment  to 
the  declaration  which  would  adapt  it  to 
the  facts;  hence  a  party  cannot  complain 
that  a  general  assumpsit  was  brought  for 
a  breach  of  contract  instead  of  special 
assumpsit.  Camp  v.  Barber  (Vt.)  1917A- 
451. 

4.     FINDINGS  AND  BEPOET. 

a.    In  General. 

4.  Form  of  Findings.  Special  findings 
of  fact  by  a  court  or  referee  should  con- 
sist of  a  concise  and  specific  statement  of 
the  ultimate  facts  found,  without  recitals 
cf  the  evidence  or  conclusions  of  law. 
Philadelphia  Casualty  Co.  v.  Fechheimer 
(Fed.)   1917D-64. 

b.     Review  by  Court, 

5.  Becommitting  Beport.  The  denial  of 
a  motion  to  recommit  rests  within  the 
sound  discretion  of  the  presiding  judge. 
Ball  V.  Allen   (Mass.)   1917A-1248. 

6.  Adoption  of  Beferee's  Findings.  By 
overruling  all  exceptions  of  both  parties 
to  the  repoift  of  a  referee,  and  rendering 
judgment  for  the  exact  sura  found  by  him 
to  be  due,  the  court  evidences  its  intention 
to  adopt  the  findings  of  the  referee  as 
its  own.  Philadelphia  Casualty  Co.  v. 
Fechheimer  (Fed.)   1917D-64. 

c.     Exceptions    to    Findings. 

7.  Hearing  on  Beport  —  Scope.  In  the 
absence  of  a  special  order  of  court,  ex- 
ceptions to  a  master's  report  are  confined 
to  objections  presented  to  and  disallowed 
by  him,  as  shown  by  his  report.  Ball  v. 
Ailen  (Mass.)  1917A-1248. 

6.     COMPENSATION  OF  REFEREE. 

8.  Master  in  Chancery  —  Allowance  of 
Fees  —  Excessiveness.  Allowance  of  $35 
per  day  for  eight  and  one-half  days  to  mas- 
ter in  chancery  for  reporting  case  with 
record  of  only  453  pages  of  evidence,  is 
excessive,  because  too  long  a  time  is 
charged,  and  because  the  per  diem  equals 
that  of  the  chancellor  who  is  the  superior 
of  the  master,  who  is  entitled  only  to  rea- 
sonable compensation.  Klekamp  v.  Kle- 
kamp  (111.)   1918A-663. 

BEFORMATION. 
See  Rescission,  Cancellation  and  Reforma- 
tion, 1-10. 


REGISTRATION— RELEASE  AND  DISCHARGE. 


723 


REGISTRATION. 

Of  automobiles,  see  Automobiles,  10,  27,  37. 
Of  motorcycles,  see  Automobiles,  14. 
Of  voters,  see  Elections,  7-10. 

REGULATION  OF  RATES. 

By  railroad  commission,  see  Railroads,  2, 
3,  27-29. 

REHEARING. 

See  Appeal  and  Error,  487. 

REJOINDER. 

See  Pleading,  66. 

RELATIONSHIP. 
See  Descent  and  Distribution. 

RELATOR. 
Defined,  see  Quo  Warranto,  6. 

RELEASE. 
Of  dower,  see  Dower,  2-13. 

RELEASE  AND  DISCHARGE. 

1.  Validity  in  General. 

2.  Avoidance. 

3.  Actions. 

Of  attachment,  see  Attachment,  14. 

Authority  of  attorney,  see  Attorneys,  10. 

Of  stock  subscription,  see  Corporations, 
66-72, 

Guardian's  release  of  ward's  damage  claim, 
see  Guardian  and  Ward,  19. 

Settlement  under  Workmen's  Compensation 
Act  as  affecting  third  party's  liability, 
see  Master  and  Servant,  306. 

Of  mortgages,  see  Mortgages  and  Deeds  of 
Trust,  21,  22. 

Discharge  of  one  partner  no  release  of 
the  other,  see  Partnership,  29. 

Of  tortfeasor  by  insured,  effect  on  in- 
surer, see  Subrogation,  3. 

Conclusiveness  of  receipt  in  full,  see  Ware- 
houses, 5. 

1.     VALIDITY  IN  GENERAL. 

1.  Consideration — Re-employment  of  Re- 
leasor. The  contract  of  defendant  lumber 
company  with  plaintiff,  in  settlement  of 
his  claim  for  injuries,  to  give  him  a  job 
for  life,  or  so  long  as  it  remained  in  busi- 
ness, is  uncertain  and  indefinite,  and  so 
will  not  support  an  action  for  its  breach; 
it  not  specifying  the  position  to  be  filled 
or  the  compensation  to  be  paid.  Ingram- 
Day  Lumber  Co.  v.  Rodgers  (Miss.) 
1916E-174.  (Annotated.) 

Note. 

Validitv  of  release  given  in  considera- 
tion of  re-emplovment  of  releasor  by  re- 
leasee.    1916E-175. 


2.     AVOIDANCE. 

2.  Avoidance  for  Misrepresentations  — 
Statement  not  Intentionally  False.  A  set- 
tlement and  release  of  a  cause  of  action, 
induced  and  procured  by  false  representa- 
tions of  material  facts,  the  falsity  of 
which  was  unknown  to  the  person  making 
them,  may  be  rescinded  and  avoided, 
though  there  was  no  fraudulent  or  other 
wrongful  intent  to  deceive  or  defraud. 
Jacobson  v.  Chicago,  etc.  E.  Co.  (Minn.) 
1918A-355. 

3.  Misstatement  by  Releasee's  Physician. 
Plaintiff  was  injured  while  a  passenger 
on  one  of  defendant's  trains.  Soon  there- 
after defendant's  physician  made  a  phys- 
ical examination  of  plaintiff's  person,  and, 
to  induce  or  cause  him  to  act  thereon,  rep- 
resented that  he  had  suffered  no  serious 
injury,  had  no  broken  bones,  and  would 
recover  in  the  ,  course  of  two  or  three 
weeks.  It  is  held  that  the  representations 
were  material,  plaintiff  had  the  right  to 
r^ly  thereon  in  effecting  a  settlement  with 
defendant,  and  since  th«  representations 
were  untrue  in  fact,  though  the  falsity  was 
not  known  to  the  physician  at  the  time, 
and  were  not  made  with  intent  to  deceive, 
plaintiff  had  the  right  to  rescind  the  set- 
tlement. 'Such  facts  constitute  fraud  in 
law.  Jacobson  v.  Chicago,  etc.  R.  Co. 
(Minn.)   1918A-355.  (Annotated.) 

4.  False  Representation  to  Secure — Ma- 
teriality of  Representation.  A  represen- 
tation by  an  employer,  inducing  an  em- 
ployee to  release  his  claim  for  a  personal 
injury,  that  medical  and  hospital  bills 
will  be  paid  by  an  insurance  company,  is 
not  a  representation  of  a  material  fact, 
and  the  employee  cannot  complain  so  long 
as  the  bills  are  in  fact  paid.  Vasquez  v. 
Pettit  (Ore.)   1917A-439. 

5.  Fraud  in  Procuring — ^Evidence  Sufl- 
cient.  In  an  action  for  death  of  an  em- 
ployee, evidence  held  to  warrant  a  finding 
that  a  release  of  liability  for  the  injuries 
resulting  in  decedent's  death  had  been 
procured  by  fraud  or  undue  influence. 
Causey  v.  Seaboard  Air  Line  B.  Co.  (N. 
Car.)    1916C-707. 

Note. 
Avoidance  of  release  of  claim  for  per- 
sonal injuries  on  account  of  misstatements 
by   physician   as    to    nature   of    injuries. 
1918A-358. 

3.     ACTIONS. 

6.  Failure  of  Consideration  for  Release — 
Remedies.  Where  an  employer,  in  an  ac- 
tion for  injury  by  an  employee,  relies  on 
a  release  from  liability,  the  employee  alleg- 
ing and  proving  that  the  promise  by  the 
employer  to  employ  the  employee,  forming 
a  part  of  the  consideration  for  the  release, 
had  been  broken,  is  not  confined  to  an 
action  for  the  breach,  but  can  sue  for  the 
injury.  Vasquez  y.  Pettit  (Ore.)  1917 A- 
439. 


724 


DIGEST. 

1916C— 1918B. 


EELEVANCTY  OF  EVIDENCE. 
See  Evidence,  20-36. 

RELIEF. 
Form  of,  see  Equity,  4. 

EELIGIOUS  INSTITUTIONS. 

Exemption  of  church  property,  see  Taxa- 
tion, 71-75. 

Testamentary  gift  subversive  of  religion, 
see  Wills,  237,  238. 

1.  Monastic  Order — Termination  of  Mem- 
bership. Membership  in  a  monastic  bro- 
therhood is  not  terminated  by  absence 
from  the  Abbey  while  engaged  in  pastoral 
work,  where  such  absence  was  with  the 
consent  of  the  Abbot,  and  the  absent  mem- 
ber was  subject  to  recall  at  any  time. 
Order  of  St.  Benedict  v.  Steinhauser  (U. 
S.)  1917A-463. 

2.  Property  Held  by  Member — Cbarging 
With  Trust.  The  equitable  ownership  of 
the  copyrights  obtained  by  a  member  of 
a  monastic  brotherhood,  and  of  the  pro- 
ceeds of  his  literary  labors,  vested  in  the 
Order  under  an  agreement  in  the  constitu- 
tion that  the  gains  and  acquisitions  of 
members  shall  belong  to  the  Order,  and 
as  to  both  the  member  stood  in  the  posi- 
tion of  a  trustee.  Order  of  St.  Benedict 
V   Steinhauser  (U.  S.)  1917A-463. 

3.  Surrender  of  Property  Eights — Va- 
lidity. The  agreement  expressed  in  the 
constitution  of  a  monastic  brotherhood  in- 
corporated by  special  act,  that  the  gains 
and  acquisitions  of  members  shall  belong 
to  the  Order,  is  not  opposed  to  public  pol- 
icy, where  the  constitution  expressly  recog- 
nizes the  privilege  of  withdrawal;  and  the 
Order  is  therefore  entitled  to  all  the  per- 
sonal property  left  by  a  deceased  member, 
including  that  derived  from  his  literary 
labors.  Order  of  St.  Benedict  v.  Stein- 
hauser (U.  S.)  1917A-463.       (Annotated.) 

4.  Property  Eights  of  Members  —  Re- 
lease from  Rules.  A  special  permission 
granted  by  the  Abbot  of  a  monastic  bro- 
therhood to  enable  a  member  to  retain  and 
use  for  charitable  purposes  the  proceeds 
of  his  literary  labors  did  not,  and  could 
not,  release  him  from  the  a'greement  ex- 
pressed in  the  constitution  of  the  brother- 
hood, that  the  gains  and  acquisitions  of 
members  shall  belong  to  the  Order,  al- 
though its  rule  recognize  the  right  of  a 
member  to  keep  whatever  the  Abbot  per- 
mits him  to  have.  Order  of  St.  Benedict 
V.  Steinhauser  (U.  S.)   1917A-463. 

Note. 
Communistic    societv    or   corporation    as 
contrary  to  public  policy.     1917A-4;6S. 

RELIGIOUS  LIBERTT, 
See  Labor  Laws,  31. 


REMAINDERS  AND  REVERSIONS. 

See  Life  Estates. 

Merger  of  life  estate  and  remainder,  see 

Estates,  5. 
Sale  of  reversion  for  debts,  see  Executors 

and  Administrators,  33. 
As  subject  to  lien,  see  Mechanics'  Liens, 

16. 
Defeasible  remainder,  see  Perpetuities,  8. 
Contingent     remainder     as    devisable,    see 

Wills,  4. 
Devise  of  remainder,  see  Wills,  211,  212. 

1.  Partition  of  Remainder  —  Validating 
Sale  in  Subsequent  Suit.  A  testator  de- 
vised interests  in  lands  to  his  children, 
devising  a  life  estate  to  his  daughters, 
with  remainder  to  their  issue,  and  remain- 
ders over  in  default  of  issue.  In  a  suit 
to  which  the  daughters  were  parties, 
though  the  remaindermen  in  being  were 
not,  the  lands  were  ordered  sold  for  par- 
tition. After  the  sale,  the  executor,  who 
bought  in  the  lands  and  resold  them  at  a 
profit,  brought  a  suit  against  the  children, 
life  tenants  and  contingent  remaindermen, 
setting  forth  the  existence  of  the  fund,  his 
desire  to  distribute  it  among  the  heirs,  and 
praying  a  construction  of  the  will.  Held, 
that  as  the  fund  had  taken  the  place  of 
the  land,  and  as  the  remaindermen  in  being 
were  made  parties,  and  the  court  might 
bind  contingent  remaindermen  by  its  de- 
cree, it  could  in  such  proceeding  ratify 
the  original  sale  and  vest  the  title  in  fee 
in  the  executor,  though  his  original  pur- 
chase gave  him  only  a  life  estate.  Glover 
v.  B.adley  (Fed.)   1917A-921. 

2.  Remainder  to  Unborn  Person  —  De- 
stmctlon — Partition  Sale.  A  sale  of  land 
by  order  of  court  in  a  suit  to  which  the 
remaindermen  in  being  were  parties  is 
binding  on  all  contingent  remaindermen 
including  those  unborn.  Glover  v.  Brad- 
ley (Fed.)  1917A-921.  (Annotated.) 

3.  Effect  of  Partition  Sale.  Where  con- 
tingent remaindermen  were  not  made  par- 
ties to  a  partition  suit,  though  the  life 
tenants  were,  a  sale  of  the  land  for  parti- 
tion disposes  only  of  the  life  estates,  and 
does  not  carrv  the  fee.  Glover  v.  Bradley 
(Fed.)    1917A-921. 

4.  Remainder  to  Unborn  Person  —  De- 
struction— Merg-er  of  Estates.  Where  both 
the  life  estate  preceding  a  contingent  re- 
mainder to  several  including  unborn  heirs 
if  any  and  also  the  reversion  are  con- 
veyed to  the  same  person,  they  merge  and 
contingent  remainders  to  the  unborn  heirs 
are  defeated.  Smith  v.  Chester  (111.) 
1917A-925.  (Annotated.) 

5.  Remainder  Held  Conting-nt.  A  de- 
vise for  life,  remainder  in  fee  to  life  ten- 
ant's children  "or  the  survivor  or  survivors 
of  them,"  but  in  case  he  dies  without  sur- 
viving issue  then  to  his  wife  and  the 
nephews  and  niece  of  testator  equally,  and 
in  case  of  death  of  either  of  last  named 
without  issue  the  share  of  the  one  dying 


REMAINDERS  AND  REVERSIONS. 


725 


to  the  survivor  or  snrvivora  of  them,  but 
if  the  one  so  dying  leave  children  they  to 
receive  the  parent's  share,  with  residuary 
devise  to  nephews  and  niece,  held  to  be  a 
devise  of  a  life  estate  with  a  contingent 
remainder  with  a  double  aspect,  with  re- 
version in  the  heirs  at  law,  who  were  the 
nephews  and  nieces  named  as  residuary 
devisees.  Smith  v.  Chester  (HI.)  1917A- 
925. 

6.  Presumption  in  Favor  of  Vesting. 
The  rule  that  in  cases  of  doubt  or  ambi- 
guity in  the  language  used  in  creating  a 
remainder  a  construction  is  favored  that 
will  make  the  remainder  a  vested  one 
must  give  way  to  the  intention  of  the  tes; 
tator  expressed  in  the  will.  Smith  v. 
Chester  (111.)  1917A-925. 

7.  Where  a  devise  by  its  terms  is  to  a 
person  for  life,  remainder  to  his  children, 
with  the  provision  that  should  any  of  said 
children  die  without  issue  the  children 
surviving  the  death  of  the  testator  shall 
take  the  share  of  such  deceased  children, 
the  remainder  is  vested.  Smith  v.  Ches- 
ter (111.)   1917A-925. 

8.  Contingent  or  Vested.  Where  a  de- 
vise by  its  terms  is  tq  a  person  for  life, 
with  a  remainder  to  such  of  the  children 
of  that  person  as  survive  at  his  death, 
the  remainder  is  contingent.  Smith  v. 
Chester  (111.)  1917A-925. 

9.  Conveyance  of  Contingent  Eemainder. 
One  having  a  contingent  remainder  may 
convey  it.  Love  v.  Lindstedt  (Ore.) 
1917A-898. 

10.  Contingent.  Where  a  testator  de- 
vised property  to  one  for  life,  remainder 
to  his  issue,  and  in  case  of  his  death  with- 
out issue  remainders  over,  the  issue  of 
the  devisee  have  a  contingent  remainder, 
because,  the  fee  could  only  vest  in  them 
if  they  survived  him.  Love  v.  Lindstedt 
(Ore.)   1917A-898. 

11.  Remainder  to  Unborn  Person — ^De- 
struction— Termination  of  Particular  Es- 
tate. Where  a  testator  devised  land  to  his 
son  for  life,  remainder  to  the  son's  issue, 
with  contingent  remainders  over,  and  the 
issue  of  the  son,  who  were  living,  as  well 
as  other  contingent  remaindermen,  con- 
veyed their  interest  to  the  devisee,  the 
devisee  acquired  the  estate  in  fee,  contin- 
gent remainders  to  unborn  persons  being 
defeated  because  the  life  "  estate  upon 
which  they  were  based  was  destroyed. 
Love  V.  Lindstedt  (Ore.)   1917A-898. 

(Annotated.) 

12.  Prpsumption   in    Favor  of   Vesting. 

Unless  it  clearly  appears  from  the  context 
of  a  will  or  the  circumstances  of  the  case 
that  a  contingent  interest  was  intended, 
the  remainder  will  be  regarded  as  vesting 
at  testator's  death,  and  not  at  the  expira- 
tion of  the  life  tenancy.  Tatham's  Estate 
(Pa.)  1917A-855. 


13.  Remainder  to  Heirs  as  Vested  or 
Contingent.  A  devise  of  realty  for  life, 
with  remainder  to  testator's  heirs,  vests 
the  remainder  in  those  answering  such  de- 
scription at  the  time  of  his  death,  unless 
the  will  affords  unequivocal  evidence  to 
the  contrary,  though  the  life  tenant  is 
one  of  the  class  who  will  take  the  re- 
mainder. Tatham's  Estate  (Pa.)  1917A- 
855.  (Annotated.) 

14.  Mere  Contingent  Interest.  The  per- 
sons who  were  to  take  on  the  contingency 
of  J.  dying  without  heirs  of  his  body 
cannot  be  determined  until  J.'s  death,  and 
hence  such  interest  is  a  mere  contingent 
interest  which  is  not  devisable  prior  to 
that  event.  Tevis  v.  Tevis  (Mo.)  1917A- 
865.  (Annotated.) 

15.  Conveyance  Between  Remaindermen. 
A  contingent  remainderman  may  convey  his 
estate  to  another  remainderman.  Lee  t. 
Gates  (N.  Car.)  1917A-514.      (Annotated.) 

16.  Vested  Estate  in  Remainder.  An  es- 
tate given  after  a  life  estate  to  a  person, 
his  heirs  and  assigns  forever,  and  in  the 
event  of  his  death  without  issue  to  an- 
other, is  a  "vested  estate  in  remainder." 
Lee  V.  Oates  (N.  Car.)  1917A-514. 

17.  Remainder  to  Unborn  Person — De- 
struction—  Failure  of  Particular  Estate. 
A  grantor  executed  a  voluntary  convey- 
ance of  land  to  his  son  for  life,  remainder 
to  the  son's  wife  for  life,  should  she  sur- 
vive her  husband,  or  so  long  as  she  re- 
mains his  widow,  remainder  in  fee  to  the 
heirs  of  his  son's  body,  and,  in  default 
of  such  heirs,  reversion  to  the  grantor. 
The  grantor  filed  the  deed  for  record  and 
afterwards  offered  it  to  his  son,  who  re- 
fused to  accept  it.  At  that  time  the  wife 
and  two  children  of  the  son  were  living. 
Held,  the  common-law  restrictions  on  the 
creation  of  future  estates  were  abolished 
by  section  3  of  chapter  22  of  the  Kan. 
General  Statutes  of  1868,  providing  that 
conveyances  of  land  or  of  any  other  estate 
or  interest  therein  may  be  made  by  deed, 
and  the  remainders  to  the  son's  wife  and 
to  the  heirs  of  his  body  are  valid  although 
the  particular  estate  for  life  to  him  did 
not  come  into  existence.  Miller  v.  Miller 
(Kan.)   1917A-918.  (Annotated.) 

18.  Acceleration — ^Refusal  of  Life  Ten- 
ant to  Accept  Conveyance.  The  remain- 
ders are  not  accelerated  by  the  refusal  of 
the  son  to  accept  the  conveyance  of  the 
life  estate  to  him.  Miller  v.  Miller  (Kan.) 
1917A-918. 

19.  Right  of  Remainderman  to  Purchase 
Tax  Title.  A  remainderman  not  in  pos- 
session and  having  no  right  to  the  occu- 
pancy or  use  of  thfe  land  may  purchase  and 
hold  a  tax  title  thereon  under  a  sale  for 
delinquent  taxes  which  the  life  tenant 
ought  to  have  paid.  Jinkiaway  v.  Ford 
(Kan.)   1916D-321.  (Annotated.) 


726 


DIGEST. 

1916C— 1918B. 


20.  Joint  Ecmaln^ennan — ^Bights  Inter 
8e — Tax  Title.  One  of  several  remainder- 
men who  does  not  have  the  poBsession,  or 
right  of  possession,  or  right  to  rents  and 
profits,  who  purchases  the  property  at  a 
sale  for  taxes  which  the  life  tenant  ought 
tc  have  paid,  to  whom  a  tax  deed  valid 
on  its  face  is  issued,  may  hold  the  tax 
title  for  his  own  use  and  benefit  as  against 
other  remaindermen.  Jinkiawav  v.  Ford 
(Kan.)  1916D-321.  (Annotated.) 

21.  Contingent  Bemainder  Created.  A 
deed  conveying  a  life  estate  to  a  grantee 
with  remainder  to  the  heirs  of  his  body, 
executed  when  the  grantee  had  no  child, 
created  a  contingent  remainder,  and  a  re- 
version remained  in  the  grantor  expectant 
on  failure  of  issue.  DuflSeld  v.  Duffield 
(HI.)  1916D-859. 

22.  Nature  of  Estate  —  Remainder  or 
Executory  Devise.  A  future  estate  will 
be  construed  as  a  contingent  remainder 
rather  than  as  executory  devise.  Love  v, 
Lindstedt  (Ore.)  1917A-898. 

Notes. 

Validity  of  conveyance  of  interest  of 
one  remainderman  to  another.  1917A— 
520. 

Eemainder  to  heirs  of  testator  as  vested 
or  contingent.     1917A-859. 

Destruction  of  contingent  remainder  to 
nnborn  person.     1917A-902. 

BEMAND. 

Bern  and  for  new  trial,  see  Appeal  and 
Error.  462-469. 

Bemand  for  new  findings,  see  Appeal  and 
Error,  470. 

Remand  tor  nroper  judgment,  see  Appeal 
and  Error,  471. 

Jurisdiction  of  appellate  court  after  re- 
mand, see  Appeal  and  Error,  475. 

Amendment  of  pleadings  on  remand,  see 
Appeal  and  Error,  476. 

For  resentence,  see  Sentence  and  Punish- 
ment, 21. 

BEMITTITUE. 

Voluntary  by  plaintiff,  not  prejudicial,  see 

Appeal  and  Error,  212. 
Cure   of   error  by  remittitur,  see  Appeal 

and  Error,  306. 

EEMOVAL. 
Of  encumbered  goods,  see  Liens,  3,  5. 

BEMOVAL  FBOM  OFFICE. 

See  Public  Of&cers,  44-57. 

Of  city  oflScers,  see  Municipal  Corpora- 
tions, 137-148. 

Of  sheriff,  see  Sheriffs  and  Constables,  14- 
17. 

Of  trustee,  see  Trusts  and  Trustees,  27-29. 


BEMOVAL  OF  CAUSEa 

1.  Eight  of  Removal. 

2.  Effect  of  Attempt  to  Remove, 

3.  Effect  of  Removal. 

4.  Appealability  of  Order. 

"What  constitutes  appearance,  see  Appear- 
ances, 1. 

Motion  to  remove  as  extending  time  to 
plead,  see  Judgments,  50. 

Effect  of  defect  in  proceedings,  see  Jus- 
tices of  the  Peace,  1. 

Verification  of  petition  for  removal,  see 
Justices  of  the  Peace,  2. 

1.     RIGHT  OF  REMOVAL. 

1.  Action  Under  Federal  Employers' 
Liability  Act.  An  action  brought  under 
the  U.  S.  Employers'  Liability  Act  of 
April  22,  1908  (35  Stat.  L.  65,  c.  149,  Fed. 
St.  Ann.  1909  Supp.  p.  584),  as  amended 
by  the  Act  of  April  5,  1910  (36  Stat.  L. 
291,  c.  143,  Fed.  St.  Ann.  1912  Supp. 
p.  335),  cannot  be  removed  from  a  state 
to  a  federal  court  upon  the  ground  of 
diverse  citizenship.  Southern  E.  Co.  v. 
Puckett  (U.  S.)  1918B-69. 

2.    EFFECT  OF  ATTEMPT  TO  REMOVE. 

2.  Invalid  Attempt  to  Remove  Cause — 
Power  of  State  Court  to  Proceed.  When 
a  defendant  attempts  to  remove  an  action 
which  he  is  not  entitled  to  remove,  and 
the  state  court  refuses  to  surrender  its 
jurisdiction,  the  state  court  may  proceed 
with  the  cause,  and  its  subsequent  pro- 
ceedings are  valid.  State  v.  American 
Surety  Co.  (Idaho)  1916E-209. 

3.     EFFE'CT  OF  REMOVAL. 

3.  Striking  Case  from  Calendar. .  There 
being  no  cause  pending  in  the  state  dis- 
trict court  after  the  transfer  or  removal, 
an  order  striking  it  from  the  calendar  of 
the  court  was  right  and  is  affirmed.  Ewert 
V.  Minneapolis,  etc.  B.  Co.  (Minn.)  1916I>- 
1047. 

4.     APPEALABILITY  OF  ORDER. 

4.  Appealability  of  Order  for  EemovaL 

An  order  of  the  district  court,  transfer- 
ring a  cause  to  the  federal  district  court 
upon  petition,  made  and  bond  filed  by  a 
foreign  corporation,  is  not  appealable. 
The  apoeal  is  dismissed.  Ewprt  v.  Minne- 
apolis, etc.  R.  Co.  (Minn.)  1916D-1047. 

(Annotated.) 

Note. 

Appealability  of  order  transferrin?  cause 
from  state  to  "federal  court.     1916D-1049. 


BEMOVAL  OF  CLOUD. 
See  Quieting  Title. 


RENDITION  OF  JUDGMENT— REPLEVIN. 


727 


RENDITION  OF  JUDGMENT. 
See  Judgments,  12-14. 

BENEWAL. 

Of  void  note,  effect,  see  Bills  and  Notes, 
38. 

BENEWAL  OF  I.EASE3. 
See  Landlord  and  Tenant,  49-52. 

BENTS. 
See  Landlord  and  Tenant,  21-27,  29-40. 
Eental  value  as  item  of  damage,  see  Auto- 
mobiles, 52-56. 
Incorporeal  hereditament,  see  Property,  1. 
Computation  of  time,  see  Time,  4. 

BENTS  AND  PBOFITS. 

Accounting  for,  see  Executors  and  Admin- 
istrators, 52. 

BEOPENING  CASE. 

Tor  further  proof,  see  Trial,  31-32. 

BEPAIB  MAN. 

As    within    Federal    Employers'   Liability 

Act,  see  Master  and  Servant,  57. 

BEPAIBS. 
See  Landlord  and  Tenant,  14,  15,  19,  38. 

BEPEAL. 
Of  ordinances,  see  Municipal  Corporations, 
105. 

BEPEAL  OF  BEPEALING  LAW. 
Effect,  see  Statutes,  122,  123. 

BEPEAL  OF  STATUTES. 
See  Statutes,  116-125. 

REPETITION. 

Liability  for,  see  Libel  and  Slander,  5,  13, 
103,  124,  145. 

BEPLEVIN. 

1.  N  ture  of  Remedy,  727. 

2.  "When  Cause  of  action  Accrues,  727. 

3.  Replevin  of  Detinue  Bond,  727. 

4.  Forthcoming  Bond,  727. 

5.  Damages,   727. 

6.  Pleading,  728, 

7.  Evidence,  728. 

8.  Judgment,  728. 

Amendment    of    complaint,    see   Pleading, 
69. 

1.     NATURE  OF  REMEDY. 

1.  Lawful    Act    Induced    by    Improper 
Motion.     Where    a   plaintiff   has   a   legal 


right  to  replevin  property,  it  is  immate- 
rial what  motives  induce  him  to  assert 
such  right.  Vitagraph  Co.  ▼.  Swaab  (Pa.) 
1916C-311. 

2.    WHEN    CAUSE    OF    ACTION    AC- 
CRUES. 

2.  Moving    Pictures  —  Lease    of    FUm. 

Where  a  license  contract  for  the  use  of 
motion  picture  films  provided  that  the  con- 
tract could  be  terminated  by  the  licensor 
on  14  days*  notice,  and  that  the  right  to 
possession  of  all  films  should  revert  20 
days  after  notice  of  such  termination  to 
the  licensor,  replevin  issued  one  day  be- 
fore the  time  thus  fixed  is  premature. 
Vitagraph  Co.  t.  Swaab  (Pa.)  19160-311. 

(Annotated.) 

3.     REPLEVIN  OR  DETINUE  BOND. 

3.  Detinue — ^Action  on  Bond — ^Becovery 
of  Attorney's  Fees.  Under  Rev.  St.  §  915 
(4  Fed.  St.  Ann.  p.  577),  declaring  that 
in  common-law  causes  in  the  federal  courts 
the  plaintiff  shall  be  entitled  to  similar 
remedies  against  the  property  of  the  de- 
fendant as  are  provided  by  the  laws  of 
the  state  wherein  the  court  is  held,  upon 
furnishing  the  security  required  by  the 
state  laws,  the  federal  court,  in  issuing  a 
writ  of  detinue  in  accord  with  the  state 
practice,  does  so  by  the  authority  of  the 
federal  statutes,  the  proviso  that  similar 
security  as  is  required  by  state  laws  shall 
be  given  relating  to  the  form  and  sub- 
stance of  the  detinue  bond,  and  not  to  the 
elements  of  damage  which  may  be  recog- 
nized by  the  state  courts  as  part  of  their 
general  jurisprudence;  and  therefore,  in 
an  action  on  a  detinue  bond  given  in  the 
federal  court,  the  defendant,  though  suc- 
cessful, cannot  recover  attorney's  fees,  as 
such  fees  are  not  allowed  in  federal  courts. 
National  Surety  Co.  v.  Fletcher  (Ala.) 
1915D-872.  (Annotated.) 

Note. 
Right  to  recover  attorney's  fees  in  ac- 
tion on  replevin  or  detinue  bond.     1916D- 
874. 

4.     FORTHCOMING  BOND. 

4.  Failure  to  Give  Forthcoming  Bond — 
Effect.  Where  defendant,  the  mortgagee 
of  an  automobile,  prosecutes  replevin  'n 
another  state,  under  which  the  machine  is 
properly  taken  into  the  officer's  possession, 
and  delivered  to  the  mortgagee's  attorney, 
the  officer's  failure  to  secure  a  bond  from 
the  mortgagee  before  such  delivery,  al- 
though he  might  be  liable  for  consequent 
loss,  does  not  make  the  action  wrongful 
or  entitle  the  mortgagor  to  maintain  re- 
plevin therefor.  Allis-Chalmers  Co.  v. 
Atlantic  (Iowa)  1916D-910. 

5.     DAMAGES. 

5.  Damages  for  Detention  of  Property. 
Where   plaintiff   in   replevin   has   secured 


728  DIGEST. 

1916C— 1918B. 
possession  of  property,  he  mav  ordinarily       statement  was  filed 


recover  damages  for  the  detention  meas- 
ured by  interest  and  depreciation  in  value. 
Armstrong  v.  Pniladelphia  (Pa.)  1917B- 
1082. 

Q.  Exemplary  Damages  for  Detention. 
Exemplary  damages  may  be  recovered  in 
replevin  only  where  there  have  been  par- 
ticular circumstances  of  fraud,  oppression, 
or  wrong  in  the  taking  or  detention  of  the 
property.  Armstrong  v.  Philadelphia  (Pa.) 
1917B-1082. 

7.  Value  of  Use  of  Property  Detained. 

Where  property  replevied  is  capable  of 
such  physical  use  and  enjoyment  as  can- 
not be  compensated  for  by  allowing  in- 
terest, the  damages  recoverable  by  plain- 
tifif  must  be  determined  by  considering  the 
value  of  such  use,  but  in  determining  such 
value,  care  should  be  taken  not  to  permit 
the  fixing  of  an  amount  out  of  proportion 
to  the  value  of  the  thing  itself.  Arm- 
strong V.  Philadelphia  (Pa.)    1917B-1082. 

(Annotated.) 

8.  The  measure  of  damages  for  the  de- 
tention of  rentable  property  is  the  rental 
value,  unless  the  property  be  not  used,  in 
which  case  the  value  of  depreciation  by 
use  must  be  deducted  from  the  rental 
value.  Armstrong  v.  Philadelphia  (Pa.) 
1917B-1082.  (Annotated.) 

9.  Liability  for  Unfounded  Suit — Ex- 
emplary Damages.  That  the  sherifif  in 
executing  a  writ  of  reolevm  necessarily 
went  to  defendant's  place  of  business,  and 
thereby  caused  him  some  inconvenience, 
does  not  entitle  defendant  to  exemplary 
damages.  Vitagraph  Co,  v.  Swaab  (Pa.) 
1916C-311. 

10.  In  view  of  the  fact  that,  though  de- 
fendant in  such  case  could  have  held  pos- 
session of  the  films  on  hand  even  after  ex- 
piration of  the  20  days,  he  had  no  right  to 
use  them,  he  is  entitled  only  to  nominal 
damages  by  reason  of  the  premature  issu- 
ance of  the  replevin.  Vitagraph  Co.  v. 
Swaab  (Pa.)  1916C-311.  (Annotated.) 

11.  Giving  Redelivery  Bond  as  Evidence 
of  Malice.  In  replevin  for  wearing  ap- 
parel, trunks,  etc.,  of  the  alleged  value  of 
$1,751,  held  on  a  claim  for  $241,  with  a 
claim  of  damages  for  wrongful  taking  and 
detention,  where  defendant  gave  the  rede- 
livery bond  required  by  the  code  and  had 
the  goods  returned  to  him,  the  redelivery 
was  not  admissible  as  evidence  of  the  de- 
fendant's malice  or  animus,  since  he  had  a 
clear  statutory  right  to  the  redelivery. 
Scanlan  v.  La  Coste  (Colo.)  1917A-254. 

6.     PLEADING. 

12.  A  claim  for  damages  for  delay  in 
payment  for  the  detention  of  property  can- 
not be  first  introduced  by  an  amendment 
made  to  plaintiff's  statement  in  replevin 
more    than    six   years    after    the    original 


Armstrong  v.  Phila- 
delphia  (Pa.)   1917B-1082. 

13.  Plaintiff's  Ownership  not  Denied. 
Since  an  issue  is  a  disputed  point,  and  the 
Pa.  Eeplevin  Act  of  April  19,  1901  (P.  L. 
88),  intends  that  only  the  disputed  aver- 
ments of  lact  in  the  declaration  and  affi- 
davit of  defense  shall  constitute  the 
issues,  plaintiff's  ownership  of  the  prop- 
erty in  controversy  is  not  in  issue,  where 
it  is  not  denied  by  the  affidavit  of  de- 
fense. Vitagraph  Co.  v.  Swaab  (Pa.) 
1916C-311. 

7.  EVIDENCE. 

14.  Moving  Pictures  —  Lease  of  Film. 
Evidence  in  an  action  to  replevin  motion 
picture  films,  held  to  show  not  only  that 
defendant  had  received  the  films  from 
plaintiff  under  a  lease,  but  that  plaintiff 
owned  same.  Vitagraph  Co.  v.  Swaab 
(Pa.)  1916C-311.  (Annotated.) 

15.  Evidence  in  an  action  by  the  lessor 
to  replevin  motion  picture  films  leased  to 
defendant  under  a  lease  canceled  by  plain- 
tiff by  reason  of  a  breach  thereof  by  de- 
fendant held  insufficient  to  show  that  the 
cancellation  of  the  lease  and  taking  of  the 
films  was  pursuant  to  a  special  conspiracy 
between  the  lessor  and  other  lessees  such 
as  entitled  defendant  to  exemplary  dam- 
ages. Vitagraph  Co.  v.  Swaab  (Pa.) 
1916C-311.  (Annotated.) 

8.  JUDGMENT. 

16.  Value  of  Property.  Section  7833, 
Neb.  Eev.  St.  1913,  provides  that,  when 
the  finding  is  for  the  defendant  in  an  ac- 
tion of  replevin,  the  judgment  shall  be 
"for  a  return  of  the  property  or  the  value 
thereof  in  case  a  return  cannot  be  had." 
The  "value  thereof"  is  instead  of  a  return 
of  the  property  when  a  return  cannot  be 
had.  and  should  be  the  equivalent  of  the 
propertv  itself  as  it  was  at  the  time  of 
the  trial.  Wallace  v.  Cox  (Neb.)  1917D- 
699. 

REPLICATION. 
See  Pleading,  33. 

REPLY. 

See  Pleading,  63-65. 


REPRESENTATIONS. 
When  fraudulent,  see  Fraud,  1-7. 


REPRIEVES. 


See  Pardons. 


REPUBLICAN 


FORM 
MENT. 


OF      GOVERN- 


Legislative     concern,     see     Constitutional 
Iiaw,  103. 


RESCISSION,  CANCELLATION  AND  REFORIMATION. 


729 


REPUDIATION. 

For  fraud,  see  Contracts,  51-53,  98,  99, 100. 
Of    stock    subscription,   see    Corporations, 

64-70. 
Of  contract  by  minor,  see  Infants,  8-14. 


EEPUTATION. 

Chastity  of  defendant,  see  Bastardy,  5. 

Of  accused,  evidence,  see  Criminal  Law, 
49   50,  96,  97. 

Of  plaintiff,  see  Malicious  Prosecution,  15. 

Evidence  of  on  impeachment,  see  Wit- 
nesses, 109-112. 


REQUESTS  TO  CHARGE. 

See  Instructions,  18-42. 

RES  ADJUDICATA. 
See  Judgments,  58-79. 


RESCISSION,      CANCELLATION     AND 
REFORMATION. 

1.  Reformation,  729. 

a.  Instrument  Subject,  729. 

b.  Conditions  Precedent,  729. 

c.  Defenses,  729. 

d.  Evidence,  729. 

e.  Extent  of  Relief,  730. 

2.  Rescission  and  Cancellation,  730. 

a.  Grounds,  730. 

b.  Defenses,  731. 

c.  Time  for  Rescission,  731. 

d.  Conditions  Precedent,  731. 

e.  Pleading,  731. 

f.  Evidence,  732. 

g.  Decree,  732. 

Cancellation  of  naturalization,  see  Aliens, 
12-14. 

Assignability  of  right  to  sue  for  rescis- 
sion, see  Assignments,  16,  22. 

Cancellation  of  policy  by  insurer,  see  Fir© 
Insurance,  25. 

Creditor's  suit  to  avoid  conveyance,  see 
Fraudulent  Sales  and  Conveyances,  6. 

Trustee's  suit  to  cancel  deed  withheld  from 
record,  see  Fraudulent  Sales  and  Con- 
veyances, 8. 

Vacation  of  judgment,  see  Judgment,  30- 
42. 

Suit  to  set  aside  judgment  as  direct  at- 
tack, see  Judgments,  80. 

Nev?  trial  not  a  matter  of  right,  see  New 
Trial,  8. 

Rescission  of  contract  to  sell  land,  see 
Vendor  and  Purchaser,  9-13. 

Suit  to  cancel  living  person's  will,  see 
Wills,  116. 

1.     EEFOEMATION. 

a.     Instruments  Subject. 

1.  Wills.  Strictly  speaking,  courts  of 
equity  have  no  power  to  reform  a  will,  as 
that  term  is  used  with  respect  to   other 


instruments,  and  it  is  only  where  the  mis- 
take in  a  will  is  apparent  on  its  face,  and 
the  court  is  able  to  ascertain  the  means 
of  correcting  a  mistake,  that  a  court  of 
equity  will  correct  a  mistake  in  a  will. 
Lewis  V.  Reed's  Executor  (Ky.)  191 7D- 
1155.  (Annotated.) 

2.  Note  Containing  Blank.  Where  a  note 

recited  that  it  was  payable  in  "four ," 

the  instrument  may  be  reformed  so  as  to 
supply  the  omission  and  gire  effect  to  the 
parties'  intention.  Estate  of  Philpott 
(Iowa)  1917B-839. 

3.  Deed.  Although  a  deed  may  be  void 
on  its  face  for  want  of  a  definite  descrip- 
tion of  the  land,  a  court  of  chancery  will 
reform  it  upon  proper  allegation  and 
proof  of  extrinsic  facts.  Nolen  t.  Henry 
(Ala.)  1917B-792. 

Notes. 

Jurisdiction  of  equity  to  reform  will. 
1917D-1157. 

Eight  to  reformation  of  conveyance  of 
ihomestead.     1916£^1131. 


b.     Conditions  Precedent. 

4.  Right  to  Sue  for  Reformation — ^Per-- 
son  Out  of  Possession.  To  maintain  a  bill 
to  correct  a  mistake  in  the  description  of 
land  conveyed  by  a  deed,  it  is  not  neces- 
sary that  the  complainant  should  be  in 
possession  of  the  land.  Nolen  v.  Henry 
(Ala.^  1917B-792. 

e.    Defenses. 

5.  Laches.  Where  land  was  conveyed  to 
a  power  company  in  May,  1909,  and  con- 
veyed by  it  to  complainant  in  March,  1913, 
after  the  death  of  the  original  grantors, 
complainant's  bill,  thereafter  filed,  for  re- 
formation of  the  description  in  the  deed, 
is  not  too  long  delayed.  Nolen  v.  Henry 
(Ala.)   1917B-792. 

d.    Evidence. 

6.  Evidence  of  Mistake  Suflclent.  Evi- 
dence  examined  and  held  sufficient  to  sus- 
tain a  finding  that  both  husband  and  wife 
agreed  to  grant  the  right  of  way  in  con- 
troversy, and  that  it  was  omitted  from  the 
deed  by  mutual  mistake.  Lindell  v.  Peters 
(Minn.)   19161^1130. 

7.  Proof  of  Mistake — Parol  Evidence. 
Parol  evidence  of  mistake  in  a  written 
contract  is  admissible  for  purpose  of  re- 
formation. Archer  v.  McClure  (N.  Car.) 
1916C-180. 

8.  Sufficiency    of    Evidence    for    Jury. 

Whether  the  evidence  of  mistake,  warrant- 
ing reformation  of  an  instrument,  is  of  the 
necessary  clear,  strong,  and  convincing 
character  is  a  question  for  the  jury. 
Archer  v.  McClure  (N.  Car.)  1916C-180. 


730 


DIGEST. 

1916C— 1918B. 


•.    Extent  of  Belief. 


9.  Eeformation  of  Bond  —  Changing 
Name  of  Obligee.  It  being  intended  that 
a  bond  should  be  to  the  plaintiffs  in  an 
action,  with  whom  a  contract  therefor  was 
made,  and  by  mutual  mistake  it  being 
made  to  one  who  was  their  active  agent 
in  prosecuting  the  action,  it  will  be  re- 
formed, though  the  loss  has  occurred,  and 
the  surety's  principals  have  become  bank- 
rupt. Archer  v.  McClure  (N.  Car.)  1916C- 
180.  (Annotated.) 

10.  Conveyance  of  Homestead.  A  con- 
veyance of  the  homestead,  or  a  portion 
thereof,  executed  by  both  husband  and 
wife,  as  required  by  statute,  may  be  re- 
formed by  correcting  a  misdescription  of 
the  property  intended  to  be  conveyed 
thereby.  Lindell  v.  Peters  (Minn.)  1916E- 
1130.  (Annotated.) 

Note. 
Bight  to  reform  bond  by  changing  name 
of  obligee.     1916C-184. 

2.     EESCISSION  AND  CANCELLATION, 
a.     Grounds. 

11.  Promise  as  Fraud.     On  an  exchange 
■  of  real  property  by  plaintiff  for  a  rooming 

house,  the  promise  of  the  defendants  to 
stand  by  or  behind  the  plaintiff  in  the 
rooming  house  business  cannot  be  made 
the  basis  for  rescission  of  the  exchange. 
Haney  v.  Parkison  (Ore.)   1916D-1035. 

12.  Fraud  Insufftcient.  Where  complain- 
ant conveyed  land  and  other  property  to 
H.  in  trust  for  herself,  in  order  that  she 
might  prevent  the  property  being  taken 
under  judgment  which  she  expected  hiight 
be  rendered  against  her,  but  which  trust 
H.  denied,  his  failure  to  disclose  the  same 
to  complainant's  attorneys  at  the  time  a 
subsequent  settlement  was  entered  into  be- 
tween them,  in  which  complainant  exe- 
cuted to'  H.  and  wife  the  deed  in  contro- 
versy, was  not  such  fraud  on  his  part,  on 
the  theory  that  he  was  under  a  fiduciary 
relation  to  complainant  as  entitled  her  to 
have  the  settlement  and  deed  set  aside. 
Grant  v.  Harris  (Va.)  1916D-1081. 

13.  Illegal  Contract — Relief  to  Parties  in 
Pari  Delicto — Exception  to  Rule.  Where 
a  contract,  illegal  as  being  against  com- 
mon honesty  and  therefore  against  public 
policy,  has  been  wholly  or  partially  exe- 
cuted, the  law  will  extend  no  relief,  but 
will  treat  the  parties  as  in  pari  delicto, 
and  leave  them  where  they  have  placed 
themselves;  such  rule  having  its  basis  in 
public  policy,  and  being  enforced,  not  for 
the  benefit  of  the  parties,  but  of  the  pub- 
lic. There  are  exceptions  to  the  rule,  and, 
although  the  parties  are  in  pari  delicto, 
yet,  where  it  appears  that  the  public  in- 
terests will  be  better  promoted  by  grant- 
ing relief  to  the  plaintiff  than  by  deny- 
ing  it,  the    court,   in   its   discretion,   and 


acting  with  proper  caution,  may  intervene 
and  grant  relief;  the  inquirv  being 
whether  plaintiff,  if  innocent,  would  be  en- 
titled to  relief,  and  whether  the  public  in- 
terest requires  that  relief  be  afforded,  not- 
withstanding his  guilt.  GUchrist  v.  Hatch 
(Ind.)    1917E-1030.  (Annotated.) 

14.  A  transaction  whereby  plaintiff 
agreed  with  one  of  the  defendants,  the 
manager  of  an  oil  company,  and  the  holder 
of  the  majority  of  the  stock,  to  purchase 
certain  stock  to  be  paid  for  by  convey- 
ance of  realty  and  a  note,  in  consideration 
that  the  directors  of  the  company  would 
elect  plaintiff  as  its  secretary  and  attor- 
ney at  an  annual  salary,  and  whereby  an- 
other defendant,  to  whom  the  manager 
was  indebted,  was  to  receive  the  plaintiff's 
conveyance  and  note,  and  himself  give  the 
manager  credit  in  such  amount,  which  pur- 
chase by  plaintiff  was  induced  by  the  false 
and  fraudulent  representations  of  the  man- 
ager as  to  the  value  of  the  company's  prop- 
erty and  as  to  the  production  of  its  wells, 
and  where  the  defendants  conspired  to 
perpetrate  the  fraud,  and  actually  parti- 
cipated therein,  even  if  illegal  as  a  con- 
tract looking  to  the  control  of  the  com- 
pany, was  entered  into  by  plaintiff  under 
siwh  circumstances  that  equity  will,  in 
view  of  public  policy  requiring  fraud- 
ulent promoting  schemes  be  thwarted, 
award  him  relief  by  ordering  a  reconvey- 
ance of  title.  Gilchrist  v.  Hatch  (Ind.) 
1917E-1030.  (Annotated.) 

15.  Illegal  Contract — Belief — Parties  not 
in  Pari  Delicto.  Although  the  parties  to 
a  transaction  have  concurred  in  an  illegal 
act,  they  are  regarded  as  not  equally 
guilty,  where  one  party  has  been  induced 
into  the  contract  through  fraud,  oppres- 
sion, or  imposition  on  the  part  of  the 
other,  and  under  such  circumstances 
equity  will  intervene  to  relieve  against 
the  fraud,  etc.,  whenever  the  public  good 
requires  it.  Gilchrist  v.  Hatch  (Ind.) 
1917E-1030. 

16.  Fraud — False  Representation  to  Pro- 
cure Deed — Evidence  InsuflB.cient.  On  a 
bill  to  set  aside  a  deed  on  the  ground  that 
complainants'  signature  thereto  had  been 
obtained  upon  fraudulent  representations 
that  it  was  necessary  to  enable  the  grantee 
to  administer  an  estate  in  which  tlK^  par- 
ties were  interested,  upon  which  represen- 
tations complainants  had  relied,  held  in- 
sufficient to  show  the  invalidity  of  the 
deed  on  the  grounds  alleged.  Houlihan  v. 
Morrissey  (111.)  1917A-364. 

17.  Duress — What  Constitutes — Threat 
to  Prosecute  Parent.  Where  defendant 
threatened  to  have  plaintiff's  father  sent 
to  the  penitentiary  for  fraud  in  the  sale 
of  lands  unless  plaintiff  conveyed  at  an 
inadequate  price  lands  which  he  owned, 
a  court  of  equity  will  cancel  the  convey- 
ance.    Embry    v.    Adams     (Ala.)     1917C- 

'  1024.  (Annotated.) 


RESCISSION,  CANCELLATION  AND  REFORMATION. 


731 


Note. 
Statement  of  opinion  as  to  future  profits 
of  business  as  ground  for  action  for  fraud 
or  for  rescission  of  contract.     1&16D-1040. 

b.     Defenses. 

18.  Waiver  of  Right  to  Rescind — Delay. 

Where  plaintiff,  after  discovering  the  fal- 
sity of  the  representations  by  which  he 
was  induced  to  purchase  land,  remained  in 
possession  for  a  number  of  months  and 
then  leased  the  premises  before  beginning 
suit,  his  delay  was  an  aflSrmance  of  the 
contract  precluding  rescission.  Cooper  r. 
Hillsboro  Garden  Tracts  (Ore.)  1917E- 
840. 

c.     Time  for  Rescission. 

19.  Contract  for  Future  Support — ^Rescis- 
sion after  Part  Performance.  After  a  par- 
tial performance  by  the  grantee  of  his  ob- 
ligation to  support  the  grantor,  the  grantor 
may  not  abandon  the  same  or  prevent 
further  performance  upon  the  part  of  the 
grantee  and  take  advantage  of  such  fail- 
ure to  secure  equitable  aid  to  cancel  or 
rescind  the  deed.  Soper  v.  Cisco  (N.  J.) 
1918B-452. 

20.  A  grantor,  having  made  a  convey- 
ance of  her  property  to  her  daughter  in 
consideration  of  $300  and  "support  during 
her  natural  life"  therein  expressed,  and 
having  at  the  time  the  undoubted  mental 
capacity  to  make  it,  and  who  delays  chal- 
lenging its  validity  for  sixteen  years  and 
until  the  lawyer  who  transacted  the  busi- 
ness is  dead,  and  the  memory  of  other  wit- 
nesses respecting  important  facts  is  dim, 
and  the  mental  faculties  and  memory  of 
the  grantor  herself  have  been  so  impaired 
as  to  render  her  testimony  valueless,  will 
not  be  permitted  to  set  aside  such  convey- 
ance when  it  appears  that  during  all  such 
time  she  had  been  supported  by  her  daugh- 
ter satisfactorily,  and  the  grantor  for 
eleven  years  after  the  conveyance  was  well 
aware  that  she  had  made  it  and  was  un- 
der no  physical  or  mental  disability  nor 
prevented  by  coercion  or  poverty  from  fil- 
ing a  bill  to  set  it  aside  if  she  had  desired 
to  do  80.  Soper  v.  Cisco  (N.  J.)  1918B- 
452. 

d.     Conditions  Precedent. 

21.  Necessity  of  Restoration  of  Consid- 
eration. A  party  seeking  to  rescind  a  con- 
tract, as  authorized  by  Mont.  Rev.  Codes, 
§  5063,  must  restore  or  offer  to  restore  to 
the  adverse  party  everything  of  value  re- 
ceived under  the  contract,  on  condition 
that  the  adverse  party  will  do  likewise. 
Suburban  Homes  Co.  v.  North  (Mont.) 
1917C-81. 

22.  Vendor  and  Purchaser — Rescission  of 
Contract — Restoration  of  Payments.  A 
vendor,  suing  for  the  cancellation  of  a 
contract  of  sale  to  clear  his  title,  by  as- 
serting his  right  under  the  contract  for  the 


failure  of  the  purchaser  to  pay  instalments 
called  for,  need  not  restore  or  offer  to  re- 
store payments  made.  Suburban  Homes 
Co.  V.  North  (Mont.)   1917C-81. 

23.  Reimbursement  of  Purchaser  for  Im- 
provements— Contract  Canceled  for  Pur- 
chaser's Default.  A  vendor  suing  to  re- 
scind the  contract  of  sale  for  the  failure 
of  the  purchaser  to  pay  required  instal- 
ments need  not  pay  or  offer  to  pay  for  im- 
provements made  on  the  property  by  the 
purchaser,  in  the  absence  of  a  showing 
that  the  improvements  were  within  the 
contemplation  of  the  parties  at  the  making 
of  the  contract  and  the  performance  has 
not  been  prevented  by  his  breach  of  con- 
tract. Suburban  Homes  Co.  v.  North 
(Mont.)  1917C-81.  (Annotated.) 

24.  Breach  of  Condition — Rescission  of 
Deed.  Where  a  condition  subsequent  in  a 
deed  for  the  benefit  of  the  grantor  and  its 
other  grantees  that  the  grantee  shall  not 
sell  to  a  negro  is  broken  by  a  sale  on  con- 
sideration, the  grantee  under  La.  Rev.  Civ. 
Code,  arts.  2046,  2047,  will  be  given  time 
to  cancel  the  sale  to  the  negro  before  a 
rescission  of  the  grantee's  deed  is  had. 
Queensborough  Land  Co.  v.  Cazeaux  (La.) 
1916D-1248. 

25.  Putting  Purchaser  on  Default — Ten- 
der of  Deed.  Where  the  complaint  in  an 
action  by  a  vendor  to  cancel  the  contract 
for  the  purchaser's  breach  in  failing  to 
pay  required  instalments  did  not  allege 
that  a  demand  on  the  purchaser  to  pay  the 
price  was  accompanied  by  a  tender  of  a 
deed,  but  a  deed  was  tendered  on  the  trial, 
and  the  purchaser  failed  to  respond  to  the 
demand  of  the  vendor,  and  failed  to  tender 
payment  at  the  trial  and  demand  a  deed, 
the  vendor  is  entitled  to  relief.  Suburban 
Homes  Co.  v.  North   (Mont.)   1917C-81. 

26.  Ultra  Vires  Contract — Annulment — 
Return  of  Consideration.  Where  the  con- 
tract was  fully  executed  on  both  sides,  a 
court  of  equity  will  not  set  aside,  as  ultra 
vires,  a  mortgage  given  by  the  directors  of 
a  manufacturing  corporation,  which  re- 
ceived and  enjoyed  the  proceeds  of  the 
loan,  without  first  ordering  a  return  of  the 
consideration.  Dillon  v.  Myers  (Colo.) 
1916C-1032. 

e.     Pleading. 

27.  General  DeniaL  Where  plaintiff,  al- 
leging that  she  was,  by  fraudulent  repre- 
sentations of  an  agent  of  defendant,  in- 
duced to  apply  for  its  home  purchasing  in- 
vestment contracts  and  led  to  pay  it 
money,  and  that  on  the  discovery  of  the 
fraud  she  seasonably  elected  to  end  the 
agreement  and  demanded  a  recovery  of 
the  money  paid,  the  issues  can  be  pre- 
sented by  a  plea  of  the  general  issue.  Cap- 
ital Securities  Co.  v.  Gilmer  (Ala.)  1917A- 
888. 

28.  Suflaciency  of  Allegation  of  Fraud. 
In  a  suit  to  rescind  a  contract  for  the  pur- 


732 


DIGEST. 

19160— 1918B. 


chase  of  land  on  the  ground  of  misrepre- 
sentations, the  complaint,  which  in  addi- 
tion to  a  detailed  specification  of  the  state- 
ments made  by  defendant  averred  that 
they  were  false  and  known  to  be  false  at 
the  time  made,  that  they  were  made  for 
the  purpose  of  inducing  the  plaintiff  to 
purchase  the  land,  and  that  plaintiff  en- 
tered into  the  agreement  relying  on  the 
representations,  and  would  not  have  done 
so  had  he  known  their  falsity,  is  sufficient, 
when  not  attacked  until  the  introduction 
of  evidence,  though  not  specifically  point- 
ing out  wherein  the  representations  were 
untrue.  Cooper  v.  Hillsboro  Garden  Tracts 
(Ore.)  1917E-840. 

29.  Allegations  Showing  Plaintiff  Free 
from  Fault.  A  purchaser,  making  partial 
payments  under  the  contract  and  then  vol- 
untarily breaching  it  by  failing  to  make 
further  payments,  cannot  recover  the  pay- 
ments made,  without  alleging  and  proving 
that  his  default  was  not  the  result  of  his 
grossly  negligent,  wilful,  or  fraudulent 
breach  of  duty,  and  then  only  on  full  com- 
pensation to  the  vendor,  as  provided  by 
Mont.  Rev.  Codes,  §  6039.  Suburban 
Homes  Co.  v.  North  (Mont.)  1917C-81. 

f.     Evidence. 

30.  Lost  Instrument — Sufadency  of  Evi- 
dence to  Show  Execution.  In  a  suit  to  set 
aside  a  deed  from  a  father  to  his  son,  evi- 
dence held  insufficient  to  show  that  a  con- 
tract making  the  conveyance  subject  to  a 
trust  was  executed  contemporaneously  with 
the  deed  or  with  reference  to  the  deed. 
Queen  v.  Queen  (Ark.)  1917A-1101. 

31.  Fiand — ^Evidence  Insufficient.  In  a 
suit  to  rescind  an  exchange  of  real  prop- 
erty for  a  rooming  house  business,  evidence 
held  not  to  show  that  the  defendants  made 
any  representation  as  to  the  value  of  the 
furniture  and  location  of  the  rooming 
house.  Haney  v.  Parkison  (Ore.)  1916I>- 
1035, 

32.  Fraud  or  Duress — Evidence  Insuffi- 
cient. In  a  suit  to  set  aside  a  settlement, 
and  a  deed  executed  by  complainant  pur- 
suant thereto,  evidence  held  insufficient  to 
show  that  the  settlement  was  obtained  by 
fraud  or  duress,  or  that  complainant  was 
overreached  or  induced  to  execute  the  same 
without  knowledge  of  its  effect.  Grant  v. 
Harris  (Va.)  1916D-1081. 

g.    Decree. 

33.  Where  a  grantor  under  a  deed  is  en- 
titled to  support,  and,  at  the  age  of  nintty- 
three,  when  her  mental  faculties  are  so  im- 
paired as  to  render  it  unjust  to  hold  her 
to  a  strict  accountability  for  her  attitude, 
declines  to  be  supported  at  the  place  where 
she  has  been  satisfactorily  supported  for 
sixteen  years,  and  makes  no  demand  for 
support  elsewhere  but  files  a  bill  for  can- 
cellation of  the  deed,  which  relief  must  be 


denied  by  the  court,  equity  requires  that 
at  the  option  of  the  complainant  provision 
for  prompt  and  adequate  support  shall  be 
secured  to  her  in  that  proceeding,  Soper 
V.  Cisco  (N.  J.)  1918B-452. 

34,  Where  in  an  action  by  a  vendor  for 
the  cancellation  of  the  contract  of  sale  for 
the  purchaser's  failure  to  pay  instalments, 
the  answer  set  forth  merely  defensive  mat- 
ter, the  purchaser  cannot  object  to  a  de- 
cree granting  relief  on  the  ground  that  the 
vendor  did  not  pay  or  tender  payment  for 
improvements  maae  on  the  property.  Su- 
burban Homes  Co.  v.  North  (Mont.)  1917C- 
81.  (Annotated.) 

35.  A  decree  in  a  suit  by  a  vendor  to 
cancel  the  contract  of  sale  as  a  menace  to 
his  title,  by  asserting  his  right  to  declare 
the  contract  no  longer  binding  for  the 
failure  of  the  purchaser  to  pay  instalments, 
which  merely  declares  that  the  vendor  is 
entitled  to  be  restored  to  his  rights  as 
they  existed  prior  to  the  contract  and  that 
the  contract  be  delivered  up  for  cancella- 
tion, leaves  the  question  whether  the  pur- 
chaser may  recover  payments  made  by  h=m, 
or  any  part  of  them.  Suburban  Homes  Co 
V.  North   (Mont.)   1917C-8I. 

RESERVATIONS. 

See  Indians. 

In  deeds,  see  Deeds,  54,  60. 
Reservation  of  minerals  in  conveyance,  see 
Mines  and  Minerals,  1. 

RESERVED. 

Meaning,  see  Dedication,  20. 

RES  GESTAE. 
See  Admissions  and  Declarations,  15-20, 

RESIDENCE. 
See  Domlcil. 

Effect  on  insurance,  see  Beneficial  Associa- 
tions, 4, 
Meaning,  see  Deeds,  51, 
As  affecting  jurisdiction,  see  Divorce,  1,  2, 

5,  6. 
Of  voters,  see  Elections,  4-6. 
Meaning,  see  Limitation  of  Actions,  37. 
Distinguished  from  place  of  business,  see 

Venue,  2. 

RESIDENT. 
Meaning,  see  Fish  and  Game,  3. 

RESIDUARY   CLAUSE. 
Construction,  see  Wills,  201-207. 

RESIDUE. 

Meaning,  see  WiUs,  31. 


EES  IPSA  LOQUITUR— RIGHT  HEIRS  AND  DISTRIBUTEES.    733 


EES  IPSA  LOQUITUB. 

See  Negligence,  37-40. 

In  action  for  injury  to  passenger,  see  Car- 
riers of  Passengers,  60-62. 

Meaning,  see  Independent  Contractors,  10. 

In  malpractice  action,  sea  Pbysicians  and 
Surgeons,  36. 

RESISTING  OPFIOEB. 
See  Assault,  6. 

RESOLUTION  OF  INTENTION. 

In  special  assessment  proceedings,  see 
Taxation,  137. 

Ei5SP0NX>ENT. 
Defined,  see  Quo  Warranto,  6. 

RESTAURANTS. 

See  Innkeepers. 

Derogatory  publication  concerning,  see  Li- 
bel and  Slander,  29,  63,  137. 

RESTAURANT  KEEPER. 

Distinguished  from  innkeeper,  see  Innkeep- 
ers, 2. 

RESTORATION. 

Effect  of,  see  Embezzlement,  11-13. 

RESTORATION    OF    PROPERTY. 

When  cause  accrues,  see  Limitation  of  Ac- 
tions, 21. 

RESTRAINING  ORDER. 
Temporary    injunction    distinguished,    see 
Injunctions,  37,  38. 

RESTRAINT. 
See  False  Imprisonment. 

RESTRAINT  OF  PRINCES. 
See  Marine  Insurance,  2. 

RESTRAINT  OF  TRADE. 

See  Monopolies. 

RESTRAINTS  ON  ALIENATION. 
See  Deeds,  30. 

RESTRAINTS  ON  USB. 
See  Deeds,  32-36. 

RESULTING  TRUSTS. 
See  Trusts  and  Trustees,  13-21. 

RETAINING  LIEN. 
Of  attorneys,  see  Attorneys,  36,  37. 


RETIRING  PARTNER. 

Liability  for  firm  debts,  see  Partnership. 
39. 

RETRAXIT. 

General  powers  do  not  authorize,  see  At- 
torneys, 8. 

RETURN. 
Bee  Habeas  Corpus,  11. 


REVENUE. 
See  Taxation. 
Defined,  see  Schools,  17,  18. 

REVERSIBLE  ERROR. 
See  Appeal  and  Error,  203-156. 

REVERSIONS. 

See  Remainders  and  Reversions. 

Of  condemned  land,  see  Eminent  Domain, 
118-120. 

Transfer,  right  to  accrued  rents,  see  Land- 
lord and  Tenant,  31%. 

Mortgage  of  reversion,  right  to  rent,  se* 
Landlord  and  Tenant,  37. 

REVERT. 
Meaning,  see  Wills,  193. 

REVIEW. 

Of  decision  of  health  board,  see  Health,  1, 

Of  proceedings  under  Employers'  Liability 
Act,  see  Master  and  Servant,  98-100. 

Of  proceedings  under  Workmen's  Compen- 
sation Act,  see  Master  and  Servant^ 
309-327. 

Of  assessments,  see  Taxation,  64-66. 

Proceedings  for  special  assessment,  see 
Taxation,  142,  143. 

REVIVAL. 
Of  wiU,  see  Wills,  111-113. 

REVOCA-nON. 

Of  bailment,  see  Bailment,  3. 
Of  dedication,  see  Dedication,  22. 
Of  trusts,  see  Trusts  and  Trustees,  4, 
Of  will,  see  Wills,  104-110. 

RHEUMATISM. 

(A.S  accident  under  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  200. 

RIDICULE  AND  CONTEMPT. 

Holding  up  to  as  libelous,  see  Libel  and 
Slander,  26,  27. 

RIGHT  HEIRS  AND  DISTRIBUTEES. 
Meaning,  see  Wills,  190. 


734 

EIGHT  OF  APPEAL. 
See  Appeal  and  Error,  1-7. 

EIGHT  OF  TEIAL  BY  JUET. 

Not  denied  by  granting  new  trial  on  single 
issue,  see  New  Trial,  11. 

EIGHTS  OF  WAT. 
See  Easements,  3,  13-18;  Eailroads,  58-60. 

EIGHT  TO  OPEN  AND  CTLOSE. 
See  Argument  and  Conduct  of  Counsel,  1, 3. 


DIGEST. 
1916C— 1918B. 


See  Mobs. 


BIOTS. 


SIFAEIAN  EIGHTS. 
See  Waters  and  Watercourses,  4-26. 

EIVEES. 
See  Waters  and  Watercoursea 

EOBBEEY. 

1.  Elements  of  Offense- 

2.  Persons  Liable. 

3.  Instructions. 

4.  Evidence. 

1.     ELEMENTS  OF  OFFENSE. 

1.  Assault  With  Intent  to  Eob— Ele- 
ments of  Offense.  As  used  in  the  statute 
regarding  assault  with  intent  to  rob,  mak- 
ing malice  aforethought  an  element  of  the 
crime,  "malice  aforethought"  is  the  volun- 
tary and  intentional  doing  of  an  unlawful 
act,  with  the  purpose,  means,  and  ability 
to  accomplish  the  reasonable  and  probable 
consequence  of  it,  done  in  a  manner  show- 
ing a  heart  regardless  of  social  duty  and 
fatally  bent  on  mischief,  by  one  of  sound 
mind  and  discretion,  the  evidence  of  which 
is  inferred  from  acts  committed  or  words 
spoken.  Gordon  v.  State  (Ark.)  1918A- 
419.  (Annotated.) 

2.  WTiat  Constitutes  Eobbery — Force  Ee- 
quisite.  To  constitute  the  offense  of  rob- 
bery, the  law  does  not  require  that  one  be 
beaten  up  before  he  submits.  It  is  suffi- 
cient that  he  yields  because  of  fear  of  the 
robber,  and  no  one  is  required  to  resist  to 
thf>  uttermost.  Gordon  v.  State  (Ark.) 
1918A-419. 

Note. 
Attempt   to    coinmit   robbery   or  assault 
with    intent   to    commit    robbery.     1918A- 
406. 

2.     PERSONS  LIABLE. 

3.  Where  one  in  an  assault  with  intent 
to  rob  is  surprised  in  the  offense  and  flees, 
and,  being  overtaken,  assaults  his  pursuer, 


such  assault  will  not  support  the  charge 
60  as  to  make  one  charged  with  aiding 
and  abetting  in  the  crime  guilty.  State 
V.  Lewis  (Iowa)  1918A-403.     (Annotated.) 

3.'    INSTRUCTIONS. 

4.  Force  or  Intimidation.  An  instruc- 
tion in  a  prosecution  for  assault  with  in- 
tent to  rob  which  omits  to  charge,  that  in 
order  to  make  out  the  offense,  force  or  in- 
timidation must  be  shown  to  have  been 
employed,  is  erroneous,  and  will  not  sus- 
tain a  conviction  of  one  charged  with  aid- 
ing and  abetting  in  the  crime.  State  v. 
Lewis   (Iowa)    1918A-403.       (Annotated.) 

4.     EVIDENCE. 

5.  The  evidence  is  held  to  show  the  exer- 
cise of  sufficient  force  to  support,  not  only 
the  charge  of  assault  to  rob,  but  a  charge 
of  robbery.  Gordon  ▼.  State  (Ark.) 
1918A-419.  (Annotated.) 

6.  Assault  With  Intent  to  Commit — Evi- 
dence— Sufficiency.  The  evidence  in  a 
prosecution  for  assault  with  intent  to  rob 
is  held  sufficient  to  show  intent  to  commit 
larceny,  which  is  an  included  offense,  so 
that  one  charged  with  aiding  and  abetting 
in  the  crime  would  be  guilty  if  there  was 
also  an  assault.  State  v.  Lewis  (Iowa) 
1918A-403.  (Annotated.) 

7.  Evidence  that  one  entered  an  hotel 
with  the  intention  of  stealing  the  propriet- 
or's money,  that  he  was  armed  with  a 
slung-shot  and  revolver,  and  that  he  ap- 
proached the  proprietor  with  the  purpose 
of  getting  the  money,  is  held  to  present  a 
question  for  the  jury  as  to  whether  his 
acts  constituted  an  assault  so  as  to  make 
one  charged  with  aiding  and  abetting  in 
the  crime  guilty,  although  there  was  other 
evidence  to  show  that  accused  did  not  in- 
tend to  use  his  weapons  except  to  scare 
the  victim.  State  t.  Lewis  (Iowa)  1918A- 
403.  (Annotated.) 


See  Patents. 


EOYALTIES. 


EULE  AGAINST  PEEPETUITIES. 
See  Perpetuities. 

EUIiES. 

Validity  and  enforcement,  see  Carriers  of 

Passengers,  16,  47-50,  52. 
Patient's  agreement  to  obey  no  defense  to 

false  imprisonment,  see  Hospitals  and 

Asylums,  6. 
Promulgation  of,  see  Master  and  Servant, 

22,  23. 
Eight  to  promulgate,  see  Telegraphs  and 

Telephones,  22,  23. 
Of   water   company,  see  Waterworks  and 

Water  Companies,  8,  9. 


RULES  OF  CONSTRUCTION— SALES. 


735 


EULES  OF  CONSTRUCTION. 

(See  Statutes,  47. 

SABBATH. 

See  Sundays  and  Holidays. 

SAFE  APPLIANCES. 

Duty  toward  passengers,  see  Carriers  Of 
Passengers,  41. 

SAFE  PIiACE  TO  WORK. 

See  Master  and  Servant,  9,  10. 

SAFE  PREMISES. 

Duty  toward  passengers,  see  Carriers  of 
Passengers,  42-46. 

SALARY. 

Eemedy  for  wrongful  discharge,  see  As- 
sumpsit, 1. 

Asset  of  bankrupt,  see  Bankruptcy,  3. 

Division  of,  see  Bribery,  1. 

Of  judges,  see  Judges,  3-8, 

Payment  after  illegal  appointment,  see 
Public  Officers,  18. 

De  facto  officer,  see  Public  Officers,  30,  35. 

Right  of  de  jure  officer  salary  paid  to  de 
facto  officer,  see  Public  Officers,  32. 

Effect  of  neglect,  see  Public  Officers,  32- 
34,  43. 

School  teachers,  see  Schools,  31. 

SALES. 

1.  Formation  of  Contract,  735. 

2.  Construction  of  Contract,  735. 

3.  Delivery  of  Goods,  736. 

4.  Acceptance,   736. 

5.  When  Title  Passes,  736. 

6.  Warranties,  736. 

a.  In  General,  736. 

b.  Remedy  for  Breach,  738. 

7.  Rights  of  Vendor,  739. 

a.  Right  to  Rescind,  739. 

b.  Lien,  739. 

c.  Stoppage  in  Transitu,  740. 

d.  Actions,  740. 

(1)  Pleading,  740. 

(2)  Evidence,  740. 

(3)  Questions   of  Law  or  Fact, 

741. 

8.  Rights  of  Vendee,  741. 

9.  Conditional  Sales,  741. 

a.  In   General,   741. 

b.  Remedies  of  Vendor,  741. 

c.  Remedies  ol  Vendee,  742. 
10.  Bulk  Sales  Law,  742. 

a.  Validity,   742, 

b.  Construction,  742. 

c.  Actions,  742. 

See  Frauds,  Statute  of,  3-9;  Judicial  Sales. 

Title  to  automobile  fittings,  see  Accession, 
1. 

Auction  sales,  see  Auctions  and  Auction- 
eers, 4,  5. 


Sales  in  bankruptcy,  see  Bankruptcy,  23. 

Intoxicants,  see  Conflict  of  Laws,  1-3. 

Apportionment  of  proceeds  of  mass  sale, 
see  Confusion,  3. 

Of  corporate  officers,  see  Corporations,  54, 
55. 

Sales  of  growing  crop,  see  Crops,  2. 

Of  executors  and  administrators,  see  Exe- 
cutors and  Administrators,  32-46. 

Sale  of  lease  of  pond,  fish  not  included, 
see  Fish,  and  Game,  2. 

Guardian's  sale  of  ward's  personalty,  see 
Guardian  and  Ward,  14. 

Control  by  vendor  of  resale  price,  see  Mon- 
opolies, 9. 

Agreement  to  abstain  on  sale  of  business, 
see  Monopolies,  13,  14. 

Restriction  by  vendor  patentee  of  use  of 
article  by  vendee,  see  Patents,  1. 

Receiver's  sales,  see  Receivers,  12. 

Warranty  in  sale  of  ship,  see  Ships  and 
supping,  4,  5. 

Trustee's  sales,  see  Trusts  and  Trustees, 
23-25. 

Liability  of  warehouseman  to  vendor  after 
sale,  see  Warehouses,  2. 

1.     FORMATION  OP  CONTRACT. 

1.  Parties  to  Transaction.  There  is  not 
a  sale  by  T.  to  G.,  where  G,  ordered  lumber 
of  F.,  and  F.  ordered  it  of  T.,  and  T.  de- 
livered it  to  G.,  and  primarily  billed  it  to 
F.,  and  wrote  G.  to  protect  it,  though 
after  F.  ordered  it  of  T.,  G.  promised  T. 
to  see  that  it  got  its  money.  First  Na- 
tional Bank  v.  G.  Geske  &  Co.  (Wash.) 
1917B-564. 

2.  Offer  and  Acceptance— Acceptance  of 
Offer  Once  Rejected.  Where  a  tentative 
contract  to  buy  accessories  and  act  as  the 
seller's  agent  in  a  certain  territory  was 
rejected  by  the  seller  and  a  new  contract 
sent  to  the  buyer,  which  he  rejected,  the 
stller  cannot  sue  on  the  original  tentative 
contract,  as  an  express  contract,  for  the 
price  of  accessories  shipped  to  the  buyer 
but  not  accepted  by  him.  Cook  v.  Story 
(Wash.)   1917C-985.  (Annotated.) 

2.     CONSTRUCTION  OF  CONTRACT. 

3.  Good  Will — Implied  Transfer.     As  an 

incident  of  the  good  will,  the  agreement  of 
the  seller  with  the  buyer  of  a  business  and 
its  good  will  not  to  become  a  competitor 
passes,  without  formal  written  assignment, 
to  one  to  whom  the  buyer  sells  the  business 
and  good  will,  which  latter,  without  men- 
tion, passes  with  the  sale  of  the  business. 
Public  Opinion  Pub.  Co.  v.  Ransom  (S. 
Dak.)  1917A-1010.  (Annotated.) 

4.  "Market  Price" — Selling  Price  Fixed 
by  Combination.  As  "market  price"  has 
no  hard  and  fast  meaning,  and,  when  the 
market  is  not  open,  but  the  selling  price 
is  fixed  by  a  combination  of  dealers,  mar- 
ket price  is  market  value  or  quoted  price 
of  the  dealer,  where  plaintiff  contractor 
purchased  cement  at  a  stated    price    per 


736 


DIGEST. 

1916C— 1918B. 


barrel  under  an  agreement  that  he  was 
to  have  a  reductiou  or  rebate  if  the  mar- 
ket price  fell  below  that  named  while  de- 
liveries were  bi-ing  made  to  him,  and  later 
the  defendant  quoted  a  lower  price  to 
the  county  for  county  roads  for  the  advan- 
tage of  contractors  generally,  the  quota- 
tion to  the  county,  without  limitation  as  to 
quantity  for  the  benefit  of  those  engaged 
in  the  same  kind  of  work  as  plaintiff,  is  a 
reduction  in  market  price  which  entitles 
plaintiff  to  a  rebate.  McGarry  r.  Superior 
Portland  Cement  Co.   (Wash.)    1918A-572. 

(Annotated.) 
Notes. 

Selling  price  fixed  by  combination  or 
monopoly   as   "market  price."     1918A-575. 

Sale  of  business  as  passing  good  will 
without  mention  thereof.     1917A-1015. 

3.     DELIVERY  OF  GOODS. 

5.  Necessity  of  Acceptance.  To  consti- 
tute a  valid  delivery  on  sale  of  personal 
property,  there  must  be  an  acceptance  of 
it  by  the  purchaser  or  his  agent.  Con- 
structive delivery  may  be  an  exception. 
Hart-Parr  Co.  v.  Finley  (N.  Dak.)  1917E- 
706. 

4.     ACCEPTANCE. 

6.  Effect  of  Rejection  of  Offer — Goods 
Ordered  on  Basis  of  Offer.  Where  the 
buyer  ordered  accessories  on  faith  of  a 
tentative  contract  made  by  him  with  the 
seller's  agent  and  repudiated  by  the  seller, 
and  a  new  contract  sent,  which  the  buyer 
rejected,  he  is  under  no  obligation  to 
accept  the  accessories  ordered.  Cook  v. 
Story  (Wash.)  1917C-985. 

Note. 
Acceptance  of  offer  once  rejected  as  con- 
summating contract  of  sale.     1917C-987. 

5.     WHEN  TITLE  PASSES. 

7.  In  the  face  of  a  refusal  to  receive 
delivery  and  the  property  in  performance 
of  a  contract  of  purchase  and  sale,  the 
purchaser  standing  on  a  repudiation  of  it 
declared  while  the  contract  was  wholly 
executory,  with  repudiation  not  subse- 
quently waived  or  withdrawn,  title  cannot 
be  cast  upon  the  purchaser  by  operation 
of  law.  Hart-Parr  Co.  v.  Finley  (N.  Dak.) 
1917E-706. 

8.  Unless  the  contract  stipulates  the  con- 
trary, delivery  and  acceptance  of  prop- 
erty and  vesting  of  title  thereunder  and 
payment  of  the  purchase  price  therefor 
are  concurrent  acts,  and,  until  delivery 
and  acceptance  title  does  not  vest,  and  the 
purchase  price  payable  only  on  the  vesting 
of  title  is  not  recoverable  in  a  suit  for 
the  purchase  price.  Hart-Parr  Co.  v.  Fin- 
ley  (N.   Dak.)    1917E-706. 

9.  The  attemT)ted  delivery  did  not  vest 
title,  and  suit  for  the  purchase  price  can- 


not be  maintained,  nor  can  the  freight 
charges  incurred  after  tiotice  of  cancella- 
tion be  recovered.  Hart-Parr  Co.  v.  Fin- 
ley (N.  Dak.)  1917E-706. 

10.  Title  Acquired.  Otherwise  than  by 
estoppel,  a  buyer  of  personal  property  ac- 
quires no  better  title  than  that  of  the 
seller  from  whom  he  buys.  Howard  v.  Mc- 
Phail  (R.  L)   1917A-186. 

11.  Delivery  to  Carrier.  The  ownership 
of  sand  sold  to  the  defendant  f.  o.  b.  its 
station  does  not  pass  until  its  delivery. 
Central  of  Ga.  R.  Co.  v.  Southern  Ferro 
Concrete  Co.  (Ala.)  1916E-376. 


6. 


WARRANTIES, 
a.  In  General. 


12.  Consideration  for  Warranty.  A  war- 
ranty that  there  are  no  undisclosed  lia- 
bilities against  a  company  given  by  a  part 
of  the  owners  of  its  stock,  whereby  one 
having  an  executory  contract  of  purchase 
thereof  is  induced  to  proceed  to  a  con- 
summation of  it  when  not  legally  bound 
to  do  so  has  consideration.  Pacific  Power, 
etc.  Co.  v.  White  (Wash.)  1918B-125. 

13.  Duration — When  Contract  Executed. 
A  contract  of  September  8th  in  terms: 
Articles  of  agreement  between  named  per- 
sons witnesseth  that  the  parties  of  the 
first  part  have  bargained  and  agreed  to 
sell  and  do  hereby  sell  to  the  party  of 
the  second  part  all  the  stock  of  a  certain 
company  for  $25,000,  of  which  $1,000  is  to 
bb  paid  at  once,  and  balance  on  or  before 
September  17th,  and  on  receipt  of  stock, 
and  the  parties  of  the  first  part  agree  and 
warrant  that  the  company's  liabilities  did 
not  on  September  Ist  exceed  $11,500,  after 
allowing  for  claims  then  due  it,  and  if 
they  do  exceed  it,  the  excess  shall  be  de- 
ducted from  the  purchase  price,  and  the 
parties  of  the  first  part  will  oa  or  before 
September  13th  furnish  a  statement  of  the 
liabilities,  and  then  the  party  of  the 
second  part  shall  have  privilege  of  verify- 
ing it  by  books,  accounts,  and  other  papers 
and  records  of  the  company,  so  that,  if 
possible,  it  may  be  done  hy  September  i7th 
— is  not,  when  an  audit  was  furnished,  an 
executed  contract  passing  title,  but  still 
an  executory  contract,  as  regards  consid- 
eration for  the  warranty  of  September 
19th,  that  the  liabilities  did  not  exceed  the 
amount  shown  by  the  audit,  which  before 
proceeding  further  with  the  consummation 
of  the  purchase  the  party  of  the  second 
part  required  certain  of  the  parties  of  the 
first  part  to  execute;  the  party  of  the 
second  part  not  being  required  to  con- 
summate the  purchase  till  protected  in 
some  satisfactory  way  against  anj-  undis- 
closed liabilities  of  the  company.  Pacific 
Power,  etc.  Co.  v.  White  (Wash.)  191SB- 
125. 

14.  Construction  of  Warranty — Meaning 
of    "Liabilities."     "Liabilities''  of    a  cor- 


SALES. 


737 


poration,  warranted  in  a  contract  of  sale 
of  its  stock  and  in  a  separate  warranty 
not  to  exceed  a  certain  amount,  are  not 
limited  to  contractual  liabilities,  but  in- 
clude those  for  torts.  Pacific  Power,  etc. 
Co.  V.  WTiite  (Wash.)  1918B-125. 

15.  Duration — Continuing  Warranty.  A 
warranty  on  which  sale  of  the  stock  of  a 
corporation  is  made  against  its  liabilities, 
undisclosed  or  contingent  or  otherwise,  ex- 
ceeding a  certain  amount,  is  continuing. 
Pacific  Power,  etc.  Co.  v.  White  (Wash.) 
1918B-125. 

16.  Distinction  Between  Warranty  and 
Guaranty.  A  contract  inducing  consum- 
mation of  purchase  of  the  stock  of  a  cor- 
poration, whereby  part  of  the  sellers  war- 
rant that  the  corporation's  liabilities  do 
not  exceed  a  certain  amount,  is  one  of 
warranty,  and  not  of  guaranty,  being  an 
absolute  underLaking  in  praesenti,  as  well 
a?  in  futuro.  Pacific  Power,  etc.  Co.  v. 
White   (Wash.)   1918B-125. 

17.  Seed  —  Warranty  of  Germinating 
Power — Evidence  of  Breach.  In  an  action 
for  their  price,  evidence  by  defendant  that 
seeds  received  in  January  would  not  grow 
when  planted  in  good  soil  about  April, 
with  evidence  that  they  were  not  prop- 
erly kept  after  receipt,  and  that  plaintiff 
had  properly  tested  them  before  sending, 
is  held  not  suflScient  to  support  a  verdict 
for  counterclaim  for  breach  of  warranty 
of  the  seeds  as  capable  of  germinating. 
Meehan  v.  Ingalls   (Wash.)   1918B-71. 

(Annotated.) 

18.  Waiver  of  Warranty  not  Shown, 
Plaintiff  purchased  brick  from  defendant 
under  a  warranty  that  they  should  be  first- 
class  white  brick  equal  to  sample.  The 
brick  furnished  were  of  different  color, 
and  on  being  rejected  for  this  reason,  de- 
fendant's general  manager  informed  plain- 
tiff' that  the  reason  the  brick  were  not  of 
the  color  shown  by  the  sample  was  be- 
cause they  were  wet,  but  that  they  would 
regain  their  natural  white  color  when  dry, 
whereupon  the  plaintiff  used  theni,  but 
found  that  they  did  not  become  white 
after  being  dry.  It  is  held  that  plaintiff's 
acceptance  of  the  brick  was  conditional 
only,  and  did  not  amount  to  a  waiver 
of  the  warianty.  Jorgensen  v.  Gessell 
Pressed  Brick  Co.  (UtahJ  1917C-309. 

(Annotated.) 

19.  Good  Will  —  Implied  Warranty  on 
Sale.  It  is  held  that  the  good  will  of  a 
business  is  a  spscies  of  property  subject 
to  sale,  but  the  vendor  who  sells  the  good 
will  of  his  business  guarantees  nothing; 
for,  in  the  nature  of  things,  he  can  give 
no  assurance  that  the  patronage  of  the 
place  will  continue.  Harshbarger  v.  Eby 
(Idaho)   1917C-753. 

20.  Sale  by  Simple.  A  contract  of  sale 
of  jar  caps  which  binds  the  seller  to  ship 
the  goods  on  conditions  specified,  one  of 

47 


which  is  that  the  caps  will  fit  any  Mason 
jar,  and  another  that  no  promise  is  valid 
unless  specified  on  the  order,  and  another 
that  no  salesman  can  alter  the  conditions 
printed  on  the  contract,  is  not  a  contract 
of  sale  by  sample,  though  a  sample  was 
exhibited  during  negotiations,  but  is  a 
contract  containing  a  warranty  that  the 
caps  will  fit  any  Mason  jar.  Pickrell,  etc. 
Co.  V.  Wilson  Wholesale  Co.  (N.  Car.) 
1917C-344.  (Annotated.) 

21.  It  is  not  assumed  that  every  sale 
where  a  sample  is  shown  is  a  sale  by  sam- 
ple, but  to  be  a  sale  by  sample  there  must 
be  an  understanding  of  the  parties,  express 
or  implied,  that  the  sale  is  by  sample. 
Pickrell,  etc.  Co.  v.  Wilson  Wholesale  Co. 
(N.  Car.)    1917C-344.  (Annotated.) 

22.  Where  a  sale  is  by  sample,  the  law 
implies  that  the  bulk  shall  correspond  in 
kind  and  quality  with  the  sample.  Pick- 
rell, etc.  Co.  V.  Wilson  Wholesale  Co.  (N. 
Car.)  1917C-344.  (Annotated.) 

23.  Where  defendant  furnishes  a  sam: 
pie  brick  to  plaintiff,  and  assures  him 
that  the  brick  to  be  delivered  under  the 
contract  will  be  first-class,  wire-cut,  white 
brick,  in  quality  and  color  like  the  sample, 
such  representation  is  not  mere  descrip- 
tion, but  constitutes  an  express  warranty. 
Jorgensen  v.  Gessell  Pressed  Brick  Co. 
(Utah)   1917C-309.  (Annotated.) 

24.  Where  a  sale  of  brick  is  made  by  a 
manufacturer  according  to  sample  and 
without  any  conditions,  there  is  an  im- 
plied warranty  that  the  brick  to  be  fur- 
nished shall  be  like  and  equal  to  the  sam- 
ple. Jorgensen  v.  Gessell  Pressed  Brick 
Co.   (Utah)    19'17C-309.  ,  (Annotated.) 

25.  The  existence  of  an  express  war- 
ranty that  brick  to  be  furnished  under  a 
contract  of  sale  shall  be  first-class,  wire- 
cut,  white  brick  corresponding  to  a  sample 
does  not  negative  an  implied  warranty 
that  the  brick  to  be  furnished  shall  be,  in 
all  respects  of  quality,  fitness,  and  color; 
like  the  sample.  .Jorgensen  v.  Gessell 
Pressed  Brick  Co.  (Utah)  1917C-309. 

.    (Annotated.) 

26.  The  question  whether  a  sale  of  cot'' 
ton  by  cutting  and  sample  and  an  exam- 
ination of  its  external  condition  created  an 
express  or  implied  warranty  as  to  its  real 
condition,  is  held  to  present  a  proposition 
of  law.  Greenwood  Cotton  Mill  v.  Tol- 
bert  (S.  Car.)  1917C-33S.         (Annotated.) 

27.  The  law  imT^lies  a  warranty  of  sound- 
ness of  cotton  when  purchased  by  sample, 
where  the  defect  is  either  patent  or  is  not 
known  to  the  seller,  regardless  of  fraud 
or  false  statement  or  anything  to  mislead 
the  buver  to  accept  it.  Gremwood  Cot- 
ton Mill  V.  Tolbert  (S.  Car.)  1917C-338. 

(Annotated.) 

28.  When  the  law  implies  a  warranty 
as   to   the   soundness   of  a  commodity,  in 


738 


DIGEST. 

1916C— 1918B. 


the  absence  of  an  agreement,  it  cannot  be 
defeated  by  the  action  of  the  seller  and 
the  fact  that  the  defect  is  latent  or  un- 
known to  the  seller,  or  that  he  was  not 
negligent  in  not  ascertaining  it  will  not 
relieve  him  from  liability.  Greenwood 
Cotton  Mill  T.  Tolbert  (S.  Car.)  1917C- 
338.  (Annotated.) 

29.  Waiver  of  Warranty  —  Failure  to 
Give  Notice  of  Defect.  The  buyer's  fail- 
ure to  give  notice  of  the  unsoundness  of 
the  goods  bought  to  the  seller  within  a 
reasonable  time  after  discovering  it  may 
be  considered  in  determining  whether  he 
waived  his  right  to  insist  upon  the  breach 
of  warranty.  Greenwood  Cotton  Mill  v. 
Tolbert  (S.  Car.)  19170-338. 

30.  Implied  Warranty  as  to  Color. 
Where  a  seller  of  bricks  for  a  wall  to  be 
built  by  the  buyer  knows  that  both  sides 
of  the  wall  should  be  faced  and  of  uni- 
form shade  similar  to  a  sample  brick, 
which  the  architect  accepted  as  of  the  re- 
quired color,  and  agrees  to  furnish  bricks 
accoJdingly,  and  the  buyer  thereupon  gives 
ar  order  for  bricks,  which  is  accepted, 
there  is  a  sale  with  an  implied  warranty 
that  the  bricks  shall  correspond  to  the 
Mmple,  within  Mass.  St.  1908,  c.  237,  §  16. 
Gascoigne  ▼.  Gary  Brick  Co.  (Mass.) 
1917C-336.  (Annotated.) 

31.  Waiver  of  Warranty — ^Acceptance  of 
Goods.  "Where  a  sale  was  made  under  an 
implied  warxanty  that  the  goods  delivered 
should  conform  to  a  sample,  the  accept- 
ance of  title  by  the  buyer  does  not,  under 
Mass.  St.  1908,  c.  237,  §  49,  release,  as  a 
matter  of  law,  the  seller  of  liability;  but 
it  is  a  question  of  fact  whether  the  buyer 
waived  the  warranty  and  took  the  goods 
as  he  found  them.  Gascoigne  v.  Gary 
Brick  Co.  (Mass.)   19170-336. 

32.  Implied  Warranty — Fitness  for  Pur- 
pose. "Where  a  dealer  in  pumps  sold  grad- 
ing contractors  a  new  impeller  for  a 
secondhand  pump  originally  purchased 
from  the  dealer,  there  is  no  implied  war- 
ranty that  the  new  impeller  would  make 
the  old  pump  work  satisfactorily.  Ferine 
Machinery  Co.  v.  Buck  (Wash.)  19170- 
341. 

33.  Implied  Warranty  That  Article  is 
the  One  Ordered.  Where  grading  con- 
tractors ordered  a  new  impeller  for  their 
secondhand  pump  from  the  dealer  who 
originally  solu  it,  and  who  wired  the  fac- 
tory for  a  new  impeller  and  installed  it, 
the  sale  is  by  sample,  and  the  only  im- 
plied warranty  is  that  the  impeller  fur- 
nished is  the  one  ordered.  Ferine  Machin- 
ery Co.  V.  Buck  (Wash.)   19170-341. 

(Annotated.) 
Notes. 
Express    or    implied    warranty    on    sale 
by  sample.     19170-311, 

Express  or  implied  warrantv  on  sale  of 
seed.     1918B-72. 


b.     Eemedy   for  Breach. 

34.  Action  on  Warranty — Necessary  Par- 
ties. Though  sale  of  the  stock  of  a  cor- 
poration is  by  all  the  stockholders,  only 
those  stockholders  who  execute  a  war- 
ranty against  liability  that  the  corpora- 
tion's liabilities  do  not  exceed  a  certain 
amount,  whereby  the  purchaser  is  induced 
to  consummate  his  purchase,  are  necessary 
parties  to  action  on  the  warranty.  Pacific 
Power,  etc.  Co.  t.  "White  (Wash.)  1918B- 
125. 

35.  Automobiles — ^Proof  of  Value.  That 
the  value  of  the  automobile,  if  in  good 
condition,  would  have  been  the  sales  price 
of  $1,350,  is  sufficiently  proved  for  the 
buyer  suing  for  breach  of  warranty,  by 
testimony  of  the  seller's  witness  that  its 
value  as  received,  taking  into  considera- 
tion its  condition  at  that  time,  was  $1,250, 
and  that  in  placing  that  value  on  the  car 
as  received  he  had  deducted  $100  from 
the  Ust  price;  thus  clearly  indicating  that 
the  list  price  would  represent  the  value  of 
the  car  in  perfect  condition,  Studebaker 
Corporation  v.  Hanson  (Wyo.)  1917E-557. 

36.  Making  Good  to  Subvendee  as  Pre- 
requisite to  Action  on  Warranty.  The  pur- 
chaser of  seed  warranted  to  be  of  a  speci- 
fied variety,  and  which  he  resells  to  a 
grower,  may  recover  from  the  dealer  the 
actual  loss  due  to  misrepresentation  as  to 
the  variety  although  he  has  not  liquidated 
his  liability  to  the  subvendee  for  breach 
of  warranty.  Buckbee  v.  P,  Hohenadel, 
Jr.,  Co,  (Fed,)   1918B-S8,         (Annotated,) 

37.  Where  seed  is  sold  to  a  dealer  under 
a  warranty  that  it  is  of  a  special  variety, 
and  the  dealer  in  turn  sends  it  to  a  grower, 
the  warranty  is  carried  forward  to  the 
ultimate  purchaser,  if  it  appears  that  such 
understanding  was  part  of  the  first  sale,, 
and  the  measure  of  damages  for  breach 
of  warranty  is  the  difference  in  market 
value  between  the  crop  produced  and  such 
crop  as  the  specified  variety  of  seed  would 
have  produced  under  like  condition.  Buck- 
bee  V.  P.  Hohenadel,  Jr,,  Co.  (Fed.)  1918B- 
8S.  (Annotated.) 

38.  Damages.  In  an  action  for  breach 
of  warranty  of  the  quality  and  color  of  a 
certain  brick  sold  to  plaintiff  for  use  in 
a  residence,  the  measure  of  plaintiff's 
damage  is  the  loss  directly  and  naturally 
resulting  in  the  ordinary  course  of  events 
from  the  breach,  Jorgensen  v,  Gessell 
Pressed  Brick  Co.  (Utah)   19170-309. 

39.  Question  for  Jury.  Where  in  an  ac- 
tion for  the  price  of  jar  caps  warranted  to 
fit  any  Mason  jar  there  was  evidence  that 
all  Mason  jars  were  of  the  same  pattern 
and  sealed  in  the  same  way,  and  that  the 
caps  furnished  did  not  fit  Mason  jars  of 
the  Ball  Bros,  type  carried  by  the  buyer, 
and  during  the  trial  a  witness  for  the 
seller  sealed  the  Mason  jars  in  question 
with  the  caps  shipped  to  the  buyer,  the 
issue  of  compliance  by  the  seller  with  the 


SALES. 


73a 


warranty  is  for  the  jury,  and  a  charge 
that,  if  the  jury  believes  the  evidence,  the 
verdict  must  be  for  the  seller,  is  erroneous, 
for  the  .demonstration  at  the  trial  cannot 
be  considered  to  the  exclusion  of  the  other 
evidence,  Pickrell,  etc.  Co.  v.  Wilson 
Wholesale  Co.  (N.  Car.)  1917C-344. 

40.  Remedies  of  Buyer — Action  for  Dam- 
ages. Where  there  is  a  breach  of  war- 
ranty, the  buyer  may  be  entitled  to  re- 
lief by  an  action  for  damages  without  a 
rescission  of  the  contract  of  sale.  Green- 
wood Cotton  Mill  V.  Tolbert  (S.  Car.) 
1917C-338, 

41.  Eight  to  Damages.  Where  a  seller 
of  bricks  under  an  implied  warranty 
shipped  bricks  which  did  not  conform  to 
the  warranty,  the  buyer  could  recover  the 
damages  sustained.  Gascoigne  v.  Cary 
Brick  Co.  (Mass.)  1917'C-336. 

42.  Measure  of  Damages — Consequential 
Damage.  Where  a  seller  of  bricks  under 
an  implied  warranty  to  conform  to  a  sam- 
ple delivered  bricks  not  conforming  there- 
to, with  knowledge  that  the  buyer  would 
use  the  bricks  in  erecting  a  wall,  the 
buyer,  knowing  of  the  defect,  cannot  re- 
cover damages  caused  by  his  use  of  the 
bricks  in  erecting  the  wall;  but  where 
he  relies  on  the  warranty,  and  acts  with 
reasonable  diligence  in  using  the  bricks 
without  further  inspectioh,  and  their  gen- 
eral appearance  does  not  disclose  the  de- 
fects, and  he  promptly  notifies  the  seller 
of  the  defects,  he  can,  under  Mass.  St. 
1908,  c.  237,  §  49,  recover  not  only  the  dif- 
ference between  the  value  of  the  bricks 
bought  and  those  delivered,  but  also  the 
expense  of  rebuilding  the  wall.  Gascoigne 
V.  Cary  Brick  Co.  (Mass.)  1917C-336. 

43.  Instruction  as  to  Damages  —  Error 
Prejudicial.  Where  a  buyer  of  bricks  for 
use  in  constructing  a  wall  could  recover 
as  damages  for  breach  of  warranty  the 
expenses  of  taking  down  and  rebuilding 
the  wall,  the  error  in  an  instruction  that 
he  could  recover  only  a  sum  equal  to  the 
difference  between  the  value  of  the  bricks 
contracted  to  be  sold,  and  the  value  of  the 
bricks  delivered  is  not  cured  by  a  further 
instruction  that  the  jury  could  find  that 
the  difference  consisted  in  the  expense  to 
the  buyer  in  culling  from  the  mass  the 
bricks  used  in  the  reconstructed  wall. 
Gascoigne  v.  Cary  Brick  Co.  (Mass.) 
1917C-336. 

44.  Loss  of  Profits.  WTiere  there  was 
an  express  warranty  of  satisfactory  per- 
formance by  an  impeller,  for  use  in  a  sec- 
ondhand pump  sold  contractors  for  grading 
work,  damages  for  breach  of  such  war- 
rp.nty  on  account  of  lost  profits  on  the 
grading  contract  are  not  recoverable. 
Ferine  Machinery  Co.  v.  Buck  (Wash.) 
1917C-341. 

45.  Eights  and  Duties  of  Buyer.  Where 
grading  contractors,  who  ordered  by  sam- 


ple an  impeller  for  their  secondhand  pump, 
discover  that  it  will  not  work  satisfac- 
torily, it  is  their  duty  to  return  the 
impeller  to  the  seller  with  notice.  Ferine 
Machinery  Co.  v.  Buck  (Wash.)  1917C- 
341. 

46.  Breach  of  Warranty  on  Sale  of  Auto- 
mobile— Measure  of  Damages.  Evidence 
as  to  damages  in  an  action  for  breach  of 
warranty  in  the  sale  of  an  automobile  is 
held  to  be  sufficient  to  warrant  a  verdict 
for  $550,  as  the  cost  of  a  new  engine  and 
the  installation  thereof.  Studebaker  Cor- 
poration V.  Hanson  (Wyo.)  1917E-557. 

47.  Two  instructions  on  measure  of 
damages  for  breach  of  warranty  in  a  sale 
of  an  automobile,  varying  only  in  using 
in  one  the  term  purchase  price,  and  in  the 
other  value  of  the  car  had  it  been  as  war- 
ranted, are  not  inconsistent  in  fact,  the 
evidence  showing  such  value  to  be  such 
price.  Studebaker  Corporation  v.  Hanson 
(Wyo.)  1917E-557. 

7.     EIGHTS  OP  VENDOE. 
a.     Eight  to  Eescind. 

48.  Eescission  by  Seller  —  As  Against 
Transferee.  A  seller  may,  on  discovery 
that  the  contract  was  procured  from  him 
by  fraud,  rescind  not  only  as  against  the 
original  buyer  but  as  against  a  transferee 
who  is  not  a  bona  fide  purchaser  for  value. 
W.  G.  Ward  Lumber  Co.  v.  American 
Lumber,  etc.  Co.  (Fa.)  1918A-451. 

b.    Lien. 

49.  Vendor's  Lien — Loss  —  Transfer  of 
Warehouse  Eecelpt.  General  Business  Law 
(Consol.  Laws,  c.  20,  §  125,  McKinney's 
Consol.  Laws,  Book  19),  provides  that  a 
person  to  whom  a  negotiable  warehouse 
receipt  is  duly  negotiated  thereby  ac- 
quires such  title  as  the  person  negotiating 
the  receipt  or  the  person  to  whose  order 
the  goods  were  to  be-  delivered  by  the 
terms  of  the  receipt  had,  or  had  ability  to 
convey  to  a  purchaser  in  good  faith  for 
value,  and  also  the  direct  obligation  of 
the  warehouseman  to  hold  possession  of 
the  goods  for  him  according  to  the  terms 
of  the  receipt.  Section  126  provides  that 
if  the  receipt  is  non-negotiable,  the  trans- 
feree acquires  the  right  to  notify  the 
warehouseman  of  the  transfer,  and  thereby 
acquire  his  direct  obligation  to  hold  pos- 
session of  the  goods  for  him  according 
to  the  receipt,  but  that  prior  to  such  noti- 
fication his  title  and  such  right  may  be 
defeated  by  the  levy  of  an  attachment  or 
execution  by  a  creditor  of  the  transferor, 
or  by  notice  to  the  warehouseman  of  a 
siibsequent  sale  bv  the  transferor.  Sec- 
tion 133  provides  that  where  a  negotiable 
receipt  has  been  issued,  no  seller's  lien  or 
right  of  stoppage  in  transitu  shall  defeat 
the  lights  of  any  purchaser  for  value  in 
good  faith  to  whom  the  receipt  has  been 


740 


DIGEST. 

1916C— 1918B. 


negotiated.  N.  Y.  Personal  Property  Law 
(Consol.  Laws,  c.  41,  McKinney's  Consol. 
Laws,  Book  40),  §  135,  added  by  Laws 
1911,  c.  571,  provides  that  the  unpaid 
seller  of  goods  who  is  in  possession  of 
them  is  entitled  to  retain  possession  until 
payment  in  the  cases  therein  specified.  It 
is  held  that  from  the  moment  that  a  nego- 
.  tiable  receipt  is  negotiated,  or  from  the 
moment  of  notice  of  the  warehouseman 
in  the  case  of  the  negotiation  of  a  non- 
negotiable  receipt,  the  warehouseman  holds 
possession  for  the  transferee  of  the  re- 
ceipt, and  with  the  transmutation  of  pos- 
session the  vendor's  lien  of  the  transferor 
is  at  an  end.  Eummell  v.  Blanchard  (N. 
Y.)   1917D-109.  (Annotated.) 

Note. 
Transfer  of  warehouse  receipt  as  divest- 
ing vendor's  lien,     1917D-112. 

c.    Stoppage  in  Transitu, 

50.  Loss  of  Eight — Transfer  of  Ware- 
house Receipt.  Under  N.  Y.  Personal 
Property  Law,  §  139  (Consol.  Laws,  e.  41, 
McKinney's  Consol.  Laws,  Book  40),  added 
by  Laws  1911,  c.  571,  providing  relative 
to  a  seller's  right  of  stopping  goods  in 
transitu  that  goods  are  in  transit  from  the 
time  they  are  delivered  to  a  carrier  or 
bailee  for  transmission  to  the  buyer,  until 
the  buyer  takes  delivery  from  the  carrier 
or  bailee,  and  that  goods  are  no  longer  in 
transit  if  the  buyer  obtains  delivery  be- 
fore the  arrival  of  the  goods  at  their 
destination,  or  if,  after  their  arrival,  the 
carrier  or  bailee  acknowledges  to  the 
buyer  that  he  holds  the  goods  on  his  be- 
half, a  seller  of  goods,  transferring  a 
negotiable  warehouse  receipt  therefor  to 
the  buyer,  cannot  thereafter  regain  posses- 
sion by  the  exercise  of  the  right  of  stop- 
page in  transitu,  as  merchandise  is  not  in 
"transit"  unless  delivered  to  a  bailee  for 
th#  purpose  of  transportation,  and  if  the 
transformation  of  the  warehouseman's  pos- 
session, from  a  possession  for  the  seller  to 
a  possession  for  the  buyer  by  the  transfer 
of  the  receict  was  equivalent  to  a  transit 
of  the  merchandise,  the  same  act  which 
marked  the  beginning  of  the  transit 
marked  also  its  end,  and  where  the  process 
of  transportation  has  been  completed  and 
the  bailee  has  undertaken  to  keep  the 
goods  as  agent  of  the  buyer,,  the  right  of 
stoppage  is  extinguished.  Bummell  v. 
Blanchard  (N.  Y.)  1917D-109. 

d.     Actions. 
(1)     Pleading, 

51.  Action  for  Breach  of  Contract — Com- 
plaint Sufficient.  A  complaint  alleged 
that  defendant  agreed  to  purchase  twenty- 
five  motor  cars  from  plaintiff,  but  that  it 
purchased  and  paid  for  only  four,  that  if 
it  had  purchased  the  remaining  twenty-one 
plaintiff's  profit  on  each  car  would  have 
been    $100,    and     that    by    reason   of    the 


breaeh  he  suffered  damages  to  the  amount 
of  $2,100,  Cal.  Civ.  Code.  §  3300.  declares 
that,  unless  otherwise  provided,  the  meas- 
ure of  damages  for  breach  of  a  contract 
is  the  amount  which  will  compensate  the 
party  aggrieved  for  all  detriment  proxi- 
mately caused.  Section  3311  provides  that 
a  seller's  damages,  if  the  property  has 
been  resold,  is  the  difference  between  the 
contract  price  and  the  net  proceeds  of  the 
sale;  and,  if  not  resold,  the  difference  be- 
tween the  contract  price  and  the  value  of 
the  property  to  the  seller.  Section  3353 
declares  that  in  estimating  damages  the 
vaJue  of  property  to  a  seller  is  deemed  the 
price  which  he  could  have  obtained  in 
the  nearest  market.  Held,  that  the  com- 
plaint, while  stating  a  conclusion,  was 
sufficient  as  against  general  demurrer;  for, 
though  the  seller  may  or  may  not  have 
had  the  property  on  hand,  it  'showed  his 
loss.  Thompson  v.  Hamilton  Motor  Co. 
(Cal.)  1917A-e77. 

(2)     Evidence. 

52.'  Agreement  not  to  Engage  in  Busi- 
ness— Breach  —  Proof  of  Damage.  In  an 
action  by  the  purchasers  of  a  business  and 
the  good  will  thereof  against  the  seller, 
who  had  agreed  not  to  conduct  the  same 
kind  of  business  in  the  same  town,  plain- 
tiffs were  bound  to  show,  with  some  degree 
of  certainty,  not  only  that  the  seller  com- 
mitted the  wrongs  imputed  to  him.  but 
that  they  produced  an  injury  or  resulted 
in  a  violation  of  plaintiffs'  rights.  Finch 
V.  Michael  (N,  Car.)  1916E-3S2. 

53.  Parol  Evidence  of  Subsequent  Agree- 
ment. Evidence  offered  by  the  seller  of  a 
mule  that  after  it  had  been  delivered  to 
the  buyer,  and  within  half  an  hour  after 
a  written  contract  of  sale  had  been  deliv- 
ered by  the  buyer  to  the  seller,  and  before 
the  seller  had  handed  such  paper  to  a  third 
person  who  was  to  keen  it  for  the  parties, 
the  buyer  agreed  that  the  title  to  the  mule 
should  remain  in  the  seller  until  payment 
was  made,  is  admissible  if  considered  as 
made  at  the  time  of  the  contract  as  being 
an  agreement  to  secure  payment  not  incon- 
sistent with  the  contract,  and  if  made  sub- 
sequently to  the  contract  the  rule  exclud- 
ing parol  evidence  does  not  anply.  Brown 
v.  Mitchell  (N,  Car.)  1917B-933. 

54.  Evidence  of  Damage  Sufficient.  In 
an  action  for  breach  of  a  contract  to  pur- 
chase automobiles,  evidence  held  to  show 
plaintiff's  damage.  Thompson  v,  Hamilton 
Motor  Co.  (Cal.)  1917A-677. 

55.  Subsequent  Contract  Indicating 
Value  —  Admissibility  of  Evidence.  De- 
fendant's offer  to  prove  that  prior  to  mak- 
ing the  offer  to  the  county  it  was  under- 
stood that  the  contract  with  the  county 
was  not  to  be  retroa'-tive  is  properly  re- 
.iected,  as  it  cannot  affect  rlaintifTs  rights, 
McGarry  v.  Superior  P5rtland  Cement  Co. 
(Wash,)  1918A-572, 


SALES. 


741 


(3)     Questions  of  Law  or  Fact. 

56.  In  an  action  for  the  price  agreed  on 
a  parol  sale  of  stock  for  a  price  more  than 
$200,  to  a  buyer  already  in  possession  aa 
pledgee,  the  evidence  is  held  to  make  the 
buyer's  acceptance  of  possession  as  com- 
plete owner  a  question  for  the  jury.  "Wil- 
son V.  Hotchkiss  (Cal.)  1917B-570. 

(Annotated.) 


8.     RIGHTS  OF  VENDEE. 

57.  Bona  Fide  Purchasers — Consideration 
— Pre-existing  Debt.  Where  lumber  sold 
by  plaintiff  to  a  fraudulent  buyer  is  resold 
to  defeudant  in  consideration  of  the  can- 
cellation of  a  pre-existiug  debt,  such  con- 
sideration does  not,  under  the  law  of  Ohio, 
constitute  defendant  a  bona  fide  purchaser 
for  value.  W.  G.  Ward  Lumber  Co.  v. 
American  Lumber,  etc.  Co.  (Pa.)  191SA- 
451.  (Annotated.) 

58.  Set-off — Expenses  of  Buyer.  Where 
grading  contractors,  who  bought  an  im- 
peller for  their  secondhand  pump,  promise 
to  pay  the  seller's  bill,  making  no  objec- 
tion to  the  price  or  that  the  expressage 
from  the  factory  had  been  charged  as  a 
part  of  the  expense  of  obtaining  the  im- 
peller, they  cannot  claim  an  offset  for 
items  of  expenditure  upon  other  details  of 
their  pumping  plant  in  endeavoring  to 
make  it  work.  Ferine  Machinery  Co.  v. 
Buck  (Wash.)  1917C-341. 

59.  Where  grading  contractors  bought 
an  impeller  for  their  secondhand  pump 
and  notified  the  seller  that  it  did  not  work 
satisfactorily,  they  are  not  authorized  to 
expend  money  on  other  parts  of  the  pump 
to  perfect  the  plant,  and  then  offset  the 
expense  against  the  seller's  claim.  Ferine 
Machinery  Co.  v.  Buck  (Wash.)  1917C- 
341. 

60.  Of  Building— Pleading  in  Action  on 

Contract.  A  complaint  alleging  that  de- 
fendant, being  the  owner  of  a  dwelling 
bouse  situated  at  a  certain  street  number, 
which  it  desired  to  dispose  of,  and  have 
removed,  sold  the  same  to  plaintiff,  who 
owned  the  lot  on  the  opposite  side  of  the 
street  to  which  he  intended  to  remove  it, 
for  a  valuable  consideration  then  paid^ 
and  that  defendant  knew  of  plaintiff's 
purpose  in  purchasing  the  house,  but  after- 
wards refused  to  permit  plaintiff  to  remove 
or  take  possession  of  it,  sufficiently  al'.eged 
a  contract  by  defendant  to  sell  the  dwell- 
ing house  and  a  breach,  not  alleging  a 
contract  for  the  purchase  and  sale  of 
realty.  Wetkopsky  v.  New  Haven  Gas 
Light  Co.  (Conn.)  I916D-968. 

Note. 

Purchaser  of  chattel  for  pre-existing 
debt  as  purchaser  for  ralue.    1918A-455. 


9.     CONDITIONAL  SALES. 
a.    In  General. 

61.  Property  Attached  to  Eealty  of  TMrd 
Person.  Where  personalty,  such  as  ma- 
chinery, is  to  the  seller's  knowledge  sold 
to  be  attached  to  the  realty  of  a  third 
person  other  than  the  buyer  and  used  for 
a  particular  purpose,  in  order  to  bind  such 
third  person  by  a  contract  of  conditional 
sale  between  the  buyer  and  seller,  such  as 
one  reserving  title  in  the  seller  until  full 
payment,  such  third  person  must  have  ac- 
tual notice  of  the  reserved  title,  and  its 
rights  are  not  affected  by  the  contract  ifor 
payment  between  ,.the  buyer  and  seller 
without  such  notice.  Allis-Chalmers  Co.  v. 
Atlantic  (Iowa),  1916D,  910. 

(Annotated.) 

62.  What  Constitutes.  An  instrument  is 
a  conditional  sales  contract  where  it  pur- 
ports to  be  an  order  for  a  set  of  scales, 
contains  shipping  directions,  terms  of  pay- 
ment, provides  that  title  shall  remain  in 
seller,  loss  or  destruction  to  be  borne  by, 
buyer,  that  on  failure  to  pay  instalments 
whole  sum  shall  be  due,  that  payments 
made  shall  on  default  be  considered  rent, 
seller  to  make  repairs,  and  that  "this  con 
tract  covers  all  agreements  between  the 
parties,"  and  which  also  contains  at  the 
end  an  instalment  note  for  the  price.  To-, 
ledo  Scale  Co.  v.  Gogo  (Mich.)  1917E-601. 

63.  The  contract  cannot  be  construed  as 
authorizing  a  recovery  independent  of  de- 
livery of  property  or  vesting  of  title  in  de- 
fendant, but  instead  is  a  contract  of 
purchase  and  sale  with  payment  condi- 
tioned upon  the  passing  of  title.  Hart- 
Parr  Co.  V.  Finley  (N.  Dak.)   1917E-706. 

Notes. 

Rights  of  parties  in  case  of  conditional 
sale  of  property  to  be  attached  to  realty 
of  third  person.     1916D-915. 

Remedies  of  party  to  contract  upon  an- 
ticipatory breach  thereof  or  prevention  of 
performance.     1917E-712. 


b.    Remedies  of  Vendor. 

64.  Election  by  Seller  Between  Keme- 
dies.  Upon  default  by  the  vendee  in  a 
conditional  sale  contract  the  vendor  may 
either  disaffirm  and  retake  the  property, 
or  affirm,  declare  subsequent  payments 
due,  and  sue  for  the  purchase  price;  the 
election  of  one  remedy  barring  any  right 
unrler  the  other.  Norman  v.  Meeker 
(Wash.)  1917D-462.  (Annotated.) 

Note. 

Election  of  remedies  on  breach  of  condi- 
tional sale.     1917D-464. 


742 


c.    Bemedies  of  Vendee. 

65.  Eemedies  of  Vendee— Breach  of 
Warranty.  Where  the  seller  of  a  chattel 
by  conditional  sale  seeks  to  reclaim  it  by 
means  of  an  action  of  replevin,  the  buyer 
may  defend  by  pleading  a  breach  of  war- 
ranty by  way  of  recoupment  in  diminu- 
tion or  extinction  of  the  price,  as  pro- 
vided by  the  N.  Y.  Uniform  Sales  Act 
(Laws  1911,  c.  571)  §  150.  Peuser  v. 
Marsh   (N.  Y.)   1918B-913.     (Annotated.) 


DIGEST. 

19160— 1918B. 

made  the  debtor's  sale  absolutely  void,  and 
that  his  creditors  could  apply  the  property 
to  their  claims,  by  receivership,  injunc- 
tion, and  an  accounting,  and  on  the  theory 
of  a  creditor's  bill  or  a  bill  in  aid  of  execu- 
tion, the  complainant  will  not  be  denied 
equitable  relief,  on  the  ground  that  he  has 
an  adequate  remedy  at  law,  though  the 
equitable  remedy  is  not  exclusive.  Cof- 
fey V.  McGahey  (Mich.),  1916C-923. 

(Annotated.) 


Note. 
Bight  of  conditional  vendee  to  recover 
damages  for  breach  of  warranty.     1918B- 
914. 

10.     BULK   SALES   LAW. 
a.     Validity, 

66.  Validity  of  Btdk  Sales  Law.  The 
Mich.  Bulk  Sales  Act  (Pub.  Acts  1905,  No. 
223),  regulating  the  sale  of  merchandise  in 
bulk,  and  making  sales  not  in  accordance 
therewith  void  as  against  the  seller's  cred- 
itors, is  constitutional.  Coffey  v.  Mc- 
Gahey (Mich.)  1916C-923. 

b.     Construction. 

67.  Waiver  of  Bights  by  Creditor.    A 

creditor  who  knows  ilothing  of  the 
debtor's  sale  of  his  s^ock  of  goods  in  bulk, 
or  that  it  had  been  made  contrary  to  the 
Mich.  Bulk  Sales  Act  (Pub.  Acts  1905, 
No.  223),  by  his  conversation  with  the 
seller  in  the  presence  of  the  purchaser, 
cannot  waive  his  rights  under  the  act, 
since  a  "waiver"  is  an  intentional  relin- 
quishment of  a  known  right,  or  such  con- 
duct as  warrants  an  inference  of  a  relin- 
quishment of  such  right.  Coffey  v.  Mc- 
Gahey (Mich.)  1916C-923. 

68.  Remedy  of  Creditor  in  Equity.  Un- 
der Mich.  Bulk  Sales  Act  (Pub.  Acts  1905, 
No.  223),  providing  that  creditors  upon 
knowledge  that  the  requirements  of  the 
act  have  not  been  followed,  may  apply  to 
have  the  purchaser  become  a  receiver  and. 
account  to  creditors,  the  rule  that  a  credi- 
tor must  obtain  a  judgment  at  law  before 
resorting  to  equity  does  not  apply;  and, 
apart  from  the  statute,  the  rule  is  subject 
to  exceptions,  where  a  judgment  cannot  be 
had  because  the  debtor  is  dead,  has  ab- 
sconded from  the  state,  and  has  no  prop- 
erty therein.  Coffey  v.  McGahey  (Mich.), 
1916C-923.  (Annotated.) 

69.  Under  Mich.  Bulk  Sales  Act  (Pub. 
Acts  1905,  No.  223),  on  a  bill  in  behalf  of 
complainant  and  all  other  creditors  of  the 
geller  upon   the   theory   that   the  statute 


e.    Actions. 

70.  Action  by  Creditor — Parties.  In  a 
suit  by  the  creditor  of  one  who  sold  mer- 
chandise in  bulk,  without  a  compliance 
with  the  Mich.  Bulk  Sales  Act  (Pub.  Acts 
1905,  No.  223),  regulating  such  sales,  the 
seller  is  a  necessary  party.  Coffey  v.  Mc- 
Gahey (Mich.),  1916C-^923. 


Notes. 


of 


Bemedies   of  creditor   for   violation 
bulk  sales  law.     1916C-928. 

Statutory  regulation   of   sale   of   petro- 
leum products.     1917A-167. 

SALES  IN  BUI.K  ACTS. 

See  Fraudulent  Sales  and  Conveyances,  15- 
20. 

SAIiES  IN  PAETITION. 

See  Partition,  9. 

SALOONS. 

See  Intoxicating  Liquors. 

SATISFACTION. 

See  Accord  and  Satisfaction. 

Of  judgment,  see  Judgment,  53-57. 

SAVINGS  BANK. 
See  Banks  and  Banking,  75. 

SAWLOGS. 
Mejining,  see  Usages  and  Customs,  L 

SCANDALOUS   MA-TTEB. 

In    telegram,    ripht    to    refuse,    see    Tele- 
graphs and  Telephones,  24. 

SCENIC  RAILWAY. 

As  carrier  of  passengers,  see  Theaters  and 
Amusements,  7. 


SCHOOLS. 


743 


SCHOOLS. 

1.  Establishment,  743, 

2.  Consolidation  of  Schools,  743. 

3.  Actions  Against  School  Districts,  743. 

4.  School  Buildings,  743. 

5.  School  Boards  and  Officers,  744. 

a.  School  Boards,  744. 

b.  Officers  of  School  Districts,  744, 

c.  District  Attorney,  744. 

6.  School  Funds,  744. 

7.  Teachers  in  Public  Schools,  74(5. 

a.  Contracts  with  Teachers,  746w 

b.  Compensation,  746. 

c.  Removal.  746, 

8.  Pupils  in  Public  Schools,  746. 

a.  Admission,  746. 

b.  Separation  of  Eaces,  747. 

c.  Transportation  of  Pupils,  747. 

d.  Exclusion  from  School,  747. 

e.  Prohibition  of  Secret  Societies,  748. 

Evidence  on  exclusion  of  negro  from  white 
school,  see  Admissions  and  Declara- 
tions, 4, 

Oifts  to,  as  charities,  see  Cbarities,  4. 

Special  assessment  for  improvements,  see 
Taxation,  118-120. 

1.     ESTABLISHMENT. 

1.  Legislative  Control  of  Schools.    The 

educational  institutions  of  the  state  are 
under  the  control  of  the  legislature,  which 
may  create,  abolish,  or  regulate  them,  and 
the  courts  cannot  supervise  the  wisdom 
of  disciplinary  regulations  by  the  legisla- 
ture. Board  of  Trustees  v.  Waugh  (Miss.) 
1916E-522. 

2.  While  the  establishment  of  separate 
normal  schools  for  the  education  of  teach- 
ers is  not  a  part  of  the  common  school  sys- 
tem, yet  high  schools  where  a  normal 
training  is  given  are  part  of  the  "common 
schools"  within  Ark.  Const,  art.  14,  §  3, 
Dickinson  v.  Edmondson  (Ark.)  1917C-913. 

(Annotated.) 

2.  CONSOLIDATION  OF   SCHOOLS. 

3.  Discretion  of  Board.  Under  Tenn. 
Acts  1913,  c.  4,  providing  generally  for 
the  consolidation  of  schools,  the  public 
transportation  of  pupils,  and  the  employ- 
ment of  supervisors,  the  consolidation  of 
schools  is  not  required,  but  is  merely  per- 
mitted, and  the  question  how  the  law  shall 
be  administered  in  such  respect  is  left  to 
the  discretion  of  the  county  board  of  edu- 
cation. Cross  V.  Fisher  (Tenn.)  1916E- 
1092. 

4.  Judicial  ComtroL  If  a  county  board 
of  education,  acting  under  Tenn.  Acts 
1913,  c.  4,  providing  for  the  consolidation 
of  schools,  the  public  transportation  of 
pupils,  and  the  employment  of  supervisors, 
in  consolidating  certain  schools  into  one 
had  ignored  all  reasonable  rules,  acting  in 
an  arbitrary  manner,  so  as  to  abuse  its 
discretion,    by    disregarding    the    wishes, 


welfare,  and  interests  of  the  taxpayers  of 
the  district,  the  action  of  the  officials 
would  have  been  proper  subject  for  cor- 
rection by  injunction  because  of  abuse  of 
power.  Cross  v.  Fisher  (Tenn.)  1916E- 
1092. 

3.    ACTIONS   AGAINST   SCHOOL   DIS- 
TRICTS. 

5.  Liability  of  School  District— Defec- 
tive Condition  of  School  Premises. — The 
question  of  negligence  of  a  school  district 
in  leaving  accessible  to  small  pupils  a  hori- 
zontal ladder  seven  feet  above  the  con- 
crete floor,  unprotected  by  mats,  is  held 
under  the  evidence,  to  be  for  the  jury. 
Howard  v.  Tacoma  School  District 
(Wash.)    1917D-792.  (Annotated.) 

6.  Rem.  &  Bal.  Wash.  Code,  §  951,  au- 
thorizing action  against  a  school  district, 
for  an  injury  to  plaintiff's  rights  arising 
from  some  act  or  omission  of  the  district, 
abrogates  the  common-law  rule  of  its  non- 
liability for  negligence  in  the  performance 
of  governmental  duties.  Howard  v.  Ta- 
coma School  District  (Wash.)   1917D-792. 

(Annotated.) 

7.  A  school  district,  only  a  quasi  munici- 
pal corporation,  and  a  mere  arm  of  the 
state  for  the  administration  of  its  school 
system,  in  providing  exercise  ladders  in  a 
schoolhouse,  is  acting  in  a  governmental 
capacity,  the  same  as  in  providing  the 
schoolhouse,  and  not  performing  a  private 
or  proprietary  function,  and  so  is  not  lia- 
ble, under  the  common  law,  for  injury  to  a 
pupil  exercising  thereon,  though  resulting 
from  negligence  of  its  officers  or  agents  in 
connection  therewith.  Howard  v.  Tacoma 
School  District  (Wash.)  1917D-792. 

(Annotated.) 

8.  Contributory  negligence  of  a  girl 
pupil  six  years  old,  in  going  on  a  hori- 
zontal ladder  for  exercise,  though  told  by 
her  teacher  not  to  do  so.  is  held  under  the 
evidence  to  be  a  question  for  the  jury. 
Howard  r.  Tacoma  School  District  (Wash.) 
1917D-792.  (Annotated.) 

Note. 
Liability  of    municipal    corporation    or 
school  board  for  defective      condition  of 
public  school  premises.     1917D-79ii. 

4.     SCHOOL  BUILDINGS, 

9.  Implied  Liability — Under  Contract 
Invalid  for  Failure  to  Require  Bids. 
Where  a  board  of  trustees  of  a  school  dis- 
trict let  a  contract  for  work  on  a  school- 
house  without  advertising  for  bids  as  re- 
quired by  Cal.  Pol.  Code,  §  1617.  subd.  22, 
the  school  district  was  not  liable  to  the 
contractor  on  a  quantum  meruit,  since, 
while  a  school  board  may  under  some  cir- 
cumstances be  liable  upon  an  implied  con- 
tract for  benefits  received  by  it,  this  im- 


IH 


DIGEST. 

1916C— 1918B. 


plied  liability  arises  only  where  the  board 
has  general  power  to  contract  with  refer- 
ence to  a  subject-matter,  but  the  express 
contract  which  it  is  assumed  to  enter  into 
is  rendered  invalid  for  some  mere  irregu- 
larity or  some  invalidity  in  its  execution, 
and  it  does  not  arise  where  the  express 
contract  is  invalid  because  a  statute  pre- 
scribes the  only  method  in  which  a  valid 
contract  can  be  made,  and  the  adoption  of 
such  mode  is  a  jurisdictional  prerequisite 
to  the  exercise  of  the  power  to  contract  at 
all.     Beams  v.  Cooley   (Cal.)   1917A-1260. 

(Annotated.) 

10.  Municipal  Contracts — Necessity  of 
Competitive  Bidding.  Cal.  Pol.  Code, 
§  1617,  subd.  22,  makes  it  the  duty  of 
boards  of  trustees  of  school  districts  to  let 
all  contracts  involving  an  expenditure  of 
more  than  $200  for  work  to  be  done  or 
materials  or  supplies  to  be  furnished  to  the 
lowest  responsible  bidder  and  for  the  pur- 
pose of  securing  bids  to  publish  a  notice 
calling  for  bids.  A  board  of  trustees 
adopted  plans  for  a  school  building,  which 
the  superintendent  of  schools  refused  to 
approve  unless  certain  plastering  was 
omitted.  Such  work  was  eliminated  and 
a  contract  entered  into,  the  contractor's 
bid  being  modified  by  making  a  proper  de- 
duction for  the  plastering  and  certain 
other  work.  The  board,  however,  later 
determined  to  have  the  plastering  done, 
and  under  an  arrangement  with  the  con- 
tractor contracted  with  plaintiff  to  do  the 
work;  the  price  being  reached  by  taking 
the  price  for  which  the  contractors  would 
have  done  the  work  under  their  total  bid 
and  decreasing  that  by  several  hundred 
dollars.  Held  that,  the  cost  having 
amounted  to  more  than  $200,  the  contract 
should  have  been  let  as  required  by  the 
code,  and  it  was  no  answer  to  this  objec- 
tion that  the  original  specifications  upon 
which  the  contractor's  bid  was  made  in- 
cluded the  plastering,  and  hence  the  con- 
tract with  plaintiff  was  invalid.  Reams  v. 
Cooley   (Cal.)    1917A-1260. 

11.  Use  of  School  Building — Lodge 
Meetings.  Kirby's  Ark.  Dig.  §  7643,  au- 
thorizing school  directors  to  permit  a  pri- 
vate school  to  be  taught  in  the  schoolhouse 
while  not  occupied  by  a  public  school,  un- 
less otherwise  directed  by  the  voters  of 
the  district,  does  not  exclude  other  uses  of 
school  buildings,  where  the  same  do  not 
interfere  with  the  schools  nor  injure  the 
buildings,  and  does  not  render  invalid  a 
contract  authorizing  a  local  lodgre  of  a 
secret  society  to  use  a  school  building  for 
a  lodgeroom;  the  use  not  interfering  with 
the  school  nor  injuring  the  building.  Cost 
V.  Shinault  (Ark.)  1916C-483. 

(Annotated;) 

12.  Kirby's  Ark.  Dig.  §  7614,  conferring 
on  school  directors  the  power  to  control  the 
school    affairs   with   the    custody    of    the 


schoolhouses  and  grounds,  and  preserve  the 
same,  vests  in  the  directors  discretion  in 
arrangements  for  the  interest  of  the  dis- 
trict and  they  may,  with  the  approval  of 
the  voters  of  the  district,  permit  a  secret 
society  to  use  the  school  building  as  a 
lodgeroom,  where  such  use  does  not  inter- 
fere with  the  school  nor  injure  the  build- 
ing, but  is  advantageous  to  the  district  in 
view  of  its  financial  condition.  Cost  v. 
Shinault  (Ark.)  1916C-483.     (Annotated.) 

Note. 
Power  of   school    authorities   to   permit 
use  of  school  building  for  other  than  re- 
ligious or  public  school  purposes.     1916C- 
485. 

5.    SCHOOL  BOAEDS  AND  OFFICEES. 
a.    School  Boards. 

13.  Power  of  Board  to  Employ  Attorney. 
But  said  section  does  not  deprive  such  in- 
dependent district  boards  of  the  implied 
power,  to  employ  other  counsel  or  addi- 
tional counsel  to  assist  the  prosecuting  at- 
torney, where,  in  their  judgment  and  rea- 
sonable discretion  the  character  of  the 
business,  or  on  account  of  the  absence  of 
the  prosecuting  attorney,  or  his  incapacity, 
sickness,  or  other  disability,  or  his  refusal 
to  act,  there  is  necessity  therefor.  Mollo- 
han  V.  Cavender  (W.  Va.)  1918A-499, 

(Annotated.) 
Note. 

Power  of  school  district  to  employ  coun- 
sel.    1918A-502. 

b.    Officers  of  School  Districts. 

14.  School  Supervisors  —  Emplojrment. 
Tenn.  Acts  1913,  c.  4,  §  3.  giving  boards  of 
education  authority  to  employ  supervisors 
of  schools,  whose  duty  shall  be  to  assist 
county  superintendents  in  the  organiza- 
tion, gradation,  and  supervision  of  schools, 
etc.,  and  to  pay  them  out  of  the  respec- 
tive school  funds  of  counties,  etc.,  does  not 
violate  Const,  art.  11,  §  17,  providing  that 
no  county  office  created  by  the  legislature 
shall  be  filled  otherwise  than  by  the  peo- 
ple or  the  county  courts,  since  the  ap- 
pointees contemplated  by  the  act  are  not 
"county  officers,"  but  mere  "employees." 
Cross  V.  Fisher  (Tenn.)  1916E-1092. 

c.    District  Attorney. 

15.  Independent  Districts — Duty  of 
Prosecuting  Attorney  to  Serve.  It  is  the 
duty  of  the  prosecuting  attorney,-  imposed 
by  section  49,  chapter  39,  W.  Va,  Code,  to 
serve  independent  district  boards  of  educa- 
tion as  well  as  other  district  boards,  as 
thereby  prescribed.  MoUohan  v.  Cavender 
(W.  Va.)  1918A-499. 

6.     SCHOOL  FUNDS. 

16.  Diversion  of  School  Funds^Purpose 
for     Which     Appropriation     Permissible. 


SCHOOLS. 


745 


Higb  schools  fall  within  the  term  of  "com- 
mou  schools,"  used  by  Ark.  Const,  art.  14, 
and  an  appropriation  for  such  schools 
is  authorized.  Dickinson  v.  Edmondson 
<Ark.)  1917C-913.  (Annotated.) 

,  17.  "Revenue" — Meaning  of  Term.  In 
view  of  Mo.  Const,  art,  11,  §§6,  7,  pro- 
viding that  the  school  fund  shall  consist  of 
certain  funds  together  with  so  much  of  the 
ordinary  revenue  of  the  state  as  may  be 
by  law  set  apart  for  that  purpose,  and 
that,  in  case  the  public  school  fund  shall 
be  insufBeient  to  sustain  a  free  school  four 
months  in  each  year,  the  general  assembly 
may  provide  for  such  deficiency,  but  in 
no  case  shall  there  be  set  apart  less  than 
twenty-five  per  cent  of  the  state  revenue, 
the  word  "revenue"  used  in  Mo.  Laws 
1915,  p.  89,  §  1,  appropriating  one-third  of 
the  ordinary  revenue  paid  into  the  state 
treasury  for  school  purposes,  means  the  an- 
nual and  current  income  of  the  state,  how- 
ever derived,  which  is  subject  to  appro- 
priation for  general  public  uses  in  con- 
tradistinction to  sums  which  are  required 
to  be  paid  into  the  state  fund;  the  word 
"revenue"  in  its  ordinary  sense  meaning 
the  annual  yield  of  taxes,  etc.,  collected  by 
the  state.  State  v.  Gordon  (Mo.)  1918B- 
191.  (Annotated.) 

18.  Particular  Items  Included.  Under 
Mo.  Laws  1915,  p.  89,  §  1,  appropriating  for 
schools  one-third  of  the  ordinary  revenue 
of  the  state,  gross  earnings  of  and  fees  col- 
lected by  various  state  departments  are 
tfivenue  only  when  paid  directly  into  the 
state  treasury  without  deduction  for  the 
expenses  of  the  departments  and  salaries 
of  the  ofiicers  thereof,  but  when  such  de- 
duction is  made  only  the  surplus  is  rev- 
enue.    State  V.  Gordon   (Mo.)    1918B-191. 

(Annotated.) 

19.  Only  the  net  earnings  of  examiners 
appointed  by  the  state  auditor  is  "ordinary 
revenue"  within  Mo.  Laws  1915,  p.  89, 
I  1,  appropriating  one-third  for  schools,  for 
Laws  1913,  p.  767,  §  5,  provides  for  pay- 
ment of  salaries  of  examiners  out  of  the 
per  diem  received  from  counties  and  pay- 
ment of  surplus  into  the  treasury.  State 
v.  Gordon  (Mo.)  1918B-191.     (Annotated.) 

20.  Under  Mo.  Laws  1915,  p.  89,  §  1,  ap- 
propriating one-third  of  annual  ordinary 
revenue  for  schools,  neither  the  gross  nor 
net  incomev  from  the  factory  inspection 
fund  is  ordinary  revenue,  for  such  income 
goes  into  a  special  fund  for  expenses  of  in- 
spection which  cannot  be  made  up  from 
the  general  revenue,  and  the  transfer  to 
the  general  revenue  fund  is  made  bienni- 
ally by  Eev.  St.  1909,  §  7826.  State  v. 
Gordon   (Mo.)    1918B-191.       (Annotated.) 

21.  Moneys  intermittently  transferred 
from  the  insurance  department  fund  to  the 
general  revenue  fund  are  not  ordinary  an- 
nual revenue  within  Mo.  Laws  1915,  p.  89, 
§  1,    appropriating    one-third    thereof  ^  for 


schools,  particularly  as  Eer.  St.  1909^, 
§  6884,  requires  payment  into  the  special 
fund,  and  as  transfers  are  not  binding  on 
the  legislature  and  are  made  biennially. 
State  V.  Gordon  (Mo.)  1918B-191, 

(Annotated.) 

22.  Fines  assessed  against  lumber  com- 
panies are  not  "ordinary  revenue,"  within 
Mo.  Laws  1915,  p.  89,  §  1,  appropriating 
one-third  of  annual  revenue  for  schools, 
as  such  fines  are  wholly  adventitious,  and 
are  in  no  way  annual.  State  v.  Gordon 
(Mo.)  1918B-191.  (Annotated.) 

23.  Interest  on  ordinary  state  deposits, 
other  than  special  funds,  governed  by  Mo. 
Laws  1911,  p.  114,  §  10,  requiring  expendi- 
ture of  the  interest  for  the  purpose  of  the 
fund,  is  "ordinary  revenue"  within  Laws 
1915,  p.  89,  §  1,  appropriating  one-third 
thereof  for  schools.  State  v.  Gordon  (Mo.) 
1918B-191.  (Annotated.) 

24.  In  such  case,  as  Mo.  Laws  1913, 
p.  367,  providing  for  inspections  of  hay 
and  grain  by  warehouse  commissioners, 
provides,  in  section  41,  that  fees  shall  be 
regulated  so  as  to  produce  only  sufficient 
funds  to  defray  the  expenses  of  the  de- 
partment, and  Rev.  St.  1909,  §  10955,  pro- 
vides for  payments  to  local  commissioners 
out  of  the  textbook  filing  fund,  only  the 
surplus  remaining  after  payment  of  such 
charges  is  revenue.  State  v.  Gordon  (Mo.) 
1918B-191.  (Annotated.) 

25.  In  such  case,  the  word  "ordinary"  is 
to  be  given  its  usual  meaning  as  "accord- 
ing to  settled  order,"  and  the.  school  fund 
is  entitled  to  one-third  of  the  regular  and 
usual  annual  income  of  the  state  subject  to 
appropriation  for  public  uses.  State  v. 
Gordon  (Mo.)  1918B-191.         (Annotated.) 

26.  Distribution  of  School  Funds — Neces- 
sity of  ITnlfonnlty.  While  there  is  no  ex- 
press provision  for  uniformity,  the  distri- 
bution of  common  school  funds  must  be 
uniform.  Dickinson  v.  Edmondson  (Ark.) 
1917C-913. 

27.  Ark.  Laws  1911,  p.  299,  making  ap- 
propriations for  state  aid  of  high  schools, 
is  discriminatory  in  so  far  as  it  prohibits 
any  aid  to  high  schools  in  cities  of  over 
3,500  inhabitants  and  gives  all  of  its  aid 
to  rural  high  schools.  Dickinson  v.  Ed- 
mondson (Ark.)  1917C-913. 

28.  Under  Ark.  Const,  art.  14,  §  1,  pro- 
viding for  the  establishment  of  free 
schools  whereby  all  persons  between  the 
ag«s  of  6  and  21  may  receive  gratuitous  in- 
struction, the  common  school  funds  cannot 
be  extended  for  the  instruction  of  persons 
without  those  ages.  Dickinson  v.  Edmond- 
son (Ark.)  1917C-913.  (Annotated.) 

Note. 

Power  of  legislature  with  respect  to  ex- 
penditure of  school  funds.     1917C-917. 


746 


DIGEST. 

1916C— 1918B. 


7.    TEACHERS   IN  PUBLIC  SCHOOLS, 
a.     Contracts  With  Teachers. 

29.  Effect  of  Invalidity  of  Contract.  No 
recovery  can  be  had  by  a  school  teacher 
for  the  breach  of  a  contract  which  was 
not  entered  into  in  the  manner  prescribed 
by  law  where  the  breach  occurred  before 
any  services  were  rendered  thereunder  by 
him.  Barton  v.  School  District  (Ore.) 
1917A-252.  (Annotated.) 

30.  Contract  With  Teacher  —  Necessity 
That  Board  Act  as  Body.  Under  Ore. 
Laws  1913,  pp.  301,  304,  §§  7,  17,  provid- 
ing that  the  school  board  may  hire  teach- 
ers, and  that  any  duty  imposed  on  the 
board  as  a  body  must  be  performed  at  a 
regular  or  special  meeting,  and  that  the 
consent  to  any  particular  measure  ob- 
tained of  individual  members  when  not  in 
session  is  not  an  act  of  the  board,  a  con- 
tract of  hiring  is  not  made  out  where  the 
minutes  show  that  the  board  at  a  meeting 
made  a  selection  of  plaintiff  as  a  teacher, 
but  the  contract  was  prepared  by  the  clerk 
and  signed  by  the  members  individually 
after  adjournment.  Barton  v.  School  Dis- 
trict (Ore.)  1917A-252. 

b.     Compensation. 

31.  Fixing  Minimvim  Salary  of  Teachers 
— ^Validity  of  Statute.  Acts  35th  Iowa 
Gen.  Assem.  c.  249,  prohibiting  and  pun- 
ishing the  employment  by  any  school  offi- 
cer, of  a  teacher  at  less  wages  than  the 
amount  fixed  for  the  grade  of  certificate 
of  such  teacher,  does  not  violate  Const, 
art.  1,  §  1,  declaring  all  men  equal  and  en- 
titled to  acquire,  possess,  and  protect  prop- 
erty, nor  section  6,  requiring  all  laws  of  a 
general  nature  to  have  a  uniform  opera- 
tion, and  forbidding  the  granting  of  spe- 
cial provileges  or  immunities,  as  the  school 
district  is  a  creation  of  the  legislature, 
and  the  powers  and  duties  of  its  officers  are 
defined  by  legislative  act,  and  consequently 
it  could  enlarge  or  abridge  the  same;  the 
object  of  the  statute  being  to  bring  about 
higher  standards  in  teaching  and  en- 
courage competition  in  qualifications 
rather  than  wages.  Bopp  v.  Clark  (Iowa) 
1916E-417.     (Annotated.) 

Note. 
Validity  of  statute  fixing  minimum  sal- 
ary of  school  teachers.     1916E-420. 

e.     BemovaL 

32.  Marriage  as  Ground  for  Bemoval. 
Ore.  Laws  1913,  p.  69,  by  section  1  gives 
the  board  of  directors  of  every  school  dis- 
trict the  power  to  remove  and  discharge  all 
teachers  as  it  may  deem  necessary;  by  sec- 
tion 4  provides  that  teachers  employed  in 
a  district  as  regularly  appointed  teachers 
for  not  less  than  two  successive  years  shall 
be  placed  upon   the  list  of  permanently 


employed  teachers;  by  section  5  that  such 
teachers  shall  serve  until  dismissed,  sub- 
ject to  the  board's  rules  which  shall  be 
reasonable;  by  section  6  that  before  dis- 
missal, any  teacher  on  the  permanent  list 
shall  receive  written  notice  stating  the 
cause,  a  copy  of  any  charges  filed,  and,  on 
request,  shall  be  entitled  to  a  hearing  be- 
fore the  board;  and  by  section  11  repealed 
all  acts  in  conflict  therewith.  Laws  1913, 
c.  172,  a  general  law,  detailing  the  powers 
of  district  school  boards,  effective  the  same 
day,  provides  by  section  1,  subd.  22,  that 
the  board  shall  dismiss  teachers  only  for 
good  cause  shown.  Relator  a  teacher  on 
the  permanent  list,  on  her  engagement  on 
May  19,  1913,  for  the  ensuing  school  year 
commencing  September  15,  1913,  signed  an 
acceptance  form,  containing  a  resolution  of 
the  board  that  marriage  of  women  teachers 
should  terminate  their  service,  and,  upon 
her  marriage  on  January  4,  1915,  was  re- 
moved under  the  resolution  without 
charges,  notice,  or  hearing.  It  is  held  that 
the  board  had  no  power  to  dismiss  a 
teacher  for  a  cause  which  was  not  reason- 
able; that  if  her  marriage  was  a  reasonable 
cause  for  dismissal,  the  attempted  dis- 
missal was  ineffective  for  want  of  com- 
plaint, notice,  and  hearing;  that  the  ac- 
ceptance agreement  had  expired;  but  that 
her  marriage  was  not  a  reasonable  cause  for 
dismissal.  Richards  v.  District  School 
Board  (Ore.)   1917D-266.         (Annotated.) 

Note. 
Marriage    as    ground    for    removal    of 
woman  school  teacher.     1917D-271. 

8.     PUPILS  IN  PUBLIC  SCHOOLS. 

a.     Admission. 

33.  Eequiring  Physical  Examination  of 
Pupils — ^Validity  of  Regulation.  The  board 
of  education  of  a  city  school  district,  as 
a  condition  to  their  admission,  required 
each  pupil  to  furnish  a  physical  report 
based  upon  a  physical  examination  by  a 
physician  furnished  by  the  board  or  at  the 
option  of  the  parents  by  a  physician  se- 
lected and  paid  by  them.  It  was  admitted 
that  the  regulation  was  adopted  and  en- 
forced for  the  purpose  of  guarding  the 
community  and  pupils  against  the  spread 
of  contagious  and  infectious  diseases;  that 
since  its  adoption  and  enforcement  the 
health  of  the  children  had  greatly  im- 
proved, and  no  epidemics  had  broken  out 
in  the  schools  causing  them  to  close, 
though  contagious  diseases  had  been  epi- 
demic in  the  city,  and  in  former  years  had 
been  carried  into  the  schools;  that  the 
cleanliness  of  the  schools  and  freedom  from 
filthy  vermin  had  been  greatly  improved; 
that  physical  culture,  athletic  exercises, 
and  the  cultivation  of  vocal  talent  were 
parts  of  the  course  of  instruction;  that 
such  regulation  was  further  adopted  to  de- 
termine whether  any  pupil  had  any  phy- 


SCHOOLS. 


747 


sical  defect,  so  that  such  exercises  would 
be  dangerous  to  his  health,  or  any  defect 
requiring  special  assistance  or  attention  in 
order  to  maintain  the  pupil's  regular  posi- 
tion in  his  classes,  or  to  enable  him  to  hear, 
see,  and  secure  full  benefit  of  the  recita- 
tions. It  is  held  that,  conceding  that  such 
regulation  was  a  matter  of  government  or 
legislation,  and  related  to  the  health  of 
the  pupils,  and  though  the  legislature  has 
delegated  certain  police  powers  relating  to 
health  to  the  board  of  health  and  medical 
examiners,  the  regulation  was  valid,  since 
municipal  or  quasi  municipal  corporations 
have  such  police  powers  as  are  necessary  in 
tiie  performance  of  the  particular  function 
for  which  they  were  created.  Streich  t. 
Board  of  Education  (S.  Dak.)  1917A-760. 

(Annotated.) 

34.  Such  regulation  was  not  invalid,  as 
adding  to  the  qualifications  for  admission 
prescribed  by  law,  since  no  pupil  would  be 
excluded  from  the  school  except  upon  his 
own  volition,  or  unless  the  physical  exami- 
nation showed  him  to  be  suffering  from 
some  disease  rendering  him  a  menace  to 
his  associates.  Streich  v.  Board  of  Edu- 
cation (S.  Dak.)  1917A-760.     (Annotated.) 

35.  That  physical  culture,  athletics,  and 
the  cultivation  of  vocal  talent  are  not  re- 
quired by  statute  to  be  taught  in  the  pub- 
lic schools,  does  not  render  such  regulation 
invalid,  since  there  is  nothing  in  the  stat- 
ute forbidding  school  districts  to  provide 
instruction  in  branches  other  than  those 
specified,  and  every  child  attending  the 
school  has  a  right  to  share  the  benefits  of 
such  instruction  so  far  as  physically  and 
mentally  able.  Streich  v.  Board  of  Edu- 
cation (S.  Dak.)  1917A-r60.  (Annotated.) 

36.  Such  regulation  was  not  invalid,  as 
constituting  such  a  violation  of  a  personal 
right  as  is  not  justified  by  the  end  sought, 
since  the  conventionalities  of  the  time 
recognize  the  absolute  propriety  of  submit- 
ting to  an  examination  by  a  physician; 
especially  where  it  was  not  shown  that  any 
exposure  of  the  person  or  manipulation  of 
the  body  such  as  would  shock  the  sensibili- 
ties of  the  most  refined  person  would  be 
required.  Streich  v.  Board  of  Education 
(S.  Dak.)   1917A-760.  (Annotated. 

37.  Such  regulation  was  not  invalid,  on 
the  theory  that  the  physical  examination 
might  cause  such  mental  suggestion  of 
diseases  as  might  result  in  disease;  it  not 
appearing  that  the  pupil  need  even  know 
the  contents  of  the  report,  and  the  doctrine 
of  mental  suggestion  not  being  an  accepted 
doctrine  recognized  by  the  courts.  Streich 
V.  Board  of  Education  (S.  Dak.)  r917A- 
760.  (Annotated.) 

38.  Such  regulation  involved  no  question 
of  religious  liberty,  as  school  boards  in 
making  rules  for  the  control  of  the  public 
schools  should  not  base  them  upon  the 
tenets    of    any    particular    religious    sect. 


Streich  v.  Board  of  Education  (S.  Dak.) 
1917A-760.  (Annotated.) 

Note. 
Validity  of  health  regulation  relating  to 
school  children.     1917A-765. 

b.    Separation  of  Baces. 

39.  Separate  Schools  for  White  and 
Colored  Children.  While  the  child  of  s 
white  person  and  one  having  less  than  one- 
eighth  negro  blood  is  entitled  to  exercise 
the  rights  of  a  white  man,  in  view  of 
S.  Car.  Const,  art.  3,  §  33,  authorizing  the 
marriage  of  such  persons,  school  trustees, 
under  S.  Car.  Civ.  Code,  1912,  §  1761,  subd. 
3,  providing  that  the  trustees  shall  have 
authority  and  it  shall  be  their  duty  to 
suspend  or  dismiss  pupils  when  the  best  in- 
terest of  the  schools  make  it  necessary, 
may,  upon  providing  a  school  for  children 
of  this  class,  distinct  from  both  the  white 
and  negro  schools,  suspend  such  child  from 
the  white  schools  when  for  the  best  inter- 
est of  the  other  white  pupils,  who  would  be 
withdrawn  if  it  was  allowed  to  remain, 
notwithstanding  section  178jO,  declaring 
that  it  shall  be  unlawful  for  pupils  of  one 
race  to  attend  the  schools  provided  for  an- 
other, and  Const,  art.  11,  §  7,  providing  for 
separate  schools  for  whites  and  negroes. 
Tucker  t.  Blease  (S.  Car.)  1916C-796. 

(Annotated.) 

c.     Transportation  of  Pupils. 

40.  Validity  of  Statute.  Tenn.  Acts 
1913,  e.  4,  §  2,  providing  for  the  transpor- 
tation of  children  residing  too  far  from  a 
school  to  attend  otherwise,  if  there  are 
enough  children  so  situated,  though  vesting 
a  discretion  in  school  boards  to  discrimi- 
nate reasonably  between  pupils  living  in 
sufScient  numbers  at  a  distance  from  a 
school  to  need  transportation,  and  those  so 
living  in  insuflScient  numbers,  is  not  viola- 
tive of  Const,  art.  11,  §  12,  setting  apart 
the  interest  on  the  common  school  fund 
for  the  equal  benefit  of  all  the  people,  since 
such  section  must  be  construed  with  sec- 
tion 8  of  the  same  article,  providing  that 
the  legislature  shall  not  pass  any  law  for 
the  benefit  of  individuals  inconsistent 
with  the  general  law  of  the  land,  nor  any 
law  granting  to  any  individual  rights  or 
exemptions  other  than  such  as  may  be  ex- 
tended bf  the  same  law  to  any  member  of 
the  commtinity  who  can  bring  himself 
within  the  law,  for  while,  by  necessity, 
children  of  some  citizens  resident  at  a 
distance  from  the  schools  may  be  deprived 
of  the  transportation  extended  to  others, 
nevertheless  such  citizens  can  bring  them- 
selves within  the  law  by  changing  resi- 
dence. Cross  V.  Fisher  (Tenn.)  1916E- 
1092.  (Annotated.) 

d.     Exclusion  from  School. 

41.  Liability  of  Board  of  Education — 
Expulsion  of  Fupll.     To  support  a  judg- 


7*8^ 


DIGEST 

1916C— 1918B, 
penalty   under    section       U.  S.  Amend.  14,  against  applicants  for  ad- 


ment    imposing    a 

2900,  Minn.  Gen.  StT  1913,  upon  a  member 
of  the  board  of  education  of  a  city  for 
havi^ng  voted  to  exclude  a  pupil  from  a 
public  school,  the  findings  must  show  that 
the  vote  related  to  such  pupil  and  that  no 
sufficient  cause  existed  for  the  exclusion. 
Bright  V.  Beard  (Minn.)  1918A-399. 

42.  Grounds — Exposure  to  Contagion.  It 
is  also  held  that  the  school  authorities  in- 
cluding members  of  boards  of  education 
have  authority  to  temporarily  exclude 
from  school  attendance  pupils  who  have 
been  exposed  to  contagious  and  infectious 
diseases,  and  that  the  danger  of  contract- 
ing and  spreading  the  disease  to  which 
such  pupils  have  been  exposed  is  sufficient 
cause  for  voting  to  so  exclude  them. 
Chapter  299,  Minn.  Laws  1903  (section 
4640,  Gen.  St.  1913),  does  not  apply  to  a 
pupil  who  has  been  exposed  to  smallpox. 
Bright  T.  Beard  (Minn.)  1918A-399. 

(Annotated.) 

43.  In  this  case  the  findings  show  that 
a  case  of  smallpox  had  developed  in  the 
public  school  wherein  plaintiff  was  a  pupil; 
that  defendant,  as  a  member  of  the  board 
of  education,  voted  for  a  resolution  re- 
quiring the  pupils  in  that  school  who  had 
been  exposed  to  the  contagion  to  be  vaccin- 
ated and  in  default  thereof  to  be  excluded 
from  attendance  until  the  lapse  of  two 
weeks;  and  that  was  the  only  act  of  de- 
fendant in  the  premises.  But  since  the 
findings  fail  to  show  that  plaintiff  was 
eitl^er  named  in  the  resolution,  or  came 
within  its  terms,  the  judgment  imposing 
a  penalty  is  not  sustained.  Bright  v. 
Beard  (Minn.)  1918A-399. 

Note. 
Power  to  expel  or  suspend  pupil  from 
school.     1918A-400. 

-   e.    Prohibition  of  Secret  Societies. 

44.  Miss.  Laws  1912,  c.  177,  abolishing 
all  secret  orders  and  fraternities,  etc.,  and 
prohibiting  their  existence  in  the  Univer- 
sity of  Mississippi  and  other  educational 
institutions  supported  in  whole  or  in  part 
by  the  state,  and  providing  that  no  student 
in  any  such  institution  who  is  a  member  of 
any  such  order  or  fraternity  shall  be  per- 
mitted to  receive  any  honors,  diplomas, 
or  distinctions,  or  to  contend  for  any  prize, 
unless  he  shall  sign  a  written  agreement 
not  to  affiliate  with  such  order,  attend  its 
meetings,  or  contribute  any  dues  or  dona- 
tions while  attending  such  institution,  does* 
not  violate  Const.  Miss.  1890,  §  1,  provid- 
ing for  the  distribution  of  the  powers  of 
the  government  into  three  distinct  depart- 
ments, section  2,  prohibiting  any  person  or 
collection  of  persons  belonging  to  one  of 
such  departments  from  exercising  any 
powers  belonging  to  either  of  the  others, 
nor    is    it    discriminatory!    within    Const. 


mission  to  the  University  of  Mississippi 
who  are  already  affiliated  with  such  a  fra- 
ternity at  other  institutions,  since  the 
right  to  attend  such  university  is  not  a 
material  right,  but  is  conferred  by  law,  and 
one  seeking  the  benefit  of  the  law  must 
submit  to  the  conditions  imposed  thereby. 
Board  of  Trustees  v.  Waugh  (Miss.) 
1916E-522.  (Annotated.) 

45.  In  a  suit  to  enjoin  the  board  of  trus- 
tees of  a  university  from  enforcing  an 
order  requiring  applicants  for  admission  to 
the  University  to  sign  a  pledge  not  to  be- 
come a  member  of  or  assist  in  the  organi- 
zation of  any  secret  order  or  fraternity, 
allegations  of  the  bill  that  the  fraternity 
of  which  the  complainant  was  a  member 
had  for  its  paramount  purpose  the  enforce- 
ment and  promotion  of  good  morals  and 
the  highest  possible  attainment  and  stand- 
ing in  class,  and  good  order  and  discipline 
in  the  student  body  of  the  different  col- 
leges with  which  it  was  connected,  do  not 
render  the  bill  good  against  demurrer  on 
the  theory  that,  having  been  admitted  by 
the  demurrer,  they  sTiow  that  the  frater- 
nity has  a  high  moral  purpose,  since  the 
court  will  take  notice  of  the  law  prohibit- 
ing fraternities  in  educational  institutions, 
and  the  bill  therefore  shows  that  complain- 
ant is  seeking  to  disobey  the  law.  Board 
of  Trustees  v.  Waugh  (Miss.)  1916E-522. 

(Annotated.) . 

46.  Under  Miss.  Laws  1912,  c.  177,  abol- 
ishing all  secret  orders,  fraternities,  etc., 
among  students,  and  prohibiting  their  ex- 
istence in  the  University  of  Mississippi 
and  other  educational  institutions  sup- 
ported in  whole  or  in  part  by  the  state, 
providing  that  no  student  in  any  such  in- 
stitution who  is  a  member  of  any  such 
order  or  fraternity  shall  be  permitted  to 
receive  any  honors,  diplomas,  or  dis- 
tinctions, or  to  compete  for  any  prize,  un- 
less he  shall  agree  in  writing  not  to  affili- 
ate with  such  orders  during  his  attendance 
at  such  school,  or  to  contribute  any  dues  or 
donations  to  such  order,  requiring  trustees 
and  faculties  to  enforce  the  provisions 
thereof,  and  providing  that  any  member  of 
any  board  of  trustees  or  faculty,  know- 
ingly permitting  any  violation  thereof,  or 
failing  or  refusing  to  take  proper  steps 
for  its  enforcement,  shall  be  removed  by 
the  governor,  the  board  of  trustees  of  the 
University  of  Mississippi  has  power  to  re- 
quire a  student,  as  a  condition  precedent 
to  his  right  to  enter  the  university,  to  sign 
a  pledge  that  he  is  not  and  will  not  become 
a  member  of  any  such  order  or  fraternity, 
or  aid,  abet,  or  encourage  the  organization 
thereof,  will  not  apply  for  nor  accept  any 
scholarship  or  medal,  or  in  any  way  be  the 
beneficiary  of  any  self-help  fund,  or  accept 
any  position  in  the  university,  if  he  vio- 
lates such  pledge,  and  will  make  it  his  pur- 
pose and  endeavor  to  avoid  violating  either 


SCHOOL  LANDS—gEDUCTION. 


{^ 


the  letter  or  spirit  of  that  act.     Board  of 
Trustees  v.  Waugh  (Miss.")  1916E-522. 

(Annotated.) 
Note. 
Validity  of  statutory  or  other  prohibi- 
tion   against    secret   societies   among   stu- 
dents.    1916E-527. 

SCHOOL  LANDS. 

See  Public  Lands. 

SCIBNTEE. 

Kttniiing  from  accident,  see  Automobiles, 
66. 

SEAMEN. 

As  within  Federal  Employers'  Liability 
Act,  see  Master  and  Servant,  59. 

As  within  Workmen's  Compensation  Act, 
see  Master  and  Servant,  243-247,  262. 

SEARCHES  AND  SEIZUBES. 

Order  to   produce  books  as  unreasonable, 
;        see  Discovery,  2. 
'Confiscation  of  liquor  unlawfully  kept,  see 

Intoxicating  Liquors,  17,  22. 
Duty  of  sheriff  to  investigate  crime,  see 
Sheriffs  and  Constables,  5,  6. 

1.  Service  of  Search.  Warrant — Designa- 
tion of  Officer.  Under  Ore.  L.  O.  L.  §  2518, 
authorizing  a  justice  of  the  peace  to  ap- 
point some  suitable  person  not  a  party  to 
serve  any  process  from  his  court  when 
such  service  could  not  be  made  for  want 
of  an  oflScer,  where  the  docket  states  that 
a  complaint  and  warrant  were  placed  in 
the  hands  of  a  person  as  special  consta- 
ble, but  the  special  constable  appointment 
is  not  evidenced  by  any  writing  indorsed 
on  the  writ  or  otherwise,  and  no  evidence* 
is  offered  and  no  finding  made  that  the 
warrant  could  not  be  served  for  want  of 
an  officer,  the  justice  is  without  authority 
to  appoint  him,  and  he  is  not  a  "duly  ap- 
pointed officer."  Smith  v.  McDuffee 
(Ore.)  1916D-947. 

2.  Admission  of  Papers  Taken  from  Ac- 
cused; In  a  prosecution  for  attempt  to  en- 
tice a  girl  to  enter  employment  of  another 
for  immoral  purposes,  the  admission  in 
evidence,  without  defendant's  consent,  of 
letters  taken  from  his  private  papers,  ac- 
cess to  which  was  obtained  by  keys  taken 
from  his  person  by  officers,  does  not  de- 
prive defendant  of  his  constitutional 
rights,  to  be  secure  from  unreasonable 
searches  and  seizure,  and  not  be  compelled 
to  testify  against  himself.  State  v.  Keed 
(Mont.)  1917E-783. 

3.  Warrant — Designation  of  Premises  to 
be  Searched.  Ore.  Const,  art.  1,  §  9,  pro- 
vides that  no  search  warrant  shall  be  is- 
sued but  upon  probable  cause  supported 
by  oath  or  affirmation  particularly  describ- 


ing the  place  to  be  searched  and  the  person 
or  things  to  be  seized.  Ore.  L.  O.  L. 
§§1852,  1853,  authorize  a  justice  of  the 
peacs  to  issue  a  warrant  to  search  for  per- 
sonal property  at  any  place  within 
his  county,  when  the  property  has  been 
stolen.  Section  1856  prescribes  the  fqrin 
of  the  warrant,  requiring  the  place  to  be 
searched  to  be  described  with  reasonable 
particularity.  Held,  that  a  warrant  coip- 
manding  search  on  all  the  premises  of  a 
person  for  certain  property,  not  even 
designating  the  county  in  which  the  writ 
is  to  be  executed,  ia  invalid;  the  descrip- 
tion being  insufficient  to  enable  a  sur- 
veyor, either  with  or  without  the  aid  of 
extrinsic  evidence,  to  locate  the  premises. 
Smith  V,  McDuffee  (Ore.)  1916D-947. 

(Annotated;) 

4.  Strict  Construction  of  Statute  Allow- 
ing Search.  A  proceeding  for  search  i6f 
premises  for  personal  property  being  in 
,  invitum,  the  statute  authorizing  it  is  to  be 
strictly  construed,  and  no  presumptions  of 
regularity  are  to  be  invoked  in  aid  of  the 
process  when  an  officer  undertakes  to  jus- 
tify under  it.  Smith  v.  McAfee  (Ore,) 
1916D-947. 

Note. 
Sufficiency  of  description  of  premises  in 
search     warrant     or     affidavit     therefor. 
1916D-952. 

"^        SBAECH  OF  TITLE.  ■■'■' 

Purchaser's  right  to  time  for,  see  Judicial 
Sales,  3. 

:;>A 

SECOiro  APPEAL. 
See  Appeal  and  Error,  7,  96-102. 

:  »<,3 
SECONDARY  EVIDENCE. 

See  Evidence,  43-50. 

SECOND  DELIVEBT. 
Meaning,  see  Escrow,  1. 

SECHET  S0CIETIE3. 
See  Societies  and  Clubs. 

SECXTEITIES. 
As  including  bonds,  see  Taxation,  163. 

SEDUCTION. 

As    element    of    damage,    see    Breach    of 
Promise  of  Marriage,  15. 

1.  Action  by  Another  for  Same  Cause. 
A  judgment  awarding  a  divorced  mother 
damages  for  seduction  of  a  minor  daughter 
in  her  custody  will  not  be  set  aside  be- 
cause the  father,  who  was  without  right. 


750 


DIGEST. 

19160— 1918B. 


had  also  instituted  suit  for  the  seduction. 
Malone  v,  Topfer  (Md.)  1916E-1272. 

2.  Action  for  Seduction  —  Eight  of 
Mother.  A  divorced  wife,  who  has  the 
custody  of  and  has  supported  a  minor 
daughter  of  the  marriage,  although  the 
court  has  not  granted  her  the  exclusive 
custody,  may  maintain  an  action  for  seduc- 

#      tion   of  the   daughter.     Malone  v.  Topfer 
(Md.)  1916E-1272.  (Annotated.) 

3.  A  divorced  wife  held  to  have  the 
custody  of  a  minor  daughter  of  the  mar- 
riage, so  as  to  entitle  her  to  sue  for  seduc- 
tion of  the  daughter.  Malone  v.  Topfer 
(Md.)  1916EI-1272.  (Annotated.) 

4.  Evidence— Beputation  of  Defendant. 
In  a  prosecution  for  seduction  under  prom- 
ise of  marriage,  defendant  is  not  limited 
to  proof  of  his  character  for  morality  and 
chastity,  but  is  entitled  to  prove  that  his 
general  reputation  as  a  peaceable  law- 
abiding  citizen  is  good.  Bishop  v."  State 
(Tex.)   1916E-379.  (Annotated.) 

Notes. 

Admissibility  of  evidence  of  defendant's 
reputation  in  prosecution  for  seduction. 
1916E-381. 

Right  of  mother  to  maintain  action  for 
daughter's  seduction.     1916E-1275. 

SEEDS. 
Warranty  of  fertility,  see  Sales,  17. 

SEEPAGE. 

Action  for  damages,  see  Parties,  11. 

SELECTION  OF  HOMESTEAD. 
See  Homestead,  3-7. 

SELECTIVE  DEAFT. 
See  Army  and  Navy,  1-9. 

SELF-DEFENSE. 

See  Assault,  12;  Homicide,  57,  67,  68. 
Woundine     of     innocent     bystander,     see 
Negligence,  102,  116. 

SELF-DESTEUCTION. 
See  Suicide. 

SELF-EXECUTINQ  PEOVISIONS. 

See  Constitutional  Law,  90-98. 

SELF-INCBIMINATION. 
See  Argument  and  Conduct  of  Counsel,  2. 

SELF-SEEVINO   DECLAEATIONS. 

See  Admissions  and  Declarations,  1-3. 


SENDING. 

Meaning,  see  Libel  and  Slander,  165. 

SENTENCE  AND  PUNISHMENT. 

1.  Validity  and  Construction  of  Statutes, 

750. 

2.  Consecutive     Terms    of    Imprisonment, 

751. 

3.  Suspension  of  Sentence,  751. 

4.  Cruel  and  Unusual  Punishment,  751. 

5.  Discretion  of  Court,  752. 

6.  Place  of  Imprisonment,   752. 

7.  Bemand  for  Besentence,  752. 

Interrogation  of  prisoner,  see  Appeal  and 
Error,  210. 

Excessive  sentence,  relief,  see  Habeas  Cor- 
pus, 5. 

In  prosecutions  under  liquor  laws,  see  In- 
toxicating Liquors,  107-109. 

1.     VALIDITY     AND     CONSTKUCTION 
OF  STATUTE. 

1.  It  is  tlie  penalty  prescribed  by  a  stat- 
ute for  a  single  offense,  and  not  the  aggre- 
gate of  punishments  inflicted  for  several 
offenses  of  the  same  character  joined  in 
one  indictment,  on  all  of  which  there  was 
a  conviction,  which  bears  on  the  question 
of  the  penalty  being  proportioned  to  the 
nature  of  the  offense.  People  v.  Elliott 
(111.)  1918B-391.  (Annotated.) 

2.  If  the  penalty  prescribed  by  statute 
is  not  proportionate  to  the  offense,  the  law 
is  void;  and  the  evil  cannot  be  cured  by 
a  mere  modification  on  appeal  of  the  sen- 
tence.    People  v.  Elliott  (III.)   19I8B-391. 

(Annotated.) 
S.  The  penalty  prescribed  by  111.  Anti- 
Saloon  Territory  Act  (Laws  1907,  p.  297) 
for  sale  of  liquors  in  anti-saloon  territory, 
a  fine  of  not  less  than  $20  nor  more  than 
$100,  or  imprisonment  for  not  less  than 
ten  days  nor  more  than  thirty  days,  or 
both,  is  clearly  not  disproportioned  to  the 
nature  of  the  offense.  People  v.  Elliott 
(111.)  1918B-391.  (Annotated.) 

4.  The  statute  prescribing  as  a  penalty 
for  sale  in  anti-saloon  territory  a  fine  of 
from  $20  to  $100,  or  imprisonment  from 
ten  to  thirty  days,  or  both,  being  valid, 
sentences  for  the  minimum  fine  and  im- 
prisonment on  each  of  seventy-one  counts 
are  not  invalid  as  imposing  cruel  and  un- 
usual punishment  because  of  the  aggre- 
gate.    People  V.  ElUott   (111.)    1918B-391. 

(Annotated.) 

5.  Provision  as  to  Disposition  of  Fine — 
Validity.  That  part  of  section  9205,  N. 
Dak.  Rev.  Codes  1905,  which  provides 
that  the  defendant,  upon  conviction, 
shall  "pay  a  fine  equal  to  double  the 
amount  of  money  or  other  property  so  em- 
bezzled as  aforesaid,  which  fine  shall  oper- 
ate as  a  judgment  at  law  on  all  the  estate 
of  the  party  so  convicted  and  sentenced, 
and  shall  be  enforced  by  execution  or 
other  process  for  the  use  of  the  state, 
county,   precinct,   district,   town,   city,   or 


SENTENCE  AND  PUNISHMENT. 


761 


school  district  whose  moneys  or  securities 
have  been  so  embezzled,"  is  unconstitu- 
tional in  that  it  violates  section  154  of 
the  constitution  of  North  Dakota,  which 
provides  that  "the  interest  and  income  of 
this  [land  grant]  fund,  together  with  the 
net  proceeds  of  all  fines  for  violation  of 
state  laws,  and  all  other  sums  which  may 
be  added  thereto  by  law,  shall  be  faith- 
fully used  and  applied  each  year  for  the 
benefit  of  the  common  schools  of  the 
state."  State  v.  Bickf  ord  (N.  Dak.)  1916D- 
150. 

6.  Fines — Embezzlement  Statute  —  Fine 
or  Compensation.  That  part  of  section 
9205,  N.  Dak,  Kev.  Codes  1905,  which  pro- 
vides that  in  case  of  conviction  the  de- 
fendant shall,  in  addition  to  serving  a 
term  of  imprisonment,  "pay  a  fine  equal  to 
double  the  amount  of  money  or  other 
property  so  embezzled  as  aforesaid;  which 
fine  shall  operate  as  a  judgment  at  law  on 
all  the  estate  of  the  party  so  convicted 
and  sentenced,  and  shall  be  enforced  by 
execution  or  other  process  for  the  use  of 
the  state,  county,  precinct,  distiict,  town, 
city,  or  school  district  whose  moneys  or 
securities  have  been  so  embezzled,"  im- 
poses a  fine,  and  did  not  merely  include  in 
said  statute  a  provision  for  the  compensa- 
tion of  the  state  or  municipality  injured. 
State  T.  Bickford  (N.  Dak.)  1916D-140. 

7.  Insanity  of  One  Condemned  to  Death. 

Ark.  Acts  1913,  p.  172,  providing  that, 
when  a  judgment  of  death  is  pronounced 
on  any  person,  such  person  shall  be  con- 
veyed to  the  state  penitentiary  and  there 
kept  until  executed,  does  not  by  implica- 
tion repeal  Kirby's  Dig.  §  2454,  author- 
izing the  sheriff  to  hold  an  inquest  into 
the  sanity  of  the  person  sentenced  to  be 
executed.  Ferguson  v.  Martineau  (Ark.) 
1916E'-421.  (Annotated.) 

8.  Penalty  Proportioned  to  Nature  of 
Offense.  There  must  be  a  clear  violation 
of  the  provision  of  the  111.  state's  Bill  of 
Rights,  §  11,  that  ."all  penalties  shall  be 
proportioned  to  the  nature  of  the  offense," 
to  warrant  holding  a  statute  invalid  as 
contravening  it.  People  v.  Elliott  (Til.) 
1918B-391.  (Annotated.) 

9.  The  provision  of  the  111.  state's  Bill 
of  Rights,  §  11,  that  "all  penalties  shall 
be  proportioned  to  the  nature  of  the 
offense" — that  is,  that  the  penalty  pre- 
scribed for  an  offense  shall  be  in  propor- 
tion to  the  nature  of  the  offense — is  di- 
rected to  the  lawmaking  power.  People  v. 
Elliott  (111.)  1918B-391.  (Annotated.) 

2.     CONSECUTIVE  TERMS  OF  IMPRIS- 
ONMENT. 

10.  Form  of  Sentence — Conviction  on 
Several  Counts.  The  correct  method  for 
sentencing  one  on  several  counts  is  not 
for  a  total  time  of  imprisonment  in  gross, 
but  for  a  specified  time  under  each,  the 
time  under  the  second  to  commence  when 


the  first  ends,  and  so  on  to  the  last;  and 
it  is  not  enough  to  state  that  the  sentences 
shall  run  consecutively  or  successively. 
People  V.  Elliott  (Dl.)  1918B-391. 

3.    SUSPENSION  OF  SENTENCE. 

11.  A  federal  district  court  exceeds  its 
power  by  ordering  that  the  execution  of  a 
sentence  to  imprisonment  imposed  by  it 
upon  a  plea  of  guilty  be  suspended  indefi- 
nitely during  good  behavior  upon  consid- 
erations wholly  extraneous  to  the  legality 
of  the  conviction.  Ex  parte  United  States 
(U.  S.)  1917B-355.  (Annotated.) 

12.  Regardless  of  statute,  one  convicted 
and  sentenced  to  execution  will,  where  ho 
becomes  insane  after  trial,  be  granted  a 
stay  of  execution.  Hence  the  chancery 
court  cannot  justify  an  order  enjoining 
execution  on  the  ground  that  the  party 
had  no  remedy  at  law.  Ferguson  v.  Mar- 
tineau (Ark.)  1916E-421.        (Annotated.) 

4.    CRUEL   AND    UNUSUAL   PUNISH- 
MENT. 

13.  The  provision  of  Const.  U.  S.  Amend. 
8,  against  imposition  of  excessive  fines, 
and  infliction  oi  cruel  and  unusual  punish- 
ment, does  not  apply  to  state  legislation, 
but  is  restricted  exclusively  to  the  federal 
government,  its  courts  and  officers.  People 
V.  Elliott  (lil.)   1918B-391.     (Annotated.) 

14.  A  punishment  authorized  by  stat- 
ute is  never  held  cruel  or  unusual  or  not 
proportioned  to  the  nature  of  the  offense 
unless  it  is  a  barbarous  one  unknown  to 
the  law,  or  so  wholly  disproportionate  to 
the  nature  of  the  offense  as  to  shock  the 
moral  sense  of  the  community.  People  v. 
Elliott  (111.)  1918B-391.  (Annotated.) 

15.  Under  Md.  Declaration  of  Rights, 
art.  16,  declaring  that  no  law  to  inflict 
cruel  and  unusual  penalties  shall  be  made, 
and  article  25,  declaring  that  cruel  or  un- 
usual punishments  shall  not  be  inflicted 
by  the  courts  of  law,  a  judgment  and  sen- 

'  tence  of  capital  punishment  for  the  crime 
of  assault  with  intent  to  rape,  imposed 
under  the  discretion  given  the  court  in  re- 
spect to  such  crime  by  Code  Pub.  Gen. 
Laws  1904,  art.  27,  §  17,  is  not  unconstitu- 
tional.    Dutton  V.  State  (Md.)   1916D-89. 

16.  Const.  U.  S.  Amend.  8,  declaring  that 
cruel  and  unusual  punishments  shall  not 
be  inflicted,  is  not  a  restraint  upon  and 
does  not  apply  to  the  legislature  of  a 
state,  but  onlv  to  the  national  legislature. 
Dutton  V.  State  (Md.)  1916C-89. 

17.  Abortion  —  Sentence  not  Excessive. 
Under  N.  Car.  Revisal  1905,  §  3618,  pro- 
viding that  anv  person  who  shall  admin- 
ister or  procure  any  woman  pregnant  or 
quick  with  child  to  take  any  drug  with 
intent  to  destroy  the  child  shall  be  im- 
prisoned not  less  than  one  nor  more  than 
ten  years,  and  fined  at  the  court's  discre- 


13^ 


DIGEST. 

1916C— 1918B. 


tion,  and  section  3619  providing  that  any 
person  who  shall  administer  or  procure 
any  pregnant  woman  to  take  any  drug 
with  intent  to  procure  a  miscarriage,  or 
injure  the  woman,  shall  be  imprisoned  not 
less  than  one  nor  more  than  five  years, 
and  fined  at  the  court's  discretion,  im- 
prisonment for  three  years  and  a  fine  of 
$1,000  for  procuring  a  pregnant  woman  to 
take  a  drug  with  intent  to  procure  a  mis- 
carriage was  not  a  cruel  and  unusual  pun- 
ishment. State  V.  Shaft  (N.  Car.)  1916C- 
627. 

Note. 

What  is  cruel  and  unusual  punishment. 
1918B-39B. 

5.     DISCRETION  OP  COURT. 

18.  That  sentences  are  for  both  fine  and 
imprisonment,  as  authorized  by  statute,  is 
h  matter  in  the  court's  discretion.  Peonle 
▼.'Elliott  (111.)  1918B-391.      (Annotated.) 

19.  Review  of  Sentence.  Sentences  on 
a'  number  of  counts  being  within  the  terms 
of  a  valid  statute;  the  judgment  cannot  be 
reversed  because  the  appellate  court  would 
have  imposed  less  severe  sentences,  and 
considers  them  unnecessarily  severe  for  the 
accomplishment  of  the  purposes  of  the 
statttta.  People  ▼.  Elliott  (III.)  1918B- 
391. 


(• 


.^  ..PLACE  OP  IMPRISONMENT, 


20.  Where  a  statute  is  silent  as  to  the 
place  of  imprisonment,  and  any  doubt 
exists  as  to  whether  it  shall  be  in  the 
penitentiary  or  county  jail,  accused  should 
be  imprisoned  in  the  conntv  jail.  Gherna 
▼.  State  (Ariz.)  1916D-94. 

7.     REMAND  POR  RESENTENCE. 

21.  Error  In  Sentence — Remand  for  Sen- 
tence. There  being  no  error,  except  in  the 
imposition  of  the  sentences,  the  case  will 
be  remanded  for  T)roT)er  sentences.  People 
Y.  Elliott  (HI.)  1918B-391. 

SEPARATE  PEOPERTT. 

Of  wife,  see  Husband  and  Wife,  26-29. 
Of  husband,  right  of  disnosition,  see  Hus- 
band and  Wife,  30-32. 

SEPARATION. 
See  Divorce;  Marrlagei. 

SEPARATION  AGREEMENTS. 

As  defense  for  divorce,  see  Divorce.  28- 
31,  47. 

SERTOTJS  ILLNESS. 
Meaning,  see  Life  Insurance. 


SERVANT. 
Defined,  see  Master  and  Servant,  264. 

SERVICE. 

Notice  of  appeal,  see  Appeal  and  Error, 

43-45. 
Of  notice  of  claim  of  lien,  see  Mechanics' 

Liens,  27. 
Service   of  search  warrant,  see  Searches 

and  Seizures,  1. 

SERVICE  OF  PROCESS. 
See  Process,  3-17. 

SERVICES. 

Actionable  deceit  in  procuring,  see  Fraud, 

8. 
Action   for  by  wife   alone,   see  Husband 

and  Wife,  13. 
Husband's  action  for  services  of  wife,  see 

Husband  and  Wife,  37. 
Of   infant,    enforcement   of   contract,    see 

Infants,  2,  3,  8. 
Action  for  value,  accrual,  see  Limitation 

of  Actions,  22-24. 

SET-OFF  AND  COUNTERCLAIM. 

See  Bankruptcy,  4-8. 

Effect  of  amount  on  jurisdiction,  see 
Appeal  and  Error,  12. 

Of  deposit  against  debt  due  insolvent 
bank,  Banks  and  Banking,  48-53. 

Not  permitted  in  unlawful  detainer,  see 
Forcible  Entry  and  Detainer,  3. 

Tort  in  wrongful  enhancement  as  counter- 
claim in  contract,  see  Monopolies,  23. 

Against  receiver,  see  Receivers,  7,  8,  10. 

1.  Counterclaim  for  Tort  in  Action  for 
Tort.  Under  Wis.  St.  1913,  §  2656,  author- 
izing a  counterclaim  arising  out  of  the 
transaction  set  forth  in  the  complaint,  de- 
fendant, in  an  action  for  slander,  may 
plead  as  a  counterclaim  a  slander  by  plain- 
tiff arising  at  the  same  time  and  place  as 
the  slander  alleged  in  the  complaint,  for 
the  word  "transaction"  includes  the  entire 
word  encounter.  Powell  v.  Powell  (Wis.) 
1917D-113.  (Annotated.) 

2.  Claims  not  Connected  With  Cause  of 
Action.  In  a  suit  for  conversion,  alleged 
counterclaims  based  on  contracts,  not  con- 
nected with  the  transaction  set  forth  in 
the  complaint  and  growing  out  of  the  in- 
dorsement of  promissory  notes  by  the 
bankruot.  to  whose  estate  nlaintiff  had 
succeeded,  do  not  fall  within  the  classes 
enumerated  by  N.  Y.  Code  Civ.  Proc.  §  501, 
defining  counterclaims.  Morris  v.  Wind'* 
sor  Trust  Co.  (N.  Y.)  1916C-972. 

3.  Connection  With  Subject-matter  of 
Action  —  Breach  of  Warranty  Ap'ainst 
Claim  for  Repairs.  Though  plaintiff's  ac- 
tion is  for  repairs  of  an  automobile,  the 


SETTING  ASIDE— SHERIFFS  AND  CONSTABLES. 


753 


answer  alleging  and  the  proof  being  that 
the  repairs  were  made  in  an  attempt  to 
make  good  plaintifTs  warranty  in  the  sale 
of  the  machine  to  defendant,  a  counter- 
claim for  breach  of  the  warranty  is  one 
"connected  with  the  subject  of  the  ac- 
tion," and  so  authorized  by  Wyo.  Comp. 
St.  1910,  §4391.  whether  the  "subject  of 
the  action"  which  within  the  meaning  of 
such  statute,  is  either  the  property  in- 
volved or  a  right  alleged  to  have  been  vio- 
lated, be  regarded  as  the  machine,  or  the 
sale  thereof,  or  the  right  claimed  to  re- 
cover for  the  repairs.  Studebaker  Corpo- 
ration V.  Hanson  (Wyo.)  1917E-557. 

Notes. 

Waiver  of  failure  to  reply  to  counter- 
claim.    1917D-619. 

Amount  in  controversy  for  purpose  of 
appeal  where  defendant  has  filed  coiinter- 
claim.     1917D-99. 

Counterclaim  for  tort  in  action  for  tort. 
1917D-114. 

SETTING  ASIDE. 

Indictment,  see  Indictments  and  Informa- 
tions, 21-24. 

.Judgments,  see  Judgments,  30-42. 

Of  default  judgment,  see  Judgments,  49, 
50. 

SETTLEMENT. 

See  Compromise  and  Settlement. 

SEVERANCH. 

On  proceedings  to  oust  ofBcer,  see  Public 
Officers,  57. 

SEVERANCE  IN  VEKDICT. 
See  Verdicts,  1. 

SHADE  TREES. 

Regulation  of  trimming  on  roads,  see 
Trees  and  Timber,  13-17. 

SHAM  ANSWER. 
Striking  out,  see  Pleading,  31. 

SHARES  OF  STOCK. 

In  joint  stock  company,  see  Joint  Adven- 
tures, 9,  10. 

SHERIFFS  AND  CONSTABLES. 

1.  Eights,    Duties    and   Powers,    753. 

2.  Liability  for  Official  Acts  of  Neglect, 

754. 

3.  Liability  on  Official  Bond,  754. 

4.  Compensation,    754. 

5.  Suspension  and  Removal,  754. 

Duty     to     arrest     without     warrant,     see 

Arrest,  3-5. 
Levy  upon   moneys  in  custodia  legis,  see 

"Garnishment,  3. 
48 


Duty  on  threatened  violation  of  liquor  law, 
see  Intoxicating  Liquors,  88. 

Liability  to  senior  creditor  for  selling  first 
under  junior  execution,  see  Judicial 
Sales,  2. 

Duty  to  hold  inquest  on  sanity  of  capital 
convict,  see  Sentence  and  Punishment, 
7. 

Residence  of  sheriff,  see  Taxation,  195. 

As  public  officer,  see  Taxation,  196. 

1.     RIGHTS,  DUTIES  AND  POWERS. 

1.  Powers  of  Sheriff.  The  office  of 
sheriff  carries  all  the  common-law  powers 
and  duties  except  as  modified  bv  statute. 
State  V.  Reichman  (Tenn.)  1918B-889. 

2.  Duty  to  Prevent  Crime.  Under  Shan- 
non's Tenn.  Code,  §  6889,  a  sheriff  who,  has 
"notice"  of  an  offense  and  does  not  do  his 
duty  to  prevent  it  is  guilty  of  a  misde- 
meanor, and  any  knowledge  from  any 
source  is  notice  within  the  statute.  State 
V.  Reichman  (Tenn.)   1918B-889. 

3.  Since  cities  have  police  officials,  the 
sheriff  may  assume  that  they  will  perform 
their  duties,  but  if  he  has  knowledge  of 
neglect  on  their  part,  or  reason  to  think 
there  is  neglect,  he  must  inform  himself 
and  prevent  and  suppress  offenses  in  cities 
as  well  as  rural  districts.  State  v.  Reich- 
man (Tenn.)  1918B-889. 

'  4.  Duty  to  Enforce  Law — ^Notice  of  Vio- 
lation. When  a  sheriff  learns  that  a  city 
in  his  county  is  collecting  tribute  from 
numerous  liquor  dealers  and  leaving  them 
otherwise  undisturbed,  this  is  notice  to 
him  that  the  law  is  being  violated  and  no 
effort  made  to  enforce  it.  State  v.  Reich- 
man (Tenn.)  1918B'-889. 

5.  Duty  of  Investigation.  While  a  sher- 
iff need  not  make  a  forcible  entrance  into 
a  suspected  residence  or  place  of  business 
to  discover  violations  of  the  liquor  law, 
he  or  his  deputies  should  enter  open 
saloons  and  make  arrests  if  justified  by 
what  they  see  therein.  State  v.  Reichman 
(Tenn.)  1918B-889. 

6.  Notice  of  Violation  of  Law.  The 
duty  of  the  sheriff,  having  notice  of  com- 
mission of  an  offense,  being  to  prevent  or 
suppress  it,  involves  the  duty  to  at  least 
make  some  investigation,  and  it  is  not 
necessary  in  case  of  unlawful  sales  of  in- 
toxicating liquors,  for  the  sheriff  to  actu- 
ally see  sales  before  swearing  out  war- 
rants. State  V.  Reichman  (Tenn.)  1918B- 
889. 

7.  Although  the  sheriff  is  not  bound  to 
maintain  a  detective  force,  and  no  statute 
in  terms  makes  it  his  duty  to  swear  out 
warrants  or  give  information  to  the  grand 
jury,  yet,  being  commanded  to  prevent  and 
suppress  crimes  and  breaches  of  the  peace, 
he  must  use  all  the  means  provided  by  law 
to  accomplish  such  end.  State  v.  Reich- 
man (Tenn.)  1918B-889. 


754 


DIGEST. 

1916Cf— 1918B. 


2.  LIABILITY    FOR    OFFICIAL    ACTS 

OF  NEGLECT. 

8.  A  sheriff,  holding  two  executions 
against  property  and  selling  the  property 
under  the  junior  execution,  is  liable  for 
the  value  of  property  at  the  time  of  the 
sale,  and  not  merely  for  the  difference  be- 
tween the  price  obtained  and  that  which 
could  have  been  obtained  by  a  sale  under 
the  senior  execution.  Continental  Distrib- 
uting Co.  V.  Hays  (Wash.)  1917B-708. 

(Annotated.) 

9.  Under  Rem.  &  Bal.  Wash.  Code,  §  647, 
providing  that  plaintiff  may  have  defend- 
ant's property  attached  as  security  for  the 
satisfaction  of  such  judgment  as  he  may 
recover,  and  section  657  providing  that 
where  there  are  several  attachments 
against  the  same  defendant  they  shall  be 
executed  in  the  order  in  which  they  were 
received  by  the  sheriff,  the  rights  of  the 
first  attaching  creditor  cannot  be  inter- 
fered with  by  a  subsequent  attachment  or 
execution,  and  any  act  of  the  sheriff,  caus- 
ing such  an  interference,  renders  him 
liable  for  the  damages  suffered.  Contin- 
ental Distributing  Co.  v.  Hays  (Wash.) 
1917B-708.  (Annotated.) 

3.  LIABILITY    ON    OFFICIAL    BOND. 

10.  Liability  of  Sureties  on  Bond. 
Where  the  bond  of  a  constable  is  condi- 
tioned upon  his  faithfully  executing  and 
returning  all  process  and  paying  over  ac- 
cording to  law  all  money  that  shall  come 
into  his  hands  by  virtue  of  his  oflSce,  there 
can  be  no  recovery  on  the  bond  where  it 
is  not  alleged  that  any  process  was  di- 
rected or  delivered  to  the  constable,  or 
that  he  had  in  his  possession  any  such  a 
paper,  or  any  money,  either  officially  or 
privately,  or  that  plaintiff  suffered  dam- 
age because  the  constable  failed  to  return 
a  writ,  if  he  had  one,  or  that  she  was  a 
party  to  or  interested  in  any  action  in 
which  the  process  might  have  been  issued. 
Davis  v.  Hall  (Ore.)  1916D-922. 

11.  Assault  by  Constable.  A  complaint 
alleging  that  a  constable,  without  exhibit- 
ing or  serving  any  process,  took  chattels 
from  the  plaintiff,  and,  while  she  was  en- 
deavoring to  protect  her  right  'therein,  as- 
saulted and  maltreated  her,  and  failed  to 
execute  and  return  the  process  to  him  di- 
rected in  the  replevin  of  the  chattels,  does 
not  show  a  liability  of  the  sureties  on  the 
constable's  bond  conditioned  only  that  he 
should  execute  and  return  all  process  and 
pay  over  according  to  law  all  money  com- 
ing into  his  hands  by  virtue  of  his  office. 
Davis  V.  Hall  (Ore.)  1916D-922. 

(Annotated.) 

Note. 

Liability  of  sureties  on  bond  of  sheriff 
as  constable  for  assault  committed  by  offi- 
cer.    1916D-923. 


4.     COMPENSATION. 


12.  Deputy — Right  to  Fees  as  Between 
Deputy  and  Officer.  Construing  section 
3521  of  the  N.  Dak.  Compiled  Laws  of 
1913,  which  provides  that  "In  addition  to 
the  salary  prescribed  in  the  preceding  sec- 
tion the  sheriff  or  his  deputy  or  deputies 
shall  be  allowed  ten  cents  per  mile  for 
each  and  every  mile  actually  and  neces- 
sarily traveled  in  the  performance  of  their 
official  duties,"  it  is  held  that  the  ten  cents 
mileage  belongs  to  the  deputy,  and  not  to 
the  sheriff,  where  the  work  is  done  and  the 
distance  is  actually  and  necessarily  trav- 
eled, not  by  the  sheriff,  but  bv  such  dep- 
uty. Scpfield  V.  Wilcox  (N.  Dak.)  1918A- 
836.  (Annotated.) 

13.  Commission  on  Sale — Purchase  by 
Person  Entitled  to  Proceeds.  Under  Wyo. 
Comp.  St.  1910,  §  1214,  providing  that  the 
sheriff  shall  receive  a  commission  on 
money  collected  on  execution  or  other 
process,  in  view  of  §§  4698,  4700,  4703, 
4705,  4733-4735,  the  sheriff  is  entitled  to 
such  commission  where  at  the  execution 
sale  the  judgment  creditor  purchases  the . 
property  for  less  than  the  judgment  debt, 
although  no  money  actually  changes  hands; 
the  purchase  price  being  merely  credited 
upon  the  judgment  and  execution.  Lyman 
V.  Thorn  (Wyo.)  1918A-368. 

(Annotated.) 

5.     SUSPENSION  AND  REMOVAL. 

14.  A  sheriff  who  has  made  an  honest 
and  reasonably  intelligent  effort  to  do  his 
duty  will  not  be  removed  by  the  courts, 
though  his  efforts  may  not  have  been 
wholly  successful,  his  right  to  continue  in 
office  depending  rather  on  the  good  faith 
of  his  efforts  than  on  the  degree  of  his 
success.  State  v.  Eeichman  (Tenn.)  1918B- 
889.  (Annotated.) 

15.  Failure  to  Enforce  Law.  In  pro- 
ceedings to  remove  a  sheriff  for  failure  to 
enforce  the  liquor  law,  he  is  precluded,  by 
his  admission  that  he  did  nothing  in  a 
city  within  his  county  but  to  serve  process 
where  liquor  was  openly  sold  in  violation 
of  law,  from  asserting  that  no  wilful  neg- 
lect of  his  duty  has  been  shown.  State  v. 
Eeichman  (Tenn.)  1918B-889. 

(Annotated.) 

16.  In  a  proceeding  for  his  removal  the 
evidence  is  held  to  show  that  a  sheriff 
failed  to  perform  his  duties  to  prevent  and 
suppress  breaches  of  the  peace  by  unlaw- 
ful sale  and  threatened  unlawful  sale  of 
intoxicating  liquors.  State  v.  Reiehman 
(Tenn.)    1918B-889.  (Annotated.) 

17.  It  is  no  defense  for  the  sheriff's 
failure  to  nrevent  breaches  of  the  peace 
by  unlawful  sales  of  intoxicating  liquors, 
that  the  state  was  proceeding  against 
offenders  under  the  Tenn.  Nuisance  Act 
(Laws  1913  [2d  Ex.  Sess.]  c.  2),  or  that 


SHERMAN  ACT— SMOKE. 


755 


the  criminal  court  administration  was  lax 
and  nothing  would  have  been  accomplished 
in  case  of  arrest.  State  v.  Reich  man 
(Tenn.)  1918B-889,  (Annotated.) 

SKEBMAN  ACT. 

Combination  of  ocean  carriers,  see  Mon- 
opolies, 17. 

SHIP. 
Meaning,  see  Intoxicating  Liquors,  81. 

SHIPS  AKD  SHIPPING. 

Bestoration  of  illegal  prize,  see  Admiralty, 
2-3. 

Liability  for  injuring  bridge,  see  Bridges, 
1-4. 

Duty  toward  passenger,  see  Carriers  of 
Passengers,  21,  22,  26,  68,  69. 

Ferryboat,  definition,  see  Ferries,  1. 

Loss  of  ship,  what  is,  see  Master  and  Ser- 
vant, 6. 

Payment  of  purchase  price,  see  Payment, 
8-10. 

1.  Damages  for  Collision — Loss  of  Use 
of  Injured  Vessel.  Loss  through  delay 
while  making  repairs  is  an  element  of  the 
damages  recoverable  for  collision,  and 
where  the  injured  vessel  was  under  a  time 
charter  the  rate  of  charter  hire  may  be 
accepted  as  prima  facie  fixing  the  measure 
of  damages.     The  Brand  (Fed.)  1917B-996. 

(Annotated.) 

2.  Collision — Sailing  Vessel  in  Fault — 
Side  Lights  in  Improper  Position.  A 
schooner  is  held  to  have  been  solely  in 
fault  for  a  collision,  with  a  crossing  steam- 
ship at  night  in  Delaware  bay  for  carry- 
ing her  side  lights  in  such  position  that 
the  one  on  the  side  next  the  steamship 
was  obscured  by  the  sails  and  could  not 
be  seen  from  the  steamsnip  until  too  late 
to  avoid  the  collision.  The  Brand  (Fed.) 
1917B-996. 

3.  Damages  Becoverable  for  Collision — 
Death  of  Human  Being.  In  a  proceeding 
on  behalf  of  the  Crown  against  persons 
negligently  causing  the  sinking  of  a  naval 
vessel,  no  recovery  can  be  had  for  the 
value  of  pensions  paid  by  the  Crown  to 
the  dependents  of  sailors  and  officers 
whose  deaths  were  caused  thereby.  Ad- 
miralty Commissioners  v.  S.  S.  Amerika 
(i2ng.)  1917B-877.  (Annotated.) 

4.  Fraud — Concealment — Effect  of  Ex- 
press Warranty.  An  express  warranty  in 
a  bill  of  sale  conveying  a  ship  and  her 
freight  that  the  ship  is  unencumbered 
does  not  defeat  liability  for  an  implied 
misrepresentation  by  concealment  of  the 
fact  that  the  freight  was  encumbered. 
Corry  v.  Sylvia  Y  Cia  (Ala.)  1917E-10o2. 

5.  Implied  Warranty— Effect  of  Express 
Warranty.  A  bill  of  sale  conveying  a 
ship  and  her  freight,  which  expressly  war- 


ranted the  ship  free  from  incumbrance, 
does  not  thereby  exclude  an  implied  war- 
ranty that  the  freight  is  also  unencum- 
bered. Corry  v.  Sylvia  Y  Cia  (Ala.) 
1917E-1052. 

Note. 
Eight  to  recover  damages  for  loss  of  use 
of  vessel  resulting  from  collision  without 
total  loss.     1917B-999. 

SHOWS. 
See  Tbeaters  and  Amusements. 

SICK  PERSON. 

Duty  of  carrier  toward,  see  Carriers  of 
Passengers,  1,  2,  29-31. 

SIDEWALE& 
See  Streets  and  Highways. 

SIGN. 

Meaning,  see  Wills,  8,  9. 

SIGNATUBES. 

See  Names. 

Form  and  construction,  see  Bills  and 
Notes,  8,  30,  75-79. 

Sufficiency  under  statute,  see  Frauds,  Stat- 
ute of,  16,  17. 

Failure  to  sign  judgment,  effect,  see  Judg- 
ments, 3. 

In  notice  of  claim  of  lien,  see  Mechanics' 
Liens,  21. 

In  wills,  see  WiUs,  8-19. 

SIGNBOABD& 
See  Advertising. 

SILENCE. 
Estoppel  by,  see  Estoppel,  7. 

SLANDEB. 
See  Libel  and  Slander. 

SLANDEE  OF  TITLB. 
See  Libel  and  Slander,  168. 

SLANDEBOUS  FEB  SE. 
Words,  see  Libel  and  Slander,  19,  20,  25. 

BLED. 

Not  a  motor  vehicle,  see  Automobiles,  5. 

SLEEPING  CABS. 

See  Eailroads,  16-18. 

SMOKE. 
City   regulation,    see    Municipal   Corpora- 
tions. 


75$ 

SOCIAL  CliUBS. 
See  Societies  and  Clubs. 

SOCIETIES  AND  CLUBS. 

See  Intoxicating  Liquors,  48-50.  73,  78-79. 
Lodge  meetings  in  school,  see  Schools,  12. 
Prohibition  of  secret  societies,  see  Schools, 
44-46. 

1.  Incorporation  —  Powers.  As  used  in 
Mo.  Eev.  St.  1909,  §  3435,  which  authorizes 
the  incorporation  of  benevolent,  religious, 
scientific  and  educational  associations,  and 
provides  that  any  association,  company, or 
organization  which  tends  to  the  public  ad- 
vantage "in  relation  to  any  or  several  of 
the  objects  above  enumerated,  and  what- 
ever is  incident  to  such  objects,"  may 
create  a  body  corporate,  the  words  quoted 
have  no  application  to  an  incorporated 
social  club,  even  though  it  be  incorporated 
under  such  statute.  State  v.  Missouri 
Athletic  Club  (Mo.)  1916D-931. 

2.  Powers — Sale  of  Liquor.  A  social 
club,  incorporated  under  Mo.  Eev.  St. 
1909,  §§  3432-3445,  providing  for  the  for- 
mation of  benevolent,  religious,  scientific, 
educational,  and  miscellaneous  associa- 
tions, has  no  power,  express  or  implied,  to 
sell  intoxicating  liquors  to  its  members. 
State  v.  Missouri  Athletic  Club  (Mo.) 
1916D-931. 

3.  Protection  of  Name.  The  Ga,  Act  of 
1909  (Civ.  Code  1910,  §§  1993,  1994)  for 
the  protection  of  any  benevolent  and  other 
organization  which  is  incorporated,  against 
others  using  or  adopting  its  name,  style, 
or  emblems,  cannot  be  invoked  by  volun- 
tary associations.  Faisan  v.  Adair  (Ga.) 
1918A-243.  (Annotated.) 

4.  Equity  will  enjoin  individuals,  or  a 
corporation,  that  are  using  the  name,  in- 
signia, and  emblems  of  an  existing  benevo- 
lent and  fraternal  association  to  the  injury 
of  the  latter.  The  facts  examined,  and 
held  that  the  court  did  not  abuse  its  dis- 
cretion in  granting  an  interlocutory  in- 
junction. Faisan  v»  Adair  (Ga.)  1918.\- 
243.  (Annotated.) 

Note. 
Right     of     unincorporated     benevolent, 
fraternal  or  social  organization  to  protec- 
tion in  use  of  its  name.     1918A-245. 


DIGEST. 

1916C— 1918B. 


SOLICITATION. 


Bee  Militia. 


SOLDIEBS. 


SOLDIERS  AND  SAILORS. 
See  Army  and  Navy;  Militia;  War. 

SOLDIERS'  HOME. 

See  Pensions.  1,  2. 

Status  oi:  commandant,  see  Public  Ofllcers. 

22. 


Contract  with  solicited  cUent,  see  Attor- 
neys, 22. 

SOLICITORS. 
See  Hawkers  and  Peddlers,  L 

SOLIDIFIED  GLYCERINE. 
See  Explosions  and  Explosives,  1-3. 

SPECIAL  ADMINISTRATOR. 

Revival  of  action  by,  see  Executors  and 
Administrators,  71. 

SPECIAL  APPEARANCE. 

See  Appearances,  2-4,  6. 

SPECIAL  ASSESSMENTS. 
See  Taxation,  116-145. 

SPECIAL  DAMAGE. 

See  Libel  and  Slander,  13-15,  81,  93,  130- 
132. 

SPECIAL  DEPOSIT. 

See  Banks  and  Banking,  38-42. 

SPECIAL  ELECTIONS. 

See  Elections. 

SPECIAL  PROCEEDING. 
Terminates  in  order,  Judgments,  I, 

SPECIAL  VENIRE. 
See  Jury,  15. 

SPECIFIC. 
Meaning,  see  Eminent  DomaiJi,  13. 

SPECIFIC  PERFORMANCE. 

1.  Requisites  of  Enforceable  Contract,  756. 

a.  Mutuality  and  Consent,  756. 

b.  Certainty,  757. 

c.  Fairness,  757. 

2.  Enforceability  of  Particular  Contracts, 

757, 

a.  Contract  to  Make  a  Will,  757. 

b.  Oral  Contract  to  Devise  Land,  757. 

3.  Actions,   757. 

a.  Conditions  Precedent,  757. 

b.  Pleading,   757. 

c.  Evidence,   757. 

d.  Damages,  757. 
Answer,  see  Pleading,  17. 

1.     REQUISITES     OF     ENFORCEABLE 
CONTRACT. 

a.     Mutuality  and  Consent. 

1.  Contract  Lacking  Mutuality.     Whera 
there  is  no  such  mutuality  in  the  contract 


SPECIFIC  PERFORMANCE. 


767. 


to  convey  as  entitles  thje  vendor  bank  to 
compel  the  cross-complainant  as  purchaser 
to  pay  the  purchase  price  of  the  land,  the 
alleged  contract  cannot  be  specifically  en- 
forced against  the  bank.  Brown  v.  Farm- 
ers', etc.  National  Bank  (Ore.)  1917B- 
1041. 

b.  Certainty. 

2.  A  contract  that  an  existing  will  shall 
remain,  which  refers  to  the  property  as 
having  been  purchased  by  the  testatrix, 
and  which  describes  that  will  as  now  made 
and  in  the  possession  of  a  person  named, 
is  sufficiently  definite  to  justify  specific 
performance,  where  the  bill  therefor  dis- 
closes as  an  exhibit  a  copy  of  will  left  in 
the  custody  of  the  person  named.  White 
"V.  Winchester  (Md.)  1916D-1156. 

c.  Fairness, 

3.  Where  children  surrendered  their  in- 
terests in  favor  of  their  m.other  in  con- 
sideration of  her  permitting  a  will  devi- 
sing property  to  them  to  remain,  the 
agreement  was  supported  by  a  sufficient 
consideration  to  justify  specific  perform- 
ance. White  v.  Winchester  (Md.)  1916D- 
1156. 

2.      ENFORCEABILITY      OF      PAETIC- 
ULiAE  CONTRACTS. 

a.     Contract  to  Make  a  Will. 

4.  A  contract  by  one  party  thereto  to 
execute  a  will  in  favor  of  the  other  party 
thereto  is  not  a  testamentary  disposition 
of  the  property,  and,  if  founded  on  a  good 
and  valuable  consideration,  will  be  en- 
forced. White  V.  Winchester  (Md.)  1916D- 
1156. 

5.  Contract  to  Devise.  A  contract  to 
devise  real  estate  may  be  enforced  by  spe- 
cific performance.  White  v.  Winchester 
(ivld.)  1916D-1156. 

b.    Oral  Contract  to  Devise  Land. 

6.  Validity  of  Oral  Contract  to  Devise. 

An  oral  contract  to  devise  lands  falls 
within  the  operation  of  the  statute  of 
frauds;  but  where  the  party  in  whose 
favor  the  will  is  to  be  made  has  per- 
formed his  part  of  the  contract,  and  the 
other  party  dies  leaving  a  will  in  which  no 
devise  is  made  pursuant  to  the  oral  con- 
tract, the  disappointed  party  may  apply  to 
a  court  of  equity  for  specific  performance 
of  the  contract,  if  it  is  one  of  such  a  na- 
ture that  a  court  of  equity  would  require 
specific  performance,  tiordon  v.  Spellman 
(Ua.)  1918A-832. 

3.     ACTIONS. 
a.     Conditions  Precedent. 

7.  As  Requisite  to  Specific  Performance 
— ^Waiver.     Where,  in  a  suit  for  specific 


performance  of  an  option  to  purchase  cer- 
tain land  under  a  will,  the  petition  alleged 
tnat  T)laintifie  had. notified  defendants  of 
his  election  to  accept  the  option,  and 
offered  to  pay  the  money  required,  but  de- 
fendants refused  to  accept  the  same  or  to 
convey  the  land  to  plaintiff,  and  defend-, 
ants'  answer  constituted  a  repudiation  of 
plaintiff's  interpretation  of  the  will  deny- 
ing his  right  to  purchase,  and  at  the  trial , 
plaintiff  paid  the  amount  required  into 
court,  a  tender  before  suit  brought  is' 
■waived.    Tevis  v.  Tevis  (Mo.)  1917A-865. 

b.     Pleading. 

8.  Fraud  as  Defense — ^Facts  Insufftdent. 

In  a  suit  for  the  specific  performance  of  a 
contract  for  the  sale  or  exchange  of  lands, 
the  answer  attempting  to  set  up  plaintiff's 
fraudulent  representations  as  to  irrigation 
and  water  rights,  admitting  that  the  spe- 
cific water  rights  tendered  by  plaintiff 
were  exactly  those  claimed  in  the  contract, 
without  alleging  that  the  plaintiff  was  not( 
then  the  owner  of  them,  with  full  power 
to  convey  title  thereto,  and  that  plaintiff, 
when  charged  with  such  misrepresentation, 
agreed  that  if  defendant  would  transfer 
the  property  mentioned  in  the  contract 
plaintiff  would  furnish  additional  security, 
and  that  the  parties  undertook  to  make  a 
new  agreement,  not  contemplating  any 
change  as  to  the  water  rights,  does  not 
state  facts  sufficient  to  constitute  a  de- 
fense. Drennen  v.  Williams  (Colo.)  1197A- 
664. 

■  c.    Evidence. 

9.  Contract  to  Devise  —  Quantum  of 
Proof.  To  enforce  a  contract  whereby  a 
person  contracts  to  dispose  of  real  estate 
by  will,  the  same  principle  is  applied  and 
the  same  proof  is  necessary  as  when  he 
contracts  to  convey  title  by  deed.  Brown 
v.  Golightly  (S.  Car.)  1918A-1185. 

(Annotated.)  , 

d.     Damages. 

10.  Eight  of  Action  for  Damages.    If 

on  the  trial  of  an  action  against  a  devisee 
for  the  specific  performance  of  the  plain- 
tiff's contract  with  the  testator  of  the 
devisee,  with  reference  to  the  land  de- 
vised, it  should  be  developed  that,  with- 
out fault  of  the  plaintiff,  but  on  account 
of  the  defendant  himself,  a  specific  per- 
formance of  the  coDtract  is  impossible, 
damages  may  be  awarded  for  a  breach  of 
the  contract.  Gordon  v.  Spellman  (Ga.) 
1918A-852. 

11.  Belief  Granted — Personal  Liability. 
In  an  action  for  specific  performance  of  a 
contract  to  convey  lands,  or  in  the  alter- 
native for  damages,  defendant,  who  when 
he  contracted  was  not  the  owner  of  all  the 
lands  and  personal  property  he  agreed  to 
convey,  and  was  without  power  to  make 
such   conveyance,  is  personally  liable   on 


758 


DIGEST. 

1916C— 1918B. 


the  contract,  and,  on  breach  thereof,  liable 
for  the  resulting  damagjes,  Drennen  r. 
WilliamB  (Colo.)  1917A^664. 


SPEED. 
Opinion  evidence,  see  Automobiles,  42,  43. 

SPENDTHEIFT  TRUST. 

See  Creditors'  Bills,  7. 

See  Trusts  and  Trustees,  6-12. 

SPLITTING  CAUSES  OF  ACTION. 
See  Libel  and  Slander,  97. 

SPOLIATION. 
See  Alteration  of  Instruments,  L 

SPONGE. 

Left  in  wound,  see  Physicians  and  Sur- 
geons, 37,  38. 

SPEINO  GUN. 

Liability  of  landowner  for  manslaughter, 
see  >Veapons,  1. 


opinion  and  any  former  ruling  in  the  case, 
to  be  governed  by  its  later  opinion,  it  is 
the  duty  of  the  court,  where  its  former 
ruling  that  petitioner  had  a  right  to  con- 
demn the  property  desired  is  attacked  on 
appeal,  after  the  award  of  damages,  to  re- 
consider the  former  opinion,  and,  if  con- 
vinced that  it  is  erroneous,  to  disregard 
and  overrule  it.  Louisville,  etc.  R.  Co.  r. 
Western  Union  Tel.  Co.  (Ala.)  1917B-696. 

2.  Under  Mass.  Const.  1890,  §  144,  vest- 
ing the  judicial  power  of  the  state  in  the 
supreme  court  and  such  other  courts  as 
ere  provided  for  in  the  constitution,  and 
section  146,  providing  that  the  supreme 
court  shall  have  such  jurisdiction  as  prop- 
erly belongs  to  a  court  of  appeals,  there 
is  no  constitutional  restriction  on  the 
power  of  the  supreme  court  to  overrule  or 
change  decisions  which  in  its  opinion  are 
erroneous  or  wrongful.  Brewer  v.  Brown- 
ing (Mass.)  1918B-1013. 

2.     APPLICATION  OP  DOCTRINE. 

a.     In  General. 

S.  Previous  Decision  Adhered  to.  This 
court  declines  to  review  and  overrule  the 
decision  in  McWhorter  v.  Ford,  142  Ga. 
554  (83  S.  E.  134).  Sutton  v.  Ford  (Ga.) 
1918A-106. 


SPUB  TBACE. 

Negligence  in  maintaining,  see  Bailroads, 

56. 

STALE  CLAIMS. 
See  Laches. 

STANDARD  POLICT  LAW. 
See  Accident  Insurance,  9. 

STANDING  BY  DEMUBRES. 

See  Pleading,  61,  62. 

STARE  DECISI& 

1.  Power  to  Overrule  Decisions. 

2.  Application  of  Doctrine. 

a.  In  ueneral. 

b.  Decisions   Construing   Constitution 

or  Statute. 

e.  Decision  Establishing  Rule  .of  Evi- 

dence. 
d.  Erroneous  Decisions. 
€.  Novel  Element  Involved- 

f.  Obiter  Dicta  as  Precedents. 

g.  Advisory  Opinions. 

Decisions  as  precedents,  see  Courts,  22-36. 

1.    POWER  TO  OVERRULE  DECISIONS. 

1.  Right  to  Overrule  Previous  Decision. 
Under  Ala.  Code  1907,  §  5965,  requiring 
the  supreme  court,  in  deciding  a  case  when 
there   is   a   conflict   between   its   existing 


b.  Decisions   Construing   Constitution   or 

Statute.  ' 

4.  Single  Previous  Decision.  As  a  gen- 
eral rule,  a  constitutional  question  once 
decided  is  no  longer  open,  though,  where 
the  opinion  is  radically  wrong,  the  court 
on  a  new  appeal  in  the  same  case,  or  in 
another  case,  will  correct  the  error,  unless 
prevented  by  the  rule  of  stare  decisis. 
Greene  County  v.  Lydy  (Mo.)  1917C-274. 

5.  Decision  on  Constitutional  Question. 
It  is  the  court's  duty  to  adhere  to  a  ruling 
in  a  former  case  on  a  constitutional  ques- 
tion, especially  where  the  constitution  was 
therein  liberally  construed,  since  an  inter- 
pretation once  put  upon  a  constitution 
should  be  thereafter  adhered  to,  unless 
manifestly  wrong  and  mischievous  in 
effect,  and  constitutions  should  receive  a 
liberal  interpretation.  State  v.  Brantley 
(Miss.)  1917E-723. 

6.  Construction  of  Statute,  The  con- 
struction placed  on  a  statute  by  the  high- 
est court  of  the  state  becomes  a  part  of 
the  original  text  only  when  it  will  not 
affect  contract  or  property  rights.  State 
V.  Missouri  Athletic  Club  (Mo.)  1916D- 
931. 

c.  Decision    Establishing    Rule    of    Evi- 

dence. 

7.  The  doctrine  of  stare  decisis  cannot 
apply  to  a  mere  rule  of  evidence  in  which 
no  one  has  a  vested  right.  Williams  v. 
Kidd  (Cal.)  1916E-703. 


STATE  BOARD  OF  HEALTH— STATES. 


769 


d.     Erroneous  Decisions. 

8.  Propriety  of  Overruling  Prerious  De- 
cision. The  supreme  court  will  overrule 
decided  cases  which  operate  to  effect  injus- 
tice or  lead  to  wrong  results,  though  de- 
cided by  the  great  judges  of  the  past. 
Brewer  v.  Browning  (Mass.)  1918B-1013. 

e.    Novel   Element  Involved. 

9.  Scope  of  Ruling.  As  an  appellate 
court  does  not  look  for  objections,  a  ruling 
that  an  instruction  was  not  subject  to  a 
particular  objection  is  not  an  approval  of 
the  instruction  which  will  prevent  consid- 
eration of  a  different  objection  in  a  future 
case.  Lichtenstein  v.  I>.  Fish  Furniture 
Co.  (111.)  1918A-I087. 

f.     Obiter  Dicta  as  Precedents. 

10.  Limitations  of  Doctrine — Dicta.  The 
rule  of  stare  decisis,  whereby  uniformity, 
certainty,  and  stability  in  the  law  is  ob- 
tained by  the  following  of  earlier  pre- 
cedents, contemplates  only  such  points  as 
are  actually  involved  and  determined  in 
a  case  and  mere  obiter  dicta  or  points  not 
necessary  to  the  decision  need  not  be  fol- 
lowed; general  observations  being  con- 
strued with  reference  to  the  particular 
facts.  Moose  v.  Board  of  Commissioners 
(N.  Car.)  1917E-1183. 

g.     Advisory  Opinions. 

11.  Advisory  Opinion  of  Judges.  The 
opinion  of  the  justices  that  a  proposed 
act  would  be  constitutional,  if  enacted,  is 
advisory  only  and  not  binding  as  an 
authority.  Woods  v.  Woburn  (Mass.) 
1917A-492.  (Annotated.) 

STATE  BOABD  OP  HEALTH. 

See  Health. 

STATE  BOND  FUND. 
See  Public  Officers,  67-74. 

STATE  MILITIA. 
See  MUitla. 

STATE  OPFIOEES. 
See  Public  Oflcers,  1. 

STATES. 

1.  Jurisdiction  and  Powers,  759. 

2.  Boundaries,  759. 

3.  Fiscal  Management,  759. 

a.  Appropriations,  759. 

b.  Restraining   Expenditure    of   State 

Funds,  760. 

4.  Liability  for  Torts  of  Officers,  760. 

5.  Actions  Against  State,  760. 

6.  Actions  on  Relation,  760. 

7.  Relation  of  States  Inter  Se,  760. 


Protection  of  wild  animals,  see  Animals. 
14,  16. 

Liability  of  state  for  damage  by  wild  ani- 
mals, see  Animals,  18. 

Control  of  banks,  see  Banks  and  Bankinif. 
4-10.  ^^ 

Respective  powers  of  state  and  U.  S.,  see 
Constitutional  Law,  5. 

FifEh  amendment  no  limitation  on  state 
power,  see  Constitational  Law,  59. 

Jurisdiction  of  state  courts,  see  Courts. 
12-18. 

Power  to  regulate  liquor  traffic,  see  Intox- 
icating Liquors,  1-8. 

Admission  of  Iowa  to  Union,  see  Jury,  3,  4. 

Election  between  federal  and  state  law 
under  Employers'  Liability  Act,  see 
Master  and  Servant,  76-80. 

Control  of  municipalities,  see  Municipal 
Corporations,  18-20. 

Control  of  highways,  see  Streets  and  High- 
ways, 2. 

Effect  of  statutes  enacted  prior  to  admis- 
sion to  Union,  see  Territories,  1. 

1.     JURISDICTION  AND  POWERS. 

1.  Legislative  Power  Over  Real  Prop- 
erty Titles.  The  conditions  of  ownership 
of  real  estate  whether  the  owner  is  a  tit- 
izen  or  alien,  resident  or  nonresident,  are 
subject  to  the  laws  of  the  state  where 
situated.  Cona  v.  Henry  Hudson  Co.  (N. 
J.)  1916E-999. 

2.  'Governmental     Independence.      The 

several  states  possess  the  authority  of  in- 
dependent states,  except  as  limited  by  the 
federal  constitution.  Flexner  v.  Larson 
(111.)    1916D-810. 

2.    BOUNDARIES. 

3.  River  as  Boundary.  By  Act  Cong- 
April  18,  1818,  c.  67,  3  Stat.  428,  making 
the  Wabash  river  part  of  the  boundary 
line  between  the  states  of  Indiana  and 
Illinois,  the  middle  of  the  current  becomes 
the  boundary  line,  and  the  condemnation 
of  a  right  of  way  for  a  telegraph  company 
to  the  boundary  line  is  subject  to  the 
control  of  the  United  States  over  the  Wa- 
bash river.  Western  Union  Tel.  Co.  v. 
Louisville,  etc.  R.  Co.  (111.)  1917B-670. 

4.  The  phrases  "middle  of  the  river"  and 
"middle  of  the  main  channel"  are  equiva- 
lent expressions,  and  both  mean  the  main 
line  of  the  channel  or  the  middle  thread 
of  the  current.  Western  Union  Tel.  Co.  v. 
LouisvUle,  etc.  R.  Co.  (111.)  1917B-670. 

3.     FISCAL   MANAGEMENT. 
a.     Appropriations. 

5.  Fiscal  Affairs — Validity  of  Continu- 
ing Appropriation.  Ark.  Laws  1911,  p. 
299,  by  which  the  legislature  made  appro- 
priations for  school  purposes,  is  valid  as 
a  continuing  appropriation,  where  the  ap- 
propriations were  for  authorized  objects; 
the  provision  requiring  biennial  appropria- 


760 


DIGEST. 

1916C— 1918B. 


tions  not  applying,     Dickinson  ▼.  Edmond- 
son   (Ark.)    1917C-913. 

6.  Exceeding  Current  Sevenne — Validity 
of  Contract.  111.  Const,  art.  4,  §  18,  pro- 
hibits appropriations  in  excess  of  the  rev- 
epue  authorized  by  law  to  be  raised  in  the 
period  for  which  appropriations  are  made, 
but  provides  that  in  case  of  failure  of 
revenue  the  general  assembly  may  borrow 
moneys  to  be  applied  to  the  purpose  for 
which  they  were  obtained,  or  to  pay  the 
debt  80  created,  and  to  no  other  purpose. 
Section  19  prohibits  the  general  assembly 
from  authorizing  the  payment  of  any  claim 
or  part  created  against  the  state  under  any 
contract  made  without  express  authority 
of  law,  with  the  exception  that  it  may 
make  appropriations  for  expenditures  in- 
curred in  repelling  invasion  or  suppressing 
insurrection.  111.  Cr.  Code  (Kurd's  Eev. 
St.  1915-16,  c.  38)  §  208,  provides  that 
making  a  contract  in  excess  of  the  amount 
of  an  appropriation  subjects  the  public 
officer  to  a  fine  and  removal  from  his  office, 
trust,  or  employment.  It  is  held  that 
every  claim  or  contract  created  or  made 
by  an  officer  of  the  state  is  utterly  void 
if  not  within  the  amount  of  appropriations 
already  made,  unless  there  is  express  au- 
thority of  law  for  the  creation  of  the  debt 
or  claim  or  the  making  of  the  contract, 
that  authority  being  "express"  which  con- 
fers power  to  do  a  particular  identical 
thing  set  forth  and  declared  exattly, 
plainly,  and  directly  with  well-defined  lim- 
its, an  authority  given  in  direct  terms, 
definitely  and  explicitly,  and  not  left  to 
inference"  or  implication,  as  distinguished 
from  authority  which  is  general,  implied, 
or  not  directly  stated  or  given.  Fergus  v. 
Brady  (111.)  1918B-220. 

b.     Bestraining     Expenditure     of     State 
Funds. 

7.  Taxpayer's  Action  —  Bestraining  Un- 
authorized Payments,  A  taxpayer  has  the 
right  to  maintain  a  suit  to  restrain  the 
state  auditor  of  public  accounts  and  the 
state  treasurer  from  paying  out  sums 
illegally  appropriated  by  the  general  as- 
sembly, in  violation  of  111.  Const,  art.  4, 
§§  18,  19,  in  excess  of  revenue.  Fergus 
V,  Brady  (111.)  1918B-220. 


5.     ACTIONS  AGAINST  STATE, 

9.  Liability  to  Suit.  A  suit  by  an  alien 
to  restrain  the  attorney  general  and 
county  attorney  from  enforcing  to  his  in- 
jury the  Arizona  anti-alien  laoor  law  of 
December  14,  1914,  which  he  asserts  is 
repugnant  to  the  federal  constitution,  can- 
not be  regarded  as  a  suit  against  the  state. 
Truax  r.  Eaich  (U.  S.)  1917B-283, 

10.  A  sovereignty  can  be  impleaded  in 
its  own  courts  only  in  the  manner,  to  the 
extent,  and  for  the  causes  expressed  in  the 
statute  granting  consent  thereto.  Bur- 
roughs V.  Commonwealth  (Mass.)  1917A- 
38. 

6.     ACTIONS  ON  RELATION. 

11.  State  as  Party.  In  an  original  pro- 
ceeding in  the  supreme  court,  the  state  is 
the  actual  plaintiff,  and  the  relator,  a  mere 
incident.  State  v.  Taylor  (N.  Dak.) 
1918A-583. 


7.  RELATION  OF  STATES  INTER  SB. 

12.  Belation  to  Each  Other.  The  sev- 
eral states  of  the  Union  are  foreign  to  each 
other,  except  so  far  as  the  United  States 
is  the  paramount  government  as  to  each, 
binding  them  to  recognize  the  fraternity 
among  their  sovereignties  established  by 
the  constitution  of  the  United  States.  Bel- 
lows Falls  Power  Co.  v.  Commonwealth 
(Mass.)  1916C-834. 


STATE'S  ATTORNEY. 
See  Prosecuting  Attorneys. 

STATIONARY  ENGINE, 

Duty  to  guard  against  fire,  see  Negligence, 
33. 


STATIONS. 


See  Depots. 


STATUTE  OF  FRAUDS. 
See  Frauds,  Statute  of. 

STATUTE  OF  LIMITATIONS. 


LIABILITY       FOR 
OFFICERS. 


TORTS       OF      See  Limitation  of  Actions. 


8.  Liability  for  Tort  of  Officer.  Mass. 
Rev.  Laws,  c,  201,  permitting  enforcement 
in  the  courts  of  claims  against  the  com- 
monwealth, cannot  be  stretched  to  include 
damages  for  an  ordinary  tort  committed 
by  an  officer  or  employee  of  the  common- 
wealth, in  the  performance  of  duties  pre- 
scribed hv  law.  Burroughs  v.  Common- 
wealth (Mass.)   1917A-38. 


STATUTE  OF  NONCLAIM. 

Mortgage   claim   presented   after  bar,  see 
Esecutors  and  Administrators,  24. 


STATUTE  OF  USES. 

See  Charities. 

Merger  of  estates  under,  see  Estates,  6. 


STATUTES. 


761 


STATUTES, 

1.  Constitutional  Eequirements  as  to  Title 

and  Subject,  762. 

a.  In  General,  762. 

b.  Statutes  Relating  to  Particular  Sub- 

jects, 762. 

2.  Eequisites  of  Statutes,  763. 

3.  Mandatory     and    Permissive    Statutes, 

763. 

4.  Enactment,  763. 

a.  Enacting  Clause,  763. 

b.  Eeading  or  Printing  of  Bill,  763. 

c.  Action  by  Governor,  763. 

d.  Legislative  Journals,  763. 

e.  Enactment  Over  Veto,  764. 

5.  Effect  of  Partial  luvalidity,  764. 

6.  Construction,  765. 

a.  General  Rules,  765; 

b.  Giving  Effect  to  Legislative  Intent 

Generally,  766. 

c.  Construction  as  a  Whole,  766. 

d.  Liberal  Construction,  766. 

e.  Unambiguous  Statutes,  766. 

f.  Words      Construed     According     to 

Their  Natural  and  Obvious  Mean- 
ing, 766. 

g.  Words  Given  Their  Ordinary  Mean- 

ing, 766. 

h.  Statutory  Definitions  Adopted,  766. 

i.  Restriction  of  General  Words,  767. 

j.  Interpretation  of  Particular  Words 
and  Phrases,  767. 

k.  Conflicting  Words,  767. 

1.  Construction  in    Favor  of  Validity, 
767. 

m.  Inconvenience    from    Enforcement, 
767. 

n.  Construction      Rendering      Statute 
Absurd,  767. 

o.  Retrospective  or  Prospective  Mean- 
ing, 767. 

p.  Presumption  of  Legislative  Knowl- 
edge, 767. 

q.  Ejusdem  Generis,  767. 

r.  Effect  of  Pre-existing  Laws,  767. 

8.  Codification,   768. 

t.  General  and  Special  Statutes,  768'. 

XL.  Statutes  in  Pari  Materia,  768'. 

v.  Remedial    Statute,    768. 

w.  Penal  Statute,  768. 

X.  Statutes    Adopted    from    Another 
.    State,  768. 

y.  Time  of  Taking  Effect,  769. 

z.  Disregarding  Clerical  Error,  769. 
aa.  Effect  of  Re-enactment,  769. 
bb.  Avoidance  of  Inutility,  769. 

cc.  Presumption    Against    Innovation, 

769. 
dd.  Effect  of  Judicial  Decision,  769. 
ee.  Reading  Matter  into  Statute,  769. 
ff.  Effect  of  Unrelated  Statutes,  769. 
gg.  Particular    Aids    to    Construction, 
769. 

7.  Amendment  or  Repeal,  770. 

a.  In   General,   770. 

b.  Repeal  by  Implication,  770. 

c.  Repeal  of  Repealing  Statute,  Effect, 

771. 


d.  Effect  of  Invalidity  of  Amendment, 

771. 

e.  Effect  on  Pending  Action,  771. 

See  Licenses,  38;  Treea  and  Timber,  6-12» 

Regulation  of  accident  policies,  see  Acci- 
dent Insurance,  9. 

Selective  draft  act,  gee  Army  and  Navy, 
1-9. 

Act  against  assignment  of  claim  to  non- 
resident, see  Assignments,  4. 

Bankruptcy  Act,  see  Bankruptcy. 

Negotiable  Instruments  Act,  see  Bills  and 
Notes,  1-7. 

Eegulations  of  passenger  carriers,  see 
Carriers  of  Passengers,  4-7. 

Stay  of  operation  of  criminal  statute,  see 
Criminal  Law,  1,  2. 

Power  of  court  to  nullify  statute,  see 
Equity,  5. 

As  evidence,  see  Evidence,  96. 

Judicial  notice  of  statutes,  see  Evidence,  6. 

Homestead  Act,  retroactive  effect,  see 
Homestead,  2. 

Statute  nullifying  marriage  not  retroactive 
as  to  crime,  see  Incest,  2. 

Statutes  regulating  insurance,  see  Insur- 
ance, 8. 

Amendment  retroactive,  validity,  see  Limi- 
tation of  Actions,  2-4. 

Scope  of  lis  pendens  statute,  see  Lis  Pen- 
dens, 1. 

Statutory  duties  of  master,  see  Master  and 
Servant,  24. 

Statutes  repealed  by  E'mployers'  Liability 
Act,  see  Master  and  Servant,  42. 

Title  of  Workmen's  Compensation  Act, 
see  Master  and  Servant,  110,  115. 

Construction  of  Workmen's  Compensation 
Acts,  see  Master  and  Servant,  168-178. 

Doctrine  of  ejusdem  generis  applied  to 
"anything,"  see  Monopolies,  11. 

Title  of  Commission  Government  Act,  see 
Municipal  Corporations,  13. 

Ordinances,  see  Municipal  Corporations, 
48-108. 

Defining  nuisance,  see  Nuisances,  2. 

Validity  of  laws  regulating  medical  prac- 
tice, see  Physicians  and  Surgeons,  2. 

Construction  of  poor  laws,  see  Poor  and 
Poor  Laws,  2. 

Construction  of  postal  laws,  see  Postofflce, 
11,  12. 

Construction  of  process  statute,  see  Pro- 
cess, 10. 

See  Prostitution,  4,  14,  15. 

Anti-nepotism  Law,  see  Public  Officers, 
11-22. 

Fixing  salary  of  teachers,  see  Schools,  31. 

Strict  construction  of  search  law,  see 
Searches  and  Seizures,  4. 

Construction,  see  Stare  Decisis,  8. 

Construction  of  taxation  laws,  see  Taxa- 
tion, 35-39,  70-85. 

Construction  of  exemption  statutes,  see 
Taxation,  70-85. 

Effect  of  statutes  passed  prior  to  state- 
hood, see  Territories,  1. 

Publication  in  gorman  paper  insufficient, 
see  Trees  and  Timber,  2. 


762 


DIGEST. 


1916C- 
Bight    to    devise    purely   statutory,   see 
Wills,  3. 

L  CONSTITU'riONAL  REQUIRE- 
MENTS AS  TO  TITLE  AND  SUB- 
JECT. 

(a)     In  General. 

1.  To  escape  violating  HI.  Const,  art.  4, 
6  13,  providing  that  no  act  shall  embrace 
more  than  one  subject,  expressed  in  the 
title,  the  title  need  not  minutely  and  ex- 
actly express  every  related  matter  in- 
cluded in  the  act;  it  being  enough  if  all 
the  provisions  are  related  to  the  subject 
indicated,  are  part  of  it,  or  incident  to  it, 
and  reasonably  connected  with  and  auxil- 
iary to  the  object  or  purpose  of  the  act 
as  expressed  in  the  title.  Perkins  v. 
Board  of  County  Commissioners  (111.) 
1917A-27. 

2.  Under  111.  Const,  art.  4,  §  13,  provid- 
ing that,  if  any  subject  shall  be  embraced 
in  an  act  unexpressed  in  the  title,  such  act 
shall  be  void  only  as  to  so  much  as  shall 
not  be  so  expressed,  the  fact  that  a  statute 
contains  a  provision  unexpressed  in  the 
title  does  not  render  the  whole  act  void. 
Perkins  v.  Board  of  County  Commissioners 
(111.)    1917A-27. 

3.  Title  Held  SufBcient.  The  title  of  the 
act  is  sufficient.  State  v.  Missouri  Pacific 
B.  Co.  (Kan.)  1917A-612. 

4.  Effect  of  Suljsequent  Codification. 
Where  a  section  of  a  legislative  act  has 
been  incorporated  in  the  Idaho  Revised 
Codes  and  adopted  as  a  part  of  the  com- 
plete statutes  of  the  state,  the  court  will 
not  inquire  into  or  consider  the  sufficiency 
of  the  original  title  of  the  act  in  which 
such  section  was  originally  adopted  by 
the  legislature.  In  such  case,  it  is  too 
late  to  raise  the  sufficiency  of  the  title  to 
the  original  act,  which  was  adopted  prior 
to  the  date  of  its  incorporation  and  adop- 
tion in  the  Revised  Codes  of  the  state. 
Anderson  v.  Great  Northern  R.  Co.  (Idaho) 
1916C-191. 

5.  Relation  of    Provisions    to    Sul)ject. 

Notwithstanding  Nev.  Const,  art.  4,  §  17, 
providing  that  each  law  shall  embrace  but 
one  subject  and  matters  properly  con- 
nected therewith,  a  statute  may  contain 
several  provisions,  provided  they  relate  to 
the  subject  expressed  in  the  title,  or  are 
properly  connected  therewith.  Worthing- 
ton  V.  District  Court  (Nev.)  1916E-1097. 

6.  Sufficiency  of  Title.  The  sufficiency 
of  the  title  of  a  statute  is  a  legislative 
and  not  a  judicial  question.  Board  of 
Trustees  v.  Waugh  (Miss.)  I916E-522. 

7.  Embracing  More  Than  One  Subject. 
Article  31  of  the  La.  constitution  does  not 
prohibit  the  embracing  in  a  statute  of  the 
means  provided  for  the  accomplishment  of 
its  object;  nor  does  the  fact  that  such  pro- 
vision is  made  render  the  statute  obnox- 


-1918B. 

ious  to  the  objection  that  it  embraces  more 
than  one  object.  Louisiana  State  Board 
V.  Tanzmann  (La.)  1917E-217. 

b.    Statutes   Relating   to  Particular  Sub- 
jects. 

8.  Liquor  Law.  The  Hazel  Law  (27  Del. 
Laws,  c.  139),  entitled  "An  act  regulating 
the  shipment  or  carrying  of  spirituous, 
vinous,  or  malt  liquor  into  local  option 
territory  or  the  delivery  of  same  in  such 
territory,"  by  section  1  prohibits  common 
carriers  from  accepting  such  liquor  for 
shipment  into  local  option  territory,  by 
section  2  prohibits  any  person  engaged  in 
the  manufacture  or  sale  of  such  liquor 
from  delivering  it  in  local  option  terri- 
tory, by  section  5  excepts  shipments  to 
physicians  and  druggists  in  limited  quan- 
tities, and  by  section  6  prohibits  any  per- 
son from  bringing  from  any  point  within 
the  state  into  local  option  territory  more 
than  one  gallon  of  whiskey  in  24  hours. 
Held  that,  while  sections  1  and  2,  stand- 
ing alone,  established  prohibition,  and  not 
a  regulation,  yet  the  act,  construed  as  a 
whole,  was  a  regulation  of  shipments,  and 
the  subject  of  the  act  was  properly  ex- 
pressed in  its  title,  as  required  by  Const. 
Del.  art.  2,  §  16.  Van  Winkle  v.  State 
(Del.)   1916D-104. 

9.  Divorce.  The  title  of  an  act  entitled 
"An  act  relating  to  marriage  and  divorce" 
ia  sufficient,  within  Nev.  Const,  art.  4,  §  17, 
providing  that  each  law  shall  embrace  but 
one  subject  and  matters  properly  con- 
nected therewith,  to  justify  provisions  in 
the  body  of  the  act  prescribing  the  length 
of  residence  required  before  parties  may 
apply  for  a  divorce.  Worthington  v.  Dis- 
trict Court  (Nev.)   1916E-1097. 

10.  Public  Utilities  Act.  Public  Utilities 
Act,  §  81,  providing  for  the  repeal  of  the 
"act  establishing  a  board  of  railroad  and 
warehouse  commissioners,"  together  with 
acts  declaring  express  companies  to  be 
comni,on  carriers,  subject  to  the  jurisdic- 
tion of  the  railroad  and  warehouse  com- 
mission, is  not  in  violation  of  Const,  art.  4, 
§  13,  declaring  that  no  law  shall  be  re- 
vived or  amended  by  reference  to  its  title 
only,  for  the  utilties  act  is  complete  in 
itself,  and  not  an  amendment  of  any  prior 
act.  State  Public  Utilities  Com.  v.  Chi- 
cago, etc.  E,  Co.  (111.)   1917C-50. 

11.  Emergency  Loan  by  County.  Nev. 
Act  March  13,  1903  (Laws  1903,  c.  78), 
§§  6,  7  (Rev.  Laws,  §§  3831,  3832),  author- 
izing county  commissioners,  in  case  of 
great  necessity  or  emergency,  to  make  a 
temporary  loan,  and  requiring  them  at  the 
next  tax  levy  to  make  a  levy  for  its  pay- 
ment, does  not,  in  violation  of  Const,  art. 
14,  §  17,  relate  to  a  subject  not  embraced 
in  the  title,  "An  act  relating  to  county 
government  and  the  reduction  of  the  rate 
of  county  taxation."  First  National  Bank 
V.  Nye  County  (Nev.)  1917C-1195. 


STATUTES. 


763 


12.  Authorizing  Consolidation  of  Corpo- 
rations. Burns'  Ann.  St.  Ind.  1914,  §  5690, 
relating  to  the  consolidation  of  street  rail- 
road companies,  amending  Act  March  3, 
1899,  does  not  violate  Const,  art.  4,  §  19, 
providing  that  every  act  shall  embrace  but 
one  subject  and  matters  properly  eo^• 
nected  therewith,  which  subject  shall  be 
expressed  in  the  title,  in  that  the  original 
act  under  its  title  might  have  authorized 
such  consolidation.  Norton  v.  Union  Trac- 
tion Co.  (Ind.)    1918A-156. 

13.  Liability  of  Railroad  for  Fire.  That 
proviso  is  germane  to  the  subject  expressed 
in  the  title,  which  was  "An  act  to  estab- 
lish the  responsibility  of  railroads,  cor- 
porations, companies,  and  persons  owning 
or  operating  railroads  for  damages  by  fires 
communicated  by  locomotives."  Pitts- 
burgh, etc.  E.  Co.  V.  Chappell  (Ind.) 
1918A-627. 

14.  Prohibition  I<aw.  The  act  approved 
November  17,  1915  (Acts  Ga.  1915,  p.  77), 
is  not  unconstitutional  on  the  ground  that 
it  contains  matter  different  from  what  is 
expressed  in  its  title.  Delaney  v.  Plunkett 
(Ga.)    1917E-685. 

2.     REQUISITE'S   OF  STATUTES. 

15.  Requisites  —  Certainty.  The  provi- 
sions of  chapter  39,  as  amended  by  chap- 
ters 26  and  133,  Session  Laws  Okla.  1913, 
are  not  void  for  uncertainty  in  respect 
to  the  duties  therein  imposed  upon  police 
officers.     State  v.  Linn  (Okla.)  1918B-139. 

16.  Incomplete  Statute.  If  a  legislative 
enactment  is  so  uncertain  that  the  court 
cannot  determine  with  any  reasonable  de- 
gree of  certainty,  what  its  purpose  was, 
or  if  it  be  so  incomplete  that  it  cannot 
be  executed,  tt  must  be  condemned  as 
void.  State  v.  Board  of  State  Canvassers 
(Wis.)    1916D-159. 

17.  Uncertainty.  That  a  statute,  in 
some  provisions,  is  so  vague,  uncertain, 
and  indefinite  in  its  terms  as  to  be  in- 
capable of  execution,  does  not  render  it 
void,  so  long  as  it  does  not  infringe  some 
constitutional  provision  and  is  capable  of 
execution  in  its  more  essential  provisions. 
Perkins  v.  Board  of  County  Commissioners 
(111.)  1917A-27. 

3.     MANDATORY     AND     PERMISSIVE 
STATUTES. 

18.  A  legislative  provision  accompanied 
by  a  penalty  for  failure  to  observe  it  is 
mandatory.     Cramer's  Election  Case  (Pa.) 

1916E-914. 

19.  Compliance  with  the  commands  of  a 
mandatory  statute  is  a  condition  precedent 
to  the  validity  of  an  act  or  determination 
under  it,  and  the  prescribed  mode  of  doing 
the  act  or  reaching  the  determination  must 
be  strictly  pursued.  People  v.  Snell  (N. 
Y.)   1917D-222. 

20.  Directory  or  Mandatory.  In  deter- 
mining whether    statutes    are    mandatory 


or  directory  the  legislative  intent  governs. 
People  V.  Graham  (HI.)  19ieC-391. 

4.     ENACTMENT. 
a.    E'nacting  Clause. 

21.  The  enacting  clause  of  a  statute 
can  be  extended  by  the  preamble,  but  can- 
not be  restrained  by  it.  Brown  v.  Erie 
E.  Co.  (N.  J.)  1917C-496.         (Annotated.) 

b.     Reading  or  Printing  of  Bill. 

22.  Formalities  of  Enactment  —  IHiree 
Readings  in  Each  House.  Const.  Tenn. 
art.  2,  §  18,  requiring  a  bill  to  be  read  and 
passed  in  each  house  on  three  separate 
days,  is  satisfied,  where  it  is  introduced 
in  duplicate  in  the  two  houses,  and  the 
Senate  bill,  after  passing  its  third  reading 
and  being  enrolled,  is  on  the  third  read- 
ing in  the  house  substituted  for  the  house 
bill  and  passed.  Heiskell  v.  Knox  County 
(Tfenn.)   1916E-1281. 

c.    Action  by  Governor. 

23.  Nature  of  Veto  Power.  While  the 
veto  power  is  ordinarily  exercised  by  the 
person  possessing  the  executive  power,  it 
is  not  an  "executive"  but  a  "legislative" 
power.  Gottstein  v.  Lister  (Wash.)  1917I>- 
1008. 

24.  Action  of  Executive  —  Parol  Evi- 
dence. Under  Ark.  Const,  art.  6,  §  15,  pro- 
viding that  every  bill  which  shall  have 
passed  the  general  assembly  shall  be  pre- 
sented to  the  governor,  and  that  if  he  ap- 
prove it  he  shall  sign  it,  but  that  if  he 
shall  not  approve  it  he  shall  return  it  with 
his  objections  to  the  house  in  which  it 
originated,  which  shall  enter  the  objec- 
tions at  large  in  their  journal,  and  pro- 
ceed to  reconsider  it,  in  mandamus  pro- 
ceedings by  an  association,  alleging  that 
it  was  specially  interested,  to  compel  the 
secretary  of  state  to  publish  among  the 
acts  of  the  legislature  a  statute  which  the 
association  claimed  the  governor  had  ap- 
proved, parol  evidence  extrinsic  to  the 
legislative  records,  which  showed  that  the 
bill  was  vetoed  and  not  approved,  is  inad- 
missible to  determine  whether  the  gov- 
ernor first  approved  the  bill  before  subse- 
quently vetoing  it.  Arkansas  State  Fair 
Assoc.  V.  Hodges  (Ark.)  1917C-829. 

(Annotated.) 
Note. 
Admissibility  of  extrinsic  evidence  with 
respect  to  approval  or  disapproval  of  bill 
by  executive.     1917C-836. 

d.     Legislative   Journals. 

25.  Evidence  of  Enactment — Conclusive- 
ness of  Journals.  Journals  of  the  legisla- 
ture cannot  be  impeached  even  for  fraud 
or  mistake,  but  any  errors  therein  can  be 
corrected  only  bv  the  legislature.  Heiskell 
V.  Knox  County  (Tenn.)  1916E-1281. 


764 


DIGEST. 

1916C— 1918B. 


26..  Enactment — Presumption  of  Regula- 
rity. TLe  senate  journal  does  not  affirm- 
atively show  that  the  bill  was  not  read  by 
sections  on  its  final  passage  and  the  pre- 
sumption is  that  the  requirements  of  sec- 
tion 15  of  article  2  of  the  Kan.  constitu- 
tion were  observed.  State  v.  Missouri 
Pacific  E.  Co.  (Kan.)   1917A-612. 

e.    Enactment  Over  Veto. 

27.  Requisite  Number  of  Votes.  In  pass- 
ing a  bill  by  the  Senate  upon  reconsidera- 
tion after  a  veto  it  is  not  essential  that 
two-thirds  of  all  the  senators  vote  there- 
for, but  it  is  suflScient  if  two-thirds  of  a 
quorum  support  such  bill.  State  v.  Mis- 
souri Pacific  B.  Co.  (Kan.)  1917A-612. 

5.    EFFECT  OF  PARTIAL  INVALIDITY. 

28.  Ind.  Employers'  Liability  Act  March 
2,  1911  (Laws  1911,  c.  88),  §  7,  providing 
that  all  questions  of  assumption  of  risk, 
negligence  or  contributory  negligence  shall 
be  for  the  jury,  or  for  the  courts  in  causes 
tried  without  a  jury,  if  invalid,  is  entirely 
severaole  from  the  other  provisions  of  that 
act.  Vandalia  Railroad  Co.  v.  Stillweil 
(Ind.)  1916D-258. 

29.  If  the  provision  of  the  Corrupt  Prac- 
tice Act  (N.  Dak.  Comp.  Laws  1913,  §§  923- 
944)  attempting  to  govern  the  election  of 
United  States  senators  and  members  of 
Congress  is  invalid,  it  is  severable  and 
does  not  aflfect  the  validity  of  the  act  as 
applied  to  the  election  of  state  and  county 
officers.  Diehl  v.  Gotten  (N.  Dak.)  1918A- 
884. 

30.  As  the  exemption  is  not  so  inter- 
woven with  the  texture  of  the  Mont.  Farm 
Loan  Act  (Laws  1915,  c.  28)  or  so  indis- 
pensable to  its  purposes  or  operation  as  to 
compel  the  view  that  without  it  the  act 
would  not  have  been  passed,  its  invalidity 
will  not  affect  the  act  itself.  Hill  v.  Rae 
(Mont.)   1917E-210. 

31.  As  such  Mont.  Farm  Loan  Act  may 
be  carried  out  without  such  unconstitu- 
tional appropriation  of  money  as  a  guar- 
antv  to  lenders  under  the  act,  the  act 
itself  will  not  fall.  Hill  v.  Rae  (Mont.) 
1917E-210. 

32.  If  a  duly  enacted  statute  contains 
provisions  that  are  invalid  because  in  con- 
flict with  the  organic  law,  and  such  in- 
valid portions  may  be  severed,  and  the  re- 
mainder of  the  statute  may  then  be  made 
effective  for  the  purpose  designed,  and  will 
not  cause  results  not  intended  by  the  legis- 
lature, and  it  does  not  appear  that  the 
statute  would  not  have  been  enacted  with- 
out the  invalid  portions,  the  invalid  por- 
tions of  the  act  should  be  disregarded  and 
the  valid  portions  enforced  if  it  can  be 
done  to  effectuate  the  Ifgrislative  intent. 
State  V.  Philips  (Fla.)  1918A-138. 

33.  The  proviso  of  Burns'  Ind.  Ann.  St. 
1914,  §  5o25a,  that  the  burden  of  proof  of 


contributory  negligence  is  upon  the  rail- 
road company  in  an  action  for  damages 
caused  by  fire,  if  not  within  the  title,  does 
not  render  the  entire  act  void  under 
Const,  art.  4,  §  19,  requiring  the  6u.bject  of 
the  statute  to  be  expressed  in  the  title, 
^nce  the  act  would  be  complete,  sensible, 
and  capable  of  execution  with  that  pro- 
viso eliminated.  Pittsburgh,  etc.  R.  Co.  v. 
Chappell  (Ind.)  1918A-627. 

34.  Where  the  provisions  of  the  Commis- 
sion Merchants'  Law  (Rem.  &  Bal.  Wash. 
Code,  §§  7024-7035)  applicable  to  defend- 
ants were  valid,  the  invalidity  of  other 
portions  which  could  be  separated  from 
the  remainder  will  not  defeat  the  entire 
act.  State  v.  Bowen  &  Co.  (Wash.)  1917B- 
625. 

35.  Under  Const.  Amend.  7,  approved 
March  10,  1911  (Laws  Wash.  1911,  p.  136), 
providihg  for  the  initiative  and  referen- 
dum and  that  an  initiative  measure  shall 
be  in  operation  after  the  thirtieth  day 
after  the  election,  initiative  measure  No. 
3  (Laws  1915,  p.  2),  prohibiting  the  manu- 
facture, keeping,  sale,  etc.,  of  intoxicating 
liquors,  before  any  attempt  to  enforce  its 
provisions  prior  to  January  1,  1916,  even 
if  violative  of  the  amendment  by  reason 
of  the  postponement  of  its  operation, 
would  have  no  effect  upon  the  constitu- 
tionality of  other  provisions  thereof,  as 
section  26  expressly  so  declares.  Gottstein 
V.  Lister  (Wash.)  1917D-100S. 

36.  The  possible  invalidity  of  so  much  of 
Mich.  Pub.  Acts  1913,  act  No.  301.  licen- 
sing and  regulating  private  employment 
agencies,  as  prescribes  the  fees  which  may 
be  demanded  or  retained,  does  not  affect 
the  validity  of  other  provisions  of  the  act 
from  which  the  provision  in  respect  to  fees 
is  separable.  Brazee  v.  Michigan  (U.  S.) 
1917C-522. 

37.  Where  a  statute  is  in  part  invalid, 
the  court  must  uphold  the  balance,  where, 
by  so  doine,  it  carries  out  the  legislative 
intent.  Greene  County  v.  Lydy  (Mo.) 
1917C-274. 

38.  The  Public  Utilities  Act  will  not  be 
held  invalid  because  of  the  invalidity  of 
portions  of  the  act  which  are  not  neces- 
sary or  inseparable  parts  of  the  act,  with- 
out which  it  would  not  have  been  passed, 
where  their  elimination  will  leave  a  valid 
act  capable  of  being  carried  out.  State 
Public  Utilities  Com.  v.  Chicago,  etc.  R. 
Co.  (111.)  1917C-50. 

39.  If  part  of  an  enactment  is  uncon- 
stitutional and  the  remainder  is  not.  and 
is  reasonably  complete  by  itself,  and  the 
former  was  not  such  inducement  to  the  en» 
tirety  but  what  the  latter  might,  within 
reasonable  probability,  have  been  enacted 
by  itself,  to  that  extent  it  should  be  ap- 
proved and  otherwise  disapproved.  State 
V.  Board  of  State  Canvassers  (Wis.) 
1916D-159.  (Annotated.) 


STATUTES. 


T65 


40.  the  Hazel  Law  (27  Del.  Laws, 
«.  139),  regulating  shipments  of  intoxi- 
cating liquors  into  local  option  territory 
of  the  state  for  any  purpose,  except  to 
physicians  and  druggists,  though  invalid 
as  to  an  interstate  shipment  intended  for 
the  receiver's  personal  consumption,  recog- 
nized by  the  act  itself  to  be  lawful,  is  a 
valid  enactment  in  so  far  as  it  regulates, 
limits,  or  prohibits  the  shipment  of  liquor 
from  one  part  of  the  state  into  a  prohibi- 
tion district  in  another  part  of  the  state. 
Van  Winkle  v.  State  (Del.)  19161>-104. 

(Annotated.) 

41.  In  determining  the  constitutionality 
ot  a  statute,  the  valid  parts  should  be 
separated,  if  possible,  from  those  which 
are  invalid,  and  be  permitted  to  stand, 
unless  the  different  parts  are  so  intimately 
connected  with  and  dependent  upon  each 
other  as  to  show  a  legislative  intent  that, 
if  all  could  not  be  carried  into  effect,  the 
residue  would  not  have  been  enacted  inde- 
pendently. American  Express  Co.  v.  Beer 
(Miss.)   1916D-127.  (Annotated.) 

42.  A  part  of  a  law  may  be  unconstitu- 
tional and  the  remainder  of  it  valid,  where 
the  objectionable  part  may  be  properly 
separated  from  the  other,  without  impair- 
ing the  force  and  effect  of  the  section 
which  remains,  and  where  the  legislative 
purpose  as  expressed  in  such  section  can 
be  aceomnlished  and  given  effect,  inde- 
pendently of  the  void  section,  and,  when 
the  entire  act  is  taken  into  consideration 
it  cannot  be  said  that  the  legislature  would 
not  have  passed  the  section  retained  had 
it  been  known  that  the  void  section  must 
fail.  Held,  that  section  1,  of  chapter  23, 
N.  Mfx.  S.  L.  1901,  is  valid  and  enforce- 
able even  though  section  5  of  the  same  act 
is  unconstitutional,  under  the  above  rule. 
State  v.  Brooken  (N.  Mex.)  1916D-136. 

(Annotated.) 

43.  When  a  part  of  a  statute  is  uncon- 
stitutional, that  fact  does  not  compel  the 
courts  to  declare  the  remainder  void,  un- 
less the  unconstitutional  part  is  of  such 
import  that  the  other  parts  of  the  statute, 
if  sustained  without  it,  would  cause  re- 
sults not  contemplated  or  desired  by  the 
legislature.  The  question  to  be  deter- 
mined is  whether  the  obnoxious  part  is  an 
inducement  of  the  whole  act,  or  whether 
it  is  merely  an  incident  thereto.  The  test 
to  be  applied  in  determining  whether  the 
unconstitutional  provision  in  a  statute  in- 
validates fbe  whole  enactment  is  the  an- 
swer to  the  following  questions:  (1)  Are 
the  constitutional  and  the  unconstitutional 
parts  capable  of  separation  so  that  each 
may  be  read  and  may  stand  by  itself  t 
(2)  Is  the  unconstitutional  part  so  con- 
nected with  the  general  scope  of  the  whole 
as  to  make  it  impossible  to  give  effect  to 
the  ap 'parent  intention  of  the  legislature  'f 
the  clause  or  part  is  stricken  out?  (3)  Is 
the  insertion  of  words  or  terms  necessary 
in  order  to  separate  the  constitutional  part 


from  the  unconstitutional  part,  and  to  give 
effect  to  the  former  only!  State  v.  Bick- 
ford  (N.  Dak.)  1916D-140.     (Annotated.) 

44.  Where  a  part  of  a  statute  ia  uncon- 
stitutional, that  fact  does  not  require  the 
courts  to  declare  the  remainder  void  also, 
unless  all  the  provisions  are  connected  in 
subject  matter  depending  upon  each  other, 
operating  together  for  the  same  purpose, 
or  otherwise  so  connected  together  in 
meaning  that  it  cannot  be  presumed  the 
legislature  would  have  passed  the  one 
without  the  other.  Malin  v.  Lamoure 
County  (N.  Dak.)  1916C-207. 

45.  A  statute  is  valid  in  part  where  the 
valid  part  is  separable  from  the  invalid 
part,  and  is  capable  of  being  executed, 
and  thereby  effectuate  the  manifest  intent 
of  the  legislature.  Gherna  v.  State  (Ariz.) 
1916D-94.  (Annotated.) 

46.  The  unconstitutionality  of  a  part  of 
a  statute  does  not  render  the  balance  of 
the  statute  invalid,  where  enough  remains 
to  clearly  show  the  legislative  intent  and 
to  furnish  sufficient  details  of  a  working 
plan  to  carry  out  the  intent.  State  v. 
Duncan  (Mo.)  1916D-1.  (Annotated.) 

Note. 

Effect  of  partial  invalidity  of  statute. 
1916D-9. 


6.    CONSTRUCTION. 

a.     General  Rules. 

47.  Rules  of  Statutory  Construction.  In 
construing  an  ambiguous  legislative  enact- 
ment some  established  rules  are  to  be  ob- 
served as  unwritten  law  with  all  the  force 
of  written  law,  and  among  them: 

(a)  No  attempt  to  read  a  legislative  en- 
actment different  from  its  plain  words  and 
evident  meaning  on  its  face  is  legitimate, 
if  so  read  it  "leads  to  no,  absurd  conse- 
quences." 

(b)  There  should  be  real  uncertainly  of 
meaning  founa  in  a  legislative  enactment 
before  resorting  to  reading  it  by  aid  of 
rules  for  judicial  construction. 

(c)  Whether  the  meaning  of  words  of 
an  enactment  are  plain  is  to  be  deter- 
mined with  reference  to  the  connections  in 
which  they  are  used,  the  subject  dealt 
with,  the  circumstances  at  the  time,  and 
the  object  in  view. 

(d)  The  term  "and  leads  to  no  absurd 
consequences"  requires  the  rule  that  am- 
biguity requiring  judicial  construction 
may  as  well  arise  from  applying  the  literal 
sense  of  words  to  the  subject  dealt  with 
as  from  uncertainty  of  the  words  them- 
selves. 

(e)  An  intent,  however  apparent,  which 
cannot  reasonably  be  read  out  of  a  legis- 
lative enactment,  should  not  be  adopted, 
but  an  intent  however  absurd,  wnich  can 
be  so  read  and  shows  clearly  the  legisla- 
lative  purpose   beyond  reasonable  doubt, 


766 


DIGEST. 

19160— 1918B. 


mast  be  adopted  regardless  of  the  effect 
upon  validity. 

(f)  The  very  letter  of  an  enactment 
may  be  violated  to  carry  out  a  manifest 
legislative  intent,  so  long  as  it  can  be 
found  expressed  within  the  reasonable 
scope  of  the  language  used. 

(g)  Where  there  is  irreconcilable  con- 
flict between  a  legislative  enactment  and* 
an  earlier  law,  a  presumption  arises  of  a 
purpose  to  modify  or  repeal  the  latter; 
but  that  is  rebuttable  by  circumstances 
and,  among  them^  that  the  existing  law 
constitutes  an  entire  system  and  the  later 
enactment  would  render  the  entirety  un- 
constitutional or  absurd.  State  v.  Board 
of  State  Canvassers  (Wis.)  1916D-159. 

b.    Giving   Effect    to   Legislative   Intent 
/  Generally. 

48.  Construction  to  Effectuate.  The 
court,  in  construing  a  statute,  must  ascer- 
tain and  give  effect  to  the  intent  of  the 
legfslature,  and,  if  consistent  with  the  in- 
tent and  rhe  reason  of  the  statute,  the 
court  will  adopt  the  construction  which 
will  render  the  statute  operative.  State 
V.  Duncan  (Mo.)  1916D-1. 

49.  Statutes  are  to  be  interpreted  so  as 
to  give  effect  to  their  manifest  purpose, 
as  ascertained  from  the  words  used,  given 
their  common  and  approved  meaning,  and 
no  intent  can  be  read  into  a  statute  which 
is  not  there  either  in  plain  words  or  fair 
implication.  In  Be  Bergeron  (Mass.) 
1917A-549. 

50.  When  a  statute  is  validly  enacted, 
and  its  language  is  plain,  and  conveys  a 
clear  and  defanite  meaning,  the  sole  duty 
of  the  courts  is  to  give  to  it  the  exact 
meaning  conveyed  by  its  language,  add- 
ing nothing  thereto  and  taking  nothing 
therefrom.  It  is  only  when  the  meaning 
of  a  statute  is  in  doubt  that  courts  are 
required  first  to  construe  it,  in  order  to 
know  how  to  enforce  it.  Van  Winkle  v. 
State  (Del.)  1916D-104. 

51.  In  considering  a  statute,  effect 
should  be  ffiven  to  the  intent  of  the  law- 
makers. Uphoff  V.  Industrial  Board  (111.) 
18a7D-l. 

52.  The  primary  rule  for  the  interpreta- 
tion and  construction  of  a  statute  is  that 
the  intention  of  the  legislature  is  to  be 
ascertained  and  given  effect.  People  v. 
Chicago  R.  Co.  (111.)    1917B-821. 

53.  The  court,  in  construing  a  statute, 
cannot  give  to  the  language  used  any 
different   meaning   from    that  plainly   ex- 

f>res8ed,  on  the  theory  of  a  contrary  lepis- 
ative  intent.  Denver  v.  Hobbs  Estate 
(Colo.)   1916C-823. 

54.  The  object  of  all  statutory  interpre- 
tation and  construction  is  to  ascertain  and 
give  effect  to  the  intention  of  the  legis- 
lature. State  V.  Taylor  (N.  Dak.)  1918A- 
583. 


55.  Statutes  should  b©  construed  so  as  to 
give  effect  to  legislative  intent  and  avoid 
meaningless  and  absurd  results.  State  v. 
Gordon  (Mo.)  1918B-191. 

c.    Construction  as  a  Whole. 

56.  Effectuating  All  ProvlBions  of  Stat- 
ute. A  statute  being  passed  as  a  whole, 
that  construction  giving  effect  to  all  sec- 
tions should  be  adopted.  Uphoff  v.  In- 
dustrial Board  (111.)  1917D-1. 

57.  All  Parts  Considered.  In  arriving 
at  the  meaning  and  intent  of  a  legislative 
enactment,  every  part  thereof,  as  well  as 
the  title,  must  be  taken  into  consideration. 
Victor  Chemical  Works  v.  Industrial  Board 
(111.)  1918B-627. 

d.     Liberal  Construction. 

58.  In  Aid  of  Military  Power.  A  public 
statute  relating  to  the  military  power  of 
the  government  should  be  liberally  con- 
strued so  as  to  make  such  power  effective. 
Sweetser  v.  Emerson  (Fed.)  I917B-244. 

e.    Unambiguous  Statutes. 

59.  Where  a  statute  is  plain  and  un- 
ambiguous, whether  expressed  in  general 
or  limited  terms,  there  is  no  room  for  con- 
struction to  determine  its  meaning.  Louis- 
ville, etc.  R.  Co.  V.  Western  Union  Tel.  Co. 
<,Ala.)  1917B-696. 

60.  The  rules  for  the  construction  of 
statutes  are  only  valuable  in  so  far  as 
their  application  enables  the  court  to  bet- 
ter ascertain  the  intent  of  the  legislature, 
as  expressed  in  the  statute,  and  whe?e  the 
statute  is  plain  and  unambiguous  there  is 
no  room  for  construction.  Correll  v.  Will- 
iams, etc.  Co.  (Iowa)  1918A-117. 

f.  Words   Construed  According  to  Their 

Natural  and  Obvious  Meaning. 

61.  The  meaning  of  a  statute  must  pri- 
marily be  determined  by  the  language  of 
the  act  itself.  Whiley  v.  Solvay  Process 
Co.  (N.  Y.)  1917A-314. 

g.  Words  Given  Their  Ordinary  Meaning. 

62.  In  construing  a  statute,  words  should 
be  given  their  ordinary  meaning.  State 
V.  Gordon  (Mo.)  1918B-191. 

h.    Statutory  Definitions  Adopted. 

63.  The  legislature  may  adopt  reason- 
able modifications  of  former  definitions  of 
words,  so  as  to  make  their  interpretation 
conform  to  modern  usa^e.  Ideal  Tea  Co. 
V.  Salem  (Ore.)  1917D-684. 

64.  Legislative  Definitions  —  Effect.  A 
legislative  body  may  within  limits  define 
the  objects  affected  or  designed  to  be  by 
its  own  enactments,  and  the  supreme  court 
is  ordinarily  bound,  in  construing  its  acts 


STATUTES. 


767 


or  ordinanceB,  to  follow  its  own  definitions. 
St.  Louis  V.  N"asli  (Mo.)  191SB-134. 

65.  Interpretation  Clause — ^Definition  of 
Terms.  The  legislature  may  in  any  act  de- 
fine terms  specifically  for  that  act;  there- 
fore no  complaint  can  be  made  that  the 
111.  Public  Utilities  Act,  §  10,  defining  the 
term  "public  utility,"  declares  that  it  shall 
include  corporations  or  receivers  that  own, 
control,  operate,  or  manage  any  plant, 
equipment,  or  property  used  in  connection 
with  the  transportation  of  persons,  and 
defines  the  terms  "railroad"  as  including 
every  railroad  other  than  a  street  railroad 
by  whatsoever  power  operated,  and  a 
"street  railroad"  as  including  every  rail- 
road being  laid  upon,  above,  or  below  any 
Btrqet.  State  Public  Utilities  Com.  v. 
Chicago,  etc.  R.  Co.  (Dl.)  1917C-50. 

i.     Restriction  of  General  Words. 

66.  General  words  and  phrases  in  a  stat- 
ute may  be  restricted  in  meaning  to  adapt 
their  meaning  to  the  subject-matter  in  ref- 
erence to  which  they  are  used.  Barber  v. 
Morgan  (Conn.)  1916E-102. 

67.  The  court,  to  harmonize  conflicting 
statutory  provisions  and  to  effectuate  the 
intention  of  the  legislature,  must  either  re- 
strict or  enlarge  the  ordinary  meaning  of 
the  words  in  the  statutes,  and  this  rule  has 
special  force  where  the  statutes  must  be 
made  to  conform  with  the  constitution. 
State  y.  Pay  (Utah)   1917E-173. 

j.    Interpretation  of  Particular  Words  and 
Phrases. 

68.  Construction — "Other."  The  rule  of 
construction  requiring  the  word  "other"  in 
a  statute  to  be  construed  as  "other  such 
like,"  with  reference  to  things  previously 
enumerated,  does  not  apply  where  legisla- 
tive intention  is  manifestly  to  the  con- 
trary, and  the  word  will  then  receive  a 
general  construction.  American  Ice  Co.  v. 
Fitzhugh  (Md.)  1917D-33. 

k.     Conflicting  Words. 

69.  Disregarding  Inconsistent  Words.  In 
construing  a  statute,  the  courts  are  not 
confined  to  the  literal  meaning  of  the 
words,  but  may  disregard  words  inconsist- 
ent with  the  general  intent.  Uphoff  v.  In- 
dustrial Board  (111.)   1917D-1. 

1.     Construction  in  Favor  of  Validity. 

70.  Statutes  should  receive  tuat  con- 
struction which  will  uphold  their  validity. 
Spangler  v.  Mitchell  (S.  Dak.)  I918A-373. 

m.     Inconvenience  from  Enforcement. 

71.  Avoiding  Hardship.  In  construing 
a  statute  the  courts  will  consider  that  one 
construction  would  lead  to  hardships  by 
giving  a  remedy  for  ancient  and  forgotten 


wrongs  wlicli  another  construction  would 
avoid.  Jacobus  v.  Colgate  (N.  Y.)  1917E- 
369. 


n.     Construction    Rendering    Statute    Ab- 
surd. 

72.  The  courts  are  bound  to  presume 
that  the  legislature  did  not  intend  absurd 
consequences,  leading  to  great  injustice. 
Uphofif  V.  Industrial  Board  (111.)  1917D-1. 

73.  A  construction  of  a  statute  which 
will  result  in  great  inconvenience  or  ab- 
surd consequences  should  be  avoided.  Up- 
hoff v.  Industrial  Board   (111.)   1917D-1. 

74.  Rules  of  strict  and  literal  construc- 
tion may  be  departed  from,  in  order  that 
absurd  results  may  be  avoided,  and  to  in- 
sure that  the  statute  shall  be  effective  for 
the  purposes  intended.  Sweetser  v.  Emer- 
son (Fed.)  1917B-244. 

0.     Retrospective  or  Prospective  Meaning. 

75.  Retrospective  Operation — Regulation 
of  Procedure.  The  provision  of  Nev.  Act 
Feb.  20,  1913  (Laws  1913,  c  10),  amending 
section  22  of  the  Marriage  and  Divorce  Act 
of  1861  (Laws  1861,  c.  33),  as  amended  by 
Act  Feb.  15,  1875  (Laws  1875,  c.  22),  by 
declaring  that  the  court  shall  not  grant  a 
divorce,  unless  either  party  shall  have 
been  a  resident  for  not  less  than  one  year, 
relates  merely  to  procedure,  and  not  to  the 
cause  of  action,  and  applies  to  cases  where 
the  cause  of  action  accrued  before  the  act 
took  effect.  Worthington  v.  District  Court 
(Nev.)  1916E-1097. 

76.  Retroactive  Effect.  A  statute  will 
not  be  given  a  retroactive  effect,  unless 
by  its  terms  it  is  clearly  shown  that  that 
was  the  legislative  intent.  Graves  v.  Dun- 
lap  (Wash.)  1917B-944. 

77.  Prospective  Operation.  Statutes 
should  be  construe'd  prospectively,  and  not 
retrospectively,  although  there  is  no  con- 
stitutional impediment.  State  v.  Iowa  TeL 
Co.  (Iowa)  1917E-539. 

p.    Presumption  of  Legislative  Knowledge. 

78.  The  legislature  is  presumed  to  know 
the  rules  and  principles  of  construction 
adopted  by  the  courts.  Twentieth  Street 
Bank  v.  Jacobs  (W.  Va.)  1917D-695. 

q.    Ejusdem  Generis. 

79.  Under  the  rule  ejusdem  generis, 
where  general  words  follow  the  enumera- 
tion or  particular  classes  of  persons  or 
things,  the  general  words  will  be  construed 
as  applicable  only  to  the  persons  or  things 
of  the  same  general  nature  or  class  as 
those  enumerated.  State  v.  Gardner 
(Iowa)  1917D-239. 

T.    Effect  of  Pre-existing  Laws. 

80.  Prior  State  of  Law.  A  study  of  the 
law  as  it  was  prior  to  enactment  of  the 


768 


DIGEST. 

1916C— 1918B. 


statute  to  be  construed,  is  only  profitable 
in  so  far  as  it  may  aid  in  the  interpreta- 
tion of  the  act,  but  the  act  itself  is  the  law 
which  must  govern  the  court.  Correll  ▼. 
Williams,  etc.  Co.  (Iowa)  1918A-117. 

B.     Codification. 

81.  Construing  Statutes  Together — Pro- 
visions Adopted  at  Different  Times. 
Though  the  substance  of  Shannon's  Tenn. 
Code  §  3935,  relative  to  the  jurisdiction  to 
appoint  administrators  of  the  estates  of 
non-residents  was  enacted  prior  to  the  Code 
of  1858,  with  which  the  right  of  action  for 
wrongful  death  originated,  it  having  been 
made  a  part  of  that  code  along  with  the 
sections  giving  the  right  of  action  for 
wrongful  death,  they  must  be  construed 
together  as  if  they  had  originated  with  the 
cede,  as  that  code  was  a  single  enactment. 
Sharp  V.  Cincinnati,  etc.  E.  Co.  (Tenn.) 
1917C-1212. 

t.    General  and  Special  Statutes. 

82.  Statutes  Eelating  to  Courts.  Stat- 
utes dealing  with  the  courts  are,  as  a  gen- 
eral rule,  general  statutes,  thotigh  not  ap- 
plicable to  every  court  of  like  nature  in 
the  state.  Greene  County  v.  Lydy  (Mo.) 
1917C-274. 

n.    Statutes  in  Pari  Materia. 

83.  It  is  the  court's  duty  in  interpreting 
related  statutes  to  give  effect  to  both  of 
them,  if  possible,  rather  than  to  destroy 
one  of  them.  Palmer  v.  Cedar  Rapids 
(Iowa)   1916E-558. 

84.  Consolidation  of  Corporations.  A 
consolidation  of  two  street  railroad  com- 
panies not  in  legal  effect  constituting  a 
sale  of  the  property  of  the  constituent  cor- 
porations, Burns'  Ind.  Ann.  St.  1914,  §  5690, 
providing  that  street  railroad  companies 
may  consolidate  upon  such  terms  as  may 
be  by  them  mutually  agreed  upon,  and 
section  5653,  authorizing  street  railroad 
companies  to  sell  their  properties  in  cer- 
tain cases,  but  providing  for  the  payment 
to  a  dissenting  shareholder  of  the  ao- 
praised  value  of  his  stock,  are  not  properly 
construed  together.  Norton  v.  Union  Trac- 
tion Co.  (Ind.)  a918A-156. 

85.  Intoxicating  Liquors.  Tenn.  Aits 
1913  (2d  Ex.  Sess.),  c  1,  regulating  the 
shipment  of  intoxicating  liquor  into  the 
state,  or  between  points  within  the  state, 
and  chapter  3,  prohibiting  the  conveying 
or  shipping  liquor  from  one  county  to  an- 
other in  the  state,  are  in  pari  materia,  anti 
must  be  construed  together  so  as  to  har- 
monize with  each  other,  especially  since 
they  were  passed  at  the  same  legislative 
session  and  are  presumed  to  be  actuated 
by  the  same  public  policy;  and  the  excep- 
tions  to  the  prohibition  to  the  shipment 


of  liquor  maintained  in  chapter  1  will  bd 
construed  to  apply  to  chapter  3.  Bird  T, 
State  (Tenn.)  1917A-634. 

▼.     Remedial  Statute. 

86.  Evil  to  be  Remedied.  Where  a  new 
statute  is  so  ambiguous  as  to  incite  con- 
trary opinion  as  to  its  meaning,  the  first 
test  is  to  discover  the  evil  sought  to  be 
corrected.  Huntworth  v.  Tanner  (Wash.) 
1917D-676. 

87.  Judicial  Notice  of  Current  History. 
The  court,  in  determining  the  validity  of 
a  statute,  may  take  judicial  notice  of  cur- 
rent "history  and  the  mischief  the  statute 
attempted  to  provide  against.  Greene 
County  v.  Lydy   (Mo.)    1917C-274. 

w.     Penal  Statute. 

88.  Statutory  Rules  of  Construction. 
Tex.  Rev,  St.  1911,  art.  5502,  prescribing 
rul6s  for  the  construction  of  civil  statutory 
enactments,  applies  and  is  of  binding  force 
in  criminal  prosecutions.  Bradfield  v.  State 
(Tex.)  1917C-696. 

89.  Strict  Construction.  Where  a  law  is 
penal  and  prescribes  punishment,  acts  will 
be  construed  as  without  its  operation, 
rather  than  within  it.  Huntwoith  v.  Tan- 
ner (Wash.)  1917D-676. 

X.    Statutes  Adopted  from  Another  State. 

90.  The  construction  given  a  statute  by 
the  courts  of  the  state  from  which  it  was 
adopted  is  strongly  persuasive,  the  pre- 
sumption being  that  the  construction  was 
also  adopted.  Russel  v.  Jordan  (Colo.) 
l?16C-760. 

91.  Where  the  Iegisla*ure  adopts  a  stat- 
ute from  another  state,  the  construction 
given  the  act  by  the  courts  of  the  other 
state  prior  to  its  enactment  in  this  state 
usually  governs  in  interpreting  such  act 
here.     Dale  v.   Marvin    (Ore.)    1917C-557. 

92.  Where  the  legislature  adopts  a  pro- 
vision from  the  statutes  of  another  state, 
it  must  be  assumed  that  it  was  familiar 
with  its  interpretation  there  and  adopted 
it  with  the  statute.  Mt.  Vernon  Tel.  Co. 
v.  Franklin  Farmers,  etc.  Tel.  Co.  (Me.) 
1917B-649'.  (Annotated.) 

93.  A  decision  of  the  supreme  court  of 
Arkansas,  rendered  since  the  laws  of  Ar- 
kansas were  extended  over  the  Indian  Ter- 
ritory, where  in  direct  conflict  with  the 
settled  law  of  this  state,  "is  not  even  per- 
suasive." Marx  V.  Hefner  (Okla.)  1917B- 
656.  (Annotated.) 

94.  When  a  statute  has  been  adopted 
from  another  state  or  country,  the  courts 
usually  follow  the  construction  which  it 
had  received  by  the  courts  of  the  state  or 
country  from  which  it  is  taken.     Rose  r. 


STATUTES. 


769 


Public     Service     Commission      (W.     Va.) 
1918A-700. 

Note. 
Construction       of       adopted       statute. 
1917B-651. 

y.     Time  of  Taking  Effect. 

95.  Public  Utilities  Act.  Tiie  act  known 
as  the  "Idaho  Public  Utilities  Act"  waa 
passed  at  the  twelfth  session  of  the  Idaho 
legislature,  which  session  was  adjourned  on 
the  8th  day  of  March,  1913,  and  said  act 
was  approved  by  the  governor  on  March  13, 
1913,  and  went  into  effect  sixty  days  after 
the  adjournment  of  said  session  of  the 
legislature,  to  wit,  on  the  8th  day  of  May, 
1913.  Session  Laws  1913,  p.  247.  Said  act 
provided  for  the  organization  of  a  public 
utilities  commission,  and  defined  its  pow- 
ers and  duties,  and  also  the  rights,  reme- 
dies, powers,  and  duties  of  public  utilities, 
their  officers,  agents,  and  employees,  and 
the  rights  and  remedies  of  patrons  of  pub- 
lic utilities.  Idaho  Power,  etc.  Co.  v. 
Elomquist   (Idaho)    1916E-282. 

96.  Under  the  provisions  of  section  10, 
art.  4,  of  the  Idaho  constitution,  every  bill 
passed  by  the  legislature  becomes  a  law 
upon  the  approval  and  signing  of  the  same 
by  the  governor.  Idaho  Power,  etc,  Co.  v. 
Elomquist  (Idaho)  1916E-282. 

z.     Disregarding  Clerical  Errors. 

97.  The  intention  of  the  legislature  to 
amend  a  specified  section  of  the  statute 
must  govern,  and  a  clerical  mistake  as  to 
the  section  amended  must  be  disregarded. 
Worthington  v.  District  Court  (Nev.) 
1916E-1097. 

aa.     Effect  of  Ee-enactment. 

98.  Ee-enactment — Adoption  of  Prior 
Construction.  Where,  although  Mass.  St. 
1903,  c.  437,  imposing  taxes  on  foreign  cor- 
porations, was  construed  to  be  inapplicable 
to  foreign  corporations  whose  places  of 
business  within  the  state  were  maintained 
solely  for  use  in  interstate  commerce,  the 
legislature  re-enacted  it  as  St.  1909,  c.  490, 
pt.  3,  without  substantial  change,  they 
must  be  held  to  have  adopted  the  prior 
construction.  Marconi  Wireless  Tel.  Co. 
v.  Commonwealth  (Mass.)  1916C-214. 

bb.    Avoidance  of  Inutility. 

99.  Where  to  give  a  statute  a  construc- 
tion contended  for  would  operate  to  make 
part  of  its  well-considered  provisions  in- 
operative in  the  field  covered  by  the  stat- 
ute in  which  such  provision  is  found,  such 
construction  is  not  sustained  by  a  claim 
that  such  provision  is  not  idle,  because  in- 
tended to  operate  upon  some  statute  in 
which  it  is  not  found,  and  which  does  not 
cover  the  field  of  the  one  in  which  such 
provision  is  found.  Hunter  v.  Colfax  Con- 
BOlidated  Coal  Co.  (Iowa)  1917E-803. 

49 


cc.    Presumption  Against  Innovation. 

100.  In  determining  the  meaning  of  a 
statute,  it  will  be  presumed,  in  tne  ab- 
sence of  words  therein  specifically  indicat- 
ing the  contrary,  that  the  legislature  did 
not  intend  to  innovate  upon,  unsettle,  alter, 
violate,  repeal,  or  limit  another  general 
statute  or  statutory  system,  the  entire  sub- 
ject-matter of  which  is  not  directly  nor 
necessarily  involved  in  the  act.  Twentieth 
Street  Bank  v.  Jacobs  (W.  Va.)  1917D- 
695. 

dd.     Effect  of  Judicial  Decision. 

101.  It  is  the  duty  of  the  court  to  main- 
tain firmly  its  own  function,  but  not  tres- 
pass upon  that  of  the  legislature.  The 
former  requires  solution  of  doubts  respect- 
ing legislative  purpose  intended  to  be  em- 
bodied in  an  enactment  and  the  pronounced 
result  becomes,  in  effect,  written  into  such 
enactment.  State  v.  Board  of  State  Can- 
vassers (Wis.)  1916D-159. 

ee.    Reading  Matter  into  Statute. 

102.  The  courts  cannot  read  into  a  stat- 
ute matters  not  touched  upon  by  the  legis- 
lature, for  what  the  legislature  would  have 
provided  is  a  mere  matter  of  conjecture. 
King  V.  Viscoloid  Company  (Mass.)  1916I>- 
1170. 


ff.    Effect   of  Unrelated   Statutes. 

103.  The  construction  of  Ala.  Code  1907, 
§  1035,  prohibiting  the  employment  of  wo- 
men and  children  in  mines,  as  applicable  to 
all  mines,  and  not  limited  to  coal  mines, 
does  not  govern,  and  is  not  governed  by, 
the  construction  of  the  other  sections  of 
the  same  chapter  of  the  Code,  since  those . 
sections  are  not  dependent  upon  each  other, 
or  so  closely  related  that  each  must  be 
given  the  same  construction.  Cole  v. 
Sloss-Sheffield  Steel,  etc.  Co.  (Ala.)  IQltiE- 
99. 


gg.    Particular  Aids  to  Construction. 

104.  In  determining  the  meaning  of  a 
statute,  the  particular  mischief  which  it 
was  designed  to  remedy  and  the  history  of 
the  period  and  of  the  act  itself  may  be 
considered,  and  the  statutory  meaning  of 
a  word  or  phrase  must  be  gathered  from 
the  purpose  for  which  the  statute  was  en- 
acted. Whiley  v.  Solvay  Process  Co.  (N. 
y.)   1917A-314. 

105.  Contemporaneous  Construction.  In 
determining  the  meaning  of  a  statute,  con- 
temporary construction  may  be  resorted 
to.  and  opinions  of  the  attorney  general, 
which  show  how  he  construed  the  measure, 
while  not  binding,  are  of  value.  Hunt- 
worth   V.   Tanner    (Wash.)    1917D-676. 

106.  Report  of  Legislative  Committee. 
Eefcrence  may  be  had  to  the  report  of  a 


770 


DIGEST. 

19160— 1918B. 


legislative  drafting  committee  to  ascer- 
tain the  correct  construction  of  the  lan- 
guage used  in  a  statute.  Pellett  v.  In- 
dustrial   Commission    (Wis.)    1917D-884. 

107.  Name  Given  to  Statute.  The  name 
given  to  a  congressional  enactment  by  way 
of  designation  or  description  in  the  act  or 
the  report  of  the  committee  accompanying 
the  introduction  of  the  bill  into  the  House 
of  Representatives  cannot  change  the  plain 
implication  of  the  words  of  the  statute. 
Ceminetti  v.  United  States  (U.  S.)  1917B- 
1168. 

108.  Opinion  of  Legislator  in  Aid  of  Oon- 
Btruction.  While  debates  in  the  legisla- 
ture may  be  considered  in  determining  the 
legislative  intent,  individual  expression  of 
members  of  the  legislature  will  not  estab- 
lish such  intent,  in  enacting  a  statute. 
Sweetser  v.  Emerson  (Fed.)   1917B-244. 

109.  The  rule  that  in  construing  a  stat- 
ute the  legislative  intent  is  to  be  ascer- 
tained and  given  effect  does  not  permit 
the  court  to  consider  statements  made  by 
the  author  of  a  bill,  or  by  those  interested 
in  its  passage,  or  by  members  of  legisla- 
ture adopting  it,  showing  the  meaning  or 
effect  of  the  language  used  in  the  bill  as 
understood  by  the  persons  making  such 
statements.  People  v.  Chicago  R.  Co. 
(111.)   1917B-821. 

110.  Practical  Oonstruction.  The  con- 
struction of  executive  officers  intrusted 
with  the  duty  of  carrying  out  statutes  is 
entitled  to  great  weight.  State  v.  Gordon 
(Mo.)   1918B-191. 

111.  Oonstruction  of  Police  Regulations. 
Laws  and  regulations  necessary  for  the 
protection  of  the  health,  morals,  and 
safety    of    society    are   within    the    police 

.power,  and  should  be  given  such  a  con- 
struction as  will  suppress  the  mischief 
aimed  at.  State  v.  Lipkin  (N.  Car.) 
1917r>-137. 

112.  Motive  of  Legislature.  Where  the 
language  of  a  statute  is  unambiguous,  it 
is  not  for  the  courts  to  inquire  as  to  the 
motive  of  the  legislature,  nor  to  depart 
from  the  meaning  which  is  clearly  con- 
veyed. Greenleaf  v.  Minneapolis,  etc.  R. 
Co.   (N.  Dak.)   1917D-908. 

113.  Effect  of  Preamble.  The  preamble, 
which  is  a  clause  at  the  beginning  of  a 
constitution  or  statute,  explanatory  of  the 
reasons  for  its  enactment  and  the  objects 
sought  to  be  accomplished,  will  not  govern 
where  the  body  of  the  act  is  broader  than 
the  proposition  expressed,  but  if  the  body 
of  the  act  can  be  given  a  construction 
consistent  with  the  purpose  declared  in 
the  I  rcamble  it  will  be  so  construed. 
Huntworth  v.  Tanner   (Wash.)   1917D-676. 

114.  Resort  may  be  had  to  the  preamble 
or  recitals  of  legislative  intent  in  a  stat- 
ute only  when  the  enacting  part  is  am- 
biguous and  doubtful.  Brown  v.  Erie  R. 
Co.  (N.  J.)   1917C-496.  (Annotated.) 


115.  Effect  of  Form  of  Issue.  No  differ- 
ent rule  of  construction  will  be  applied  t» 
a  proceeding  under  the  statute  to  procure 
the  issuance  of  funding  bonds,  where  a 
protest  or  remonstrance  is  filed  thereto, 
and  issues  thus  framed,  from  that  to  be 
applied  in  ordinary  cases.  In  re  Applica- 
tion of  State,  etc.  (Okla.)  1916E-399. 

Note. 
Preamble  as  aid  to  construction  of  stat- 
ute.    1917C-500. 

7.    AMENDMENT  OR  REPEAL, 
a.     In   General. 

116.  Revision — Effect  of  Verbal  Ohanges. 
In  the  revisions  of  the  statute,  the  altera- 
tion of  phraseology,  or  the  omission  or 
addition  of  words,  will  not  necesssarily 
change  the  operation  or  construction  of 
the  former  statutes  unless  the  legislative 
intent  to  make  such  change  is  clear.  Cole 
v.  Sloss-Sheffield  Steel,  etc.  Co.  (Ala.) 
1916E-99. 

b.     Repeal  by  Implication. 

117.  Amendment  —  Effect  as  BepeaL 
Nev.  Act  Feb.  15,  1875  (Laws  1875,  c.  22), 
entitled  "An  act  to  amend  an  act  entitled 
'An  act  relating  to  marriage  and  divorce 
approved  November  28,  1861,'"  and  con- 
taining only  three  sections,  purports,  by 
section  1,  to  amend  section  22  of  the  orig- 
inal act  by  re-enacting  the  section  as 
changed.  Sections  2  and  3  are  the  ordi- 
nary repeal  of  inconsistent  laws,  and  a 
provision  as  to  when  it  shall  take  eflfect. 
Act  Feb.  20,  1913  (Laws  1913,  c.  10),  en- 
titled "An  act  to  amend  an  act  entitled 
'An  act  to  amend  an  act  relating  to  mar- 
riage and  divorce  approved  Nov  28,  1861,'" 
purports  to  amend  "section  22"  by  re-en- 
acting it  with  the  changes  affected  by  the 
amendment  and  repealing  conflicting  acts. 
It  is  held  that,  in  view  of  Const,  art.  4, 
§  19,  providing  that  no  law  shall  be  re- 
vised or  amended  by  reference,  but  the  act 
or  section  as  amended  shall  be  re-enacted 
and  published,  the  act  of  1875  did  not  re- 
peal section  22  of  the  original  act,  and  the 
act  of  1913  was  not  void  as  attempting- 
to  amend  section  22  after  such  repeal,  but 
the  unchanged  part  of  the  section  as  orig- 
inally enacted  continued  in  force,  notwith- 
standing the  amendments,  so  that  the  title 
of  the  act  of  1913  is  sufficient.  Worthing- 
ton   v.   District   Court   (Nev.)    1916E-1097. 

118.  If  the  legislature  did  not  intend  the 
law  of  1911  to  be  restrained  so  as  not  ta 
impair  the  efficiency  of  the  existing  law, 
the  purpose  is  too  much  involved  in  ob 
scurity  to  be  discoverable  with  the  reason- 
able degree  of  certainty  essential  to  eflfect 
being  given  thereto.  State  v.  Board  of 
State  Canvassers  (Wis.)  1916D-159. 

119.  There  being  no  provision  in  the 
Smith   and   Parks    Bills    (Ala.    Gen.    Acts 


STATUTORY  DUTY— STIPULATIONS. 


ni 


1911,  pp.  249-288,  26-31)  defining  what  are 
unlawful  drinking  places,  the  provisions  of 
■  section  5  of  Act  August  9,  1909  (Acts  Sp. 
Sess.  1909,  pp.  10,  11),  defining  unlawful 
drinking  places,  were  not  repealed,  except 
in  so  far  as  regularly  issued  licenses  to 
maintain  drinking  places  afford  the  legal 
right  to  maintain  such  places.  Borok  v. 
Birmingham   (Ala.)   1916C-1061. 

120.  Presumption.  Eepeals  of  statutes 
bv  implication  are  not  favored.  State  v. 
Iowa  Tel.  Co.  (Iowa)  1917E-539. 

121.  Repeal  by  Statute — ^Partial  Re- 
peal. A  statute  incorporating  partially  a 
rule  of  the  common  law  does  not  operate 
as  a  repeal  of  the  rest  of  the  rule.  Yazoo, 
etc.  E.  Co.  V.  Scott   (Miss.)    1917E-880. 

c.  Eepeal    of    Repealing   Statute,    Effect. 

122.  Such  constitutional  provision  is  re- 
stricted in  its  application  to  express  statu- 
tory revivals  of  prior  statutes,  and  does 
not  abrogate  the  common-law  rule  that, 
when  a  repealing  statute  is  itself  repealed, 
the  first  statute  is  revived  without  formal 
words,  in  the  absence  of  any  contrary  in- 
tention, expressly  declared  or  necessarily 
implied  from  the  enactment.  Manchester 
Twp.  Supervisors  v.  Wayne  Co.  Commis- 
sions (Pa.)  1918B-278.  (Annotated.) 

123.  Revival  of  Former  Act.  County 
commissioners  must  keep  in  repair  so 
much  of  an  abandoned  turnpike  as  passes 
through  a  township,  as  requirefl  by  Pa. 
Act  April  20,  1905  (P.  L.  237),  and 
Act  April  25,  1907  (P.  L.  104),  where  Act 
May  10,  1909  (P.  L.  499),  repealing  such 
prior  acts,  was  itself  repealed  by  Act 
March  15,  1911  (P.  L,  21),  since  the  rule 
that,  where  a  repealing  statute  is  repealed, 
the  original  statute  is  involved,  is  not 
affected  by  Const,  art.  3,  §  6,  providing  that 
no  law  shall  be  revived,  amended,  or  ex- 
tended by  reference  to  its  title  only,  and 
that  so  much  as  is  revived  shall  be  re- 
enacted  and  published  at  length.  Man- 
chester Twp.  Supervisors  v.  Wayne  Co. 
Commissioners  (Pa.)  1918B-278. 

(Annotated.) 

Note. 
Effect   of  repeal  or   amendment   of  re- 
pealing statute  as  reviving  repealed  stat- 
ute.    1918B-281. 

d.  Effect    of    Invalidity    of    Amendment. 

124.  Effect  on  Original  Act.  The  inval- 
idity of  an  amending  statute,  which  merely 
added  a  provision  to  the  original  statute, 
does  not  avoid  the  original.  Reliance 
Auto  Eepair  Co.  v.  Nugent  (Wis.)  1917B- 
307. 

e.     Effect  on  Pending  Action. 

123.  Effect  of  Repeal  on  Existing  Cause 
of  Action.  A  judgment  of  $2,000  against 
a   municipality   for   personal   injuries   was 


set  aside  because  the  charter  limited  a  re-  / 
covery  in  such  cases  to  $100.  Subse- 
quently such  charter  provision  was  re- 
pealed, and  plaintiff  moved  for  an  order 
directing  a  judgment  upon  the  verdict.  It 
is  held  that,  since  the  repealing  enactment 
did  not  provide  for  the  maintenance  of  ex- 
isting causes  of  action,  plaintiff  could  not 
recover  more  than  the  amount  originally 
limited.  Pullen  v.  Eugene  (Ore.)  1917D- 
933. 

STATUTORY  DUTY. 

Mandamus  to  compel  performance,  see 
Mandamus,  19-20. 

STAY  BOND. 

See  Appeal  and  Error,  481-484. 

STEAM  RAILROAD. 
See  Railroads. 

STEAMSHIP  EMPLOYEES. 

As  within  Federal  Employers'  Liability 
Act,  see  Master  and  Servant,  59, 

As  within  Workmen's  Compensation  Act, 
see  Master  and  Servant,  243-247,  262. 

STENOGRAPHER. 

Dictation  to  no  publication,  see  Libel  and 
Slander,  6. 

Communications  with  employer  as  privi- 
leged, see  Witnesses,  33. 

STENOGRAPHIO  NOTES. 

In  record  on  appeal,  see  Appeal  and  Error, 

66. 

STEVEDORE. 

As  within  Workmen's  Compensation  Act, 
see  Master  and  Servant,  245. 

STIPULATIONS. 

Waiver  of  error  by  stipulation,  see  Appeal 

and  Error  181,  182. 
Extending  time  of  trial,  see  Dismissal  and 

Nonsuit. 
As  affecting  judicial  notice,  see  Evidence, 

2. 
Selection    of    judge    by    agreement,    see 

Judges,  2. 

1.  Parties.  Filing  in  a  suit  in  equity,  by 
one  not  a  party,  of  stipulation  to  be  bound 
by  the  decree  to  be  entered  is  irregular; 
he  should  be  made  a  party  if  he  is  to  be 
affected  by  tiie  proceeding.  Hanscom  v. 
Maiden,  etc.  Gaslight  Co.  (Mass.)  1917A- 
145. 

2.  Setting  Aside — Act  of  One  of  Two 

Attorneys.  Where  the  only  resident  at- 
torney and  attorney  of  record  in  a  lawsuit 
signs  and  consents  to  the  filing  of  a  stipu- 
lation advancing  the  cause  upon  the  calen- 


772 


DIGEST. 

1916C— 1918B. 


dar  of  the  supreme  court  and  setting  it 
for  hearing  upon  a  day  certain,  such  stipu- 
lation will  not  be  set  aside  upon  an  afl5- 
davit  by  him  merely  to  the  efifect  that 
"he  believes"  he  had  no  authority  to  sign 
the  same,  and  that  "he  is  informed"  his 
non-resident  associate  counsel  would  be  en- 
gaged and  unable  to  prepare  the  brief, 
when  the  facts  as  to  the  authority  and 
engagements  are  clearly  matters  of  posi- 
tive knowledge  tQ  his  client,  and  such 
non-resident  counsel,  and  these  persons 
themselves  furnish  no  proof  or  affidavits 
whatever  of  the  facts  alleged,  and  when 
the  court  is  satisfied  that  counsel  had 
abundant  time  for  preparation.  Youmans 
v.  Hanna  (N,  Dak.)    1917E-263. 

3.  Eight  to  Withdraw.  When  in  the 
course  of  a  jury  trial  the  parties  agree 
upon  two  stipulations,  one  of  which  tends 
to  increase  the  amount  of  the  plaintiff's 
claim  and  the  other  tends  to  diminish  it, 
neither  party  should  be  allowed,  after  the 
cause  has  been  submitted  to  the  jury  upon 
such  stipulations,  to  withdraw  the  stipula- 
tion against  his  interest  and  enforce  the 
others.  Kriss  v.  Union  Pacific  B.  Co. 
(Neb.)   1918A-1122. 

STOCK. 

Attachment    of    shares,    see    Attachment, 
3,  5. 

STOCK  EXCHANGE. 

By-laws,  see  Corporations,  9,  11. 

STOCK  AND  STOCKHOLDEES. 
See  Banks  and  Banking,  23. 

STOCK  BBOKEES. 
See  Brokers,  12. 

STOCKHOLDEES. 
See  Corporations. 

In  joint-stock  company,  see  Joint  Adven- 
tures, 9,  10. 

STOCKHOLDEES'  LIABILITY. 
See  Corporations,  117-136. 

STOCKHOLDEES'  SUITS. 
See  Corporations,  137-143. 

STOCK  IN  A  COEPOEATION. 

Meaning,  see  Corporations,  75. 

STOCK  OF  MEECHANDISE. 

Mortgage    void,    see    Chattel    Mortgages, 
2,  3. 

STOLEN  PEOPEETT. 
See  Eeceiying  Stolen  Gtoods. 

STOPPAGE  IN  TRANSITU. 
See  Sales,  50. 


STOPPING  AFTEE  ACCIDENT. 

Violation  of  statute  requiring,  see  Aato« 
mobiles,  64-67. 


STOBAOE. 


See  Warehouses. 

STOEE. 

Injury  by  swinging  door,  see  Negligence, 
19. 

STRAW  MAN. 

Liability  on  deficiency  judgment,  see  Mort- 
gages, 28. 

STEEET  RAILWAYS. 

1.  Franchise,  772. 

2.  Statutory  Eegulation.  773. 

3.  Municipal  Eegulation,  773. 

a,  Eegulation  of  Transfers,  773. 

b.  Ordering     Abandonment     of     Spar 

Track,   773. 

4.  Merger  of  Street  Bailway  Corporations, 

773. 

5.  Liability  for  Injuries  from  Negligence, 

775. 

a.  General  Eights  and  Duties,  775. 

(1)  Eelative  Eights  of  Cars  and 

Travelers,   775. 

(2)  Duty  as  to  Lookout,  775. 

(3)  Care  as  to  Vehicles,  775. 

(4)  Eate  of  Speed,  775. 

(5)  Care    in     Passing    Car    Dis- 

charging Passengers,  775. 

(6)  Doctrine  of  Last  Clear  Chance, 

775. 

(7)  Duty  as  to  Fire  Engines,  776. 

b.  Contributory  Negligence,  776. 
C  Actions,   776. 

(1)  Admissibility     of     Evidence, 

776. 

(2)  Sufficiency  of  Evidence,  776. 

(3)  Questions  for  Jury,  777. 
See  Electricity,  2. 

Transfers,  see  Carriers  of  Passengers,  49. 

Eight  to  make  rules,  see  Carriers  of  Pas- 
sengers, 48. 

Injunction  by  railway  company  of  jitneys, 
see  Carriers  of  Passengers,  86. 

Presumption  of  Negligence  from  accident, 
see  Negligence,  114. 

Crowding  cars,  see  Nuisances,  7. 

Consolidation,  title  of  act  authorizing,  see 
Statutes,  12. 

Consolidation,  statutes  in  pari  materia,  see 
Statutes,  84. 

1.     FEANCHISE. 

1.  Construction  of  Franchise.  A  fran- 
chise granted  to  a  street  railway  company 
must  be  construed  strictly  against  the 
grantee.  Brooklyn  Heights  E.  Co.  v. 
Steers  (N.  Y.)  1916C-791. 

2.  Power    to    Construct     Side     Tracks. 

Where   a   street   railroad   company's   fran- 
chise does  not  grant  the  right  to  construct 


STREET  RAILWAYS 


773 


spur  tracks  connecting  with  private  prop- 
erty abutting  on  the  street  on  which  the' 
tracks  are  laid,  such  right  cannot  be  con- 
ferred by  license  issued  by  the  city's  engi- 
neer of  highways.  Brooklyn  Heights  R. 
Co.  V.  Steers  (N.  Y.)  1916C-791. 

(Annotated.) 

3.  Under  N.  Y.  Const,  a^-t.  3,  §  18,  N.  Y. 
Eailroad  Law  (Laws  1890,  c.  565)  art.  4, 
§§  90-93,  and  amendatory  statutes  pre- 
scribing the  matters  requisite  for  the  grant- 
ing of  a  street  railway  franchise,  franchise 
to  maintain  and  operate  a  street  railroad 
"across,  along  and  upon"  a  certain  avenue 
and  other  connecting  streets  does  not  con- 
fer on  the  railroad  company  the  right  to 
construct  and  maintain  a  spur  track  lead- 
ing from  its  main  track  in  the  street  to 
abutting  private  property  for  the  sole  ben- 
efit of  the  owner  and  the  railway  company. 
Brooklyn  Heights  R.  Co.  v.  Steers  (N.  Y.) 
1916C-791.  (Annotated.) 

Note. 
Power  of  street   railway    to    construct 
Bide  tracks.     1916C-793. 


2.     STATUTORY    REGULATION. - 

4.  Statutory  Regulation  of  Carriage  of 
Passengers — Applicability  to  Street  Rail- 
way. By  direct  provision  of  Cal.  Civ. 
Code,  §  olO,  §§  483,  2102,  2184,  2185,  gov- 
erning the  conduct  of  common  carriers 
of  passengers,  though  for  the  most  part 
having  reference  to  railroad  corporations, 
govern  the  duties  of  street  railroad  com- 
panies where  applicable.  Kelly  v.  Santa 
Barbara  Consol.  R.  Co.  (Cal.)  1917C-67. 


3.     MUNICIPAL  REGULATION. 
a.     Regulation  of  Transfers. 

5.  The  council  of  the  City  of  St.  Paul 
under  that  charter  had  the  right  to  pass 
an  ordinance  restricting  the  use  of  street 
car  transfers  to  the  persons  to  whom  they 
were  issued.  The  city  council  possessed 
only  such  legislative  power  as  was  granted 
to  it  by  the  constitution  or  statutes  in  ex- 
press terms  and  such  as  is  necessary  to 
the  full  enjoyment  of  powers  expressly 
granted.  The  power  was  given  to  grant 
franchises  for  the  operation  of  street  rail- 
ways and  to  regulate  and  control  the  ex- 
ercise of  such  franchises.  This  conferred, 
by  implication,  the  power  to  require  issu- 
ance of  transfers  by  the  railway  company 
and  to  regulate  the  manner  of  their  issu- 
ance by  the  company,  and  the  manner  of 
their  use  bv  the  public.  St.  Paul  v.  Rob- 
inson  (Minn.)   1916E-845. 

b.     Ordering  Abandonment  of  Snur  Track. 

6.  A  license  issued  by  a  city's  highway 
engineer  to  a  street  railway  company  au- 
thorizing it  to  construct  a  spur  track  con- 
necting it  with  private  property,  even  if 


lawful  in  its  origin,  is  a  revocable  privi- 
lege, and  is  revoked  by  a  resolution  of  the 
board  of  estimate  and  apportionment  di- 
recting the  railway  company  to  remove  the 
siding,  and  by  the  revocation  of  the  permit 
by  the  president  of- the  borough,  Brook- 
lyn Heights  R.  Co.  v.  Steers  (N.  Y.) 
1916C-791.  (Annotated.) 

4.     MERGER    OF    STREET    RAILWAY 
CORPORATIONS. 

7.  Procedure  for  Consolidation — ^Persons 
Entitled  to  Vote.  Stockholders  in  one 
street  railroad  company  who  hold  bonds 
and  shares  in  another  company  are  not 
thereby  disqualified  from  voting  for  a  con- 
solidation Qf  the  two  companies,  although 
such  facts  may  be  considered  on  a  charge 
of  fraud  or  maladministration.  Norton  v. 
Union  Traction  Co.  (Ind.)  1918A-156. 

8.  Effect  of  Consolidation — Liability  for 
Debts  of  Constituent  Company.  Where  a 
constituent  company  in  a  consolidation 
agreement  has  bought  stocks  and  bonds 
in  the  other  company  and  paid  money 
therefor,  which  money  is  used  for  the  ben- 
efit of  the  purchasing  company,  such  com- 
pany and  its  stockholders  are  liable  for 
the  indebtedness  of  the  selling  company 
created  in  raising  the  funds  used  for  the 
benefit  of  the  purchasing  company.  Nor- 
ton V.  Union  Traction  Co.  (Ind.)  1918A- 
156. 

9.  A  consolidation  agreement  between 
two  street  railroad  companies,  which  pro- 
vided that  the  lien  of  mortgages  executed 
by  one  company  to  secure  its  bonds,  the 
proceeds  of  which  inured  to  the  benefit  of 
the  constituent  company  in  which  plain- 
tiff held  stock  should  be  confined  to  the 
property  and  interest  of  such  other  com- 
pany that  in  case  of  liquidating  the  prop- 
erty of  plaintiffs'  company  might  not  be 
resorted  to  for  satisfaction  of  obligations 
of  the  other  company  until  all  the  pre- 
ferred stock  of  the  consolidated  company 
had  been  fully  redeemed,  that  stock  should 
be  issued  for  stock  of  the  constituent  com- 
panies at  more  nearly  their  true  value,  and 
that  stock  of  the  other  company  should 
be  postponed  to  preferred  stock  issued  to 
stockholders  in  plaintiflfs  company,  on 
which  annual  dividends  must  be  paid  be- 
fore the  holders  of  stock  converted  from 
such  company  can  realize  on  their  hold- 
ings, is  not  unjust  or  fraudulent  as  to 
plaintiffs.  Norton  v.  Union  Traction  Co. 
(Ind.)   1918A-156. 

10.  Avoidance  of  Consolidation  for  Fraud. 
A  consolidation  agreement  between  street 
railroads  may  be  avoided  for  fraud  on  the 
part  of  the  majority  against  minority 
stockholders.  Norton  v.  Union  Traction 
Co.  (Ind.)   1918A-156. 

11.  Estoppel  of  Shareholders  to  Object. 
A  consolidated  traction  company  distrib- 
uted the  shares  of  stock  in  one  of  the  con- 


774 


DIGEST. 

1916C— 1918B. 


stituent  companies  to  the  stockholders  in 
the  other  as  gifts.  Being  subsequently  'ji 
need  of  money,  the  consolidated  company 
leased  its  property  to  another  company, 
formed  for  the  purpose,  for  nine  hundred 
and  ninety-nine  years-  at  a  rental  so  high 
as  to  incapacitate  the  lessee  from  perform- 
ing its  contract.  These  two  companies  then 
consolidated,  and  stockholders  who  had 
purchased  stock  in  the  first  consolidated 
company,  after  the  transactions  mentioned, 
brought  suit  to  annul  the  consolidation 
agreement.  It  is  held  that  the  suit  would 
not  lie,  because  the  assignors  of  complain- 
ants' stock  had  consented  to  the  transac- 
tions leading  to  the  consolidation;  the 
assignee  of  shares  of  stock  ordinarily 
standing  in  the  position  of  l^is  assignor 
and  being  chargeable  with  the  conse- 
quences of  the  acts  in  which  his  assignor 
participated.  Norton  v.  Union  Traction 
Co.  (Ind.)  1918A-156. 

12.  Equitable  Belief  Against  Consolida- 
tion. To  warrant  the  interposition  of  a 
court  of  equity  in  an  action  by  a  stock- 
holder in  one  of  two  street  railroad  com- 
panies to  annul  a  consolidation  agreement 
between  them  and  to  restore  to  one  of 
them  the  property  owned  by  it  prior  to 
consolidation,  the  facts  well  pleaded  must 
constitute  a  fraud  or  breach  of  trust,  and 
that  the  act  may  be  unwise  is  no  ground 
for  relief  in  equity.  Norton  v.  Union 
Traction  Co.  (Ind.)  1918A-156. 

13.  Bums*  Ind.  Ann.  St.  1914,  §  5690,  au- 
thorizing street  and  interurban  railroad 
companies  to  consolidate  upon  such  terms 
as  may  be  agreed  upon,  is  not  permissive 
merely  as  only  affecting  the  rights  of  the 
state,  but  warrants  a  change  in  the  con- 
tractual relations  of  the  corporation  and 
its  stockholders  on  a  majority  vote.  Nor- 
ton V.  Union  Traction  Co.  (Ind.)  1918A- 
156.  (Annotated.) 

14.  Where,  at  the  time  of  the  incorpora- 
tion of  a  street  railroad  company,  consoli- 
dation was  authorized,  it  will  be  assumed 
that  the  stockholders  of  such  company  con- 
tracted with  reference  to  the  possibility  of 
a  future  consolidation.  Norton  v.  Union 
Traction    Co,    (Ind.)    1918A-156. 

(Annotated.) 

15.  Where  two  street  railroad  companies 
consolidated  under  Burns'  Ind.  Ann.  St. 
1914,  §  5690.  authorizing  the  consolidation 
of  the  stock  of  street  railroad  companies 
upon  such  terms  as  may  be  by  them  mutu- 
ally agreed  upon,  neither  section  5659,  au- 
thorizing street  railroad  companies,  by 
unanimous  consent  of  stockholders,  to  so 
amend  their  charters  as  to  provide  for  in- 
creases of  capital  stock,  nor  section  5663, 
authorizing  such  companies  theretofore  or- 
ganized to  make  provision  for  certain  pre- 
ferred stock,  is  applicable;  the  consolida- 


tion agreement  not  being  an  amendment  of 
'the  charters  *of  the  constituent  companies, 
but  having  the  effect  of  a  dissolution  of 
such  companies  and  the  formation  of  a  new 
one  with  the  consolidation  agreement  as 
articles  of  association.  Norton  v.  Union 
Traction   Co.    (Ind.)    1918A-156. 

(Annotated.) 

16.  Where  Burns'  Ind.  Ann.  St.  1914, 
§5690,  authorizing  the  consolidation  of 
street  railroad  companies  upon  such  terms 
as  the  stockholders  might  mutually  agree 
upon,  was  in  effect  before  either  of  two 
street  railroad  companies  which  later  con- 
solidated were  incorporated,  minority 
stockholders  in  such  companies  are  bound 
by  the  agreement  executed  by  the  major- 
ity, in  the  absence  of  fraud  or  illegality. 
Norton  v.  Union  Traction  Co.  (Ind.)  1918A- 
156.  (Annotated.) 

17.  Both  under  Burns'  Ind.  Ann.  St.  1914, 
§  5690,  authorizing  street  and  interurban 
railroad  companies  to  consolidate  upon 
such  terms  as  may  be  mutually  agreed 
upon,  although  silent  as  to  the  number  of 
shareholders'  votes  necessary  to  make  a 
consolidation,  and  under  section  240,  pro- 
viding that  in  the  construction  of  all  stat- 
utes of  this  state  words  importing  joint 
authority  to  three  or  more  persons  shall  be 
construed  as  authority  to  a  majority  unless 
otherwise  declared  in  the  law  giving  such 
authority,  unanimous  action  of  stockhold- 
ers is  not  necessary  to  consolidation.  Nor- 
ton V.  Union  Traction  Co.  (Ind.)  1918A- 
156.  (Annotated.) 

18.  Directors  in  a  street  railroad  company 
who  are  also  directors  in  another  company 
are  not  disqualified  from  voting  at  the 
stockholders'  meeting  for  the  consolidation 
of  the  two  companies,  where  the  statute 
authorizing  consolidation  does  not  qualify 
them,  as  stockholders  are  not  regarded  as 
trustees  for  one  another.  Norton  v.  Union 
Traction  Co.  (Ind.)   1918A-156. 

19.  Statutory  Authorization  —  Applica- 
tion to  Leased  Street  Eailway.  Burns' 
Ind.  Ann.  St.  1914,  §  5690,  providing 
that  any  street  railroad  company  or  con- 
solidated street  railroad  company  oper- 
ating any  street  railroad  shall  have  the 
right  to  unite  its  road  with  any  other 
street  railroad  by  whatsoever  power 
operated,  and  such  companies  are  autho- 
rized to  merge  the  stock  of  the  respective 
companies,  making  one  stock  company, 
upon  such  terms  as  may  be  by  them  mu- 
tually agreed  upon,  authorizes  the  con- 
solidation of  two  street  railroad  compa- 
nies, one  of  which  has  leased  its  property 
to  the  other,  which  operates  both  roads 
over  the  objection  that  the  leased  road  at 
the  time  of  the  merger  is  not  "operating" 
its  road  within  the  view  of  the  statute. 
Norton  v.  Union  Traction  Co.  (Ind.) 
1918A-156. 


STREET  RAILWAYS. 


775 


5.     LIABILITY  FOR  INJURIES  FROM 

NEGLIGENCE. 

a.     General  Rights  and  Duties, 
<1)     Relative  Rights  of  Cars  and  Travelers. 

20.  Use  of  Street.  In  the  use  of  streets 
by  railroads  and  street  cars,  the  cars 
have  the  right  of  way  over  travelers  for 
the  reason  that  the  cars  are  more  cumber- 
some and  difficult  to  stop  and  control  than 
are  vehicles  used  by  travelers  on  the  pub- 
lic highway;  but  in  all  other  respects  the 
rights  to  the  use  of  the  highway  are  equal. 
Boylan  v.  New  Orleans  R.  etc.  Co.  (La.) 
19I8A-287. 

21.  A  traveler  has  the  same  privilege  to 
use  the  street  that  a  street  railroad  has  for 
operating  its  cars  thereon,  and,  if  employ- 
ing a  motive  power  increasing  the  speed 
of  its  cars  so  as  to  increase  the  danger  of 
accidents,  has  a  reciprocal  duty  to  exercise 
a  commensurate  care  and  vigilance  neces- 
sary to  avoid  injuries.  Norman  v.  Char- 
lotte Electric  R.  Co.  (N.  Car.)  1916E-508. 

22.  A  street  car  has  a  right  of  way  su- 
perior to  that  of  a  wagon,  and,  whether 
going  in  the  same  direction  ahead  of  the 
car  or  meeting  it,  the  wagon  must  yield 
the  track  promptly  on  sight  or  notice  of 
the  approaching  car,  but  is  not  a  tres- 
passer because  on  the  track,  and  only  be- 
comes such  if,  after  notice,  it  negligently 
remains  there.  Where  a  wagon  and  a  car 
meet  at  right  angles,  the  wagon  has 
greater  rights  than  between  crossings;  the 
road's  superior  right  is  not  exclusive,  and 
will  not  justify  a  needless  interference 
with  the  public.  Norman  v.  Charlotte 
Electric  R.  Co.  (N.  Car.)  1916E-508. 

Note. 
Liability  of  street  railway  company  for 
injuries  caused  by  striking  pedestrian  in 
rounding  curve.     1916E-679. 

(2)  Duty  as  to  Lookout. 

23.  Duty   to    Keep   Lookout.    It  is  the 

duty  of  those  in  charge  of  a  street  car, 
even  without  notice,  to  inform  themselves 
of  the  conditions  and  circumstances  along 
the  line  of  the  railwav  and  to  be  on  the 
constant  lookout  so  as  to  avoid  collisions 
and  accidents.  Boylan  v.  New  Orleans  R. 
etc.  Co.  (La.)  1918A-287. 

(3)  Care   as  to  Vehicles. 

24.  Operation — Car©  as  to  Vehicles  In 
Street.  \  motorman  of  a  street  car  is 
bound  to  know  that  teams  are  likely  to  be 
in  a  street  and  that  it  is  slightly  down 
grade,  and  to  operate  his  car  in  view  of 
such  conditions.  Pollica  v.  Twin  State 
Gas,  etc.  Co.  (Vt.)  1917C-1240. 

(4)     Rate  of  Speed. 

25.  Violation  of  Speed  Ordinance  by 
Street  Railway.    A  street  railroad's  opera- 


tion of  a  car  at  a  speed  in  excess  of  a 
municipal  ordinance  is  evidence  of  negli- 
gence which  prevents  an  action  for  per- 
sonal injury  from  collision  from  being 
taken  from  the  jury.  Norman  v.  Charlotte 
Electric  R.  Co.  (N.  Car.)  1916E-508. 

(5)     Care    in    Passing    Car    Discharging 
Passengers. 

26.  In  view  of  the  reasonable  certainty 
that  some  of  the  passengers  alighting  from 
a  street  car  will  attempt  to  cross  the  track 
parallel  to  that  on  which  the  car  is  stand- 
ing,^and  in  view  of  the  lack  of  opportunity 
for  such  passengers  to  observe  an  ap- 
proaching car  or  for  the  motorman  to  ob- 
serve them,  it  is  the  duty  of  a  motorman 
in  charge  of  an  approaching  car  on  the 
parallel  track  to  have  the  car  under  such 
control  that  it  may  be  stopped  on  a  mo- 
ment's notice,  and  it  is  not  improper  to 
so  tell  the  jury,  notwithstanding  the  con- 
tention that  the  word  "moment"  means  a 
space  of  time  incalculable  or  infinitely 
small,  and  that  the  instruction  imposes  on 
the  street  car  company  a  duty  impossible 
of  performance.  Louisville  R.  Co.  v.  Ken- 
nedy (Ky.)  1916E-996. 

(6)     Doctrine  of  Last  Clear  Chance. 

27.  Personal  Injury — Negligence  Inca- 
pacitating Company  from  Avoiding  Injury. 
Though  a  person  was  negligent  in  going 
on  a  street  railway  track,  the  company  is 
liable  for  an  injury  to  him  if  after  discov- 
ering his  peril  the  car  could  have  stopped 
in  time  to  have  avoided  an  injury  except 
for  a  defective  brake.  British  Columbia 
Elec.  R.  Co.  V.  Loach  (Eng.)  I916D-497. 

(Annotated.) 

28.  Contributory  Negligence  of  Driver 
of  Vehicle.  In  an  action  against  a  street 
railroad  for  damages  to  his  team  from  a 
collision,  plaintiff,  though  negligent,  can 
recover,  where  the  railroad  failed  in  its 
duty  after  it  discovered  the  unattended 
team,  or  unless  he  could  by  ordinary  care 
have  avoided  the  consequence  of  defend- 
ant's negligence.  Pollica  v.  Twin  State 
Gas,  etc.  Co.  (Vt.)  1917C-1240. 

29.  To  Avoid  Collision.  A  street  rail- 
road's liability,  under  the  last  clear  chance 
rule,  for  injury  to  a  traveler  on  its  track 
does  not  depend  upon  the  cessation  of  his 
contributory  negligence,  as  its  motorman 
should  be  prepared  to  avoid  a  collision 
probable  in  view  of  his  persistent  neglect 
of  his  own  safety,  and,  with  reference  to 
such  rule,  proximity  in  point  of  time  and 
space  is  no  part  of  "proximate  cause," 
which  is  that  which,  in  natural  and  con- 
tinuous sequence,  without  any  new  and 
independent  cause,  produces  the  result,  and 
without  which  it  would  not  have  occurred, 
and  from  which  a  man  of  ordinary  pru- 
dence could  not  have  foreseen  that  such 
a  result  was  probable  under  all  the  cir- 


77« 


enmstances  as  tbey  existed  and  were 
known,  ot  should  by  the  exercise  of  due 
care  have  been  known  to  him.  Norman 
V.  Charlotte  Electric  R.  Co,  (N,  Car.) 
1916E-508.  (Annotated.) 

30.  Collision  With  Automobile.  On  evi- 
dence in  an  action  against  a  street  railroad 
for  personal  injury  to  plaintiff  while  back- 
ing hia  automobile  on  its  track,  the  ques- 
tion of  defendant's  failure  to  avoid  injury 
notwithstanding  plaintiff's  contributory 
negligence  held  for  the  jury.  Norman  v. 
Charlotte  Electric  R.  Co.  (N.  Car.)  1916E- 
508.  (Annotated.) 

31.  Where  defendant's  motorman  sees 
plaintiff's  automobile  on  the  track  in  front 
of  his  car,  and  knows  that  plaintiff  is  for- 
getful of  his  duty,  and  not  aware  of  the 
approach  of  the  car  in  time  to  prevent  a 
collision,  and  that  .a  collision  will  occur 
if  plaintiff  does  not  leave  the  track,  unless 
the  car  was  itself  stopped,  he  is  bound,  as 
80on  as  a  collision  becomes  probable,  to 
slow  down  and  bring  his  car  under  control 
so  that  he  could  stop  in  time  to  prevent  a 
collision,  and,  having  the  last  clear  chance 
of  averting  collision,  his  failure  to  do  so 
is  negligence.  Norman  v.  Charlotte  Elec- 
tric R.  Co.  (N.  Car.)  1916E-508. 

32.  Injury  to  Team  on  Track — Negli- 
gence Incapacitating  Company  from  Avoid- 
ing Injury.  Though  a  person  was  negli- 
gent in  driving  on  a  street  railway  track, 
the  company  is  liable  for  a  collision 
whereby  his  team  was  killed,  if,  after  dis- 
covering his  peril,  the  car  could  have  been 
stopped  in  time  to  have  avoided  the  in- 
jury except  for  a  defective  brake.  Colum- 
bia Bithulitic  v.  British  Columbia  Elec.  R. 
Co.  (Can.)  1917E-756.  (Annotated.) 

Note. 
Application  of  last  clear  chance  doctrine 
to  collision  between  automobile  and  street 
car.     1916E-515. 

(7)     Duty  as  to  Fire  Engines. 

33.  Duty  With  Respect  to  Fire  Appa- 
ratus. "Where  fire  apparatus  of  a  city  is 
given  the  right  of  way  by  statute,  ordi- 
nance, or  rule  of  the  railway  company,  the 
persons  in  charge  of  the  street  car  must 
yield  to  the  fire  apparatus  and  use  every 
reasonable  precaution  to  avoid  collision. 
Bovlan  v.  New  Orleans  R.,  etc.  Co.  (La.) 
19i8A-287.  (Annotated.) 

Note. 
Care  required  of  driver  of  street  car  or 
other  vehicle  to  avoid  collision  with  fire 
apparatus.     1918A-290. 

b.     Contributory    Negligence. 

34.  Care  Required  of  Pedestrian — Cross- 
ing Tracks.  A  pedestrian  crossing  street 
car  tracks  is  required  to  exercise  such  care 
as  an  ordinarly  prudent  person  would  exer- 
cise, under  like  circumstances^  to  learn  of 


DIGEST. 

19160— 1918B. 

the  approach  of  a  car  and  to  keep  out  of 
its  way,  and  such  care  necessarily  varies 
with  the  circumstances  of  each  particular 
case.  Louisville  R.  Co.  v.  Kennedy  (Ky.) 
1916E-996. 


35.  Duty  of  Automobile  Driver  at  Cross- 
ing. A  motorist  about  to  cross  street  rail- 
way tracks  is  bound  to  look  along  the 
track  immediately  before  driving  upon  it 
Frey  v.  Rhode  Island  Co.  (R.  L)  1918A- 
920. 

36.  Duty  of  Driver  as  to  Cars.  The 
right  of  a  traveler  to  drive  a  vehicle  on 
or  along  a  street  railway  track  does  not 
relieve  him  from  the  duty  of  looking  for 
approaching  cars  having  the  right  of  way. 
Norman  v.  Charlotte  Electric  R.  Co. 
(N.  Car.)    1916E-508. 

37.  What  Constitutes  Contributory  Negli- 
gence of  Driver — Team  not  Under  Control. 
The  driver  of  a  team  is  required  to  make 
a  reasonable  use  of  the  street,  and  to 
exercise  the  care  of  a  prudent  man  in 
avoiding  injury  from  street  cars;  but  one 
driving  or  being  with  a  team  upon  a  car 
track  is  not  required  to  have  his  horse  at 
all  times  under  control.  Pollica  v.  Twin 
State  Gas,  etc.  Co.  (Vt.)  1917C-I240. 

c.     Actions. 
(1)     Admissibility  of  Evidence. 

38.  Evidence — Speed  of  Street  Car.  In 
an  action  for  injuries  to  plaintiff's  de- 
livery wagon  by  being  struck  by  defend- 
ant's street  car  while  goods  were  being 
unloaded,  evidence  as  to  the  speed  of  the 
car  is  properly  admitted.  Davidson  Bros. 
Co.  V.  Des  Moines  City  R.  Co.  (Iowa) 
1917C-1226. 

(2)     SuflSciency  of  Evidence. 

39.  Collision  With  Standing  Vehicle — 
Evidence  of  Negligence  Sufficient.  In  an 
action  for  damages  to  plaintiff's  delivery 
wagon  standing  partly  across  the  street, 
in  being  struck  by  defendant's  street  car 
coming  around  a  curve,  the  evidence  is 
held  to  be  suflScient  to  support  a  finding 
that  defendant's  motorman  was  negligent. 
Davidson  Bros.  Co.  v.  Des  Moines  City  R. 
Co.  (Iowa)  1917C-1226. 

40.  Absence  of  Contributory  Negligence 
not  Proved.  In  an  action  for  personal  in- 
juries received  by  a  motorist  and  for  in- 
juries to  his  automobile  in  a  collision  with 
a  street  car,  the  evidence  is  held  to  be 
insufficient  to  sustain  a  verdict  against 
the  street  railway  company  not  showing 
the  motorist's  want  of  contributory  negli- 
gence. Frey  v.  Rhode  Island  Co.  (R.  I.) 
1918A-920. 

41.  Negligence — Striking  Pedestrian  In 
Bounding  Curve.  Plaintiff  having  often 
boarded  street  cars  before  they  rounded  a 
comer  where  she  desired  to  board  a  car, 
approached  the  usual  stopping  place  with- 


STREETS  AND  HIGHWAYS. 


777 


"out  notice  of  an  ordinance  requiring  the 
car  not  to  stop  until  it  had  turned  the 
corner.  The  motornian  signaled  her  to  go 
to  the  far  corner,  which  she  started  to  do. 
The  car  was  then  approaching  a  curve  at 
about  three  miles  an  hour,  and  the  speed 
was  increased  to  six  miles  before  the  car 
got  around  the  curve  which  was  on  a 
grade,  and,  as  it  did  so,  plaintiff  was 
struck  by  the  outswing  of  the  car.  Held, 
that  there  was  no  evidence  of  actionable 
negligence  on  the  part  of  the  carrier. 
Kuhn  V.  Milwaukee  Electric  R.,  etc.  Co. 
(Wis.)   1916E-678.  (Annotated.) 

(3)     Questions  for  Jury. 

42.  On  evidence  in  an  action  against  a 
street  railroad  company  for  a  collision 
with  a  team  standing  in  the  street  across 
the  track,  it  is  held  that  defendant's  negli- 
gence was  for  the  jury.  Pollica  v.  Twin 
State  Gas,  etc.  Co.  (Vt.)  1917C-1240. 

43.  On  evidence  in  an  action  for  a  col- 
lision of  a  street  car  with  plaintiff's  team 
standing  in  a  street,  it  is  held  that  plain- 
tiff's contributory  negligence  was  for  the 
jury.  Pollica  v.  Twin  State  Gas.,  etc.  Co. 
(Vt.)  1917C-1240.  (Annotated.) 

STEEETS  AND  HIGHWAYS. 

1.  Definitions  and  General  Consideration, 

777. 

2.  Legislative  Control,  777. 

3.  Establishment  and  Opening,  777. 

4.  Vacation,    Abandonment    or    Convey- 

ance, 777. 

5.  Improvement,  778. 

a.  Establishment  of  Grade,  778. 

b.  Abandonment       of       Established 

Grade,  778. 

c.  Change  of  Grade,  778. 

d.  Contracts,  779. 
a.  Use  of  Streets,  779. 

a.  Speed  Regulations,  779. 

b.  Law  of  the  Road,  779. 

c.  Use  by  Traction  Engines,  779.- 

d.  Obstructions,  779. 

e.  House  Moving,  779. 

f.  Exclusion    of    Business    VeMcles, 

780. 

g.  Eights  of  Abutting  Owners,   780. 

(1)  In   General,    780. 

(2)  Additional  Servitude,  780. 

(3)  Sidewalks,     Basements     and 

Hatches,  780. 
h.  Injuries,  781. 

(1)  Question  for  Jury,  781. 

(2)  Instructions,  781. 

7.  Injuries      Arising      from      Defects     in 
Streets,   781. 

a.  Extent  of  Liability,  781. 

b.  Notice  of  Defect,  781. 

c.  Holes  in  Street,  781. 

d.  Actions.  781. 

(1)  Pleading,  781. 
"(2)  Evidence,  781. 
(3)   Questions  for  Jury,  781. 
8.  Control  of  Public  Utilities  Commission, 
782. 


See  Automobiles,  7,  11,  12,  15,  16-22,  27; 

Dedication. 
Boad   bonds   are   for  necessary  expenses, 

see  Counties,  12. 
Poles  and  wires  in  streets,  see  Electricity, 

3-9. 
Condemnation  of  temporary  road,  see  Eml> 

nent  Domain,  9. 
Duty  of  abutting  owner,  see  Independent 

Contractors,  13. 
Railroads  made  highways  by  statute,  se« 

Railroads,  58. 
Regulation  of  wires  and  poles,  see  Tele- 
graphs and  Telephones,  16. 
Eight    of    township   to   highway  tax,   see 

Towns,  1,  2, 
Regulation  of  tree  trimming  on  roads,  see 

Trees  and  Timber,  13-17. 


1.    DEFINITIONS  AND  GENERAL  CON- 
SIDERATION. 

1.  What  Is  Public  Hi^^way.  Under  N. 
J.  Act  Feb.  16,  1870  (P.  L.  p.  181),  author- 
izing the  Essex  public  road  board  to  lay 
out,  construct,  improve,  and  maintain  cer- 
tain avenues  in  the  county  of  Essex,  in- 
cluding Park  avenue,  and  providing  that 
such  avenues  when  constructed  shall  be 
deemed  and  taken  to  be  public  roads  or 
highways.  Park  avenue  is  a  public  high- 
way. Barnes  v.  Essex  County -Park  Com- 
mission (N.  J.)  1916E-968. 

2.    LEGISLATIVE  CONTROL. 

2.  The  legislature  has  plenary  power 
over  highways  and  public  •  streets.  School 
Town  of  Windfall  City  v.  Somerville 
(Ind.)  1916D-661. 

3.  ESTABLISHMENT   AND   OPENING. 

3.  Establishment  by  User — ^Width  of 
Street  —  Extension  of  Original  Lines. 
Where  the  stakes  of  an  original  survey  of 
a  street  line  could  not  be  located,  but  the 
public  had  used  sidewalks  to  a  line  even 
with  the  front  of  buildings  along  the  street 
for  twenty  years,  past  the  plaintiff's  va- 
cant lot,  in  front  of  which  was  a  sidewalk 
extending  to  the  line,  the  plaintiff  is  barred 
from  asserting  ownership  beyond  the  line, 
although  the  line,  as  used,  made  the  street 
seventy-two  feet  wide  where  on  the  orig- 
inal plat  it  was  onlv  sixty-six  feet  wide. 
McCracken  t.  Joliet  (HI.)  1917D-144. 

4.  VACATION,     ABANDONMENT     OB 

CONVEYANCE. 

4.  Right  of  Property  Ovmer  to  Compen- 
sation. Under  Md.  Const,  art.  3,  §  40,  for- 
bidding the  enactment  of  any  law  authoriz- 
ing private  property  to  be  taken  for  pub- 
lic use  without  just  compensation,  Md. 
Code  Pub.  Loc.  Laws,  art.  4,  §  6  (Laws 
1898,  c.  123),  authorizing  the  mayor  and 
city  council  of  Baltimore  to  provide  for 
laying  out,  opening,  closing,  etc.,  any  street 


778 


DIGEST. 

1916C5— 1918B. 


in  such  city,  and  to  ascertain  the  damages 
caused  thereby  to  the  owner  of  any  ground 
or  improvements  for  which  he  ought  to 
be  compensated,  and  section  175  et  seq., 
providing  the  procedure  for  opening  and 
closing  streets,  an  owner  of  property  abut- 
ting on  a  street  one  block  of  which  was 
closed,  but  not  abutting  on  the  portion  of 
the  street  so  closed,  and  whose  ingress  to 
and  egress  from  its  property  is  not  there- 
fore affected,  though  the  direct  approach 
thereto  from  one  direction  is  cut  ofiF.  re- 
quiring a  more  circuitous  route,  is  not  en- 
titled to  damages.  German  Evangelical, 
etc.  Cong.  V.  Mayor,  etc,  (Md.)  1916C-231. 

(Annotated.) 
Note. 
Persons  entitled  to  compensation  for  va- 
cation of  street.     1916C-238. 

5.     IMPEOVEMENT. 

a.     Establishment  of  Grade. 

5.  Damage  by  Grading — Improvements 
After  Grade  Established.  Where  a  city, 
to  make  a  street  more  convenient  for 
travel,  has  lawfully  established  a  grade, 
and  the  owner,  after  its  establishment,  but 
before  it  is  physically  carried  into  effect, 
improves  his  property  without  regard  to 
the  grade,  the  owner  cannot  recover  dam- 
ages against  the  city,  if  it,  afterwards,  in 
grading  the  street  to  conform  to  the  estab- 
lished grade,  interferes  with  the  conveni- 
ent use  of  the  abutting  owner's  property, 
notwithstanding  the  constitutional  pro- 
vision that  private  property  shall  not  be 
taken  or  damaged  for  public  use  without 
just  compensation.  Gray  v.  Salt  Lake 
City  (Utah)   l^ieD-llSo.         (Annotated.) 

S.  Time  for  Establishment  of  Grade.  A 
city'  cannot  be  compelled  to  establish  its 
grades  upon  all  the  streets,  or  upon  the 
whole  of  any  one  street,  within  a  particu- 
lar time.  Gray  v.  Salt  Lake  City  (Utah) 
1916D-1135. 

7.  Power  to  Establish  Grade.  Under 
Utah  Comp.  Laws  1907,  §  206,  subd.  8,  giv- 
ing cities  power  to  lay  out,  grade,  and 
otherwise  improve  streets,  a  city  may  es- 
tablish street  grades,  and  improve  the 
street  so  as  to  conform  thereto,  if  the 
grades  are  established  for  the  purpose  of 
making  the  streets  safer  and  more  con- 
venient for  travel.  Gray  v.  Salt  Lake 
City  (Utah)  1916D-1135. 

b.     Abandonment  of  Established  Grade. 

8.  A  city  may,  either  expressly  or  im- 
pliedly, abandon  a  street  grade  already  es- 
tablished, and  after  abandonment  the  sit- 
uation is  as  though  no  grade  had  been 
established,  and  an  abutting  owner  may 
assume  that  the  city  elects  to  consider  the 
natural  surface  grade  as  the  grade  to  be 
used  for  travel;  the  question  of  abandon- 
ment being  ordinarily  a  mixed  question  of 


law    and    fact.     Gray    v.   Salt   Lake    City" 
(Utah)    1916D-1135. 

c.     Change  of  Grade. 

9.  Liability.  In  reducing  inequalities  in 
streets  by  changing  the  grade,  more  lati- 
tude should  be  allowed  to  large  cities  than 
to  the  smaller  cities  or  country  towns; 
paving  being  a  necessity  in  the  larger 
cities.  Gray  v.  Salt  Lake  City  (Utah) 
1916D-1135. 

10.  Damages  from  Grading — Rights  of 
Farchaser  of  Abutting  Jr'roperty.  A  pur- 
chaser of  property  purchases  with  the  im- 
plied consent  that  the  street  must  be  made 
reasonably  safe  and  convenient  for  travel, 
and  cannot  complain  that  it  is  lowered  or 
filled  to  make  it  safe  for  travel,  so  long  as 
the  city  has  established  a  grade  so  as  to 
inform  him  of  the  extent  to  which  it 
would  be  lowered  or  raised.  Gray  v.  Salt 
Lake  City  (Utah)  1916D-1135. 

11.  Improvement  After  Grade  Estab- 
lished— Eight  to  Damages.  If  an  abut- 
ting owner  does  not  conform  improve- 
ments of  his  property  to  grades  estab- 
lished by  the  city,  he  cannot  recover  re- 
sulting damages  from  the  city,  if  the  grade 
established  is  made  for  legitimate  street 
purposes,  such  as  to  make  the  street  safer 
and  more  convenient  for  public  use;  but, 
if  it  is  made  merely  to  ornament  or  beau- 
tify the  street,  the  abutting  owner  may 
recover  for  damage  to  his  real  estate,  as 
distinguished  from  his  improvements,  if 
such  improvements  were  made  after  the 
grade  was  established.  Gray  v.  Salt  Lake 
Uty  (Utah)  1916D-1135.         (Annotated.) 

12.  Since  the  abutting  owners  are  en- 
titled to  have  a  voice  in  determining 
whether  a  street  should  be  graded,  the  act 
of  grading  a  street  may  be  deferred  for  a 
long  time  without  abandoning  the  grade 
as  established,  so  that  those  who  wish  to 
improve  their  property  may  make  their 
improvements  conform  to  the  established 
grade.  Gray  v.  Salt  Lake  Citv  (Utah) 
1916D-1135. 

13.  The  owner  of  a  city  lot  who  has  im- 
proved it  in  reliance  upon  a  street  grade 
established  by  ordinance  may  recover,  on 
the  ground  oi  estoppel,  damages  for  a 
change  in  the  grade,  though  such  change 
was  made  before  the  street  was  actually 
brought  to  grade.  Spokane  v.  Ladies' 
rienevolent  Society  (Wash.)   1916E-367. 

(Annotated.) 

14.  The  owner  of  a  city  lot  in  front  of 
which  the  street  grade  has  been  fixed  by 
ordinance,  but  the  street  never  actually 
graded,  is  not  entitled  to  damages  for  the 
change  of  grade,  if  he  has  made  no  im- 
provements in  reliance  thereon.  Spokane 
V.  Ladies'  Benevolent  Societv  (Wash.) 
1916E-367.  (Annotated.) 

Note. 
Right  of  abutting  owner  to  damages  for 
change    of    street    to    established    grade 


STREETS  AND  HIGHWAYS. 


779 


where  he  improves  property  after  grade  is 
established.     1916D-1143. 

d.     Contracts. 

15.  Inclusion     of     Several     Streets.    A 

municipality  may,  under  Vrooman  Act 
(Cal.  Gen.  Laws  1909,  Act  3930),  §§  2,  8, 
which  confer  extensive  powers  on  the 
board  of  supervisors  and  provide  that 
there  shall  be  attached  to  the  assessment 
a  diagram  exhibiting  each  street  on  which 
work  has  been  done,  improve  several 
streets  in  one  locality  under  a  single  con- 
tract and  as  a  single  improvement.  Remil- 
lard  v.  Blake,  etc.  Co.  (Cal.)  1916D-451. 

(Annotated.) 
Note. 
Validity  of  inclusion  of  several  streets 
in  one  improvement.     1916D-455. 

€.  USE  OF  STREETS. 

a.  Speed  Regulations. 

16.  Application  to  Fire  Department. 
The  fire  apparatus  of  a  city,  while  on  its 
way  to  a  fire,  is  excepted  from  the  speed 
restrictions  imposed  by  the  Minn.  Motor 
Vehicle  Act  (Gen.  St.  1913,  §  2619),  al- 
though the  fire  be  outside  the  city  limits. 
Hubert  v.  Granzow  (Minn.)  1917D-563. 

(Annotated.) 
Note. 
Speed   or   other  highway  restriction  as 
applicable  to   fire   apparatus.     1917D-565. 

b.  Law  of  the  Road. 

17.  A  municipal  ordinance  requiring 
travelers  to  keep  as  near  the  right-hand 
side  of  the  curb  of  the  street  as  possible 
is  not  in  violation  of  Rem.  &  Bal.  Wash. 
Code,  §  5558  et  seq.,  requiring  travelers  on 
the  highways  to  turn  to  the  right:  the 
ordinance  establishing  the  law  of  the  road 
within  the  municipality.  Hiscock  v.  Phin- 
ney  (Wash.)  1916E-1044.         (Annotated.) 

18.  Law  of  the  Road — Applicability  to  ■ 
Child  Coasting  in  Street.  Plaintiff's  intes- 
tate, a  boy  of  twelve  years,  was  killed 
while  coasting  down  hill  on  a  street  in 
the  city  of  Eveleth,  by  his  sled  coming  in 
collision  with  a  sleigh  of  defendant  which 
was  coming  up  the  hill  on  the  left-hand 
side  of  the  street.     It  is  held: 

(1)  That  Minn.  Laws  1911,  c.  365,  §  15, 
providing  among  other  things  that  "all 
vehicles  .  .  .  must  keep  to  the  right  of 
the  center  of  the  street"  applies  to  the 
case,  and  that,  under  the  circumstances, 
the  violation  of  this  law  by  defendant 
was  at  least  evidence  of  negligence,  and 
justified  a  finding  thereof.  Terrill  v. 
Virginia  Brewing  Co.   (Minn.)   1917C-453. 

(Annotated.) 
Note. 

Law  of  road  as  applicable  with  respect 
to  one  using  highway  for  play.  1917C- 
454. 


c.    Use  by  Traction  Engine. 

19.  Use  of  Streets  —  Steam  Roller— 
Frightening  Horse.  A  municipal  corpora- 
tion or  a  contractor  improving  its  streets 
is  not  liable  for  injuries  resulting  from 
the  frightening  of  a  horse  at  a  steam 
roller,  which  was  being  used  by  the  city  or 
the  contractor  in  the  improvement  of  the 
street,  or  was  placed  on  one  side  of  the 
street  during  the  course  of  its  improve- 
ment, provided  it  was  not  left  there  an 
unreasonable  time.  Tanner  v.  Culpepep 
Construction  Co.  (Va.)  1917E-794. 

(Annotated.) 
Note. 

Use  of  highway  by  traction  engine. 
1917E-798. 

d.     Obstructions. 

20.  Fruit  Stand.  The  maintenance  and 
use  of  a  fruit  stand  in  the  street  sur- 
rounding a  portion  of  two  sides  of  a 
building  without  the  consent  of  public  au- 
thorities, though  under  a  lease  from  the 
building  owner,  constitutes  an  obstruction 
oi  the  street.  Pastorino  v.  Detroit  (Mich.) 
1916D-768. 

21.  Rights  by  Adverse  User  of  Street. 
Prior  to  Mich.  Pub.  Acts  1907,  No.  46, 
providing  that  no  rights  as  against  the 
public  shall  be  acquired  by  any  person  by 
reason  of  the  occupation  or  use  of  any 
public  highway,  street,  or  alley,  rights  of 
occupancy  in  streets  and  to  maintain  ob- 
structions therein  could  be  acquired  by 
adverse  possession.  Pastorino  v.  Detroit 
(Mich.)   1916D-768. 

22.  Presumptive  Bight  in  Street.  A 
fruit  stand  in  a  street  in  its  basic  char- 
acteristics is  not  a  permanent  obstruction 
of  the  class  whicn  may  be  acquired  by 
prescription;  the  name  itself  implying  a 
hawking  business  which  consists  in  offer- 
ing goods  for  sale  on  the  streets  by  outcry 
or  by  attracting  the  attention  of  persons 
by  exposing  goods  in  a  public  place,  or  by 
placards,  labels,  or  signals.  Pastorino  v. 
Detroit  (Mich.)  1916D-768. 

e.     House  Moving, 

23.  Bight  to  Move  House  in  Street — 
Interference  With  Telephone  Wires. 
Plaintiff,  a  resident  taxpayer  of  a  city, 
obtained  a  permit  under  a  city  ordinance, 
to  move  a  house  along  a  street.  The  city 
had  granted  to  a  telephone  company  a 
franchise  to  maintain  poles  and  wires  in 
the  street.  The  company's  manager  agreed 
to  remove  the  wires  to  enable  the  house 
to  pass,  but  failed  to  do  so.  It  is  held 
that  plaintiff,  suing  for  damages  caused 
by  being  prevented  from  moving  the  house 
because  of  the  wires,  was  improperly  non- 
suited. Weeks  v.  Carolina  Tel.,  etc.  Co. 
(N.  Car.)  1917C-75.  (Annotated.) 

Note. 
Use    of    streets    for    moving    buildings. 
1917C-77. 


780 


DIGEST. 

19160— 1918B. 


f.     Exclusion  of  Business  Vehicles. 

24.  Exclusion  of  Business  Vehicles. 
Under  N.  J.  Act  April  22,  1907  (P.  L. 
p.  180),  §  1,  providing  relative  to  the 
county  park  commissions  authorized  there- 
by to  be  appointed  in  certain  counties 
that  such  board  shall  have  full  power  and 
authority  to  pass  rules  and  regulations  for 
the  protection,  regulation,  and  control  of 
parks  and  parkways,  and  Act  March  5, 
1895  (P.  L.  p.  175),  §  6,  providing  that  the 
board  shall  have  power,  not  only  to  lay 
out  and  open  roadways,  parkways,  etc., 
but  to  establish  the  grade  thereof,  etc., 
and  regulate  the  use  thereof,  while  a  park 
commission  may  possibly  have  power  to 
prohibit  the  use  of  parkways  by  business 
vehicles  of  such  heavy  draft  as  would 
tend  to  injure  or  destroy  the  road,  it  can- 
not prohibit  the  use  of  a  parkway  by  ordi- 
nary grocery  delivery  wagons;  the  pro- 
tection of  the  highway  not  requiring  their 
exclusion  therefrom.  Barnes  v.  Essex 
County  Park  Commission  (N.  J.)  1916E- 
968.  (Annotated.) 

25.  The  legislature  may  impair  the  pub- 
lic easement  in  a  public  highway  by  pro- 
hibiting business  traffic  thereon,  and  may 
delegate  such  power.  Barnes  v.  Essex 
County  Park  Commission  (N.  J.)  1916E- 
968.  (Annotated.) 

Note. 
Validity    of   ordinance    prohibiting   use 
of   streets   by   business   vehicles.     1916E- 
969, 

g.    Bights  of  Abutting  Owners. 
(1)     In  General. 

26.  Belatlve  Bigbts  of  Public  and  Abut- 
ter. Ordinarily,  the  public  has  only  an 
easement  of  passage  in  a  highway  and  its 
incidents,  and  the  ownership  of  the  soil 
is  vested  in  the  abutting  owner,  but  his 
rights  are  subordinate  to  those  of  the  pub- 
lic. Chesapeake,  etc.  Tel.  Co.  v.  Golds- 
borough  (Md.)  1917A-1. 

(2)     Additional  Servitude. 

27.  What  Constitutes  Additional  Servi- 
tude —  Legislative  Determination.  The 
legislature  cannot  transform  into  a  street 
use  one  which  is  not  such,  and  cannot  au- 
thorize, without  compensation  to  abutting 
owners,  the  use  of  streets  not  included 
within  or  consistent  with  their  proper 
purposes,  and  which  are  productive  of  spe- 
cial damages  to  such  abutting  owners, 
whether  it  is  sought  to  impose  such  unlaw- 
ful use  upon  a  street  already  opened  or 
one  thereafter  to  be  opened.  Matter  of 
City  of  New  York  (N.  Y.)  1917A-119. 

28.  Use — Subway  as  Additional  Servi- 
tude. N.  Y.  Rapid  Transit  Act  (Laws 
1909,  c.  498),  §  21,  Bubdiv.  5,  authorizes 
corporations  having  a  franchise  to  oper- 
ate a  rapid  transit  railroad  thereunder  to 
enter   upon   and   underneath   streets,  etc.. 


designated  by  the  public  service  commis- 
sion and  to  construct  a  railroad  upon  the 
route  settled  upon,  and  provides  that  the 
use  of  streets,  avenues,  etc.,  for  the  pur- 
pose of  a  railroad  as  therein  authorized 
shall  be  considered  a  public  use  consistent 
with  the  uses  for  which  such  road,  streets, 
etc.,  are  publicly  held.  Section  63  pro- 
vides that  roads  so  constructed  shall  be 
deemed  a  part  of  the  public  streets  and 
highways  of  the  city.  Held,  that  notwith- 
standing such  provisions  the  construction 
and  operation  of  a  subway,  even  through 
a  street  of  which  the  city  owns  the  fee, 
is  not  such  a  street  use  or  public  use  that 
it  may  be  authorized  without  compensa- 
tion to  abutting  owners  for  substantial 
damages  thereby  caused,  and  when  land 
is  condemned  for  street  purposes,  such 
damages  are  not  deemed  included  in  the 
consequential  damages  to  abutting  prop- 
erty, and  hence  in  a  street  opening  pro- 
ceeding abutting  property  owners  are  not 
entitled  to  damages  because  of  the  con- 
templated construction  of  a  subway  under 
the  street.  Matter  of  City  of  New  York 
(N,  Y.)  1917A-119.  (Annotated.) 

Note. 

Right  of  abutting  owner  to  use  side- 
walk for  areaways  and  the  like.  1917A- 
558. 

(3)     Sidewalks,  Basements   and  Hatches. 

29.  Construction  of  Coal  Vault — Pre- 
sumption of  Municipal  Permission.  Per- 
mission by  the  municipality  to  construct 
and  maintain  a  coal  vault  under  and  an 
opening  thereto  in  a  city  pavement  will 
be  presumed  from  acquiescence  and  use 
continued  for  several  years.  Hill  v.  Nor- 
ton (W.  Va.)   1917D-489. 

30.  Areaways  and  Hatchways  —  Defini- 
tion. As  used  in  an  ordinance  regulating 
the  construction  of  areaways  under  any 
sidewalk,  and  providing  that  all  hatch- 
ways through  sidewalks  shall  be  provided 
with  strong  coverings,  the  word  "area- 
way"  was  equivalent  to  cellar  or  room  un- 
der the  sidewalk,  and  the  word  "hatch- 
way" referred  to  openings,  and  not  to 
stairways  or  basement  ways.  State  v. 
Armstrong  (Neb.)  1917A-554. 

31.  "Area" — Definition.  The  word '^area" 
has  a  somewhat  elastic  meaning.  Orig- 
inally it  meant  a  broad  piece  of  level 
ground,  but  in  modern  use  it  can  mean 
any  plane  surrace,  the  inclosed  space  on 
which  a  building  stands,  the  sunken  space 
or  court  giving  ingress  and  affording  Ught 
to  the  basement  of  a  building,  a  particular 
extent  of  surface.  State  v.  Armstrong 
(Neb.)   1S17A-54. 

32.  Rights  of  Abutter — Openings  In  Side- 
walk — Regulation.  Under  the  statutes  gov- 
erning cities  of  the  first  class  having  more 
than  40,000  and  less  than  100,000  inhabi- 
tants, the  matter  of  allowing  and  regula- 


STREETS  AND  HIGHWAYS. 


781 


tin^  entrances  to  basements  through  side- 
walks is  within  the  reasonable  discretion 
of  the  mayor  and  council.  State  v.  Arm- 
strong  (Nej.)    1917A-554.       (Annotated.) 

33.  The  sections  of  the  sidewalk  ordi- 
nance of  the  city  of  Lincoln  quoted  in 
the  opinion  cannot  be  construed  to  pro- 
hibit all  opening  in  the  sidewalk  for  stair- 
ways, and  basement  ways,  in  view  of  the 
statute  requiring  the  mayor  and  council 
to  regulate  such  openings,  and  the  prac- 
tical construction  of  those  provisions  for 
many  years.  State  v.  Armstrong  (Neb.) 
1917'A-554.  (Annotated.) 

34.  Stairway  in  Sidewalk  Area.  Al- 
though such  stairway  somewhat  restricts 
the  free  and  unembarrassed  use  of  the 
sidewalk  for  pedestrians,  such  use  may  be 
justified  on  the  ground  that  the  general 
interest  is  served  by  making  available 
valuable  property,  increasing  business  fa- 
cilities, and  encouraging  improvement. 
State  v.  Armstrong  (Neb.)  1917a-554. 

(Annotated.) 

35.  Such  permission  may  be  given  in- 
formally by  resolution  and  without  a  for- 
mal ordinance.  State  v.  Armstrong  (Neb.) 
1917A-554.  (Annotated.) 

36.  Under  the  circumstances  in  this  case, 
indicated  in  the  opinion,  permitting  the 
construction  and  use  of  the  stairway  in 
question  was  not  an  abuse  of  discretion. 
State  V.  Armstrong  (Neb.)  1917A-554. 

(Annotated.) 


(1) 


h.     Injuries. 
Question  for  Jury. 


37.  Injury  from  Runaway  Horse.  One 
injured  by  a  horse  running  away  on  a 
street  may  rest  on  a  prima  facie  inference 
of  negligence  from  it  having  been  left 
unhitched  and  unattended,  though,  whether 
or  not  the  owner  introduces  evidence,  the 
question  of  negligence  is  for  the  jury. 
Eosenberg  v.  Dahl  (Ky.)  1916E-1110.') 

(Annotated.) 

(2)     Instructions. 

38.  An  instruction  to  the  effect  that 
firemen  on  their  way  to  a  fire  outside  the 
city  were  subject  to  the  speed  restrictions 
imposed  by  that  act  was  error.  Hubert  v. 
Granzow  (Minn.)  1917D-563. 

(Annotated.) 

Note. 

Stopping  or  leaving  vehicle  in  dangerous 

place   in    street    as   negligence   precluding 

recovery    for    resulting    injuries.     1917C- 

1229. 

7.    INJURIES     ARISING     FROM     DE- 
FECTS IN  STREETS. 

a.     Extent  of  Liability. 

39.  Where  there  was  a  defect  in  the 
approaches  to  a  culvert  and  it  had  existed 


for  so  long  a  time  that  the  town  knew  or 
ought  to  have  known  of  and  remedied  it, 
the  town  is  liable  for  any  injuries  to 
travelers  in  the  exercise  of  due  care, 
proximately  caused  thereby,  and  recovery 
cannot  be  limited  to  defects  in  the  culvert 
itself.  Fifield's  Adm'x  v.  Rochester  (Vt.) 
1918A-1016. 


b.    Notice  of  Defect. 

40.  Injury  from  Defect  —  liability  of 
Municipality — Notice  of  Defect.  A  muni- 
cipality charged  by  its  charter  with  the 
duty  of  keeping  sidewalks  in  repair  is 
liable  for  an  injury  to  a  pedestrian  from 
a  defect  in  a  sidewalk  produced  by  a  long 
continued  practice  of  driving  wagons  over 
the  walk  at  that  place,  though  the  muni- 
cipality had  no  actual  notice  of  the  defect. 
Jamieson  v.  Edmonton  (Can.)   1918B-379, 

(Annotated.) 

•  c.    Holes  in  Street. 

41.  What  Constitutes  Negligence — Slight 
Depression  in  Street.  A  city  was  not 
negligent  in  T>ermittine  a  circular  hole  in 
the  middle  of  a  street  about  as  large  as  a 
barrel  head,  which  was  four  inches  deep 
at  the  deepest  part  and  extended  from  the 
edge  of  the  street  crossing.  Lalor  v.  New 
York  (N.  Y.)  1916E-572. 

d.     Actions. 
(1)     Pleading. 

42.  Sufladency  of  Declaration.  A  decla- 
ration alleging  the  existence  of  a  culvert 
as  part  of  a  highway,  that  it  was  the  duty 
of  a  town  to  keep  it  in  repair,  that  it  was 
not  maintained  in  good  repair,  and  that  by 
reason  of  a  defect  in  the  highway  and 
culvert  plaintiff's  intestate  was  thrown 
from  his  sled  and  killed,  warrants  a  re- 
covery upon  proof  of  defects  in  the  ap- 
proaches to  the  culvert.  Fifield's  Adm'x 
V.  Rochester  (Vt.)  1918A-1016. 

(2)     Evidence. 

43.  Evidence  —  Fact  of  Receiving  In- 
structions by  Telephone.  The  testimony 
of  a  fireman  that  he  was  proceeding  to  a 
fire  pursuant  to  instructions  received  by 
telephone  from  the  operator  at  headquar- 
ters was  competent  to  prove  such  fact. 
Hubert  v.  Granzow  (Minn.)   1917D-563. 

(3)     Questions  for  Jury. 

44.  Where  a  steam  roller  was  left  by  a 
contractor  who  had  been  improving  the 
streets  upon  a  street  for  more  than  two 
months  after  work  had  been  stopped  by 
unfavorable  weather  in  the  fall,  and  which 
had  been  used  only  once  during  that  time, 
and  it  was  seldom  that  such  work  could 
be  done  during  the  winter,  on  account  of 
the  weather  conditions,  it  is  a  question 
for  the  jury  whether  the  roller  was  left 


782 


there  an  unreasonable  time  nnder  the  cir- 
cumstances so  as  to  render  the  city  and 
the  contractor  liable  for  injuries  caused  by 
plaintiffs  horse  becoming  frightened  at  it. 
Tanner  v.  Culpeper  Construction  Co.  (Va.) 
1917E-794.  (Annotated.) 

45.  The  question  whether  a  defect  in  a 
highway  was  in  the  approach  to  a  culvert 
is  held  to  be  for  the  jury  in  an  action 
against  a  town  for  the  death  of  one  thrown 
from  a  sleigh  by  reason  of  the  defect. 
Fifield's  Adm'x  t.  Rochester  (Vt.)  1918A- 
1016. 

46.  Evidence,  in  an  action  for  the  death 
of  one  killed  when  thrown  from  a  sleign, 
is  held  to  present  to  the  jury  the  question 
whether  the  fall  was  by  reason  of  a  defect 
in  the  highway  for  which  the  town  was 
responsible.  Fifield's  Adm'x  v.  Rochester 
(Vt.)  1918A-1016. 

47.  Personal  Injury  from  Defect — ^Lia- 
bility of  Municipality.  In  an  action 
against  a  town  for  the  wrongful  death  of 
plaintiflTs  intestate,  who  was  thrown  from 
a  sleigh  by  reason  of  an  allied  defect  in 
the  highway,  the  question  whether  the 
town  had  so  absolutely  abandoned  a  cul- 
vert in  the  road  by  diverting  the  water 
as  to  render  it  no  longer  liable  for  the  cul- 
vert's condition  is  held  under  the  evidence 
to  be  for  the  jury.  Fifield's  Adm'x  ▼. 
Rochester  (Vt.)  1918A-1016, 

8.     CONTROL   OF   PUBLIC    UTILITIES 
COMMISSION. 

48.  Review  of  Municipal  BegnlatioiL 
The  requirements  of  a  city  ordinance,  di- 
recting a  street  railway  company  to  con- 
struct extensions  of  its  lines,  are  subject 
to  review  by  the  public  utilities  commis- 
sion, which  is  authorized,  upon  hearing,  to 
determine  whether  the  requirements  of 
such  ordinance  are  just  and  reasonable. 
Cincinnati  v.  Public  Utilities  Commission 
(Ohio)  1916E-1081.  (Annotated.) 

49.  Under  the  provisions  of  section  614- 
51,  Ohio  General  Code,  the  public  utilities 
commission  may  determine  the  practicabil- 
ity of  additions  and  extensions  of  street 
railway  lines  required  by  a  city  ordinance. 
In  reaching  such  determination  the  com- 
mission may  consider  the  physical  condi- 
tions of  the  proposed  route  as  well  as  the 
necessary  plan  of  operation  of  cars  there- 
over. If  upon  such  hearing  the  commis- 
sion finds  that  operation  of  cars  over  the 
proposed  route  would  entail  unusual  and 
unwarranted  dangers  and  jeopardize  the 
lives  of  passengers,  it  is  authorized  to  re- 
lieve the  street  railway  company  from  the 
obligations  sought  to  be  imposed  by  the 
ordinance  complained  of.  Such  order  of 
the  commission  will  not  be  reversed  upon 
review  by  this  court  when  it  does  not 
appear  from  a  consideration  of  the  record 
that  it  is  unlawful  or  unreasonable.  Cin- 
cinnati V.  Public  Utilities  Commission 
(Ohio)  1916E-10S1.  (Annotated.) 


DIGEST. 

1916C— 1918B. 

STRICT. 
Defined,  see  Mnnicipal  Ciorporations,  37. 


STRICTISSIMI  JURIS. 

Rule   as   applied    to   surety   for   hire,   see 
Suretyship,  8. 


STRICTLY. 
Defined,  see  Municipal  Corporations,  37. 

STRIKES. 
See  Labor  Combinations,  3. 

STRIKINQ  OUT. 

See  Pleading,  103. 

STUDENT  FIREMAN. 

As  within  Federal  Employers'  Liability 
Act,  see  Master  and  Servant,  63. 

SUBCONTRACTOR. 
Defined,  see  Mechanics'  Liens,  10. 

SUBCONTRACTOR'S  LIEN. 

See  Mechanics'  Liens,  9,  10. 

SUBJACENT  SUPPORT. 

See  Adjoining  Landowners,  1,  9-11;  Ease- 
ments, 8,  19. 

SUBJECT. 
Defined,  see  Trees  and  Timber,  9. 

SUBLETTING. 
See  Landlord  and  Tenant,  21-31. 

SUBMISSION  ON  BILL  AND  ANSWER. 
See  Equity,  26-28. 

SUBORNATION  OF  PERJURY. 
See  Perjury. 

SUBROGATION. 

Of  insurer,  see  Fire  Insurance,  26-29. 

To  rights  of  owner,  see  Fire  Insurance, 
26-29. 

To  rights  of  mortgagee,  see  Fire  Insur- 
ance, 38-40. 

Action  by  insurer  on  rights  by  subroga- 
tion, res  adjudicata,  see  Judgments, 
73. 

As  between  mortgagees,  see  Mortgages  and 
Deeds  of  Trust,  4. 

Subrogation  of  purchaser  at  foreclosure 
sale  to  rights  of  mortgagee,  see  Mort>- 
gages  and  Deeds  of  Trust,  33, 


SUBROGATION. 


783 


Of  redeeming  vendee  to  rights  of  mort- 
gagee, see  Mortgages  and  Deeds  of 
Trust,  36. 

Of  surety  on  payment  of  debt,  see  Surety- 
ship, 24. 

Of  cotenant  to  rights  of  mortgagee,  see 
Tenants  in  Common,  8. 

1.  Subrogation  of  Insurer  to  Bights 
Against  Tortfeasor.  When  insurance  is 
paid  for  damage  to  insured  property 
caused  by  the  wrongful  act  of  another 
than  the  insured,  the  insurer  is  subro- 
gated to  the  right  of  action  of  the  insured 
against  the  wrongdoer.  Powell  &  Powell 
V.  Wake  Water  Co.  (N.  Car.)i  1917A-1302. 

2.  The  right  of  subrogation  arises  not 
out  of  the  contract  between  the  insured 
and  the  insurer,  but  has  its  origin  in  gen- 
eral principles  of  equity.  Powell  &  Powell 
V.  Wake  Water  Co.  (N.  Car.)  1917A-1302. 

3.  Release  of  Tortfeasor  by  Insured — 
Effect  on  Rijht  to  Subrogation.  After  in- 
surance has  been  paid  for  damage  to  In- 
sured property  caused  by  the  wrongful  act 
of  another  than  the  wrongdoer,  a  release 
bv  the  insured  of  the  wrongdoer  knowing 
of  the  payment  of  insurance  cannot  ex- 
tinguish the  right  of  subrogation.  Powell 
&  Powell  V.  Wake  Water  Co.  (N.  Car.) 
1917A-1302.  (Annotated.) 

4.  Bight  of  Insvdrer  to  Sue  in  Own  Name. 
If  the  insurance  paid  equals  or  exceeds 
the  loss,  a  subrogated  insurer  may  sue 
the  wrongdoer  in  his  own  name;  if  it  is 
less  than  the  loss,  in  the  name  of  the  in- 
sured; but,  if  it  is  less  than  the  loss,  and 
the  insured  has  settled  the  difference  be- 
tween the  insurance  and  the  total  loss  with 
the  wrongdoer,  the  insurer  may  sue  in  his 
own  name,  the  insured  having  parted  with 
all  beneficial  interest  in  the  cause  of  ac- 
tion. Powell  &  Powell  v.  Wake  Water  Co. 
(N.  Car.)   1917A-1302. 

5.  Insurance — Actions — Joinder  of  Con- 
current Insurers.  One  sued  by  insurance 
companies  for  having  by  negligence  de- 
stroyed property  of  an  insured  upon  which 
they  have  paid  insurance  may  require  all 
other  insurance  companies  participating  in 
paying  the  loss  to  be  made  parties  to  the 
action,  to  avoid  multiplicity  of  suits. 
Powell  &  Powell  v.  Wake  Water  Co. 
(N.  Car.)  1917A-1302. 

6.  Subrogation  of  Insurer  to  Rights 
Against  Tortfeasor — Effect  of  Settlement. 
The  right  of  subrogation  accruing  to  an 
insurance  company  to  recover  from  a  tort- 
feasor, through  whose  negligence  the  loss 
was  incurred,  the  amount  paid  on  its  policy 
of  insurance,  is  not  barred  by  a  settlement 
between  the  tortfeasor  and  the  owner  for 
a  sum  less  than  the  actual  liability  of  the 
former,  and  for  which  the  latter  gave  a 
full  release,  for  such  a  release  is  a  fraud 
upon  the  subrogee,  which  will  be  no  de- 
fense, either  at  law  or  in  equity,  to  its  ac- 
tion to  recover  the  loss  remaining  unsatis- 


fied after  applying  to  its  satisfaction  the 
sum  paid  by  the  tortfeasor.  Fire  Associ- 
ation V.  Wells  (N.  J.)  1917A-1296. 

(Annotated.) 

7.  Rights  of  Surety — ^Necessity  of  Pay- 
ing Debt  in  Full.  As  a  surety  is  not  en- 
titled to  subrogation  until  the  debt  is  paid 
in  full,  a  surety  on  a  bond  to  secure  a 
city  in  the  deposit  of  moneys  in  an  insol- 
vent banking  institution  is  not  entitled  to 
subrogation,  though  he  has  paid  the  bond, 
where  the  bank  is  still  largely  indebted 
to  the  city,  and  the  total  amount  of  divi- 
dends, together  with  the  amount  of  the 
bond,  will  not  discharge  the  obligation; 
for  in  such  case,  if  the  surety  were  pro 
rata  subrogated  to  the  bank's  right  to  re- 
ceive dividends,  the  city  would  be  injured, 
knafla  V.  Knoxville  JBanking,  etc.  Co. 
(Tenn.)  1917C-1181.  (Annotated.) 

8.  By  Payment  of  Judgment — Owner  of 
Land  Subject  to  lilen.  Where  a  judgment 
debtor  conveyed  part  of  a  tract  of  land 
owned  by  him  to  B  and  subsequently  con- 
veyed the  rest  of  tho  land  to  P,  those 
claiming  under  B  are  entitled  to  pay  the 
debt  and  have  the  judgment  assigned  for 
their  use  ard  benefit,  and  in  such  case,  or 
in  case  they  are  compelled  by  legal  pro- 
cess to  pay  tho  judgment,  they  will  be 
subrogated  to  the  rights  of  the  judgment 
creditor  as  against  the  land  conveyed  to  P, 
since  the  duty  rested  upon  the  judgment- 
debtor  to  pay  off  the  debt  in  exoneration 
of  the  land  sold  to  B,  and  P  took  the 
land  conveyed  to  him  subject  to  the  same 
equity.  Brown  v.  Harding  (N.  ,  Car.) 
1917C-548. 

9.  Purchaser  Pasring  Mortgage — Rights 
Against  Holder  of  Paramount  Title.  Al- 
though it  was  determined  that  the  defend- 
ant took  his  title  with  notice  of  facts 
sufficient  to  put  him  upon  inquiry  leading 
to  knowledge  of  the  fraud  of  one  of  his 
grantors  so  that  he  must  yield  up  posses- 
sion and  lose  what  he  paid  for  the  land, 
still  having  paid  off  certain  mortgages 
placed  thereon  by  the  plaintiff  the  latter 
cannot  oust  him  from  possession  until  she 
has  accounted  to  him  for  the  amount  thus 
paid,  his  right  of  subrogation  being  sim- 
ilar to  that  of  a  mortgagee  in  possession 
and  based  upon  the  same  principles  of 
equity  and  fair  dealing.  New  v.  Smith 
(Kan.)  1917B-362. 

10.  Purchaser  Paying  Prior  Lien.  Where 
a  purchaser  buys  land  and  takes  a  deed 
thereto,  and  subsequently  pays  a  prior  lien 
on  the  property,  he  is  subrogated  to  the 
rights  and  remedies  of  such  prior  lien,  as 
against  a  lien  which  is  superior  to  his  title. 
Peagler  v.  Davis  (Ga.)  1917A-232. 

11.  Extent  of  Bights  Acquired.  A  pur- 
chaser of  land,  entitled  to  a  subrogation 
to  the  rights  and  remedies  of  a  prior  en 
ciimbrancer,  whose  lien  he  discharges,  can- 
not, as  against  an  intervening  lien,  assert 


784 


DIGEST. 


1916C- 
title  on  the  ground  that  the  land  is  not 
worth  more  than  the  lien  he  discharged. 
His  subrogation  .is  limited  to  the  remedies 
of  the  lien  creditor  to  whose  rights  he  be- 
comes subrogated.  Peagler  v.  Davis  (Ga.) 
1917A-232. 

Notes. 

Eight  of  subrogation  of  insurer  as  af- 
fected by  release  by  insured  of  person 
causing  loss.     1917A-1298., 

Eight  of  insurance  company  to  enforce 
subrogation  by  suit  in  its  own  name. 
1918A-834. 

SUBSCRIPTION  FOR  STOCK. 

See  Corporations,  28,  57-73. 

SUBTEBRANHAN  WATERS. 

Appropriation    and    priority,    see    Waters 
and  Watercourses,  12. 

SUCCESSION. 
See  Descent  and  Distribution, 

SUCCESSION  TAXES. 
See  Taxation,  28, 171-179. 

SUinCIENCT  OF  EVIDENCB. 
See  Evidence,  149-164. 


SUFFRAQB. 


Bee  Elections. 


sxnciDE. 


Effect  on  insurance  contract,  see  Benefi- 
cial Associations,  2. 

As  proof  of  insanity,  see  Insanity,  15. 

Effect  on  incontestable  clause,  see  Life  in- 
surance, 26. 

Effect  on  insurance,  see  Life  Insurance,  40. 

While  insane,  see  Life  Insurance,  57-59. 

As  accident  within  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  197. 

SUIT  MONET. 
See  Alimony  and  Suit  Money. 

SUMMARY  PROCEEDINGa 
Bee  Attornesrs,  12,  13. 

SUMMONS. 
Bervice,  see  Process,  3,  7,  8,  12. 

SUNDAYS  AND  HOLIDAYS. 

1.  Validity  of  Contracts  Made  on  Sunday, 

784. 

2.  Validity  of  Gift  Made  on  Sunday    784. 

3.  Judicial  Proceedings,  785. 

4.  Ministerial   Acts,   785. 
6.  Offenses.   785. 


-1918B. 
See  Labor  Laws,  31;  Railroads,  8. 
Exclusion   of   Sunday  in  computing  time,. 

see  Time,  1,  3. 
Sunday  show  in  violation  of  statute,  see 
Unlawful  Assembly,  1. 

1.     VALIDITY  OF  CONTRACTS  MADE 
ON  SUNDAY. 

1.  New  Contract — Evidence  Insufficient. 
Evidence  in  an  action  upon  a  contract  for 
grading  and  construction  work,  executed 
on  Sunday,  held  not  to  show  a  new  con- 
tract thereafter  made  between  the  parties. 
Gist  V.  Johnson-Carey  Co.  (Wis.)  1916E- 
460. 

2.  Ratification  of  Sunday  Contract.  Such, 
contract  is  incapable  of  ratification.  Gist 
V.  Johnson-Carey  Co.  (Wis.)   1916E-460. 

3.  Validity  of  Contract.  A  contract 
made  and  delivered  on  Sunday  is  void. 
Gist  v.  Johnson-Carey  Co.  (Wis.)  1916E- 
460. 

4.  Part  Performance.  Partial  payments 
made  under  a  Sunday  contract  are  not  suffi- 
cient to  import  a  new  contract.  Gist  v. 
Johnson-Carey  Co.  (Wis.)  1916E-460. 

5.  No  Estoppel.  The  terms  of  a  Sunday 
contract  cannot  be  given  life  upon  the 
principles  of  estoppel.  Gist  v.  Johnson- 
Carey  Co.  (Wis.)  1916E-i60.   (Annotated.) 

6.  Under  a  subcontract  for  grading  and 
construction  work,  void  because  made  and 
delivered  on  Sunday,  and  in  place  of  which 
no  new  contract  was  made,  plaintiffs,  by 
execution  of  the  work  and  by  accepting 
and  giving  receipts  for  payments  made  on 
the  basis  of  estimates  by  the  defendant's 
engineers,  are  not  estopped  to  dispute  the 
correctness  of  the  estimates,  where  defend- 
ant knew  that  the  payments  were  not  re- 
ceived as  settlements  but  were  subject  to 
final  adjustment,  and  had  full  knowledge 
of  plaintiff's  claim  before  it  settled  with 
the  general  contractor,  so  that  it  could  not 
have  been  misled  or  prejudiced.  Gist  v. 
Johnson-Carey  Co.  (Wis.)  1916E-460. 

(Annotated.) 

Note. 

Principle  of  estoppel  as  applicable  to 
rights  of  parties  under  void  Sunday  con- 
tract.    1916E-467. 


2.     VALIDITY     OF     GIFT     MADE     ON 

SUNDAY. 

7.  A  gift  complete  in  itself  is  not  vio- 
lative of  Mass.  Rev.  Laws,  c.  98,  requiring 
observance  of  the  Lord's  day,  though  it 
was  made  on  the  Lord's  day,  where  it 
contained  no  element  of  labor,  business,  or 
work,  was  not  an  act  of  contract,  and 
gave  rise  to  no  contractual  obligation. 
Herries  v.  Bell  (Mass.)   1917A-423. 

(Annotated.) 


SUNSTROKE  CLAUSE— SURETYSHIP. 


785 


•      Note. 
Validity     of     gift     made     on     Sunday. 
1917A-424. 

3.     JUDICIAL  PEOCEEDINGS. 

8.  Entry  of  Judgment  on  Holiday.     Mo. 

Eev.  St.  1909,  §  1785,  provides  that  no  per- 
son on  Sunday  or  any  other  day  established 
a  public  holiday  shall  serve  any  writ,  pro- 
cess, or  other  judgment,  except  in  criminal 
cases,  etc.  Section  3880  declares  that  no 
court  shall  sit  on  Sunday,  unless  to  receive 
a  verdict  or  discharge  a  jury.  Held  that, 
while  a  judgment  rendered  on  Sunday  is 
void,  yet,  as  the  statute  prohibiting  the 
holding  of  court  on  Sunday  does  not  by  its 
terms  include  other  holidays,  a  judgment 
of  conviction  entered  on  a  legal  holiday 
other  than  Sunday  is  valid.  State  v. 
Gould  (Mo.)  1916E-855.  (Annotated.) 

Note. 
Validity  of  official  or  judicial  act  per- 
formed on  holiday.     1916E-847. 

4.     MINISTERIAL  ACTS. 

9.  Publication  of  Ordinance.  The  publi- 
cation of  an  ordinance  of  the  city  of  St. 
Paul,  Minn.,  under  the  1900  Home  Rule 
Charter  may  lawfully  be  made  on  Memorial 
Day.  St.  Paul  v.  Robinson  (Minn.) 
1916E-845.  (Annotated.) 

5.     OFFENSES. 

10.  The  evidence  is  sufficient  to  estab- 
lish all  the  elements  necessary  to  consti- 
tute an  offense  under  the  ordinance.  St. 
Paul  V.  Robinson  (Minn.)  1916E-845. 

Note, 
Engaging    in    labor    or    amusement    on 
Sunday  as  offense  at  common  law  or  un- 
der    statute     other     than     Sunday     law. 
1918B-387. 


SUNSTROKE  CLAUSE. 

Construction  in  accident  policy,  see  Acci- 
dent Insurance,  17. 


SUPERINTENDENCE. 
Meaning,  see  Master  and  Servant,  28. 

SUPERSEDEAS. 
See  Appeal  and  Error,  481-484. 

SUPERSTITION. 

As    affecting    testamentary    capacity,    see 
Wills,  58. 

SUPREME  LAW. 
Treaty  as,  see  Treaties,  5. 
50 


SURETY  COMPANY. 
See  Suretyship. 

SURETYSHIP. 

1.  Liability  of  Surety,  785. 

a.  Signing  of  Contract,  785. 

b.  Delivery  of  Contract,  786. 

c.  Validity  of  Contract,  786. 

d.  Construction  of  Contract,  786. 

e.  Nature  of  Liability,  787. 

f.  Discharge  of  Surety,  787. 

(1)  Notice  by  Creditor  of  Breach, 

787. 

(2)  Diversion     of     Security     by 

Creditor,  787. 

(3)  Extension  of  Time,   787. 

g.  Actions.  787. 

2.  Rights  of  Surety  Against  Creditor,  788. 

3.  Co-suretyship,  788. 

Evidence,  statements  inter  se,  see  Admis- 
sions and  Declarations,  13. 

Release  of  sureties  on  appeal  bond,  see  Ap- 
peal and  Error,  483. 

Notice  to  produce  principal,  se-  Bail,  2,  3. 

Discharge  of  surety,  see  Conflict  of 
Laws,  9. 

Parol  evidence  to  vary  contract,  see  Evi- 
dence, 119,  123. 

Necessity  for  written  contract,  see  Frauds, 
Statute  of,  13. 

Wife  as  surety  for  husband,  see  Husband 
and  Wife,  4-11. 

1.     LIABILITY  OF  SURETY, 
a.     Signing  of  Contract. 

1.  Failure  of  Principal  to  Sigm  Bond — 
Effect  on  Liability  of  Surety.  Iowa  Code, 
§  4552,  declares  that  an  appeal  from  jus- 
tice court  is  not  perfected  until  the  ap- 
pellant gives  a  bond  in  the  form  prescribed 
by  statute  or  its  equivalent.  The  form  of 
the  bond  as  prescribed  by  statute  provides 
for  the  signature  of  the  appellant,  but  does 
not  specifically  require  it.  It  is  held  that 
in  view  of  the  fact  that  the  appellant 
would  be  bound  regardless  of  whether  he 
signed  the  bond  or  not,  and  as  the  sure- 
ties are  jointly  and  severally  liable,  a  bond 
signed  by  them  alone  is  sufficient.  Brown 
V.  Mellon  (Iowa)  1917C-1070. 

(Annotated.) 

2.  Waiver  of  Failure  of  Principal  to  Ex- 
ecute. A  surety  assenting  to  the  delivery 
of  a  surety  bond,  which  shows  on  its  face 
a  failure  to  execute  by  the  principal,  may 
be  bound  by  the  incomplete  instrument; 
and  hence  a  complaint  alleging  that  the 
bond  sued  on  was  executed  by  the  surety  is 
not  insufficient,  though  the  bond  filed 
therewith  as  an  exhibit  was  not  signed  by 
the  principal,  and  though  it  contained  a 
provision  that  it  should  not  be  construed 
as  entered  into  or  delivered  by  the  surety 
until  executed  in  due  form  by  the  princi- 
pal, since  the  allegation  that  the  bond  as 
executed    necessarily    implied    a    waiver 


786  DIGEST. 

1916C— 1918B. 

of  such  condition  precedent.  American 
Surety  Co.  v.  Pangburn  (Ind.)  1916E-1126. 

,  3.  That  a  surety  bond,  signed  by  the 
surety  alone  and  not  by  the  principal,  was 
joint  in  form  does  not  prevent  a  recovery 
thereon,  where  it  was  delivered  to  the 
obligee  by  the  surety  with  intent  to  be 
thereby  bound.  American  Surety  Co.  v. 
Pangburn  (Ind.)  1916E-1126. 

4.  Where  a  surety  company  executed  a 
bond  indemnifying  a  county  treasurer 
against  loss  by  reason  of  the  acts  of  a 
deputy  treasurer  and  mailed  it  to  the  treas- 
urer, without  it  having  been  signed  by  the 
deputy,  thereafter  renewed  it  for  an  addi- 
tional term  in  consideration  of  a  further 
premium,  and  subsequently,  upon  applica- 
tion of  the  deputy,  made  a  new  bond  which 
•  it  authorized  a  third  person  to  deliver  to 
the  treasurer  without  it  having  been  signed 
by  the  deputy,  and  retained  the  premiums 
received  for  each  bond,  the  facts  warrant 
a  finding  that  it  delivered  the  second  bond 
to  the  treasurer,  with  intention  to  be 
thereby  bound,  and  it  is  liable  thereon, 
notwithstanding  a  provision  in  both  bonds 
that  they  should  not  be  construed  as  en- 
tered into  or  delivered  by  the  surety  until 
executed  in  due  form  by  the  principal. 
American  Surety  Co.  v.  Pangburn  (Ind.) 
1916E-1126. 


5.  Failure  of  Principal  to  Sign  Bond — 
Waiver.  In  an  action  on  a  surety  bond, 
not  signed  by  the  principal,  and  containing 
a  provision  that  it  should  not  be  construed 
as  entered  into  or  delivered  by  the  surety 
until  executed  in  due  form  by  the  prin- 
cipal, where  the  surety  answered  by  a  veri- 
fied plea  of  non  est  factum,  the  burden  is 
on  plaintiff  to  prove  that  the  bond  was' 
signed  and  delivered  by  the  surety  in  its 
incomplete  condition,  with  the  purpose  on 
the  part  of  the  surety  of  being  bound 
thereby.  American  Surety  Co.  v.  Pang- 
burn (Ind.)  1916E-1126. 

Note. 
Failure  of   principal  to  sign  obligation 
as    affecting   liability    of    surety.     1917C- 
1073. 

b.     Delivery  of  Contract. 

6.  In  an  action  on  a  surety  bond  given 
by  the  surety  to  a  third  person,  without  it 
having  been  signed  by  the  principal,  with 
instructions  to  deliver  it  to  the  obligee,  the 
court  properly  charged  that,  in  determin- 
ing whether  the  bond  was  delivered,  the 
jury  may  consider,  as  tending  to  show  the 
surety's  intention  at  the  time  of  giving  pos- 
session of  the  bond  to  the  third  person, 
evidence  tending  to  show  that  it  delivered 
to  the  obligee  a  similar  bond  covering  a 
previous  period  unexecuted  by  the  princi- 
pal. American  Surety  Co.  v.  Pangburn 
(Ind.)  1916E-1126. 


e.     Validity  of  Contract. 

7.  Waiver  of  Defense  by  Surety — Claim 
Against  Principal's  Estate.  Where  a  wife 
executed  a  note  to  plaintiff  as  surety  for 
her  husband,  and  after  executing  several 
renewals  her  husband  died,  when  she  paid 
a  part  of  the  note  to  the  bank  and  executed 
the  note  sued  on  for  the  balance,  the  fact 
that  she  proved  the  last  renewal  as  a  claim 
against  her  husband's  estate  does  not  affect 
her  right  to  defend  her  liability  on  the 
note  for  the  balance  of  the  debt  to  the 
bank  on  the  ground  that  it  was  void  be- 
cause she  was  incapable  of  becoming  surety 
for  her  husband.  First  National  Bank  v. 
Bertoli  (Vt.)  1917B-590. 


d.     Construction  of  Contract. 

8.  Suretyship  for  Hire.  A  surety  for 
hire  cannot  invoke  the  rule  of  strictissimi 
juris,  and  its  rights  are  measured  by  the 
law  applicable  to  insurance  contracts. 
American  Surety  Co.  v.  Pangburn  (Ind.) 
1916E-1126.  (Annotated.) 

9.  Fidelity  Bond  —  Construction  —  Bond 
Designating  Corporate  Officers  as  Obligees. 
A  bond  executed  by  a  bank  cashier,  re- 
citing his  previous  election  as  such,  and 
stating  the  condition  to  be  that  he  "shall 
w^ell  and  faithfully  apply  and  account  for 
all  moneys  which  may  come  into  his  hands 
as  such  cashier,"  is,  when  properly  con- 
strued, an  indemnity  to  the  bank  against 
loss  by  his  default,  although  its  officers  are 
therein  named  as  obligees,  as  president  and 
as  directors  of  the  bank  in  its  corporate 
name.  Clark  v.  Nickell  (W.  Va.)  1917A- 
1286. 

10.  Agreement  by  Grantee  to  Pay  Grant- 
or's Debt.  When  a  grantee  contracts  with 
his  grantor  to  pay  the  latter's  debt  or 
obligation  in  payment,  or  in  part  payment, 
for  the  conveyance,  the  creditor  may  ac- 
cept and  appropriate  that  contract  to  him- 
self, and  maintain  a  suit  in  equity  upon 
it.  In  equity,  the  grantee  then  becomes 
the  principal  debtor,  the  grantor  the 
surety,  and  the  creditor  is  substituted  for 
the  promisee  or  grantor. 

It  is  immaterial  in  equity  whether  or  not 
the  contract  was  made  or  intended  for  the 
benefit  of  the  creditor.  Silver  King  Coal- 
ition Mines  Co.  v.  Silver  King  Consol.  Min. 
Co.  (Fed.)  1918B-571. 

11.  Liability  Independent  or  Secondary 
— Test.  Whether  a  transaction  between 
a  married  woman  and  her  husband's  cred- 
itor is  one  of  suretyship  or  independent 
may  depend  on  whether  she  received  in 
person  or  for  the  benefit  of  her  estate  the 
consideration  on  which  the  contract  de- 
pended; the  question  being  determined,  not 
from  the  form  of  the  contract  nor  from 
its  basis,  but  from  its  real  purpose  and 
effect.  First  National  Bank  v.  Bertoli 
(Vt.)  1917B-590. 


SURETYSHIP. 


787 


12.  Construction  In  Favor  of  Obligee. 
Words  of  doubtful  meaning  in  the  lan- 
guage of  a  surety  bond  prescribing  a  lim- 
itation of  action  thereon  must  be  con- 
strued in  favor  of  the  beneficiary. 
Comey  v.  United  Surety  Co.  (N.  Y.) 
1917E-424. 

13.  Agreement  to  Besort  First  to 
Surety — Evidence  SuflBcient.  Evidence 
held  to  sustain  a  finding  that  the  wife 
of  a  purchaser  of  mortgaged  land  mort- 
gaged her  separate  property  to  the  mort- 
gagee for  the  amount  of  the  encumbrance, 
on  the  agreement  that  the  mortgagee  in 
case  of  default  should  first  resort  to  her 
property  before  resorting  to  the  property 
purchased  by  her  husband,  who  executed 
notes  to  the  vendor  for  the  price.  Hite 
V.  Eeynolds   (Ky.)   1917B-619. 

e.     Nature  of  Liability. 

14.  Compensated  Surety.  In  a  suit  by 
a  materialman  against  a  compensated 
surety  company,  on  a  statutory  bond,  un- 
der a  building  contract,  the  company  can- 
not invoke  the  law  concerning  voluntary 
sureties,  and  ask  that  the  rule  strictissimi 
juris  be  applied,  where  it  is  shown  that 
the  owner  and  contractor  have  dispensed 
with  one  of  the  provisions  of  the  contract, 
and  agreed  verbally,  instead  of  in  writ- 
ing, to  alter  and  add  to  the  building  con- 
tract. Victoria  Lumber  Co.  t.  Wells 
(La.)    1917E-1083.  (Annotated.) 


(1) 


f.     Discharge  of  Surety. 
Notice  by  Creditor  of  Breach. 


15.  Notice  by  Surety  to  Sue— Suffi- 
ciency. Kirby's  Ark.  Dig.  §  7921,  de- 
clares that  a  surety  may,  by  written  no- 
tice, require  the  creditor  to  sue  the  prin- 
cipal debtor,  and  that  if  he  fail  to  do 
so  within  30  days  after  notice,  the  surety 
shall  be  exonerated.  A  surety  upon  a 
note  verbally  requested  the  creditor  to 
sue  before  the  maker  became  insolvent, 
but  the  creditor  failed  to  sue,  and  the 
maker  became  insolvent.  Held,  that  the 
surety  was  not  discharged  by  the  credi- 
tor's failure  to  comply  with  his  verbal  re- 
quest. Sims  V.  Everett  (Ark.)  1916C- 
629.  (Annotated.) 

Note. 
Sufficiency  as  to  form  of  notice  to  credi- 
tor to  sue  principal  in  order  to  discharge 
surety.     1916C-632. 

(2)     Diversion    of    Security   by    Creditor. 

16.  Diversion     of     Note     or     Proceeds. 

Where  defendant's  testator  became  surety 
with  M.  on  notes  of  a  new  corporation 
organized  by  M.,  under  an  agreement 
with  the  payee  bank  that  the  proceeds 
of  one  of  the  notes  was  to  be  used  in  pay- 


ing a  specified  indebtedness  of  an  insol- 
vent corporation,  and  the  other  was  to  be 
used  to  furnish  capital  for  the  operation 
of  the  new  corporation,  and  about  one- 
half  of  the  proceeds  of  the  second  note 
were  diverted  without  the  consent  of  the 
surety  by  the  bank  or  with  its  knowl- 
edge to  the  payment  of  other  debts  of  the 
insolvent  corporation  to  the  bank,  so  that 
the  new  corporation  soon  failed  for  want 
of  capital,  the  surety  is  thereby  dis- 
charged from  liability  on  that  note.  Her- 
mitage National  Bank  v.  Carpenter 
(Tenn.)    1916D-730.  (Annotated.) 

17.  The  fact  that  some  of  the  proceeds 
of  the  note  were  not  charged  off  by  the 
bank  against  the  indebtedness  of  the  in- 
solvent corporation,  but  checks  were 
drawn  against  them  by  M.,  as  president 
of  the  new  corporation,  to  pay  the  in- 
debtedness of  the  old,  does  not  entitle 
the  bank  to  hold  the  surety.  Hermitage 
National  Bank  v.  Carpenter  (Tenn.) 
1916D-730.  (Annotated.) 

18.  One  who  became  surety  on  a  note 
to  raise  capital  for  a  new  corporation  is 
not  released  from  liability  for  so  much 
of  the  proceeds  of  the  note  as  were  di- 
verted to  the  payment  of  the  debts  of  an- 
other corporation  with  the  consent  of  the 
surety.  Hermitage  National  Bank  v. 
Carpenter  (Tenn.)   1916D-730. 

(Annotated.) 
Note. 
Diversion   of  note   or   proceeds   as   dis- 
charging surety  thereon.     1916D-733. 

(3)     Extension  of  Time. 

19.  Conveyance  by  Wife  as  Security  for 
Husband — Effect  of  Extension  of  Time  of 
Payment.  Where  a  husband  and  wife 
execute  a  deed  upon  property  owned  by 
her  and  she  intrusts  it  to  her  husband  to 
be  delivered  as  security  for  a  note  ex- 
ecuted by  him  to  the  grantee,  and  the 
husband  without  her  knowledge  delivers 
it  under  an  arrangement  made  by  him 
with  the  grantee  that  the  note  is  to  be 
renewed  from  time  to  time,  extensions  of 
the  time  of  payment  of  the  debt,  made 
in  pursuance  of  such  arrangement,  but 
without  the  knowledge  of  the  wife,  do  not 
effect  the  release  of  her  property.  Moody 
v.   Stubbs    (Kan.)    1917C-362. 


S- 


Actions. 


20.  Complaint  Sufficient.  It  i»  held 
that  the  complaint  herein  states  a  cause 
of  action.  State  v.  American  Surety  Co. 
(Idaho)   1916E-209. 

21.  Joinder    of   Defendants.      Under    a 

joint  and  several  bond  executed  pursuant 
to  section  191  Idaho  Eev.  Codes,  it  is  not 
necessary  to  sue  jointly  the  principal  and 
surety,     but     suit     may     be     maintained 


788 


against  either  severally.     State  v.  Amer- 
ican Surety  Co.  (Idaho)   1916E-209. 

22.  Parties  Defendant.  A  suit  in 
equity,  by  the  bank,  to  enforce  the  obli- 
gation of  a  cashier's  bond,  should  be 
brought  jointly  against  the  surviving  and 
the  personal  representatives  of  the  de- 
ceased obligors.  Clark  v.  Nickell  (W. 
Va.)    1917A-1286. 

23.  Consideration  for  Suretyship  Con- 
tract by  Wife — Evidence  Inadmissible.  A 
married  woman  having  executed  a  note 
to  a  bank  as  surety  for  her  husband  who 
had  executed  a  mortgage  to  the  bank  cov- 
ering their  homestead,  the  title  to  which 
was  then  in  him,  the  fact  that  pending 
her  indebtedness  to  the  bank  he  conveyed 
the  title  of  the  homestead  to  her  without 
consideration  does  not  authorize  the  in- 
troduction of  the  mortgage  in  a  suit 
against  her  by  the  bank,  on  the  theory 
that  the  mortgage  tended  to  show  con- 
sideration for  her  note.  First  National 
Bank  v.  Bertoli   (Vt.)   1917B-590. 

2.     EIGHTS     OP     SUEETY     AGAINST 
CEEDITOE. 

24.  Though  a  bond  to  secure  a  city  in 
a  deposit  of  money  in  a  bank  declared 
that  in  case  of  default  and  payment  of 
the  claim  the  surety  should  be  subro- 
gated to  all  rights  of  the  city  against  the 
bank  to  the  amount  of  such  payment,  the 
surety  only  has  the  usual  rights  of  sub- 
rogation, and  his  payment,  together  with 
dividends  paid  by  the  bank,  not  being 
suflBcient  to  discharge  the  obligations  due 
from  the  bank,  he  is  not  entitled  to  sub- 
rogation to  the  detriment  of  the  city. 
Knaffl  V.  KnoxviUe  Banking,  etc.  Co. 
(Tenn.)  1917C-1181.  (Annotated.) 

Note. 
Payment   of   whole    debt   by   surety   as 
essential  to  right  of  subrogation  to  credi- 
tor's  securities.     1917C-1183. 

3.     CO-SUEETYSHIP. 

25.  Effect  of  Belease  of  Cosurety.  By 
the  law  of  Minnesota  the  release  of  a 
surety  by  the  creditor  does  not  discharge 
a  cosurety.  Scandinavian  Amer.  Nat. 
Bank  v.  Kneeland   (Man.)    1917B-1177. 

(Annotated.) 

Note. 

Effect  on  liability  of  surety  of  release 
of   cosurety.     1917B-1183. 

SUItFACE  WATEES. 

Eight  of  landowner  to  divert,  see  Waters 
and  Watercourses,  34. 

SXTEQEONS. 
See  Physicians  and  Surgeons. 


DIGEST. 
1916C— 1918B. 

SUEGICAL  OPEEATION. 

Consent   of    patient,    see    Physicians    and 

Surgeons,  17,  30-32. 
Failure  to  test  blood,  see  Physicians  and 

Surgeons,  22. 
Leaving  sponge  in  wound,  see  Physicians 

and  Surgeons,  37,  38. 


SURVEY   NOTES. 
As  evidence,  see  Evidence,  98,  99. 

SUEVIVOESHIP. 

Joint  bank  deposits,  see  Banks  and  Bank- 
ing, 29-37. 

Of  joint  tenant,  see  Joint  Tenants,  1,  2,  4; 
Suspension. 

Membership  of  fraternal  order,  see  Bene- 
ficial Associations,  24,  25. 

SWINDLING. 
See  False  Pretenses. 

SWINGING   DOOS. 
Injury  by,  see  Negligence,  19,  32. 

SYMPATHY. 

Appeal  to  jury's  sympathy,  see  Argument 
and  Conduct  of  Counsel.  23,  24. 

SYEXJP. 
Eegulating  sale  of,  see  Food,   13. 

TACKING  POSSESSION. 
See  Adverse  Possession,  14,  15. 

TAXABLE  PEOPEETT. 
See  Taxation,  13. 

TAXATION. 

1.  Power  of  Taxation,   789. 

a.  Nature   and  Extent,  789. 

b.  Delegation  of  Power,   790. 

c.  Equality  and  Uniformity,  790. 

d.  Due  Process  of  Law,  790. 

e.  Systems  of  State   Taxation,  790. 

f.  Property  Outside  Jurisdiction,  790, 

g.  Taxation    of    Particular   Subjects, 

790. 

(1)  Stock    of    Foreign    Corpora- 

tions, 790. 

(2)  Turpentine  Lease,  791. 

(3)  Credits,  791. 

(4)  Intangible  Property,  791. 

(5)  State  Lands  Under  Contract 

of  Purchase,  791. 

(6)  Probate     or     Administration 

Tax,   792. 

(7)  Contracts,  792. 

(8)  Corporate  Stock.  792. 

2.  Construction  of  Stat'ites,    792. 

3.  Place  of  Taxation,  793. 


TAXATION. 


789 


4.  Assessment  and  Valuation,  794. 

a.  Ownership  of  Property,  794. 

b.  Valuation  of  Property,  794. 

(1)  In  General,  794. 

(2)  Valuation  of  Particular  Sub* 

jects,  794. 

c.  Review  of  Assessment,  796. 
6.  Exemptions,  796. 

a.  Property  Constitutionally  Exempt, 

796. 

b.  Validity  of  Statutes,   797. 

C.  Construction  of  Statutes,  797. 

(1)  In  General,  797, 

(2)  Property   Used    for    Educa- 

tional,   Charitable    or    Eo- 
ligious  Purposes,  797. 

(3)  Corporate  Stock,  79S'. 

6.  Penalty   for    Non-payment    of    Taxes, 

799. 

7.  Lien  for  Taxes,  799. 

a.  In  General,  799. 

b.  Foreclosure,  799. 

8.  Eemedy    for    Erroneous    Taxation    or 

Assessment,   799. 

a.  Injunction,  799. 

b.  Recovery  Back  of  Taxes  Paid,  801. 

c.  Annulment    of    Refunding    Order, 

801. 

d.  Mandamus  to  Compel  Refund,  802. 

e.  Refund  by  County  Treasurer,  802. 

f.  Estoppel  of  Taxpayer,  802. 

9.  Tax  Sales  and  Deeds,  802. 

a.  Time  for  Redemption  and  Notice 

of  Expiration  of  Time,  802. 

b.  Merger  of  Tax  Title  in  Subsequent 

Deed,  802. 

10.  Special  Assessments,  802. 

a.  Nature    and    Exercise    of    Power, 

802. 

b.  Nature  of  Improvement,  802. 

c.  Property     Subject     and     Exemp- 

tions, 803. 

d.  Superiority   of  Lien,  803. 

e.  Contract     for     Making     Improve- 

ment, 803. 

f.  Protests  and  Objections,  803. 

g.  Waiver  of  Objections,  804. 
h.  Mode  of  Assessment,  804. 
1.  Notice  of   Owner,  804. 

j.  Proceedings,  804. 
k.  Discontinuance     of     Proceedings, 

805. 
1.  Enforcement    of   Assessment,    805. 
tn.  Review  of  Proceedings,  805. 
n.  Action  to  Enjoin  or  Set  Aside,  805. 

11.  License  or  Occupation  Taxes,  805. 

12.  Excise  or  Franchise  Taxes,  805. 

a.  Nature,  805. 

b.  Validity,   806. 

(1)  Federal      Corporation      Tax 

Act,   806. 

(2)  Foreign      Corporation      Tax 

Act,   806. 
«.  Construction  of  Statutes,  806. 

d.  Assessment   and  Valuation,  807. 

e.  Recovery  Back  of  Tax,  808. 

13.  Succession   taxes,  808. 

a.  Nature.    80«. 

b.  Validity  of  Statutes,  808. 


e.  Property  Subject  to  Tax,  809. 

(1)  In  General,  809. 

(2)  Situs  of  Property,  809. 

(3)  Estates     of     Non-residents, 

809. 

(4)  Estate    of    Surviving   Joint 

Tenant,  809. 

14.  Income  Tax,  810. 

a.  Validity,    810. 

(1)  In  General,  810. 

(2)  Federal    Income    Tax    Act, 

810. 

b.  Construction  of  Statutes,  811. 

15.  Poll  Taxes,  812. 

16.  Taxpayers'  Actions,  812. 
Inheritance  tax  on  aliens,  see  Aliens,  4. 
Taxpayer's    action    attacking    Farm    Loan 

Act,  see  Agriculture,  5,  10. 

Tax  on  privilege  of  driving,  see  Automo- 
biles, 9-12. 

Provision  as  to  payment  of  taxes,  effect 
on  negotiability,  see  Bills  and  Notes, 
24. 

Inheritance  tax,  class  legislation,  see  Con- 
stitutional Law,  70. 

School  taxes,  self -executing  provision,  see 
Constitutional  Law,  93. 

Taxpayer's  suit  attacking  bond  issue,  see 
Constitutional  Law,  118. 

Local  assessments,  see  Drains  and  Sewers, 
2-7. 

Poll  tax,  qualification  of  voters,  see  Elec- 
tions, 11. 

Matters  concluded  by  suit  to  foreclose  tax 
lien,  see  Judgments,  75. 

License  taxes,  see  Licenses. 

Liability  to  life  tenant  for  taxes  and  im- 
provements, see  Life  Estates,  2,  3. 

Duty  of  life  tenant  to  pay  taxes,  see  Life 
Estates,  3. 

Personal  liability  for  void  sale,  see  Public 
Officers,  65. 

Remainderman's  right  to  buy  tax  title, 
see  Remainders  and  Reversions,  19,  20. 

Taxpayer's  suit  to  restrain  expenditures, 
see  States,  7. 

1.    POWER  OF  TAXATION. 
a.     Nature  and  Extent. 

1.  Limits  on  Taxing  Power — Public  Pur- 
chase. In  addition  to  the  limitations  on 
the  legislature  of  a  state  contained  in  the 
federal  and  state  constitutions,  the  legis- 
lature is  further  subject  in  the  passage  of 
legislation  to  the  limitations  which  inhere 
in  the  nature  of  our  form  of  government, 
such  as  that  the  power  of  taxation  can 
be  validly  exercised  only  for  a  public  pur- 
pose, etc.  Union  Ice,  etc.  Co.  v.  Ruston 
(La.)    1916C-1274. 

2.  Purpose  of  Tax  —  What  Constitutes 
Public  Service.  The  term  "public  ser- 
vice," within  the  rule  that  taxes  can  be 
laid  only  for  public  purposes,  is  not  ful- 
filled by  an  activity  whereby  the  private 
interests  of  many  individuals  are  fulfilled; 
the  test  in  general  being  whether  the  ob- 
jects   or    purposes    have    been    considered 


790 


DIGEST. 

1916C— 1918B. 


necessary  to  the  support  and  for  tlie  proper 
use  of  the  government,  whether  state  or 
municipal.  Union  Ice,  etc,  Co.  v.  Buston 
(La.)   1916C-1274. 

3.  Scope  of  Taxing  Power.  Although 
EO  state  can  give  extraterritorial  effect  to 
its  laws  exempting  the  property  of  its  s'lb- 

i'ects  from  taxation,  except  as  restrained 
ly  federal  or  state  constitutional  provis- 
ions, its  power  as  to  the  mode,  form,  and 
extent  of  taxation  is  unlimited,  where  the 
subjects  to  which  it  applies  are  within  its 
jurisdiction.  Bellows  Falls  Power  €o.  v. 
Commonwealth   (Mass.)   19160-834. 

4.  Nature  of  Taxing  Power.  The  power 
to  tax  is  an  attribute  of  sovereignty  so 
vital  to  the  existence  of  the  state  that  it 
may  be  exercised  without  restriction,  un- 
less expressly  prohibited.  Moose  v.  Board 
of  Commissioners  (N.  Car.)  1917E-1183. 

b.     Delegation    of   Power. 

5.  Scope  of  Taxing  Power.  In  matters 
of  taxation  the  legislature  possesses  plen- 
ary power,  except  as  such  power  may  be 
limited  or  restricted  by  the  constitution. 
It  is  not  necessary  that  the  constitution 
contain  a  grant  of  power  to  the  legisla- 
ture to  deal  with  the  question  of  taxa- 
tion. Matter  of  Kessler  (Idaho)  1917A- 
228. 

c.     Equality   and  Uniformity. 

6.  The  taxation  of  an  ore  and  merchan- 
dise dock,  which  are  a  necessary  part  of 
the  terminal  facilities  of  a  railroad  by 
local  authorities,  at  a  higher  rate  than 
the  balance  of  the  railroad's  pTqperty  un- 
der the  ad  valorem  law,  is  a  violation  of 
the  constitutional  rule  of  uniformity. 
Minneapolis,  etc.  R.  Co.  v.  Douglas  Coun- 
ty  (Wis.)    1916E-1199.  (Annotated.) 

7.  Uniformity  of  Tax — Limitations  on 
Federal  Power.  A  geographical  uniform- 
ity alone  is  what  is  exacted  by  the  pro- 
visions of  U.  S.  Const,  a/t.  1,  §  8  (8  Fed. 
St.  Ann.  347)  that  "all  duties,  imposts,  and 
excises  shall  be  uniform  throughout  the 
United  States."  Brushaber  v.  Union  Pa- 
cific R.  Co.  (U.  S.)   1917B-713. 

8.  Limitations  on  Classification.  The 
constitutional  limitation  requiring  prop- 
erty to  be  assessed  in  proportion  to  value, 
etc.,  is  designed  to  secure  uniformity  and 
equality  of  enforcement  of  the  ad  valorem 
system  of  taxation,  and  to  prohibit  arbi- 
trary and  capricious  modes  of  taxation 
without  reference  to  value,  but  does  not 
require  that  all  property  be  taxed,  nor 
prohibit  exemptions  from  taxation  or  such 
classifications  of  property  as  are  not  purely 
arbitrary,  capricious,  or  without  semblance 
of  reason.  State  v.  Alabama  Fuel,  et;'.  Co. 
(Ala.)   1916E-752.  (Annotated.) 

9.  Discrimination  as  to  Proportion  of 
Actnal  Value  Assessed.  A  departure  from 
the  requirement  pf  Ky.  Const.  §§  171.  174, 
of  uniform  taxation  in  proportion  to 
value,    and    of    an   identical    rate    as    be- 


tween corporate  and  individual  property, 
is  not  permitted  as  to  railway  companies 
by  the  provision  of  §  182,  that  the  gen- 
eral assembly  shall  provide  by  law  "how 
railroads  and  railroad  property  shall  be 
assessed  and  how  taxes  thereon  shall  be 
collected,"  but  the  latter  provision  relates 
merely  to  the  mode  of  assessment  and  col- 
lection. Greene  v.  Louisville,  etc.  R.  Co. 
(U.   S.)    1917E-88.  (Annotated.) 

d.    Due  Process  of  Law. 

10.  The  due  process  of  law  clause  of 
U.  S.  Const.  5th  Amend.  (9  Fed.  St.  Ann. 
288),  is  not  a  limitation  upon  the  taxing 
power  conferred  upon  Congress  by  the 
federal  constitution  unless,  under  a  seem- 
ing exercise  of  the  taxing  power,  the  tax- 
ing statute  is  so  arbitrary  as  to  compel 
the  conclusion  that  it  was  not  the  exertion 
of  taxation,  but  the  confiseatiou  of  prop- 
erty, or  is  so  wanting  in  basis  for  classi- 
fication as  to  produce  such  a  gross  and 
patent  inequality  as  inevitably  to  lead 
to  the  same  conclusion.  Brushaber  v. 
Union  Pacific  E.  Co.  (U.  S.)  1917B-713. 

e.     Systems    of   State    Taxation. 

11.  A  classification  of  property  for  taxa- 
tion will  not  be  set  aside  by  the  courts  un- 
less it  is  not  only  oppressive  in  its  opera- 
tion but  its  inequality  is  so  glaring  that 
it  can  be  judicially  declared  to  be  founded 
on  arbitrary  and  capricious  principles, 
without  semblance  of  reason.  State  v. 
Alabama  Fuel,  etc.  Co.  (Ala.)    1916E-7o2. 

(Annotated.) 

f.     Property    Outside    Jurisdiction. 

12.  Extraterritorial  Effect  of  Laws.    N© 

state  taxation  laws  can  have  extrater- 
ritorial effect,  since  each  state,  except  as 
to  the  United  States,  is  an  independent 
sovereignty,  so  far  as  relates  to  the  power 
of  taxation.  Bellows  Falls  Power  Co.  v. 
Commonwealth  (Mass.)   19160-834. 

13.  Property  Subject.  All  property 
within  the  jurisdiction  of  a  state,  which  is 
capable  of  being  taxed,  may  be  subjected 
to  taxation,  unless  exempted  under  fed- 
eral or  state  law;  but  no  state  can  assess 
to  its  residents  a  tax  upon  their  realty 
or  tangible  personalty  in  a  foreign  juris- 
diction. Bellows  Falls  Power  Co.  v.  Com" 
monwealth  (Mass.)  1916C-834. 

g.     Taxation    of    Particular   Subjects. 
(1)     Stock    of    Foreign    Cor])oration8. 

14.  Shares  of  stock  in  a  foreign  corpora- 
tion are  taxable  as  property  to  the  owner, 
where  he  is  resident  within  the  common- 
wealth, although  the  place  of  business  and 
the  whole  property  of  the  corporation  are 
in  another  jurisdiction.  Bellows  Falls 
Power  Co.  v.  Commonwealth  (Mass.) 
1916C-834.  (Annotated.) 


TAXATION. 


791 


15.  The  taxation  of  a  resident  of  the 
Btate,  under  the  authority  of  Mass.  Rev. 
Laws,  c.  12,  §§  2,  4,  23,  upon  shares  of 
stock  held  by  him  in  foreign  corporations 
which  do  no  business  and  have  no  prop- 
erty within  the  state,  does  not  take  his 
property  without  due  process  of  law. 
Hawley  y.  Maiden  (U.  S.)  1916C-842. 

(Annotated.) 

16.  The  imposition  of  a  property  tax 
upon  shares  of  stock  in  a  Vermont  corpora- 
tion, owned  by  a  domestic  corporation,  does 
not  conflict  with  the  constitutional  guar- 
anty of  equal  protection  of  the  laws.  Bel- 
lows Falls  Power  Co.  v.  Commonwealth 
(Mass.)    1916C-834.  (Annotated.) 

17.  The  imposition  of  a  property  tax 
upon  the  shares  of  a  Vermont  corpora- 
tion, also  taxed  in  Vermont,  owned  by  a 
domestic  corporation,  does  not  conflict 
with  the  provision  of  the  federal  consti- 
tution providing  for  the  giving  in  full 
faith  and  credit  to  the  public  acts  of  other 
states.  Bellows  Falls  Power  Co.  v.  Com- 
monwealth (Mass.)  1916C-834. 

(Annotated.) 

18.  The  imposition  of  a  property  tax 
upon  shares  of  a  Vermont  corporation, 
owned  by  a  domestic  corporation,  is  not  a 
deprivation  of  property  without  due  pro- 
cess of  law.  Bellows  Falls  Power  Co.  v. 
Commonwealth    (Mass.)    19160-834. 

(Annotated.) 

19.  The  imposition  of  a  property  tax 
upon  shares  of  a  Vermont  corporation,  al- 
ready taxed  there,  owned  by  a  domestic 
corporation,  is  no  impairment  of  any  obli- 
gation of  contracts,  since  it  must  be  in- 
ferred that  the  tax  law  was  in  effect  be- 
fore the  acquisition  of  stock  by  the 
domestic  corporation.  Bellows  Falls  Pow- 
er Co.  V.  Commonwealth  (Mass.)  1916C- 
834.  (Annotated.) 

20.  The  imposition  of  a  property  tax 
upon  shares  of  a  Vermont  corporation, 
owned  by  a  domestic  corporation,  is  con- 
stitutional. Bellows  Falls  Power  Co.  v. 
Commonwealth  (Mass.)   1916C-834. 

(Annotated.) 

21.  Shares  in  Foreign  Coriwration.  The 
taxation  of  shares  in  a  Vermont  corpora- 
tion, already  taxed  in  Vermont  to  such 
corporation,  owned  by  a  resident  of  this 
jurisdiction,  is  not  unconstitutional,  as  in- 
fringing the  principle  against  double  tax- 
ation of  the  same  property,  since  such 
principle  is  confined  in  operation  to  double 
taxation  in  the  same  jurisdiction.  Bel- 
lows Falls  Power  Co.  v.  Commonwealth 
(Mass.)    1916C-834.  (Annotated.) 

Note. 
Liability    to    taxation    within    state    ot 
Blares    of    stock    of     foreign    corporation. 
1916C-829. 

(2)     Turpentine  Lease. 

22.  A  turpentine  lease  is  "property," 
upon  the  value  of  which  the  state  can  levy 


an  ad  valorem  tax,     Thompson  v.  McLeod 
(Miss.)   1918A-674. 

(3)     Credits. 

23.  Unaccrued  Rents  as  Credits.  Rents 
due  in  July  for  the  period  from  April  1st 
to  July  1st,  are  not  taxable  as  credits 
May  1st.  State  v.  Royal  Mineral  Associa- 
tion (Minn.)   1918A-145. 

24.  Our  statutes  provide  for  the  sepa- 
rate assessment  of  real  and  personal  prop- 
erty. By  the  terms  of  the  statutes,  real 
property  includes  the  land  and  all  privi- 
leges thereto  belonging,  credits  include 
every  claim  and  demand  for  money  and 
every  sum  of  money  receivable  at  stated 
periods,  due  or  to  become  due.  Credits 
are,  however,  personal  property  and  they 
include  only  such  demands  as  are  classed 
as  personalty.  The  term  does  not  include 
unaccrued  rents  to  issue  out  of  land.  State 
v.  Royal  Mineral  Association  (Minn.) 
1918A-145.  •  (Annotated.) 

(4)     Intangible  Property. 

25.  To  tax  intangible  property,  located 
without  the  jurisdiction,  in  the  state  of 
the  owner's  domicil,  is  not  in  violation  of 
Const.  U.  S.  Amend.  14.  Welch  v.  Boston 
(Mass.)  1917D-946. 

(5)     State  Lands  Under  Contract  of  Pur- 
chase. 

26.  Wyo.  Const,  art.  18,  §  1,  provides 
that  the  state  may  dispose  of  its  school 
lands  at  public  sale  only  and  for  not  less 
than  $10  per  acre.  Wyo.  Comp.  St.  1910, 
§§  634,  637,  638,  respectively,  provide  that, 
when  any  state  lands  shall  have  been  pur- 
chased according  to  law,  the  board  shall 
make  and  deliver  to  the  purchaser  a  cer- 
tificate of  purchase,  that  whenever  the 
purchaser  has  complied  with  the  conditions 
of  law  prescribed  for  the  sale,  and  has  paid 
all  of  the  purchase  money  with  interest,  he 
shall  receive  a  patent  for  the  land  pur- 
chased, and  that  when  the  purchaser  shall 
have  been  delinquent  for  one  year  in  mak- 
ing the  stipulated  payments,  the  board  may 
again  sell  the  land.  Const,  art.  15,  §  12, 
exempts  from  taxation  the  property  of  the 
state,  but  the  revenue  law  makes  no  dis- 
tinction affecting  the  interest  conveyed 
upon  a  sale  of  land  for  delinquent  taxes 
between  the  property  of  an  individual  and 
that  held  by  an  individual  under  a  con- 
tract of  purchase  from  the  state.  It  is 
held  that,  as  the  state  retains  an  interest 
in  land  upon  which  a  purchaser  enters  un- 
der a  contract  of  purchase,  such  land  may 
not  be  assessed  for  taxes  as  such,  though 
the  purchaser's  interest  may  be  assessed; 
for  a  sale  of  the  property  for  delinquent 
taxes  might  indirectly  destroy  the  state's 
interest  and  violate  the  constitutional  pro- 
vision fixing  the  minimum  price  for  the 
sale  of  state  lands.  Olds  v.  Little  Horse 
Cattle  Co.  (Wyo.)  1917C-120. 

(Annotated.) 


792 


DIGEST. 

1916C— 1918B. 


27.  A  pnrcliftser  of  state  lands  under  a 
contract  providing  for  payment  in  instal- 
ments and  retention  of  title  by  the  state 
may  object  to  a  tax  on  the  land  as  land, 
on  the  ground  that  the  entire  property, 
instead  of  his  interest,  was  illegally  as- 
sessed against  him.  Olds  v.  Little  Creek 
Cattle  Co.  (Wyo.)  1917C-120. 

(Annotated.) 
Note. 
State  lands  under  contract  of  purchase 
as  subject  to  taxation.     1917C-129. 

(6)     iProbate  or  Administration  Tax. 

28.  The  fees  or  charges  provided  for  in 
chapter  119  of  the  N.  Dak.  Laws  of  1909 
are  not  inheritance  taxes  or  analogous 
thereto.  An  inheritance  tax  is  a  tax  or 
charge  upon  the  privilege  of  succeeding 
to  or  inheriting  property,  and  is  paid  out 
of  that  which  is  inherited,  while  the 
charges  in  question  are,  levied,  not  only 
upon  the  estate  as  a  whole,  whether  sol- 
vent or  insolvent,  but  upon  the  estates  of 
wards  and  incompetents.  Malin  v.  La- 
moure  County  (N.  Dak.)  1916C-207. 

(Annotated.) 

29.  Such  charges  cannot  be  regarded  as 
mere  court  costs,  as  they  are  in  no  way 
proportionate  to  or  based  upon  the  work 

{)Grformed  or  the  services  rendered.  Ma- 
in V.  Lamoure  County  (N.  Dak.)  1916C- 
207.  (Annotated.) 

30.  They  are  taxes  upon  the  property 
rather  than  taxes  upon  or  charges  for  a 
privilege.  As  such  they  are  invalid,  as 
they  are  not  levied  according  to  the  true 
value  of  such  property,  or  to  the  uniform 
rule  which  is  adopted  in  regard  to  sim- 
ilar property.  Malin  v.  Lamoure  County 
(N.  Dak.)   1916C-207.  (Annotated.) 

31.  Validity.  Chapter  119  of  the  N. 
Dak.  Laws  of  1909,  which  is  entitled  "An 
act  to  amend  section  2589  of  the  Revised 
Codes  of  1905,  relating  to  the  fees  of 
county  court,  and  which  provides  for  an 
initial  fee  of  $5  and  an  additional  charge 
of  $5  for  each  and  every  $1,000,  or  frac- 
tion thereof,  in  excess  of  the  first  $1,000 
on  the  value  of  the  estates,  to  be  paid  by 
the  petitioner  for  letters  testamentary,  of 
administration,  or  of  guardianship,  is  un- 
constitutional, in  so  far  as  the  additional 
charge  or  fee  of  $5  for  each  and  every 
$1,000,  or  fraction  thereof,  in  excess  of 
the  first  $1,000  is  concerned,  and  violates 
section  11,  art.  1,  of  the  constitution  of 
North  Dakota,  which  provides  that  "all 
laws  of  a  general  nature  shall  have  a  uni- 
form operation"  section  22,  art.  1.  which 
provides  that  "all  courts  shall  be  open, 
and  every  man  for  any  injury  done  to  him 
in  his  lands,  goods,  person  or  reputation 
shall  have  remedy  by  due  process  of  law, 
and  right  and  justice  administered  with- 
out sale,  denial  or  delay,"  section  61,  art. 
2,.  which  provides  that  "no  bill  shall  em- 
brace more  than  one  subject,  which  shall 
be  expressed  in  its  title,"  etc.,  section  175, 


art.  11,  which  provides  that  "no  tax  shall 
be  levied  except  in  pursuance  of  law,  and 
every  law  imposing  a  tax  shall  state  dis- 
tinctly the  object  of  the  same,  to  which 
only  it  shall  be  applied,"  and  section  176, 
art.  11,  which  provides  that  "laws  shall 
be  passed  taxing  by  uniform  rule  all  prop- 
erty according  to  its  true  money  value 
in  money."  The  same  is  true  of  section 
2589,  Eev.  Codes  1905,  being  chap.ter  87 
of  the  Laws  of  1905,  and  of  chapter  127 
of  the  Laws  of  1913,  and  in  so  far  as  the 
fee  or  charge  of  $5  for  each  and  every 
$1,000,  or  fraction  thereof,  in  excess  of 
the  first  $1,000  is  concerned.  Chapter  66 
of  the  Laws  of  1903  and  section  2071  of 
the  Revised  Codes  of  1899,  being  chapter 
50  of  the  Laws  of  1890,  however,  are  in- 
valid even  as  to  the  initial  fee  of  $5,  as 
such  is  not  imposed  upon  all  estates  equally, 
but  according  to  the  value  thereof.  They 
are  necessarily  equally  invalid  as  to  the 
added  fee  of  $5  for  every  $1,000  additional 
value.  Malin  v.  Lamoure  Countv  (N 
Dak.)  1916C-207.  (Annotated.) 

32.  A  requirement  for  reasonable  court 
fees  will  be  sustained,  and  is  not  uncon- 
stitutional as  being  a  denial  or  sale  of 
justice,  provided  that  the  fee  is  reason- 
able, is  uniform  in  its  application,  and 
has  some  reasonable  connection  with  the 
services  rendered.  The  portions  of  the 
statute  before  considered,  therefore,  which 
provide  for  an  initial  fee  of  $o,  and  for 
the  expenditures  for  publishing  and  send- 
ing out  notices,  are  valid,  and  are  sus- 
tained. Malin  v.  Lamoure  County  (N. 
Dak.)  1916C-207.  (Annotated.) 

(7)     Contracts. 

33.  Where  defendant  entered  into  a  con- 
tract to  purchase  the  property  of  a  church 
congregation  paying  about  one-third  of 
the  consideration  in  cash  and  agreeing  to 
pay  the  remainder  on  demand,  and  the 
congregation  retained  a  lien  on  the  prop- 
erty, possession  of  which  it  was  to  retain 
until  its  new  building  was  completed,  the 
contract  was  valuable  "property"  sub- 
ject to  taxation.  Commonwealth  v.  Krst 
Christian  Church  (Ky.)   1918B-52o. 

(Annotated.) 

(8)     Corporate  Stock. 

34.  Stock  in  Domestic  Corporation.  The 
state  of  Vermont  has  the  power  to  tax  all 
the  shares  of  corporations  organized  un- 
der its  laws,  whether  owned  by  its  resi- 
dents or  those  of  other  states  or  countries. 
Bellows  Falls  Power  Co.  v.  Commonwealth 
(Mass.)  1916C-834. 

2.     CONSTRUCTION  OF  STATUTES. 

35.  Presumption  in  Favor  of  Power. 
Where  a  doubtful  constitutional  question 
is  involved,  it  should  not  be  resolved 
against  the  exercise  of  the  taxing  power 
by  the  state.  State  v.  Nygaard  (Wis.) 
1917A-1065. 


TAXATION. 


793 


36.  Unconstitutional  Provisions.    If  Cal. 

St.  1911,  p.  534,  §  8,  providing  relative  to 
the  taxation  of  |)ublic  service  corporations 
that  tlie  operative  property  of  the  com- 
panies enumerated  therein  shall  also  in- 
clude any  property  not  enumerated  that 
may  be  reasonably  necessary  for  use  by 
such  companies  exclusively  in  the  opera- 
tion and  conduct  of  the  particular  kinds 
of  business  enumerated  in  that  act,  con- 
flicts with  Const,  art.  13,  §  14,  limiting  the 
tax  on  the  property  of  railroad  companies 
to  property  or  any  part  thereof  used  ex- 
clusively in  the  operation  of  their  busi- 
ness, the  provision  of  the  constitution  must 
prevail  and  the  statute  cannot  be  upheld. 
Lake  Tahoe  E.  etc.  v.  Roberts  (Cal.) 
1916C-1196.  (Annotated.) 

37.  That  the  operation  of  steamboats  by 
a  railroad  company  stimulates  and  in- 
creases its  rail  receipts  and  induces  travel 
over  its  rails  does  not  render  the  steamers 
taxable  as  property  used  exclusively  in 
the  operation  of  the  railroad  business 
within  Cal.  Const,  art.  13,  §  14.  Lake 
Tahoe  E.,  etc.  v.  Eoberts  (Cal.)  1916E- 
1196.  (Annotated.) 

38.  Exception  of  Docks.  The  exception 
in  Wis.  St.  1913,  §  51.02,  subsec.  7,  of 
"ore  docks  and  merchandise  docks"  from 
taxation  under  the  state  ad  valorem  law, 
must  be  held  to  include  such  docks  only 
when  they  are  not  necessarily  used  by  the 
railroad  as  a  common  carrier.  Minneapo- 
lis, etc.  E.  Co.  V.  Douglas  County  (Wis.) 
1916E-1199.  (Annotated.) 

39.  State  Lands  Under  Contract  of  Pur- 
chase. In  view  of  the  statutes  requiring 
real  property  to  be  listed  to  the  owner 
and  assessed  at  its  true  value  in  money,  a 
general  assessment  against  school  lands 
which  had  been  sold  under  a  certificate 
of  purchase,  but  title  to  which  had  not 
yet  passed,  made  in  the  usual  manner  of 
assessing  lands,  is  a  tax  on  the  land  as 
such,  and  not  a  tax  on  the  interest  of  the 
purchaser.  Olds  v.  Little  Horse  Creek 
Cattle  Co.  (Wyo.)  1917C-120. 

(Annotated.) 

3.    PLACE  OF  TAXATION. 

40.  Situs  of  Corporate  Stock.  Where 
stock  in  a  foreign  corporation  is  deemed 
the  personal  property  of  the  owner,  sepa- 
rate and  distinct  from  the  capital  of  the 
corporation,  its  situs  for  purpose  of  taxa- 
tion is  a  matter  of  legislative  control,  as 
ia  also  the  method  to  be  provided  for  its 
assessment.  Denver  v.  Hobbs  Estate 
(Colo.)    1916C-S23. 

41.  Property  may  constitutionally  have 
a  situs  in  two  different  .-jurisdictions  for 
taxation  purposes,  when  the  nature  of  the 
property  requires  or  permits  it,  such  as  the 
nature  of  corporate  stock,  since  the  federal 
constitution  does  not  prevent  the  conflict 
of    state    laws    whereby    taxation    of    the 


same  property  in  two  jurisdictions  is  pos- 
sible. Bellows  Falls  Power  Co.  t.  Com- 
monwealth (Mass.)  1916C-834. 

42.  Shares  in  a  corporation  are  "personal 
property,"  with  its  various  incidents  and 
attributes,  attaching  to  and  following  the 
person  of  the  owner  for  purposes  of  taxa- 
tion in  the  jurisdiction  of  his  domicil;  his 
right  of  ownership  in  such  stock  being  a 
property  right  distinct  from  the  various 
contractual  rights  to  participate  in  the 
corporation's  profits  and  assets  which  his 
ownership  gives  him.  Bellows  Falls  Power 
Co.  V.  Commonwealth  (Mass.)  1916C-834. 

43.  Facts  Showing  Eesidence.  In  a  pro- 
ceeding to  abate  taxes  claimed  by  plain- 
tiff to  have  been  improperly  assessed 
against  him  in  a  town  from  which  he  had 
changed  his  residence,  evidence  that  after 
residing  in  the  town  for  seventeen  years 
he  drove  to  another  town  and  told  the 
officials  that  he  was  a  resident  thereof, 
after  which  he  was  taxed  therein,  was  in- 
sufficient to  require  a  finding  that  he  re- 
sided in  the  latter  town,  where  he  did  not 
move  his  family  or  make  any  prepara- 
tions to  remove  them  from  the  former 
town  but  continued  to  live  with  them 
therein.  Bartlett  v.  New  Boston  (N.  H.) 
1917B-777.  (Annotated.) 

44.  In  a  proceeding  to  have  canceled  an 
assessment  by  the  board  of  review  of  the 
city  of  Milwaukee  for  property  omitted 
from  taxation,  in  which  the  owner  claimed 
tl'at  he  did  not  reside  in  the  city,  the  evi- 
dence is  held  to  show  that  the  owner  had 
established  his  residence  out  of  the  city 
with  "the  intention  of  changing  his  domi- 
cil, so  that  he  was  not  taxaole  by  the 
city.    State  v.  Leuch  (Wis.)  1917B-778. 

(Annotated.) 

45.  Intangible  Property.  Bonds  and 
stocks,  which  are  "intangible  property" 
because  they  can  be  kept  in  a  small  com- 
pass and  are  not  likely  to  be  observed  for 
purposes  of  taxation,  are  customarily  tax- 
able at  the  domicil  of  the  owner.  Welch 
v.  Boston  (Mass.)  1917D-946. 

46.  In  a  proceeding  to  tax  resident  trus- 
tees on  personal  property,  such  as  stocks 
and  bonds,  located  in  a  foreign  state  and 
bequeathed  by  a  foreign  testator  to  resi- 
dents of  another  second  foreign  state,  it 
cannot  be  presumed,  in  the  absence  of  evi- 
dence, that  there  was  any  law  in  the  state 
where  the  property  was  located  which  al- 
lowed it  to  tax  the  property.  Welch  v. 
Boston   (Mass.)   1917D-946.     (Annotated.) 

47.  Situs  of  Personalty  Held  in  Trust. 
Mass.  St.  1909,  c.  490,  pt.  1,  §  23,  declares 
that  all  personal  estate  within  or  without 
the  commonwealth  shall  be  assessable  to 
the  owner,  while  subsection  5  declares  that 
property  held  in  trust  by  an  executor,  ad- 
ministrator, or  trustee  shall  be  assessed 
to  them  in  the  city  or  town  in  which  they 
reside.     St.     1909,   c.   516,   exempts    from 


794 


DIGEST. 

1916C— 1918B. 


taxation  merchandise,  maetinery,  and  ani- 
mals owned  by  inhabitants  of  the  state 
and  situated  in  another  state.  A  resident 
of  Maine  devised  stocks  and  bonds  in 
trust  for  persona  domiciled  in  California. 
The  trustees  resided  in  Massachusetts,  but 
the  property  remained  in  Maine.  It  is 
held  that  as  it  could  not  be  presumed  that 
the  property  was  taxed  in  Maine,  it  was 
legally  assessable  to  the  local  trustees, 
particularly  in  view  of  the  exemption  of 
named  property  and  the  fact  that  the  local 
courts  might  be  invoked  by  the  bene- 
ficiaries. Welch  V.  Boston  (Mass.)  1917D- 
946.  (Annotated.) 

Note. 
Situs,  for  purpose  of  taxation,  of  per- 
sonal property  held  in  trust.     1917D-948. 

4.     ASSESSMENT  AND  VALUATION. 

a.  Ownership   of  Property. 

48.  A  vendee  in  possession  under  a  con- 
tract of  purchase  is  liable  for  taxes  upon 
the  theory  that  the  vendor  is  the  bene- 
ficial owner  of  the  purchase  money,  and 
the  vendee  of  the  land,  and  hence  if  the 
state  in  gelling  public  lands  on  instalments 
occupies  no  better  position  than  that  of 
an  ordinary  vendor,  yet  having  retained 
the  title,  as  security  for  the  unpaid  pur- 
chase money,  it  has  an  interest  in  the  land 
that  is  "property"  within  Wyo.  Const,  art. 
15,  §  12,  exempting  from  taxation  state 
property,  and  the  land  cannot  be  taxed  in 
such  a  manner  as  to  imperil  that  interest. 
Olds  v.  Little  Horse  Creek  Cattle  Co. 
(Wyo.)   1&17C-120.  (Annotated.) 

49.  One  in  possession  under  an  option 
to  purchase,  or  to  complete  a  purchase,  is 
not  liable  for  taxes  under  the  rule  that 
a  purchaser  in  possession  must  discharge 
the  taxes,  for,  if  the  purchaser  is  not 
bound  to  pay  the  purchase  money,  the  ven- 
dor cannot  be  treated  in  equity  as  the 
owner  of  the  money  and  the  purchaser 
the  owner  of  the  land.  Olds  v.  Little 
Horse  Creek  Cattle  Co.  (Wyo.)  19170-120. 

(Annotated.) 

b.  Valuation  of  Property. 

(1)     In  General. 

50.  Effect  of  Erroneous  Method  of  Tax- 
ation— Presumptions.  A  valuation  for  tax 
purposes  having  been  shown  to  be  the  re- 
sult of  following  a  method  substantially 
erroneous  because  not  in  accordance  with 
the  controlling  statutes,  thore  is  no  pre- 
sumption that  a  like  valuation  would 
have  been  reached  by  following  a  correct 
method,  and  when  the  difference  in  result 
is  very  great,  there  is  a  strong  presump- 
tion to  the  contrarv.  Louisville,  etc.  R. 
Co.  V.  Greene  (U.  S.)"  1917E-97. 

51.  The  requirement  of  Ky.  Const.  §  172, 
that  all  property  "shall  be  assessed  for 
taxation  at  its  fair  cash  value,  estimated 


at  the  price  it  would  bring  at  a  fair  vol- 
untary sale,"  will  not  prevent  injunctive 
relief  against  steps  looking  to  the  enforce- 
ment of  certain  state  and  local  so-called 
franchise  taxes  based  upon  an  assessment 
of  the  intangible  property  of  a  public 
service  corporation  by  the  state  board  of 
valuation  and  assessment  at  not  more  than 
its  fair  cash  value,  where  the  local  assess- 
ing officers,  charged  with  valuing  other 
classes  of  property,  systematically  under- 
value such  property,  since  to  apply  to  one 
class  of  property  the  standard  of  fair 
cash  value,  systematically  departed  from 
with  respect  to  other  classes  of  property, 
would  frustrate  the  principal  object  of 
that  section,  which,  in  view  of  the  pro- 
visions of  §§  171  and  174,  requiring  uni- 
formity of  taxation  in  proportion  to  value, 
and  an  identical  rate  as  between  corporate 
and  individual  property,  must  be  deemed 
to  be  equal  taxation.  Louisville,  etc.  B. 
Co.  V.  Greene  (U.  S.)  1917E-97. 

(2)     Valuation    of   Particular    Subjects. 

52.  Proof  of  Discrimination  in  Tax. 
General  presumptions  arising  from  the 
statutory  duty  of  assessors  to  assess  at 
fair  cash  value,  and  from  the  oath  cus- 
tomarily required  of  individual  taxpayers, 
together  with  stereotyped  affidavits  of 
former  assessors  to  the  effect  that  they 
endeavored  to  follow  the  law  and  assess 
all  property  at  its  fair  cash  value,  and 
that  if  any  property  was  otherwise  as- 
sessed it  was  unintentional  and  not  pur- 
suant to  any  agreement  between  assessor 
and  taxpayer,  do  not  necessarily  impair 
the  probative  effect  of  official  admissions 
and  direct  and  circumstantial  evidence 
from  unimpeached  private  and  public 
sources  that  the  great  mass  of  property 
in  the  state  was  intentionally,  systemat- 
ically, and  notoriously  assessed  far  below 
its  actual  value.  Louisville,  etc.  K.  Co. 
V.  Greene  (U.  S.)  1917E-97. 

53.  Valuation  of  Eailroad  Projwrty,  A 
strip  of  land  approximately  100  feet  wide 
and  21  miles  long,  procured  by  a  railway 
company  for  the  relocation  of  its  road,  was 
valued  at  $137,980,  being  an  average  valu- 
ation of  $1,000  per  acre  on  land  within 
city  limits  and  of  $500  per  acre  on  land 
outside  the  city  limits.  The  average  valu- 
ation of  other  land  within  the  city  was 
less  than  $150  per  acre  and  on  other  land 
outside  the  city  less  than  $40  per  acre, 
and  no  shore  land  similarly  situated  to 
the  railroad  land  was  valued  to  exceed  one- 
third  of  the  value  placed  upon  the  rail- 
road land.  The  railroad  land  extended 
along  the  shore,  but  the  company  had  no 
monopoly  of  shore  lands,  since  not  only 
were  there  other  lands  on  the  shore  suit- 
able for  right  of  way  purposes  but,  under 
the  Wash.  Defile  Act  (Laws  1890,  p.  301), 
any  other  railroad  company  could  in  case 
of  necessity,  require  surrender  of  a  por- 
tion of  such  railroad  land.     The  state  tax 


TAXATION. 


795 


commissioner  valued  all  railroad  grades 
upon  which  ties  were  not  laid  at  $1,320 
per  mile,  and  an  extension  of  the  strip 
of  land  in  question  into  another  county 
was  there  valued  at  this  rate,  and  this 
strip  in  the  preceding  year  was  valued 
at  only  about  one-fourth  of  the  present 
valuation,  though  lands  generally  were 
worth  more  then  than  now.  Held,  that 
the  discrepancy  in  the  valuation  of  the 
lands  was  so  gross  as  to  amount  to  con- 
structive fraud,  and  that  no  valuation  of 
such  strip  of  railroad  land  in  excess  of 
$45,993.34  could  stand.  Northern  Pacific 
R.  Co.  v.  Pierce  County  (Wash.)  1916E'- 
1194.  ^  (Annotated.) 

54.  A  steamboat  in  operation  being  a 
uingle  indivisible  fabric,  where  it  is  not 
used  exclusively  in  the  business  of  a  rail- 
road company,  a  part  thereof  cannot  be  so 
exclusively  used  within  Cal.  Const,  art. 
13,  §  14,  imposing  a  tax  based  on  gross 
revenue  on  certain  enumerated  properties 
of  railroad  companies  and  on  other  prop- 
erty or  any  part  thereof  used  exclusively 
in  the  operation  of  their  business.  Lake 
Tahoe  R.,  etc.  v.  Roberts  (Cal.)  1916E- 
1196.  (Annotated.) 

55.  Under  Cal.  Const,  art.  13,  §  14,  im- 
posing a  tax  on  any  property  or  any  part 
thereof  used  exclusively  in  the  operation 
of  a  railroad  company's  business,  only 
property  used  exclusively  or  a  severable 
part  of  property  so  exclusively  used  in 
the  operation  of  the  business  can  be  taxed, 
and  where  property  is  partly  used  for 
railroad  purposes  the  gross  returns  from 
the  partial  use  are  not  an  element  in  as- 
sessing the  tax.  Lake  Tahoe  R.,  etc.  v. 
Roberts  (Cal.)  l^lGE-lige.      (Annotated.) 

56.  An  ore  dock  and  merchandise  dock 
constructed  by  a  railroad  company  at  a 
lake  terminal,  equipped  with  the  proper 
appliances  "necessary"  to  enable  the  rail- 
road to  properly  handle  freight,  constitute 
an  integral  part  of  the  railroad  system, 
and  cannot  be  separated  from  it  for  the 
purpose  of  taxation,  even  though  a  con- 
siderable part  of  the  ore  dock  was  used 
to  transfer  ore  to  lake  carriers;  the  word 
"necessary"  meaning  reasonably  required 
in  the  exercise  of  sound  business  prudence. 
Minneapolis,  etc.  R.  Co.  v.  Douglas  County 
(Wis.)  1916E-1199.  (Annotated.) 

57.  Rem.  &  Bal.  Wash.  Code,  §  9141,  re- 
quires the  state  board  of  tax  commission- 
ers to  make  an  annual  assessment  of  the 
operating  property  of  all  railroads.  Sec- 
tion 9148  requires  it  to  include  the  real 
estate,  right  of  way,  tracks,  terminals, 
equipment,  and  franchises,  and  all  other 
real  and  personal  property,  so  as  to  in- 
clude its  entire  property  and  franchises, 
and  that  in  valuing  such  property  it  shall 
consider  the  value  of  the  entire  system 
and  of  the  part  within  the  state,  together 
with  such  facts  as  will  enable  a  substan- 
tially correct  determination  of  its  assess- 


ment value,  subject  to  revision  by  the 
state  board  of  equalization.  Public  Ser- 
vice Commission  Law  (Laws  1911,  p.  604) 
§  92,  provides  tl^at,  when  the  commission 
values  the  property  of  a  public  service 
company,  nothing  less  than  the  market 
value  shall  be  taken  as  the  true  assessable 
value  of  its  property  used  for  the  public 
convenience.  Held,  that  an  added  item  of 
$12,290,000  on  account  of  density  of  traffic 
and  volume  of  business  along  its  line,  the 
nature  of  the  country  through  which  its 
line  ran,  the  facilities  for  transacting  rail- 
road business  owned  by  private  individu- 
als, such  as  warehouses  and  docks,  the 
proximity  of  extensive  coal  mines  en- 
abling it  to  obtain  coal  at  reduced  cost, 
regardless  of  its  ownership,  the  resources 
of  the  country  adjacent  to  its  line,  and 
the  density  of  population  and  development 
of  the  tributary  territory,  considered  as 
intangible  elements  affecting  the  value  of 
its  operating  property,  as  distinguished 
from  mere  good  will,  was  legal,  "Northern 
Pacific  R.  Co.  V.  State  (Wash.)  1916E- 
1166.  (Annotated.) 

58.  Such  assessment  of  plaintiff's  oper^ 
ating  property  was  not  unlawful,  because 
such  intangible  elements  or  good  will  were 
not  included  in  the  physical  valuation  of 
other  properties,  such  as  hotels,  theaters, 
wholesale  and  retail  mercantile  establish- 
ments, and  other  private  business  concerns; 
since  such  alleged  item  of  good  will  value 
would  attach  to  their  business,  rather  than 
to  their  physical  property,  and  since,  even 
if  the  county  assessors,  required  by  Rem. 
&  Bal.  Wash.  Code,  §§  9102,  9112,  to  deter- 
mine the  value  in  money  of  each  tract  or 
lot  of  real  property,  and  to  value  each  ar- 
ticle of  property  by  itself,  might  not  in- 
clude such  good  will,  the  assessment  of 
railway  operating  property  is  committed 
to  the  state  board  of  tax  commissioners  for 
valuation  as  a  unit,  instead  of  by  lot  or 
article  of  property.  Northern  Pacific  B. 
Co.  V.  State  (Wash.)  1916E-1166. 

(Annotated.) 

59.  The  valuation  of  the  operating  prop- 
erty of  a  railroad  for  taxation  by  the  state 
board  of  tax  commissioners,  as  an  entirety, 
and  the  apportioning  of  such  valuation  to 
the  several  counties  through  whii'h  its  line 
runs,  is  a  lawful  method.  Northern  Pa- 
cific R.  Co.  v.  State  (Wash.)  1916E-1166. 

(Annotated.) 

60.  The  assessment  of  railroad  operating 
property  on  the  basis  of  its  value  as  an 
entirety,  including  intangible  elements 
such  as  volume  of  business,  nature  and 
resources  of  country,  etc.,  affecting  the 
value  of  its  property,  while  such  intangible 
elements,  or  good  will,  are  not  included  in 
the  valuation  of  other  property,  does  not 
-violate  Wash.  Const,  art.  7,  §  1,  declaring 
that  all  property  shall  be  taxed  in  pro- 
portion to  its  value,  section  2.  declaring 
that  the  legislature  shall  provide  a  uni- 
form and  equal  rate  of  assessment  and  tax- 


796 


DIGEST. 

1916C— 1918B. 


ation  on  all  property  according  to  its 
value  in  money,  or  section  3,  declaring  that 
the  legislature  shall  provide  by  general 
law  for  assassin"  taxes  on  all  corporation 
property  as  nearly  as  may  be  by  the  meth- 
ods provided  for  assessing  individual  rrop- 
erty.  Northern  Pacific  K.  Co,  v.  State 
(Wash.)   1916E-1166.  (Annotated.) 

61.  Nor  does  such  assessment  violate 
the  due  process  and  the  equal  protection 
of  the  law  clauses  of  Const.  U.  S.  Amend. 
14  to  the  federal  constitution.  Northern 
Pacific  R.  Co.  V.  State  (Wash.)  1916E-1166. 

(Annotated.) 

62.  An  assessment  of  plaintiff  railroad's 
operating  property,  as  a  unit,  at  $126,- 
000,000,  including  an  item  of  $12,000,000, 
or  10  per  cent,  as  the  valuation  of  certain 
intangible  elements,  such  as  the  volume  of, 
and  facilities  for,  business,  the  nature, 
resources,  population,  and  development  of 
the  country  through  which  its  line  runs  as 
affecting  the  physical  value  of  such  oper- 
ating property,  in  the  absence  of  any  wil- 
ful fraudulent  acts  charged  against  either 
the  state  board  of  tax  commissioners  mak- 
ing the  assessment  of  the  state  board  of 
equalization  adopting  it,  or  any  charge 
that  such  boards  refused  to  hear  evidence 
as  to  value  or  acted  arbitrarily,  would  not 
be  interfered  with  merely  on  the  ground 
that  it  was  excessive,  and  because  of  a 
radical  change  in  conditions  resulting  in 
large  decrease  in  net  earnings  of  the  prop- 
erty and  a  permanent  impairment  of  its 
value.  Northern  Pacific  B.  Co.  v.  State 
(Wash.)  1916E-1166.  (Annotated.) 

63.  Effect  of  Easement.  When  an  ease- 
ment is  carved  out  of  one  property  for  the 
benefit  of  another,  the  market  value  of 
the  servient  estate  is  thereby  lessened,  and 
that  of  the  dominant  increased,  practically 
by  just  the  value  of  the  easement,  and  the 
respective  tenements  should  be  assessed 
accordingly.  Tax  Lien  Co.  v.  Schultze 
(N.  Y.)  1916C-636. 

Note. 

Valuation  of  railroad  property  for  pur- 
pose of  taxation.     1916E-1180, 

e.     Eeview  of  Assessment. 

64.  Persons  Entitled  —  Failure  to  List 
Property.  N.  H.  Pub.  St.  1901,  c.  59,  §  11. 
gives  a  right  of  appeal  from  an  assessment 
only  to  a  property  owner  who  has  com- 
plied with  chapter  57.  §§  8,  9,  making;  it 
his  duty  to  fill  out  a  blank  inventory  and 
deliver  it  to  the  town  selectmen;  and 
hence  a  property  owner  who  had  failed  to 
perform  this  duty  cannot  complain  of  the 
validity  of  the  selectmen's  action  in  tax- 
ing him  for  property  owned  by  him  but 
returned  for  taxation  bv  others!  Bartlett 
V.  New  Boston  (N.  H.)'l917B-777. 

65.  Conclusiveness  of  Finding.  A  find- 
ing of  the  board  of  review  of  the  city  of 


Milwaukee,  in  making  assessments  for 
property  omitted  from  taxation,  that  the 
owner  resided  within  the  city  is  jurisdic- 
tional, and  hence  is  not  conclusive  on  ap- 
peal, though  sustained  by  some  evidence. 
State  v.  Leuch  (Wis.)  1917B-778. 

66.  The  findings  of  an  official  body,  such 
as  the  state  board  of  valuation  and  assess- 
ment, created  by  Ky.  Stat.  §§  4077^081, 
to  fix  the  value  of  the  intangible  property 
of  public  service  corporations  for  so-called 
state  and  local  franchise  taxes,  when 
made  after  a  hearing  and  notice  to  the 
taxpayer,  are  quasi  judicial  in  their  char- 
acter, and  are  not  to  be  set  aside  or  dis- 
regarded by  the  courts  unless  it  is  made 
to  appear  that  the  board  proceeded  upon 
an  erroneous  principle  or  adopted  an  im- 
proper mode  of  estimating  the  value  of  the 
property,  or  unless  fraud  appears.  Louis- 
ville, etc.  E.  Co.  V.  Greene  (U.  S.)  1917E- 
97. 

5.     EXEMPTIONS. 
a.     Property  Constitutionally  Exempt. 

67.  The  rule  that  a  vendee  in  possession 
under  a  contract  to  purchase  is  liable  for 
taxes  cannot  be  applied  so  as  to  permit 
the  taxation  of  property  which  is  declared 
exempt  by  the  constitution.  Olds  v.  Lit- 
tle Horse  Creek  Cattle  Co.  (Wyo.)  19*17C- 
120.  (Annotated.) 

68.  Railroads  —  Exemption  from  Taxa- 
tion— When  Railroad  is  "Completed."  The 
words  "constructed  and  completed,"  as  used 
in  article  230  of  the  La.  constitution,  and 
as  used  in  the  amendment  to  the  constitu- 
tion proposed  by  La.  Act  No.  16  of  1904, 
in  connection  with  the  exemption  of  rail- 
roads from  taxation,  mean  substantially 
the  same  thing,  in  both  instances  and  in 
neither  are  they  susceptible  of  the  inter- 
pretation that  a  railroad,  the  construction 
of  which  was  begun  before,  or  which  was 
completed  after,  the  period  or  date  stated 
in  the  article  and  in  the  amendment,  re- 
spectively, is  entitled  to  the  exemption 
therein  granted.  Sibley,  etc.  E.  Go.  v. 
Elliott  (La.)  1916D-1228.         (Annotated.) 

69.  A  railroad  cannot  be  said  to  have 
been  "completed,"  within  the  meaning  of 
the  amendment  to  the  La.  constitution 
granting  exemption  from  taxation  to  "any 
railroad  or  part  of  railroad  that  shall  have 
been  constructed  and  completed  subse- 
quently to  January  1,  1905,  and  prior  to 
January  1,  1909,"  where  it  was  built  as 
a  logging  road,  for  a  particular  concern, 
and,  up  to  the  date  last  above  mentioned, 
had  been  provided  with  no  equipment  that 
would  have  enabled  it  to  serve  the  public, 
generally,  as  a  carrier  of  either  passengers 
or  freight.  Siblev,  etc.  E.  Co.  v.  Elliott 
(La.)  1916D-1228.''  (Annotated.) 

Note. 

Meaning  of  "complete"  or  "completed" 
as  applied  to  railroad.     1916r)-1232. 


TAXATION. 


797 


b.     Validity  of  Statutes. 

70.  Power  to  Exempt  Stock  in  Foreign 
Corporation.  The  proviso  in  Colo.  Rev. 
St.  1908,  §  5687,  that  corporate  stock  shall 
be  deemed  to  represent  the  corporate 
property,  and  except  in  cases  of  banking 
corporations  shall  not  be  taxed,  construed 
to  apply  to  domestic  and  foreign  corpora- 
tions, is  not  in  conflict  with  Const,  art.  10, 
§  3,  requiring  that  all  taxes  shall  be  uni- 
form, and  shall  be  levied  and  collected 
under  general  laws  prescribing  regulations 
securing  a  just  valuation  for  taxation  of 
all  property,  but  is  a  valid  exercise  of  the 
constitutional  power  to  prescribe  regula- 
tions. Denver  v.  Hobbs  Estate  (Colo.) 
1916C-823. 

71.  Exemption   of  Mortgages — Validity. 

Revenue  law,  providing  for  a  tax  for  re- 
cording mortgages,  deeds  of  trust,  or  writ- 
ten contracts  of  conditional  sale,  and  de- 
claring that  no  ad  valorem  tax  shall  be 
collected  on  any  such  instrument  or  on  the 
debts  secured  thereby  after  such  tax  has 
been  paid,  but  levying  an  ad  valorem  tax 
on  all  moneys  lent,  solvent  credits,  or 
credits  of  value,  except  such  as  are  se- 
cured by  mortgage,  deed  of  trust  or  writ-, 
ten  contract  of  conditional  sale,  on  which 
a  tax  for  recording  has  been  paid,  is  not 
violative  of  Ala.  Const.  1901,  §  211,  pro- 
viding that  all  taxes  shall  be  assessed  in 
proportion  to  the  value  of  the  property; 
the  legislature  having  full  power  to  class- 
ify for  taxation  moneys  and  credits  se- 
cured by  written  instruments  and  debts 
not  so  secured.  State  v.  Alabama  Fuel, 
etc.  Co.  (Ala.)  1916E-752.        (Annotated.) 

Note. 
Validity  of  exemption  from  taxation  of 
monev     loaned     on     mortgage     security. 
1916E-757. 


c.     Construction  of  Statutes. 
« 

(1)     In  General. 

72.  Strict  Construction  of  Exempting 
Statute.  Exemptions  from  taxation 
should  be  strictly  construed,  since  the  pur- 
pose of  the  state  to  abandon  its  right  to 
tax  should  not  be  presumed,  and  since 
equality  is  equity  in  matters  of  taxation. 
St.  Louis  Lodge  v.  Koeln  (Mo.)  1916E- 
784. 

(2)     Property  Used  for  Educational,  Char- 
itable or  Religious  Purposes. 

73.  Exemption  from  taxation  is  a  privi- 
lege which  does  not  follow  the  property. 
Therefore  on  disposition  of  property  used 
for  religious  worship  the  exemption  from 
taxation  does  not  follow  the  property. 
Commonwealth  v.  First  Christian  Church 
(Ky.)  1918B-525.  (Annotated.) 

74.  Under  Ky.  Const.  §  170,  exempt- 
ing from  taxation  places  actually  used  for 


religious  worship  and  parsonages  occupied 
as  a  home  for  the  minister,  a  church  con- 
gregation desiring  a  more  suitable  place 
for  religious  worship  wiU  not  be  taxed  on 
funds  to  be  invested  in  a  new  place  of 
worship,  which  were  derived  from  the 
sale  of  the  old  premises,  notwithstanding 
the  contract  of  sale,  which  provided  for 
payments  by  the  purchaser  as  needed,  al- 
lowed the  congregation  to  retain  posses- 
sion of  its  original  property  until  the 
new  church  should  be  ready  for  occu- 
pancy; it  being  within  the  spirit  of  the 
constitution  to  exempt  from  taxation 
moneys  intended  to  be  devoted  to  ac- 
quiring a  place  of  religious  worship  as 
well  as  the  place  itself.  Commonwealth 
V.  First  Christiaii  Church  (Ky.)  1918B- 
525.  (Annotated.) 

75.  Property  Used  for  Beliglous  Pur- 
poses. The  trustees  of  a  congregation  en- 
tered into  a  contract  reciting  that,  pur- 
suant to  a  vote  of  the  congregation,  they 
sold  and  agreed  to  convey  to  defendant 
the  property  of  the  church  in  considera- 
tion of  the  sum  of  $350,000,  $100,000  to 
be  paid  in  cash  upon  execution  of  the 
agreement,  the  remainder  to  be  paid  as  it 
might  be  needed  to  make  payments  upon 
the  contract  for  a  new  church,  the  con- 
gregation to  retain  possession  of  the  prop- 
erty sold  until  the  new  church  was  com- 
pleted. It  is  held  that  title  to  the  prom- 
ises passed  to  defendant,  and  he  became 
at  least  the  equitable  owner,  and  so 
under  Ky.  St.  §  4023,  declaring  that  it 
shall  be  the  duty  of  the  holder  of  the  equi- 
table title  to  list  the  property  and  pay 
the  taxes  thereon,  whether  the  property 
be  in  possession  or  not,  defendant  was 
liable  for  taxes  on  the  property.  Com- 
monwealth V.  First  Christian  Church. 
(Ky.)   1918B-525.  (Annotated.) 

76.  In  such  case,  as  defendant  received 
compensation  for  all  moneys  paid  to  the 
church,  he  cannot  escape  taxation  on  the 
theory  that  the  premises  being  used  for 
religious  worship  were  exempt  under 
Const.  §  170,  and  Ky.  St.  §  4026,  exempt- 
ing property  used  for  religious  worship 
from  payment  of  taxes.  Commonwealth 
V.  First  Christian  Church  (Ky.)  1918B- 
525.  (Annotated.) 

77.  Church  Property — Effect  of  Con- 
tract to  Sell.  Where  property  used  ex- 
clusively for  divine  worship,  and  by  sec- 
tion 57,  chapter  29,  W.  Va.  Code  'Supp. 
1909,  is  exempt  from  taxation,  is  by  con- 
tract in  writing,  recorded,  sold  by  the 
trustees  in  November,  1910,  such  contract 
in  terms  reserving  right  in  the  trustees  to 
remove  the  church  building  and  founda- 
tion from  the  lot  free  of  charge,  and  with- 
oiit  possession  taken  or  right  of  possession 
given  by  the  contract  to  the  purchaser, 
and  with  covenant  and  agreement  therein 
to  make  and  deliver  to  the  purchaser  a 
deed  for  said  property  on  the  second  daj 


798 


DIGEST. 

1916C— 1918B. 


of  January  following,  and  which  deed  is 
in  fact  not  made  and  delivered  until  the 
third  day  of  January,  1911,  the  property 
80  sold  and  conveyed  is  not  by  virtue  of 
section  54,  chapter  29,  Code  1906,  assess- 
able to  such  purchaser  for  taxation  for 
the  year  1911,  for  he  is  not  as  provided  by 
said  section  the  "person  who  by  himself 
or  his  tenants  has  the  freehold  in  his  pos- 
session, whether  in  fee  or  for  life,"  so  as 
to  be  "deemed  the  owner  for  the  purpose 
of  taxation."  Cole  v.  State  (W.  Va.) 
1916D-1256. 

78.  Hospital  as  Charity.  A  testatrix 
gave  property  to  three  persons  in  trust 
for  the  establishment  of  a  hospital;  the 
trustees  to  report  annually  to  the  chan- 
cery court  in  the  county,  and  such  court 
to  fill  all  vacancies  in  the  oflBce  of 
trustee.  The  hospital  received  private 
pay  patients;  public  patients  going  there 
of  their  own  accord,  or  sent  there  by  the 
county  and  certain  nearby  cities,  in- 
cluding the  city  in  which  the  hospital  was 
located,  and  which  was  seeking  to  subject 
the  hospital  to  taxation.  No  patients 
were  kept  without  charge,  but  some  of 
those  who  came  of  their  own  accord 
failed  to  pay,  and  no  one  had  ever  been 
turned  away  for  inability  to  pay.  The 
county  and  such  cities  compensated  the 
hospital  as  to  patients  sent  by  them,  but 
in  a  sum  less  than  the  actual  cost.  The 
operation  of  the  hospital  resulted  in  dif- 
ferent years,  either  in  a  deficit  or  in  a 
very  small  gain.  There  was  no  provision 
for  reversion  in  the  will,  the  trustees 
served  without  pay,  and  it  did  not  appear 
that  it  was  ever  intended  that  any  private 
gain  should  result.  The  profit  from  pri- 
vate patients  who  paid  for  their  care  and 
treatment  went  into  the  general  fund  of 
the  hospital,  and  was  used  for  maintain- 
ing it.  It  is  held  that  the  hospital  prop- 
erty was  exempt  from  taxation  as  a  "pub- 
lic charity";  since  whatever  is  done  or 
given  gratuitously  in  relief  of  the  puDlic 
burdens,  or  for  the  advancement  of  pub- 
lic good,  is  a  public  charity,  and  an  insti- 
tution founded  and  endowed  as  a  purely 
public  charity  does  not  lose  its  character 
as  such  under  the  tax  laws  if  it  receives 
a  revenue  from  the  recipients  of  its 
bounty  sufficient  to  keep  it  in  operation, 
or,  applying  another  test,  if  the  object  for 
which  an  institution  is  founded  is  the  gen- 
eral public  good,  and  not  private  gain, 
and  it  is  so  conducted  that  the  public  re- 
ceives all  the  benefits  of  it,  it  is  a  purely 
public  charity.  Dayton  v.  Trustees  of 
Speer's  Hospital   (Ky.)   1917B-275. 

(Annotated.) 

79.  Property  Used  for  CHiarlty— Elks 
Ijodge.  A  lodge  building  used  as  a  club 
for  members  and  their  guests,  in  which 
free  entertainments  of  various  kinds 
were  given  and  from  which  no  profits 
were  realized,  the  surplus  funds  being  de- 


voted to  charity,  is  not  a  building  used 
exclusively  for  purposes  purely  charitable 
within  Mo.  Const,  art.  10,  §  6,  exempting 
such  buildings  from  taxation,  an  exclu- 
sive use  implying  that  all  other  uses  are 
excluded,  a  "purely  charitable  use"  being 
one  in  which  the  charity  is  unmixed  with 
other  purposes.  St.  Louis  Lodge  v.  Koeln 
(Mo.)  191GE-784.  (Annotated.) 

Note. 
Hospital  as  charity  exempt  from  taxa- 
tion.    1917B-278. 

(3)     Corporate  Stock. 

80.  Mass.  Tax  Act  (St.  1909,  c.  490)  part 
3,  §  41,  provides  that  the  tax  commissioner 
shall  ascertain  the  market  value  of  corpo- 
rate shares,  and  shall  estimate  therefrom 
the  fair  cash  value  of  all  the  shares  con- 
stituting the  capital  stock,  which  shall  be 
taken  as  the  true  value  of  each  corpora- 
tion's corporate  franchise,  and  that  from 
such  value  there  shall  be  deducted,  in  the 
case  of  a  domestic  business  corporation, 
the  value  of  its  property  situated  in  another 
state  or  country  and  subject  to  taxation 
therein.  P.  S.  Vt.  c.  30,  §  516,  provides 
that  taxes  assessed  on  corporate  stock  of 
nonresidents  shall  be  paid  by  the  corpo- 
ration, which  may  hold  such  stock  and 
the  dividends  thereon  as  security  for  the 
payment.  A  Massachusetts  corporation, 
which  owned  shares  in  a  Vermont  corpo- 
ration, was  taxed  thereon,  and,  suing  to 
recover  the  tax,  contended  that  the  shares 
of  stock  which  had  been  assessed  to  it 
were  "property  situated  in  another  state 
and  subject  to  taxation  therein,"  within 
section  41,  and  so  exempt  from  taxation. 
It  is  held  that  such  shares  were  not  such 
property,  since  the  context  in  which  the 
words  occurred  in  the  tax  law  demon- 
strated that  they  referred  to  the  kind  of 
property  which,  if  owned  by  in  indi- 
vidual and  situated  and  taxed  in  another 
state,  would  be  exempt  from  taxation  in 
this  commonwealth,  such  as  real  estate 
and  "merchandise,  machinery,  and  ani- 
mals." Bellows  Falls  Power  Co.  v.  Com- 
monwealth  (Mass.)    1916C-834. 

(Annotated.) 

81.  Colo.  Rev.  St.  1908,  §  5659,  requir- 
ing the  assessor  to  make  out  an  abstract 
of  the  assessment  in  his  county,  stating 
in  detail  specified  things,  including  the  as- 
sessed valuation  of  shares  in  banking  cor- 
porations, without  requiring  the  abstract 
to  show  the  value  of  other  corporate 
stock,  discloses  a  legislative  intention 
that  there  shall  be  no  distinction  between 
stock  in  foreign  and  domestic  corporations, 
and  is  in  harmony  with  the  proviso  in  sec- 
tion 5687,  declaring  that  corporate  stock 
shall  be  deemed  to  represent  the  corporate 
property,  and  except  in  case  of  the  bank- 
ing corporations  shall  not  be  taxed,  con- 
strued to  apply  to  domestic  and  foreign 


TAXATION. 


799 


corporations.     Denver    v.    Hobbs'    Estate 
(Colo.)   1916C-823.  (Annotated.) 

82.  Colo.  Rev.  St.  1908,  §§  5591,  5592, 
making  stock  and  bonds  of  corporations 
competent  evidence  of  the  value  of  plants 
of  corporations,  foreign  or  domestic,  and 
providing  that  the  entire  business,  plant, 
or  enterprise  of  a  corporation  shall  be 
valued  as  a  unit,  and  that  every  element 
which  gives  to  the  corporation  property 
an  added  value  shall  be  considered  in  fix- 
ing the  value  for  taxable  purposes,  are 
guides  to  the  assessor  in  fixing  the  value 
of  property  owned  by  any  corporation 
foreign  or  domestic,  but  do  not  indicate 
that  corporate  stock  itself  shall  be  taxed, 
except  as  covered  by  the  property  of  the 
corporation.  Denver  v.  Hobbs'  Estate 
(Colo.)   1916C-823.  (Annotated.) 

83.  The  provisions  of  Colo.  Rev.  St. 
1908,  §  5584,  that  no  deduction  shall  be 
allowed  on  account  of  any  indebtedness 
on  or  for  the  capital  stock  of  any  corpora- 
tion or  other  exempt  property,  indicates 
that  corporate  stock  shall  not  be  taxed 
separate  and  apart  from  the  corporate 
property,  as  it  would  be  unfair  to  permit 
deduction  of  debts  for  property  not  tax- 
able. Denver  v.  Hobbs'  Estate  (Colo.) 
1916C-823.  (Annotated.) 

84.  The  Revenue  Act,  of  which  Colo. 
Rev  St.  1908',  §  5687,  declaring  that  cor- 
porate stock  shall  be  deemed  to  repre- 
sent the  corporate  property,  and  except 
in  cases  of  banking  corporations  shall  not 
be  taxed,  is  a  part,  must  be  considered  as 
a  whole  in  construing  section  5687,  and, 
when  so  considered,  stock  of  domestic  and 
foreign  corporations,  not  banking  corpo- 
rations, is  not  taxable.  Denver  v.  Hobbs' 
Estate    (Colo.)    1916C-823.       (Annotated.) 

85.  Stock  in  Foreign  Corporation.  The 
proviso  in  Colo.  Rev.  St.  1908,  §  5687,  that 
corporate  stock  shall  be  deemed  to  repre- 
sent the  corporate  property,  and  except  in 
cases  of  banking  corporations  shall  not  be 
taxed,  applies  to  domestic  and  fcJreign 
corporations  alike.  Denver  v.  Hobbs'  Es- 
tate  (Colo.)    1916C-823.  (Annotated.) 

6.  PENALTY  FOR   NON-PAYMENT 
OF  TAXES. 

86.  Restriction  on  Eights  of  DelincLuent 
Taxpayer — Validity  of  Statute.  A  stat- 
ute making  the  payment  of  taxes  to  date 
a  condition  precedent  to  obtaining  an  oc- 
cupation license  is  valid  though  it  re- 
quires the  payment  of  taxes  which  became 
due  before  the  enactment  of  the  statute. 
In  re  Kalana  (Hawaii)   1916D-1094. 

(Annotated.) 
Note. 
"Validity  of  statute  imposing  restriction 
on   exercise   of   rights  by   delinquent   tax- 
payer.    1916D-1099. 


7.    LIEN  FOR   TAXES. 

a.  In  General. 

87.  Effect  on  Easement.  Prior  ease- 
ments of  light,  air,  and  access  appurte- 
nant to  adjoining  lands,  were  not  subject 
to  a  tax  lien  on  the  servient  estate.  Tax 
Lien  Co.  v.  Schultze  (N.  Y.)  1916C-636. 

b.  Foreclosure. 

88.  Necessary  Parties.  In  an  action 
under  Greater  New  York  Charter  (Laws 
1901,  c.  466,  §§  1035-1039,  as  amended  by 
Laws  1908,  e.  490,  and  Laws  1911,  c.  65) 
to  foreclose  a  tax  lien,  the  owners  of 
property  adjoining  the  property  described 
at  the  tax  sale,  including  the  easements 
over  the  property  so  described,  are  not 
necessary  parties.  Tax  Lien  Co.  v. 
Schultze  (N.  Y.)  1916C-636. 

89.  Sale — ^Duty  of  Purchaser  to  Accept 
Encumbered  Title.  Easements  of  light, 
air,  and  access  in  the  premises  sold  on 
the  foreclosure  of  a  tax  lien  appurtenant 
to  adjoining  lands  materially  affected  its 
value,  and  the  purchaser  was  not  bound 
to  accept  title  thereto.  Tax  Lien  Co.  v. 
Schultze  (N.  Y.)  1916C-636. 

8.     REMEDY  FOR  ERRONEOUS  TAXA- 
TION  OR   ASSESSMENT. 

a.     Injunction. 

90.  Enjoining  Payment — Eights  of  Cor- 
porate Stockholder.  The  maintenance  by 
a  stockholder  of  a  suit  to  restrain  a  cor- 
poration from  voluntarily  complying  with 
the  income  tax  provisions  of  the  Tariff 
Act  of  October  3,  1913  (38  Stat,  at  L.  166, 
c.  16,  Fed.  St.  Ann.  1914  Supp.  p.  185), 
upon  the  grounds  of  the  repugnancy  of 
the  statute  to  the  federal  constitution,  of 
the  peculiar  relation  of  the  corporation  to 
the  stockholders,  and  their  particular  in- 
terests resulting  from  many  of  the  ad- 
ministrative provisions  of  the  assailed 
act,  of  the  confusion,  wrong,  and  multipli- 
city of  suits,  and  the  absence  of  all  means 
of  redress,  which  will  result  if  the  cor- 
poration pays  the  tax  and  complies  with 
the  act  in  other  respects  without  protest, 
as  it  is  alleged  it  is  its  intention  to  do, 
is  not  forbidden  by  the  prohibition  of 
U.  S.  Rev.  Stat.  §  3224,  3  Fed.  St.  Ann. 
689,  against  enjoining  the  enforcement  of 
taxes.  Brushaber  v.  Union  Pacific  R.  Co. 
(U.  S.)   1917B-713. 

91.  Jurisdiction  of  Federal  Court.  State 
oflBcers  charged  with  the  duty  of  enforcing 
the  tax  laws  of  the  state  may  be  enjoined 
by  a  federal  court  of  equity  from  taking 
steps  looking  toward  the  enforcement  of 
state  and  local  taxes  upon  the  intangibles 
assessed  under  state  authority,  which  are 
property  of  a  public  service  corporation, 
asserted  to  violate  the  federal  constitu- 
tion 'because    of    a    discrimination   in   the 


800 


DIGEST. 

1916C— 1918B. 


valuation  of  the  property  upon  which  the 
taxes  are  based,  arising  out  of  ayatematic 
undervaluation  of  other  taxable  property, 
although  the  state  laws  under  the  sanc- 
tion of  which  the  officers  assumed  to  act 
in  making  the  assessment  do  not  contem- 
plate any  unlawful  discrimination.  Louis- 
viUe,  etc.  E.  Co.  v.  Greene  (U.  S.)  1917E- 
97. 

92.  "Bight  to  Injunction  Against  Tax.  A 
public  service  corporation  may  sue  in 
equity  to  restrain  state  officers  from 
taking  steps  looking  to  the  enforcement 
of  certain  state  and  local  so-called  fran- 
chise taxes  on  the  ground  of  discrimina- 
tion in  valuation  of  the  intangible  prop- 
erty upon  which  such  taxes  are  based,  not- 
withstanding the  remedy  afforded  by  Ky. 
Stat.  §  162,  directing  the  state  auditor 
to  refund  taxes  unlawfully  collected,  such 
remedy  being  inadequate  to  prevent  equi- 
table relief  for  two  reasons:  (a)  by  the 
decisions  of  the  Kentucky  courts  this  sec- 
tion is  confined  to  cases  where  the  taxes 
paid  were  wholly  without  warrant  in  law, 
or  based  upon  a  mistake  as  to  the  rate  of 
taxation  upon  the  amount  assessed;  (b) 
the  bills  deal  with  both  state  and  local 
taxes,  while  this  section  applies  to  state 
taxes  alone.  Louisville,  etc.  E.  Co.  v. 
Greene  (U.  S.)  1917E-97. 

93.  Eemedy  Against  Illegal  Title.  Dis- 
criminatory taxation  contravening  the  ex- 
press requirements  of  a  state  constitution 
is  not  beyond  redress  by  injunction  in  the 
federal  courts,  their  jurisdiction  being 
properly  invoked,  when  the  discrimination 
results  from  divergent  action  by  differ- 
ent assessing  boards,  whose  assessments 
are  not  subject  to  any  process  of  equaliza- 
tion established  by  the  state,  and  where 
the  diverse  results  are  the  outcome  of  the 
intentional,  systematic,  persistent  under- 
valuation of  one  body  of  officials,  pre- 
sumably known  to  and  ignored  by  the 
other  body,  so  that  the  two  bodies  act  in 
effect  in  concert.  Greene  v.  Louisville, 
etc.  E.  Co.  (U.  S.)  1917E-88. 

94.  A  suit  attacking  the  valuation  of 
intangible  corporate  property  for  tax  pur- 
poses should  not  have  been  in  effect  de- 
cided against  the  plaintiff  because  there 
was  nothing  in  the  record  to  show  the 
truth  of  certain  averments  in  a  supple- 
mental bill,  filed  with  the  court's  permis- 
sion after  the  hearing  and  decision  of  the 
cause,  but  before  entry  of  the  final  decree, 
even  though  it  cannot  be  said  that  de- 
fendants, by  not  answering,  admitted 
such  averments,  or  that  the  court  erred 
in  failing  to  give  effect  to  them,  there 
being  nothing  in  the  record  to  show  that 
defendants  were  ordered  to  answer  or  to 
show  why  the  averments  were  ignored, 
since  plaintiff  could  not  be  held  in  de- 
fault for  omitting  to  introduce  evidence 
at  the  hearing  respecting   these   matters. 


they  not  having  been  considered  by  the 
state  board  which  made  the  valuation, 
nor  set  up  in  the  original  pleadings,  nor, 
so  far  as  appears,  deemed  by  any  of  the 
parties  to  be  material  until  the  court  ren- 
dered its  decision.  Louisville,  etc.  E.  Co. 
V.  Greene   (U.  S.)  •1917E-97. 

95.  State  as  well  as  local  so-called  fran- 
chise taxes  based  upon  an  assessment  of 
the  intangible  property  of  a  public  service 
corporation,  made  by  the  state  board  of 
valuation  and  assessment,  may  be  en- 
joined by  a  federal  court  for  discrimina- 
tion contrary  to  U.  S.  Const.  14th  Amend, 
arising  out  of  systematic  undervaluation 
of  other  taxable  property,  where  the 
proper  state  officers  charged  with  the  en- 
forcement of  the  tax  law  of  the  state  are 
made  parties.  LouLsville,  etc.  E.  Co.  v. 
Greene   (U.  S.)    1917E-97. 

96.  State  officers  charged  with  the  duty 
of  enforcing  the  tax  laws  of  the  state 
may  be  enjoined  by  a  federal  court  of 
equity  from  taking  steps  looking  to  the 
enforcement  of  state  and  local  taxes  upon 
the  intangible  property  of  a  public  service 
corporation,  assessed  under  state  author- 
ity, which  are  asserted  to  violate  the  fed- 
eral constitution  because  of  a  discrimina- 
tion in  the  valuation  of  the  property  upon 
whiph  the  taxes  are  based,  arising  out  of 
systematic  undervaluation  of  other  tax- 
able property,  although  the  state  laws 
under  the  sanction  of  which  the  officers 
assumed  to  act  in  making  the  assessment 
do  not  contemplate  any  unlawful  discrim- 
ination. Greene  v.  Louisville,  etc.  E.  Co. 
(U.  S.)  1917E-88. 

97.  A  court  of  equity  has  jurisdiction  of 
suits  to  enjoin  action  looking  to  the  en- 
forcement of  taxes  upon  the  intangible 
property  of  public  service  corporations  as- 
sessed under  state  authority,  upon  the 
ground  of  discrimination  in  valuation  aris- 
ing out  of  systematic  undervaluation  of 
other  taxable  property,  where  the  bills 
assert  that  the  unauthorized  illegal  valua- 
tion constitutes  a  cloud  and  a  lien  upon 
the  plaintiff's  property,  and  that,  unless 
restrained,  numerous  and  vexatious  suits 
will  be  instituted  to  foreclose  such  lien, 
together  with  civil,  penal,  or  criminal 
proceedings  based  upon  plaintiff's  sup- 
posed delinquency  in  the  payment  of 
taxes.  Greene  v.  Louisville  etc,  E.  Co. 
(U.  S.)  1917E-88. 

98.  Equitable  relief  to  public  service 
corporations  against  the  certification  and 
enforcement  by  state  officers  of  state  and 
local  so-called  franchise  taxes  upon  the 
ground  of  a  discrimination  in  the  valua- 
tion of  the  intangible  property  of  the  cor- 
porations upon  which  the  taxes  are  based, 
arising  out  of  systematic  undervaluation 
of  other  taxable  property,  may  not  be 
denied  upon  the  theory  that,  under  Ky. 
Stat.  §§4115-4120,  4123,  a  method  is  pro- 


TAXATION. 


801 


vided  by  which,  instead  of  lowering  the 
assessments  upon  their  property,  they 
could,  by  proper  procedure,  compel  the 
assessment  of  the  property  of  other  tax- 
payers to  be  increased,  so  as  to  come 
within  the  requirement  of  Ky.  Const. 
§172  as  to  fair  cash  value,  where  there  is 
nothing  in  these  provisions  to  indicate 
that  the  parties  situated  as  are  these  cor- 
porations, who  have  no  different  interests 
in  the  undervaluation  by  the  local  asses-- 
sors  from  that  which  might  be  possessed 
by  any  other  citizens,  are  entitled  to  be 
heard  to  complain  that  such  assessments 
are  too  low,  nor  is  any  case  cited  where 
such  a  complaint  has  been  entertained, 
the  remedy  of  reassessment  being  a  pub- 
lic, not  a  private,  remedy,  Greene  v. 
Louisville,  etc.  E.  Co.  (U.  S.)  1917E-88. 

99.  A  public  service  corporation  may 
sue  in  equity  to  restrain  state  oflScers  from 
taking  steps  looking  to  the  enforcement 
of  certain  state  and  local  so-called  fran- 
chise taxes  on  the  ground  of  discrimina- 
tion in  valuation  of  the  intangible  prop- 
erty upon  which  such  taxes  are  based, 
notwithstanding  the  remedy  afforded  by 
Ky.  Stat.  §  162,  directing  the  state  auditor 
to  refund  taxes  unlawfully  collected,  such 
remedy  being  inadequate  to  prevent  equi- 
table relief  for  two  reasons:  (a)  by  the 
decisions  of  the  Kentucky  courts  this  sec- 
tion is  confined  to  cases  where  the  taxes 
paid  were  wholly  without  warrant  in  law, 
or  based  upon  a  mistake  as  to  the  rate  of 
taxation  upon  the  amount  assessed;  (b) 
the  bills  deal  with  both  state  and  local 
taxes,  while  this  section  applies  to  state 
taxes  alone.  Greene  v.  Louisville,  etc. 
R.  Co.   (U.  S.)   1917E-88. 

100.  The  requirement  of  Ky.  Const. 
§  172,  that  all  property  "shall  be  assessed 
for  taxation  at  its  fair  cash  value,  esti- 
mated at  the  price  it  would  bring  at  a 
fair  voluntary  sale,"  will  not  prevent  in- 
junctive relief  against  steps  looking  to  the 
enforcement  of  certain  state  and  local  so- 
called  franchise  taxes  based  upon  an  assess- 
ment of  the  intangible  property  of  a  pub- 
lic service  corporation  by  the  state  board 
)f  valuation  and  assessment  at  not  more 
than  its  fair  cash  value,  where  the  local 
assessing  officers  charged  with  valuing 
other  classes  of  property  systematically 
undervalue  such  property,  since  to  apply  to 
one  class  of  property  the  standard  ol  fair 
cash  value,  systematically  departed  from 
with  respect  to  other  classes  of  property, 
would  frustrate  the  principal  object  of  that 
section,  which,  in  view  of  the  provisions  of 
§§  171  and  174,  requiring  uniformity  of 
taxation  in  proportion  to  value,  and  an 
identical  rate  as  between  corporate  and  in- 
dividual property,  must  be  deemed  to  be 
equal  taxation.  Greene  v.  Louisville,  etc. 
R.  Co.  (U.  S.)  1917E-88. 

51 


b.     Eecovery  Back  of  Taxes  Paid. 

101.  Void  Levy — Rights  as  to  Money 
Collected.  In  a  township's  action  against 
a  city  within  its  boundaries  to  recover 
road  and  bridge  funds  wrongfully  paid 
over  to  the  city  by  the  township  officers 
under  a  mistake  of  law,  it  is  no.  defense 
that  the  funds  were  derived  from  a  void 
tax  levy.  Lamar  Township  v.  Lamar 
(Mo.)  1916D-740. 

102.  Moneys  collected  as  taxes  under  an 
unconstitutional  statute  may  be  recovered 
back  under  Iowa  Code,  §  1417,  providing 
for  the  return  of  taxes  illegally  paid  or 
exacted;  such  moneys  being  regarded  as 
taxes.  Commercial  Nat.  Bank  v.  Board  of 
Supervisors  (Iowa)  1916C-227. 

103.  Payment  Under  Mistake  of  Law. 
Under  Iowa  Code,  §  1417,  requiring  the 
return  of  taxes  illegally  or  erroneously  ex- 
acted or  paid,  taxes  paid  under  a  mistake 
of  law  may  be  recovered.  Commercial 
Nat.  Bank  v.  Board  of  Supervisors  (Iowa) 
1916C-227. 

104.  Payment  Under  Unconstitutional 
Statute.  Taxes  paid  under  a  statute  sub- 
sequently declared  unconstitutional  by  the 
federal  supreme  court  may  be  recovered 
back  under  Iowa  Code,  §  1417^  providing 
for  the  return  of  taxes  illegally  exacted; 
for  the  statute  was  unconstitutional  at  the 
time  of  enactment,  and  the  fact  that  it 
was  not  immediately  declared  so  does  not 
deprive  the  taxpayer  of  the  right  to  re- 
imbursement. Commercial  Nat.  Bank  t. 
Board  of  Supervisors  (Iowa)  1916C-227. 

105.  Voluntary  Payment.  Under  Iowa 
Code,  §  1417,  providing  for  the  return  of 
taxes  erroneously  or  illegally  exacted  and 
paid,  it  is  no  defense  that  the  taxes  were 
paid  voluntarily.  Commercial  Nat.  Bank 
V.  Board  of  Supervisors  (Iowa)  1916C- 
227. 

106.  Payment  Under  Protest.  Such 
charges,  having  in  the  case  at  bar  been 
demanded  of  the  plaintiff  by  an  officer  act- 
ing under  color  of  law,  and  for  public  ser- 
vices which  the  plaintiff  was  entitled  to 
have  performed,  and  having  been  paid 
under  written  protest  and  under  circum- 
stances where  injury  to  the  estate  and  to 
third  parties  would  have  resulted  from  a 
refusal  to  pay  such  fees  and  a  resort  to 
legal  remedies  to  compel  the  performance 
of  the  official  duties,  were  paid  under 
compulsion  and  duress,  and  can  be  recov- 
ered from  the  county  upon  a  proper  show- 
ing being  made.  Malin  v.  Lamoure 
County  (N.  Dak.)  1916C-207. 

c.     Annulment  of  Refunding  Order. 

107.  Correction  and  Eefundlng — Pro- 
cedure. An  order  of  exoneration  of  taxes, 
and  for  repayment  of  taxes  paid  upon  an 


802  DIGEST. 

1916C— 1918B. 

erroneous  assessment,  procured  by  the  ap- 
plicant and  drawn  on  th.e  sheriff,  in  his 
favor,  pursuant  to  section  94,  chapter  29, 
W.  Va.  Code  1899,  cannot  be  set  aside  or 
annulled  by  the  county  court,  at  a  subse- 
quent term,  without  notice  or  process  to 
such  applicant.  Such  order  or  rescission 
is  absolutely  void  and  of  no  effect.  Eu- 
reka Pipe  Line  Co.  v.  Riggs  (W.  Va.) 
1918A-995. 


d.    Mandamus  to  Compel  Refund. 

108.  Iowa  Code,  §  1417,  providing  that 
the  board  of  supervisors  shall  direct  the 
treasurer  to  refund  taxes  erroneously  or 
illegally  exacted,  is  mandatory,  and  the 
board  of  supervisors  may  in  a  proper  case 
be  required  by  mandamus  to  order  the 
treasurer  to  repay  the  taxes  illegally  col- 
lected. Commercial  Nat.  Bank  v.  Board 
of  Supervisors  (Iowa)  1916C-227. 

e.    Refund  by  County  Treasurer. 

109.  Under  Iowa  Code,  §  1417,  providing 
that  the  board  of  supervisors  shall  direct 
the  treasurer  to  refund  taxes  erroneously 
paid  or  illegally  exacted,  the  board  must 
first  ascertain  whether  the  taxpayer  is  enti- 
tled to  reimbursement,  and,  having  done  so, 
it  is  the  treasurer's  duty  to  repay  from  the 
particular  funds  into  which  the  taxes  have 
gone  the  amount  of  the  illegal  exaction. 
Commercial  Nat.  Bank  v.  Board  of  Super- 
visors (Iowa)   1916C-227. 

f.     Estoppel  of  Taxpayer. 

110.  Listing  Property  for  Taxation. 
Where  plaintiff,  pursuant  to  an  uncon- 
stitutional statute,  listed  and  paid  taxes 
upon  property  which  was  not  subject 
to  taxation,  the  listing  of  the  property 
does  not  estop  plaintiff  from  asserting  the 
illegality  of  the  exaction  and  recovering 
the  payment.  Commercial  Nat.  Bank  v. 
Board  of  Supervisors  (Iowa)  1916C-227. 

(Annotated.) 
Notes. 
Estoppel  of  taxpayer  to  question  valid- 
ity of  tax.     1916C-225. 

Estoppel  of  taxpayer  returning  property 
for  taxation  to  dispute  assessment  based 
on  return.     1916C-230. 


9.     TAX  SALES  AND  DEEDS. 


of 


a.     Time   for   Redemption   and  Notice 
Expiration  of  Time. 

111.  Statement  of  Time  of  Expiration. 
A  tax  deed  to  land  is  void,  if  issued  by  the 
county  treasurer  under  a  sale  made  by  him 
November  7,  1904,  where  the  purchaser  in 
his  notice  to  redeem  stated  that  the  time 
for  redemption  would  expire  November  8, 
1906.  the  statutory  period  in  fact  expiring 
November  7,  1906.     Neb.  Comp.  St.  1903, 


c.   77,  art.  1,  §  214.     Stewart  v.  Ridenour 
(Neb.)  1917A-242.  (Annotated.) 

112.  Notice  of  Redemption— Sufficiency. 
A  tax  deed  issued  is  not  valid  where  the 
notice  of  the  time  for  redemption  was  not 
published  in  accordance  with  N.  Car.  Re- 
visal  1905,  §  2903,  requiring  such  notices, 
and  was  not  directed  to  the  trustee,  in 
whose  name  title  was  held,  even  though 
the  purchaser's  aflSdavit  showed  his  knowl- 
edge of  the  fact  of  the  trust.  Johnson  v. 
Whilden  (N.  Car.)  1916C-783. 

113.  Notice  of  Expiration  Insufficient. 
A  notice  of  expiration  of  redemption  from 
a  tax  sale  which  imposes  upon  the  redemp- 
tioner  the  burden  of  determining  which  of 
two  amounts  stated  therein  as  necessary  tO' 
redeem  is  correct  does  not  comply  with  the 
statutes  upon  the  subject  and  is  insuffi- 
cient. Telford  v.  McOillis  (Minn.)  1916E- 
157. 

114.  The  notice  in  this  respect  must  be 
definite  and  specific  and  free  from  doubt 
and  uncertainty.  Telford  T.  McGUlis 
(Minn.)  1916E-157. 

Note. 

Sufficiency  of  notice  to  redeem  from  tax 
sale  with  respect  to  statement  as  to  expi- 
ration of  time  to  redeem.     1917A-243. 

b.    Merger   of   Tax   Title   in   Subsequent 
Deed. 

115.  Where  a  remainderman  purchases  a 
tax  title  in  the  circumstances  above  stated, 
and  enters  into  possession  under  it,  and 
afterwards  takes  a  quitclaim  deed  from 
the  life  tenant,  the  tax  title  is  not  neces- 
sarily merged  in  the  conveyance  of  the  life 
estate.  Jinkiaway  v.  Ford  (Kan.)  1916D- 
321. 

10.     SPECIAL  ASSESSMENTS. 
a.     Nature  and  Exercise  of  Power. 

116.  Local  Assessment — Power  to  Make. 
A  local  assessment  levied  by  a  city  under 
the  provisions  of  Rem.  &  Bal.  Wash.  Code, 
§  7767,  to  pay  for  widening  a  street,  is 
levied  in  the  exercise  of  the  sovereign 
power  of  taxation,  though  by  proceedings 
supplemental  to  eminent  domain  proceed- 
ings. Carstens  &  Earles  v.  Seattle  (Wash.)" 
1917A-1070. 

b.     Nature  of  Improvement. 

117.  For  What  Purpose — Improvement 
Abating  Nuisance.  Where  the  power  of  a 
city  to  construct  sewers  was  plenary,  the 
fact  that  a  proposed  sewer  would  also  do 
away  with  a  public  nuisance  which  it  was 
the  duty  of  the  city  to  abate  will  not  in- 
validate an  assessment  of  benefits  on  the 
ground  that  the  construction  of  the  sewer 
was  merelv  to  abate  a  public  nuisance. 
Dellaripa's"  Appeal    (Conn.)    1917B-862. 


TAXATION. 


803 


c.     Property  Subject  and  Exemptions. 

118.  Acts  1903,  c.  204  (Burns'  Ind.  Ann. 
St.  1908,  §  6671),  providing  that  common 
school  corporations,  whose  property  has 
been  benefited  by  a  public  improvement, 
shall  be  liable  for  assessments  for  the  im- 
provement, if  assessments  could  have  been 
levied  had  the  property  been  privately 
owned,  is  not  in  conflict  with  Bill  of 
Eights,  §  2],  declaring  that  no  man's  prop- 
erty shall  be  taken  without  just  compensa- 
tion. School  Town  of  Windfall  City  v. 
Somerville  (Ind.)  1916D-661. 

(Annotated.) 

119.  Acts  1903,  c.  204  (Burns'  Ind.  Ann. 
St.  1908,  §§  6670,  6671),  providing  that  the 
real  estate  of  common  school  corporations 
shall  be  liable  for  assessments  for  public 
improvements,  is  not  impliedly  repealed 
by  Acts  1907,  c.  110  (Burns'  Ann.  St.  1908, 
§§  8712,  8713),  which  makes  the  same  pro- 
vision as  to  the  real  property  of  all  coun- 
ties, townships,  towns,  and  other  munici- 
palities. School  Town  of  Windfall  City 
V.  Somerville   (Ind.)   1916D-661. 

(Annotated.) 

120.  Liability  of  School  Property.     The 

exemption  of  educational  property  from 
taxation  provided  for  by  Ind.  Const,  art. 
10,  §  1,  and  Burns'  Ind.  Ann.  St.  1908, 
§  10144,  does  not  apply  to  local  assessments 
against  real  property,  based  on  benefits 
from  public  improvements.  School  Town 
of  Windfall  City  v.  Somerville  (Ind.) 
1916D-661.  (Annotated.) 

121.  Railroad  Eight  of  Way.  A  railroad 
right  of  way,  if  actually  benefited,  may 
be  assessed  for  a  local  drain,  which  is 
constructed  under  the  provisions  of  chap- 

.  ter  23,  N.  Dak.  Rev.  Codes  1905,  and  this 
irrespective  of  the  fact  whether  the  fee  is 
in  the  railroad  company  or  not.  Northern 
Pacific  R.  Co.  v.  Pachland  County  (N. 
Dak.)   1916E-574.  (Annotated.) 

122.  Chapter  23,  N.  Dak.  Rev.  Codes 
1905,  which  provides  for  the  assessment 
of  railroad  rights  of  way  for  the  benefits 
conferred  by  the  construction  of  local 
drains,  does  not  violate  the  provisions  of 
the 'Fourteenth  Amendment  to  the  federal 
constitution,  nor  the  so-called  commerce 
clause  (section  8,  art.  1)  of  that  instru- 
ment, even  though  it  is  sought  to  be  ap- 
plied to  interstate  lines.  Northern  Pa- 
cific R.  Co.  V.  Richland  County  (N.  Dak.) 
1916E-574.  (Annotated.) 

123.  County  Property.  There  is  no  ex- 
press provision  in  the  constitution  of  the 
state  of  Florida  as  to  special  assessments 

•  by  a  municipality  for  local  improvements. 
Under  the  provisions  of  section  8,  art.  8, 
of  such  constitution,  the  legislature  may, 
by  statute,  give  to  a  city  authority  to 
make  a  special  assessment  for  street  im- 
provements against  property  belonging  to 
the    county   located    within    the    city   and 


used  for  governmental  purposes,  and  such 
authority  may  be  conferred  by  a  special 
act.  Gainesville  v.  Alachua  County  (Fla.) 
1917D-843. 

Notes. 
Public  property  as  subject  to  special  as- 
sessment.    1917D-844. 

Assessment  of  railroad  right  of  way  for 
street  improvement.     1916EI-579. 

d.     Superiority  of  Lien. 

124.  Superiority  to  Prior  Liens.  The 
legislature  may  create  a  lien  for  taxes 
either  general  or  by  local  assessment,  su- 
perior to  all  other  liens,  regardless  of  prior- 
ity of  time.  Carstens  &  Earles  Seattle 
(Wash.)  1917A-1070.  (Annotated.) 

125.  The  fact  that  the  general  revenue 
statutes  and  certain  local  assessment  stat- 
utes expressly  provided  that  mortgage  and 
other  private  liens  should  be  inferior  to 
the  lien  of  those  taxes  does  not  require 
the  statute  creating  liens  for  local  improve- 
ments for  street  widening,  which-  contains 
no  express  provision  as  to  priority,  to  be 
construed  as  not  making  such  liens  supe- 
rior, since  the  intention  of  the  legislature 
in  the  latter  act  to  establish  such  priority 
is  plain.  Carstens  &  Earles  v.  Seattle 
(Wash.)  1917A-1070.  (Annotated.) 

Note. 

Validity  and  construction  of  statute  giv- 
ing priority  to  lien  for  taxes.  1917A- 
1079. 

e.     Contract  for   Making  Improvement. 

126.  Use  of  Patented  Article  in  Street 
Improvement.  That  a  contract  for  street 
improvements  involves  the  use  of  a  pat- 
ented article  does  not  render  an  assessment 
therefor  invalid  under  Wash.  Local  Im- 
provement Law  (Laws  1911,  c.  98,  p.  477) 
§  59,  providing  that  contracts  for  all  pub- 
lic improvements  to  be  paid  for  by  assess- 
ments shall  be  let  on  competitive  bids, 
where  the  owner  of  the  patent  stipulates 
with  the  city  that  the  patented  article 
will  be  furnished  to  the  successful  bidder, 
and  the  various  bidders  submit  their  bids 
apparently  relying  on  such  stipulation,  and 
no  objection  is  made  to  it  prior  to  objec- 
tions to  the  confirmation  of  the  assessm^'nt 
roll,  though  the  stipulation  provides  that 
it  shall  apply  only  to  contracts  aggregating 
not  less  than  10,000  square  yards  and  the 
contract  in  question  is  for  only  6,650  square 
yards.  Great  Northern  R.  Co.  v.  Leavfn- 
worth  (Wash.)  1916D-239.        (Annotated.) 

f.     Protests  and  Objections. 

127.  Protest  by  Proi>erty  Owners.    Vroo- 

man  Act  (Cal.  Gon.  Laws  1909.  Act  3930) 
§  3,  providing  that  the  owners  of  a  ma- 
jority of  the  frontage  of  the  propertv  on 
a  proposed  work  or  improvement  may  by 
protest  bar  the  work  for  six  months,  does 


804 


DIGEST. 

1916C— 1918B. 


not  warrant  the  owners  on  each  street  im- 
proved in  barring  the  work  by  their  pro- 
test; hence  the  improvement  of  several 
streets  together  does  not  deprive  a  ma- 
jority of  the  owners  of  any  one  of  their 
rights.  Bemillard  v.  Blake,  etc.  Co.  (Cal.) 
1916D-451. 

g.    Waiver  of  Objections. 

128.  Waiver  of  Irregularities — Abandon- 
ment. Where  property  owners  executed 
an  agreement  waiving  irregularities  iu 
street  assessments  in  consideration  of  a 
deduction  from  the  amount  of  the  assess- 
ment, provided  payment  should  be  made 
within  a  stipulated  time,  the  fact  that  the 
property  owners  did  not  make  payment 
within  the  time  fixed,  so  as  to  obtain  the 
deduction,  did  not  work  a  mutual  aban- 
donment of  the  waiver  agreement.  Eemil- 
lard  V.  Blake,  etc.  Co.   (Cal.)    1916D-451. 

129.  Irregularities  in  an  assessment  lien 
for  street  improvements  may  be  waived  by 
the  property  owners'  acts.  Bemillard  v. 
Biake,  etc.  Co.  (Cal.)  1916D-451. 

129%.  Payment  of  Tax.  The  fact  that 
an  abutting  property  owner  did  not  pro- 
test against  paying  a  special  tax  levied 
for  changing  the  grade  of  th^  street  would 
not  prevent  him  from  maintaining  an  ac- 
tion for  damages  from  changing  the  grade. 
Gray  v.  Salt  Lake  City  (Utah)  1916D- 
1135. 

130.  Defects  in  Proceeding.  Defects  in 
an  engineer's  report  on  a  proposed  public 
improvement,  as  measured  by  the  require- 
ments of  a  resolution  authorizing  it  and  bv 
Wash.  Laws  1911,  p.  444,  §  10,  in  that  it 
failed  to  show  the  proportionate  amount 
of  the  cost  to  be  borne  by  the  property 
within  the  district  and  the  diagram  failed 
to  show  the  lots  specifically  benefited 
thereby  and  the  estimated  cost  to  be  borne 
by  each,  not  being  jurisdictional,  are 
waived  by  property  owners  who  appear 
before  the  council  in  response  to  the  no- 
tice but  fail  to  offer  any  objection  touch- 
ing the  report,  and  also  by  property  own- 
ers who  fail  to  appear  in  response  to  such 
notice  and  permit  the  improvement  to  j  re- 
cced and  urge  no  objection  prior  to  object- 
ing to  confirmation  of  the  assessment  roll. 
Great  Northern  R.  Co.  v.  Leavenworth 
(Wash.)    1916D-239. 

h.     Mode  of  Assessment. 

131.  Local  Improvements — How  Initiated. 
Under  Wash.  Laws  1911,  p.  441,  covering 
the  subject  of  local  improvements  in  cities 
and  towns,  providing  that  the  city  may 
define  the  mode  of  making  the  assessment 
by  general  ordinance  not  inconsistent  with 
the  statute,  an  assessment  is  not  void  be- 
cause the  proceedings  were  initiated*  prior 
to  the  passage  of  a  general  ordinance, 
where  each  step  in  the  proceeding  was  di- 
rected by  the  city  council  either  by  resolu- 


tion or  ordinance,  and  a  proper  general 
ordinance  was  passed  before  any  assess- 
ment was  levied.  Great  Northern  B.  Co. 
V.  Leavenworth  (Wash.)  1916D-239. 

132.  Front  Foot  Bule — Effect  of  Inequal- 
ity. Where  several  streets  of  varying 
width  were  improved  as  part  of  a  single 
scheme  and  assessments  were  made  on  a 
frontage  basis,  the  fact  that  property  own- 
ers on  narrow  streets  were  required  to  pay 
the  same  amount  as  those  on  wider  streets 
did  not  invalidate  the  assessment.  Bemil- 
lard V.  Blake,  etc.  Co.   (Cal.)    1916D-451. 

133.  Error  in  Description — Effect.  Where 
the  description  of  an  assessment  district 
for  paving  shows  that  the  word  "second" 
is  through  clerical  mistake  omitted  before 
the  name  of  an  addition,  the  addition  be- 
ing subject  to  identification  and  the  omis- 
sion a  mere  inadvertence,  it  will  not  in- 
validate the  description.  Moore  v.  Paving 
Improvement  District  (Ark.)  1917D-599. 

Note. 

Time  within  which  special  or  local  as- 
sessment must  be  made.     1917E-137. 


1.    Notice  to  Owner. 

134.  Constructive  service  of  notice  of  a 
local  improvement  assessment  satisfies  the 
constitutional  requirements  of  due  process 
of  law.  Carstens  &  Earles  v,  Seattle 
(Wash.)    1917A-1070. 

135.  Constructive  Notice  to  Landowners. 
The  service  of  notice  of  a  special  assess- 
ment, as  required  by  Bem.  &  Bal.  Wash. 
Code,  §§  7787-7813,  by  mail  to  the  owners 
of  the  property,  by  the  posting  of  notice 
thereon,  and  by  advertisement  in  a  news- 
paper, is  constructive  service  onlv.  Cnr- 
stens  &  Earles  v.  Seattle  (Wash.)  1917A- 
1070. 

136.  Under  Rem.  &  Bal.  Wash.  Code, 
§§  7787-7813,  prescribing  the  procedure 
for  the  creation  and  enforcement  of  liens 
for  special  assessments,  which  provides 
for  only  constructive  service  of  notice  and 
gives  to  all  parties  interested  in  the  prop- 
erty the  right  to  redeem  from  the  tax 
sale,  the  proceeding  is  in  rem,  and  the  lien 
upon  the  land  itself  and  not  on  the  inter- 
est of  any  person  therein,  and  is  therefore 
superior  to  the  lien  of  a  prior  mortgage, 
though  there  is  no  express  provision  to  that 
effect  in  the  statute.  Carstens  &  Earles  v. 
Seattle  (Wash.)  1917A-1070. 

(Annotated.) 

j.     Proceedings. 

137.  Resolution  of  Intention  —  Suflaci- 
ency — Description  of  Bridge.  A  resolution 
of  intention  for  the  construction  of  wooden 
bridges  at  the  end  of  cross-walks  is  not  de- 
fective because  not  describing  the  kind  of 
wood  to  be  used.  Bemillard  v.  Blake,  etc. 
Co.  (Cal.)  191GD-451. 


TAXATION. 


805 


k.     Discontinuance   of  Proceedings. 

138.  Time  Within  Which  Proceeding  may 
be  Discontinued.  Until  an  assessment  for 
a  public  improvement  has  been  made  and 
adopted  by  the  court  of  common  council, 
the  obligation  of  the  city  is  not  fixed,  and 
the  proceeding  may  be  discontinued,  not- 
withstanding the  electors  of  the  city  have 
voted  to  appropriate  a  sum  of  money  for 
the  construction  of  the  improvement.  Del- 
Isripa's  Appeal  (Conn.)   1917B-8€2. 

1.     Enforcement  of  Assessment. 

139.  Personal  Judgment — School  Corpora- 
tion. Ind.  Acts  1889,  c.  118,  as  amended 
by  Acts  1891,  c.  118  (Burns'  Ann.  St.  1901, 
§  4288),  relating  to  assessments  for  public 
improvements  and  authorizing  a  waiver  of 
irregularities  in  consideration  of  permis- 
sion to  pay  the  assessment  in  10  instal- 
ments, gave  color  to  authority  to  municipal 
corporations  to  make  such  assessment  upon 
land  owned  by  common  school  corpora- 
tions. Acts  1903,  c.  204  (Burns'  Ann.  St. 
1908,  §  6671),  expressly  validated  such  as- 
sessments and  made  the  school  corpora- 
tions liable  for  assessments  for  improve- 
ments already  constructed.  Held,  that  as 
an  agreement  to  waive  irregularities  in 
consideration  of  permission  to  pay  the  as- 
sessment in  instalments  created  a  new  and 
independent  undertaking,  rendering  the 
property  holder  personally  liable,  such  an 
agreement  made  by  a  common  school  cor- 
poration, before  the  passage  of  the  statute 
of  1903,  must,  after  its  enactment,  ba  held 
to  authorize  a  personal  judgment  against 
the  corporation.  School  Town  of  Windfall 
City  v.  Somerville  (Ind.)  1916D-661. 

140.  Enforcement  of  Lien — Nature  of 
Proceeding.  Proceedings  to  enforce  a  lien, 
which  affects  only  the  right  of  some  per- 
son in  the  land,  are  not  strictly  proceedings 
in  rem,  as  are  those  to  enforce  a  tax  lien, 
which  affects  the  land  itself,  regardless  of 
the  ownership.  Carstens  &  Earles  v. 
Seattle  (Wash.)   1917A-1070. 

141.  Summary  Proceedings.  Summary 
proceedings  for  the  enforcement  of  a  local 
improvement  assessment  by  sale  of  the 
land  under  execution  of  a  tax  deed  upon 
failure  of  those  interested  to  redeem,  with- 
out further  hearing  upon  the  validity  of 
the  assessment  lien,  satisfies  the  require- 
ments of  due  process  of  law.  Carstens  & 
Earles  v.   Seattle    (Wash.)    1917A-1070. 

m.     Review  of  Proceedings. 

142.  Assessment  of  Benefits — Conclusive- 
ness of  Finding.  A  findinor  by  the  commit- 
tee of  special  benefits  to  landowners  from 
the  construction  of  a  sewer  is  conclusive 
on  appeal,  where  no  facts  appear  of  record 
showing  that  such  finding  could  not  reason- 
ablv  hav?  been  made.  Dellaripa's  Appeal 
(Conn.)  1917B-&62. 


143.  Proceedings  for  Assessment — A}^ 
veal.  Under  Wis.  St.  1913,  §  1087ral9,  pro- 
viding that  "any  person  dissatisfied  with 
any  determination"  of  the  county  board  of 
review  may  appeal  within  twenty  days, 
etc.,  an  income  tax  assessor  charged  with 
important  duties  in  the  administration  of 
the  income  tax  law,  and  who  in  the  first 
instance  assessed  a  tax  against  relator's 
salary  as  circuit  judge,  is  entitled  to  ap- 
peal from  the  action  of  the  board  of  re- 
view sustaining  relator's  objection  to  the 
tax.  State  v.  Nygaard  (Wis.)  1917A- 
1065. 

n.     Action  to  Enjoin  or  Set  Aside. 

144.  Fairness — Sufficiency  of  Evidence. 
In  a  suit  to  set  aside  an  assessment  for 
paving  purposes,  the  evidence  is  held  to 
show  that  the  assessment  was  made  in 
good  faith,  and  was  a  reasonable  assess- 
ment of  future  benefits,  and  not  a  mere 
arbitrary  apportionment  of  the  costs. 
Moore  v.  Paving  Improvement  District 
(Ark.)   1917D-599. 

11.  LICENSE  OR  OCCUPATION  TAXES. 

145.  Interstate  Business.  A  state  may 
levy  a  tax  upon  any  business  carried  on 
within  the  state,  as  on  the  occupation  of 
doing  business  as  a  merchant,  if  such  tax 
in  no  way  discriminates  against  persons 
residing  in  another  state  Or  the  products 
and  manufactures  of  another  state,  and  the 
levying  of  such  a  tax  is  not  a  regulation 
of  or  restraint  upon  interstate  commerce. 
Newport  v.  Wagner  (Ky.)  1917A-962. 

146.  A  license  or  occupation  tax,  imposed 
on  an  attorney  for  the  privilege  of  practic- 
ing his  profession,  is  not  the  same  as  a 
tax  on  income  derived  from  such  profes- 
sion, and  hence  the  fact  that  an  attorney 
was  subject  to  a  tax  on  his  income  after 
having  paid  a  license  tax  was  not  double 
taxation.  Commonwealth  v.  Werth  (Va.) 
1916D-1263.  (Annotated.) 

12.  EXCISE    OR   FRANCHISE    TAXES. 

a.    Nature. 

147.  Definition  of  Excise  Tax.  An  "ex- 
cise tax"  is  an  inland  impost  levied  on 
articles  of  manufacture  or  sale  and  also  on 
licenses  to  pursue  trades  or  dealing  in  com- 
modities, and  is  frequently  denominated  a 
privilege  or  occupation  tax.  Albert  Pick 
&  Co.  v.  Jordan  (Cal.)  1916C-ia37. 

148.  Corporation — ^When  Subject.  A  cor- 
poration subjects  itself  to  the  tax  im- 
posed bv  the  Corporation  Tax  Act  (Act 
Aug.  5,  1909.  Fed.  St.  Ann.  1909  Supp.  p. 
829)  by  exercising  the  privilege  of  carry- 
ing on  or  doing  business  for  any  part  of 
the  year  for  which  the  tax  is  imposed. 
Blalock  V.  Georgia  B.  etc.  Co.  (Fed.) 
1917A-679. 


806 


b.     Validity. 

(1)  Federal  Corporation  Tax  Act. 

149.  Federal  Corporation  Tax.  The  tax 
imposed  by  the  Corporation  Tax  Act  (Act 
Aug.  5,  1909,  Fed.  St.  Ann.  1909  Supp. 
p.  829)  on  corporations  organized  for  profit 
and  engaged  in  business  equivalent  to  one 
per  cent  on  the  net  income  above  $5,000  is 
valid  as  an  excise  on  the  privilege  of  doing 
business  in  a  corporate  capacity.  Blalock 
V.  Georgia  E.  etc,  Co.    (Fed.)    1917A-679. 

(2)  Foreign  Corporation  Tax  Act. 

150.  Validity.  Where  a  foreign  corpora- 
tion engaged  in  the  automobile  business 
purchased  real  estate  aad  erected  a  sub- 
stantial building  for  the  carrying  on  of  its 
repair  trade,  and  trade  in  used  cars,  as 
well  as  a  selling  agency,  Mass.  Foreign 
Corporation  Tax  Law  of  1909  (St.  1909, 
c.'490,  pt.  3),  which  greatly  increased  the 
license  taxes  upon  foreign  corporations, 
does  not  deprive  such  corporation  of  equal 
protection  of  the  laws;  it  not  appearing 
that  its  real  property  was  exclusively 
adapted  to  use  for  automobile  business, 
that  it  was  necessary  ior  it  to  have  pur- 
chased such  property  to  carry  on  its  busi- 
ness, or  that  the  property  could  not  ba  sold 
for  a  reasonable  price.  Marconi  Wireless 
Tel.  Co.  V.  Commonwealth  (Mass.)  1916C- 
214. 

151.  The  Mass.  Foreign  Corporation  Tax 
Law  (St.  1909,  c.  496,  pt.  3)  §  56  et  seq., 
is  valid,  it  imposing  an  excise  or  license, 
and  not  a  tax  upon  the  property  of  foreign 
corporations.  Marconi  Wireless  Tel.  Co. 
v.  Commonwealth  (Mass.)   1916C-214. 

152.  WTiere  a  foreign  corporation  does 
both  an  intrastate  and  interstate  business, 
an  excise  levied  by  the  state  upon  its  in- 
trastate business  is  not  invalid  because  the 
profit  on  the  intrastate  business  alone  is 
not  sufficient  to  meet  it.  Marconi  Wire- 
less Tel.  Co.  T.  Commonwealth  (Mass.) 
1910C-214. 

153.  Power  of  State  to  Tax.  Where  a 
foreign  corporation  which  does  an  inter- 
state commerce  business  within  the  state 
also  does  a  domestic  business,  the  state 
may  levy  an  excise  tax  upon  it.  Marcnni 
Wireless  Tel.  Co.  v.  Commonwealth 
(Mass.)  1916C-214. 

c.    Construction  of  Statutes. 

154.  Whfere  a  Connecticut  corporation 
maintained  a  Boston  sales  office  where 
samples  were  kept  and  salesmen  for  the 
New  England  district  had  their  headquar- 
ters, it  is  not  wholly  engaged  in  interstate 
commerce,  it  appearing  that  customers 
visited  its  local  office,  and  hence  is  sub- 
ject to  Mass.  Foreign  Corporation  Tax 
Law  of  1909  (St.  1909,  c.  490.  pt.  3),  Mar- 
coni Wireless  Tel.  Co.  v.  Commonwealth 
(Mass.)  19K5C-214. 


DIGEST. 

1916C— 1918B. 

155.  Where  a  foreiarn  corporation  main- 
tained a  local  sales  office  where  orders  for 
the  sale  of  machines  were  received  subject 
to  approval  by  the  home  office,  but  repair 

f)arts  for  the  machines  were  kept  at  the 
ocal  office  and  a  large  business  in  repairs 
was  done,  the  corporation  is  not  engaged 
wholly  in  interstate  commerce,  and  is  sub- 
ject to  the  excise  tax  imposed  by  Mass. 
Foreign  Corporation  Tax  Law  of  1909  (St. 
1609,  c.  490,  pt.  3).  Marconi  Wireless  Tel. 
Co.  V.  Commonwealth   (Mass.)    1916C-214. 

156.  A  foreign  corporation  engaged  in 
the  automobile  business,  which  maintained 
a  local  sales  office  where  orders  for  ma- 
chines were  taken,  the  machines  being  sent 
as  ordered,  but  not  kept  distinct  for  each 
customer,  and  where  a  large  repair  and 
used  car  business  was  carried  on,  is  not 
engaged  wholly  in  interstate  commerce, 
and  is  subject  to  Mass.  Forei^  Corpora- 
tion Tax  Law  of  1909  (St.  1909,  c.  490,  pt. 
3).  Marconi  Wireless  Tel.  Co.  v.  Common- 
wealth (Mass.)    1916C-214. 

157.  A  foreign  flour  manufacturing  cor- 
poration, which  maintained  a  local  office 
from  whence  salesmen  were  sent  through 
the  country  to  secure  retail  orders  for  flour, 
which  were  delivered  to  the  wholesale  pat- 
rons of  the  company,  is  not  wholly  en- 
gaged in  interstate  commerce,  particularly 
where  a  small  stock  was  kept  on  hand  for 
local  sales,  and  is  subject  to  Mass.  Foreign 
Corporation  Tax  Law  of  1909  (St.  1909,  c. 
490,  pt.  3).  Marconi  Wireless  Tel.  Co. 
V.  Commonwealth   (Mass.)   1916C-214. 

158.  A  foreign  holding  company  whose 
articles  of  association  named  Boston  as  its 
business  office  without  the  state  of  its 
domicil,  and  which  maintained  a  Boston 
office,  where   dividends  from   the  stock   it 


held  for  the  benefit  of  its  shareholders 
were  received  and  were  paid,  is  not  en- 
gaged wholly  in  interstate  commerce,  and 
is  subject  to  the  Mass.  Foreign  Corporation 
Tax  Law  of  1909  (St.  1909.  c.  490,  pt.  3), 
particularly  where  its  officers  were  citizens 
of  the  state  of  Massachusetts,  and  all  of 
its  records  and  accounts  were  kept  in  that 
state.  Marconi  Wireless  Tel.  Co.  v.  Com- 
monwealth (Mass.)  1916C-214. 

159.  A  foreign  mining  company  whose 
property  was  located  in  another  state,  but 
which  was  authorized  to  maintain  a  Boston 
office,  at  which  its  directors'  meetings  were 
held,  its  policies  shaped,  and  selling  orders 
given,  is  not  engaged  in  interstate  com- 
merce, although  it  had  a  general  manager 
ill  charge  of  its  mining  business  in  the 
foreign  state,  and  hence  it  is  subject  to 
the  excise  prescribed  bv  Mass.  Foreign 
Corporation  Tax  Law  of  1909  (St.  1909, 
c.  490,  pt.  3).  Marconi  Wireless  Tel.  Co. 
V.  Commonwealth  (Mass.)  1916C-214. 

160.  A  foreign  corporation  which  main- 
tained a  Boston  office  under  a  manager 
who  had  charge  of  the  business  in  that 
vicinity,  and  under  whom  were  a  salesman 


TAXATION. 


807 


and  a  stenographer,  is  not,  where  all  orders 
had  to  be  approved  by  the  New  York  office, 
and  no  customers  came  to  the  Boston 
office,  payments  and  shipments  being  made 
from  outside  the  state,  engaged  in  local 
business  so  as  to  be  subject  to  Mass. 
Foreign  Corporation  Tax  Law  of  1909  (St, 
1909,  c.  490,  pt.  3).  Marconi  Wireless  Tel. 
€o.  V.  Commonwealth  (Mass.)  1916C-214. 

161.  Corporation  Engaged  Wholly  in  In- 
terstate Commerce — License  Tax.  A  for- 
eign wireless  company  which  maintained 
•within  the  state  stations  at  which  mes- 
sages to  and  from  ships  on  the  high  seas 
and  foreign  countries  were  received  and 
transmitted,  but  which  did  not  transmit 
any  local  messages,  is  engaged  wholly  in 
interstate  commerce,  and  is  not  subject  to 
the  excise  tax  imposed  By  Mass,  Foreign 
Corporation  Tax  Law  of  1909  (St.  1909, 
c.  490,  pt,  3).  Marconi  Wireless  Tel.  Co. 
V.  Commonwealth  (Mass,)  1916C-214. 

162.  Securities  Owned,  by  Domestic  Cor- 
poration. Mass.  Tax  Act  (St.  1909,  c.  490) 
part  3,  §  43,  provides  that  every  corpora- 
tion shall  annually  pay  a  tax  upon  its 
franchise,  but  the  said  tax  shall  not  ex- 
ceed a  tax  levied  at  a  certain  rate  upon 
an  amount  20  per  cent  in  excess  of  the 
value,  as  found  by  the  tax  commissioner, 
of  its  works,  structures,  real  estate,  ma- 
chinery, poles,  underground  conduits,  wires, 
pipes,  merchandise,  "and  all  securities 
which  if  owned  by  a  natural  person  resi- 
dent in  this  commonwealth  would  be  liable 
to  taxation."  A  domestic  corporation 
owned  a  bond  of  a  Vermont  corporation, 
and  contended  that  such  bond  was  a  debt 
due  to  it,  and  that  if  it  were  owned  by  a 
natural  person  resident  in  the  common- 
wealth who  owed  money  in  excess  of  the 
value  of  the  bond,  as  the  corporation  did, 
such  natural  person  could  not  be  taxed  on 
the  bond.  It  is  held,  that  such  domestic 
corporation  could  be  taxed  on  the  bond, 
since  the  expression  of  the  statute,  "securi- 
ties which  if  owned  by  a  natural  person 
resident  in  this  commonwealth  would  be 
liable  to  taxation."  was  not  intended  to  es- 
tablish the  same  standard  of  taxation  for 
the  corporation  as  for  an  individual;  the 
reference  to  such  securities  being  merely 
to  determine  the  taxable  character  of  the 
securities,  which,  if  they  possess  such 
character,  are  to  be  taken  into  account  in 
estimating  the  value  of  the  corporate  fran- 
chise, while,  from  its  total  assets  as  deter- 
mining such  value,  the  corporation  is  en- 
titled, upon  making  proper  return,  to  de- 
duct its  debts,  and  so  cannot  have  them 
deducted  a  second  time  by  utilizing  them, 
after  they  have  reduced  its  franchise 
value,  to  extinguish  the  taxable  character 
of  particular  items  of  the  corporation's 
property.  Bellows  '  Falls  Power  Co.  v. 
Commonwealth    (Mass,)    191©C-834. 

163.  "Securities,"  as  used  in  Mass.  Tax 
Act  (St.  1909,  c.  490)  part  3,  §  41,  provid- 
ing that  the  tax  upon  the  value  of  a  cor- 


porate franchise  of  a  domestic  business 
corporation  shall  not  exceed  a  tax  levied 
at  a  certain  rate  upon  an  amount  20  per 
cent  in  excess  of  the  value  of  the  works, 
etc.,  "and  of  the  securities  which  if  owned 
by  a  natural  person  resident  in  this  com- 
monwealth would  be  liable  to  taxation," 
IS  a  word  of  sufficiently  broad  import  to 
include  bonds  and  other  evidences  of  in- 
debtedness. Bellows  Falls  Power  Co.  t. 
Commonwealth  (Mass.)  1916C-834. 

d.     Assessment   and   "Valuation, 

164.  The  U.  6.  Corporation  Tax  Act  (Act 
Aug.  5,  1909,  Fed.  St.  Ann.  1909  Supp. 
p.  829)  provides  that  every  corporation 
organized  for  profit  and  having  a  capital 
stock  represented  by  shares  and  engaged 
in  business  shall  pay  annually  a  special 
excise  tax  with  respect  to  the  carrying  on 
or  doing  business  by  it  equivalent  to  one 
per  cent  upon  its  entire  net  income  from 
all  sources  during  the  year  above  $5,000. 
Section  6301  provides  that  such  net  in- 
come shall  be  ascertained  by  making  cer- 
tain deductions  from  the  gross  income  re- 
ceived within  the  year  from  all  sources. 
Section  6302  provides  that  there  shall  be 
deducted  from  the  net  income,  the  sum  of 
$5,000,  that  the  tax  shall  be  computed 
upon  the  remainder  of  such  income  for  the 
year  ending  December  31,  1909,  and  for 
each  calendar  year  thereafter,  and  that  on 
or  before  the  first  day  of  March  in  each 
year  a  true  and  accurate  return,  setting 
forth  the  gross  amount  of  income  received 
during  the  year,  etc,  shall  be  made  by 
corporations  subject  thereto.  It  is  held 
that  the  amount  of  the  tax  is  measured  by 
the  corporation's  income  during  the  entire 
calendar  year  in  which  the  privilege  of 
doing  business  is  exercised,  and  not  by  its 
income  during  the  part  of  the  year  that 
the  privilege  is  exercised  if  the  corpora- 
tion does  not  carry  on  or  do  business  dur- 
ing the  entire  year,  as  the  prescribed  tax 
is  a  single  and  indivisible  one,  and  but  one 
way  of  measuring  the  amount  to  be  paid 
is  provided.  Blalock  v.  Geor^a  K.,  etc. 
Co.  (Fed.)  1917A-679. 

165.  The  objection  that  a  state  board, 
when  fixing  the  value  of  the  capital  stock 
of  a  railway  company  upon  the  capital- 
ization-of-income  plan,  pursuant  to  Ky. 
Stat.  §§  4077-4081,  for  the  purpose  of  as- 
certaining the  value  for  taxing  "purposes 
of  its  intangible  property,  adopted  a  six 
per  cent  interest  rate  as  the  basis  of  capi- 
talization instead  of  the  higher  rate 
reached  by  taking  the  railway  company's 
mileage  in  each  of  the  states  in  which  it 
operates,  multiplying  this  by  the  legal 
rate  of  interest  in  that  state,  and  dividing 
the  total  of  the  products  by  the  total  mile- 
age, is  a  criticism  merely  of  the  conclu- 
sion of  the  board  upon  a  question  of  fact 
which  is  not  properly  subject  to  review 
by  the  courts,  Louisville,  etc,  K.  Co,  v. 
Greene  (U.  S.)  1917E-97.        (Annotated.) 


808 


DIGEST. 

1916C— 1918B. 


166.  To  avoid  a  double  assessment  there 
must  be  deducted  from  the  Kentucky  ap- 
portionment of  the  value  of  the  capital 
stock  of  an  interstate  railway  company, 
the  value  of  the  Kentucky  portion  of  the 
mileage  controlled  by  it  (in  additioii  to 
the  authorized  deduction  of  the  assessed 
value  of  the  property  there  situated)  when 
fixing,  conformably  to  Ky.  Stat.  §  4081,  the 
value  of  the  intangible  property  of  such 
company  for  tax  purposes,  since  the  local 
franchise  would  be  assessed  against  each 
of  the  separate  organizations.  Louisville, 
etc.  E.  Co.  V.  Greene  (U.  S.)  1917E-97. 

(Annotated.) 

167.  Valuation  of  Railroad  Property 
for   Taxation — Intangible   Property.    The 

method  of  deducting  nontaxable  assets 
adopted  by  a  state  board  of  valuation  and 
assessment  when  fixing  the  value  of  the 
capital  stock  of  a  railway  company  upon 
the  capitalization-of-income  plan,  pursuant 
to  Ky.  Stat.  §§4077-4081,  for  the  purpose 
of  ascertaining  the  value  for  taxing  pur- 
poses of  its  intangible  property,  cannqt  be 
said  by  the  courts  to  be  fundamentally 
erroneous  merely  because  there  was  de- 
ducted from  total  net  income  the  net  in- 
come only  of  nontaxable  securities  owned 
by  the  corporation,  although  much  of  the 
stock  of  other  corporations  thus  held, 
while  paying  no  dividends,  or  dividends 
of  low  rate,  may  have  had  large  intrinsic 
value  by  reason  of  the  control  it  gave 
over  other  lines  and  the  increment  it 
brought  to  the  aggregate  income  of  the 
company.  Louisville,  etc.  B.  Co.  v.  Greene 
(U.  S.)  1917E-97.  (Annotated.) 

168.  The  value  of  so  much  of  the  rail- 
way mileage  controlled  by  an  interstate 
railway  carrier  as  is  not  represented  by 
the  latter's  stock  holdings  should  be  in- 
cluded by  the  state  board  of  valuation 
and  assessment  when  fixing  the  value  of 
the  intangible  property  of  such  company 
for  tax  purpose,  conformably  to  Ky.  Stat. 
§  4081,  which  requires  that  "that  propor- 
tion of  the  value  of  the  capital  stock 
which  the  length  of  the  lines  operated, 
owned,  leased,  or  controlled  in  this  state 
bears  to  the  total  length  of  the  lines 
owned,  leased,  or  controlled  in  this  state 
and  elsewhere,  shall  be  considered  in  fix- 
ing the  value  of  the  corporate  franchise 
of  such  corporation  liable  for  taxation  in 
this  state."  Louisville,  etc.  R.  Co.  v, 
Greene   (U.  S.)   1917E-97.       (Annotated.) 

169.  The  controlled  mileage  within  and 
without  the  state,  and  not  merely  the 
operated  mileage,  is  what  the  state  board 
of  valuation  and  assessment  must  take 
into  consideration  when  fixing  the  value 
of  the  intangible  property  of  an  inter- 
state railway  company  for  tax  purposes, 
conformably  to  Ky.  Stat.  §  4081,  which  re- 
quires that  "that  proportion  of  the  value 
of  the  capital  stock  which  the  length  of 
the  lines  operated,  owned,  leased,  or  con- 
trolled   in    this   state   bears    to    the    total 


length  of  the  lines  owned,  leased,  or  con- 
trolled in  this  state  and  elsewhere,  shall 
be  considered  in  fixing  the  value  of  the 
corporate  franchise  or  such  corporation 
liable  for  taxation  in  this  state."  Louis- 
ville, etc.  R.  Co.  V.  Greene  (U.  S.)  1917E- 
97.  (Annotated.) 

e.    Recovery  Back  of  Tax. 

170.  Estoppel  of  Taxpayer  to  Question. 
As  Mass.  St.  1903,  c.  437,  §§  60,  73,  74, 
deny  a  corpvoration,  which  fails  to  file  sea- 
sonably with  the  secretary  of  the  common- 
wealth the  certificate  of  its  condition  as 
a  foreign  corporation,  the  right  to  main- 
tain actions  in  the  local  courts  and  im- 
pose severe  penalties,  the  act  of  foreign 
corporations  which  maintained  places  of 
business  within  the  state,  in  filing  such 
certificate  and  appointing  the  commis- 
sioner of  corporations  their  agent  for  the 
service  of  process  in  accordance  with  sec- 
tion 58,  does  not  estop  them  from  denying 
that  they  are  liable  to  the  excise  tax  im- 
posed by  Foreign  Corporation  Tax  Law 
(St.  1909,  c.  490,  pt.  3),  particularly  as 
section  70  of  that  statute,  which  provides 
the  exclusive  remedy  for  recovering  sucn 
taxes  when  improperly  paid,  does  not  re- 
quire any  preliminary  protest  or  statement 
of  objection  before  filing  the  petition. 
Marconi  *  Wireless  Tel.  Co.  v.  Common- 
wealth  (Mass.)    1916C-214.     (Annotated.) 

13.     SUCCESSION  TAXES, 
a.     Nature. 

171.  There  is  a  wide  distinction  between 
a  tax  on  the  right  to  export,  or  to  carry 
out  of  a  state  property  after  it  has  pas.sed 
to  an  heir  or  legatee  and  has  become  his, 
and  a  tax  on  the  property  before  it  passes 
to  him,  or  a  tax  upon  his  right  to  receive 
or  of  the  deceased  to  devise  and  bequeath. 
Moody  V.  Hagen  (N.  Dak.)  1918A-933. 

172.  The  term  "droit  de  detraction" 
means  a  tax  which  is  levied  on  the  right 
of  removal  of  property  from  one  state  to 
another,  and  does  not  include  an  inherit- 
ance tax,  which  is  merely  a  tax  upon  the 
right  to  devise  and  to  inherit.  Moody  v. 
Hagen  (N.  Dak.)   1918A-933. 

b.     Validity  of  Statutes. 

173.  Discrimination  Against  Aliens.  Sec- 
tion 8977  of  the  N.  Dak.  Compiled  Laws 
of  1913,  which  imposes  a  tax  of  twenty- 
five  per  cent  on  the  inheritance  of  non- 
resident aliens  as  opposed  to  a  tax  of  one 
and  one-half  per  cent  on  the  inheritances 
of  citizens  and  resident  aliens  residing  in 
the  United  States,  is  not  in  violation  of 
section  20  of  article  1  of  the  constitution 
of  North  Dakota,  which  provides  that  "no 
citizen  or  class  of  citizens  shall  be  grantpd 
privileges  or  immunities  which  upon  the 
same  terms  shall  not  be  granted  to  all  citi- 
zens."    Nor  is  it  in  violation  of  section 


TAXATION. 


809 


11  of  article  1  which  provides  that  "laws 
ot  a  general  nature  shall  have  a  uniform 
operation."  Nor,  where  the  decedent  was 
a  citizen  of  the  United  States  and  resid- 
ing therein,  is  it  in  violation  of  article  6 
of  the  treaty  of ,  amity  and  commerce  be- 
tween Norway  and  the  United  States 
(7  Fed.  St.  Ann.  828)  and  which  provides 
that  "the  subjects  of  the  contracting  par- 
ties in  the  respective  states  may  fully  dis- 
pose of  their  goods  and  effects  either  by 
testament,  donation,  or  otherwise,  in  favor 
of  such  persons  as  they  think  proper;  and 
their  heirs  in  whatever  place  they  shall 
reside,  shall  receive  the  succession  ab  in- . 
testato,  either  in  person  or  by  their  at- 
torney, without  having  occasion  to  take 
out  letters  of  naturalization.  These  in- 
heritances, as  well  as  the  capitals  and 
effects,  which  the  subjects  of  the  two  par- 
ties, in  changing  their  dwelling,  shall  be 
desirous  of  removing  from  the  place  of 
their  abode,  shall  be  exempt  from  all  duty, 
called  'droit  de  detraction,'  on  the  part  of 
the  governments  of  the  two  states  respec- 
tivelv."  Moody  v.  Hagen  (N.  Dak.) 
1918A-933. 

c.     Property  Subject  to  Tax. 
(1)     In  General. 

174.  Time  for  Taxing  Future  Estate.  A 
testatrix  devised  all  of  her  real  estate  to 
her  husband  for  lite  with  the  direction 
that  if  her  sister  survived  it  should  go  to 
the  sister  for  life,  remainder  to  any  chil- 
dren the  sister  might  leave  surviving  her. 
The  will  further  provided  that  in  event  of 
the  sister's  death  before  that  of  the  hus- 
band the  property  should  go  to  tJie  sister's 
children,  and  that  if  the  sister  died  with- 
out issue,  the  property  should  go  over  to 
the  testatrix's  cousin.  Shannon's  Tenn. 
Code,  §§  726,  727,  provide  that  where  there 
shall  be  a  devise  to  collateral  relatives  to 
take  effect  after  the  expiration  of  one  or 
more  life  estates,  the  tax  on  such  estate 
shall  not  be  payable  until  the  person  liable 
for  it  shall  come  into  actual  possession, 
and  that  the  tax  shall  be  assessed  upon 
the  value  of  the  estate  at  the  time  the 
right  to  possession  accrues.  Held,  that  as 
the  interest  of  both  the  cousin  and  the 
sister  was  liable  to  oe  divested,  they  were 
not  entitled  to  the  enjoyment  of  the  estate 
so  as  to  be  liable  to  transfer  taxes.  Mc- 
Lemore  v.  Baine's  Estate  (Tenn.)  1916D- 
307.  (Annotated.) 

Note. 
Time    for   taxing   future    estates   under 
succession  tax  acts.     1916D-309. 

(2)     Situs  of  Property. 

175.  Property  Subject  to  Succession  Tax. 

Section  1873,  Idaho  Rev.  Codes,  so  far  as 
it  applies  to  the  facts  presented  here,  lim- 
its the  right  to  collect  transfer  tax  upon 
inheritance  to  cases  where  property  shall 
pass  by  will,  or  by  the  intestate  laws  of 


this  state,  from  any  person  who  may  die 
seisea  or  possessed  of  the  same  while  a 
resident  of  Idaho,  or  if  such  decedent  was 
a  non-resident  at  the  time  of  his  death, 
which  property,  or  some  part  thereof, 
shall  be  within  this  state.  State  v.  Dun- 
lap  (Idaho)  1918A-046. 

176.  The  words  "property  which  shall 
pass  by  will"  are  limited  by  the  words  "or 
the  intestate  laws  of  this  state,"  and  the 
tax  is  not  payable  because  the  owner  of 
the  property  died  testate  if  it  would  not 
be  payable  had  he  died  intestate.  The 
right  to  collect  the  tax,  in  either  event 
is  dependent  upon  the  jurisdiction  of  the 
state  over  the  transfer.  State  v.  Dunlap 
(Idaho)  1918A-546. 

177.  While  the  situs  of  property  is  a 
controlling  factor  when  the  right  to  col- 
lect a  property  tax  is  under  consideration, 
it  must  be  remembered  that  an  inherit- 
ance or  succession  tax  is  not  a  tax  upon 
property,  but  is  a  bonus,  in  the  nature  of 
an  excise  or  duty,  exacted  by  the  state 
for  the  privilege  granted  by  its  laws  of 
inheriting  or  succeeding  to  property  on 
the  death  of  the  owner,  and  that,  in  con- 
sidering whether  or  not  such  a  bonus  is 
due,  the  location  of  the  property  is  mate- 
rial only  when  it  invests  the  state  with 
jurisdiction  to  control  the  right  to  make 
the  transfer  by  inheritance  or  succession. 
State  V.  Dunlap  (Idaho)  1918A-546. 

Notes. 

5itus  of  income  of  corporation  for  pur- 
pose of  income  tax.     1918A-426. 

Situs  of  corporate  stock  for  purposes  of 
succession  tax.     1918A-555. 

(3)     Estates  of  Non-residents. 

178.  Power  to  Appoint  Appraiser — Con- 
ditions Precedent.  It  was  not  the  inten- 
tion of  the  legislature  to  attempt  to  pro- 
vide for  the  appointment  of  an  appraiser 
under  the  circumstances  disclosed  by  this 
application,  but  it  authorized  such  appoint- 
ment, by  the  probate  court,  only  in  cases 
where  proceedings  to  probate  an  estate  are 
pending,  or  where  the  decedent  has  left 
an  estate  subject  to  probate  in  Idaho. 
State  v.  Dunlap  (Idaho)  1918A-546. 

Note. 

What  constitutes  "residence"  in  jurisdic- 
tion within  personal  property  or  inherit- 
ance tax  statute.     1917B-726. 

(4)     Estate  of  Surviving  Joint  Tenant. 

179.  Estate    Passing    by    Survivorship. 

The  share  which  a  joint  tenant  takes  in 
the  property  on  the  deatk  of  the  other 
joint  tenant  does  not  pass  by  the  laws 
regulating  intestate  succession,  so  as  to  be 
subject  to  an  inheritance  tax,  since  taxa- 
tion laws  must  be  strictly  construed,  and 
the  statute  does  not  in  express  terms  au- 


810 


DIGEST. 

1916C— 1918B. 


thorize  the  taxation  of  the  interest  accrn- 
ing  to  a  surviving  tenant  upon  termination 
of  the  joint  tenancy.  Attorney  General 
T.  Clark  (Mass.)  1917B-119. 

14.    INCOME  TAX. 

a.     Validity. 

(1)     In  General. 

180.  Independent  of  constitutional  au- 
thority, the  legislature  may  impose  a  tax 
on  incomes.  Commonwealtli  v.  Werth 
(Va.)  1916D-1263. 

181.  St.  Wis.  1911,  §  1087m2,  Bubd.  3, 
imposing  an  income  tax  on  the  income 
arising  from  business  transacted  within 
the  state,  though  such  business  involves 
transactions  in  interstate  commerce,  does 
not  violate  Const.  U.  S.  art.  1,  §  8,  giving 
Congress  power  to  regulate  commerce  with 
foreign  nation  and  among  the  several 
states,  since  that  section  does  not  prevent 
the  exercise  of  the  state's  taxing  power, 
so  long  as  the  tax  does  not  impose  a  bur- 
den on  interstate  commerce.  United  States 
Glue  Co.  V.  Oak  Creek  (Wis.)  1918A-421. 

(Annotated.) 

(2)     Federal  Income  Tax  Act. 

182.  The  progressive  rate  feature  of  the 
income  tax  imposed  by  the  Act  of  October 
3,  1913  (38  Stat,  at  L.  166,  c.  16,  Fed,  St. 
Ann.  1914  Supp.  p.  185),  does  not  cause 
such  tax  to  transcend  the  conception  of 
all  taxation,  and  to  be  a  mere  arbitrary 
abuse  of  power  which  must  be  treated  as 
wanting  in  due  process  of  law.  Brush- 
aber  v.  Union  Pacific  E.  Co.  (U  S.) 
1917B-713.  (Annotated.) 

183.  The  methods  of  collection  at  the 
source,  prescribed  by  the  income  tax  pro- 
visions of  the  Tariff  Act  of  October  3, 
1913  (38  Stat,  at  L.  166,  c  16,  Fed.  St. 
Ann.  1914  Supp.  p.  185),  are  not  wanting 
in  due  process  of  l^w  because  of  the  cost 
to  which  corporations  are  subjected  by  the 
duty  of  collection  cast  upon  them,  nor  be- 
cause of  the  resulting  discrimination  be- 
tween corporations  indebted  upon  coupon 
and  registered  bonds  and  those  not  so  in- 
debted, nor  because  of  the  discrimination 
against  corporations  which  have  assumed 
the  payment  of  taxes  on  their  bonds  which 
results  from  the  fact  that  some  or  all  of 
their  bondholders  may  be  exempt  from  the 
income  tax,  nor  because  of  the  discrimina- 
tion against  owners  of  corporate  bonds  in 
favor  of  individuals  none  of  whose  income 
is  derived  from  such  property,  nor  because 
the  law  does  not  release  corporate  bond- 
holders from  the  payment  of  a  tax  on  their 
bonds,  even  after  such  taxes  have  been  de- 
ducted by  the  •orporation,  if,  after  the  de- 
duction, the  corporation  should  fail,  nor 
because  the  payment  of  the  tax  by  the 
corporation  does  not  relieve  the  owners  of 
bonds,  the  taxes  on  whioh  have  been  as- 
sumed by  the  corporation,  from  their  duty 


to  include  the  income  from  such  bonds  in 
making  a  return  of  all  income.  Brush- 
aber  v.  Union  Pacific  E.  Co.  (U.  S.) 
1917B-713.  (Annotated.) 

184.  Limiting  the  amount  of  interest 
■which  may  be  deducted  from  gross  in- 
come of  a  corporation  for  the  purpose  of 
fixing  the  taxable  income  to  interest  on 
indebtedness  not  exceeding  one-half  the 
sum  of  bonded  indebtedness  and  paid-up 
capital  stock,  as  is  done  by  the  income 
tax  provisions  of  the  Tariff  Act  of  Octo- 
ber 3,  1913  (38  Stat,  at  L.  166,  c.  16,  Fed. 
St.  Ann.  1914  Supp.  p.  185),  is  not  want- 
ing in  due  process  of  law  because  dis- 
criminating between  different  classes  of 
corporations  and  individuals.  Brushaber 
V.  Union  Pacific  E.  Co.  (U.  S.)  1917B-713. 

(Annotated.) 

185.  Allowing  individuals  to  deduct 
from  their  gross  income  dividends  paid 
them  by  corporations  whose  incomes  are 
taxed,  and  not  giving  such  right  of  de- 
duction to  corporations,  as  is  done  by  the 
income  tax  provisions  of  the  Tariff  Act  of 
October  3,  1913  (38  Stat,  at  L.  166,  c  16, 
Fed.  St.  Ann.  1914  Supp.  p.  185),  does  not 
render  the  tax  wanting  in  due  process  of 
law.  Brushaber  v.  Union  Pacific  E.  Co. 
(U.  S.)  1917B-713.  (Annotated.) 

186.  The  allowance  of  a  deduction  of 
$3,000  or  $4,000  to  those  who  pay  the  nor- 
mal tax,  as  is  done  by  the  income  tax  pro- 
visions of  the  Tariff  Act  of  October  3, 
1913  (38  Stat,  at  L.  166,  c.  16,  Fed.  St. 
Ann.  1914  Supp.  p.  185),  is  not  wanting 
in  due  process  of  law  because  those  whose 
incomes  are  greater  than  $20,000  are  not 
allowed,  for  the  purpose  of  the  additional 
or  progressive  tax,  a  second  right  to  de- 
duct the  $3,000  or  $4,000  which  they  have 
already  enjoyed,  nor  because,  for  the  pur- 
pose of  the  additional  tax,  no  second  right 
to  deduct  dividends  received  from  corpo- 
rations is  permitted,  Brushaber  v.  Union 
Pacific  E.  Co.  (U.  S.)  1917B-713. 

(Annotated.) 

187.  The  allowance  of  a  deduction  of 
stated  amounts  for  the  purpose  of  ascer- 
taining the  taxable  income,  as  is  done  by 
the  income  tax  provisions  of  the  Tariff  Act 
of  October  3,  1913  (38  Stat,  at  L.  166, 
c.  16,  Fed.  St.  Ann.  1914  Supp.  p.  185), 
does  not  render  the  tax  wanting  in  due 
process  of  law  because  of  the  discrimina- 
tion between  married  and  single  people, 
and  between  husbands  and  wives  who  are 
living  together  and  those  who  are  not. 
Brushaber  v.  Union  Pacific  E.  Co.  (U.  S.) 
1917B-713.  (Annotated.) 

188.  No  unconstitutional  discrimination 
and  want  of  due  process  of  law  results  be- 
cause the  owners  of  houses  in  which  they 
live  are  not  compelled  by  the  income  tax 
provisions  of  the  Tariff  Act  of  October  3, 
1913  (38  Stat,  at  L.  166,  c.  16,  Fed.  St. 
Ann.  1914  Supp.  p.  185),  to  estimate  the 
rental  value  in  making  up  their  incomes, 
while  those  who  live  in  rented  houses  are 


TAXATION. 


811 


not  allowed,  in  making  up  their  taxable 
income,  to  deduct  the  rent  which  they 
have  paid,  nor  because  of  the  fact  that 
although  family  expenses  are  not,  as  a 
rule,  permitted  to  be  deducted  from  gross 
income,  farmers  are  permitted  to  omit 
from  their  income  return  certain  products 
of  the  farm  which  are  susceptible  of  use 
by  them  for  sustaining  their  families  dur- 
ing the  vear.  Brushaber  v.  Union  Pacific 
K.  Co.,(U.  S.)  1917B-713.       (Annotated.) 

189.  An  unwarrantable  delegation  of 
legislative  authority  is  not  made  by  the 
income  tax  provisions  of  the  Tarifif  Act  of 
October  3,  1913  (38  Stat,  at  L.  166,  c.  16, 
Fed.  St.  Ann.  1914  Supp.  p.  185),  because 
certain  administrative  powers  to  enforce 
the  act  are  conferred  by  it  upon  the  Secre- 
tary of  the  Treasurv.  Brushaber  v.  Union 
Pacific  E.  Co.  (U.  S.)  1917B-713. 

(Annotated.) 

190.  The  whole  purpose  of  U.  S.  Const. 
16th  Amend,  giving  Congress  the  power 
"to  lay  and  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  appor- 
tionment among  the  several  states,  and 
without  regard  to  any  census  or  enumera- 
tion," is  to  exclude  the  source  from  which 
a  taxed  income  was  derived  as  the  crite- 
rion by  which  to  determine  the  applicabil- 
ity of  the  constitutional  requirement  as  to 
apportionment  of  direct  taxes.  Brushaber 
V,  Union  Pacific  E.  Co.  (U.  6.)  1917B-713. 

(Annotated.) 

191.  The  retroactive  effect  of  the  in- 
come tax  provisions  of  the  Tariff  Act  of 
October  3,  1913  (38  Stat,  at  L.  166,  e.  16, 
Fed.  St.  Ann.  1914  Supp.  p.  185),  which  fix 
the  preceding  March  1st  as  the  time  from 
which  the  taxed  income  for  the  first  ten 
months  is  to  be  computed,  does  not  render 
the  tax  repugnant  to  the  due  process  of 
law  clause  of  U.  S.  Const.  5th  Amend. 
(9  Fed.  St.  Ann.  288),  nor  inconsistent 
with  the  16th  Amendment  itself,  since  the 
date  of  retroactivity  did  not  extend  be- 
yond the  time  when  the  latter  amendment 
became  operative.  Brushaber  v.  Union 
Pacific  E.  Co.  (U.  S.)  1917B-713. 

(Annotated.) 

192.  Power  to  exclude  from  taxation 
some  income  of  designated  persons  and 
classes,  and  to  exempt  entirely  certain 
enumerated  organizations  or  corporations, 
such  as  labor,  agricultural,  or  horticultural 
organizations,  mutual  savings  banks,  etc., 
is  not  by  implication  forbidden  to  Con- 
gress bv  the  provisions  of  U.  S.  Const. 
16th  Amend,  that  Congress  may  lay  and 
collect  taxes  on  incomes  "from  what- 
ever source  derived."  Brushaber  v.  Union 
Pacific  E.  Co.  (U.  S.)  1917B-713. 

(Annotated.) 

193.  Labor,  agricultural,  or  horticultural 
organizations,  mutual  savings  banks,  etc., 
can  be  excepted  from  the  operation  of  the 
income  tax  provisions  of  the  Tariff  Act 
of   October   3,   1913    (38   Stat,  at  L.   166, 


c.  16,  Fed.  St.  Ann.  1914  Supp.  p.  185), 
without  rendering  the  tax  repugnant  to 
the  federal  constitution.  Brushaber  ▼. 
Union  Pacific  E.  Co.  (U.  S.)  1917B-713. 

(Annotated.) 

b.     Construction  of  Statutes. 

194.  Tazaole  Incom*— Attorney's  Fees. 
Va.  Tax  Bill,  Schedule  (Acts  1902-04, 
c.  148,  as  amended  by  Acts  1912,  c.  279), 
is  entitled  "Tax  on  income,"  and,  after 
providing  for  the  taxation  of  incomes  de- 
rived from  specified  sources,  provides  (sub- 
division 5)  for  the  taxation  of  all  other 
gains  and  profits  derived  from  any  source 
whatever.  It  is  held  that,  the  statute 
having  provided  for  taxation  of  profes- 
sional incomes  derived  from  salaries,  the 
income  of  an  attorney  derived  from  fees 
in  the  practice  of  his  profession  was  sub- 
ject to  taxation,  whether  the  rule  of  ejus- 
dem  generis  be  applied  or  independent 
thereof.  Commonwealth  v.  Werth  (Va.) 
1916r)-1263.  (Annotated.) 

195.  Place  of  Taxation  —  Besidence.    A 

high  sheriff  who  is  by  law  required  to  be 
a  resident  of  the  shire  town  of  his  county, 
and  who  in  fact  spends  the  greater  por- 
tion of  his  time  there  in  the  discharge  of 
his  duties,  boarding  at  the  jail,  is  a  resi- 
dent of  that  town  and  as  such  subject  to 
a  local  income  tax,  though  his  wife 
and  family  continue  to  reside  at  his 
former  home.  Eex  v.  Board  of  Assessors 
(N.  Bruns.)   1917B-721,  (Annotated,) 

196.  Exemption  from  Income  Tax—  Gov- 
ernment or  County  Officer.  A  sheriff  is 
not  a  person  employed  in  a  "government" 
oflSce  nor  is  he  a  county  officer  "whose 
duties  are  necessarily  performed  in"  the 
shire  town  of  his  county,  within  the  mean- 
ing of  exempting  clauses  in  an  act  impos- 
ing an  income  tax  on  residents  of  that 
town.  Eex  v.  Board  ©f  Assessors  (N. 
Bruns,)   1917B-721, 

197.  Profits  on  Sale  Outside  State — 
Right  to  Subject.  Under  Wis.  St.  1911, 
§  1087m2,  subd.  3,  providing  that  the  in- 
come tax  shall  be  collected  on  all  incomes 
received  by  every  person  residing  within 
the  state,  and  by  every  non-resident  on  in- 
comes- derived  from  sources  within  the 
state,  provided  that  any  person  engaged 
in  business  within  and  without  the  state 
shall,  as  to  income  other  than  that  de- 
rived from  rentals,  stocks,  bonds,  securi- 
ties, or  evidences  of  indebtedness,  be  taxed 
only  on  that  proportion  of  such  income  de- 
rived from  business  transacted  and  prop- 
erty located  within  the  state,  the  term 
"business  transacted  within  the  state"  in- 
cludes not  only  that  part  of  the  business 
of  a  manufacturing  corporation,  located 
within  the  state,  which  consists  of  sales 
to  residents  of  the  state,  but  also  its  sales 
of  its  manufactured  articles  to  persons 
without  the  state,  either  directly  or  from 
its  branch  houses  located  outside  the  state 


812 


DIGEST. 

1916C— 1918B. 


and  supplied  from  tlie  home  factory. 
United  States  Glue  Co.  v.  Oak  Creek 
(Wis.)  1918A-421.  (Annotated.) 

198.  The  income  from  sales  made  by  a 
local  manufacturing  company  of  goods 
purchased  outside  the  state  and  sold  to 
buyers  outside  the  state,  either  from  its 
factory  in  the  state  or  indirectly  through 
branch  houses  out  of  the  state,  is  not  in- 
come derived  from  "business  transacted 
within  the  state,"  and  therefore  is  not  tax- 
able under  Wis.  St.  1911,  §  1087m2,  subd.  3. 
United  States  Glue  Co.  v.  Oak  Creek 
(Wis.)  1918A-421.  (Annotated.) 

199.  Applicability  to  Judicial  Salary. 
Wis.  Const,  art.  4,  §  26,  declares  that  the 
compensation  of  a  public  officer  shall  not 
be  increased  or  ^minished  during  his 
term  of  office,  and  Const,  art.  8,  §  1,  as 
amended  in  1908,  declares  that  taxes  shall 
be  uniform,  and  shall  be  levied  on  such 
prorperty  as  the  legislature  prescribes,  that 
taxes,  which  may  be  graduated  and  pro- 
gressive, may  be  imposed  on  incomes, 
privileges,  and  occupations,  and  that  rea- 
sonable axemptions  may  be  provided.  Wis. 
St.  191^,  §  1087m2,  imposes  an  income  tax 
on  all  salaries  or  fees,  and  provides  that 
salaries  of  public  officers  shall  not  be 
computed  as  part  of  the  taxable  income, 
where  taxation  thereof  would  be  uncon- 
stitutional. Held,  that  it  was  the  intent 
of  the  statute  to  tax  the  salaries  of  all 
public  officers  as  part  of  their  income,  if 
they  could  be  taxed,  and  that,  as  the 
amended  provision  was  as  broad,  sweep- 
ing, and  specific  as  the  provision  as  to 
compensation,  the  salary  of  a  circuit  judge 
was  subject  to  an  income  tax.  State  v. 
Nygaard  (Wis.)  1917A-1065. 

Note. 
Taxable  personal  income  under  income 
tax  statute.     1916D-1265. 


15.     POLL  TAXES. 

200.  Validity.  N.  Car.  Const,  art.  5,  §  1, 
declares  that  the  general  assembly  shall 
levy  a  capitation  tax  on  every  male  in- 
habitant over  twenty-one  and  under  fifty 
years  of  age,  which  shall  be  equal  on  each 
to  the  tax  on  property  valued  at  $300,  and 
that  the  state  and  county  capitatipn  tax 
combined  shall  never  exceed  $2  per  head. 
Section  2  declares  that  the  proceeds  of 
the  state  and  county  capitation  tax  shall 
be  applied  to  the  purposes  of  education 
and  the  support  of  the  poor,  but  ill  no  one 
year  shall  more  than  twenty-five  per  cent 
be  appropriated  for  the  latter  purpose. 
Section  6  provides  that  taxes  for  county 
purposes  shall  be  levied  in  the  same  man- 
ner as  state  taxes,  and  shall  never  exceed 
double  the  state  tax,  except  for  a  special 
purpose,  and  with  the  special  approval  of 
the  legislature.  N.  Car.  Pub.  Loc.  Laws 
1915,  c.  27,  providing  for  the  construction 
of  good  roads  of  Alexander   county,  au- 


thorizes the  sale  of  bonds  for  that  pur- 
pose, and  the  levy  of  a  sufficient  special 
tax  on  all  polls,  all  real  estate  and  per- 
sonal property,  always  observing  the  con- 
stitutional equation  between  taxes  on 
property  and  taxes  on  the  polls,  provided 
there  shall  not  be  levied  a  tax  greater 
than  thirty-three  and  one-third  on  the 
$100  valuation,  and  $1  on  each  poll. 
Const,  art.  7,  §  7.  declares  that  no  county, 
city,  town,  or  other  municipal  corpqration 
shall  contract  any  debt  or  loan  its  credit, 
nor  shall  any  tax  be  levied  except  for  the 
"necessary  expenses"  thereof  unless  au- 
thorized by  vote  of  the  majority  of  the 
qualified  electors.  It  is  held  that,  as  the 
constitution  is  necessarily  a  general  instru- 
ment intended  to  be  applicable  to  future 
conditions,  and  as  the  framers  of  the  con- 
stitution must  have  known  that  necessary^ 
state  and  county  expenses  would  practi- 
cally consume  the  tax  up  to  the  $2  limit, 
the  act  is  valid,  for  the  limitation  on  the 
poll  and  on  the  property  taxed  applies 
only  to  taxes  levied  for  the  ordinary  ex- 
penses of  the  state  and  county  govern- 
ments, and  such  limitation  may  be  ex- 
ceeded for  a  special  purpose  with  the  ap- 
proval of  the  general  assembly,  as  any 
other  construction  would  violate  long  con- 
tinued legislative  and  executive  construc- 
tion, would  prevent  improvements  by  the 
counties,  and  would  necessitate  applica- 
tion of  a  large  per  cent  of  the  poll  taxes 
levied  to  relief  of  the  poor,  this  being 
■narticularly  true  in  view  of  the  additional 
powers  given  counties' and  other  munici- 
palities to  contract  debts  upon  approval 
of  a  majority  of  the  voters.  Moose  v. 
Board  of  Commissioners  (N.  Car.)  1917E- 
1183.  (Annotated.) 

Note. 
Constitutionality  of  poll  taxes.     1917E- 
1208. 

16.     TAXPAYERS'  ACTIONS. 

201.  A  taxpayer  is  not  entitled  to  have 
a  city  enjoined  from  engaging  in  selling 
electrical  appliances  as  a  part  of  its  busi- 
ness of  furnishing  electric  light,  where  it 
did  not  appear  that  any  increase  in  taxa- 
tion resulted  or  that  money  was  misappro- 
priated. Andrews  v.  South  Haven  (Mich.) 
1918B-100.  (Annotated.) 

202.  In  an  action  brought  by  taxpayers 
against  the  individual  members  of  a 
county  board  to  recover  money  alleged  to 
have  been  illegally  paid  out  by  them  while 
acting  as  the  board  of  supervisors  of  the 
county,  the  petition  was  entitled  "The 
County  of  Holt,  a  corporation  duly  organ- 
ized under  the  laws  of  the  state  of  Ne- 
braska, by  M.  T.  Hiatt  and  H.  M'.  Uttl^, 
residents  of  and  taxpayers  in  said  county, 
who  bring  this  action  for  and  in  behalr 
of  all  the  people  in  the  county."  A  mo- 
tion by  the  defendants  to  dismiss  the  ac- 
tion and  by  the  county  attorney  to  dis- 
miss "as  to  the  county,"  for  the  reasons 


TAX  DEEDS— TELEGRAPHS  AND  TELEPHONES. 


813 


that  the  case  was  brought  without  author- 
ity of  the  county  and  the  county  dis« 
claimed  any  interest  in  the  suit,  was  sus- 
tained, and  judgment  of  dismissal  ren- 
dered. Held,  that  the  action  should  not 
have  been  dismissed,  but  that  the  plain- 
tiffs should  have  been  allowed  to  proceed, 
making  the  county  a  party  defendant,  if 
they  so  desired.  Holt  County  v.  Tomlin- 
son  (Neb.)  1917A-853.  .  (Annotated.) 

203.  DismissaL  In  an  action  by  a  tax- 
payer, brought  on  behalf  of  a  county,  in 
which  the  county  has  been  made  to  appear 
as  plaintiff,  neither  the  county  nor  the 
county  attorney  has  any  absolute  right  to  a 
dismissal  of  the  case  upon  motion  on  the 
ground  that  the  action  was  not  authorized 
by  them  or  either  of  them,  since  in  such  ac- 
tions the  county  authorities  may  to  some 
extent  occupy  an  adverse  position  to  the 
interests  of  plaintiff  and  other  taxpayers. 
Holt  County  v.  Tomlinson  (Neb.)  1917A- 
853.  (Annotated.) 

TAX  DEEDS. 
See  Taxation,  111-115. 

TAXICABS. 
See  Carriers  of  Passengers,  84,  90. 

TAXPAYER'S  ACTION. 

See  Agriculture,  5,  10;  Taxation,  201-203. 

TAX  SALES. 
See  Taxation,  111-115. 

TAX  TITLES. 
See  Taxation,  111-115. 

TEACHERS. 

See  Schools,  29-32. 

TELEGRAPHS  AND  TELEPHONES. 

1.  Definition,  813. 

2.  Eights  Under  Franchise,  814. 

3.  Contract  for  Use  of  Eight  of  Way  of 

Eailroad,    814. 

4.  Prescriptive  Easement  for  Poles,  814. 

5.  Duty  to  Serve  Public  Without  Discrim- 

ination,  815. 

6.  Regulation,  815. 

a.  In  General,  815. 

b.  Rates,   815. 

c.  Use  of  Streets,  815. 

d.  Control  of  Public  Service  Commis- 

sion, 815. 

7.  Right  to  Make  Rules  and  Regulations, 

816. 

8.  Transmission  of  Messages,  816. 

a.  Refusal  to  Transmit,  816. 


b.  Delay  in  Transmission,  816. 

c.  Limitation     of     Time     for     Piling 

Claim,  816. 

d.  Actions,  817. 

(1)  Defenses,  817. 

(2)  Pleading,  817. 

(3)  Evidence,  817. 

(4)  Instructions,  817. 

(5)  Questions  for  Jury,  817. 

(6)  Damages,  817. 

(7)  Appeal,  817. 

9.  Eights  and  Liabilities  of  Telephone 
Companies,  817. 

See  Licenses,  36. 

Excessiveness  of  damages,  delayed  mes- 
sages, see  Damages,  44. 

Condemnation  of  railroad  right  of  way, 
see  Eminent  Domain,  11-17. 

Presumption  as  to  receipt  of  telegram,  see 
Evidence,  141,  142. 

Municipal  operation  of  telephones,  see 
Municipal  Corporations,  40,  41. 

Telephone  lines  as  nuisances,  see  Nui- 
sances, 4. 

Service  of  summons  by  telephone,  see 
Process,  7. 

Separation  of  electric  wires,  see  Railroads, 
31-35. 

Maintenance  of  wires  along  railroad,  sea 
Railroads,  55. 


1.    DEFINITION. 

1.  Status  as  Public  Utility  —  Mutual 
Company.  A  mutual  telephone  company, 
organized  to  render  service  to  its  members 
at  cost,  to  connect  with  other  telephone 
companies  on  the  basis  of  a  mutual  ex- 
change, and  to  connect  any  of  its  members 
with  toll  lines  for  long-distance  service, 
operating  in  a  village  under  a  franchise 
giving  it  the  right  to  use  the  streets  and 
alleys  on  the  express  condition  that  no 
person,  firm,,  or  corporation,  excepting 
commercial  telephone  companies,  shall  be 
barred  from  membership  on  payment  of 
the  same  membership  fees  as  are  paid 
by  other  members  and  on  the  payment  of 
the  same  annual  switching  fees  as  are 
paid  by  other  members,  is  a  "public  util- 
ity," within  111.  Public  Utilities  Act 
(Kurd's  Rev.  St.  1913,  c.  Ilia)  §10,  de- 
fining a  public  utility  to  include  every 
corporation  operating  for  public  use  any 
equipment  used  for  or  in  connection  with 
the  transmission  of  telephone  messages, 
or  that  may  own  any  franchise  to  engage 
in  the  telephone  business;  for  a  "public 
use"  means  a  public  usefulness,  utility, 
advantage,  or  benefit  to  a  community  as 
distinguished  from  an  individual  or  any 
particular  number  of  individuals,  without 
including  the  entire  state  or  anv  political 
subdivision  thereof,  and  the  use  may  be 
local  or  limited  and  confined  to  a  particu- 
lar district.  State  Public  Utilities  Com. 
V.  Noble  Mut.  Tel.  Co.  (III.)  1916D-897. 

(Annotated.) 


814 


DIGEST. 

1916C— 1918B. 


2.    EIGHTS  UNDEB  FRANCHISE. 

2.  Eight  in  Streets — ronnation  of  Con- 
tract. The  acceptance  by  a  telegraph 
company  of  a  grant  by  city  ordinance  of 
right  to  erect  poles  and  wires  in  streets, 
and  its  performance  of  conditions  imposed, 
such  as  opening  an  ofBce  in  the  city,  create 
a  contract  which  cannot  be  rescinded  ex- 
cept for  good  cause.  Vandalia  v.  Postal 
Telegraph-Cable  Co.   (HI.)   1917E-523. 

3.  Eight  to  Use  Streets — Eevocation. 
Iowa  Code  1873,  §  1324,  as  amended  by 
Acts  19th  Gen,  Assem.  c.  104  (Code  1897, 
§  2158),  providing  that  any  person  or  com- 
pany may  construct  a  telegraph  or  tele- 
phone line  along  the  public  highways  of 
the  state  or  across  the  rivers  or  over  any 
lands  belonging  to  the  state  or  to  any 
private  individual,  and  may  erect  the 
necessary  fixtures  therefor,  when  accepted 
by  a  telephone  company,  became  a  con- 
tract between  the  state  and  the  company 
whereby  the  latter  acquired  the  right  to 
run  its  lines  through  the  streets  and  alleys 
•of  municipalities  within  the  state,  and, 
being  unlimited,  as  to  time,  it  is  a  special 
franchise  in  perpetuity,  constituting  a 
contract  between  the  state  and  the  ac- 
cepting company,  subject  only  to  a  proper 
exercise  of  the  regulatory  police  power 
and  to  expressly  reserved  powers.  State 
V.  Iowa  Tel.  Co.  (Iowa)  1917E-539. 

(Annotated.) 

4.  A  telephone  company  was  granted 
and  accepted  a  franchise  to  operate  its 
lines  under  Iowa  Code  1873,  §  1324,  as 
amended  bv  Acts  19th  Gen.  Assem.  c.  104 
(Code  1897,  §  2158),  providing  that  any 
person  or  company  may  construct  a  tele- 
graph or  telephone  line  along  the  public 
highwavs  of  the  state,  or  across  the  rivers 
or  over  any  lands  belonging  to  the  state  or 
to  any  private  individual,  and  may  erect 
the  necessary  fixtures  therefor.  Code 
1897,  §  775,  provides  that  cities  and  towns 
shall  have  the  power  to  authorize  and 
regulate  telegraph,  district  telegraph,  tele- 
phone, street  railway,  and  other  electric 
wires,  and  the  poles  and  other  supports 
thereof,  by  general  and  uniform  regula- 
tions, and  to  provide  the  manner  in  which 
and  places  where  the  same  shall  be  placed 
upon,  along,  or  under  the  streets,  roads, 
avenues,  alleys,  and  public  places  of  such 
city  or  town,  and  may  divide  the  city  into 
districts  for  that  purpose.  Section  776 
provides  that  no  franchise  shall  be 
granted,  renewed  or  extended  by  any  city 
or  town  for  the  use  of  the  streets,  high- 
ways, avenues,  alleys,  or  public  places, 
for  any  of  the  purposes  named  in  the  pre- 
ceding section,  unless  a  majority  of  the 
legal  electors  voting  thereon  vote  in  favor 
of  the  same  at  a  general  or  special  elec- 
tion. The  council  may  order  the  question 
of  granting,  renewal,  or  extension  of  any 
franchise  submitted  to  a  vote  at  a  gen- 
eral election,  or  at  one  specially  called 
for  that  purpose,  or  the  mayor  shall  sub- 


mit such  question  to  such  vote  upon  the 
petition  of  twenty-five  properly  owners 
of  each  ward  in  a  city,  or  fifty  property 
owners  in  any  incorporated  town.  It  is 
held  that  such  sections  did  not  deprive 
the  telephone  company  of  its  franchise 
to  operate  its  lines  in  a  city,  and  thus  im- 
pair the  obligation  of  its  contract,  and 
deprive  it  of  property  without  due  process 
of  law,  since  the  object  of  such  legislation 
was  to  authorize  cities  to  regulate  such 
companies  as  were  already  using  the 
streets  and  alleys  under  the  grant  of  ths 
legislature  and  others  which  might  secure 
such  right  by  general  and  uniform  legisla- 
tion applicable  to  all,  and  to  provide  that 
no  SUCH  franchises  should  thereafter  be 
granted,  renewed,  or  extended,  except 
upon  a  referendum  vote.  State  v.  Iowa 
Tel.  Co.  (Iowa)  1917E-539. 

5.  Crossing  Public  Highway — Necessity 
of  Permit.  Me.  Rev.  St.  e.  55,  §  17.  pro- 
viding that  corporations  or  individuals 
engaged  in  operating  telephones  shall  not 
construct  lines  "upon  and  along"  highways 
and  public  roads  without  permission  from 
the  selectmen  of  towns,  etc.,  forbids  the 
placing  of  telephone  wires  across  the 
highways,  etc.,  by  persons  not  so  author- 
ized, since  the  word  "across"  is  synony- 
mous with  the  words  "upon  and  along." 
Mt.  Vernon  Tel.  Co.  v.  Franklin  Farmers', 
etc.  Tel.  Co.  (Me.)  1917B-649. 

3.  CONTRACT  FOR  USE  OF  RIGHT  OP 

WAY   OF   RAILROAD, 

6.  Eight  of  Way— Incidental  Eights — 
Contract  With  Eailroad.  In  an  action  of 
trespass  on  the  freehold  for  damages  for 
the  cutting  of  parts  of  shade  trees  oh 
plaintiff's  ground  overhanging  a  railroad 
right  of  way,  a  contract  between  the  rail- 
road and  the  defendant  telegraph  com- 
pany permitting  the  construction  of  a  tele- 
graph line  over  the  right  of  way  for  the 
joint  use  of  the  railroad  and  the  company 
is  admissible  as  showing  that  the  tele- 
graph company  had  derived  from  the  rail- 
road the  right  to  construct  the  line  with 
rights  incidental  thereto.  Cobb  v.  West- 
ern Union  Tel.  Co.  (Vt.)   1918B-1156. 

7.  Location  Under  Contract — Nature  of 
Eights.  A  contract,  giving  a  telegraph 
company  the  right  to  maintain  its  wires 
along  a  railroad  right  of  way  for  .a  term 
of  twenty-five  years,  and  providing  that 
at  the  expiration  of  that  period  either 
party  might  terminate  the  contract  by 
giving  one  year's  notice,  does  not  give  the 
telegraph  company  a  permanent  easement. 
Louisville,  etc.  R.  Co.  v.  Western  Union, 
Tel.  Co.  (Ala.)  1917B-696. 

4.  PRESCRIPTIVE     EASEMENT     FOR 

POLES. 

8.  Where  a  telegraph  company,  without 
grant  or  license,  sets  its  poles  on  the  bor- 
der of  land  owned  by  defendants  with  the 


TELEGRAPHS  AND  TELEPHONES. 


815 


cross-arms  extending  three  feet  over  such 
land,  the  prescriptive  use  of  the  easement 
for  a  time  exceeding  the  statutory  period 
of  limitation  does  not  give  it  a  right  to 
attach  cross-arms  extending  eight  feet 
over  such  land  for  the  purpose  of  string- 
ing additional  wires.  Postal  Telegraph 
Co.  V.'  Forster  (Ore.)  1916E-979. 

(Annotated.) 

9.  Where  a  telegraph  company,  which 
has  acquired  a  prescriptive  right  to  main- 
tain its  poles  with  the  cross-arms  extend- 
ing three  feet  over  defendants*  land,  is 
about  to  attach  cross-arms  extending  eight 
feet  over  such  land,  defendants  are  en- 
titled to.  injunctive  relief  and  are  not  lim- 
ited to  a  recovery  of  damages;  the  suit 
in  which  such  injunctive  relief  was 
granted  having  been  brought  before  the 
new  cross-arms  were  put  up  and  before 
any  extra  wires  had  been  strung,  authoriz- 
ing a  use  of  the  means  of  communication 
in  the  interest  of  the  public.  Postal  Tele- 
graph Co.  V.  Forster  (Ore.)  1916E-979. 

(Annotated.) 

10.  Wiere  a  telegraph  company  has  ac- 
quired a  prescriptive  right  to  maintain 
its  poles  on  the  border  between  defend- 
ants' land  and  a  railroad  right  of  way 
with  the  cross-arms  extending  three  feet 
over  defendants'  land,  it  cannot  be  en- 
joined from  using  its  wires  for  telephone 
purposes,  though  Act  Cong.  July  24,  1866, 
c.  230,  14  Stat.  221  (7  Fed.  St.  Ann. 
p.  205)  authorizing  any  telegraph  com- 
pany to  construct  and  operate  telegraph 
lines  over  and  along  post  roads  does  not 
give  the  right  to  maintain  telephone  lines, 
as  the  use  of  the  wires  for  telephone  pur- 
poses east  no  additional  burden  upon  de- 
fendants' premises.  Postal  Telegraph  Co. 
V.    Forster    (Ore.)    1916E-979. 

(Annotated.) 
Note. 
Acquirement    by    prescription    of    right 
to  maintain  telegraph,  telephone  or  elec- 
tric light  pole.     1916E-981. 


has  been  granted  a  franchise  to  operate 
its  lines  under  Iowa  Code  1873,  §  1324,  as 
amended  by  Acts  19th  Gen.  Assem.  c.  104 
(Code  1897,  §2158),  providing  that  any 
person  or  company  may  construct  a  tele- 
graph or  telephone  line  along  the  public 
highways  of  the  state  or  across  the  rivers 
or  over  any  lands  belonging  to  the  state 
or  to  any  private  individual,  and  may 
erect  the  necessary  fixtures  therefor,  its 
right  to  operate  its  lines  through  the 
streets  and  highways  of  a  city  is  subject 
to  regulation  by  the  city  under  its  police 
power.  State  v.  Iowa  Tel.  Co.  (Iowa) 
1917E-539. 

b.    Bates. 

13.  Begulatlon  of  Bates.  Contracts  with 
public  service  corporations  for  specific 
rates,  and  for  definite  periods,  are  subject 
to  legislative  regulation.  Wolverton  v. 
Mountaiif  States  Tel.,  etc.  Co.  (Colo.) 
I916C-778. 

14.  The  power  to  fix  a  rate  or  regulation 
for  a  public  service  corporation  is  exclu- 
sively a  legislative  function,  and  the  court 
may  not  fix  a  rate,  but  may  determine  the 
question  of  reasonableness  only.  Wolver- 
ton  V.  Mountain  States  Tel.,  etc.  Co. 
(Colo.)  1916C-776. 

15.  Begulation  of  Telephone  Bates.    If 

a  telephone  company's  franchise  from  a 
city,  limiting  rates  to  be  charged,  is 
deemed  a  contract,  the  mere  fact  that  it 
was  made  prior  to  the  enactment  of  the 
Ore.  Public  Utility  Act  (Laws  1911, 
p.  483),  and  before  the  state  attempted  to 
regulate  such  rates,  does  not  debar  the 
state  from  increasing  the  rates  as  fixed  in 
the  franchise,  because  when  the  state  ex- 
ercises its  police  power,  it  does  not  work 
any  impairment  of  obligation  of  the  con- 
tract; the  possibility  of  the  exercise  of 
such  power  being  an  implied  term  of  the 
contract.  Woodburn  v.  Public  Service 
Commission  (Ore.)  1917E-996. 

(Annotated.) 


5.     DUTY   TO   SERVE   PUBLIC   WITH- 
OUT DISCRIMINATION. 

11.  Telephone  companies  are  public  ser- 
vice corporations,  and  their  instruments 
and  apparatus  are  devoted  to  a  public 
use,  and  must  serve  the  public  generally, 
without  discrimination,  on  compliance 
with  their  reasonable  rates  and  regula- 
tions, being  bound  to  conduct  their  busi- 
ness in  a  manner  conducive  to  the  public 
benefit,  and  subject  to  legislative  regula- 
tion and  control.  Wolverton  v.  Mountain 
States  Tel.  etc.  Co.  (Colo.)  1916C-776. 

(Annotated.) 

6.     REGULATION. 
a.     In  General. 

12.  Municipal  Regulation  of  Telephones 
— Validity.     Where  a  telephone   company 


c.    Use  of  Streets. 

16.  Begulation  of  Use  of  Streets.  Un- 
der 111.  Kurd's  Rev.  St.  1913,  c.  134,  §4, 
providing  for  municipal  regulation  of  loca- 
tion and  erection  of  wires  and  poles  of 
telegraph  companies,  a  city,  under  its  po- 
lice powers,  may  make  reasonable  regula- 
tions as  to  maintenance  of  poles  and  wires 
of  telegraph  companies.  Vandalia  v. 
Postal  Telegraph-Cable  Co.  (111.)  1917E- 
523. 

d.     Control  of  Public  Service  Commission. 

17.  Jurisdiction — What  is  Public  Utility 
— Mutual  Telephone  Company.  Where  a 
mutual  telephone  association  has  no  au- 
thority under  its  charter  to  engage  in  pub- 
lic telephone  service,  or  to  devote  its  prop- 
erty to  public  use,  but  is  organized  for  the 


816 


DIGEST. 

19160— 1918B. 


private  use  of  its  members  only,  and  not 
for  profit,  an  order  of  the  public  utilities 
commission,  requiring  the  association  to 
cease  operations  for  failure  to  obtain  a 
certificate  of  convenience  and  necessity, 
as  required  by  111.  Laws  1913,  p.  483, 
§  55,  is  void,  since  the  jurisdiction  of  the 
commission  is  confined,  by  the  terms  of 
the  act  creating  it,  to  the  control  and 
supervision  of  owners  and  operators  of 
property  devoted  to  a  public  use.  State 
Public  Utilities  Com.  v.  Bethany  Mut.  Tel. 
Assoc.    (111.)    I917B-^95.         (Annotated.) 

18.  The  fact  that  a  mutual  telephone 
association  had  obtained  a  license  from 
the  village  to  construct  and  maintain  its 
telephone  poles  and  wires  in  the  streets, 
under  which  it  is  about  to  erect  great 
quantities  of  poles  and  wires,  does  not  fix 
its  character  as  a  corporation.  State  Pub- 
lic Utilities  Com.  v.  Bethany  Mut.  Tel. 
Assoc.   (111.)   1917B-495.  (Annotated.) 

19.  Procedure  —  Failure  to  Pile  State- 
ment of  Valuation.  The  failure  of  the 
public  service  commission  to  file  a  state- 
ment of  valuation  mentioned  in  section 
10  of  the  Ore.  Public  Utility  Act  (Laws 
1911,  p.  483)  does  not  aflfect  the  validity 
of  an  order,  allowing  a  telephone  company 
to  charge  higher  rates  than  those  stated 
in  its  franchise,  since  the  right  to  make 
the  order  does  not  depend  upon  filing  the 
statement  of  valuation,  and,  in  any  event, 
under  direct  provision  of  section  75  of  the 
eet,  technical  omissions  are  immaterial. 
Woodburn  v.  Public  Service  Commission 
(Ore.)  1917E-996. 

20.  Power  to  Begulate  Telephone  Bates. 
Where  a  municipality  under  its  home  rule 
charter,  adopted  under  Ore.  Const,  art.  11, 
5  2,  granted  a  telephone  franchise  limiting 
rates  to  be  charged,  and  later  the  Ore. 
Public  Utility  Act  (Laws  1911,  p.  483) 
was  enacted,  the  public  service  commis- 
sion had  authority  thereunder  to  author- 
ize the  company  to  charge  higher  rates. 
Woodbum  v.  Public  Service  Commission 
(Ore.)  1917E-996. 

21.  Jurisdiction.  The  diversion  of 
streets  and  alleys  from  their  legitimate 
use  by  constructing  a  telephone  system 
thereon  would  not  give  the  public  utilities 
commission  jurisdiction  over  the  associa- 
tion. State  Public  Utilities  Com.  v.  Beth- 
any Mut.  Tel.  Assoc.  (111.)  1917B-495. 

(Annotated.) 

7.     RIGHT     TO    MAKE    RULES     AND 
REGULATIONS. 

22.  Requiring  Payment  at  Office.  A  rule 
of  a  telephone  company,  requiring  pay- 
ment of  rentals  at  its  business  office,  is 
reasonable  and  valid.  State  v.  Kenosha 
Home  Tel.  Co.  (Wis.)  1916E-365. 

23.  Eules — Change  in  Method  of  Collec- 
tion. A  telephone  company  is  authorized 
to  change  its  method  of  collecting  rentals 


by  means  of  collectors,  so  as  to  require 
payment  at  its  business  office,  where  such 
change  did  not  entrench  on  contract  rights 
or  statutory  mandates.  State  v.  Kenosha 
Home  Tel.  Co.  (Wia.)  1916E-365. 

8.     TRANSMISSION    OF    MESSAGES, 
a.     Refusal  to  Transmit. 

24.  Duty  to  Accept  Message  for  Trans- 
mission. A  telegraph  company  may  refuse 
to  send  a  message  which  is  obscene,  slan- 
derous, blasphemous,  profane,  indecent,  or 
the  like.  Western  Union  Telegraph  Co. 
V.  Franklin  (Ark.)  1916D-466, 

(Annotated.) 

25.  A  message  tendered  t«  a  railroad 
and  telegraph  agent  for  transmission  to 
his  superior  officer,  reading:  "Please  ad- 
vise why  you  cannot  get  a  civil  answer 
out  of  your  agent  here.  If  you  ask  him 
anything  he  has  to  curse  you  out" — is 
neither  slanderous,  profane,  nor  indecent,, 
and  is  entitled  to  be  transmitted.  West- 
ern Union  Telegraph  Co.  v.  Franklin 
(Ark.)   1916D-466.  (Annotated.) 

26.  That  the  purpose  of  the  sender  of  a 
telegraph  message  refused  by  the  com- 
pany's agent  was  to  report  the  conduct  of 
the  agent  to  his  superior  did  not  affect 
the  right  to  recover  the  penalty  prescribed 
by  Kirby's  Ark.  Dig.  §  7946,  for  refusing 
to  send  the  message.  Western  Union  Tel- 
egraph Co.  V.  Franklin  (Ark.)  1916D-466. 

(Annotated.) 
Note. 
Liability  of  telegraph  company  for  re- 
fusal to  accept  message  for  transmission. 
1916D-467. 

b.     Delay  in  Transmission. 

27.  Inevitable  Delay — Duty  to  Notify 
Sender.  A  telegraph  company,  learning 
that,  because  of  conditions  brought  about 
by  no  fault  on  its  part,  it  is  unable  to  de- 
liver a  message,  must  send  a  service  mes- 
sage notifying  the  sender  why  delivery 
cannot  be  made.  Jones  v.  Western  Union 
Telegraph  Co.  (S.  Car.)  1917C-543. 

(Annotated.) 

28.  Duty  to  Transmit  Message — Liability 
for  Delay.  A  telegraph  company  receiv- 
ing a  message  for  transmission  must  de- 
liver it  within  a  reasonable  time,  and, 
where  it  fails  through  its  wrongful  act 
so  to  do,  it  is  liable  for  the  damages  prox- 
imatelv  resulting  therefrom.  .Jones  v. 
Western  Telegraph  Co.  (S.  Car.)  1917C- 
54.^ 

Note. 
Duty    of    telegraph    company   to   notify 
sender  of  delay  in  transmission  or  delivery 
of  message.     i917C-545. 

c.     Limitation  of  Time   for  Filing  Claim. 

29.  Claim  for  Damages — Suit  as  Equiva- 
lent of  Filing.     The  stipulf.tion  of  a  tele- 


TELEGRAPHS  AND  TELEPHONES. 


817 


graph  blank  requiring  notice  in  writing 
\vithin  sixty  days,  of  claim  for  damages, 
is  satisfied  by  commencing  an  action,  by 
service  of  summons,  within  sixty  days 
after  sending  two  messages,  for  failure 
to  deliver  the  first  and  delay  in  delivering 
the  second,  though  at  the  same  time  notice 
of  claim  on  account  of  the  second  message 
only  was  given,  the  company  not  having 
thereby  been  misled  to  its  damage,  and 
though  the  complaint  was  not  fijed  till 
after  the  sixty  days.  Mason  v.  Western 
Union  Tel.  Co.  (N.  Car.)  1917D-159. 

(Annotated,) 
Note. 

Commencement  of  suit  as  presentation 
of  claim  within  stipulation  on  telegraph 
blank.     1917D-162. 

d.  Actions. 

(1)  Defenses. 

30.  Delay  of  Death  Message— rProximate 
Consequence.  A  telegram  notifying  the 
addressee  that  one  denominated  father 
had  died  and  would  be  buried  the  follow- 
ing evening  carries  with  it  a  suggestion 
that,  if  the  addressee  cannot  arrive  at  the 
hour  nam-ed,  the  funeral  will  be  post- 
poned; and,  where  the  telegraph  company 
delayed  the  message^  recovery  cannot  be 
defeated  because  the  addressee  could  not 
have  reached  the  place  of  the  funeral  in 
time  had  the  message  been  promptly  de- 
livered. Western  Union  Tel.  Co.  v  Blake 
(Ark.)  1916C-521. 

(2)  Pleading. 

31.  Joinder  of  Causes  of  Action — Delay 
and  Failure  to  Notify — Inconsistency.  A 
cause  of  action  for  a  telegraph  company's 
nondelivery  of  a  message  is  inconsistent 
with  a  cause  of  action  for  its  failure  to 
send  a  service  message  on  learning  that, 
because  of  conditions  brought  about  by 
no  fault  on  its  part,  it  is  unable  to  make 
delivery  of  the  message,  and  one  cannot 
recover  damages  for  a  wrongful  failure  to 
deliver  and  for  a  wrongful  failure  to  send 
a  service  message.  Jones  v.  Western 
Union  Telegraph  Co.  (S.  Car.)  1917C- 
543, 

(3)  Evidence. 

32.  Evidence  —  Hearsay  —  Statenaent  of 
Unexecuted  Intention.  In  an  action  for 
damages  for  delay  in  the  transmission  of 
a  death  message,  testimony  by  the  son 
and  son-in-law  of  the  deceased  who  as- 
sisted his  wife  in  making  the  funeral  ar- 
rangements that,  had  the  addressee  noti- 
fied tbem  of  his  intention  to  come,  the 
funeral  would  have  been  postponed  is  not 
hearsay.  Western  Union  Tel.  Co.  v.  Blake 
(Ark.)    19160-521. 

(4)     Instructions. 

33.  Permitting  Double  Recovery.  Where 
tlie  complaint,  in  an  action  against  a  tele- 

52 


graph  company,  alleged  damages  for  non- 
delivery of  a  message  and  for  failure  to 
send  a  service  message,  a  charge  author- 
izing a  verdict  for  actual  and  punitive 
damages  for  nondelivery  and  a  verdict  for 
actual  and  punitive  damages  for  failure 
to  send  a  service  message  is  erroneous  and 
prejudicial  to  the  company.  Jones  v. 
Western  Union  Telegraph  Co.  (S.  Car ) 
1917C-543. 

(5)     Questions  for  Jnry. 

34.  Delay— Negligence  for  Jury.    In  an 

action  for  damages  for  delay  in  the  trans- 
mission of  a  death  message,  evidence 
whether  it  could  have  been  delivered  with- 
in time  by  the  exercise  of  reasonable  care 
held  sufficient  to  go  to  the  jury.  Western 
Union  Tel.  Co.  v.  Blake  (Ark.)  1916C-521. 

(6)     Damages. 

35.  Disclosing  Contents  of  Message  — 
Punitive  Damages.  Proof  of  wilfulness  is 
essential  to  the  recovery  of  punitive  dam- 
ages against  a  telegraph  company  for  the 
act  of  its  agent  in  disclosing  the  contents 
of  a  message.  Purdy  v.  Western  Union 
Tel.  Co.  (S.  Car.)   726.  (Annotated.) 

Note. 

What  is  excessive  verdict  for  mental 
anguish  in  telegraph  case.     1916C-624. 

(7)     Appeal. 

36.  Instruction  on  Evidence  Dislielieved 
by  Jury.  In  an  action  against  a  telegraph 
company  for  refusal  of  agent  to  transmit 
message  to  his  superior  officer  complain- 
ing of  his  conduct,  where  plaintiff  and 
his  witnesses  testified  that  the  agent  re- 
fused to  send  it,  and  thereafter  asked 
plaintiff  to  give  him  that  "damned  tele- 
gram," and  that  plaintiff  did  not  let  him 
have  it,  fearing  he  would  destroy  it,  and 
the  agent  testified  that  he  asked  for  it 
that  he  might  send  it,  as  the  verdict 
showed  that  the  jury  believed  the  state- 
ments of  plaintiff  and  his  witnesses  which 
conflicted  with  that  of  the  agent,  any 
error  in  the  instructions  given  and  re- 
fused relating  to  the  subsequent  offer  of 
the  agent  to  transmit  the  message  are 
80  immaterial  as  not  to  require  reversal 
of  the  judgment  for  plaintiff.  Western 
Uniou  Telegraph  Co.  v.  Franklin  (Ark.) 
1916D-466. 

Note. 
Liability  of  telegraph  company  for  dis- 
closure   of   contents    of    message.     1916C- 
727. 

9.     RIGHTS      AND      LIABILITIES      OP 
TELEPHONE  COMPANIES. 

37.  Contracts  —  Termination.  Under  a 
contract  for  telephone  service  at  a  resi- 
dence not  extending  to  any  definite  time, 
and  which  plaintiff,  the  subscriber,   could 


818 


DIGEST. 


19160- 
terminate  at  any  time,  the  court  was  witii- 
out  power  to  perpetuate  it  for  business 
purposes  at  the  agreed  rate  for  residence 
purposes,  which  might  or  might  not  be  rea- 
sonable, since  such  contracts  for  fixed 
periods  are  impractical,  if  not  impossible, 
from  their  very  nature.  Wolverton  v. 
Mountain  States  Tel.,  etc.  Co.  (Colo.) 
1Q16C-776. 

TEIiEPHONES. 

See  Telegraphs  and  Telephones. 

TEMPORARY   INJUNCTION. 

Restraining  order  distinguished,  see  In- 
junctions, 37,  38. 

TENANCY  FROM  YEAR  TO  YEAR. 

Created  by  holding  over,  »ee  Laoxdlord 
and  Tenant,  49. 

TENANT. 
Who  is,  see  Itandlord  and  Tenant,  1. 

TENANTS. 
See  Landlord  and  Tenant. 

TENANTS  IN  COMMON. 

1.  Creation  and  Nature  of  Tenancy, 

2.  Eigats  and  Liabilities  Inter  Se. 

a.  Purchase  by  Cotenant. 

b.  Removing  Burdens  from  Estate. 

c.  Accounting  Between  Cotenants. 

3.  Eights  and  Liabilities  as  to  Third  Per- 

sons, 

Wrongful  confusion,  effect,  see  Confusion, 
6-9. 

Interest  subject  to  homestead,  see  Home- 
stead, 6. 

Mining  by  cotenant,  measure  of  damages, 
see  Mines  and  Minerals,  8. 

Agreement  to  suspend  partition,  .see  Par- 
tition, 2. 

Partition  by  agreement,  see  Partition,  I. 

Partition  by  suit,  see  Partition,  4. 

Presumption  as  to  intent  to  create,  see 
Wills,  213. 

1.  CEEATION   AND   NATURE   OF 
TENANCY. 

1.  A  provision  in  a  deed  by  which  the 
owner  of  land  conveys  to  each  of  two 
sisters  a  third  interest  in  it  that,  while 
all  three  may  occupy  it  as  a  home  so  long 
as  they  remain  unmarried,  one  of  them 
marrying,  may  not  longer  so  occupy  it, 
is  not  inconsistent  with  a  joint  tenancy  so 
as  to  prevent  the  deed  creating  one.  It 
does  no  more  than  provide  a  contingency 
on  which  such  tenancy  shall  cease.  Wood 
v.  Logue  (Iowa)  1917B-116. 

(Annotated.) 


-1918B. 

2.  A  deed  clearly  showing  intent  to  cre- 
ate a  joint  tenancy  between  the  grantor 
and  grantees,  and  by  the  last  clause  pro- 
viding that  the  one  of  them  last  dying 
is  to  be  the  absolute  owner  of  the  prop- 
erty, the  use  of  the  word  "inherit,"  with 
reference  to  acquirement  by  survivors  of 
the  title  of  one  dying,  will  be  considered 
merely  an  inaccurate  application  of  it  to 
acquirement  of  title  by  survivorship. 
Wood  V.  Logue  (Iowa)  1917B-116. 

(Annotated.) 

3.  Estates — Joint  Tenancy  or  Tenancy  in 
Common.  The  law  prefers  to  construe  a 
gift  to  several  as  creating  a  tenancy  in 
common  instead  of  a  joint  tenancy.  Allen 
V.  Almy  (Conn.)  1917B-112. 

(Annotated.) 

4.  Even  at  common  law  provisions  of  an 
instrument  which  contemplated  a  division 
of  property  were  construed  to  create  a 
tenancy  in  common  rather  than  a  joint 
tenancy.  Allen  v.  Almy  (Conn.)  1917B- 
112.  (Annotated.) 

5.  Nature  of  Title.  The  title  to  tenants 
in  common  in  land  is  separate,  there  being 
nc  unity  in  title,  but  only  unity  of  pos- 
session. Firemen's  Ins.  Co.  v.  Larey 
(Ark.)  1917B-1225. 

Note. 
Nature  of  estate  resulting  from  creation 
of  cotenancy.     1917B-57. 

2.     EIGHTS  AND  LIABILITIES  INTER 
SE. 

a.     Purchase  by  Cotenant. 

6.  Purchase  of  Outstanding  Title — Ten- 
ants Asserting  Hostile  Claims.  The  rule 
which  prevents  one  tenant  in  common 
from  purchasing  an  outstanding  title  to 
the  common  property  and  setting  it  up 
against  his  cotenant  is  founded  upon  the 
confidential  relation  which  is  presumed  to 
exist  between  them,  and  has  no  applica- 
tion where  the  circumstances  surrounding 
them  negative  any  such  relation,  and  show 
that  they,  though  in  law  tenants  in  com- 
mon, are  not  such  in  fact,  and  are  assert- 
ing hostile  claims  against  each  other  with 
reference  to  the  common  property.  Shelby 
v.  Rhodes  (Miss.)  1916J)-1306. 

(Annotated.) 

7.  Property  was  conveyed  by  a  void 
deed  to  a  married  woman,  and  on  her  death 
intestate  she  left  as  heirs  her  husband  and 
a  minor  son.  The  father  sold  the  prop- 
erty by  warranty  deed  to  a  purchaser,  who 
had  no  knowledge  of  the  interests  of  the 
son.  On  discovery  of  such  interest  the 
purchaser  procured  a  quitclaim  deed  from 
the  original  grantor.  It  is  held  that,  pre- 
termitting the  discussion  as  to  whether 
the  infant  son  was  a  tenant  in  common 
with  the  purchaser,  the  quitclaim  deed  did 
not  inure  to  the  minor  to  perfect  his  title, 
since  the  purchaser  at  all  times  held  ad- 


TENDER— TENURE  OF  OFFICE. 


819 


versely  to  the  minor,  and  there  were  never 
any  confidential  relations  between  them. 
Shelby  v.  Rhodes  (Miss.)  1916D-1306. 

(Annotated.) 

Note. 

Eule  preventing  tenant  in  common  from 

purchasing  outstanding  title  as  applicable 

where    tenants     hold     adversely    to    each 

other.     1916D-1307. 

b.    Eemoving  Burdens  from  Estate. 

8.  Subjection  of  Share  of  Tenant  to 
Mortgage  Debt — Subrogation  to  Rights  of 
Mortgagee.  Plaintiff  and  his  cotenant 
gave  a  mortgage  on  the  common  property 
to  secure  a  note  which  they  fa.led  to  pay, 
whereupon  a  subsequent  mortgagee  of  the 
cotenaut's  interest  paid  the  n,.ti,  obtained 
judgment  thereon  in  another  state,  and  in 
an  action  on  the  judgment  in  this  state 
attached  and  sold  plaintiff's  undivided  in- 
terest for  the  amount  of  the  foreign  judg- 
ment with  interest  and  costs.  It  is  held 
that  plaintiff  was  entitled  to  be  subrogated 
to  the  rights  of  the  mortgagee  in  his  co- 
tenant's  interest,  as  against  the  subse- 
quent mortgagee  and  a  grantee  of  the  co- 
tenant's  interest,  to  the  extent  of  one-half 
of  the  amount  for  which  his  interest  was 
sold.  Sprowls  V.  Sprowls  (S.  Dak.)  1917A- 
830.  (Annotated.) 

c.     Accounting  Between  Cotenants. 

9.  Accounting  —  Parties  —  Effect  of  As- 
signment. The  K.  Co.  and  the  C.  Co.  were 
equal  owners  and  tenants  in  common  of 
a  mining  right.  The  K.  Co.  secretly  ex- 
tracted ore  therefrom,  failed  to  account 
therefor,  and  conveyed  its  property  to  the 
M.  Co.,  which,  in  consid^; ration  of  that 
conveyance,  assumed  and  agreed  to  pay  all 
the  debts  and  obligations  of  its  grantor. 

Held,  a  suit  in  equity  can  be  maintained 
by  the  C.  Co.,  or  its  assignee,  against  the 
M.  Co.,  without  the  presence  of  the  K. 
Co.  to  enforce  the  contract  of  the  M.  Co. 
to  pay  the  obligation  of  its  grantor  to 
account  to  the  C.  Co.  for  the  latter's  share 
of  the  value  of  the  ore  the  K.  Co.  ex- 
tracted from  the  common  property.  Sil- 
ver King  Coalition  Mines  Co.  v.  Slver 
King  ■Consol.  Mm.  Co.  (Fed.)  1918B-571. 

10.  Compensation  for  Services — Sale  of 
Common  Property.  A  tenant  in  common 
is  not  entitled  to  compensation  for  ser- 
vices in  selling  the  common  property  in 
the  absence  of  an  agreement  therefor, 
and  no  agreement  to  pay  compensation 
will  be  implied  from  the  fact  that  his  co- 
tenant  had  knowledge  of  the  efforts  to 
sell,  acquiesced  therein,  and  was  benefited 
by  the  sale.  Wall  v.  Focke  (Hawaii)' 
1916C-677.  (Annotated.) 

Note. 
Eight  of  tenant  in  common  to  compen- 
sation for  services  in  selling  common  prop- 
erty.    1916C-6S0. 


3.     EIGHTS  AND  LIABILITIES  AS  TO 
THIRD  PERSONS. 

11.  Action  for  Injury  to  Property  — 
Necessity  of  Joinder.,  In  case  of  tenancy 
in  common,  where  tuere  is  a  holding  in  sev- 
eralty, each  separate  owner  must  sue  for 
his  share  of  the  property.  Lou-sville,  etc. 
E.  Co.  ▼.  Jackson  (Ark.)  1918A-604. 

(Annotated.) 

12.  A  suit  to  recover  the  entire  amount 
of  damages  for  permanent  injury  to  the 
freehold  cannot  be  instituted  by  ono  of 
the  tenants  in  common  not  in  exclusive 
occupancy;  and,  where  the  land  was  par- 
titioned in  its  damaged  condition,  the 
other  tenants  retained  their  rig  it  of  action 
already  accrued.  Louisville,  etc.  E.  Co.  v. 
Jackson  (Ark.)  1918A-604.      (Annotated.) 

Note. 

Eight  of  one  tenant  in  common  to  sua 
for  damages  for  injury  to  premises. 
1918A-608. 

TENDER. 

Effect  of  refusal  as  to  accommodation, 
maker,  see  Bills  and  Notes,  44. 

Necessity  of  tender  as  condition  prece- 
dent to  commission,  see  Brokers,  7. 

Waiver  of  tender,  action  for  commission, 
see  Brokers,  7. 

Tender  of  amount  equal  to  verdict  as  bar 
to  recovery  of  interest,  f  ej  Interet,  3, 

Option  made  binding  by  tender,  see  Vendor 
and  Purchaser,  3. 

1.  Evidence  Sufficient.  The  pleading 
and  evidence  required  a  finding  on  the 
issue  of  tender  of  payment  by  the  judg- 
ment debtor  under  which  plaintiffs  affect- 
ed redemption.  If  the  findings  in  t  is  case 
are  to  be  construed  to  the  effect  that,  by 
direct  authority  of  the  judgment  debtor, 
a  tender  in  lawful  money  of  the  full 
amount  of  plaintiffs'  judgment  was  not 
made  to  them  personally  prior  to  the  time 
when  they  could  use  the  same  for  redemp- 
tion purposes,  they  are  not  justified  by  the 
evidence.  Orr  v.  Sutton  (Minn.)  19160- 
527. 

TENEMENT  HOUSE  LAW. 
See  Disorderly  Houses,  3-5. 

TENEMENT  HOUSEa 
See  Buildings,  3-5. 

TEN  HOUR  DAT. 

See  Labor  Laws,  6-9,  18. 

TENT. 
Defined,  see  Buildings,  1. 

TENURE  OF  OFFICE. 
See  Public  Ofllcers,  36-43. 
Terms    and    conditions    defined,    see    New 
Trial,  37. 


820 


See  WUIs. 


TESTAMENT. 


TESTAMENTAEY  CAPACITY. 

See  Wills,  49-96. 

TESTIMONY. 
See  Evidence. 

TESTS  FOR  INSANITY. 
See  Insanity,  1,  2. 

TEEEITORIES. 

1,  Effect  of  Territorial  Laws  After  State- 
hood— Prior  Contracts.  The  laws  of  Ar- 
kansas, which  were  extended  over  the  In- 
dian Territory,  are  in  force  in  this  state  as 
to  rights  arising  under  contracts  entered 
into  in  the  Indian  Territory  prior  to  state- 
hood, and  said  laws  of  Arkansas  need  not 
be  pleaded  or  proved-  Marx  v.  Hefner 
(Okla.)  1917B-656. 


THEATERS  AND  AMUSEMENTS. 

1.  Statutory    Regulation    of    Moving   Pic- 

tores. 

2.  Rights  of  Purchaser  of  Ticket. 

3.  Injuries  to  Patrons. 

Authority    of    manager   to   hire   help,   see 

Agency,  17. 
Restriction  by  vendor  patentee  of  film  of 

use  by  vendee,  see  Patents,  1,  2. 
Replevin  for  moving  films,  see  Replevin,  2. 


DIGEST. 

1916C— 1918B. 

of  Ohio,"  is  not  an  unlawful  bnrden  on 
interstate  commerce,  even  as  applied  to 
films  which  are  brought  in  from  another 
state,  but  which  are  in  the  hands  of  film 
exchanges,  ready  for  rental  to  exhibitors, 
or  have  passed  into  the  possession  of  the 
latter.  Mutual  Film  Corp.  v.  Industrial 
Commission  (U.  S.)  19I6C-296. 

(Annotated.) 

3.  The  freedom  of  speech  and  publica- 
tion guaranteed  by  Ohio  Const,  art.  1,  §  11, 
with  reyponsibility  only  for  abuse,  is  not 
violated  by  the  provisions  of  103  Ohio 
Laws,  399,  for  the  creation  of  a  board  of 
censors  which  is  to  examine  and  censor,  as 
a  condition  precedent  to  exhibition,  motion 

Eictures  films  which  are  to  be  publicly  ex- 
ibited  and  displayed  in  the  state,  and  is 
to  pass  and  approve  only  such  films  as  are, 
in  its  judgment,  of  a  moral,  educational,  or 
amusirg  and  harmless  character.  Mutual 
Film  Corp.  v.  Industrial  Commission  (U. 
S.)    1916C-296. 

4.  Legislative  power  is  not  unlawfully 
delegated  by  the  provisions  of  103  Ohio 
Laws,  399,  for  the  creation  of  a  board  of 
censors  which  is  to  examine  and  censor,  as 
a  condition  precedent  to  exhibition,  motion 
picture  films  which  are  to  be  publicly  ex- 
hibited and  di^layed  in  the  state,  and  is 
to  pass  and  approve  only  such  films  as  are, 
ic  its  judgment,  of  a  moral,  educational, 
or  amusing  and  harmless  character.  Mu- 
tual Film  Corp.  v.  Industrial  Commission 
(U.  S.)  1916C-296.  (Annotated.) 

Note. 
Moving  pictures.     1916C-301. 


L    STATUTORY     REGULATION     OF 
MOVING  PICTURES. 

1.  Importation  of  Prize  Fight  Films — 
Validity  of  Statute.  The  contention  that 
Congress  exceeded  its  power  under  the  com- 
merce clause  of  the  federal  constitution 
by  enacting  the  provisions  of  the  act  of 
July  31,  1912  (37  Stat,  at  L.  240,  c.  263, 
Fed.  St.  Ann.  1914  Supp.  p.  326),  §  1,  mak- 
ing it  unlawful  to  bring  into  or  to  cause 
to  be  brought  into  the  United  States  from 
abroad,  any  film  or  other  pictorial  repre- 
sentation of  any  prize  fight  which  is  de- 
signed to  be  used,  or  may  be  used,  for  pur- 
poses of  public  exhibition,  is'  so  obviously 
devoid  of  merit  that  a  bill  which,  on  the 
ground  of  the  unconstitutionality  of  such 
statute,  sought  to  compel  the  collector  of 
customs  to  permit  the  entry  of  photo- 
graphic films  of  a  foreign  prize  fight,  states 
no  cause  of  action,  and  is  properly  dis- 
missed by  a  Federal  district  court.  "Weber 
V.  Freed  (U.  S.)  1916C-317. 

2.  Censorship — Validity  of  Statute.  The 
censorship  by  a  state  board  of  censors,  con- 
formably to  103  Ohio  Laws,  399,  of  mo- 
tion picture  films  which  are  "to  be  pub- 
licly exhibited  and.  displaced  in  the  state 


2.   RIGHTS  OF  PURCHASER  OF  TICKET. 

5.  A  ticket  of  admission  to  a  theater  or 
show  is  not  a  license  revocable  at  will  but 
entitles  the  holder  to  remain  throughout 
the  entire  performance  unless  his  conduct 
aflFords  reasonable  ground  for  his  ejection. 
Hurst  V.  Picture  Theaters  (Eng.)  1916D- 
457.  (Annotated.) 

Note. 
Rights  of  purchaser  of  ticket  of  admis- 
sion  to  place  of  amusement.     1916D-464, 

3.     INJURIES  TO   PATRONS. 

6.  Entertainment  not  for  Profit — Per- 
sonal Injury  —  Liability  of  Promoter. 
Where  the  court  instructs  the  jury  that 
those  defendants  who  devised  means  to 
raise  money  for  a  celebration  for  a  Fourth 
of  July,  and  outlined  the  program  which 
was  advertised  in  the  papers  to  stcuie  the 
attendance  of  a  crowd  at  such  celebration^ 
would  not  be  liable  for  injury  to  the  plain- 
tiff in  the  absence  of  proof  to  connect 
them  with  the  race  itself  on  the  day  of  the 
injury,  and  that  only  those  so  proved  to  be 
connected  with  it  on  such  dav  would  be 
liable,  held,  that  such  instruction  was  pre- 
judicial to  the  plaintiff.  The  court  should 
have  instructed  the  jury  under  the  facts  in 


THEFT— TIME. 


821 


this  case  that  the  commercial  club  and  its 
codefendants,  at  whose  instance  and  under 
whose  supervision  the  race  was  promoted 
and  conducted,  were  liable  to  a  traveler 
upon  such  street,  who  without  fault  on  his 
part  was  struck  and  injured  by  one  of  the 
horses  in  the  race,  if  at  such  time  said 
defendants  were  the  promoters  of  and  had 
knowledge  that  the  race  in  question  was 
to  be  conducted  as  a  part  of  the  program. 
Marth  v.  Kingfisher  Commercial  Club 
(Okla.)    1917E-235.  (Annotated.) 

7.  Scenic  Railway — Liability  for  Per- 
sonal Injury.  The  operator  of  a  scenic 
railway  in  an  amusement  park  is  bound  to 
exercise  the  highest  degree  of  care  and 
caution  for  the  safety  of  its  passengers, 
the  same  aa  would  a  common  carrier;  the 
danger  of  such  amusement  necessitating 
excessive  care.  Best  Park  etc.  Co.  v.  Eol- 
lins   (Ala.)    1917r)-929.  (Annotated.) 

8.  Personal  Injury — Liability  for  Defec- 
tive or  Unsafe  Device.  The  general  con- 
cessionary as  to  amusement  devices  from  a 
state  fair  association,  who.  for  a  percent- 
age of  the  receipts,  let  privileges  to  oper- 
ate particular  devices  to  subconcession- 
aries,  having  control  of  the  amusements  on. 
the  grounds  and  the  selection  of  the  at- 
tractions and  of  their  operators,  was  un- 
der duty  to  use  reasonable  care  to  see  that 
a  device  for  the  carriage  of  passengers, 
simulating  wave  motion,  called  an  "Ocean 
Wave,"  was  reasonably  safe.  Hartman  v. 
Tennessee*  State  Fair  Assoc.  (Tenn.) 
1G17D-931.  (Annotated.) 

9.  The  immediate  operator  of  an  amuse- 
ment device  at  a  state  fair  carrying  pas- 
sengers, who  leases  the  privilege  to  operate 
from  the  general  concessionary  from  the 
fair  for  a  share  of  the  receipts,  is  charged 
with  the  duty  to  his  patrons  of  maintain- 
ing the  place  and  device  in  a  safe  condi- 
tion. Hartman  v.  Tennessee  State  Fair 
Assoc.  (Tenn.)  1917D-931.        (Annotated.) 

Note. 

Liability  of  organizer  or  promoter  of 
public  entertainment  not  given  for  profit 
for  personal  injuries.     1917E-238. 


See  Larceny. 


THEFT. 


THEN. 


Meaning,    see   Indictments   and   Informa- 
tions, 15. 


THEN  AND  THEEE. 

Meaning,    see   Indictments   and   Informa- 
tions, 15. 


THEORY  OF,  TRIAL  COURT. 

Effect   on   appeal,  see  Appeal  and  Error, 
159-165. 


THING  IN  ACTION. 

Assignability,  see  Assignments,  11-18. 
Defined,  see  Assignments,  14. 


THINQ  OF  VALUE. 
Promissory  note  is,  see  False  Pretenses,  2. 

THREATS. 

Threat  to  sue  for  trespass,  lawful,  see  Ex- 
tortion, 2. 

Threats  hj  deceased,  admissiblity,  sea 
Homicide,  3S. 

TIDE  LANDS. 
See  Public  Lands,  2-6. 

TIDES. 

Judicial  notice  of,  see  Evidence,  18. 

TIE  VOTE. 
See  Elections,  75. 

TIMBER. 
Defined,  see  Trees  and  Timber,  L 

TIME. 

Time  of  appeals,  see  Appeal  and  Error,  47- 

51. 

Motion  to  dismiss  appeal,  see  Appeal  and 
Error,  82,  84. 

When  objections  must  be  made  for  avail- 
ability on  appeal,  see  Appeal  and 
Error,  420-424. 

For  suing  on  insurance  contract,  see  Bene- 
ficial Associations,  3. 

As  essence  of  contract,  see  Contracts,  8, 
16. 

Reasonable  time  for  termination  implied, 
see  Contracts,  18. 

Waiver  of  time  stipulation,  see  Contracts, 
50,  93. 

Time  for  rescission,  see  Contracts,  51,  52. 

Of  death  presumed  from  absence,  see 
Death,  1,  2,  4. 

For  holding  elections,  see  Elections,  19,  20. 

Contracts  not  to  be  performed  within  a 
year,  see  Frauds,  Statute  of,  1,  2. 

When  infant  may  disaffirm  contract,  see 
Infants,  9-11. 

When  relation  of  guest  begins,  see  Inn- 
keepers, 1. 

When  interest  begins  to  run,  see  Interest, 
4. 

For  vacation  of  judgments,  see  Judgments, 
33-35,  41. 

Of  entry  of  default,  see  Judgments,  46,  47. 

Purchaser's  right  to  time  for  search  .>f 
title,  see  Judicial  Sales,  3. 

Reasonable  time  for  notice,  see  Landlord 
and  Tenant,  46. 

Of  hiring,  see  Master  and  Servant,  1,  2. 


822 


DIGEST. 

1916C— 1918B. 


When  ordinance  becomes  effective,  see 
Mtinicipal  Corporatioiis,  100. 

Time  for  moving  for  new  trial,  see  New 
Trial,  26-28,  35. 

Time  for  reconsidering  order,  see  New 
Trial,  41. 

When  objection  to  pleading  must  be  made, 
see  Pleading,  15. 

When  pleading  must  be  amended,  see 
Pleading,  78. 

Variance  in  date  of  contract,  see  Pleading, 
101. 

Publication  of  summons,  see  Process,  8-11. 

For  suing  to  rescind,  see  Rescission,  Can- 
cellation and  Eeformation,  19. 

Of  taking  effect  of  statutes,  see  Statutes, 
95,  96. 

Limiting  time  for  filing  claims,  see  Tele- 
graphs and  Telephones,  29. 

Time  for  preparation  as  ground  for  con- 
tinuance, see  Trial,  3-5. 

Date  as  essential  to  will,  see  Wills,  29. 


TITLE. 
See  Quieting  Title. 
Abstract  of,  see  Abstract  of  Title. 

1.  Computation — Exclusion  of  Interven- 
ing Sunday.  Mass.  Rev.  Laws,  c.  ll"",  S  2, 
provides  that  judgments  in  municipal 
courts  shall  be  entered  at  10  A.  M.  on 
the  Friday  of  each  week,  or  on  the  pre- 
ceding Thursday  if  Friday  is  a  holiday. 
Rev.  Laws,  c.  173,  §  97,  as  amended  by 
St.  1910,  c.  534,  §  1,  provides  that  an  ap- 
peal from  a  municipal  court  may  be  taken 
within  six  days  after  entry  of  judgment. 
Judgment  was  entered  in  a  municipal 
court  on  Friday  at  10  A.  M.,  and  the  ap- 
peal perfected  the  following  Friday  at 
11:15  A.  M.  It  is  held  that  the  appeal 
was  duly  perfected,  since  in  computing 
the  six-day  period  Sunday  was  to  be  ex- 
cluded, under  the  general  rule  that,  when 
a  statute  fixes  a  limitation  of  time  within 
which  a  particular  act  may  or  may  not 
be  done,  if  the  time  limited  is  less  than 
a  week,  Sundays  are  excluded  therefrom. 
Stevenson  v.  Donnelly  (Mass.)  1917E- 
932.  (Annotated.) 

2.  In  computing  the  time  allowed  for 
filing  a  motion  for  new  trial,  an  interven- 
ing Sunday  must  be  included;  and,  where 
such  motion  is  filed  on  the  Wednesday 
next  succeeding  the  Thursday  on  which 
the  verdict  was  returned,  it  is  not  within 
the  five  days  prescribed  by  subsection  160 
of  section  4226,  N.  Mex.  Code  1915.  At- 
chison, etc.  R.  Co.  V.  Solorzano  (N.  Mex.) 
1917E-950.  (Annotated.) 

3.  Where  a  contract  for  the  hire  of  a 
steam  shovel  plant  provides  for  a  rental 
of  a  stipulated  sura  per  day  "to  run  each 
and  every  day  until  the  work  is  complete." 
intervening  Sundays  are  to  be  included  irf 
computing  the  number  of  days  for  which 
rental  is  to  be  paid.  Perry  v.  Brandon 
(Out.)     1917E-948.-  (Annotated.) 


4.  Meaning  of  "Days.**  Where  an  ap- 
peal from  the  municipal  court  must  be 
taken  within  six  days,  the  word  "days"  is 
used  in  the  sense  entire  days.  Stevenson 
V.  Donnelly  (Mass.)   1917E-932. 

5.  Computation — 'Trom"  as  Word  of 
Exclusion.  When  a  period  of  time  is  to 
be  reckoned  from  a  certain  day,  the  day 
from  which  the  time  is  to  be  reckoned  is 
excluded  from  the  computation.  Frey  v. 
Rhode  Island  Co.  (R.  I.)  1918A-920. 

(Annotated.) 

6.  "Reasonable  Time."  Reasonable  time 
may  be  defined  generally  to  be  so  much 
time  as  is  necessary  under  the  circum- 
stances for  a  reasonably  prudent  and  dili- 
gent man  to  do,  conveniently,  what  the 
.contract  or  duty  requires  should  be  done, 
having  regard  for  the  rights  and  possibil- 
ity of  loss,  if  any,  to  the  other  party  to 
be  affected.  Citizens  Bank  Bldg.  v.  L.  & 
E.  Wertheimer   (Ark.)    1917E-520. 

7.  "To"  as  Word  of  Exclusion.  R.  I. 
Gen.  Laws  1909,  c.  275,  §  3,  provides  that 
there  shall  be  a  vacation  of  the  superior 
court  from  the  second  Monday  in  July  to 
the  third  Monday  in  September  of  each 
year,  and  section  11  provides  that  in  vaca- 
tion the  superior  court  shall  not  hear  jury 
trials.  Chapter  32,  §  12,  provides  that 
whenever  time  is  to  be  reckoned  from  any 
day  such  day  shall  not  be  included  in  the 
computation.  It  is  held  that  as  the  word 
"to,"  like  the  word  "from,"  is  generally 
a  word  of  exclusion,  and  as  chapter  275, 
§  2,  requires  the  superior  court  to  hold 
sessions  at  certain  points  on  the  third 
Monday  in  September,  the  superior  court 
may  hear  jury  trials  on  the  second  Mon- 
day in  Julv.  Frey  v.  Rhode  Island  Co. 
(R.  L)  1918A-920. 

Note. 
Exclusion    or    inclusion    of    Sunday    or 
holiday  in  computation  of  time.     1917E- 
934. 

TIPS. 

As  part  of  earnings,  see  Master  and  Ser- 
vant, 277. 

TITLE. 

Nature  of  title  acquired  by  condemnation, 
see  Eminent  Domain,  18-21. 

Proof  of  title  to  land,  see  Evidence,  48. 

As  part  of  ordinance,  see  Municipal  Cor- 
porations, 53. 

Of  trustee  in  trust  property,  see  Trusts 
and  Trustees,  22. 

TO. 

Meaning,  see  Time,  7. 

TOBACCO. 

Not  a  food,  see  Food,  1. 

TOBACCO  PBEMIXTMS. 
See  Licenses,  21, 


TORNADO  INSURANCE— TORTS. 


823 


TOENADO  INSUBANCB. 
6e»  Insurance,  60. 

TORTS. 

See  Conspiracy;  Death  by  Wrongful  Act; 
False  Imprisonment;  Libel  and  Slan- 
der; Malicious  Prosecution;  Negli- 
gence; Trespass. 

Principal's  liability  for  agent's  tort,  see 
Agency,  25,  26. 

Assignability  of  cause  of  action,  see  As- 
signments, 11-14. 

Attorney's  lien  on  cause  of  action,  see 
Attorneys,  39,  41. 

Wilful  and  malicious  injury,  effect  of  de- 
fendant's bankruptcy,  see  Bankruptcy, 
25. 

Order  of  superior  as  defense,  see  Militia, 
11. 

Liability  of  cities,  see  Municipal  Corpora- 
tions, 167-187. 

Tort  counterclaim  in  tort  action,  see  Set- 
off and  Counterclaim,  1. 

Liability  of  state  for  officers'  torts,  see 
States,  8. 

1.  Incidental  Injury  to  Third  Person. 
Where  one  is  injured  by  the  wrongful  act 
ef  another,  and  a  third  person  suffers  an 
indirect  loss  because  of  some  contract 
obligation  to  the  injured  party,  such  loss 
is  not  actionable;  but  where  one  is  in- 
jured by  the  wrongful  act  of  another,  and 
a  third  person  is  indirectly  and  conse- 
quently injured  in  his  business  relations, 
the  injury  to  the  latter  is  actionable, 
though  not  directly  committed  on  him,  if 
it  was  maliciously  and  fraudulently  done. 
Nieberg  v.  Cohen  (Vt.)  1916C-476. 

2.  Malicious  Act  —  Defined.  A  "mali- 
cious" act  is  one  injurious  to  another,  in- 
tentional, and  without  legal  justification, 
and  is  unlawful  and  actionable,  but  if  an 
act,  otherwise  lawful,  has  a  reasonable 
tendency  to  promote  ends  advantageous 
to  the  doer,  malice  in  the  doing  does  not 
bring  it  within  the  rule.  Hutton  v.  Wat- 
ters  (Tenn.)  1916C-433.  (Annotated.) 

3.  In  an  action  for  wrongful  injnry  to 
plaintiff's  business,  the  question  of  whether 
the  acts  complained  of  were  within  the 
rights  of  the  defendant  as  being  in  the 
due  course  of  competition  for  his  own  ad- 
vantage, or  actuated  solely  by  malice  and 
unjustifiable,  must  be  determined  upon  the 
facts  in  each  case,  and  no  rule  can  be 
laid  down  for  its  determination.  Hutton 
V.  Watters  (Tenn.)  19160^33. 

(Annotated.) 

4.  Lawful  Act  Committed  With  Mali- 
cious Motive.  Plaintiff's  petition  alleged 
that  she  operated  a  boarding  house  near 
a  school  of  which  the  defendant  was 
president;  that  the  defendant,  having  dis- 
agreed with  one  boarder  at  the  plaintiff's 
house,  demanded  his  ejection  therefrom 
and  was  refused;  that  he,  with  others, 
then  attempted  to,   and  did,   destroy   the 


plaintiff's  business,  by  threats  against 
students  who  boarded  with  the  plaintiff, 
by  deterring  new  arrivals  from  going  to 
the  plaintiff's  house,  and  by  other  means; 
that  the  plaintiff  was  of  good  character, 
and  operated  a  reputable  house;  and  that 
the  defendants  acted  from  ill-will,  and  not 
by  reason  of  business  rivalry  or  competi- 
tion. Held,  that  the  declaration  was  not 
demurrable,  the  facts  showing  a  cause  of 
action,  even  though  the  act  itself  was  law- 
ful, if  the  defendant  was  actuated  by  ma- 
lice and  destroyed  the  plaintiff's  business 
without  reasonable  advantage  to  himself, 
since  every  person  has  the  right  to  con- 
duct a  lawful  business  and  to  have  that 
right  enforced  or  the  wrong  redressed  if 
the  right  is  infringed  upon.  Hutton  v. 
Watters  (Tenn.)  1916C-433.     (Annotated.) 

5.  Unlawful  Act.  It  is  no  defense  to 
an  action  for  injuries  resulting  from  a 
violation  of  law  that  the  actual  breach  of 
the  law  was  committed  by  a  contractor,  if 
the  employer  knew  of  and  sanctioned  the 
illegal  act.  Prest-o-lite  Co.  v.  Skeel  (Ind.) 
1917A-474. 

6.  Wrongfully  Procuring  Servant's  Dls« 
.charge.     In  an  action  by  the  employee  of 

a  manufacturing  company  against  an  in- 
surance company  for  damages  for  wrong- 
fully procuring  plaintiff's  discharge  by  his 
employer,  evidence  held  not  to  sustain  a 
finding  that  plaintiff  was  discharged  be- 
cause of  defendant's  suggestion  or  wrong- 
ful interference  in  plaintiff's  employment. 
Johnson  v.  Aetna  Life  Ins.  Co.  (Wis.) 
1916E-603.  (Annotated.) 

7.  In  an  action  against  an  insurance 
company  for  wrongfully  procuring  plain- 
tiff's discharge  by  his  employer,  evidence 
for  plaintiff  held  to  make  a  prima  facie 
case  that  defendant  procured  plaintiff's 
discharge  to  prevent  him  from  earning 
money  so  as  to  enable  him  to  maintain 
an  action  for  damages  for  personal  in- 
juries. Johnson  v.  Aetna  Life  Ins.  Co. 
(Wis.)   1916E-603.  (Annotated.) 

8.  rf  defendant  insurance  company  pro- 
cured plaintiff's  discharge  by  his  employer 
in  order  to  prevent  plaintiff  from  earninj? 
money,  to  prosecute  his  suit  for  damages 
for  personal  injuries,  defendant  is  liable 
to    plaintiff    in    damages    for    wrongfully 

Erocuring  his  discharge.    Johnson  v.  Aetna 
,ife  Ins.  Co.  (Wis.)  1916E-603. 

(Annotated.) 

9.  If  defendant  was  justified  in  procur- 
ing plaintiff's  discharge  by  his  employer, 
the  fact  that  defendant  acted  from  mali- 
cious motives  will  not  make  it  liable  to 
plaintiff.  Johnson  v.  Aetna  Life  Ins.  Co. 
(Wis.)    1916E-603.  (Annotated.) 

10.  Persons  Liable  —  Aiding  or  En- 
couraging. One  present  at  the  commis- 
sion of  a  tort  encouraging  or  inciting  the 
same  by  words,  gestures,  looks,  or  signs, 
or  by  any  means  countenancing  or  ap- 
proving the  act,  is  in  law  an  "aider  and 


824 


DIGEST. 

1916CJ— 1918B. 
principal.     Rat- 


abettor,"    and    liable    as 

cliffe  V.  Walker  (Va.)   1917E-1022. 

11.  Joint  Tortfeasors--XJnsatisfied  Judg- 
ment Against  One — Effect.  A  judgment 
in  which  execution  has  been  returned 
nulla  bona  against  one  joint  tortfeasor  is 
not  a  bar  to  an  action  against  the  other 
tortfeasor.  Ketelsen  v.  Stilz  (Ind.)  1918A- 
965. 

Notes. 

Act  lawful  in  itself  not  rendered  unlaw- 
ful by  malicious  motive.     19160-438. 

Civil  liability  for  interference  with  con- 
tract relations.     1916E-608. 

TOTAL  DISABILITY. 

Compensation  for  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  281. 

TOTAL  LOSa 

Of  building,  see  Fire  Insurance,  37. 
Abandonment    on    "restraint   of   princes," 
see  Marine  Insorance,  2. 

TOWNS. 

See  Counties;  Municipal  Corporations. 

Appellate  jurisdiction  of  action  under  rev- 
enue act,  see  Appeal  and  Error,  10. 

Township  organization  of  county,  see 
Counties,   1-4. 

Village  within,  separate  entity  for  elec- 
tion, when,  see  Local  Option,  3. 

Permission  to  string  wires,  see  Nuisances, 
4. 

Eecovery  by  town  of  money  paid  by  mis- 
take, see  Payment,  11,  12. 

Liability  for  pauper's  medical  aid,  see 
Poor  and  Poor  Laws,  1. 

Eeimbursement  for  aid  of  nonresident 
pauper,  see  Poor  and  Poor  Laws,  8, 
11. 

1.  Bight  to  Road  and  Bridge  Tax.  Un- 
der Mo.  Const,  art.  10,  §  22,  authorizing  a 
township  special  levy  of  road  and  bridge 
taxes,  and  forbidding  diversion  to  any 
other  purpose,  the  road  and  bridge  taxes 
levied  and  collected  by  a  township  from 
citizens  living  within  the  corporate  limits 
of  a  city  comprised  within  the  township 
belong  to  the  township,  and  not  to  the 
citv.  Lamar  Township  v.  Lamar  (Mo.) 
1916D-740. 

2.  To  construe  Mo.  Rev.  St,  1909, 
§11767,  to  authorize  a  township  to  pay 
over  to  a  city  road  and  bridge  taxes  col- 
lected from  citizens  living  within  the  cor- 
porate limits  of  the  city  would  render  it 
violative  of  Const,  art.  4,  §  46,  prohibiting 
the  General  Assembly  from  making  a 
grant  of  public  money  to  a  municipal  cor- 
poration. Lamar  Township  v.  Lamar  (Mo.) 
1916D-740. 


TRACTION  ENGINE. 
Use  of  streets  by,  see  Streets  and  High- 
ways, 19. 

TRADE,    BUSINESS    OR    PROFESSION. 

Derogatory     statements     concerning,     see 
Libel  and  Slander,  28-32. 

TRADE  FIXTUREa 
See  Fixtures. 


AND     TRADENAMES. 


TOWNSHIP. 


See  Towns. 


TRADEMARKS 

1.  Acquisition. 

2.  Alienation.  , 

3.  Infringement  and  Unfair  Competition. 

a.  What  Constitutes  Infringement. 

b.  What  Constitutes  Unfair  Competi- 

tion. 

(1)  Use  of  Geographical  Name. 

(2)  Use  of  Personal  Name, 
e.  Actions. 

Brands  and  labels,  see  Food,  6,  7. 

1.  ACQUISITION. 

1.  Acquisition  of  Tradename  —  Neces- 
sity of  Actual  Use.  One  person  cannot 
exclude  another  from  using  a  particular 
name  as  a  tradename,  unless  he  has  made 
actual  prior  use  of  such  name  as  his 
own  tradename.  Rodseth  v.  Northwestern 
Marble  Works  (Minn.)  1917A-257. 

2.  ALIENATION. 

2.  Transfer  Apart  from  Business.  One 
having  the  exclusive  right  to  use  a  trade- 
name can  transfer  such  right  to  another 
only  when  coupled  with  a  transfer  of  some 
prooerty  or  business  with  which  the  name 
has  become  identified.  Rodseth  v.  North- 
western Marble  Works  (Minn.)  1917A- 
257.  (Annotated.) 

Note. 

Assignability  of  trademarks  and  trade- 
names.    1917A-260. 

3.     INFRINGEMENT      AND      UNFAIR 
COMPETITION. 

a.     What  Constitutes  Infringement. 

3.  Use  by  Corporation  of  Own  Name. 
If  the  name  of  a  corporation  has  become 
established  as  the  tradename  of  another 
before  its  use  as  such  by  the  corporation, 
the  corporation  may  be  enjoined  from 
using  it  as  a  tradename,  except  in  such 
form  as  will  fairly  distinguish  it  from  the 
name  already  in  use.  Rodseth  v.  North- 
western Marble  Works  (Minn.)  1917A- 
257. 

b.     What  Constitutes  Unfair  Competition. 
(1)     Use  of  Geographical   Name. 

4.  Acquisition  of  Secondary  Significance. 
No  one  can  acquire  the  exclusive  right  to 


TRADENAMES— TREATIES. 


825 


use  the  name  of  the  place  where  his  busi- 
ness is  located,  nor  the  exclusive  right  to 
use  words  properly  descriptive  of  the  na- 
ture of  the  business,  but  where  he  estab- 
lishes a  tradename  containing  such  geo- 
graphical name  and  such  descriptive  words, 
if  a  competitor  subsequently  desires  to 
use  the  same  name  and  the  same  or  simi- 
lar descriptive  words  in  his  own  trade- 
name, he  must  put  them  in  such  form,  or 
combine  them  with  other  words  in  such 
manner,  that  his  tradepame  will  be  fairly 
distinguishable  from  the  tradename  first 
in  use.  Kodseth  v.  Northwestern  Marble 
Works  (Minn.)  1917A-257. 

(2)     Use  of  Personal  Nam©. 

5.  Unfair  Competition — Use  of  Personal 
Name.  "While  a  natural  person  has  an  un- 
qualified right  to  the  use  of  his  family 
name  in  conducting  any  business,  though 
such  use  be  detrimental  to  other  indi- 
viduals of  the  same  name,  he  cannot  com- 
bine his  name  with  others  for  the  purpose 
of  working  a  fraud.  Wood  v.  Wood  (Ore.) 
1918A-226.  (Annotated.) 

6.  Plaintiffs  formed  the  Wood  Realty 
Company,  a  firm  engaged  in  the  real  es- 
tate business.  Defendant,  who  had  no  as- 
sociate, started  business  uilder  the  name 
of  the  W.  E.  Wood  Realty  Company. 
There  was  some  confusion  of  mails  and 
business,  some  persons  mistaking  defend- 
ant for  plaintiffs.  It  is  held  that  as  the 
word  "lealty,"  which  is  used  as  a  collec- 
tive noun  for  real  estate  and  when  used 
in  a  firm  title  indicates  brokers  engaged 
in  the  purchase  and  sale  of  real  estate, 
and  as  the  word  "company"  indicates  an 
associate  or  partnership,  defendant  will 
be  restrained  from  continuing  business 
under  such  title;  the  use  of  his  name  con- 
stituting unfair  competition.  Wood  v. 
Wood   (Ore.)    1918A-226.         (Annotated.) 

Note. 
Use  of  personal  or  corporate  tradename 
as  unfair  competition.     1918A-229. 

c.     Actions. 

7.  Necessity  of  Fraudulent  Intent.  In 
a  suit  to  enjoin  the  infringement  of  a 
tradename,  it  is  not  necessary  to  prove 
there  was  a  fraudulent  intent  to  deceive. 
Wood  V.  Wood  (Ore.)  1918A-226. 


TRADENAMES. 
See  Trademarks  and  Tradenames. 

TRADE  UNIONS. 
See  Iiabor  Unions. 

TRADING  STAMPS. 
See  Licenses,  20-22. 


TRADING  WITH  THE  ENEMY  ACT. 
See  War,  15. 

TRANSFER  OF   CAUSES. 

Harmless  error  in  denying,  see  Appeal  and 
Error,  334. 

TRANSCRIPT. 

Evidence  on  former  trial,  admissibilitj, 
see  Evidence,  85,  88. 

TRANSCRIPT  ON  APPEAL. 
See  Appeal  and  Error,  53. 

TRANSFER. 
Meaning,  see  Vendor  and  Purchaser,  14. 

TRANSFER  OF  STOCK. 

§ee  Corporations,  10,  30,  78-84,  123,  125. 

TRANSIENT  MERCHANTS. 
See  Licenses,  3-13. 

TRANSITORY  ACTIONS. 
See  Conflict  of  Laws,  4;  Venue,  1,  2. 
Jurisdiction,  see  Courts,  5-7. 

TRANSPORTATION. 

Right  to  lien  for  delivering  materials,  see 
Mechanics'  Liens,  12,  13. 

TRAVELING  EXPENSES. 
See  Agency,  6,  7,  16. 

TREASON. 

Liability  for  extraterritorial  acts,  see  War, 
8,  9. 

TREATIES. 

Eight  of  consul  to  administer,  see  Execu- 
tors and  Administrators,  3,  4. 

Exclusion  of  aliens  from  hunting  rights, 
see  Fish  and  Game,  4. 

1.  Construction  of  Treaty.  Treaties  con- 
ferring rights  upon  the  subjects  of  a 
foreign  nation  partake  of  the  nature  of 
municipal  law,  and  will  be  treated  and 
construed  as  a  statute,  if  the  right  can  be 
enforced  by  the  courts,  and  the  treaty 
prescribes  a  rule  for  its  determination. 
Bondi  V.  MacKay  (Vt.)   1916C-130. 

2.  A  treaty  provision  should  receive  a 
reasonable  construction  with  reference  to 
the  purpose  of  the  treaty  and  the  inten- 
tion of  the  parties.  Bondi  v.  MacKay 
(Vt.)   1916C-130. 

3.  The  application  of  a  treaty  of  the 
United  States  to  any  case,  and  its  con- 
struction,   are    questions    for    the    court. 


826 


DIGEST. 

1916C— 1918B. 


Hamilton  ▼.  Erie  E.  Co.  (N.  T.)   1918A- 
928. 

4.  In  eonstming  a  treaty  the  general 
rules  for  the  construction  of  statutes  and 
written  instruments  are  applicable,  and  the 
cognate  rules  of  international  law  and  of 
the  legislation  of  the  government  may  be 
considored.  Hamilton  v.  Erie  E.  Co.  (N. 
Y.)   1918A-9S8. 

5.  The  general  rule  that  treaties  should 
be  liberally  construed  so  as  to  carry  out 
the  apparent  intention  of  the  parties  to 
secure  equality  and  reciprocity  between 
them  does  not  justify  a  state  court  in  ju- 
dicially legislating  as  against  the  right 
of  the  state  and  its  taxing  power,  and  in 
adding  words  to  a  treaty  so  as  to  make  it 
applicable  to  the  estate  of  citizens  of  the 
United  States  in  the  United  States,  when 
by  its  terms  it  is  only  applicable  to  the 
estates  of  aliens  or  to  the  estates  of  citi- 
zens of  the  United  States  who  reside  in 
a  foreign  country.  Moody  v,  Hagen  (N. 
Dak.)    1918A-9'33. 

6.  As  Supreme  Law.  Under  Const.  U.  9. 
art.  6,  declaring  a  valid  treaty  the  supreme 
law  of  the  land,  where  a  treaty  affects  the 
rights  of  litigants,  it  binds  those  rights 
and  is  as  much  to  be  regarded  by  the  court 
83  an  act  of  Congress,  being  paramount  to 
the  constitution  and  statutes  of  the  state, 
but  not  to  acts  of  Congress.  Hamilton  v. 
Erie  E.  Co.  (N.  Y.)  1918A-928. 

7.  Conflict  of  State  and  Federal  Itaws. 
It  is  the  policy  of  the  federal  government 
not  to  interfere  by  treaty  with  the  laws 
of  the  states  in  the  administration  of  es- 
tates of  decedents.  Estate  of  Servaa 
(Cal.)  1916I>-233. 

TBEES  AND  TIMBER. 

1.  In  General,  826. 

2.  Forest  Laws,  Validity  and  Construction, 

826. 

3.  Acts  and  Duties  of  Forest  Officers,  828. 

4.  National  Forest  Beserves,  828. 

5.  Logging,  828. 

Overhanging  trees,  cutting  to  line,  see 
Adjoining  Landowners,  7.  8. 

Condemnation  of  temporary  logging  road, 
see  Eminent  Domain,  9. 

Testimony  of  expert,  stumps,  see  Evidence, 
57. 

1.     IN  GENEEAL. 

1.  Timber— Definition,  The  word  "tim- 
ber" h%s  a  well-defined  meaning  and  in- 
cludes such  trees  as  are  suitable  for  build- 
ing and  allied  purposes  but  does  not  in- 
clude fruit  trees.  W.  T.  Smith  Lumber 
Co.  V.  Jernigan  (Ala.)  1916C-654. 

2.     FOEEST    LAW^S.     VALIDITY     AND 
CONSTEUCTION. 

2.  Under  111.  Const.  Schedule,  §  18,  pro- 
viding that  all  laws  of  the  state,  all  official 


writings,  and  executive,  legislative,  and 
judicial  proceedings,  shall  be  published  in 
the  English  language,  publication,  as  re- 
quired by  the  lU.  Forest  Preserve  Act  of 
June  27,  1913,  of  an  ordinance  of  a  forest 
preserve  district  authorizing  the  issuance 
of  bonds  in  the  sum  of  $1,000,000,  was  in- 
sufficient when  had  in  a  newspaper  pub- 
lished in  german,  since  ordinances  of  a 
city  or  municipal  corporation  are  local 
laws,  and,  in  a  sense,  "laws  of  the  state," 
and  within  the  spirit  of  the  constitutional 
inhibition,  while  the  primary  meaning  of 
"publish"  is  to  make  known.  Perkins  v. 
Board  of  County  Commissioners  (III.) 
1917A-27.  (Annotated.) 

3.  Under  HI.  Forest  Preserve  Act  of 
June  27,  1913,  §  13,  authorizing  the  issu- 
ance of  bonds  by  a  preserve  district,  and 
section  11,  providing  that  all  ordinances 
appropriating  money  shall  be  published  in 
the  district  in  some  newspaper  published 
therein,  etc.,  an  ordinance  of  a  forest  pre- 
serve district  authorizing  the  issuance  of 
bonds  in  the  sum  of  $1,000,000  is  required 
to  be  published.  Perkins  v.  Board  of 
County  Commissioners  (lU.)   1917A-27. 

(Annotated.) 

4.  Where  an  ordinance  of  a  forest  pre- 
serve district,  organized  under  the  111.  For- 
est Preserve  Act  of  June  27,  1913,  author- 
izing the  issuance  of  bonds  in  the  sura  of 
$1,000,000,  provides  that  it  should  be  in 
force  from  and  after  its  passage,  approval, 
and  publication,  publication  of  the  ordi- 
nance is  a  condition  precedent  to  its  be- 
coming effective.  Perkins  v.  Board  of 
County   Commissioners    (111.)    1917A-27. 

(Annotated.) 

5.  HI.  Forest  Preserve  Act  of  June  27, 
1913,  §  13,  providing  that  the  board  of 
commissioners  of  any  forest  preserve  dis- 
trict organized  under  the  act  shall  have 
power  to  raise  money  by  general  taxation 
for  any  of  the  purposes  of  the  act,  and 
power  to  borrow  money  upon  the  faith 
and  credit  of  the  district  and  to  issue 
bonds,  authorizes  the  issuance  of  bonds  by 
the  board  of  commissioners  of  a  district, 

■  to  create  and  manage  the  district,  as  pro- 
vided by  an  ordinance  of  the  board.  Per- 
kins V.  Board  of  County  Commissioners 
(111.)  1917A-27.  (Annotated.) 

6.  The  111.  Forest  Preserve  Act  of  June 
27,  1913,  providing  for  the  organization  of 
forest  preserve  districts,  the  land  taken  to 
become  the  property  of  the  district,  and 
authorizing  the  levy  of  a  tax  to  purchase 
and  maintain  the  preserve,  is  not  uncon- 
stitutional as  authorizing  the  levy  for  a 
pi.rpose  not  public,  since  the  acquisition, 
preservation,  and  scientific  care  of  forests 
and  forest  areas  by  the  state,  as  well  as 
the  sale  of  timber  therefrom  for  gain  in 
accordance  with  the  canons  of  forest  cul- 
ture, is  a  "public  purpose."  Perkins  v. 
Board  of  County  Commissioners  (HI.) 
1917A-27.  (Annotated.) 


TREES  AND  TIMBER. 


827 


7.  The  m.  Forest  Preserve  Act  of  June 
27,  1913,  providing  for  the  submission  of 
the  question  of  the  organization  of  forest 
preserve  districts  to  the  legal  voters  of 
the  territory  proposed  to  be  embraced  in 
such  district  and  prescribing  the  manner 
of  holding  and  conducting  the  election,  is 
not  unconstitutional  as  a  special  act  regu- 
lating the  opening  and  conducting  of  elec- 
tions. Perkins  v.  Board  of  County  Com- 
missioners   (111.)    1917A-27.     (Annotated.) 

8.  The  III.  Forest  Preserve  Act  of  June 
27,  1913,  confining  forest  preserve  dis- 
tricts to  the  territorial  limits  of  counties 
in  which  a  natural  forest  is  situated,  and 
prohibiting  the  organization  of  such  dis- 
tricts unless  they  also  contain  a  city,  vil- 
lage, or  town,  is  not  uncdnstitutional  as  a 
local  or  special  law,  since  the  fact  that  a 
law  may  be  or  seem  to  be  arbitrary  and 
unreasonable  in  some  of  its  provisions  does 
not  render  it  local  or  special,  if  it  is  a 
general  law  operating  uniformly  upon  all 
persons  and  localities  similarly  situated. 
Perkins  v.  Board  of  County  Commissioners 
(111.)  1917A-27.  (Annotated.) 

9.  The  111.  Forest  Preserve  Act  of  June 
27,  1913,  entitled  "An  act  to  provide  for 
the  creation  and  management  of  forest 
preserve  districts  and  repealing  certain 
acts  therein  named,"  giving  districts  cre- 
ated thereunder  power  to  create  forest  pre- 
serves within  such  districts  and  purchase 
land  for  the  purpose,  is  not  violative  of 
Const,  art.  4,  §  13,  providing  that  no  act 
shall  embrace  more  than  one  subject,  ex- 
pressed in  its  title,  since  the  provision  in 
the  title  for  the  creation  and  management 
of  forest  preserve  districts  necessarily  in- 
cludes as  an  incident  the  power  to  endow 
the  districts  with  the  powers  necessary  for 
the  accomplishment  of  the  purpose  of  their 
formation,  while  the  "subject"  of  an  act 
means  the  matter  or  thing  forming  its 
groundwork,  which  may  include  many 
parts  or  things,  so  long  as  all  are  germane 
to  it  and  are  such  that,  if  traced  back,  will 
lead  the  mind  to  the  subject  as  the  generic 
head.  Perkins  v.  Board  of  County  Com- 
missioners (HI.)   1917A-27.      (Annotated.) 

10.  The  III.  Forest  Preserve  Act  of  June 
27,  1913,  entitled  "An  act  to  provide  for 
the  creation  and  management  of  forest 
preserve  districts  and  repealing  certain 
acts  therein  named"  touching,  in  sections 
5  and  6,  the  powers  of  districts  organized 
thereunder  and  those  of  the  board  of  com- 
missioners of  any  district,  is  not  violative 
of  Const,  art.  4,  §  13,  providing  that  no  act 
hereafter  passed  shall  embrace  more  than 
one  subject,  which  shall  be  expressed  in 
the  title.  Perkins  v.  Board  of  County 
Commissioners  (111.)  1917A-27. 

(Annotated.) 

11.  The  HI.  Forest  Preserve  Act  of  June 
27,  1913,  entitled  "An  act  to  provide  for 
the  creation  and  management  of  forest 
preserve    districts    and    repealing     certain 


acts  therein  named,"  providing,  in  section 
5,  for  the  creation  of  forest  preserves,  and 
that  preserve  districts  may  acquire  lands 
to  protect  and  preserve  the  flora,  fauna, 
and  scenic  beauties  within  the  district  for 
the  education,  pleasure,  and  recreation  of 
the  public,  is  not  violative  of  Const,  art. 
4,  §  13,  providing  that  no  act  shall  embrace 
more  than  one  subject,  expressed  in  the 
title.  Perkins  v.  Board  of  County  Com- 
missioners  (111.)   1917A-27. 

12.  The  111.  Forest  Preserve  Act  of  Jane 
27,  1913,  providing  for  the  submission  of 
the  question  of  the  organization  of  a  pre- 
serve district  to  the  legal  voters  of  the 
proposed  district,  the  proposed  district  re- 
ferred to  being  the  one  named  in  the 
petition  or  petitions  and  fixed  by  the  order 
of  court,  and  the  legal  voters  of  the  dis- 
trict those  residing  within  its  boundaries 
as  fixed  by  the  order  of  the  court,  is  not 
invalid  as  vague,  indefinite,  and  uncertain 
in  its  terms,  and  incapable  of  execution  in 
respect  to  its  providing  for  the  submission 
of  the  question  of  the  adoption  of  the  act 
to  the  legal  voters  of  the  district  before 
it  is  organized.  Perkins  v.  Board  of 
County  Commissioners   (111.)    1917A-27. 

(Annotated.) 

13.  Forest  Preserve  Act — Validity.    The 

m.  Forest  Preserve  Act  of  June  27,  1913 
(Kurd's  Kev.  St.  1913,  c.  57a,  §§  1-15), 
authorizing  the  organization  of  a  forest 
preserve  district  wherever  any  area  of 
contiguous  territory  lying  wholly  within 
a  county  contains  one  or  more  natural  for- 
ests or  parts  thereof  and  one  or  more  cit- 
ies, towns,  or  villages,  upon  petition  of 
legal  voters,  is  not  unconstitutional  as  a 
local  or  special  law  regulating  county 
affairs,  since  "counties"  are  involuntary 
municipal  corporations  organized  to  aid 
in  the  proper  and  more  efficient  adminis- 
tration of  the  affairs  of  state  government, 
the  powers  and  functions  of  whose  officers 
are  prescribed  by  law,  while  the  conserva- 
tion of  forests  lying  within  their  bound- 
aries has  not  been  included  within  their 
powers,  duties,  or  functions,  by  Kurd's 
Rev.  St.  1913,  c.  34,  §§  24-26,  prescribing 
the  powers  of  counties  and  the  powers  and 
duties  of  county  boards.  Perkins  v.  Board 
oC  County  Commissioners  (lU.)   1917A-27. 

(Annotated.) 

14.  Ctontroi  of  Shade  Trees  by  Forestry 
Board.  Under  its  police  power,  the  stat« 
may  make  regulations  to  promote  public 
safety  on  the  highroad;  hence  HI.  Laws 
1914,  c.  824.  giving  the  state  board  of 
forestry  authority  to  plant  road.«iide  trees 
and  to  regulate  the  cutting  and  trimming 
of  them,  is  valid.  Chesapeake,  etc.  Tel. 
Co.  V.  Goldsborough  •  (Md.)   1917A-1. 

(Annotated.) 

15.  Nor  is  such  act  invalid  as  authoriz- 
ing the  taking  of  private  property  for  a 
public  purpose  without  compensation;  no 
property    rights    being     divested.     Chesa- 


828 


DIGEST. 

igi6C— 1918B. 


peake,  etc.  Tel.  Co.  v.  Goldsborough  (Md.) 
1917A-1.  (Annotated.) 

16.  Every  person  Itolds  his  property 
subject  to  the  police  power;  hence  111.  Laws 
1914,  c.  824,  giving  the  state  board  of 
forestry  control  over  roadside  trees  and 
prescribing  the  conditions  upon  which 
they  may  be  cut  and  trimmed,  is  not  in- 
valid as  a  deprivation  of  property  without 
due  process  of  law.  Chesapeake,  etc.  Tel. 
Co.  V.  Goldsborough  (Md.)   1917A-1. 

(Annotated.) 

17.  It  will  be  presumed  that  the  state 
board  of  forestry  to  which  the  power  to  fix 
fees  for  inspecting  roadside  trees  before 
licensing  cutting  and  trimming  them  was 
delegated,  by  111.  Laws  1914.  c.  824.  will 
be  exercised  fairly  and  justly.  Chesa- 
peake, etc.  Tel.  Co.  v.  Goldsborough  (Md.) 
1917A-1.  (Annotated.) 

18.  m.  Laws  1914,  c.  824,  delegating  to 
the  state  board  of  forestry  the  power  to 
fix  the  charges  for  inspection  of  roadside 
trees  to  determine  the  conditions  under 
which  permits  for  cutting  and  trimming 
them  shall  be  issued,  is  not  invalid;  there 
being  no  constitutional  prohibition  against 
the  delegation  of  such  a  function  to  a 
board  or  commission.  Chesapeake,  etc. 
TeL  Co.  V.  Goldsborough  (Md.)  1917A-1. 

(Annotated.) 
Note. 
Validity    and   construction    of    forestry 
legislation.     1917A-5. 


3.  ACTS 


AND  DUTIES 
OFFICEES. 


OF    FOREST 


19.  Acts  of  State  Forester  —  Work  on 
Private  Lands.  Mass.  Resolve  of  1915, 
c.  2,  authorizing  the  state  forester  to  pro- 
vide employment  for  needy  persons  in 
the  improvement  and  protection  of  for- 
ests and  of  any  other  public  work  which 
may,  in  his  opinion,  be  proper,  does  not 
authorize  the  prosecution  of  work  upon 
private  lands  for  the  benefit  of  private 
owners.  Burroughs  v.  Commonwealth 
(Mass.)  1917A-38.  (Annotated.) 

20.  Under  Mass.  Acts  1904,  c.  409,  §  2, 
prescribing  the  duties  of  the  state  forester, 
and  providing  that  it  shall  be  his  duty  to 
promote  the  perpetuation,  extension,  and 
proper  management  of  the  forest  lands  of 
the  commonwealth,  both  public  and  pri- 
vate, that  he  may,  upon  suitable  request 
of  owners  of  forest  lands,  give  aid  or 
advice,  that  he  may  publish  the  particu- 
lars and  results  of  any  examination  and 
advice  given,  and  that  the  recipient  of 
such  aid  or  advice  shall  be  liable  for 
necessary  expenses  of  the  state  forester, 
the  right  to  give  "aid  or  advice"  confers 
no  authority  to  go  into  the  business  of 
clearing  forest  lands  for  individual  own- 
ers, and  the  duty  to  "promote  the  perpetu- 
ation and  management  of  forest  lands, 
both  public  and  private,"  does  not  include 
the  carrying  out  of  the  advice,  as  the  stat- 


ute contemplates  encouragement  of  busi- 
ness of  forestry  in  the  hands  of  private 
owners,  not  the  prosecution  of  it  by  the 
state  forester  in  lands  privately  owned. 
Burroughs  v.  Commonwealth  (Mass.) 
1917A-38.  (Annotated.) 

4.     NATIONAL  FOREST  RESERVES. 

21.  Selection  of  Lieu  Lands.  The  Land 
Department  possesses  no  general  discre- 
tionary power  to  reject  entries  on  vacant 
public  land  selected,  in  entire  conformity 
with  the  provisions  of  the  act  of  June  4, 
1897  (30  Slat,  at  L.  36,  c.  2,  7  Fed.  St. 
Ann.  314),  and  the  depiartmental  regula- 
tions, in  lieu  of  lands  relinquished  in  a 
forest  reservation,  or  to  award  the  lands 
to  subsequent  and  subordinate  applicants 
under  the  homestead,  timber  and  stone, 
and  other  land  laws,  nor  can  such  discre- 
tionary power  be  said  to  arise  because  of 
the  primary  mistake  made  by  the  local 
land  officers,  who,  disregarding  their  plain 
drty,  rejected  the  lien  entries  and  allowed 
the  filing  of  claims  which  were  subsequent 
in  date.  Daniels  v.  Wagner  (U.  S.)  1917A- 
40.  (Annotated.) 

6.    LOGGING. 

22.  Where  logs  driven  in  a  navigable 
stream  are  washed  upon  adjoining  land 
without  the  fault  of  those  in  charge,  such 
persons  are  entitled  to  enter  upon  the  lands 
to  reclaim  their  property,  and  are  not 
liable  where  they  exercise  proper  care. 
Boutwell  V.  Champlain  Realty  Co.  (Vt.) 
1918A-726.  (Annotated.) 

23.  Where  logs  and  flood  wood  are  depos- 
ited upon  the  property  of  a  riparian  owner 
■without  fault  of  the  one  driving  them  in 
a  navigable  stream,  the  loss  suffered  by 
such  owner  is  damnum  absque  injuria. 
Boutwell  V.  Champlain  Realtv  Co.  (Vt.) 
1918A-726.  (Annotated.) 

24.  One  driving  logs  in  a  beatable 
stream  is  not  required  to  build  embank- 
ments to  protect  the  land  of  riparian  own- 
ers. Boutwell  V.  Champlain  Realty  Co. 
(Vt.)  1918A-726.  (Annotated.) 

25.  One  driving  logs  in  a  navigable 
stream  is  bound  at  all  times  to  exercise 
ordinary  care  to  prevent  injuries  to  ripar- 
ian property  either  by  jams  or  creating 
other  obstructions.  Boutwell  v.  Chamjt- 
lain  Realty  Co.  (Vt.)  1918A-726. 

(Annotated, > 

TRESPASS. 

1.  What  Constitutes. 

2.  Removal  of  Trespasser. 

3.  Actions. 

a.  In  General, 

b.  Title  to  Sustain  Action. 

c.  Pleading. 

d.  Burden  of  Proof. 

e.  Instructions. 

f.  Damages. 

See  Animals,  3;  Limitation  of  Actions,  11. 


TRESPASS. 


829 


Overhanging  trees,  see  Adjoining  Owners, 

7,  8. 
Ejection    of  trespasser,   see  Assault,    3-5, 

11. 
Prevention  of  trespass,  see  Injunctions,  4. 
Duty   toward  trespassers,  see  Negligence, 

26. 
Liability  for  drowning  trespassing  child, 

see  Negligence,  93. 
Duty  toward  trespasser,  see  Eallroads,  82- 

84, 
Reclamation  of  floated  logs  washed  ashore, 

See  Trees  and  Timber,  22. 

1.     WHAT   CONSTITUTES. 

1.  Where  a  county  maintains  a  public 
dock  for  public  use  and  convenience,  a 
child  entering  on  the  dock  is  not  a  tres- 
passer, but  he  has  the  same  right  to  be  on 
the  dock  as  he  has  to  bo  on  a  public  road 
contiguous  thereto.  Gregg  v.  King  County 
(Wash.)  1916C-135.  (Annotated.) 

2.     REMOVAL  OF  TRESPASSER. 

2.  One  unlawfully  in  a  dwelling  must  be 
warned  to  leave  before  the  occupant  may 
use  force  to  eject  him,  but  a  person  or 
persons  entering  such  dwelling  without 
right,  as  -with  violence,  may  be  repelled 
or  ejected  with  all  necessary  force,  and 
without  warning.  State  v.  Cessna  (Iowa) 
1917D-289.  (Annotated.) 

3.  The  right  to  eject  an  intruder  is  not 
limited  to  one's  dwelling  house,  but  applies 
to  any  property  of  which  he  has  lawful 
possession.  State  v.  Flanagan  (W.  Va.) 
1917D-305.  (Annotated.) 

3.     ACTIONS. 

a.     In  General. 

4.  One  may  be  liable  in  a  civil  action 

for  direct  violence  to  the  person  without 
there  having  been  malice  or  intent  to  in- 
jure.    In  re  Grout  (Vt.)  1917A-210. 

(Annotated.) 

b.     Title  to  Sustain  Action. 

5.  Basis  of  Recovery — Possession  Evi- 
dence of  Title.  Recovery  is  not  allowed 
upon  actual  prior  possession  per  se,  but 
on  the  title  which  such  prior  possession 
evidences,  and  is  a  basis  of  recovery 
against  a  trespasser,  not  because  of  plain- 
tiff's previous  possession  of  the  land,  but 
because  of  the  presumption  of  plaintiff's 
title  from  his  possession,  which  is  sufB- 
cient  proof  of  title  as  against  a  bare  tres- 
passer. Widner  v.  Lloyd  (Ala.)  I917A- 
576. 

c.     Pleading. 

6.  Suflaciency  of  Declaration — Failure  to 
Identify  Form  of  Action.  Under  Va. 
Code  1904,  §§  3246,  3272,  providing  re- 
spectively that  no  action  shall  abate  for 
want  of  form,  where  the  declaration  sets 
forth  sufficient  matter  of  substance  for 
the  court  to  proceed  upon  the  merits  and 


that  on  a  demurrer  (unless  it  be  to  a  plea 
in  abatement)  the  court  shall  not  regard 
any  defect  unless  there  be  omitted  some- 
thing so  essential  to  the  action  or  defense 
that  judgment  cannot  be  given,  a  declara- 
tion describing  itself  as  "of  a  plea  of 
trespass,"  without  stating  whether  it  is 
trespass  on  the  case  or  trespass  vi  et 
armis.  Is  not  ^or  that  reason  open  to  de- 
murrer. Stonegap  Colliery  Co.  v.  Hamil- 
ton  (Va.)    1917E-60. 

7.  Effect  of  Default.  A  party  charged 
with  trespass  by  running  into  one  on  a 
sidewalk  does  not  by  default  admit  that 
he  was  guilty  of  malice.  In  re  Grout  (Vt.) 
1917A-210.  (Annotated.) 

d.     Burden  of  Proof. 

8.  In  an  action  of  trespass  for  taking 
water  from  land,  where  defendant  had  a 
limited  right  and  it  was  plaintiff's  claim 
that  the  right  was  unfairly  exercised  to 
plaintiff's  damage,  plaintiff  has  the  buiden 
of  proving  her  damages.  Rollins  v.  Black- 
den  (Me.)  1917A-875.  (Annotated.) 

e.    Instructions. 

9.  Eeal  Property — Action  Held  to  In- 
volve Title,  Where  a  plaintiff  seeks  to 
enjoin  a  defendant  from  trespassing  on 
land,  on  the  ground  that  he  has  title  to 
the  premises,  and  the  defendant  in  his  an- 
swer asserts  title  to  the  premises,  and 
both  parties  offer  evidence  to  substantiate 
their  respective  claims,  it  is  error  to  in- 
struct the  jury  that  their  verdict  would 
not  determine  the  title  to  the  premises. 
Hunger  v.  Grimm   (Ga.)   191&C-173. 

f.    Damages. 

10.  Where  defendant,  who  was  entitled 
to  take  only  that  water  from  a  well  on 
plaintiff's  land  which  was  not  needed  by 
plaintiff,  prevented  plaintiff  from  taking 
any  water,  only  nominal  damages  can  be 
awarded,  where  plaintiff  did  not  show  any 
actual  damage,  but  merely  asserted  that 
she  desired  the  water  to  irrigate  her  gar- 
den. Rollins  V,  Blackden  (Me.)  191 7A- 
875.  (Annotated.) 

11.  Where  plaintiff  in  an  earlier  real 
action  established  her  title  to  a  well  from 
which  defendant  was  taking  water,  but 
failed  to  recover  damages  for  the  taking 
of  the  water  and  the  maintenance  of  pipes 
to  the  well,  although  such  damages  were 
claimed  as  rents  and  profits,  plaintiff  can- 
not in  a  subsequent  action  for  trespass 
recover  damages  for  the  taking  of  the 
water  before  the  institution  of  the  real 
action.  Rollins  v,  Blackden  (Me.)  1917A- 
875. 

12.  Recovery  for  Waste.  Under  Me, 
Rev,  St,  c,  106,  §§  11,  12,  providing  that 
when  a  demandant  recovers  judgment  in 
a  real  action  he  may  recover  damages  for 
the  mesne  rents  and  profits,  and  for  any 
destiuction  or  waste  of  the  buildings,  the 


830 


DIGEST. 


1916C- 
plaintifiF  cannot  recover  for  a  trespass  not 
amounting  to  destruction   or  waste.     Eol- 
lins  V.  Blackden  (Me.)  1917A-S75. 

TRIAL. 

1.  Contintiance,  830. 

a.  In  General,  830. 

b.  Grounds,  830. 

(1)  Want  of  Time  to  Prepare  for 

Trial,  830. 

(2)  Absence  of  Witnesses,  831. 

(3)  Absence  of  Party,  831. 

(4)  Publication  of  Articles  Pre- 

judicing Jury,  831. 

2.  Proceedings  Preliminary  to  Trial,  831, 

3.  Election  Between  Defenses,  831. 

4.  Eeception  of  Evidence,  SSI. 

a.  Order  of  Proof,  831. 

b.  Offers  of  Evidence,  832. 

c.  Admitting    Evidence    for   Limited 

Purpose,  832. 

d.  Putting    Witnesses    Under    Sule, 

832. 

e.  Striking  Out  Evidence,   832. 

f.  Reopening  Case,  833. 

g.  Stopping  Cross-examination,  833. 
h.  Evidence    Received  Without    Ob- 
jection, 833. 

L  Time   for    Objections  and    Excep- 
tions,  833. 
j.  SuflSciency  of  Objections,  833. 
k.  Waiver  of  Objection,  834. 
1.  Demurrer  to  Evidence,  834. 
m.  Restricting  Evidence,  835. 

5.  Conduct  and  Remarks  of  Judge,  835. 

a.  In  General,  835. 

b.  Reading  Pleadings  to  Jury,  835. 

c.  Recalling    Jury    for    Instructions, 

835. 

d.  Time  for  Objection,  835. 

6.  Exhibitions  in  Presence  of  Jury,  835. 

7.  Effect  of  Trial  Amendments,  835. 

8.  View  by  Judge  or  Jury,  835. 

9.  Curing  Errors  in  Trial,  835. 

10.  Province  of  Court  and  Jury,  835. 

11.  Findings,    836. 

See  Bastardy,  2,  7;  Jury,  1-12. 
Introduction    of    evidence    as    waiver    of 

eTor,  see  Appeal  and  Error,  178-180, 

183. 
Misconduct  of  judge,  reversible  error,  see 

Appeal  and  Error,  205. 
Rebuke  for  argument,  see  Argnment  and 

Conduct  of  Counsel,  10. 
Readin?  law  to  jury,  see  Argnment  and 

Conduct  of  Counsel.  27. 
Stating   penalty  for   crime,   see  Argument 

and  Conduct  of  Counsel,  32. 
Election    between    counts,    see    Criminal 

L«>w,  38. 
Submission  of  issues  to  jury,  see  Equity, 

Reception  of  evidence,  see   Evidence.   10, 

11. 
Instruftinns  in  trial  without  jurv.  see  Li- 

structions,  8. 
Of  aftions  for  defamation,  see  Libel  and 

Slander,  112,  113. 


-1918B. 

Physical  examination  of  plaintiff,  see 
Physical  Examination,  1.  2. 

Sererance,  see  Public  Officers,  57. 

Right  to  withdraw  stipulation,  see  Stiptdft- 
tions^  3. 

Directing  verdict,  see  Verdicts,  14-35. 

Of  will  contest,  see  Wills,  127,  130,  131. 

Examination  of  witnesses,  see  Witnesses. 
47-88. 

1.     CONTINUANCE. 

a.    In  General. 

1.  Discretion  of  Court.  A  motion  for  a 
continuance  is  addressed  to  the  discretion 
of  the  court,  and  its  ruling  will  not  be  re- 
versed, except  for  most  potent  reasons. 
Neven  v.  Neven  (Nev.)  1918B-1083. 

2.  Denial  Held  Proper.  Under  the  facts 
of  this  case,  there  was  no  abuse  of  dis- 
cretion in  overruling  the  motion  for  a  con- 
tinuance.    Bird  V.  State  (Ga.)  1916C-205. 

Note. 
Continuances  in  divorce  cases.     1918B- 
1087. 

b.    Grounds. 
(1)     Want  of  Time  to  Prepare  for  Trial. 

3.  Time  for  Preparation.  Where,  on 
June  26th,  the  coroner's  jury  found  that  a 
person's  death  was  caused  by  defendants, 
who  were  then  held  on  the  coroner's  war- 
rant as  material  witnesses,  after  a  secret 
session  to  which  defendants'  attorney  was 
denied  admission,  they  were  indicted  for 
murder  on  July  7th,  and  the  following  day 
furnished  the  evidence  and  inquisition 
taken  by  the  coroner,  which  was  not  filed, 
a  motion  for  a  continuance  on  July  9th, 
on  which  day  the  case  was  set  for  trial,  is 
addressed  to  the  discretion  of  the  trial 
court,  and  the  circumstances  do  not  show 
that  such  discretion  was  erroneously  ex3r- 
cised  by  denving  the  motion.  State  v. 
Griffin  (S.  Car.)  1916D-392. 

4.  Under  Tex.  Code  Cr.  Proc.  1911,  art. 
557,  permitting  a  case  to  be  called  for  trial 
two  days  after  the  defendant  has  been 
served  with  a  copy  of  the  indictment,  and 
article  558,  providing  that  a  counsel  ap- 
pointed for  the  defendant  shall  be  granted 
one  day  in  whiieh  to  prepare  for  trial,  the 
refusal  of  the  court  to  grant  a  continuance 
in  a  case  set  for  trial  thirteen  days  after 
a  copy  of  the  indictment  was  served, 
twelve  days  after  an  attorney  had  been 
appointed  by  the  court  to  represent  the 
defendant,  and  seven  days  after  another 
attorney  had  been  employed  by  the  de- 
fendant in  the  case,  is  not  an  abn^e  of 
the  court's  discretion,  where  it  is  not  shown 
that  Jthe  defendant  was  deprived  of  any 
testimony  of  any  witnesses,  or  that  he  had 
subsequently  ascertained  any  additional 
facts  that  would  have  been  beneficial  to 
him.     Mason  v.  State    (Tex.)   1917D-1094. 

5.  Suspension  of  Trial  to  Permit  Consul- 
tation  Witlx   Witnesses.     Where    a   homi- 


TRIAL. 


831 


cide  case  went  fo  trial  Tuesday  and  the 
prosecution  rested  Saturday  at  noon,  the 
refusal  of  the  court  to  postpone  the  case 
to  give  defendant's  counsel  time  to  con- 
sult witnesses  from  that  time  until  Mon- 
day morning  because  of  the  expense  of  the 
witnesses  in  attendance,  is  not  erroneous, 
where  the  court  granted  each  request  of 
defendant's  counsel  for  time  to  confer 
with  witnesses.  Mason  v.  State  (Tex.) 
1917D-1094. 

(2)     Absence  of  Witnesses. 

6.  Facts  Otherwise  Proved.'  Where  the 
affidavit  on  application  for  continuance 
was  read  as  the  depositions  of  the  absent 
witnesses,  and  other  witnesses  testified  to 
the  same  facts  which  it  was  claimed  the 
absent  witnesses  would  have  testified  to, 
there  is  no  error  in  refusing  the  continu- 
ance. Belcher  v.  Commonwealth  (Ky.) 
1917B-238. 

7.  Diligence.  A  party  who  is  a  material 
witness  in  his  own  behalf  is  not  entitled 
to  a  continuance  because  of  his  absence, 
unless  he  shows  that  he  had  his  testimony 
ready  for  use  at  the  trial,  but  was  pre- 
vented from  attending  the  trial  by  some 
obstacle  which,  by  the  exercise  of  rea- 
sonable diligence,  he  could  not  overcome, 
and  which  he  did  not  create  by  his  own 
voluntary  act.  Neven  v.  Neven  (Nev.) 
1918B-1083. 

(3)     Absence  of  Party. 

8.  Divorce  Case.  Where  defendant,  in  a 
suit  for  divorce,  was  present  with  hia 
counsel  in  court  on  March  28th,  when  by 
his  consent  the  case  was  set  for  trial  April 
4th,  without  then  informing  the  court  of 
necessity  of  his  being  absent  so  near  be- 
fore that  date  as  to  prevent  his  presence 
at  the  trial,  and  it  did  not  appear  that 
his  absence  before  the  trial,  which  pre- 
vented his  presence  at  the  trial,  was  due 
to  a  court  proceeding,  denial  of  continu- 
ance because  of  his  absence,  supported  by 
a  telegram  merely  announcing  his  inability 
to  be  present  because  of  guardianship  pro- 
ceedings, is  not  an  abuse  of  discretion. 
Neven  v.  Neven  (Nev.)  1918B-1083. 

(Annotated.) 

9.  Party  Bound  to  Appear  in  Two  Pro- 
ceedings. A  party  in  two  court  proceed- 
ings in  different  places  is  bound  by  the 
first  notice  of  trial,  and  the  requirement 
of  his  presence  at  that  trial  affords  a 
ground  for  a  continuance  of  the  other  pro- 
ceeding. Neven  v.  Neven  (Nev.)  1918B- 
1083. 

(4)     Publication    of    Articles    Prejudicing 
Jury. 

10.  In  Criminal  Case — Newspaper  Publi- 
cation. The  appellate  court  will  not  hold 
that  a  trial  judge  abused  his  discretion  in 
refusing  a  continuance  in  a  criminal  case 


on  account  of  the  publication  of  newspaper 
articles  which  it  is  claimed  may  have 
affected  the  judgment  of  the  jury,  where 
it  affirmatively  appears  from  the  evidence 
in  the  case  that  the  jury  could  not  have 
honestly  or  intelligently  returned  any 
other  verdict  than  the  one  which  it  did 
return.  State  v.  Gordon  (N.  Dak.)  1918A- 
442. 

11.  The  remedy  against  public  prejud-ce 
existing  throughout  a  county  or  judicial 
district  created  by  the  publication  of  a 
newspaper  article  is  a  motion  for  a  change 
of  venue,  and  not  for  a  continuance.  State 
V.  Gordon  (N.  Dak.)  1918A-442. 

(Annotated.) 
Note. 

Prejudicial  newspaper  publication  as 
ground  for  continuance  of  criminal  case. 
1918A-449. 

2.  PROCEEDINGS   PREIilMINAEY   TO 

TRIAL. 

12.  Setting  Case  for  Hearing.  Where  a 
petition  for  an  injunction  was  presented 
to  the  circuit  court  on  January  27,  1912, 
the  cause  could  not  have  come  on  for  final 
hearing  until  the  succeeding  term  unless 
an  appearance  was  entered,  so  that  where 
none  was  entered,  it  could  not  be  set  for 
final  hearing  on  February  3,  1912,  so  that 
an  order  setting  it  for  hearing  on  that 
date  must  be  interpreted  as  having  been 
intended  to  determine  only  whether  a  tem- 
porary injunction  should  be  issued  opera- 
tive until  final  hearing.  Ex  parte  Zuccaro 
(Tex.)  1917B-121. 

3.  ELECTION   BETWEEN   DEFENSES. 

13.  The  defendant  claimed  title  by  vir- 
tue of  his  purchase,  and  also  claimed  the 
right  to  possession  by  reason  of  having 
paid  off  certain  incumbrances  which  had 
been  placed  thereon  by  the  plaintiff. 
Upon  motion  of  the  plaintiff  the  defend- 
ant, over  his  protest,  was  required  to  elect 
between  these  defenses  and  elected  to 
stand  upon  his  claim  of  title.  At  a  sub- 
sequent trial  he  was  held  bound  by  such 
previous  election.  Held,  that  the  two  de- 
fenses are  not  inconsistent  and  the  elec- 
tion was  improperly  required,  and  for  that 
reason  as  well  as  because  it  was  compul- 
sory the  defendant  should  not  have  been 
held  bound  thereby.  New  v.  Smith  (Kan.) 
1917B-362. 

14.  No  question  of  rescission  of  a  con- 
tract was  involved,  and  the  motion  to  re- 
quire defendant  to  elect  as  to  defenses 
was  properly  denied.  Northern  Trust  Co. 
V.  Bruegger  (N.  Dak.)   1917E-447. 

4.     RECEPTION  OF  ETIDENCE. 
a.     Order  of  Proof. 

15.  Order  of  Disposition  of  Issues— Trial 
of  Crucial  Issue  Singly.     ^Vhere  the  answer 


832 


charging  fraud  in  the  procurement  of  a 
guaranty  sued  on  is  sufficient  to  entitle  de- 
fendants to  complete  relief  without  the 
cross-complaint  raising  the  same  issues,  it 
is  not  error  to  submit  the  whole  case  to 
the  jury  before  disposing  of  the  equitable 
issues  raised  by  the  cross-complaint.  Am- 
erican National  Bank  v.  Donnellan  (Cal.) 
1917C-744. 


16.  Nmn'ber  of  Counsel  Entitled  to  Par- 
ticipate. The  statute  declaring  that  but 
one  counsel  on  each  side  shall  examine 
the  jame  witness  does  not  apply  to  the  in«- 
terposition  of  objections  by  the  state's 
attorneys  to  questions  asked  a  witness  by 
the  attorney  for  accused.  State  ▼.  Giudice 
(Iowa)  1917C-1160. 

b.    Offers  of  Evidence. 

17.  Ecfusal  to  Allow  Offer  of  Proof.    For 

the  court,  when  defendants'  counsel  made 
an  offer  of  proof,  to  suggest  to  him  that 
the  proper  way  was  to  ask  questions  and 
let  the  court  rule  on  them  is  right  and 
proper,  and  not  an  act  of  partiality  or 
unfairness.  People  v.  Elliott  (IlL)  1918B- 
391. 

18.  Offer  Partly  Irrelevant.  Where  the 
evidence  offered  is  relevant  in  part  only, 
the  court  is  not  bound  to  separate  the  good 
from  the  bad,  but  may  reject  it  as  a  whole. 
Hunter  v.  Bremer  (Pa.)   1918A-152. 

c.     Admitting  Evidence  for  Limited  Pur- 
pose. 

19.  Evidence  Admissible  for  Single  Pur- 
pose— Limitation.  lu  an  action  for  loss 
of  growing  crops,  where  the  court  admits 
evidence  as  to  the  probable  maturity  of 
the  crops,  the  "cost  of  harvesting,  the  cli- 
iratic  condition  of  the  season,  and  the  con- 
dition and  yield  of  the  adjacent  lands  for 
the  same  season,  ruling  that  it  is  com- 
petent only  to  determine  the  reasonable 
value  of  the  crops  when  they  were  de- 
stroyed, but  not  to  show  what  kind  of 
crops  would  have  matured,  and  charges 
that  all  such  evidence  could  be  considered 
only  for  the  purpose  for  which  it  was  ad- 
mitted, the  ruling  and  instruction"  are 
sufficient  to  limit  the  evidence  to  its 
proper  purpose.  North  Sterling  Irrigation 
District  v.  Dickman  (Colo.)  1916D-973. 

20.  Admission  of  Evidence  for  Re- 
stricted Purpose.  Evidence  may  be  re- 
stricted to  a  special  purpose,  instead  of 
admitted  generally,  and  evidence  admitte  I 
for  a  particular  purpose  cannot  be  consid- 
ered for  other  purposes.  Schworm  v.  Fra- 
ternal Bankers  Reserve  Soc.  (Iowa)  1917B- 
373. 

21.  In  an  action  for  the  death  of  plain- 
tiff's intestate  while  employed  in  handling 
switches  at  defendant's  lighting  station, 
nothing  short  of  an  exception  to  the 
court's  failure  to  restrict  plaintiff's  declar- 


DIGEST. 

1916C!— 1918B. 

ation  that  only  his  intestate  had  been  to 
blame  to  its  conceded  admissibility  on 
the  question  of  impeachment  was  suffi- 
cient to  raise  the  claim  that  it  was  not 
admissible  on  the  question  of  liability; 
and  a  mere  failure  to  instruct  limiting  the 
use  of  the  testimony  will  not  reach  back 
and  affect  its  admissibility.  McCarthy's 
Adm'r   v.  Northfield  (Vt.)  1918A-943. 

22.  Such  evidence  wa«  admissible  on  the 
question  of  the  defendant's  liability.  Mc- 
Carthy's Adm'r  V.  Northfield  (Vt.)  191SA- 
943. 


23.  Evidence  Admissible  for  Single  Pur- 
pose. In  such  action,  where  evidence  that 
plaintiff,  while  at  the  lighting  station 
shortly  after  the  accident,  had  said  that 
no  one  was  to  blame  except  the  intestate, 
and  that  intestate  had  warned  him  sev- 
eral times  when  he  was  turning  on  the 
lights  not  to  get  his  hands  onto  the  metal 
or  blades  of  the  switch,  was  admitted  "for 
all  legitimate  purposes,"  and  the  court  was 
not  asked  to  limit  the  testimony,  and 
plaintiff  did  not  except  to  the  failure  to 
limit  it,  and  it  did  not  appear  what  use 
was  made  of  the  testimony  in  argument, 
it  will  be  presumed  that  the  only  use  made 
of  it  was  legitimate.  McCarthy's  Adm'r 
V.  Northfield  (Vt.)  1918A-943. 

24.  Admission  of  Evidence — Evidence 
Competent  for  One  Purpose  Only.  If  evi- 
dence is  competent  for  one  purpose,  it  can- 
not be  rejected  merely  because  it  is  not 
competent  for  another  purpose,  although 
an  instruction,  limiting  its  effect,  is 
proper.  State  v.  Farnam  (Ore.)  1918A- 
318. 

d.     Putting  Witnesses  Under  Rule. 

25.  Refusal  to  Order  as  Error.  The 
separation  of  the  witnesses  in  a  criminal 
trial  is  ordinarily  a  matter  within  the  dis- 
cretion of  the  trial  court,  but,  when  re- 
quested, especially  in  a  trial  for  felony, 
it  is  seldom  denied.  When  the  witnesses 
for  the  prosecution  are  near  relatives,  or 
are  or  have  been  recently  so  associated 
that  it  is  not  improbable  that  some  of 
them  may  be  under  the  influence  of  an- 
other witness  who  is  interested  in  the 
prosecution,  it  is  erroneous  to  allow  such 
witnesses  to  be  present  and  hear  each 
other's  testimony  against  the  objection  of 
the  defendant.  Roberts  r.  State  (Neb.) 
1971E-1040. 

e.     Striking  Out  Evidence. 

26.  Motion  to  Strike  Out — Motion  Too 
Broad.  In  a  prosecution  for  larceny  of  a 
cow  it  is  not  error  to  overrule  a  motion  to 
strike  all  the  testimony  of  a  witness  on 
the  ground  of  irrelevancy,  incompetency, 
and  irresponsiveness  to  issues,  where  some 
portions  of  it  were  relevant  and  compe- 
tent.    Harris  v.  State  (Wyo.)  1917A-1201. 


TRIAL. 


833 


27.  Motion  to  Strike  Out — Necessity  of 
Disclosing  Ground.  It  is  not  error  to 
overrule  a  motion  to  strike  out  evidence 
when  the  objection  to  it  is  not  disclosed 
and  when  its  impropriety  or  insuflBcienej 
is  not  apparent.  Wideman  t.  Faivre 
(Kan.)   1918B-1168. 

28.  Time  for  Motion.  The  refusal  to 
strike  out  testimony  on  a  motion  made 
after  a  witness  has  left  the  stand  is  not 
reversible  error,  and  in  such  case  the  only 
course  open  is  to  ask  that  the  jury  be  in- 
structed to  disregard  objectionable  evi- 
dence. Wadsworth  r.  Manufacturers' 
Water  Co.  (Pa.)   1917E-1099. 

29.  Motion  to  Strike  Embracing  Compe- 
tent Testimony,  Where  it  appeared  on 
cross-examination  of  plaintiff's  witnesses 
and  from  defendant's  evidence  that  cer- 
tain sales  relied  on  by  plaintiff's  witnesses 
in  their  estimate  of  the  value  of  the  prop- 
erty were  sales  to  the  defendant  in  the 
course  of  condemnation,  the  refusal  to 
strike  out  such  testimony  is  proper,  where 
the  motion  is  so  comprehensive  as  to  in- 
clude all  the  testimony  of  the  witnesses, 
and  is  not  made  until  the  close  of  defend- 
ant's case,  when  the  issues  are  to  be  pre- 
sented to  the  jury.  Wadsworth  t.  Man- 
ufacturers'  Water    Co.    (Pa.)    1917E-1099. 

30.  Necessity  of  Prior  Objection.  While 
a  motion  to  strike  out  should  be  made 
after  testimony  is  given,  without  objec- 
tion, yet  where  the  first  answer  after 
which  objection  was  taken  was  unimpor- 
tant, and  the  objection  pointed  out  gener- 
ally that  defendant  objected  to  all  such 
testimony,  such  objection  without  motion 
to  strike  is  sufficient  to  entitle  defendant 
to  review.  Wightman  v.  Campbell  (N.  Y.) 
1917E-673. 

Note. 
Withdrawal   of  unreasonable   testimony 
from  consideration  of  jury.     1917B-473. 

f.     Eeopening  Case. 

31.  Reopening  for  Further  Proof.  After 
all  parties  to  a  suit  have  announced  that 
the  testimony  is  closed,  no  party  has  a 
legal  right  to  introduce  further  evidence; 
but  the  privilege  of  doing  so  may  be 
granted  by  the  court  in  its  discretion  and 
in  furtherance  of  justice.  The  judgment 
of  the  court  refusing  to  admit  further  evi- 
dence will  not  be  reversed  by  this  court 
unless  it  is  manifestly  erroneous  and  pro- 
ductive of  injustice.  Succession  of  Lefort 
(La.)  1917E-769. 

32.  Discretion  of  Court.  Reopening  the 
case  to  take  additional  testimony  inad- 
vertently omitted  being  within  the  trial 
court's  discretion  and  not  reviewable  un- 
less arbitrarily  exercised,  it  is  proper,  in 
an  action  against  a  street  railway  for  in- 
juries to  an  automobile  passenger,  to  per- 
mit the  reopening  of  the  passenger's  ease 

53 


to  show  the  ownership  of  the  street  car 
which  struck  the  automobile.  Virginia  B. 
etc.  Co.  V.  Gorsuch  (Va.)  1918B-838. 

g.     Stopping    Cross-examination. 

33.  Power   of  Court  to  ContxoL     It   i« 

within  the  discretion  of  the  court  at  any 
time  to  put  a  stop  to  irrelevant  cross- 
examination.  Taylor  v.  Moseley  (Ky.) 
1918B-1125. 

h.    Evidence  Received  Without  Objection. 

34.  Striking  Out  Testimony.  Where  the 
court  refuses  to  strike  the  plaintiff's  in- 
competent testimony,  which  came  in  with- 
out objection  or  exception,  the  action  is 
proper.  Simmons  v.  National  Live  Stock 
Ins.  Co.  (Mich.)   1917D-42; 

i.    Time   for  Objections   and  Exceptions. 

35.  Failure  to  Object.  Failure  to  object 
to  evidence  at  the  time  it  is  offered  is  a 
waiver  of  the  objection  that  it  is  not  ad- 
missible under  the  pleadings,  unless  a  mo- 
tion is  made  during  the  trial  to  strike 
out  such  evidence.  Douville  v.  Pacific 
Coast  Casualty  Co.   (Idaho)   1917A-112. 

36.  In  such  case,  the  action  of  defend- 
ant's counsel,  in  stating  that  defendant 
did  not  dispute  the  fact  that  the  daughter 
was  ill  and  eventually  died,  does  not  con- 
stitute a  waiver  of  his  objection  to  the  ad- 
mission of  evidence  thereof,  where  the 
statement  is  made  in  an  unsuccessful  at- 
tempt to  prevent  the  state  from  proving 
the  details  of  the  daughter's  illness  and 
death.  People  v.  Buflfon  (N.  Y.)  1916D- 
962. 

j.     Sufficiency  of  Objections. 

37.  Objection  to  Evidence — General  Ob- 
jection— Sufficiency.  A  general  objection 
to  an  offer  of  the  record  of  the  election  in 
the  town  on  the  proposition  of  it  becoming 
anti-saloon  territory  is  insufficient.  Peo- 
ple V.  Elliott  (111.)   1918B-391. 

38.  Evidence  Partly  Admissible.  Where- 
the  question  put  to  a  witness  is  compe- 
tent, or  not  objected  to  by  counsel,  and 
the  witness  answers,  a  part  of  which  an- 
swer is  competent  and  a  part  incompetent, 
a  general  objection  to  the  whole  answer  is 
properly  overruled,  even  though  there  be 
some  objectionable  matter  in  the  answer. 
To  save  the  objector's  rights  he  should 
clearly  indicate  the  part  of  the  answer  to 
which  he  objects  and  move  its  exclusion. 
If  the  court  overrules  such  motion,  he 
should  then  save  his  exception.  State  v. 
Lasecki    (Ohio)    1916C-1182. 

39.  Objection  to  Competency — Objection 
Insufficient.  In  a  prosecution  for  poly- 
gamy, after  the  wife  of  accused  had  tes- 
tified as  to  their  marriage,  where  the  coun- 
sel for  accused  objected  to  further  ques- 


834 


DIGEST. 

1916C— 1918B. 


tions  as  they  were  stated  only  on  the 
ground  of  incompetency,  irrelevancy,  im- 
materiality, and  no  foundation  laid,  the 
objection  that  the  witness  is  incompetent 
because  she  is  the  wife  of  accused  is 
waived.  Stat©  t.  Von,  Klein  (Ore.) 
1916C-1054. 

40.  Objection  Too  Broad.  When  evi- 
dence would  be  admissible  for  any  purpose 
or  under  any  circumstances,  an  objection 
should  point  out  specifically  what  the  ob- 
jection is,  and  an  objection  that  the  ques- 
tion is  incompetent,  irrelevant,  and  imma- 
terial is  insufficient,  though  it  would  be 
sufficient  if  the  evidence  were  not  admis- 
sible for  any  purpose.  State  v.  Von  Klein 
(Ore.)  1916C-1054. 

41.  Objection  to  Evidence — Scope.  The 
objection  that  the  testimony  "is  not  the 
best  evidence,  incompetent,  as  such,  ir- 
relevant, and  immaterial,"  does  not  raise 
or  suggest  the  objection  that  such  testi- 
mony is  not  proper  on  rebuttal.  State  v. 
Bickford  (N.  Dak.)   1916D-140. 

42.  Sufflciefncy  of  Exception  to  Charge. 
"Where  one  accused  of  crime  submits  23 
requests  for  charges,  some  of  which  are 
complied  with,  and  excepts  to  the  refusal 
to  charge  in  accordance  with  each  request 
and  to  the  charge  as  given  on  the  subject- 
matter  of  each  request,  the  exception  is 
too  generaL  State  v.  Lapoint  (Vt.) 
1916C-318. 

43.  General  Objection  to  Evidence — ^Ef- 
fect. When  evidence  is  received  under  a 
general  objection,  the  ruling  will  not  be 
held  erroneous,  unless  there  is  some  ground 
which  could  not  be  obviated,  though  it 
had  been  specified  or  unless  the  evidence 
is  generally  incompetent,  hence  a  general 
objection  to  testimony  by  a  surveyor  as 
to  his  use  of  field  notes  made  by  another 
will  not  present  the  question  that  such 
evidence  was  hearsay,  for  the  objection 
might  have  been  obviated  by  laying  a 
proper  foundation  for  the  introduction  of 
the  notes.  Wightman  v.  Campbell  (N.  Y.) 
1917E-673. 

44.  Scope  of  General  Objection.  In  an 
action  against  a  railroad  for  death  of  its 
switchman  in  service,  the  general  objec- 
tion to  the  testimony  of  the  fireman  of 
the  switching  crew  that  it  was  incompe- 
tent, irrelevant,  and  immaterial,  is  insuffi- 
cient to  reserve  the  objection  that  there 
was  no  showing  that  the  fireman  had  ever 
been  with  the  crew  under  such  circum- 
stances that  he  might  have  heard  their 
statement  to  decedent  as  to  a  post  being 
dangerously  near  the  track;  the  fireman 
having  testified  that  no  one  had  told  dece- 
dent so  far  as  he  knew,  about  it.  Devine 
V.  Delano  (HI.)  1918A-689. 

45.  Necessity  of  Specific  Objection — 
Evidence  Admissible  for  Some  Purpose. 
Beceiving  evidence,  if  admissible  for  any 


purpose,  cannot  be  held  error,  the  excep- 
tions not  stating  the  ground  oi  objection, 
and  the  purpose  for  which  it  was  received 
not  appearing.  Comstock's  Adm'r.  v. 
Jacob*  (Vt.)  1918A-465. 

k.    Waiver  of  Objection. 

46.  Admission  of  Evidence — ^Waiver  of 
Error  by  Cross-examination.  Objection  to 
improper  evidence  is  not  waived  by  cross- 
examination  of  the  witness  on  the  same 
subject.  First  State  Bank  t.  Kelly 
(N.  Dak.)  1917D-1044. 

47.  Failure  to  Object  to  Insufficient 
Withdrawal  of  Evidence.  The  insufficiency 
of  an  attempt  to  exclude  evidence,  errone- 
ously admitted,  so  as  to  remove  its  preju- 
dicial effect,  is  not  waived  by  the  except- 
ing party's  failure  to  deny  its  sufficiency, 
upon  the  party  causing  the  admission  of  the 
evidence  stating  that,  if  the  other  was  not 
satisfied  with  the  exclusion,  he  would  have 
the  questions  and  answers  read  by  the 
stenographer,  since,  the  burden  of  re- 
moving the  prejudicial  effect  being  on  the 
party  causing  the  admission,  the  except- 
ing party  could  not  be  required  to  affirm  or 
deny  the  sufficiency  of  the  attempted  ex- 
clusion, and  his  mere  silence  did  not 
amount  to  an  affirmation.  Watson  v. 
Adams  (Ala.)  1916E-o65. 

48.  Objections  —  Grounds  not  TJrged. 
Where  reasons  are  specified  in  a  motion 
to  exclude  testimony,  other  reasons,  not 
specified,  are  waived.  St.  Louis,  etc.  E, 
Co.  V.  Blaylock  (Ark.)  19I7A-563. 

49.  Objection  to  Evidence — Waiver. 
Where  defendant  objected  to  a  surveyor'* 
testimony  based  on  the  field  notes  of  an 
earlier  survey,  which  notes  were  unintelli- 
gible without  explanation,  the  fact  that 
defendant  subsequently  permitted  the 
notes  to  go  into  evidence  without  objection 
will  not  deprive  defendant  of  his  excep- 
tion, for  it  was  the  obvious  purpose  of  de- 
fendant to  permit  the  notes  to  go  into  evi- 
dence to  show  that  they  were  unintelligi- 
ble. Wightman  v.  Campbell  (N.  Y. 
1917E-673. 

50.  What  Evidence  Considered.  In  de- 
termining whether  a  demurrer  to  the  evi- 
dence should  have  been  sustained  or  over- 
ruled, defendant's  evidence  tending  to 
show  an  absence  of  right  to  recover  cannot 
be  considered,  and  the  demurrer  must  be 
tested  by  the  strength  of  plaintiff's  evi- 
dence aided  by  any  of  defendant's  evi- 
dence that  may  help  to  make  out  plaintiff's 
case;  plaintiff's  evidence  and  every  reason- 
able inference  arising  therefrom  being 
taken  as  true.  Hall  v.  Manufacturers' 
Coal,  etc.  Co.  (Mo.)  1916C-375. 

1.     Demurrer  to  Evidence. 

51.  Taking  Case  from  Jury — Undispnted 
Evidence.    Under  the  procedure  and  prac- 


TRIAL. 


835 


tice  in  thia  state  in  trials  by  jury,  it  is 
the  well-established  aud  settled  law  that, 
even  though  the  testimony  is  undisputed, 
it  should  be  so  convincing  that  all  reason- 
able men  must  draw  the  same  conclusion 
from  the  facts  proven,  before  the  court 
is  authorized  to  sustain  a  demurrer  to  the 
evidence,  or  direct  a  verdict.  Rogers  v. 
O.  K.  Bus,  etc.  Co.  (Okla.)  1917B-581. 

m.     Restricting  Evidence. 

52.  Eestriction  of  Testimony — ^Discrer 
tion.  It  is  within  the  court's  power  and 
discretion,  for  the  purpose  of  keeping  the 
examination  of  witnesses  on  collateral  is- 
sues within  the  bounds  of  reason  and  con- 
venience, to  exclude  questions  asked  ex- 
pert witnesses,  based  on  a  state  of  facts 
finding  no  support  in  the  evidence,  though 
such  questions  are  asked  on  cross-examina- 
tion. Barfield  v.  South  Highlands  In- 
firmary (Ala.)   1916C-1097. 

5.     CONDUCT   AND  REMARKS  OF 
JUDGE. 

a.     In  General. 

53.  Remark  by  Judge.  In  an  action  for 
the  death  of  a  street  car  passenger,  it  is 
not  error  for  the  court  to  advise  defendant's 
attorney,  in  repeating  a  witness's  state- 
ment, to  give  the  witness  an  opportunity 
to  say  whether  he  so  testified.  Froeming 
V.  Stockton  Electric  E.  Co.  (Cal.)  1918B- 
408. 

b.     Reading  Pleadings  to  Jury, 

54.  It  is  not  desirable  for  the  trial  judge 
to  read  the  pleadings  to  the  jury.  Nash- 
ville, etc.  Ry.  V.  Anderson  (Tenn.)  1917D- 
902. 


the  jury,  the  objection  came  too  late. 
State  V.  Randall  (N.  Car.)  1918A-438. 

Note. 
Propriety  of  instruction  or  comment  by 
court  to  effect  that  perjury  has  been  com- 
mitted at  trial.     1917B-128. 

6.  EXHIBITIONS    IN    PRESENCE    OP 

JURY. 

57.  Discretion  of  Court.  The  admission 
in  evidence  of  material  objects  or  allow- 
ing inspection  of  the  same,  whether  of- 
fered in  evidence  or  not,  is  within  the  dis- 
cretion of  the  court.  State  v.  Farnam 
(Ore.)   1918A-318. 

58.  The  refusal  six  months  after  the 
homicide  to  allow  the  jury  to  inspect  the 
feet  of  a  horse  upon  whose  tracks  the 
prosecution  relied  is  not  an  abuse  of  the 
court's  discretion  as  to  admitting  in  evi- 
dence material  objects  or  allowing  inspec- 
tion of  the  same.  State  v.  Farnam  (Ore.) 
1918A-318. 

7.  EFFECT  OF  TRIAL  AMENDMENTS. 

59.  Necessity    of    Belmpanellng    Jury. 

Such  action,  after  amendment,  is  properly 
tried  before  the  jury  impaneled  to  try  it 
under  the  original  issues.  Gist  v.  John- 
son-Carey Co.  (Wis.)  1916E-460. 

8.    VIEW  BY  JUDGE  OR  JURY. 

60.  View — Discretion  of  Court.  Refusal 
to  allow  the  jury  to  view  the  premises, 
such  view  not  appearing  necessary  to  a 
just  decision,  was  a  proper  exercise  of  dis- 
cretion. Stonegap  Colliery  Co.  v.  Hamil- 
ton (Va.)  1917E-60. 


c.     Recalling  Jury  for  Instructions. 

55.  Necessity  of  Notice  to  Counsel.  The 
action  of  the  trial  court,  after  the  retire- 
ment of  the  jury,  upon  their  request  to 
know  what  the  penalty  is  for  the  violation 
of  the  city  ordinance  in  suit,  in  writing 
out  an  instruction  on  the  point  and  send- 
ing it  to  the  jury  without  the  knowledge 
of  counsel  for  either  side,  is  improper. 
Kimmins  v,  Montrose   (Colo.)    1917A-407. 

(Annotated.) 
Notes. 

Necessity  that  further  instructions  re- 
quested by  jury  be  given  in  open  court. 
1917A-399. 

Necessity   that    further   instructions    to 
jury,   after  retirement,  be   given  in  pres- 
'ence  or  with  consent  of  counsel.     1917 A- 
:409. 

d.     Time  for  Objection. 

56.  Conduct  of  Court.  In  a  prosecution 
for  crime,  where  defendant's  counsel  did 
not  object  until  after  verdict  to  the  court's 
question  whether  they  desired  to  address 


9,     CURING  ERRORS  IN  TRIAL, 

61.  Misstatement  of  Fact — Necessity  of 
Objection.  In  an  action  for  damages  sus- 
tained in  an  automobile  collision,  if  the 
court's  statement  in  the  instructions  that 
it  was  plaintiff's  contention  that  defend- 
ant intentionally  ran  into  plaintiff,  and 
defendant's  contention  that  plaintiff's  car 
ran  into  defendant's  car  and  that  it  was 
agreed  by  counsel  that  there  was  no  evi- 
dence showing  that  the  accident  happened 
in  any  other  way  than  in  accordance  with 
one  of  these  two  contentions,  is  incorrect 
in  that  counsel  had  not  so  agreed,  it  is 
counsel's  duty  to  call  the  court's  attention 
to  this  mistake  of  fact,  in  order  that  it 
might  be  corrected-  Dishmaker  v.  Heck 
(Wis.)   1917A-400. 

10.  PROVINCE      OF      COURT      AND 
JURY. 

62.  Agreed  Statement  —  Inferences. 
Where  a  case  is  heard  on  an  agreed  state- 
ment of  facts,  the  court  may  only  draw 
inferences  of  law  and  of  legal  construction 


836 


DIGEST. 


1916C— 1918B 

and   not   inferences   of  fact.    McGhee  v. 
Cox  (Va.)  1916E-842. 


11.     FINDINGS. 

63.  Duty  to  Submit  Issue — Necessity  of 
Bequest.  Under  the  express  provision  of 
Wis.  St.  1913,  §  2858m,  the  trial  court,  in 
the  absence  of  any  request  to  submit  an 
issue  to  the  jury,  may  find  thereon  in  con- 
formity with  its  judgment.  Gist  v.  John- 
son-Carey Co.  (Wis.)  1916E-460. 

64.  Findings  of  Fact — General  Conclu- 
sion Improper.  Where,  in  an  action  on  a 
note  for  money  loaned,  the  evidence  with- 
out dispute  showed  that  the  transaction 
was  effected  through  agents  of  both  par- 
ties, and  plaintiff  contended  at  the  trial 
that  she  did  not  enter  into  a  corrupt  and 
usurious  agreement,  as  claimed  by  defend- 
ant, knew  nothing  about  it,  received  none 
of  the  fruits  thereof,  and  never  ratified 
the  transaction,  a  finding  that  the  agree- 
ment was  entered  into  "between  plaintiff 
and  defendant"  is  not  a  finding  of  fact  but 
a  conclusion  of  law  and  improper;  it  being 
the  duty  of  the  court  to  specifically  find 
the  facts  with  regard  to  the  matters  and 
then  draw  his  conclusion  from  the  facts 
found.  Brown  v.  Johnson  (Utah)  1916C- 
321. 

65.  Necessity  of  Finding — Eequests  Cov- 
ered by  Findings  Made.  Under  Pa.  Act 
April  22,  1874  (P.  L.  109),  relative  to  trials 
without  a  jury,  the  court  need  not  specifi- 
cally answer  on  the  record  all  requests  for 
findings  of  fact,  if  the  findings  made  cover 
the  material  facts  stated  in  the  request. 
Kuhn  V.  Buhl  (Pa.)  I917r)-415. 

66.  Form  of  Findings.  A  finding  should 
contain  the  facts  found,  not  the  evidence 
from  which  they  are  to  be  found.  Blan- 
ton  V.  Wheeler,  etc.  Co.  (Conn.)  1918B- 
747. 

67.  A  finding  that  certain  testimony  is 
true  is  not  the  same  thing  as  finding  that 
some  fact  as  testified  to  is  true.  Blanton 
V.  Wheeler,  etc.  Co.  (Conn.)   1918B-747. 

68.  Evidence— Weight— Conflicting  Evi- 
dence. Duty  of  trial  court  or  jury  in  de- 
termining the  facts  from  conflicting  testi- 
mony discussed.  Wideman  v.  Faivre 
(Kan.)  1918B-1168. 

69.  Submitting  Special  Issues — Discre- 
tion of  Court.  The  matter  of  submitting 
special  issues  to  a  jury  in  an  action  at  law 
rests  in  the  sound  discretion  of  the  trial 
court;  and  the  discretion  extends  also  to 
the  form  and  substance  of  the  special 
issues  so  submitted.  There  was  no  abuse 
of  the  discretion  in  this  case.  Jacobson 
V.  Chicago,  etc.  E.  Co.  (Minn.)  1918A- 
355. 

70.  Special  Interrogatories — As  to  Evi- 
dentiary Facts.  Special  interrogatories 
requested,  which  did  not  call  for  a  finding 


on  the  ultimate  facts,  were  properly  de- 
nied. Korab  v.  Chicago,  etc.  E.  Co. 
(Iowa)  1916E-637. 

71.  Inconsistency  of  Findings — Effect. 
The  court  having  found  that  the  guaranty 
sued  on  was  procured  by  fraud,  contra- 
dictoriness  in  findings  as  to  whether  the 
debt  secured  was  an  individual  debt,  or 
that  of  a  corporation  through  which  the 
debtor  conducted  his  business,  is  not  mate- 
rial. American  National  Bank  v.  Donnel- 
Ian  (Cal.)   1917C-744.  , 

TBIAL  AMENDMENTS. 
See  Pleading,  85-87. 

TBOVEB. 

See  Conversion, 

When   action   accrues,   see   Limitation   of 
Actions,  20. 


TEUSTS  AND  TEUSTEE3. 

1.  Express  Trust,  837. 

a.  Construction     and     Eequisites     in 

General,  837. 

b.  Power  to  Eevoke,  837. 
e.  Proof  of  Trust,  837. 

2.  Spendthrift  Trusts,  837. 

3.  Implied  or  Eesulting  Trust,  838. 

a.  In  General,  838. 

b.  Breached  Contract  to  Devise,  838. 

c.  Consideration    Furnished    for    Con- 
veyance to  Another,  838. 

(1)  In  General,  838. 

(2)  Purchase   bv   One   Spouse  in 

Name  of  Other,  838. 

d.  Proof  of  Trust,  838. 

(1)  Parol  Evidence  Generally,  838. 

(2)  Sufficiency  of  Evidence,   838. 

4.  Eights,     Powers     and     Liabilities     of 

Trustee,  839. 

a.  In  General,  839. 

b.  Sale  of  Property,  839. 

c.  Personal  Interest  of  Trustee,  839. 

d.  Eemoval,  839. 

e.  Settlement  of  Accounts,  839. 

5.  Administration  of  Trust,  840. 

a.  Equitable  Jurisdiction,  840. 

b.  Enforcement  Generally.  840. 

c.  Court  Appointment  of  Trustee,  840. 

d.  Change    of    Purpose    or    Terms    of 

Trust,  840. 

See  Conversion  and  Beconversion. 

Agent's  bank  deposit  of  principal's  money, 
see  Agency,  10. 

Trustee  in  bankruptcy,  see  Bankruptcy, 
1,  13,  14,  16. 

Deposit  by  trustee,  see  Banks  and  Bank- 
ing, 28. 

Merger  of  estates  under  Statute  of  Uses, 
see  Estates,  6. 

Land  held  in  trust,  exempt,  see  Execn- 
tions,  1. 

Suit  to  enforce,  when  cause  accrues,  see 
Limitation  of  Actions,  25,  26. 


TRUSTS  AND  TRUSTEES. 


837 


Trust  to  preserve  estate  void  as  perpe- 
tuity, see  Perpetuities,  1. 

Property  held  by  member  of  brotherhood, 
see  Religious  Societies,  2. 

Testamentary  trusts,  construction,  see 
Wills,  219-221,  238. 

1.     EXPRESS  TRUST. 
a.    Contsruction  and  Requisites,  in  General. 

1.  Necessity  of  Assent   of   Beneficiaxy. 

No  assent  of  any  beneficiary  is  necessary 
to  the  validity  of  a  trust  voluntarily  es- 
tablished. Thorp  V.  Lund  (Mass.)  1918B- 
1204. 

2.  Creation.  A  testator  owning  chiefly 
real  estate  and  some  personal  property  of 
speculative  value,  who  directs  his  ex- 
ecutors to  pay  specified  sums  to  trust  com- 
panies, to  pay  specified  sums  in  instal- 
ments to  beneficiaries  named,  with  gift 
over  on  their  death,  and  who  directs  the 
executors  to  close  up  the  estate  as  speed- 
ily as  possible,  creates  a  trust  for  the 
benefit  of  the  beneficiaries  named.  Heise- 
man  v.  Lowenstein  (Ark.)  1916C-601. 

3.  Certainty  as  to  Beneficiaries.  The 
objects  of  a  trust,  as  expressed  by  a  will, 
"my  nephews  and  nieces,"  are  not  uncer- 
tain. In  re  Dewey's  Estate  (Utah) 
1918A-475. 

"b.    Power  to  Revoke. 

4.  Eight  of  Settlor  to  Reroke.  A  trust 
cannot  be  revoked  or  modified  by  the  set- 
tlor, in  the  absence  of  a  reservation  to 
that  effect,  though  it  was  voluntarily  es- 
tablished. Thorp  v.  Lund  (Mass.)  1918B- 
1204. 

c.     Proof  of  Trust. 

5.  Establishment  by  Parol.  An  express 
trust  cannot  be  established  by  parol  testi- 
mony. Home  Laud,  etc.  Co.  v.  Routh 
(Ark.)  1917C-1143. 

2.     SPENDTHRIFT   TRUSTS. 

6.  Creation.  The  doctrine  of  "spend- 
thrift trusts"  approved  by  the  majority 
of  the  American  courts  by  which  it  is  set- 
tled that  it  is  lawful  for  a  testator  or 
grantor  to  create  a  trust  estate  for  the 
life  of  the  cestui  que  trust,  with  the  pro- 
vision that  the  latter  shall  receive  and 
enjoy  the  income  at  timos  and  in  amounts 
either  fixed  by  the  instrument  or  left  to 
the  discretion  of  the  trustee,  and  that 
such  income  shall  not  be  subject  to  aliena- 
tion by  the  beneficiary,  nor  liable  for  his 
debts,  accords  with  the  general  policy 
which  this  state  has  always  followed  re- 
specting the  right  of  creditors  and 
debtors.  It  deprives  the  creditor  of  no 
security  to  which  he  has  the  right  to  look, 
and  it  recognizes  the  right  which  the 
owner  of   property  has   to   dispose   of   it. 


either  by  an  absolute  gift  or  by  a  condi- 
tional one,  and  to  make  provision  for  the 
object  of  his  bounty,  provided  he  gives 
the  use  only  without  the  absolute  title, 
and  therefore  the  testator's  intention  in 
this  respect,  when  clearly  expressed,  will 
be  carried  out.  Sherman  v.  Havens 
(Kan.)   1917B-394.  (Annotated.) 

7.  A  spendthrift  trust  attempted  to  be 
created  in  the  settlor's  own  favor  is  in- 
valid, though  he  has  no  fraudulent  intent 
toward  his  creditors.  McColgan  v.  Walter 
Magee  (Cal.)   1917D-105O,       (Annotated.) 

8.  Spendthrift  Trust  in  Favor  of  Donor. 
In  view  of  Cal.  Civ.  Code,  §§  669,  688,  693, 
providing  that  a  future  contingent  interest 
is  property,  where  a  father  executed  a 
deed  of  trust  conveying  property  to  two 
sons  as  trustees  for  themselves  and  two 
others,  providing  that  at  any  time  after 
his  death  any  three  of  the  beneficiaries 
might  terminate  the  trust  by  acknowledg- 
ing and  recording  a  declaration  to  that 
effect,  and  that  on  such  termination  the 
property  should  belong  to  the  beneficiaries, 
share  and  share  alike,  one-fourth  each,  and 
after  the  father's  death  the  four  benefici- 
aries executed  an  agreement  whereby  the 
trust  was  to  be  terminated  and  a  distri- 
bution of  the  property  made  according  to 
its  appraised  value,  giving  each  benefici- 
ary one-fourth,  except  that  there  should 
be  set  aside  as  the  fourth  share  of  one 
son  certain  shares  of  stock  and  cash,  equal- 
ing one-fourth  of  the  trust  property,  which 
share  should  not  go  directly  to  the  partic- 
ular beneficiary,  but  be  transferred  to  tw» 
of  his  brothers,  to  be  held  in  trust  for 
him,  the  agreement  further  declaring  that 
the  beneficiary's  interest  was  inalienable, 
non-transferable,  and  exempt  from  the 
claims  of  his  creditors,  such  second  trust 
was  invalid,  and  the  property  subject  to 
the  claims  of  creditors  as  in  effect  an  at- 
tempt to  create  a  spendthrift  trust  by  the 
beneficiary  in  his  own  favor,  which  is 
contrary  to  the  policy  of  the  law,  since 
the  beneficiary's  interest  in  the  original 
trust,  though  a  future  and  not  a  vested 
interest,  was  his  disposable  property,  sub- 
ject to  the  demands  of  creditors.  McCol- 
gan V.  Walter  Magee  (Cal.)  1917D-1050. 

(Annotated.) 

9.  Validity  of  Spendthrift  Trust.  The 
general  doctrine  that  spendthrift  trusts, 
inalienable  by  the  beneficiary,  and  inac- 
cessible to  his  creditors  during  his  life  or 
for  a  term  of  years,  are  valid  in  Califor- 
nia, is  well  established.  McColgan  v. 
Walter  Magee  (Cal.)  1917D-1050. 

10.  Spendthrift  Trust — Rights  as  to 
Surplus  Income.  By  direct  provision  of 
Cal.  Civ.  Code,  §  867,  a  spendthrift  trust 
may  be  created  in  the  rents  and  profits  of 
realty  if  the  beneficiary  is  restrained  from 
disposing  of  his  interest  only  during  life 
or  a  term  of  years;  but,  by  section  859, 
where  a  trust  is  created  to  receive  rents 


838 


DIGEST. 

19160— 1918B. 


and  profits,  and  no  Talid  direction  for  ac- 
cumulation is  given,  the  surplus,  beyond 
what  is  necessary  for  the  education  and 
support  of  the  person  for  whose  benefit 
the  trust  is  created,  is  liable  to  the  claims 
of  his  creditors.  McColgan  v.  Walter  Ma- 
gee  (Cal.)  1917IX-1050. 

11.  Sufficiency  of  Proof  Established. 
Without  deciding  that  a  letter  written  by 
the  testator  three  years  after  the  execu- 
tion of  the  will  was  admissible  in  evidence 
for  the  purpose  of  showing  the  circum- 
stances under  which  the  will  was  executed, 
it  is  held  that  nothing  contained  in  either 
the  will  or  the  letter  shows  that  it  was 
the  testator's  intention  to  protect  the  in- 
come from  waste  or  dissipation,  or  to  pre- 
vent the  legacy  from  being  subject  to  pay- 
ment of  the  brother's  debts.  Sherman  v. 
Havens  (Kan.)  19I7B-394.       (Annotated.) 

12.  A  will  contained  the  following 
clause:  "To  my  brother,  Arthur  B.  Hav- 
ens, should  he  survive  me,  an  annuity  of 
one  thousand  dollars,  and  I  direct  my  said 
executor  trustees  to  pay  him  two  hundred 
and  fifty  dollars  quarterly  in  advance  from 
my  death  until  his;  but  should  he  prede- 
cease me,  and  in  any  event  after  his  death, 
such  annuity  fund  to  be  added  to  the  trust 
estate  hereinafter  created  for  my  said 
daughter  Elizabeth  and  her  issue." 

Held,  that  proper  construction  of  the 
will  does  not  disclose  an  intention  on  the 
part  of  the  testator  to  secure  to  his  brother 
the  life  enjoyment  of  the  income  of  the 
trust  estate  exempt  from  his  brother's 
creditors.  Sherman  ▼.  Havens  (Kan.) 
1917B-394.  (Annotated.) 

Kote. 

Sofficiency  of  instrument  to  create 
spendthrift  trust.     1917B-400. 

3.     IMPLIED  OB   EESULTING  TEUST. 
a.     In  General. 

13.  Improperly  Obtaining  Legal  Title  to 
Property.  Where  a  party  obtains  the 
legal  title  to  property,  not  only  by  fraud 
or  by  violation  of  confidence,  or  of  fidu- 
ciary relations,  but  in  any  other  uncon- 
scientious manner,  so  that  he  cannot  equi- 
tably retain  it  against  the  rightful  owner, 
equity  carries  out  its  theory  of  a  double 
ownership,  equitable  and  legal,  by  impress- 
ing a  constructive  trust  upon  the  prop- 
erty in  favor  of  the  one  who  is  in  good 
conscience  entitled  to  it,  and  who  is  con- 
sidered in  equity  as  the  beneficial  owner. 
Hayden  v.  Dannenberg  (Okla.)  1916D- 
1191. 

14.  Creation  of  Testamentary  Trust — 
Express  Words  Unnecessary.  Where  a 
trust  is  intended  to  be  created,  the  courts 
will  honor  it  and  create  an  implied  trust, 
although  words  of  devise  in  trust  are  lack- 
ing. Sherlock  v,  Thompson  (Iowa) 
1S17A-1216. 


b.    Breached  Contract  to  Devise. 

15.  Effect  of  Breach  of  Contract  to  De- 
vise. If  the  promisor,  in  such  a  case 
makes  a  will,  which  is  probated,  devising 
the  specific  property  to  another  person  in 
violation  of  the  terms  of  the  contract, 
equity  will  impress  a  trust  upon  the  prop- 
erty, which  will  follow  it  into  the  hands 
of  the  personal  representative  or  devisee 
of  the  promisor.  Gordon  v.  Spellman 
(Ga.)  1918A-852. 

c.     Consideration    Furnished    for    Convey- 
ance to  Another. 

(1)     In  General. 

16.  rnmishlng  Purchase  Money.  A  trust 
results  by  operation  of  law  in  favor  of  one 
who  furnishes  to  another,  not  as  a  loan, 
the  purchase  price  of  land  bought  by  such 
other,  who  takes  title  in  his  own  name. 
Home  Land,  etc.  Co .  v.  Routh  (Ark.) 
1917C-1143. 

(2)     Purchase  by  One  Spouse  in  Name  of 
Other. 

17.  Purchase  by  Husband  in  Name  of 
Wife— Intent  to  Defraud  Creditors.  Equity 
will  not  decree  a  resulting  trust  in  favor 
of  a  husband  with  respect  to  property  pur- 
chased by  him  in  the  name  of  his  wife 
when  his  purpose  in  thus  taking  the  title 
was  to  hinder  and  delay  his  creditors. 
Scheuerman  t.  Scheuerman  (Can.)  1917B- 
219.  (Annotated.) 

d.     Proof  of  Trust. 
(1)     Parol  Evidence  Generally. 

18.  Parol  to  Vary  Writing— Proof  of 
Trust.  An  express  trust  cannot  be  grafted 
upon  a  deed  absolute  in  form  by  oral  tes- 
timony. Queen  v.  Queen  (Ark.)  1917A- 
1101. 

19.  A  resulting  trust  can  be  established 
by  parol,  as  it  results  by  operation  of  law, 
and  not  from  the  contract  of  the  parties. 
Home  Land,  etc.  Co.  v.  Eouth  (Ark.) 
1917C-1143. 

(2)     Sufficiency  of  Evidence. 

20.  A  constructive  trust  may  be  estab- 
lished by  ^  parol  evidence,  but  the  law  for 
the  safety  of  titles  requires  that  the  proof 
should  be  of  the  most  satisfactory  and 
trustworthy  kind.  The  onus  of  establish- 
ing a  constructive  trust  rests  upon  him 
who  seeks  its  enforcement,  and  before  a 
court  of  equity  will  be  warranted  in 
making  a  decree  therefor,  the  evidence 
must  be  clear,  unequivocal,  and  decisive. 
Hayden  v.  Dannenberg  (Okla.)  1916D- 
1191.  (Annotated.) 

21.  Provision  Held  to  Create  Trust.  Tes- 
tatrix bequeathed  to  her  husband  and  to 


TRUSTS  AND  TRUSTEES. 


839 


her  son  the  income  from  the  remainder  of 
her  property  in  equal  shares  for  life,  the 
survivor  succeeding  to  the  ownership  of 
the  whole  of  the  income  on  the  decease  of 
the  other;  that  the  husband  should  be 
trustee  while  he  lived,  and  on  his  decease 
the  son  should  succeed  to  the  trusteeship, 
the  trustee  to  take  care  of  the  property 
with  no  power  of  sale,  unless  under  order 
of  court  to  carry  out  the  terms  of  the  will, 
nor  should  title  to  the  property  (other 
than  its  income)  vest  in  either  of  such 
persons,  and,  on  the  death  of  the  survivor 
of  the  husband  and  son,  the  title  should 
pass  in  equal  shares  to  testatrix's  nieces 
and  nephews.  Held,  that  the  legal  title 
to  the  property  vested  in  the  husband,  and 
after  his  death,  leaving  the  son  surviving, 
in  the  son,  as  trustee  to  carry  out  the  pro- 
visions of  the  will,  and  for  the  benefit  of 
whoever  will  take  on  the  death  of  the  last 
trustee.  Sherlock  v.  Thompson  (Iowa) 
1917A-1216. 

Note. 
Sufficiency  of  evidence  to  establish  con- 
structive or  resulting  trust.     1916D-1191. 

4.     EIGHTS,    POWEES    AND    LIABILI- 
TIES OF  TEUSTEE. 

a.     In  General. 

22.  Title  to  Trust  Property.  The  exclu- 
sive legal  title  to  trust  property  is  vested 
in  the  trustee.  Welch  v.  Boston  (Mass.) 
1917D-946. 

b.     Sale  of  Property. 

23.  Where  a  suit  to  recover  property 
conveyed  by  a  testamentary  trustee  was 
not  commenced  until  nearly  50  years  after 
the  conveyance  was  made,  during  which 
time  the  purchaser  and  its  successor  had 
acquired  rights  by  the  making  of  improve- 
ments and  otherwise  in  reliance  on  the 
validity  of  the  conveyance,  such  facts  may 
properly  incline  the  court,  in  case  of 
doubtful  language  in  the  will,  to  a  con- 
struction which  will  sustain  the  power  of 
the  trustee  to  convey.  Holden  v.  Circle- 
vQle  Light,  etc.  Co.  (Fed.)  1916D-443. 

(Annotated.) 

24.  Diversion  of  Proceeds  by  Trustee — 
Effect  on  Conveyaaice.  A  bona  fide  pur- 
chaser from  a  trustee  empowered  to  sell, 
who  pays  the  purchase  money,  is  not  re- 
quired, to  look  to  its  application.  Holden 
v.  Circleville  Light,  etc.  Co.  (Fed.)  1916D- 
443. 

25.  Trustee's  Deed  —  Presumptions. 
Where  a  grantor  had  apparently  no  title 
to  the  land  conveyed,  except  by  virtue 
of  a  will  creating  a  testamentary  trust  in 
such  grantor,  the  presumption  is  justified 
that  the  deed  was  made  in  reliance  upon 
the  power  conferred  thereby,  although 
such  power  is  not  invoked  nor  expressly 


mentioned  in  the  deed.     Holden  v.  Circle- 
ville Light,  etc.  Co.  (Fed.)  1916D-443. 

Note. 

Power  of  trustee  to  mortgage  trust  prop* 
erty.     1916C-606. 

«.    Pefsonal  Interest  of  Trustee. 

26.  Interest  of  Trustee  in  Subject-matter. 
In  the  absence  of  clear  and  express  terras 
permitting  it,  a  nephew,  to  whom  testatrix 
gives  property  in  trust  to  distribute  among 
her  nephews  and  nieces,  cannot  participate 
in  the  distribution,  though  he  is  given  dis- 
cretion as  to  selecting  the  beneficiaries, 
and  elects  in  favor  of  himself.  In  re 
Dewey's  Estate  (Utah)  1918A-475. 

(Annotated.) 
Note. 

Effect  of  trustee  having  interest  in 
subject-matter  of  trust.     191SA-481. 

d.    Eemoval. 

27.  Inherent  Power  of  Court  to  Bemove. 
A  court  of  equity  has  inherent  jurisdiction 
to  remove  a  trustee,  independent  of  statu- 
tory provisions,  for  good  cause  shown. 
Maydwell  v.  Maydwell  (Tenn.)  1918B- 
1043. 

28.  Grounds  for  BemovaL  The  chancery 
court  has  jurisdiction,  under  Shannon's 
Tenn.  Code,  §§  5414,  5422,  to  remove  a  trus- 
tee for  the  cause  enumerated  in  the  stat- 
ute and  "for  other  good  cause"  at  suit  of 
the  beneficiary.  Maydwell  t.  Maydwell 
(Tenn.)  1918B-1043. 

29.  Ill  Feeling  Between  Trustee  and 
Beneficiary.  Where  testator's  will  di- 
rected his  widow  as  trustee  to  apply  the 
income  from  a  daughter's  share  of  the 
estate  to  the  best  interest  of  the  latter 
and  for  her  comfort,  maintenance,  and 
support,  and  friction  developed  between 
mother  and  daughter  resulting  in  litiga- 
tion and  bad  feeling,  the  mother  wiU  be 
removed  as  trustee  on  the  daughter's  ap- 
plication, irrespective  of  the  merits  of  the 
dispute.  Maydwell  v.  Maydwell  (Tenn.) 
1918B-1043.  (Annotated.) 

Note. 
Antagonism  or  ill  feeling  between  trus- 
tee and  beneficiary  as  ground  for  removal 
of  trustee.     1918B-1044. 

e.    Settlement  of  Accounts. 

30.  The  basic  principle  of  an  accounting 
by  a  trustee  in  equity  is  that  the  account 
should  be  so  stated  that  the  trustee  shall 
make  no  profit  by  his  use  of  the  property 
of  the  cestui  que  trust  and  the  latter  shall 
receive  the  value  of  hi*  property  and  its 
income. 

A  cotenant  has  the  right  to  extract  ore 
from  the  common  property  and  sell  it,  ac- 


840 


DIGEST. 

19160— 1918B. 


counting  for  the  proceeds,  less  the  reason- 
able expense  of  mining  and  marketing. 

Where  the  fundamental  rule  of  an  ac- 
counting can  be  complied  with  by  allowing 
to  the  cotenant,  who  is  a  trustee  for  his 
fellow,  the  expenses  of  mining  and  mar- 
keting the  ore,  the  measure  of  damage* 
for  a  wilful  trespass  is  not  necessarily  ap- 
plicable to  the  case,  although  t^e  cotenant 
who  extracted  the  ore  intended  to  appro- 
priate all  of  it  to  himself,  concealed  his 
acti,  kept  no  accounts,  caved  the  stope, 
and  made  it  difficult  and  expensive  to 
ascertain  the  volume  and  value  of  the  ore 
taken.  Silver  King  Coalition  Mines  Co.  v. 
Silver  King  ConsoL  Min.  Co.  (Fed.)  1918B- 
571.  (Annotated.) 

31.  Evidemce  of  Disbarsement  Sufficient. 
In  a  suit  by  a  wife  against  her  insane 
husband  to  foreclose  a  mortgage,  in  which 
the  husband's  guardian  asked  for  an  ac- 
counting as  to  money  received  by  the  wife 
while  managing  the  mortgaged  property 
during  the  husband's  absence  in  Canada, 
evidence  held  to  show  that  after  support- 
ing herself  and  her  children  she  accumu- 
lated no  reserve  fund  beyond  what  was 
sent  the  husband.  Stevens  v.  Stevens 
(Mich.)  1916E-1259. 

32.  Eelmbursement  of  Tmste©  for  Ex- 
penses— Trustee  Removed  for  Malfeasance. 
A  faithful  trustee  may  be  indemnified  out 
of  the  trust  property  for  his  expenses  in 
rendering  and  proving  his  accounts,  but 
where  he  was  removed  for  malfeasance  and 
found  indebted  to  the  trust  estate,  he  was 
in  the  position  of  an  unsuccessful  litigant, 
and  not  entitled  to  costs,  expenses,  or  com- 
missions, but  was  chargeable  personally 
with  costs.  Matter  of  Howell  (N.  Y.) 
1917A-527. 

5.     ADMINISTEATION  OF  TRUST, 
a.     Equitable  Jurisdiction. 

33.  Asking  Instruction  of  Court.  When 
in  doubt,  the  trustee  of  a  fund  may  ask 
the  instructions  of  the  court  as  to  the 
validity  of  a  proposed  exercise  of  the 
power  of  appointment.  Thorp  ▼.  Lund 
(Mass.)  1918B-1204. 

b.     Enforcement  Generally. 

34.  Discriminatory  Trust  —  Manner  of 
Enforcement — Failure  of  Trustee  to  Exer- 
cise Discretion.  The  trustee  not  having 
exercised,  the  discretion,  given  by  the  will, 
to  determine  to  which  of  the  testatrix's 
nephews  and  nieces,  and  in  what  propor- 
tion, the  property  should  be  distributed, 
it  will  be  distributed  among  them  equally; 
no  rule  being  laid  down  by  the  will  to  gov- 
ern the  trustee.  In  re  Dewey's  Estate 
(Utah)  1918A-475. 

c.     Court  Appointment  of  Trustee. 

35.  Failure  for  Lack  of  Trustee.  Equity 
will  not  allow  a  trust  to  fail  for  lack  of 


a  trustee  holding  legal  title.     Sherlock  ▼. 
Thompson  (Iowa)   1917A-1216. 

d.     Change  of  Purpose  or  Terms  of  Trust. 

36.  Joinder  of  Trustee  In  Action — Pas- 
sive Trust.  Where  the  trust  created  by  a 
deed  has  become  passive  and  the  statute 
has  executed  the  use,  the  trustee  is  not  a 
necessary  party  to  a  suit  to  reinvest  the 
land  upon  the  uses  declared  by  the  deed. 
Lee  v.  Gates  (N.  Car.)  1917A-5H. 

TRUTH. 

As  defense  in  defamation,  see  Iiibel  and 
Slander,  49,  50,  76,  78,  102,  106,  117, 
139,  142. 

TURNTABLE  DOCTRIKE. 

Essentials  of  complaint,  see  Negligence, 
62. 

TWIC3E  IN  JEOPARDY. 

Meaning,  see  Former  Jeopardy,  2. 

TYPEWRITING. 

Comparison  of,  see  Evldeace,  110. 
Forgery  by  insertion  of,  see  Forgery,  1-3. 

TYPHOID. 

As  accident  within  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant, 
193,  194. 

ULTRA  VIRES. 

Guarantv  contracts,  see  Banks  and  Bank- 
ing, 2. 

ULTRA  VIRES  ACTS. 
See  Corporations,  13. 

UNCHASTITY. 

Imputation  of,  to  male,  see  Libel  and 
Slander,  36. 

UNCERTAINTY. 

Effect    on     negotiability,    see    Bills    and 

Notes,  20,  23,  25,  26. 
In  description,  see  Deeds,  45-47. 

UNDERTAKINGS. 
See  Bonds;   Suretyship. 

UNDISCLOSED  AGENCY. 
See  Agency,  31-34. 

UNDUE  INFLUENCE. 

See  Deeds,  24,  25;  Wills,  97-101. 
In  gift  causa  mortis,  see  Gifts,  15,  17. 
No  presumption  in  gift  to  child,  see  Parent 
and  Child,  6. 


UNFAIE  TREATMENT  OF  LABOR— USURY. 


841 


UNFAIE  TREATMENT  OF  LABOS. 

Imputation  ot,  see  Libel  and  Slander,  18, 
31. 

UNFAIE  COaiPETITION. 

See  Monopolies,  2,  3,  4,  6. 

UNFAIE  LIST. 
See  Libel  and  Slander,  18. 

UNIFOEMITY  OF  TAXATION". 
See  Taxation,  6-9. 

UNIFOEM     WAEEHOUSE      EECEIPTS 
ACT. 

See  Warehouses,  6-9. 

UNINCOEPOEATED  ASSOCIATIONS. 

See  Societies  and  Clubs. 

UNIONS. 
See  Labor  Combinations. 

UNITED  STATES. 

Distribution  of  governmental  powers,  see 
Constitutional  Law,  4-13. 

Power  to  regulate  commerce  between 
states,  see  Interstate  Commerce,  5. 

Calling  militia  into  U.  S.  service,  see  Mili- 
tia, 12. 

Mailable  matter,  see  Postofllce,  1,  2, 

Relation  of  states  inter  se,  see  States,  12. 

UNITED  STATES  COUETS. 
See  Courts,  8-11;  Eemoral  of  Causes. 

UNIVERSITIES. 
See  Colleges  and  Universities. 

UNLAWFUL  ASSEMBLY. 
See  Mobs. 

1.  What  Constitutes — Audience  at  Sun- 
day Moving  Picture  Show.  Defendant, 
who  ran  a  moving  picture  show  on  Sun- 
day, in  assumed  violation  of  Mich.  Comp. 
Laws  1897,  §  5912,  forbidding  the  opening 
of  shops  or  any  business  or  work  or  pres- 
ence at  any  public  show  or  entertainment 
on  Sunday  under  a  fine  of  not  more  than 
$10,  can  only  be  prosecuted  under  such 
provision,  and,  in  the  absence  of  any  overt 
act  or  violence  or  disorder,  cannot  be  sum- 
marily arrested  under  section  11334  et 
seq.,  authorizing  the  arrest  of  persons  un- 
lawfully assembled  who  refuse  to  disperse 
on  command  of  the  mavor,  etc.  People  v. 
Dixon  (Mich.)  1918B-385.       (Annotated.) 

UNMAEEIED  PEESONS. 
Adultery  by,  see  Adultery,  1. 


UNPEOFESSIONAL  CONDUCT. 
Imputation  of,  see  Libel  and  Slander,  32. 

UNEECOEDED  INSTEUMENTS. 

See  Chattel  Mortgages,  14;  Recording 
Acts,  12,  13. 

USAGES  AND  CUSTOMS. 

Power  to  determine  existence,  see  Arbi- 
tration and  Award,  1. 

Judicial  notice  of  customs,  see  Evidence, 
9. 

1.  Local  Significance  of  Word.  Com- 
plainant conveyed  certain  land  to  defend- 
ant's predecessors  in  title  by  deed,  reserv- 
ing all  timber  suitable  for  sawlogs,  12 
inches  and  over  in  diameter  three  feet 
ebove  ground.  Held  that,  while  the  word 
"timber  suitable  for  sawlogs,"  standing 
alone,  included  any  and  every  sort  of  saw- 
log,  without  reference  to  the  character  of 
the  wood,  yet,  the  contract  having  been 
made  20  years  before,  defendants  were  en- 
titled to  show  that,  according  to  the  cus- 
tom of  the  locality  when  the  deed  was 
made,  "sawlogs"  had  a  well-defined  local 
meaning  which  was  limited  to  pine  logs. 
W.  T.  Smith  Lumber  Co.  v.  Jernigan  (Ala.) 
1916C-654.  (Annotated.) 

2.  When  the  usage  of  a  locality  in 
which  an  instrument  is  executed  has  given 
certain  words  therein  a  peculiar  significa- 
tion, the  parties  to  the  instrument  will  be 
presumed  to  have  used  the  words  in  their 
peculiar  local  sense.  W.  T.  Smith  Lumber 
Co.  T.  Jernigan  (Ala.)  1916C-654. 

(Annotated.) 

Note. 
Admissibility    of    evidence    of   peculiar 
signification  of  word  in  locality  where  in- 
strument was  executed.     1916U-655. 

USE  AND  OCCUPATION. 
See  Landlord  and  Tenant,  32,  36. 

USUAL  PLACE  OF  EESIDENCE. 
See  PfocMS,  12. 

USUET. 

1.  Definitions  and  General  Considerations, 

842. 

2.  Statutes,     Construction     and     Validity, 

842. 

3.  Consideration   of   Particular   Contracts, 

842. 

4.  Effect  on  Renewal  of  Contract,  843. 

5.  Remedies,   843. 

a.  Availability  as  Defense,  843. 

b.  Recovery  of  Payment,  844. 

c.  Equitable  Relief,  844. 

d.  Recovery   of   Penalty,    844. 
Principal's   liability   for   agent's   usurious 

transaction,  see  Agency,  25. 
Exemption  from  usury  laws,  see  Building 
and  Loan  Associations,  1. 


842 


DIGEST. 

1916C— 1918B. 


Action  to  recover  usurious  payments,  when 
cause  accrues,  see  Limitation  of  Ao- 
ticns,  30,  31. 

1.  DEFINTTIONS  AND  GENETBAL  CON- 

SIDERATIONS. 

1.  Purging  Transaction ofUsury — ^Power 
of  Court.  The  parties  to  an  usurious  eon- 
tract  themselves  by  agreement  may  purge 
it  of  usury,  but  a  court  of  law  or  equity 
cannot  do  so  after  suit  brought  and  after 
a  defense  of  usury  is  interposed.  Person 
V.  Mattson  (N.  Dak.)  1918A-747. 

2.  What  Constitutes  Usury— Exaction  of 
Bonus.  Where  the  parties  to  a  mortgage 
stipulated  expressly  for  six  per  cent  in- 
terest, and  incorporated  a  bonus  in  the 
principal,  the  mortgage  was  usurious,  be- 
cause the  mere  fact  that  seven  per  cent 
waa  a  legal  rate  while  the  bonus  would 
not  amount  to  more  than  one  per  cent  on 
the  principal  without  the  bonus  for  the 
time  the  loan  was  to  run,  thus  rendering 
the  total  paid  for  the  loan  less  than  geven 
per  cent,  the  highest  legal  rate,  on  the 
principal,  could  not  operate  to  sustain  the 
mortgage,  on  the  ground  that  the  parties 
intended  the  interest  rate  to  be  seven  and 
not  six  per  cent,  since  there  was  an  ex- 
press contract  for  such  latter  rate.  Leach 
V.  Dolese  (Mich.)  1917A-1182. 

2.  STATUTES,    CONSTRUCTION    AND 

VALIDITY. 

3.  Penalty.  All  usurious  interest  stipu- 
lated for  should  be  forfeited.  The  usuri- 
ous contract  rate  cannot  be  treated  as  in- 
ralid  and  not  a  contract  for  an  interest 
rate,  and  interest  at  the  noncontract  rate 
of  six  per  cent  be  allowed.  To  do  so 
would  be  to  ignore  and  override  the  statu- 
tory penalty  requiring  forfeiture  of  all 
interest  "agreed  to  be  paid"  on  the  notes. 
Person  r.  Mattson  (N.  Dak.)  1918A-747. 

4.  Construction  of  Adopted  Act.  Oar 
usury  statute  was  adopted  from  the  Na- 
tional Banking  Act  governing  taking  of 
interest  and  discount  by  national  banks, 
exempt  in  such  respect  from  state  laws, 
and  was  adopted  to  secure  uniformity  as 
to  all  banks,  state  and  national,  as  to 
usury  and  penalty  therefor.  Federal  de- 
cisions on  usury  are  followed.  Person  v. 
Mattson  (N.  Dak.)  1918A-747. 

5.  Effect  —  Forfeiture  of  All  Interest. 
Under  Mich.  Comp.  Laws  1897,  §  4S57,  pro- 
viding that,  in  any  action  on  a  usurious 
contract,  if  it  shall  appear  that  a  greater 
rate  of  interest  has  been  directly  or  in- 
directly reserved  than  allowed  by  law,  the 
defendant  shall  not  be  compelled  to  pay 
any  interest  thereon,  forfeiture  of  inter- 
est on  a  usurious  mortgage  is  operative, 
although  the  cross  bill  seeking  to  enforce 
such  mortgage  in  a  suit  of  the  mortgagors 
to  redeem  does  not  ask  for  the  payment 
of  usurious  interest.  Leach  T.  Dolese 
(Mich.)  1917A-1182. 


6.  Proof  of  XTsury — Clear  Proof  Essen- 
tial. Under  the  usury  statute,  providing 
that,  whenever  it  shall  satisfactorily  ap- 
pear by  admission  of  the  party  or  by 
proof  that  any  bond,  bill,  etc.,  has  been 
taken  or  received  in  violation  of  the  pro 
visions  of  the  act,  then,  and  not  other- 
wise, shall  the  lender  forfeit  the  wholf 
sum  expressed  in  the  contract  to  the  bor- 
rower, a  forfeiture  for  usury  will  not  be 
declared  except  on  evidence  clear  and  con- 
vincing that  the  lender  participated  in  o^ 
benefited  by  the  transaction.  Brown  v 
Johnson  (Utah)  1916C-321. 

7.  What  is  Usurious  Kate — Monthly  In- 
terest. Under  the  statute  permitting  any 
rate  of  interest  not  exceeding  12  per  cent 
per  annum,  a  note  calling  for  interest  at 
the  rate  of  1  per  cent  per  month  is  not 
usurious.  Brown  v.  Johnson  (Utah)  1916C- 
321. 

8.  Forfeiture  of  Interest — ^When  Pen- 
alty Attaches — Attempt  to  linforce  Con- 
tract. Under  Mich.  Comp.  Laws  1897, 
§  4857,  providing  that  no  contract  reserv- 
ing a  usurious  interest  shall  be  rendered 
void,  but  that  in  any  action  on  such  con- 
tract the  defendant  shall  not  be  compelled 
to  pay  any  interest  thereon,  and  under  sec- 
tion 4858,  that  where  it  shall  appear  that 
any  contract  violates  the  preceding  sec- 
tion, the  court  shall  declare  the  interest 
thereon  to  be  void,  where  a  mortgagee  by 
cross  bill  in  suit  to  redeem  a  usurious 
mortgage  affirmatively  seeks  its  enforce- 
ment, he  can  recover  no  interest.  Leach 
V.  Dolese  (Mich.)  1917A-1182. 

3.     CONSIDERATION  OF  PARTICULAR 
CONTRACTS. 

9.  Effect  on  Renewal  Note.  Suit  to 
foreclose  a  mortgage  securing  notes  for 
$4,000  bearing  interest  at  twelve  per  cent, 
non-usurious  on  their  face.  In  part  these 
two  notes  were  renewals  of  two  prior 
notes  of  $356  and  $966  with  cash  advanced 
sufficient  to  aggregate  $4,000  for  which 
the  two  notes  were  taken  with  security  as 
one  transaction.  The  $356  note  contained 
a  usurious  charge  of  bonus  of  $45,  and 
drew  twelve  per  cent  interest.  No  deduc- 
tion for  or  purging  of  said  usury  was 
made  by  the  parties  when  the  $4,000  in 
notes  were  taken,  but  the  usurious  amount 
was  included  in  them.  Defendant  pleads 
usury  and  demands  that  all  the  interest 
on  the  $4,000  be  forfeited  and  remitted 
under  the  usury  statute.  The  trial  court 
deducted  the  interest  on  and  bonus  in  the 
$356  note,  but  allowed  interest  on  the  bal- 
ance oFthe  $4,000.  The  principal  of  two 
notes  aggregating  $4,000  is  tainted  with 
usury  through  that  contained  in  the  $356 
note  entering  into  them  as  a  portion  of 
the  purported  principal  of  said  notes. 
Person  v.  Mattson   (N.  Dak.)    1918A-747. 

(Annotated.) 

10.  What  Constitutes — Provision  for  Ac- 
celeration of  Maturity.     Where  a  series  of 


USURY. 


84<- 


notes  given  for  a  loan  do  not  reserve  a 
usurious  rate  of  interest  if  paid  wlien  due, 
but  contain  stipulations  to  the  effect  that 
default  in  payment  shall  accelerate  ma- 
turity of  the  entire  debt,  which  will  ren- 
der the  interest,  for  the  time  the  borrower 
had  the  use  of  the  money  under  the  ac- 
celeration clause,  usurious,  such  notes  are 
not  void  for  usury;  the  excessive  rate  of 
interest  after  maturity  of  the  debt  being 
in  the  nature  of  liquidated  damages,  to 
be  enforced  only  to  the  extent  not  uncon- 
scionable. Cissna  Loan  Co.  v.  Gawley 
(Wash.)  1917D-722.  (Annotated.) 

11.  Provision  for  Payment  Before  Ma- 
turity. Instalment  notes  carrying  a  legal 
rate  of  interest,  but  which  would  cany  a 
usurious  rate  of  interest  if  paid  before 
maturity  at  borrower's  option,  are  not  void 
for  usury,  since  the  borrower  is  not  obli- 
gated to  pay  before  maturity.  Cissna 
Loan  Co.  v.  Gawley  (Wash.)  1917D-722. 

Notes. 
Provision   for   acceleration   of   maturity 
of  debt  on  default  in  payment  of  interest 
or    instalment    of    principal    as    usurious. 
1917D-725. 

Eenewal  contract  as  affected  by  usury 
in  original  contract.     1918A-753. 

4.     EFFECT    ON    EENEWAL    OF    CON- 
TRACT. 

12.  Effect  of  Usury  on  Eenewal  Note. 
With  usury  proved  in  a  note  sued  upon,  a 
court  cannot  and  should  not  separate  the 
nonusurious  from  the  usurious  transac- 
tions incorporated  by  renewal  into  an 
usurious  note,  so  as  to  allow  interest  on  the 
nonusurious  portion.  Person  v.  Mattson 
(N.  Dak.)  1918A-747. 

13.  Where  an  innocent  party,  without 
knowledge  that  an  obligation  contains 
usury,  purchases  it  for  valuable  consider- 
ation, and  the  obligor  discharges  it  by 
executing  a  new  note  payable  to  the 
holder,  a  new  debt  is  thereby  created  and 
the  consideration  for  the  new  note  is 
valid,  although  the  usury  from  the  old 
debt  was  carried  over  into  it  without  the 
payee's  knowledge,  so  that  the  obligor 
cannot  have  any  action  or  defense  on  the 
ground  of  usury.  Taulbee  v.  Hargis  (Ky.) 
1918A-762.  (Annotated.) 

14.  Where  the  assignee  of  a  usurious 
obligation  takes  it  knowing  that  it  em- 
braces usury,  and  thereafter  the  obligor 
discharges  it  by  executing  a  new  note  to 
the  assignee  for  the  old  note,  the  obligor 
is  not  estopped  nor  precluded  from  com- 
plaining of  the  usury  as  against  the  payee 
in  the  new  note,  when  it  is  attempted  to 
be  collected.  Taulbee  v.  Hargis  (Ky.) 
1918A-762.  (Annotated.) 

15.  Ky.  St.  §  2219,  subsec.  2,  provides 
that  the  excess  of  interest  over  the  legal 
rate  paid  for  the  loan  of  money  may  be 


recovered  from  the  lender,  although  paid 
to  his  assignee.  A  petition,  in  an  action 
to  recover  an  amount  alleged  to  have  been 
paid  as  usury,  alleged  the  amounts  of  the 
money  borrowed,  which  was  the  consider- 
ation of  the  original  notes:  that  interest 
was  calculated  upon  such  amounts  at  ten 
per  cent  and  included  in  the  notes,  and 
that  on  eacn  renewal  the  interest  at  that 
rate  was  ascertained  upon  the  amount  of 
the  old  note  and  included  in  the  new  note; 
that  a  note  to  defendant,  including  such 
interest,  was  assigned  by  him  to  a  bank, 
and  was  thereafter  renewed  at  his  request, 
including  ten  per  cent  interest,  and  was 
again  renewed,  and  that  upon  payment  of 
such  note  plaintiff  was  compelled  to  pay 
usurious  interest  to  secure  the  release  of 
his  property  from  a  mortgage  executed  to 
secure  tiie  note.  It  is  held,  on  demurrer 
to  the  petition,  that  it  stated  a  good  cause 
of  action  against  the  lender.  Taulbee  v. 
Hargis    (Ky.)    1918A-762.       (Annotated.) 

16.  Although  the  obligation  given  in  re- 
newal of  a  debt  containing  usury  is  signed 
by  oblip'ors  other  than  these  originally 
bound,  all  usury  mav  be  purged  from  the 
transaction  so  long  as  the  original  obligor 
remains  bound.  Taulbee  v.  Hargis  (Ky.) 
1918A-762.  (Annotated.) 

17.  Where  usury  was  included  in  origi- 
nal notes  secured  by  a  mortgage  on  the 
debtor's  realty,  and  in  the  renewals  there- 
of, and  the  lender  sold  and  indorsed  the 
renewal  note  to  a  bank,  and  another  bank, 
of  which  the  original  lender  had  become 
president,  purchased  it,  and  the  original 
debtor  executed  to  it  a  note  for  the  un- 
paid part  of  the  note  it  had  purchased, 
with  usurious  interest  thereon  included  in 
the  note,  the  debtor  is  entitled  to  judg- 
ment against  the  bank  for  that  sum. 
Taulbee  v.  Hargis  (Ky.)  1918A-762. 

(Annotated.) 

18.  Where  a  party  in  good  faith,  for 
value,  and  without  knowledge,  purchases  a 
usurious  obligation,  and  the  debtor  ob- 
tains an  extension  of  time  in  which  to  pay 
it,  and  induces  the  holder  to  accept  a  new 
note  and  thereby  obtains  his  old  note,  and 
the  assignor  thereof  is  released  from  lia- 
bility, the  debtor,  on  payment  of  the  new 
note,  cannot  recover  the  usury  brought 
forward  from  the  old  note  into  it,  but 
must  look  to  the  lender.  Taulbee  v.  Har- 
gis (Ky.)   1918A-762.  (Annotated.) 

5.     REMEDIES, 
a.     Availability  as  Defense. 

19.  Effect  of  Usury — Mandatory  Stat- 
ute. Tlie  usury  statute,  section  6070, 
N.  Dak.  Comp.  Laws  1913,  providing  that 
the  taking  of  usury  "shall  be  deemed  a 
forfeiture  of  the  entire  interest  which  the 
note,  bill,  or  other  evidence  of  debt  car- 
ries with  it  or  which  has  been  agreed  to 
be  oaid  thereon,"  mandatorily  requires  the 
penalizing  of  usury  and  the  forfeiture  of 


844 


DIGEST. 

1916C— 1918B. 


all  the  interest  "a^eed  to  be  T>aid"  on 
these  two  notes.  Person  v.  Mattson 
(N.  Dak.)   1918A-747. 

20.  Estoppel  to  Allege — Inducing  Trans- 
fer to  Bona  Fide  Purchaser.  Where  an 
innocent  purchaser  for  value  and  without 
notice  of  the  usury  in  a  note  has  been  in- 
duced to  purchase  it  by  the  obligor,  the 
obligor  is  estopped  to  set  up  a  claim  of 
usury  as  against  the  assignee,  either  be- 
fore or  after  he  executes  a  new  note  to 
the  assignee.  Taulbee  t.  Hargis  (Ky.) 
1918A-762. 


b.    Recovery  of  Payment. 

21.  Rights  Agiainst  Original  Creditor 
After  Assignment.  Ky.  St.  §  2219,  au- 
thorizinPT  the  recovery  of  usurious  interest 
from  the  lender,  where  it  has  been  paid  to 
the  assignee,  contemplates  the  existence 
of  transactions  in  which  it  is  not  recover- 
able against  the  assignee.  Taulbee  v. 
Hargis  (Ky.)  1918A-762. 

22.  Recovers  of  Usurious  Payments — 
Rights  Against  Original  Creditor  After 
Assignment.  Where  the  obligor  in  a  note 
tainted  with  usury  executes  a  new  note  to 
an  innocent  purchaser  for  value  and  with- 
out notice  and  thereby  discharges  the  old 
debt,  he  can  reclaim  the  usury  in  it  from 
the  lender  by  an  action  for  its  recovery. 
Taulbee  v.  Hargis  (Ky.)  1918A-762. 

c.     Equitable  Relief. 

23.  Relief  in  Equity  from  Penalty  for 
Usury.  A  court  of  equity  should  not  re- 
lieve the  usurer  from  the  results  of  his 
contract  for  usury,  but  should  enforce  the 
Statutory  penalty  for  exacting  usury. 
Person  v.  Mattson  (N.  Dak.)  1918A-747. 

d.     Recovery  of  Penalty. 

24.  National  Banks — Rate  of  Interest — 
Penalty  for  Taking  Usurious  Interest. 
Under  sections  5197  and  5198,  Revised 
Statutes  of  the  United  States  (5  Fed.  St. 
Ann.  130,  133),  a  national  bank  may 
charge  and  receive  on  a  loan  the  same 
rate  of  interest  allowed  to  be  charged  by 
the  laws  of  the  state  in  which  such  na- 
tional bank  is  located,  and,  when  such  na- 
tional bank  shall  knowingly  charge  and 
receive  a  greater  rate  than  that  prescribed 
by  the  laws  of  the  state  in  which  such 
bank  is  located,  the  person  by  whom  it  has 
been  paid,  or  his  legal  representative,  may 
recover  back,  in  an  action  in  tne  nature 
of  an  action  of  debt,  twice  the  amount  of 
interest  thus  paid,  provided  such  action  is 
commenced  within  two  years  from  the 
date  of  the  usurious  transaction.  Farm- 
ers' National  Bank  v.  McCoy  (Okla.) 
1916D-243. 


25.  Sufficiency  of  Petition.  In  an  action 
to  recover  the  amount  of  interest  paid  in 
an  usurious  transaction,  where  the  peti- 
tion states  facts  showing  the  date  of  the 
note,  by  whom  it  was  executed,  and  to 
whom  it  was  made  payable,  and  shows  the 
amount  of  interest  charged,  and  that  such 
interest  was  paid  and  when  paid,  by  whom 
it  was  paid,  and  to  whom  it  was  paid,  and 
shows  the  amount  of  interest  thus  paid  to 
have  been  in  excess  of  the  rate  allowed  by 
law  to  be  charged  and  received,  and  at- 
taches copy  of  the  note  to  the  petition 
and  makes  it  a  part  thereof,  and  further 
alleges  that  the  defendant  bank  "did  cor- 
ruptly, knowingly,  wrongfully,  and  ille- 
gally charge,  take,  and  receive  from  plain- 
tiff the  amount  of  interest  so  usuriously 
charged,"  it  states  facts  sufficient  to  con- 
stitute a  cause  of  action.  Farmers'  Na- 
tional Bank  v.  McCoy  (Okla.)  1916D-1243. 


UTTERING    FORQED    INSTRUMENTS. 
See  Forgery. 

VACANCY  CLAUSE. 

See  Fire  Insurance,  9-11. 

VACATION. 
Of  judgments,  see  Judgments,  30-42. 

VALUATION. 
For  taxation,  see  Taxation,  48-66. 
Under  Foreign  Corporation  Tax  Act,  see 


Taxation,  164-169. 


VALUE. 

Meaning,  see  Bills  and  Notes,  50. 

How  proved,  see  Evidence,  29-34. 

Opinion  evidence  as  to  value,  see  Evidence, 
71,  72. 

Representations  as  to  value,  see  Fraud,  5. 

Assets  of  firm  how  appraised,  see  Part- 
nership, 37,  38, 


VALUED  POLICIES. 
See  Fire  Insurance,  5,  37. 

VARIANCE. 

See  Indictments  and  Informations,  25;  Lar- 
ceny, 6-8;  Libel  and  Slander,  110,  HI; 
Negligence,  70,  71;  Pleadings,  88-102; 
Referees,  3. 

VEHICLES. 

Leaving  on  track,  see  Negligence,  54. 
Negligence  of  driver  imputed  to  occupant, 
see  Negligence,  55. 


VENDOR  AND  PURCHASER. 


845 


VENDOK  AND  PXTECHASEB. 

1.  Bequisites  and  Validity  of  Contract,  845. 

a.  Offer  and  Acceptance,  845. 

b.  Options,    845. 

c.  Description,  845. 

2.  Construction  of  Contract,  845. 

3.  Mutual  Eights  and  Liabilities  of  Par- 

ties, 845. 

a.  Estoppel  of  Purchaser  to  Deny  Ven- 

dor's Title,  845. 

b.  Rescission  of  Contract,  846. 

c.  Purchase  Price,  846. 

d.  Damages    for    Breach    by    Vendor, 

846. 

e.  Vendor's  Lien,  846. 

f.  Right  to  Recover  for  Improvements, 

847. 

4.  Rights  of  Bona  Fide  Purchaser,  847. 

5.  Building  Restrictions,  847. 

a.  Nature  and  Validity,  847. 

b.  Against  Whom  Enforceable,  847. 
See  Conversion  and  Reconversion;  Sales. 
Compensation  of  sale's  agent,  see  Agency, 

8. 

Sale  of  pond,  fish  unsold,  see  Flsli  and 
Game,  2. 

Fixtures  which  pass  to  vendee,  see  Fix- 
tures, 1-5. 

Effect  of  judgment  on  grantor  of  party, 
see  Judgments,  68,  69. 

Right  of  tenant  to  crops  as  against  vendee 
of  land,  see  Landlord  and  Tenant,  53. 

Loan  of  purchase  money,  see  Liens,  9. 

Priority  of  purchase-money  mortgage,  see 
Mortgages  and  Deeds  of  Trust,  14,  15. 

Rights  of  vendee  by  subrogation,  see  Mort- 
gages and  Deeds  of  Trust,  33,  36. 

Injunction  to  prevent  dispossession  of 
vendee,  see  Parties  to  Actions,  10. 

Tax  lien  on  easements  as  encumbrances, 
see  Taxation,  89. 

Tax  sales,  see  Taxation,  111-115. 

1.     REQUISITES    AXD    VALIDITY    OP 

CONTRACT. 

a.     Offer  and   Acceptance. 

1.  Withdrawal  of  Offer.  An  offer .  to 
convey  realty  until  accepted  is  subject  to 
withdrawal  without  prejudice  to  the  party 
making  it,  and  where  the  alleged  purchaser 
knows  nothing  of  the  offer  there  is  no 
prejudice  in  its  withdrawal,  and  the  ven- 
dor is  not  under  obligation  to  renew  the 
offer.  Brown  v.  Farmers',  etc.  National 
Bank  (Ore.)   1917B-1041. 

b.     Options. 

2.  Definition,  An  "option"  is  a  unilat- 
eral agreement  binding  upon  the  optioner 

■from  the  date  of  its  execution,  but -it  does 
not  become  a  contract  inter  partes,  in  the 
.sense   of  an   absolute   contract  to   convey 
■  and   purchase   until   exercised   bv   the    op- 
tionee.    Barton  v.  Thaw  (Pa.)  1916D-570. 

3.  Acceptance.  An  option  to  purchase 
real  estate  is  made  a  contract  mutual  and 
binding  on  the  parties  by  a  tender  of  the 
money  agreed  on  within  the  time  limited. 
Agar  V.  Streeter  (Mich.)  1916E-518. 


4.  Mutuality  of  Contract  —  Conditional 
Option  to  Rescind.  A  contract  for  the  pur- 
chase of  land,  providing  that,  unless  a  road 
running  through  the  land  should  be  closed 
within  a  week,  the  purchaser  should  be  "in 
no  way  obliged,"  is  not  lacking  in  the 
mutuality  essential  to  the  right  to  enforce 
specific  performance,  though  it  gives  the 
purchaser  the  option  to  rescind  if  the  road 
was  not  closed,  or  to  waive  the  condition, 
at  least  not  from  the  time  waiver  was  an- 
nounced by  the  purchaser,  since  from  that 
time  the  remedy  was  mutual.  Catholic 
Foreign  Mission  Soc.  v.  Oussani  (N.  Y.) 
1917A-479. 

c.     Description. 

5.  Description  of  Property.  A  contract 
whereby  defendant  sold  to  plaintiff  1,760 
acres  of  land,  known  as  the  "Williams 
ranch,  in  Washington  county,  Colorado," 
known  as  state  school  land,  and  whereby 
plaintiff  sold  an  eighty-acre  tract  located 
one  and  one-half  miles  west  of  Ft.  Morgan, 
a  tract  located  half  a  mile  south  of  Ft. 
Morgan,  and  several  lots  in  Ft.  Morgan,  is 
not  void  upon  its  face  because  of  the  de- 
fective description  of  the  property,  Dren- 
nen  v.  Williams  (Colo.)  1917A-e64. 

2.    CONSTRUCTION  OP  CONTRACT. 

6.  Default  in  the  payment  of  any  instal- 
ment of  the  price  called  for  in  a  contract 
of  sale  of  real  estate  is  a  distinct  breach, 
and  gives  the  vendor  a  right  to  declare  a 
forfeiture,  as  stipulated  for  in  the  con- 
tract; but  the  right  must  be  promptly 
exercised,  or  the  vendor  will  be  presumed 
to  treat  the  contract  as  valid.  Suburban 
Homes  Co.  v.  North  (Mont.)  1917C-81. 

7.  Waiver  of  Forfeiture.  Where  a  con- 
tract for  the  purchase  of  realty  entitles 
the  purchaser  to  waive  a  condition  of  the 
contract  with  which  the  vendor  failed  to 
comply,  it  is  not  essential  to  the  effective- 
ness of  such  waiver,  when  made  by  the 
purchaser,  that  it  be  approved  by  the 
vendor.  Catholic  Foreign  Mission  Soc.  t. 
Oussani   (N,  Y.)   1917A-479. 

3.     MUTUAL     RIGHTS     AND    LIABIL- 
ITIES OF  PARTIES. 

a.     Estoppel  of   Purchaser  to  Deny  Ven- 
dor's Title. 

8.  Where  an  owner  of  land  filed  a  map 
describing  a  strip  thereof  as  a  street,  and 
sold  lots  abutting  on  such  street,  and  the 
successor  in  title  of  a  purchaser  of  such 
lots  who  was  in  possession  thereof  only 
through  tenants  permitted  the  successor  in 
title  of  the  original  owner  to  erect  valu- 
able improvements  on  the  strip  of  land 
described  in  the  recorded  map  as  a  street, 
the  successor  in  title  of  the  buyer  is  not 
estopped  to  claim  a  right  of  way  over  the 
strip,  she  having  no  notice  of  the  erection 
of  the  improvements,  save  through  her  ten- 


846 


DIGEST. 

1916C— 1918B. 


ants,  being  a  resident  of  a  foreign  state, 
since  there  is  no  principle  of  law  charging 
a  landlord  with  the  knowledge  of  his  ten- 
ants in  sach  case,  while,  had  knowledge  of 
the  erection  of  the  buildings  been  imput- 
able to  her,  she  could  not  have  forfeited 
her  rights  by  failing  to  protest  against  the 
erection  of  the  improvements,  since  her 
own  rights  depended  on  matters  of  record, 
equally  open  both  to  her  and  the  party 
pleading  an  estoppel,  which  cannot  exist 
where  the  knowledge  of  both  parties  is 
equal,  and  nothing  is  done  by  one  to  mis- 
lead the  other.  Eltinge  v.  Santos  (Cal.) 
1917A-1143. 

b.     Bescission  of  Contract. 

9.  A  vendor  who  grants  time  to  th«  pur- 
chaser to  pay  instalments  of  the  price, 
though  the  contract  makes  time  of  the 
essence  and  stipulates  for  a  forfeiture  for 
non-payment  of  any  instalment  at  matur- 
ity,  may,  on  the  default  continuing,  de- 
mand payment  of  the  balance  of  the  price, 
and  give  notice  of  his  purpose  to  terminate 
the  contract  in  the  event  of  further  de- 
fault; and  where  the  purchaser  after  such 
notice  does  not  pay  within  a  reasonable 
time,  the  vendor  may  terminate  the  con- 
tract. Suburban  Homes  Co.  v.  North 
(Mont.)   1917C-81. 

10.  Bight  to  Besclnd — Time  as  Essence 
of  Contract — Waiver  of  Delay.  A  stipu- 
lation in  a  contract  of  sale  of  real  estate 
making  time  of  the  essence,  and  reserving 
an  option  to  the  vendor  to  terminate  the 
contract  for  the  failure  of  the  purchaser 
to  pay  any  required  instalments  of  the 
price,  may  be  waived  by  the  vendor.  Su- 
burban Homes  Co.  v.  North  (Mont.)  1917C- 
81. 

11.  Necessity  of  Eetuming  Considerar 
tion.  Purchasers  of  mining  property,  the 
title  to  a  part  of  which  failed  or  proved 
defective,  who  took  possession,  cannot, 
while  retaining  the  whole  property,  resist 
payment  of  the  purchase  price.  Carter  v. 
Butler  (Mo.)  1917A-483. 

12.  Tender  of  Consideration  —  Partial 
Rescission.  A  grantor  conveying  two  par- 
cels of  real  estate  may  recover  one  of  the 
parcels  without  tendering  the  considera- 
tion paid  him  for  the  other  parcel.  An- 
heier  v.  De  Long  (Ky.)  1917A-1239. 

13.  Slight  Deficiency  in  Quantity.  In  an 
action  to  recover  payments  under  a  con- 
tract for  the  purchase  of  a  house  and  lot 
which  the  purchaser  had  attempted  to  re- 
scind, where  it  appeared  that  the  contract 
covered  the  land  up  to  a  line  a  short  dis- 
tance west  of  two  large  shade  trees,  but 
that  the  vendor  had  conveyed  land  west 
of  that  in  question  and  made  the  center 
of  the  trees  the  boundary  line,  and,  while 
the  width  and  length  of  the  strip  involved 
did  not  appear,  it  appeared  that  it  had 
some  value,  it  is  a  question  for  the  jury 


whether  the  shortage  is  too  inconsequen- 
tial to  justify  a  rescission.  Brown  T. 
Aitken  (Vt.)  1916D-1152.        (Annotated.) 

e.     Purchase  Price. 

14.  Action  for  Price — Proof  of  Delivery 
of  Possession.  In  an  action  on  a  note, 
which  the  answer  admitted  was  given  in 
consideration  of  the  transfer  to  defend- 
ants of  certain  mining  property,  with  a 
warranty  of  title,  the  burden  is  on  de- 
fendants to  show  that  possession  of  the 
property  had  not  been  delivered,  or  that 
they  had  been  deprived  of  a  part  thereof 
on  account  of  a  failure  or  defect  of  title, 
since  the  note  imports  a  consideration 
throwing  the  burden  upon  defendants  to 
prove  affirmatively  that  it  was  lacking  or 
had  failed,  while  the  word  "transfer"  im- 
plies a  delivery  of  possession.  Carter  T. 
Butler  (Mo.)   1917A-483. 

d.     Damages  for  Breach  by  "Vendor. 

15.  Vendor  and  Purchaser  —  Breach  of 
Contract — Inability  to  Make  Title — Meas- 
ure of  Damages.  A  vendor  who,  without 
fault  on  his  part,  is  unable  to  make  title 
is  not  liable  in  damagee  to  the  vendee  for 
the  loss  of  his  bargain  though  the  contract 
to  sell  is  part  of  a  lease  to  the  vendee 
■which  binds  him  to  make  extensive  im- 
provements. Ontario  Asphalt  Block  Co.  ▼. 
Montreuil  (Can.)  1917B-852.   (Annotated.) 

Noto. 
Measure  of  damages  for  breach  of  con- 
tract to  sell  land  due  to  vendor's  inability 
to  make  title.     1917B-«58. 

•.     Vendor's  Lien. 

16.  Conveyance  in  Consideration  of 
Puture  Support.  A  recital  that  grantees 
"agree  to  care  for  and  support"  grantors 
"with  money  and  other  necessaries  for 
their  support  their  natural  life,"  though 
such  agreement  was  the  sole  consideration 
for  the  grant,  will  not  alone  create  a  lien 
or  charge  on  the  land  conveyed.  To  oper- 
ate as  such,  an  intent  to  impose  such 
burden  must  definitely  appear,  or  be  di- 
rectly inferable  from  the  grant  when  prop- 
erly construed.  Grant  v.  Swank  (W.  Va.) 
1917C-256.  (Annotated.) 

17.  Implied  Vendor's  Lien — Priority  as 
Against  Judgment.  In  this  state  the 
vendor's  implied  lien  is  a  mere  capacity 
in  the  vendor  to  acquire  a  lien  by  filing 
a  bill  to  fix  and  enforce  his  claim  on  the 
land,  and,  until  he  does  this,  any  creditor 
of  the  grantee  may  attach  or  cause  exe- 
cution to  be  levied  on  the  land  and  prevail 
upon  the  lien  thereof  over  the  vendor. 
Hood  V.  Hogue  (Tenn.)  1916D-383. 

(Annotated.) 

18.  Where  a  deed  retains  no  lien  for  the 
purchase  price,  the  vendor,  upon  a  subse- 


VENDOR  AND  PURCHASER. 


847 


quent  reconveyance  to  him  in  satisfaction 
of  the  unpaid  balance  of  the  purchase 
price,  does  not  stand  in  the  same  position 
as  though  he  had  brought  a  suit  for  the 
enforcement  of  his  implied  lien,  and,  until 
his  deed  is  registered,  a  creditor,  by  levy- 
ing upon  the  land  under  an  execution  on  a 
judgment  against  the  vendee,  can  acquire 
rights  superior  to  the  vendor.  Hood  v. 
Hogue  (Tenn.)  1916D-383.       (Annotated.) 

19.  Nature  and  Origin.  In  E'nglish  and 
American  law  a  vendor's  lien  is  excep- 
tional in  character,  and  is  an  importation 
from  the  civil  law,  which  found  its  recog- 
nition through  courts  of  chancery,  on  the 
equitable  principle  that  the  person  who 
had  secured  the  estate  of  another  ought 
not  in  conscience  to  be  allowed  to  keep 
it  and  not  pay  full  consideration  money, 
and  that  to  enforce  that  payment  it  was 
just  that  the  vendor  should  have  a  lien 
upon  the  property.  Martin  v.  Becker 
(Cal.)  1916I>-171. 

Notes. 

Priority  as  between  implied  vendor's 
lien  and  judgment  against  purchaser. 
1916D-384. 

Existence  of  implied  vendor's  lien  where 
consideration  for  conveyance  is  agreement 
to  suppo-rt  vendor  for  life.     1917G-388. 

f.    Right  to  Recover  for  ImproTementa. 

20.  In  the  absence  of  a  provision  in  a 
contract  of  sale  fixing  a  different  measure 
of  compensation  for  improvements  by  the 
purchaser,  the  amount  recoverable  for  im- 
provements is  the  enhanced  value  of  the 
property,  not  exceeding  the  cost  of  the 
improvements,  less  the  fair  rental  value 
of  the  premises  recovered  by  the  vendor 
forfeiting  the  contract  for  the  purchaser's 
failure  to  pay  required  instalments;  and 
in  the  absence  of  any  evidence  of  the  value 
of  improvements,  or  of  any  enhanced  value 
of  the  property,  the  court  cannot  ayvard 
any  relief,  to  the  purchaser  for  improve- 
ments. Suburban  Homes  Co.  v.  North 
(Mont.)   1917C-81.  (Annotated.) 

Note. 
Right    of     defaulting    purchaser    under 
contract  for  sale  of  land  to  reimbursement 
for  improvements.     1917C-85. 

4.     RIGHTS     OP     BOXA     FIDE     PUR- 
CHASER. 

21.  CJonsideration  —  Pre-existing     DeTrt. 

The  surrender  and  satisfaction  of  an  ex- 
isting debt,  if  done  bona  fide,  operates  as 
a  present  consideration;  and,  if  one  who 
obtained  a  title  by  fraud  conveys  it  to  a 
third  person  in  extinguishment  and  dis- 
charge of  a  pre-existing  debt,  the  latter 
will  stand  as  a  "purchaser  for  value."  The 
questions  of  bona  fides  and  notice  are  open 
to  consideration  as  in  other  cases  of  pur- 
chase from  one  alleged  to  have  procured 
title  by  fraud. 


(a)  This  does  not  conflict  with  the  pre- 
vious rulings  of  this  court,  that,  if  the 
title  to  property  has  been  procured  from 
a  person  by  fraud,  the  right  of  the  seller 
to  rescind  the  sale  is  superior  to  the  right 
of  a  mortgagee  who  receives  from  the  per- 
son committing  the  fraud  a  mortgage  ae 
security  for  an  antecedent  debt,  without 
more.     Sutton  v.  Ford  (Ga.)  1918A-106. 

(Annotated.) 
Note. 

Person  taking  conveyance  of  realty  in 
payment  of  pre-existing  debt  as  purchaser 
for  value.     1918A-H2. 

5.     BUILDING  EISTRICTIONS. 
a.     Nature  and  Validity. 

22.  Validity.  Restrictive  building  cove- 
nants are  not  invalid  as  against  public  pol- 
icy. Flynn  v.  New  York,  etc  R.  Co  (N. 
Y.)  19183-^88. 

23.  Effect  of  Restriction  —  Subsequent 
Purchaser.  Restrictive  building  covenants 
are  valid  and  enforceable  in  law  and  in 
equity,  and  all  the  lota  covered  thereby  are 
subject  to  an  incumbrance,  requiring  oc- 
cupation in  accordance  therewith,  binding 
vpon  every  subsequent  purchaser  having 
notice  of  the  plan,  even  though  his  legal 
title  is  unrestricted.  Flynn  v.  New  York. 
etc.  R.  Co.  (N.  Y.)  1918B-588. 

b.    Against  Whom  Enforceable. 

24.  Enforcement  Against  Subpurcliasei. 
A  restrictive  covenant  which  does  not  run 
with  the  land  will  not  be  enforced  in 
equity  against  a  purchaser  from  the  cove- 
nantor, though  he  bought  with  notice  of 
the  covenant,  if  the  covenantee  owns  no 
land  adjoining  that  to  which  the  covenant 
relates.  London  County  Council  v.  Allen 
(Eng.)  1916C-932.  (Annotated.) 

25.  The  owner  of  a  tract  of  land  laid  it 
out  on  a  map  in  lots  fronting  on  streets, 
and,  as  an  inducement  to  purchasers,  sold 
them  by  deeds,  covenanting  that  no  build- 
ing or  structure  for  any  business  purpose 
whatsoever  should  be  erected  on  the  prem- 
ises. Defendant  railroad  purchased  lots 
running  across  the  entire  southern  part  of 
the  tract  subject  to  such  restrictions  oppo- 
site the  lots  of  one  of  the  plaintiffs  and 
adjacent  to  the  premises  of  the  other,  and 
built  its  railway  across  such  lands  partly 
on  an  embankment  and  partly  in  an  open 
cut,  and  operated  on  its  track  many  fast 
electric  trains  daily.  It  is  held,  in  an 
action  to  restrain  the  maintenance  of  such 
structure  and  the  operation  of  the  road, 
that  defendant  had  violated  the  covenant, 
and  that  plaintiffs  were  entitled  to  dam- 
ages, a  "building  or  structure"  being  in 
the  widest  sense  anything  constructed  that 
is  erected  by  art  and  fixed  upon  or  in  the 
soil  composed  of  different  pieces  connected 
together  and  designed  for  permanent  use 
in  the  position  in  which  it  is  so  fixed,  and 


648 


DIGEST. 

1916C— 1918B. 


to  "erect,"  meaning  not  only  to  raise,  but 
also  to  build  or  construct.  Flynn  v.  New 
York,  etc.  K.  Co.  (N.  Y.)  1918B-588. 

(Annotated.) 

26.  In  such  case,  the  plaintiffs'  right  is 
measured  by  the  depreciatioli  in  the  value 
of  their  land,  including  such  depreciation 
as  will  be  sustained  by  reason  of  the  use 
to  which  the  defendant  puts  its  property; 
the  difference  in  value  between  their  land 
with  and  without  the  railroad.  Flynn  v. 
New  York,  etc.  E.  Co.  (N.  Y.)  1918B-388. 

(Annotated.) 
Note. 

Enforcement  in  equity  against  subpur- 
chaser of  restrictive  covenant  not  running 
with  land,  where  covenantee  has  no  inter- 
est in  adjoining  land.     191&C-942. 

VENDOR'S  UEN. 

See  Sales,  49;  Vendor  and  Purchaser,  16- 
19. 

VENUE. 

1.  Transitory  Actions. 

2.  Change  of  Venue. 

a.  Grounds. 

b.  Procedure. 

(1)  Jurisdiction. 

(2)  Affidavits. 

(3)  Determination  of  Motion, 

(4)  Appeal. 

(5)  Withdrawal    of    Application. 

Comment  on  change,  eee  Argument  and 
Conduct  Qf  Counsel,  28. 

Stockholder's  suit,  see  Corporations,  138. 

Change  in  divorce  suit,  see  Divorce,  7. 

Of  bill  of  review,  see  Equity,  37. 

Aetion  in  wrong  county  as  ground  for  va- 
cating judgment,  see  Judgments,  39. 

Of  motion  to  vacate  judgment,  see  Judg- 
ments, 40. 

Sufficient  on  margin  of  complaint,  see 
Pleading,  4i/^. 

1.     TRANSITORY  ACTIONS. 

1.  Transitory  Causes  of  Action.  Tran- 
sitory causes  of  action  are  enforceable 
wherever  a  defendant  may  be  found.  Bag- 
don  V.  Philadelphia,  etc.  Coal,  etc.  Co. 
(N.  Y.)  1918A-3S9. 

2.  Residence  of  Plaintiff — ^Distinction 
Betwpen  Residence  and  Place  of  Business. 

Mass.  Rev.  Laws,  c.  167,  §  6,  as  amended 
by  St.  1904,  c.  320,  provides  that  an  ac- 
tion to  recover  for  injury  received  by  rea- 
son of  negligence  shall  be  brought  in  the 
county  in  which  the  plaintiff  lives  or  has 
his  usual  place  of  business,  or  in  the  county 
in  which  the  injury  was  received.  Such 
an  injury  was  received  by  plaintiff's  intes- 
tate in  Essex  county,  the  plaintiff  lived 
in  Norfolk  county,  and  was  employed  as 
assistant  manager  of  a  department  store  in 
Suffolk  county,  and  the  action  was  brought 
in   Suffolk    county.     It   is  held    that   the 


venue  was  improperly  laid,  it  being  a  rule 
in  the  interpretation  of  statutes  that  where 
reasonably  possible  full  effect  should  be 
given  all  the  words  used,  while  "usual 
place  of  business"  as  used  in  St.  1854,  c. 
322,  first  permitting  transitory  actions  to 
be  brought  in  the  county  where  either 
party  had  such  place  of  business,  had  a 
more  restricted  signification  than  the  words 
"in  which  he  principally  transacts  his  busi 
ness  or  follows  his  trade  or  calling,"  used 
in  St.  1856,  c.  70,  providing  that  where 
the  plaintiff  in  a  transitory  action  was  a 
non-resident,  the  action  might  be  brought 
in  the  county,  in  which  the  defendant  lived 
or  principally  transacted  his  business  or 
followed  his  trade  or  calling  if  he  resided 
in  the  commonwealth,  the  language  of  Rev. 
Laws,  c.  167,  §  6,  as  amended,  being  taken 
from  the  earlier  act,  or  that  a  "usual  place 
of  business"  does  not  include  where  one 
pursues  a  "trade  or  calling,"  the  work  of 
the  plaintiff,  as  a  department  store  man- 
ager, being  a  "trade  or  calling"  or  employ- 
ment by  another,  as  distinguished  from 
working  for  oneself.  Hanley  v.  Eastern 
Steamship  Corporation  (Mass.)  1917D- 
1034. 

2.     CHANOE  OF  VENUE. 

a.     Grounds. 

3.  In  order  to  justify  a  change  of  venue 
on  account  of  the  excitement  of  public 
prejudice,  it  must  be  shown  that  such  ex- 
citement or  public  prejudice  is  such  that 
its  natural  tendency  will  be  to  intimidate 
or  swerve  the  jury,  and  as  the  court  in 
which  the  case  is  pending  can  much  better 
determine  the  propriety  of  a  postponement 
on  this  ground  than  the  appellate  court  it 
requires  a  very  strong  showing  to  induce 
the  upper  court  to  interfere.  State  ▼. 
Gordon  (N.  Dak.)  1918A-442. 

4.  Newspaper    Publication.     Proof   that 

prejudice  exists,  or  that  a  derogatory  arti- 
cle has  been  published  in  one  of  the  cities 
of  a  county,  is  not  proof  that  a  fair  trial 
cannot  be  had  in  the  county  at  large,  or 
that  such  county  as  a  whole  is  prejudiced, 
and  is  not  therefore  sufficient  to  entitle 
one  to  a  change  of  venue.  State  v.  Gordon 
qN.  Dak.)  1918A-442. 

Note. 
Application     for     change    of    judge    or 
venue  on  ground  of  bias  of  judge  as  oust- 
ing judge  of  jurisdiction.     1916D-1281. 

b.    Procedure. 
(1)     Jurisdiction.       • 

5.  Bias  of  Justice  of  Peace — Application 
for  Change  as  Ousting  Justices  of  Juris- 
diction. Under  Utah  Comp.  Laws  1907, 
§  5132,  relative  to  criminal  cases  before- 
justices,  providing  that,  where  a  defendant 
files  an  affidavit  that  he  cannot  have  a  fair 
trial  before  the  justice,  because  of  his  bias 
or  prejudice,  the  case  must  be  transferred 


VERDICTS. 


849 


to  another  justice,  the  filing  of  a  suffi- 
cient affidavit  does  not  deprive  the  justice 
of  jurisdiction,  but  his  refusal  of  the 
change  and  proceeding  with  the  trial  is 
only  error;  so  that,  on  appeal,  the  district 
court  has  jurisdiction,  and,  under  sectioua 
5165,  5167,  should  try  the  case  de  novo. 
State  V,  Morgan  (Utah)  1916D-1278. 

(Annotated.) 

(2)     Affidavits. 

6.  Affidavits — Effect  of  Failure  to  Con- 
tradict. In  the  absence  of  counter  affi- 
davits, the  contents  of  the  affidavits  filed 
in  support  of  a  motion  for  a  change  of 
venue  must  be  taken  by  the  court  on  ap- 
peal as  admitted.  Eugenstein  v.  Otten- 
heimer  (Ore.)  1917E-953. 

(3)     Determination  of  Motion. 

7.  Habeas  Corpus — Discretion  of  Court. 
Iowa  Code  1897,  §  3494,  regulating  the 
place  of  bringing  actions,  provides  that 
actions  against  a  public  officer  for  an  act 
done  in  virtue  of  his  office  must  be  brought 
in  the  county  where  the  cause  or  somo'part 
thereof  arose.  Section  3504  provides  that, 
if  an  action  is  brought  in  the  wrong 
county,  it  may  be  prosecuted  to  termina- 
tion, unless  the  defendant,  before  answer, 
demands  change  of  venue  to  the  proper 
county.  Section  4420  provides  that  appli- 
cation for  habeas  corpus  must  be  made  to 
the  court  or  judge  most  convenient  in 
point  of  distance  to  the  applicant,  and 
the  most  remote  court  or  judge,  if  applied 
to,  may  refuse  the  writ,  unless  a  suflELcient 
reason  be  stated  for  not  making  the  appli- 
cation to  the  more  convenient  judge.  A 
patient  confined  in  a  state  hospital  for 
female  inebriates  applied  for  habeas  cor- 
pus to  the  judge  of  a  district  court  for  a 
remote  county,  alleging  that  upon  hearing 
in  such  county  she  could  produce  her  wit- 
nesses most  conveniently.  The  superin- 
tendent of  the  hospital  to  whom  the  writ 
issued  applied  for  change  of  venue  to  the 
county  in  which  the  hospital  was  situated, 
alleging  that  the  entire  detention  by  him 
had  been  in  such  county.  It  is  held  that 
denial  of  such  change  of  venue  was  proper, 
since  the  judge  to  whom  application  was 
made,  though  having  the  right  to  refuse 
the  writ,  was  not  under  obligation  to  do 
SO;  there  being  invested  in  him  by  sec- 
tion 4420  a  judicial  discretion,  in  the  exer- 
cise of  which  an  error  of  judgment  on  his 
part  as  to  the  existence  of  conditions  mili- 
tating against  the  propriety  of  hearing  the 
writ  would  not  deprive  him  of  his  right 
to  do  80.  Addis  v.  Applegate  (Iowa) 
1917E-332. 

(4)     Appeal. 

8.  Denial  of  Change — Prejudice  of  Judge 
— Effect  of  Impartial  Trial  of  Case.  Where 
before  the  trial  of  a  cause  the  judge 
makes  statements  amounting  to  a  prejudg- 
ment of  the  case  in  favor  of  the  plaintiff. 
the  defendant  is  entitled  to  a  change  of 

54 


venue,  and  for  the  error  in  refusing  to 
grant  the  change,  the  judgment  will  be 
reversed  on  appeal,  though  the  record 
fails  to  disclose  any  prejudice  in  the  trial. 
Eugenstein  v.  Ottenheimer  (Ore.)  1&17E- 
953.  (Annotated.) 

(5)     Withdrawal  of  Application. 

9.  Withdrawal  of  Application  Aiter 
Granting  Thereof  —  Transfer  of  Papers. 
Where  in  a  criminal  case  an  application 
for  a  change  of  venue  was  made  under  the 
Ga.  Act  of  1911  (Acts  1911,  p.  74),  on 
the  ground  that  there  was  a  probability 
or  danger  of  violence  to  the  defendant, 
and  a  judgment  refusing  such  change  was 
brought  to  the  court  and  reversed,  and 
the  change  accordingly  granted,  the  ac- 
cused could  not  then  withdraw  his  appli- 
cation, object  to  being  tried  in  the  county 
to  which  the  change  had  been  made,  and 
demand  a  trial  in  the  county  where  the 
indictment  had  been  found. 

(a)  W%ere  a  person  accused  of  crime 
applied  for  a  change  of  venue  under  the 
act  above  mentioned,  which  was  denied, 
and  he  excepted  and  obtained  a  reversal 
of  the  judgment;  and  where,  on  the  return 
of  the  remittitur,  the  judgment  of  the  su- 
preme court  was  made  the  judgment  of 
the  superior  court,  and  a  county  was 
named  in  the  order  as  the  place  tor  the 
trial,  and  the  clerk  of  the  superior  court 
of  the  county  where  the  case  was  then 
pending  was  directed,  in  terms  of  the  stat- 
ute, to  transmit  the  papers  to  the  county 
so  selected,  this  was  in  substance  a  judg- 
ment changing  the  venue,  although  it  was 
not  expressly  so  stated. 

(b)  Where  in  a  criminal  case  a  change 
of  venue  is  granted,  a  certified  copy  of  the 
order  for  that  purpose  is  required  to  be 
transmitted  to  the  clerk  of  the  superior 
court  of  the  county  to  which  the  change 
is  made;  but  the  original  indictment  and 
other  papers  in  the  case  are  required  to  be 
sent  to  that  county.  Graham  v.  State 
(Ga.)    1917A-595. 

VBBDICTS. 

1.  Severance  in  Verdict.  850. 

2.  Validity  of  Verdict,  850. 

a.  In  General,  850. 

b.  Formal  Validity,  850. 

3.  Judgment  on  Verdict,  850. 

4.  Correction  of  General  Verdict,  85L 

5.  Impeachment  of  Verdict,  851. 

6.  Directing  Verdict,  851. 

a.  In  General,  851. 

b.  Power  of  Court,  851. 

c.  Direction  of  Conviction,  852. 

d.  Form  of  Motion,  So2. 

e.  Presumption  Against  Motion,  852. 

f.  Effect  of  Motion  by  Both  Parties, 

852. 

g.  Questions  Baised,  852. 
h.  Order  of  Court,  852. 

See  Damages,  26-55;  Homicide,  73 j  Negli- 
gence, 122,  123. 


850 


DIGEST. 

1916C— 1918B. 


Conclasiveness  on  appeal,  see  Appeal  and 
Error,  106,  115-135. 

In  criminal  cases,  see  Appeal  and  Error, 
133-135. 

Direction  of  verdict,  review,  see  Appeal 
and  Error,  155. 

Presumptions  on  appeal,  see  Appeal  and 
Error,  199,  200. 

Beading  newspapers  as  ground  for  re- 
versal, see  Appeal  and  Error,  208. 

erroneous  exclusion  of  evidence  cured  by 
verdict,  see  Appeal  and  Error,  273. 

Necessity  of  exception,  see  Appeal  and 
Error,  38&. 

Directed  verdict  on  note,  see  Bills  and 
Notes,   95. 

Judgment  non  obstante,  see  Judgments, 
18-20. 

As  res  adjudicata,  see  Judgments,  67. 

In  proceedings  under  Employers'  Liability 
Act,  see  Master  and  Servant,  95-97. 

Of  coroner's  jury,  admissibility  in  pro- 
ceedings under  Workmen's  Compensa- 
tion Act,  see  Master  and  Servant,  2S». 

In  proceedings  under  Workmen's  Compen- 
sation Acts,  see  Master  and  Servant, 
362,  363. 

Ko  direction  of  verdict  for  nonjoinder  of 
party,  see  Parties  to  Actions,  11. 

1.     SEVERANCE  IN  VERDICT. 

1.  Special  Verdict  —  Bnle  in  Federal 
Courts.  A  federal  court  may  refuse  to  re- 
quire a  jury,  in  addition  to  a  general  ver- 
dict, to  answer  special  questions  at  the 
request  of  a  party.  Parsons  v.  Trow- 
bridge (Fed.)  1917C-750. 

2.    VALIDITY  OF  VERDICT, 
a.    In   General. 

2.  Quotient  Verdict.  A  verdict,  in  an 
action  for  conversion  of  a  horse,  is  not 
invalid  as  a  quotient  verdict,  if  the  result 
obtained  is  merely  used  as  a  basis  for  fur- 
ther discussion  as  to  what  was  the  reason- 
able value  of  the  horse,  though  a  verdict 
is  rendered  for  that  amount.  Sales  v. 
Maupin  (S.  Dak.)   1917C-1222. 

(Annotated.) 

3.  Where  a  jury  determine  the  value  of 
a  horse  by  dividing  the  whole  amount 
eacli  juror  believes  is  the  value  by  12,  the 
finding  of  the  court  on  conflicting  affi- 
davits of  jurors  that  the  result  obtained 
was  merely  used  as  a  basis  for  further  dis- 
cussion, and  hence  not  a  quotient  verdict, 
will  not  be  disturbed  on  appeal.  Sales  v. 
Maupin  (S.  Dak.)  1917C-1222. 

(Annotated.) 

4.  A  "quotient  verdict,"  reached  by  the 
jurors  adding  their  several  amounts  of  re- 
covery and  dividing  the  sum  by  their  num- 
ber, is  illegal.  Spain  v.  Oregon- Washing- 
ton R.  etc.  Co.  (Ore.)  1917E-1104. 

5.  Verdict  by  Less  Than  Whole  Number 
— Construction    of   Statute  —  Actions   In- 


cluded. Under  Ariz.  Civ.  Code  1901,  par. 
1413,  providing  that  in  civil  cases,  except 
those  cognizable  at  common  law,  9  of  the  12 
jurors  may  return  a  verdict,  in  an  action 
by  the  state  for  the  penalty  under  Laws 
1912,  c.  50,  forbidding  any  electric  light 
or  power  concern  to  work  the  employees  in 
its  plant  more  than  8  hours  in  each  24,  a 
verdict  by  9  jurors  is  bad,  the  suit  being 
one  cognizable  at  common  law.  Miami 
Copper  Co.  v.  State  (Ariz.)  1916E-494. 

(Annotated.) 

6.  Although  action  is  begun,  and  issue 
joined,  before  the  adoption  of  a  law  au- 
thorizing nine  jurors  in  a  civil  case  to  ren- 
der a  verdict,  such  verdict  is  valid,  since 
there  is  no  vested  right  in  the  modes  of 
procedure.  Miami  Copper  Co.  r.  State 
(Ariz.)  1916E-494.  (Annotated.) 

7.  Verdict  Sustained.  There  is  nothing 
in  this  case  to  indicate  that  the  verdict 
was  given  under  mistake,  or  the  influence 
of  passion  or  prejudice,  nor  that  the  ver- 
dict and  judgment  are  contrary  to  the  evi- 
dence. Stewart  v.  Murphy  (Kan.)  1917C- 
612. 

Notes. 
Validity   and   construction   of   constitu- 
tional  or   statutory   provision  for   verdict 
by    less    than    whole    number    of    jurors. 
1916E-500. 

Validity  of  chance  or  quotient  verdict. 
1917C-1224. 

b.     Formal  Validity. 

8.  Sufllciency — Conviction  of  Embezzle- 
ment. A  verdict  of  "guilty  of  embezzle- 
ment as  charged  in  the  information"  is 
sufficient  in  a  prosecution  for  having  com- 
mitted the  crime  of  embezzlement  con- 
demned by  section  9205,  N.  Dak.  Rev. 
Codes  1905,  in  the  different  manners  de- 
scribed in  said  section.  Such  a  verdict  is 
a  general  verdict  and  has  the  same  effect 
as  the  verdict  of  "guilty"  provided  for  in 
section  10044,  Rev.  Codes  1905.  State  v. 
Bickford  (N.  Dak.)  1916D-140. 

9.  Verdict  Sufacient — Guilty  as  Charged 
in  Information.  Where  an  information 
only  charged  the  offense  of  assault  with 
intent  to  kill  with  malice,  a  verdict  find- 
ing accused  guilty  as  charged  is  sufficient. 
State  V.  Gould   (Mo.)  1916E-855. 

3.     JUDGMENT  ON  VERDICT. 

10.  It  is  not  sufficient  to  warrant  such 
judgment  that  the  evidence  was  such  that 
the  trial  court  ought  to  have  granted 
either  a  motion  for  a  directed  verdict  or 
a  new  trial  on  the  ground  of  insufficiency 
of  the  evidence  to  sustain  the  verdict,  but 
it  must  also  appear  that  there  is  no  rea- 
sonable probability  that  the  defects  in  or 
objections  to  the  proof  necessary  to  sud- 
port  the  verdict  may  be  remedied  upon  an- 
other trial.  First  State  Bank  v.  Kelly 
(N.  Dak.)  1917D-1044. 


VERDICTS. 


851 


4.     CORRECTION   OF   GENERAL  VER- 
DICT. 

11.  Reassembling  Jury.  After  the  jury 
had  been  discharged  in  the  afternoon  with 
the  consent  of  counsel,  the  court  instructed 
them  that  if  they  should  agree  upon  a 
verdict  after  the  court  took  a  recess  for 
the  day,  it  could  be  written  and  signed 
by  the  foreman,  and  kept  by  him,  and  the 
jury  could  return  it  into  court  the  next 
morning.  When  the  court  assembled  the 
next  morning,  all  of  the  jury  being  pres- 
ent, a  verdict  was  returned  in  the  follow- 
ing form:  "We,  the  jury,  find  in  favor  of 
the  plaintiff,  with  seven  per  cent  interest, 
less  expense,"  signed  by  the  foreman.  The 
court  directed  them  to  return  to  their 
room  and  correct  their  verdict  by  inserting 
therein  the  amount  which  they  intended 
to  find  for  the  plaintiff.  They  retired,  and 
later  returned  with  a  verdict  expressing 
the  amount  found  in  the  plaintiff's  favor. 
Held,  that  this  was  not  error,  and  fur- 
nished no  ground  to  arrest  the  judgment 
or  for  granting  a  new  trial.  Mitchell  v. 
Langley  (Ga.)  1917A-469. 

5.     IMPEACHMENT  OF  VERDICT. 

12.  In  an  action  in  which  the  jury,  be- 
ing unable  to  decipher  the  word  "puni- 
tive" in  a  special  question,  sent  the  fore- 
man to  ask  the  judge  what  the  word  was, 
a  verdict  for  punitive  damages  cannot  be 
impeached  by  the  affidavits  of  jurors  that 
they  would  not  have  awarded  such  dam- 
ages if  they  had  known  that  they  would 
go  to  plaintiff,  and  that  they  understood 
that  the  foreman,  in  arguing  that  such 
damages  would  be  paid  to  the  county,  was 
repeating  what  he  had  been  told  by  the 
judge;  there  having  been  no  representa- 
tion by  the  foreman  that  the  judge  made 
any  such  statement.  Dishmaker  v.  Heck 
(Wis.)    1917A-400.  (Annotated.) 

13.  Affidavit  of  Jnror  to  Impeach  Ver- 
dict. Affidavits  of  jurors  will  not  be  re- 
ceived to  impeach  a  quotient  verdict, 
whether  made  by  members  of  a  unanimous 
jury  or  by  nonconcurring  jurors  under  the 
statute  allowing  three-fourths  of  the  jurors 
to  return  a  verdict.  Soain  v.  Oregon- 
Washington  R.,  etc.  Co.  (Ore.)  1917E-11(H. 

6.     DIRECTING  VERDICT, 
a.     In  General. 

14.  Verdict  Properly  Directed.  The  evi- 
dence examined,  and  held,  that  it  was  not 
erroneous  to  direct  a  verdict.  Central 
Georgia  Power  Co.  t.  Cornwell  (Ga.) 
1916D-1020. 

15.  Evidence  Held  for  Jury.  Under  the 
conflicting  testimony  as  to  issues  material 
to  the  case,  the  court  should  have  sub- 
mitted them  to  the  jury  under  -oroper  in- 
structions, and  erred  in  directing  a  verdict 
for  the  claimant.  Brown  v.  Caylor  (Ga.) 
1916D-715. 


16.  'When  Direction  Improper.  If  there 
is  any  credible  evidence  which,  if  undis- 
puted, would  entitle  the  jurv  to  find  for 
the  plaintiff,  a  verdict  should  not  be  di- 
rected for  the  defendant.  Marinette  v. 
Goodrich  Transit  Co,  (Wis.)  1917B-935. 

17.  When  Direction  Proper — Sufficiency 
of  Evidence.  Where  the  record  contains 
evidence  from  which,  standing  alone,  the 
jury,  without  acting  unreasonably,  could 
find  all  the  material  averments  of  the 
declaration  to  have  been  proven,  a  verdict 
should  not  be  directed  for  defendant. 
Devine  v.  Delano  (111.)  1918A-689. 

18.  In  an  action  for  breach  of  contract 
in  failing  to  furnish  the  variety  of  cucum- 
ber seed  purchased,  testimony  by  some  of 
plaintiff's  witnesses  that  they  had  not 
known  the  name  of  the  brand  ordered  to 
be  used  to  designate  a  certain  variety  of 
seed  does  not  make  plaintiff's  evidence  80 
uncertain  as  to  render  the  direction  of  a 
verdict  in  hia  favor  erroneous,  where 
numerous  witnesses  sustained  plaintiff's 
contention  as  to  the  designation.  Buclt- 
bee  v.  P.  Hohenadel,  Jr.,  Co.  (Fed.)  1918B- 
88.  (Annotated.) 

19.  Direction  of  Verdict — Consideration 
of  Entire  Evidence.  On  motion  for  per- 
emptory instruction,  the  entire  evidence  ie 
to  be  considered,  and,  if  it  fails  to  show 
a  cause  of  action,  the  motion  should  be 
granted.  Southern  Ice  Co.  v.  Black  (Tenn.) 
1917E-695. 

20.  Uncontradicted  Evidence.  The  giv- 
ing of  a  peremptory  instruction  where  an 
issue  is  made  upon  the  pleadings  is  always 
predicated  upon  the  fact  that  all  the  evi- 
dence tends  to  support  the  contention  of 
the  party  in  whose  favor  the  verdict  is 
directed.  Tennis  Coal  Co.  v.  Sackett  (Ky.) 
i917E-629. 

21.  Insufficient  Evidence.  An  instru*- 
tion  seeking  to  take  the  case  from  the 
jury  for  the  want  of  legally  sufficient  evi- 
dence will  not  be  granted,  if  there  is  any 
evidence,  however  slight,  legally  sufficient 
as  tending  to  prove  it.  Hodges  v.  Balti- 
more Engine  Co.  (Md.)  1917C-766. 

22.  Evidence  Permitting  More  Than  One 
Conclusion.  Refusal  of  a  directed  verdict 
is  proper  where  it  cannot  be  said  that  all 
reasonable  men  must  draw  from  the  evi- 
dence the  same  conclusion.  Parsons  v. 
Trowbridge  (Fed.)  1917C-750. 

23.  Evidence  considered  and  held  suffi- 
cient to  go  to  the  jury  on  an  issue  whether 
money,  the  receipt  of  which  by  the  defend- 
ant was  admitted,  was  a  loan  or  was  paid 
under  a  contract  for  the  future  support 
of  the  payor.  Chalvet  v.  Huston  (D.  C.) 
1916C-1180. 

b.    Power  of  Court. 

24.  Insufficincy  of  Evidence.  A  verdiet 
for   the   defendant   should   never   bo   di- 


852 


DIGEST. 

1916C— 1918B. 


rected  by  the  court,  unless  it  is  clear  that 
there  is  no  evidence  whatever  adduced 
that  could  in  law  support  a  verdict  for 
the  plaintiff.  If  there  is  evidence  tending 
to  prove  the  issue,  and  sufficient  to  show 
liability,  it  should  be  submitted  to  the 
jury  as  a  question  of  fact  to  be  deter- 
mined  by  them,  and  not  taken  from  the 
jury  and  passed  upon  by  the  court  as  mat- 
ter of  law.  King  v.  Cooney-Eckstein  Co. 
(Fla.)  1916C-163. 

25.  Weight  of  Evidence.  Chapter  6220, 
Fla.  Laws  of  1911,  amending  section  1496, 
Gen.  St,  of  1906,  does  not  authorize  a  trial 
judge  to  pass  upon  the  preponderance  of 
evidence,  except  where  the  evidence  of  all 
the  parties  shall  have  been  submitted,  and 
it  is  apparent  to  the  judge  that  no  suffi- 
cient evidence  has  been  submitted  upon 
which  the  jury  could  legally  find  a  ver- 
dict for  one  party,  the  judge  may  direct 
a  verdict  for  the  opposite  party.  Florida 
East  Coast  R.  Co.  v.  Carter  (Fla.)  1916E- 
1299. 

26.  The  court  should  direct  a  verdict, 
Wiicn  the  evidence  is  not  controverted, 
and  the  law  as  applied  to  that  evidence 
produces  but  one  legal  result;  but  when  a 
case  involves  an  issue  of  fact,  on  which 
the  evidence  is  conflicting  and  would  sup- 
port a  verdict  for  either  party,  such  issue 
should  be  left  to  the  jury.  Philadelphia, 
etc.  B.  Co.  V.  Gatta  (Del.)  1916E-1227. 

c.     Direction  of  Conviction. 

27.  What  Constitutes.  Where  the  un- 
disputed evidence  showed  that  defendants 
signed  an  agreement  to  raise  the  price  of 
milk,  that  they  controlled  60  ner  cent  of 
the  output  necessary  in  a  city,  and  it  was 
admitted  by  defendants  that,  in  conse- 
quence of  the  agreement,  they  raised  the 
price,  a  charge  that  on  the  agreement  and 
the  evidence  defendants  were  guilty,  and 
directing  the  jury  to  take  the  case  and  re- 
turn a  verdict,  is  not  objectionable  as  di- 
recting a  verdict,  but  merely  informs  the 
jury  that  the  agreement  and  the  admis- 
sion made  defendants  guilty.  State  v. 
Craft  (N.  Car.)  1917B-1013. 

d.     Form  of  Motion. 

28.  Motion  for  Directed  Verdict — Eight 
to  Move  Orally.  One  moving  for  peremp- 
tory instruction  is  not  required  to  formu- 
late the  evidence  and  sign  a  statement,  as 
under  a  demurrer  to  the  evidence,  but  the 
motion  can  be  made  orally  upon  the  evi- 
dence as  delivered  before  the  court  and 
jury.  Southern  Ice  Co.  ▼.  Black  (Tenn.) 
1917E-695. 

e.     Presumption  Against  Motion. 

29.  Presumption  in  Favor  of  Verdict — 
One  Good  Count — ^Exception  to  Rule.  It 
being  Impossible  to  say  under  what  count 
of  the  declaration  verdict  was  returned  for 


plaintiff,  submitting  an  issue  under  a  count 
abandoned  under  the  state  of  the  plead- 
ings is  prejudicial,  though  the  evidence 
under  another  count  is  sufficient  to  sus- 
tain a  verdict.  Wende  v.  Chicago  City 
R.  Co,  (HI.)  1918A-222. 

30.  Inferences  Against  Motion  to  Direct. 
On  motion  to  direct  a  verdict  for  defend- 
ant, all  that  the  evidence  tends  to  prove, 
and  all  just  inferences  to  be  drawn  from 
it  in  plaintiff's  favor,  must  be  conceded  to 
him.     Devine  v.  Delano  (HI.)  I918A-689. 

31.  Presumptions.  On  motion  for  di- 
rected verdict,  the  evidence  of  the  ad- 
verse party  must  be  taken  as  true,  and 
every  reasonable  inference  fairly  deducible 
therefrom  indulged.  Louisville,  etc.  E. 
Co.  V.  Chambers  (Ky.)  1917B-471. 

f.     Effect  of  Motion  by  Both  Parties. 

32.  In  an  action  for  breach  of  contract 
in  failing  to  furnish  the  variety  of  cucum- 
ber seed  ordered,  a  request  by  both  par- 
ties for  a  directed  verdict  at  the  conclu- 
sion of  all  the  evidence  operates  as  a  re- 
quest that  the  court  find  the  facts,  and  the 
facts  as  found  are  conclusive  upon  the 
parties;  the  reviewing  court  being  limited 
to  the  correctness  of  the  conclusions  of 
law  thereon.  Buckbee  v.  F.  Hohenadel, 
Jr.,  Co.  (Fed.)  1918B-88. 

33.  Upon  a  jury  trial  in  district  court, 
if  each  party  asks  an  instructed  verdict  in 
his  favor,  the  decision  of  the  court  for 
plaintiff  will  be  sustained  if  a  verdict 
could  be  sustained  for  plaintiff  upon  the 
evidence  with  proper  instructions.  Hamil- 
ton V.  North  American  Accident  Ins.  Co. 
(Neb.)  1917C-409. 

g.     Questions  Raised. 

34.  Insufflciency  of  Pleading.  Where  the 
comnlaint  does  not  contain  allegations 
sufficient  to  constitute  a  cause  of  action, 
the  proper  remedy  is  by  demurrer,  and  not 
by  motion  to  direct  a  verdict.  Greenwood 
Cotton  Mill  v.  Tolbert  (S.  Car.)  1917C- 
338. 

h.     Order  of  Court. 

35.  Instruction  Amounting  to  Direction. 
The  court  at  the  dose  of  the  testimony 
denied  a  motion  to  direct  judgment  against 
the  News  Printing  Company,  codefendant, 
but  instead,  in  its  instructions,  required 
the  jury  to  find  in  any  event  for  the  plain- 
tiff and  against  the  News  Printing  Com- 
pany for  the  amount  claimed.  This  ac- 
tion did  not  prejudice  plaintiff's  rights, 
and  is  the  equivalent  of  the  granting  of  a 
motion  for  a  directed  verdict.  Northern 
Trust  Co.  V.  Bruegger  (N.  Dak.)  1917E- 
447. 

VERIFICATION. 

See  Pleading,  107. 

Of  indictment,  see  Indictments  and  Infor- 
mations, 3,  7. 


VESTED  ESTATE— WAE. 


853 


Of  complaint  in  juvenile  court,  see  Infants, 

28. 
Of  notice  of  claim  of  lien,  see  Medxanlcs* 

Liens,  28. 

VESTED  ESTATE. 

Option  creates  a  vested  estate  when,  see 
Perpetuities,  3. 

VESTED  KEMAHTDEB. 

See  Eemainders  and  Reversions,  6,  7,  12, 
16. 

VESTED  EIGHTS. 

No  vested  rights  in  rules  of  procedure,  see 

Constitutional  Law,  52. 
No  vested  right  in  rules  of  evidence,  see 

Stare  Decisis,  7. 

VETERANS. 

See  Pensions. 

VETERANS'  PREFERENCE  ACTS. 
See  Public  Officers,  10. 

VETO  POWER. 
See  Statutes,  23,  24,  27. 

VOLUNTEER. 
Defined,  see  Master  and  Servant,  217-&19. 

WAGES. 

Assignability,  see  Assignments,  1,  2,  20. 
Meaning,  see  Judges,  4. 

WAGON. 

A  "tool  or  instrument,"  see  Landlord  and 
Tenant,  35. 

WAIVER. 

See  Estoppel. 

Of  notice  of  injury  held  waived,  see  Acci- 
dent Insurance,  20-22. 

Of  defense  of  alteration,  see  Alteration  of 
Instruments,  10-11,  13-14. 

Of  right  to  appeal,  see  Appeal  and  Error, 
5. 

Of  error,  see  Appeal  and  Error,  16S-184. 

Of  special  appearance,  see  Appearances,  3. 

Defective   service,    see   Appearances,    4. 

Of  non-payment  of  assessment,  see  Benefi- 
cial Associations,  23. 

Of  tender  of  deed  in  suit  for  commission, 
see  Brokers,  7. 

Of  mortgage  lien  by  attachment,  see  Chat- 
tel Mortgages,  25. 

Objection  to  unconstitutionality,  see  Con- 
stitutional Law,  128. 

Of  non-performance,  see  Contracts,  81-83. 

Of  invalidity,  see  Contracts,  94. 

Of  tort,  implied  contract,  see  Conversion, 
16. 


Of  notice  of  meeting  of  stockholders,  see 

Corporations,  87,  88,  91. 
Of  preliminary  examination,  see  Criminal 

Law,  19. 
Of  arraignment,  see  Criminal  Law,  32. 
Of  right  to  counsel,  see  Criminal  Law,  3(J. 
Of    compensation,    see    Eminent   Domain, 

53-55. 
Of  conditions  of  escrow,  see  Escrow,  12. 
Of  jury  trial,  on  accounting,  see  ExecutoiS 

and  Administrators,  5i5. 
Of  provisions  of  policy,  see  Fire  Ixumr- 

ance,  23-24. 
Of  former  jeopardy  by  failure  to  plead  it, 

see  Former  Jeopardy,  9. 
Of  policy  provisions,  see  Insurance,  27-29. 
Of  interest  by  accepting  principal,  see  In- 
terest, 6. 
Of  interest  on  damage  claim  by  delay  in 

demand,  see  Interest,  7. 
Of  jury,  see  Jury,  11,  12. 
Of  right  to  challenge  for  ciuse    see  Jury, 

26. 
Of  duty  to  repair,  see  Landlord  and  Ten- 

ant,  14. 
Of  breach  of  condition  against  assignment 

of  lease,  see  Landlord  and  Tenant,  23, 

25. 
Of    notice    of    termination    of   lease,    see 

Landlord  and  Tenant,  45. 
Of  proof  of  death,  see  Life  Insurance,  44. 
Of  right  to  lien,  see  Mechanics'  Liens,  29- 

37. 
Of  nonjoinder   of  parties   on  foreclosure, 

see  Mechanics'  Liens,  55. 
How  pleaded,  see  Pleading,  95. 
Objection  for  failure  to  serve  co-party,  see 

Process,  1. 
Objection    to    misconduct   of   counsel,  see 

Prosecuting  Attorneys,  2. 
Objection  not  made  at  hearing,  see  Public 

Service  Commission,  31. 
Eight  to  sue  for  rescission,  by  delay,  see 

Rescission,  Cancellation  and  Reforma- 
tion, 18. 
Of  warranty,  see  Sales,  29,  31. 
Of  defense  on  bond  by  surety,  see  Surety- 
ship, 7. 
Of     principal's     signature    on    bond,     see 

Suretyship,  2,  5. 
Of    objection    to    special    assessment,    see 

Taxation,  128-130. 
Of  objections,  see  Trial,  46-50. 
Of  privilege,  see  Witnesses,  25,  26,  29,  44- 

46,  86-88. 

WANT  OF  PROSECUTION. 
Dismissal  for,  see  Dismissal  and  Nonsuity 
4-9. 

WAR. 

See  Contraband  of  War;  Militia. 

Effect  of  war  on  dual  allegiance,  see 
Aliens,  2. 

Courts-martial,  see  Courts,  1,  19,  20. 

Taking  for  war,  not  a  condemnation,  see 
Eminent  Domain,  28. 

Engineer  killed  by  mine  as  within  Work- 
men's Compensation  Act,  see  Master 
and  Servant,  224. 


854 


DIGEST. 

1916C— 1918B. 


1.  Jadlcial  Notice  of  Existence.  The 
existence  of  a  condition  of  war  must  be 
determined  by  the  political  department  of 
the  government,  and  the  courts  will  take 
judicial  notice  of  such  determination  and 
are  bound  thereby.  In  re  Wulzen  (Fed.) 
1917A-274. 

2.  Prize — Right  to  Bring  into  Neutral 
Port.  The  neutrality  of  the  United  States, 
under  the  principles  of  international  law, 
is  violated  by  the  action  of  a  belligerent 
in  bringing  a  prize  captured  at  sea  into 
a  port  of  the  United  States  under  a  prize 
crew,  for  the  purpose  of  laying  her  up 
there  indefinitely.  The  Steamship  Appam 
(U.  S.)  1917D-442.  (Annotated.) 

3.  The  bringing  of  a  prize  captured 
at  sea  by  a  German  cruiser  into  a  neutral 
port  of  the  United  States  under  a  prize 
crew,  for  the  purpose  of  laying  her  up 
there  indefinitely,  is  not  justified  by  the 
provision  of  art.  19  of  the  Treaty  of  July 
11,  1799  (8  Stat.  L.  172),  with  Prussia, 
that  vessels  of  war,  public  and  privdte,  of 
both  parties,  shall  carry  freely  wheresoever 
they  please  the  vessels  and  effects  taken 
from  their  enemies,  without  being  obliged 
to  pay  any  duties,  charges,  or  fees  to  offi- 
cers of  admiralty,  of  the  customs,  or  any 
others,  and  that  such  prizes  shall  not  be 
arrested,  searched,  or  put  under  legal  pro- 
cess when  they  come  to  and  enter  the 
ports  of  the  other  party,  but  may  freely 
be  carried  out  again  by  their  captors  to  the 
places  expressed  in  their  commissions, 
which  the  commanding  officer  of  such  ves- 
sel shall  be  obliged  to  show.  The  Steam- 
ship Appam  (U.  S.)  1917D-442. 

(Annotated.) 

4.  The  failure  of  the  United  States  to 
proclaim  that  its  ports  are  not  open  to  the 
reception  of  captured  prizes  does  not  war- 
rant the  attempted  use  of  one  of  its  ports 
by  a  belligerent  as  a  place  in  which  to 
store  a  prize  indefinitely,  especially  where 
no  means  of  taking  it  out  are  shown  ex- 
cept by  augmentation  of  the  crew,  which 
would  be  a  clear  violation  of  established 
rules  of  neutrality.  The  Steamship  Appam 
(U.   S.)    1917r)-442.  (Annotated.) 

5.  Right  to  Requisition  Neutral  Property. 
A  belligerent  power  has  by  international 
law  the  right  to  requisition  vessels  or 
goods  in  the  custody  of  its  prize  court 
pending  a  decision  of  the  question  whether 
they  should  be  condemned  or  released,  but 
such  right  is  subject  to  certain  limitations. 
First,  the  vessel  or  goods  in  question  must 
be  urgently  required  for  use  in  connection 
with  the  defense  of  the  realm,  the  prosecu- 
tion of  tne  war,  or  other  matters  involving 
national  security.  Secondly,  there  must 
be  a  real  question  to  be  tried,  so  that  it 
would  be  improper  to  order  an  immediate 
release.  And.  thirdly,  the  right  must  be 
enforced  by  application  to  the  prize  court, 
which  must  determine  judicially  whether, 
under  the  particular  circumstances  of  the 


case,  the  right  is  exercisable.     The  Zamora 
(Eng.1    1916E-233.  (Annotated.) 

6.  Prize — ^Effect  of  Orders  in  Council. 
A  prize  court  is  required  to  administer  the 
rules  of  international  law,  and  royal  orders 
in  council  cannot  be  accepted  as  a  binding 
declaration  of  that  law.  The  Zamora 
(Eng.)  1916E-233. 

7.  Alien  Enemy  —  Exi)atriated  Person. 
A  person  of  German  birth  domiciled  in 
England  but  who  has  acquired  no  nation- 
ality there,  is,  during  the  existence  of  war 
between  England  and  Germany,  an  alien 
enemy  subject  to  internment,  though  by 
reason  of  his  continued  absence  from  Ger- 
many he  has  lost  his  German  nationality. 
Ex  parte  Weber  (Eng.)  1916D-304. 

(Annotated.) 

8.  Treason.  It  is  immaterial  to  liability 
for  treason  in  adhering  to  the  enemy  that 
the  acts  of  adherence  were  committed  out- 
side the  realm  of  the  sovereign  of  the  ac- 
cused. Eex  V.  Casement  (Eng.)  1917D- 
468,  (Annotated.) 

9.  For  a  citizen  to  visit  a  country  with 
which  his  nation  is  at  war  and  there  en- 
deavor to  persuade  prisoners  of  war  to 
join  the  enemy's  forces,  and  to  obtain  from 
the  enemy  arms  and  ammunition  and  en- 
deavor to  land  the  same  in  a  political  divi- 
sion of  his  own  country  in  aid  of  a  revolt 
there  constitutes  adhering  to  the  enemy 
and  giving  him  aid  and  comfort  within  the 
meaning  of  the  Treason  Act.  Rex  v.  Case- 
ment   (Eng.)    1917D-468.         (Annotated.) 

10.  "Alien  Enemy."  The  term  "alien 
enemy"  include?  not  only  a  subject  of 
enemy  nationality,  but  also  a  domestic  or 
neutral  subject  who  is  voluntarily  resident 
in  hostile  territory  or  is  carrying  on  busi- 
ness therein.  Porter  v.  Freudenberg 
(Eng.)   1917C-215.  (Annotated.) 

11.  Suits  by  and  Against.  An  alien 
enemy  may  be  sued  within  the  realm  but 
cannot  sue  therein.  He  may  appear  and 
defend  in  an  action  against  him  or  appeal 
from  a  judgment  against  him  as  defendant, 
but  cannot  appeal  in  an  action  brought 
by  him  before  the  outbreak  of  hostilities. 
Porter  v.  Freudenberg  (Eng.)   1917C-215. 

(Annotated.) 

12.  Service  of  Notice.  Substituted  ser- 
vice of  notice  of  a  writ  against  an  alien 
enemy  domiciled  abroad  may  be  ordered 
to  be  made  on  a  local  agent  maintained  by 
him.  Porter  v.  Freudenberg  (Eng.) 
1917C-215.  (Annotated.) 

13.  Alien  Enemies — Domestic  Corpora- 
tion. Where  an  action  by  a  domestic  cor- 
poration can  be  authorized  only  by  its  di- 
rectors, no  action  can  be  authorized  dur- 
ing the  continuance  of  war  where  the  di- 
rectors are  all  alien  enemies  domiciled  in 
hostile  territory.  Daimler  Co.  v.  Conti- 
nental Tyre,  etc.  Co.  (Eng.)  1917C-170. 

(Annotated.) 


WAR. 


856 


14.  Whether  a  domestic  corporation  ifl, 
during  the  continuance  of  war,  an  alien 
enemy  depends  on  its  control,  the  company 
being  an  alien  enemy  despite  its  domestic 
incorporation  if  its  actual  control  and 
management  are  vested  in  individuals  who 
are  cit'zens  and  residents  of  an  enemy 
country  or  who  adhere  to  the  enemy. 
Daimler  Co.  v.  Continental  Tyre,  etc.  Co. 
(Eng.)    1917C-170.  (Annotated.) 

15.  Intercourse  With  Alien  Enemy.  The 
Trading  With  the  Enemy  Act  of  1914 
(4  &  5  Geo.  V.  c.  87)  and  the  Proclamation 
of  September  9, 1914,  are  not  exclusive,  and 
intercourse  with  an  alien  enemy  which  was 
illegal  at  common  law  is  none  the  less 
illegal  because  not  in  terms  prohibited  by 
the  Act  or  Proclamation.  Robson  v.  Pre- 
mier Oil,  etc.  Co.  (Eng.)  1917C-227. 

(Annotated.) 

16.  By  the  common  law  not  only  com- 
mercial intercourse  but  all  intercourse  with 
an  alien  enemy  which  could  possibly  oper- 
ate to  the  detriment  of  the  country  is  for- 
bidden; accordingly  an  alien  enemy  is  not 
during  the  continuance  of  war  entitled  to 
vote  stock  owned  by  him  in  a  local  corpo- 
ration. Eobson  V.  Premier  Oil,  etc.  Co. 
(Eng.)   1917C-227.  (Annotated.) 

17.  Internment — Person  of  Enemy  Origin 
or  Association.  A  regulation  empowering 
the  secretary  of  state  to  order  the  intern- 
ment of  any  person  of  "enemy  origin  or 
association"  is  authorized  by  the  Defense 
of  the  Realm  Act  and  is  valid.  Rex  v.  Hal- 
liday  (Eng.)  1917D-389.  (Annotated.) 

18.  As  Excusing  Breacli  of  Contract — 
Egress  Stipulation.  A  continuing  con- 
tract for  the  delivery  of  magnesium  chlo- 
ride provided  that  "deliveries  may  be  sus- 
pended pending  any  contingencies  beyond 
the  control  of  the  sellers  or  buyers  (such 
as  fire,  accidents,  war,  strikes,  lockouts 
or  the  like)  causing  a  short  supply  of 
labor,  fuel,  raw  materials  or  manufactured 
produce  or  otherwise  preventing  or  hin- 
dering the  manufacture  or  delivery  of  the 
article."  The  major  part  of  the  supply 
of  magnesium  chloride  previously  available 
to  the  seller  came  from  Germany  and  was 
cut  ofif  by  the  war.  The  seller  obtained  a 
certain  amount  of  the  chemical,  enougii 
to  have  filled  the  contracts  in  suit,  but  not 
enough  to  fill  all  its  contracts.  It  is  held 
that  the  seller  was  justified  in  suspending 
delivery.  Tennants  (Lancashire)  v.  C.  S. 
Wilson   &   Co.   (Eng.)    1918A-1. 

(Annotated.) 

19.  Espionage  Act — Construction — Non- 
mailable Matter.  The  Espionage  Act  (Fed. 
St.  Ann.  Pamph.  Supp.  No.  11,  p.  IC)  is 
not  intended  to  repress  legitimate  criti- 
cism of  Congress  or  of  the  officers  of  the 
government,  or  to  prevent  any  proper  dis- 
cussion looking  to  the  repeal  of  any  legis- 
lation which  may  have  been  enacted,  but 
only  to  prevent  the  dissemination  and  dis- 
tribution through  the  mails  of  publications 


intended  to  embarrass  and  defeat  the  gov- 
ernment in  the  successful  prosecution  of 
the  war.  Masses  Pub.  Co.  v.  Patten 
(U.  6.)  1918B-999. 

20.  The  postmaster  general  is  to  deter- 
mine whether  a  particular  publication  is 
non-mailable  under  the  Espionage  Act 
(Fed.  St.  Ann.  Pamph.  Supp.  No.  11,  p.  16), 
and  in  so  determining  is  required  to  use 
judgment  and  discretion;  and  his  decision 
is  conclusive  on  the  courts,  unless  clearly 
wrong.  Masses  Pub.  Co.  v.  Patten  (U.  S.) 
1918B-999. 

21.  A  cartoon  published  by  complainn.nt 
in  its  magazine,  representing  the  Liberty 
Bell  in  a  broken  form,  whatever  ij»  mean- 
ing, does  not  by  itself  afford  any  ground 
for  exclusion  of  the  magazine  from  the 
mails.  Masses  Pub.  Co.  t.  Patten  (U.  S.) 
1918B-999. 

22.  Certain  articles  and  cartoons,  pub- 
lished by  complainant  in  its  magazine  con- 
cerning the  war,  conscription,  etc.,  are 
held  to  warrant  the  postmaster  general's 
determination  that  is  waa  non-mailable 
under  the  Espionage  Act,  as  calculated 
and  intended  to  obstruct  recruiting  or  en- 
listment, in  violation  of  title  1,  §  3  (Fed. 
St.  Ann.  Pamph.  Supp.  No.  11,  p  10),  but 
not  unmailable,  as  advocating  or  urging 
treason,  insurrection,  or  forcible  resistance 
to  any  law  of  the  United  States  in  viola- 
tion of  title  12,  §  2  (Fed.  St.  Ann.  Pamph. 
Supp.  No.  11,  p  16).  Masses  Pub.  <^o,  v. 
Patten  (U.  S.)  1918B-999. 

23.  Validity  of  Act— War  Power.  En- 
pionage  Act  June  15,  1917,  tit.  12.  §§  1,  2 
(Fed.  St.  Ann.  Pamph.  Supp.  No.  11, 
p.  16),  declaring  certain  matter  non-mail- 
able, do  not  violate  Const.  Amend.  1  (9 
Fed.  St.  Ann.  244),  declaring  that  Congresis 
shall  make  no  law  abridging  the  freedom 
of  speech  or  of  the  press,  as  the  statute 
imposes  no  restraint  on  the  matter  prior 
to  publication,  and  no  restraint  afterwards 
except  as  it  restricts  circulation  through 
the  mails,  and  while  liberty  of  circulating 
may  be  essential  to  freedom  of  the  press, 
liberty  of  circulating  through  the  mails  is 
not  essential,  so  long  as  transportation  in 
any  other  way  is  not  forbidden.  Masses 
Pub.  Co.  V.  Patten  (U.  S.)  1918B-999. 

(Annotated.) 

24.  Espionage  A«t,  tit.  12,  §§  1,  2  (Fed. 
St.  Ann.  Pamph.  Supp.  No.  11,  p.  16),  de- 
claring certain  matter  non-mailable,  do  not 
violate  Const.  Amend.  5  (9  Fed.  St.  Ann. 
288),  providing  that  no  person  shall  be 
deprived  of  life,  liberty,  or  property  with- 
out due  process  of  law,  though  by  the  ex- 
clusion of  complainant's  magazine  from 
the  mails  its  business  was  practically 
ruined.  Masses  Pub.  Co.  v.  Patten  (U.  S.) 
1918B-999.  (Annotated.) 

25.  Espionage  Act — Non-mailable  Mat- 
ter— Scope  of  Enactment.  Espionage  Act 
June  15,  1917,  tit.  12.  §  1  (Fed.  St.  Ann. 
Pamph.    Supp.    No.  11,  p.  16),    declaring 


856 


DIGEST. 

1916C— 1918B. 


every  letter,  newspaper,  or  other  publica- 
tion, matter,  or  thing  in  violation  of  any 
of  the  provisions  of  that  act  to  be  non- 
mailable and  section  2,  declaring  non- 
mailable every  letter,  newspaper,  etc.,  con- 
taining any  matter  advocating  or  urging 
treason,  insurrection,  or  forcible  resist- 
ance to  any  law  of  the  United  States,  ex- 
cludes from  the  mails  any  letters  or  liter- 
ature in  furtherance  of  any  acts  prohibited 
under  the  other  titles  of  the  statute. 
Masses  Pub.  Co.  t.  Patten  (U.  S.)  1918B- 
999. 

Notes. 

Nature  and  scope  of  war  power.  1918B- 
1009. 

War  as  excuse  for  breach  of  contract. 
1918A-14. 

Internment  of  person  of  hostile  origin 
or  association.     1917D-409. 

Alien  enemies.     1917C-189. 

"What  constitutes  "adherence  to  enemies," 
etc.,  within  law  of  treason.     1917D-479. 

Expatriated  person  as  alien  enemy. 
1916D-3a6. 

Right  of  belligerent  power  to  requisi- 
tion goods  of  neutral.     1916E-245. 

Right  to  bring  prize  into  neutral  port. 
1917D-448. 

WAEDEN. 

Duty  on  release  of  pafdoned  conyict,  see 
Pardons,  2. 

WABDS. 
See  Gaardians  and  WardB. 

WABEHOUSES. 

1.  Duties   and   Liabilities   of   Warehouse- 

men. 

2.  Warehouse  Receipts. 

3.  Actions. 

Carrier  as  warehouseman,  see  Carriers  of 
Goods,  8-10. 

1.     DUTIES     AND     LIABILITIES     OP 
WAREHOUSEMEN. 

1.  Duty  of  Warehouseman — Effect  of 
Previous  Dealings.  The  acceptance  for 
storage  of  wool  by  a  warehouseman  places 
him  under  a  liability  to  the  bailors  for 
safe-keeping,  which  is  not  altered  by  any 
previous  long  course  of  such  dealings  be- 
tween the  parties  with  the  conditions  of 
nature  likely  to  render  the  storage  unsafe 
under  the  circumstances  known  to  both. 
Hecht  V.  Boston  Wharf  Co.  (Mass.) 
1917A-445. 

2.  Recovery  Against  Warehouseman  — 
Sale  of  Goods  by  Bailor.  Where  plaintiffs 
sell  a  portion  of  stored  wool  before  injury 
to  it,  they  cannot  recover  against  the  ware- 
houseman for  damage  to  such  part,  since 
it  may  be  assumed,  under  a,ll  the  circum- 
stances,  that   defendant    assented  to   the 


sale,  such  an  assent  having  a  favorable 
effect  on  its  liability  by  passing  title  out 
of  plaintiffs  under  the  Mass.  Sales  Act 
(St.  1908,  c.  237,  §19,  rule  1),  which  by 
direct  provision  vests  title  to  specific 
goods  in  a  deliverable  state  in  the  buyer 
upon  the  making  of  the  contract  of  sale, 
and  under  section  22  of  the  act  providing 
that  such  <roods  are  at  buyer's  risk,  whether 
or  not  delivery  is  made,  and  since  the 
right  of  action  for  injury  always  rests  in 
the  general  or  special  owner  of  chattels, 
which  plaintiffs  no  longer  were  of  the 
wool  sold.  Hecht  v.  Boston  Wharf  Co. 
(Mass.)  1917A-445. 

3.  Tide  as  Act  of  God.  Tides,  in  their 
physical  aspect,  being  wholly  an  act  of 
God,  the  question  of  a  warehouseman's 
liability  for  damage  caused  by  them  is  de- 
pendent upon  whether  the  injury  was 
caused  wholly  by  the  tide,  or  whether  the 
defendant's  negligence  gave  such  physical 
force  an  opportunity  to  operate,  the  meas- 
ure of  due  care  being  reasona;ble  prudence 
and  foresight  and  the  adoption  of  precau- 
tions by  careful  persons  in  the  same  line 
of  business,  and  such  provisions  as  to  the 
probable  state  of  the  tide  as  an  ordinarily 
intelligent  man  might  have  gained  from 
observation  of  general  climatic  conditions. 
Hecht  V.  Boston  Wharf  Co.  (Mass.)  1917A- 
445.  (Annotated.) 

4.  Degree  of  Care  Required.  The  legal 
obligation  of  a  warehouseman,  bailee  of 
wool,  is  to  use  the  ordinary  care  of  a 
man  of  common  prudence  in  keeping  that 
sort  of  goods,  in  view  of  the  fact  regard- 
ing danger  of  injury  accessible  to  and 
likely  to  be  considered  and  acted  upon  by 
a  rational  person  before  the  event  com- 
plained of.  Hecht  V.  Boston  Wharf  Co. 
(Mass.)  1917A-445. 

5.  Accounting  for  Proceeds  of  Damaged 
Property  —  Conclusiveness  of  Receipt  in 
Full.  Plantiff  is  entitled  to  an  accounting 
with  a  warehouseman  for  proceeds  of  dam- 
aged poultry  sold,  even  though  he  has  set- 
tled with  him  in  full  for  loss  by  fire,  the 
warehouseman  being  trustee  for  collection 
under  policy,  where  he  did  not  understand 
that  by  the  terms  of  settlement  the  ware- 
houseman was  to  have  the  proceeds  from 
damaged  poultry,  a  receipt  in  full  not 
being  conclusive,  the  parties  standing  in 
a  fiduciary  relation,  and  transactions  be- 
tween them  being  prima  facie  voidable. 
Hobbs  v.  Monarch  Refrigerating  Co.  (HI.) 
1918A-743. 

Notes. 

Loss  resulting  from  rise  or  fall  of  tide  as 
due  to  act  of  God.     1917A-450. 

Construction  of  Uniform  Warehouse 
Receipts  Act.     1917E-29. 

2.     WAREHOUSE  RECEIPTS. 

6.  The  rights  of  a  pledgee  of  warehouse 
receipts  under  the  uniform  warehouse  re- 


WAEEHOUSE  RECEIPTS— WASTE. 


857 


ceipts  Act  (Ia  Acts.  1908,  No.  221,  §§  40, 
41,  47),  as  a  bona  fide  purchaser,  where 
the  pledgors  had  been  clothed  with  ap- 
parent ownership  by  the  real  owner,  are 
not  lost  by  permitting  the  pledgors  to 
withdraw  such  receipts  under  an  agree- 
ment to  hold  for  the  pledgee's  account, 
where  this  did  not  result  in  a  subsequent 
nep^otiation  of  them  to  a  purchaser  in  good 
faith  for  value.  Commercial  Nat.  Bank 
T.  Canal-Louisiana  Bank,  etc.  Co.  (U.  S.) 
1917E-25.  (Annotated.) 

7.  What  Law  Governs — Warehouse  Re- 
ceipts Act — Necessity  of  Showing  Appli- 
cability. Where  the  bill  of  exceptions 
does  not  refer  to  the  Mass.  Warehouse 
Receipts  Act  (St.  1907,  c.  582)  nor  to  what 
kind  t)f  receipts  a  warehouseman  issued  for 
stored  goods,  the  latter's  liability  must 
be  determined  by  common-law  principles, 
Hecht  V.  Boston  Wharf  Co.  (Mass.)  1917A- 
445. 

8.  TJniform  Warehouse  Receipts  Act — 
Construction.  A  pledgee  of  bills  of  lad- 
ing for  cotton,  who  permits  the  pledgor 
to  withdraw  such  bills  of  lading  under 
an  agreement  to  hold  for  the  pledgee's  ac- 
count, and  thus  enables  the  pledgor  to 
obtain  negotiable  warehouse  receipts 
which  they  pledge  to  a  bank  as  security 
for  their  notes,  cannot  question  the  title 
of  the  latter,  having  clothed  the  pledgor 
with  the  indicia  of  ownership,  within  the 
meaninpr  of  the  doctrine  established  by  the 
uniform  warehouse  receipts  act  (La.  Acts 
1908,  No.  221,  §§40,  41,  47),  that  if  the 
owner  of  goods  permits  another  to  have 
possession  or  custody  of  negotiable  ware- 
house receipts  running  to  the  order  of  the 
latter  or  to  bearer,  it  is  a  representation 
of  title  upon  which  bona  fide  negotiators 
for  value  are  entitled  to  rely,  despite 
breaches  of  trust  or  violations  of  agree- 
ment on  the  part  of  the  apparent  owner. 
Commercial  Nat.  Bank  v.  Canal-Louisiana 
Bank,  etc.  Co.  (U.  S.)  1917E-25. 

(Annotated.) 

9.  The  rule  of  construction  established 
bv  the  uniiorm  warehouse  receipts  act  (La. 
A'cts  1908,  No.  221,  §57),  viz.,  "this  act 
shall  be  so  interpreted  and  construed  as  to 
effectuate  its  general  purpose  to  make  uni- 
form the  law  of  those  states  which  enact 
it."  reqpuires  that  the  cardinal  principle 
of  the  act,  which  is  to  give  effect  to  the 
mercantile  view  of  documents  of  title 
shall  have  recognition  to  the  exclusion  of 
any  inconsistent  doctrine  which  may  have 
previously  obtained  in  any  of  the  states 
enacting  it.  Commercial  Nat.  Bank  v. 
Canal-Louisiana  Bank,  etc.  Co.  (U.  S.) 
1917E-25.  (Annotated.) 

3.     ACTIONS.. 

10.  Evidence  of  Negligence  Suffldent. 
Evidence  held  to  go  to  the  jury  on  the 
question  whether  the  warehouseman's  neg- 
ligence was  the  cause  of  3amage  by  a  high 


tide    to    wool    stored.     Hecht    v.    Boston 
Wharf  Co.   (Mass.)   1917A-445. 

11.  Evidence  of  Negligence — Practice  of 
Other  Warehousemen.  In  an  action  for 
damages  to  wool  injured  by  negligence, 
evidence  of  the  practice  of  wool  ware- 
housemen as  to  the  elevation  at  which  it 
was  generally  considered  safe  to  store  wool 
to  escape  the  action  of  extraordinarily 
high  tides  is  admissible  as  bearing  upon 
the  main  issue.  Hecht  v.  Boston  Wharf 
Co.  (Mass.)  1917A-445. 

WAREHOUSE  RECEIPTS. 
See  Warehouses,  6-9. 


WARRANT. 

Arrest  without  warrant,  see  Arrest,  3-8. 
Warrant  of  arrest,  see  Arrest,  1,  2. 
Search  warrant,   see   Searclies   and  Selz- 
nree,  1,  3,  4. 


•WARRANTIES. 

Representations  in  application  for  acci- 
dent policy,  see  Accident  Insurance, 
10-12. 

Proof  by  parol,  see  Accident  Insurance, 
23. 

WARRANTS. 

City  warrants,  see  Municipal  Corporations, 
36,  120-128. 

WARRANTY. 

See  Sales,  12-45. 

Covenants  of  warranty,  see  Deeds,  77-81. 
In  insurance  policy,  see  Insurance,  26. 
No  warrant  to  cure,  see  Physicians  and 

Surgeons,  18. 
In  sale  of  ship,  see  Ships  and  Sliipping, 

4,6. 

WATCHMAN. 

As  within  Federal  Employers*  Ldability 
Act,  see  Master  and  Servant,  55. 

Balling  by  wilful  act,  as  accident  within 
Workmen's  Compensation  Act,  see 
Master  and  Servant,  202,  263. 

WASTE. 

Recovery  for  in  real  action,  see  Trespass, 
12. 

1.  Wliat  Constitutes — Injury  by  Third 
Person.  Injury  by  the  negligence  of  a 
stranger  is  not  waste  for  which  the  life 
tenant  is  liable  to  the  remainderman; 
waste,  which  is  of  two  kinds,  voluntary 
or  actual,  and  permissive  or  negligent,  be- 
ing spoil  or  destruction  done  or  permitted 
by  the  tenant,  to  the  prejudice  of  the  re- 
mainderman. Rogers  v.  Atlantic,  etc.  Co. 
(N.  y.)  1916C-877. 


858 


DIGEST. 

1916C— 1918B. 


WATEES  AND  WATERCOURSES. 

1.  Control  and  Regulation,  858. 

2.  Federal  Grants  of  Riparian  IiandB,  858. 

3.  Sights  of  Riparian  Owners,  858. 

a.  Title  to  Shore  and  Bed,  858. 
t.  Grant  of  Water  Rights,  858. 
e.  Appropriation,  859. 

d.  Rights  to  Ice,  859. 

e.  Diversion,  859. 

(1)  In  General,  859. 

(2)  Action  to  Enjoin,  859. 

f.  Obstruction,  860. 

g.  Damage  by  Floating  Logs,  860. 

4.  Navigable  Waters,  860. 

a.  State  Regulation,  860. 

b.  Power  of  State  to  Declare  Naviga- 

bUity,  861. 
'    «.  Presumption    as    to    Navigability, 
861. 
d.  Ownership,  SGI. 

5.  Surface  and  Percolating  Waters,  861. 
See  Irrigation;  Public  Lands,  2-6. 
Grant  of  water  power,  see  Canals,  1-3. 
Pollution,  see  Cemeteries,  1-3. 
Easement   to   take   water   from   well,   see 

Easements,  1, 10,  20. 
Condemnation  of  stream,  see  Eminent  Do- 
main, 8. 
Judicial  notice   of  navigability,   see   Evi- 

dencei,  10,  11,  18. 
Liability  for  draining  spring,  see  Mines  and 

Minerals,  9. 
City's  power  over  streams  outside  city,  see 

Municipal  Corporations,  45. 
Pollution,  city  regulations,  see  Municipal 

Corporations,  87. 
River  as  state  boundary,  see  States,  3,  4. 
Right    to    reclaim    floated    logs     washed 

ashore,  see  Trees  and  Timber,  22. 

1.     CONTROL  AND  REGULATION. 

1.  Bight  to  Take  Sand  from  Bed  of 
Stream.  That  sand  in  the  bed  of  a  navi- 
gable stream  is  migratory,  or  liable  to  be 
shifted,  does  not  change  its  character  while 
at  rest  upon  the  river  bed,  as  respects  the 
rights  of  the  state  to  require  payment  from 
persons  taking  sand  from  the  bed  of  the 
stream.  Wear  v.  Kansas  (U.  S.)  1918B- 
596.  (Annotated.) 

2.  That  there  is  a  public  right  to  take 
sand  from  a  navigable  stream  does  not 
hinder  the  state  from  collecting  for  the 
good  of  the  whole  public  a  charge  from 
those  individuals  taking  sand  and  thereby 
withdrawing  it  from  public  access.  Wear 
v.  Kansas  (U.  S.)  1918B-586.   (Annotated.) 

2.     FEDERAL  GRANTS  OF  RIPARIAN 
LANDS. 

3.  Construction.  Grants  by  the  United 
States  of  lands  bordering  on  streams  and 
other  waters,  without  reservation  or  re- 
etrictions,  are  to  be  construed  as  to  their 
effect  according  to  the  law  of  the  state  in 
which  the  lands  lie;  the  United  States  as- 


suming the  position  of  a  private  owner, 
subject  to  the  general  law  of  the  state,  so 
far  as  its  conveyances  are  concerned.  Ber- 
not  T.  Morrison  (Wash.)  1916D-2&0. 

3.     RIGHTS  OF  RIPARIAN  OWNERS. 

a.  Title  to  Shore  and  Bed. 

4.  Riparian  Rights — Ownership  of  Bed 
of  Stream,  A  territorial  statute  enacted 
in  1859  (Laws  1859,  c.  121),  adopting  the 
common  law  of  England,  did  not  give  a 
subsequent  patent  from  the  United  States 
covering  riparian  lands  the  effect  of  a 
grant  to  the  thread  of  the  stream,  and 
created  no  constitutional  obstacle  to  a  sub- 
sequent decision  of  the  state  court  that  the 
fact  of  navigability,  rather  than  the  ebb 
and  flow  of  the  tide,  excluded  riparian 
ownership  of  river  beds.  Wear  v.  Kansas 
(U.  S.)  1918B-586. 

5.  Title  to  Bed  of  Non-navigable  Lake. 
Under  Rem.  &  Bal.  Wash.  Code,  §  143,  pro- 
viding that  the  common  law,  so  far  as  not 
inconsistent  with  the  constitution  and  laws 
of  the  United  States  or  of  the  state,  nor 
incompatible  with  the  institutions  and  con- 
ditions of  society  in  the  state,  shall  be  the 
rule  of  decision  in  all  the  courts  of  the 
state,  the  bed  of  unnavigable  lakes  is  in 
the  littoral  proprietors,  as  Const,  art.  21, 
§  1,  providing  that  the  use  of  the  waters  of 
the  state  for  irrigation,  mining,  and  manu- 
facturing purposes  shall  be  deemed  a  pub- 
lic use,  was  not  intended  to  destroy  ripar- 
ian rights,  but  only  to  remove  any  doubt 
as  to  the  power  of  the  legislature  to  au- 
thorize the  taking  of  such  rights  under 
the  power  of  eminent  domain,  and  Laws 
1890,  p.  706,  providing  for  the  use  of  water 
for  irrigation  purposes  and  for  the  con- 
demnation of  rights  of  way  for  ditches  to 
carry  such  water,  and  the  federal  Desert 
Land  Act  of  March  3,  1877,  c.  108,  19  Stat. 
377,  authorizing  the  filing  of  a  declaration 
with  the  register  and  receiver  of  the  land 
district  in  which  any  desert  land  is  situ- 
ated, that  the  person  filing  it  intends  to 
reclaim  a  tract  of  desert  land  by  conduct- 
ing water  thereupon,  and  providing  that 
the  right  to  the  use  of  water  by  such  per- 
son shall  depend  upon  bona  fide  prior  ap- 
propriations, do  not  abrogate  the  common- 
law  rule  as  to  riparian  and  littoral  rights 
in  unnavigable  waters.  Bernot  v.  Morri- 
son  (Wash.)    I916D-2S0.  (Annotated.) 

Note. 
Title    to    bed    of    non-navigable    lake. 
1916D-299. 

b.  Grant   of  Water  Rights. 

6.  A  grant  of  water  power  is  not  a  grant 
of  property  in  the  corpus  of  the  water,  or 
a  grant  of  water  for  anything  else  than 
the  propulsion  of  machinery.  Eastern  Pa. 
Power  Co.  v.  Lehigh  Coal  etc.  Co.  (Pa.) 
1916D-1000.  (Annotated.) 


WATERS  AND  WATERCOURSES. 


859 


7.  Grant  of  Water  Power — Constraction. 
The  grantor  owned  two  tracts  of  land. 
She  conveyed  the  fee  in  one  of  them  and 
"the  water  rights  and  water  power  privi- 
leges" in  the  other.  The  habendum  clause 
was:  "To  have  and  to  hold  the  said  above 
granted  and  described  property,  with  all 
and  singular  the  rights,  members,  and  ap- 
purtenances thereunto  appertaining,"  to 
the  grantee  in  fee  simple.  The  easement 
of  water  rights  and  water  power  privileges 
passing  under  the  deed  was  that  appur- 
tenant to  the  property-  conveyed,  and  not 
to  other  property  of  the  grantee.  Central 
Georgia  Power  Co.  v.  Cornwell  (Ga.) 
1916D-1020.  (Annotated.) 

8.  The  restriction,  following  the  grant- 
ing of  right  to  use  "at  all  times"  100 
square  inches  of  water,  "when  the  water  is 
lower  than  ...  I  restrict  myself  .  .  .  from 
using  ...  an  amount  of  water  greater 
than  that  herein  deeded,  .  .  .  viz.:  One 
hundred  square  inches" — is  only  on  the 
grantor,  and  does  not  affect  right  of  the 
grantee  to  use  100  inches  when  there  is 
less  than  twice  that  quantity.  Wilton 
Woolen  Co.  v.  G.  H.  Bass  &  Co.  (Me.) 
1916D-1023.  (Annotated.) 

9.  Though  all  the  real  estate  of  the 
grantor,  except  the  dam,  the  head  gates, 
and  the  land  on  which  they  rest  is  in- 
cluded in  the  conveyance  by  a  company 
owning  water  rights,  a  dam  and  real  es- 
tate about  it,  of  certain  described  real 
estate,  "with  the  following  water  power 
and  privilege  and  none  other,  to  wit:  The 
right  to  draw  .  .  .  water  sufficient  to  fur- 
nish forty  horse  power,"  till  the  water 
falls  to  a  certain  point  below  the  top  of 
the  dam,  when  the  grantee's  right  is  lim- 
ited to  100  square  inches,  reserving  to  the 
grantor  the  right  to  draw  through  its  own 
private  waste  gate  any  of  said  100  inches 
not  used  at  such  times,  and  providing  that 
the  grantee  is  to  bear  half  the  expense  for 
maintaining  and  repairing  the  canal  on  the 
conveyed  land,  and  the  head  gates  and 
dam — all  water  rights  of  the  grantor  in  ex- 
cess of  40-horse  power  remain  in  the 
grantor,  and  do  not  pass  to  the  grantee  ex 
necessitate  rei.  Wilton  Woolen  Co.  v.  G. 
H.  Bass  &  Co.  (Me.)  1916D-1023. 

(Annotated.) 

10.  Under  the  grant  of  right  to  draw 
water  sufficient  to  furnish  40-horse  power, 
with  limitation  of  the  grantee's  right  to 
100  square  inches,  when  the  water  falls  to 
a  certain  point  below  the  top  of  the  dam, 
the  dam  is  the  place  of  measurement  of 
the  100  square  inches,  as  well  as  of  the 
40-borse  power.  Wilton  Woolen  Co.  v.  G. 
H.  Bass  &  Co.  (Me.)  1916D-1023. 

(Annotated.) 

11.  No  limitation  as  to  time  being  stated 
in  a  grant  of  right  to  draw  water  sufficient 
to  furnish  40-hor88  power,  the  grantees" 
may  use  the  water  as  many  hours  a  day 


as  they  deem  proper.  Wilton  Woolen  Co. 
V.  G.  H.  Bass  &  Co.  (Me.)  1916D-1023. 

(Annotated.) 
Note. 

Construction  of  grant  of  water  power. 
1916r)-1002. 

c.  Appropriation. 

12.  Sabterranean  Waters — ^Appropriation. 

As  between  appropriators  of  subterraneaa 
waters,  the  first  in  time  is  the  first  in  right. 
Bower   v.   Moorman    (Idaho)    1917C-99. 

d.  Eights  to  Ice. 

13.  As  Between  Riparian  Proprietor  and 
Owner  of  Easement  of  Plowage.  A  ripar- 
ian owner  on  a  mill  dam  has  a  fixed  right 
to  take  ice  from  the  stream  where  it  flows 
over  his  land,  and  the  owners  of  the  mill 
dam  cannot  avail  themselves  of  such  right, 
although  they  have  a  right  to  an  undi- 
minished amount  of  water.  Valentino  v. 
Schantz  (N.  Y.)  1917C-780.     (Annotated.) 

Note. 

Right  to  harvest  ice  as  between  person 
having  right  of  flowage  and  riparian  pro- 
prietor.    1917C-782. 

e.    Diversion. 
(1)     In  General. 

14.  Should  it  become  necessary  to  change 
the  method  or  means  of  diverting  water 
by  a  prior  appropriator  of  subterranean 
waters,  that,  in  and  of  itself,  should  not 
deprive  a  subsequent  appropriator  from  ac- 
quiring unappropriated  subterranean  water, 
unless  it  further  appeared  that  it  would 
be  impossible  to  deliver  said  water  to  the 
diverting  works  of  the  prior  appropriator. 
Bower  v.  Moorman  (Idaho)  1917C-99. 

(Annotated.) 

15.  Decrees  entered  in  proceedings  to  es- 
tablish water  rights,  though  not  final,  are 
prima  facie  correct,  and  can  only  be  at- 
tacked in  a  direct  proceeding  instituted 
for  that  purpose.  Sogers  v.  Nevada  Canal 
Co.   (Colo.)   1917C-669. 

16.  Existence  of  Substantial  Injnry — 
Diminution  of  Flow.  Senior  appropriators, 
requiring  water,  are  substantially  damaged 
by  the  acts  of  junior  appropriators,  whose 
use  retarded  the  return  of  water  to  the 
natural  stream  for  several  days,  and  re- 
duced the  amount  taken  by  25  per  cent. 
Eogers  v.  Nevada  Canal  Co.  (Colo.)  19170- 
669. 

Note. 
Eight  of  landowner  to  sink  well  and  in- 
tercept    subterranean     waters     supplying 
neighbor's  well  or  spring.     19]  7C-106. 

(2)     Action  to  Enjoin. 

17.  Bight  to  Sue — Interest.  Where  it 
ai^pears  that  the  respondents  are  the  own- 


860 


DIGEST. 

1916C— 1918B. 


ers  in  fee  of  the  land  npon  which  artesian 
wells  are  located  and  retain  the  right  to 
the  control  and  management  of  water  flow- 
ing from  said  wells  to  the  place  of  dis- 
tribution, and  where  it  further  appears 
that  said  respondents  are  the  owners  of 
virtually  all  of  the  capital  stock  of  a  pri- 
vate corporation  to  which  the  right  to  the 
use  of  said  waters  has  been  conveyed  by 
deed,  a  motion  for  a  nonsuit  in  an  action 
by  them  to  enjoin  interference  with  the 
flow  of  water  from  said  wells,  on  the 
ground  that  they  are  not  parties  in  inter- 
est, will  not  be  entertained.  Bower  v. 
Moorman  (Idaho)  1917C-99. 

18.  If,  in  the  sinking  of  a  well,  the  flow 
from  a  well  of  an  adjoining  landowner 
and  prior  appropriator  of  subterranean 
water  is  lessened,  before  a  permanent  in- 
junction should  issue,  it  must  be  conclu- 
sively established  that  the  water  so  lost 
cannot  be  returned  from  the  well  of  the 
subsequent  appropriator  to  the  diversion 
works  of  the  prior  appropriator.  Bower  v. 
Moorman  (Idaho)  1917C-99.    (Annotated.) 

19.  It  is  held  that  the  findings  of  fact 
are  not  sufficient  to  support  the  judg- 
ment, and  it  is  accordingly  ordered  that 
the  case  be  remanded  to  the  district  court, 
with  directions  to  suspend  the  injunction, 
permitting  appellants  to  continue  the  con- 
struction of  the  well  on  said  lot  5  until  it 
is  established  that  by  reason  of  the  sink- 
ing of  appellants'  well  the  respondents' 
well  will  sustain  &  material  and  permanent 
loss  of  water  supply;  and  if  it  shall  later 
appear  to  the  satisfaction  of  the  district 
court  that  said  actual  loss  of  water  has 
been  sustained  in  respondents'  well  due  to 
the  construction  of  appellants'  well,  and 
such  water  cannot  be  returned  to  the  di- 
version works  of  respondents,  said  injunc- 
tion should  be  reinstated,  permanently 
closing  the  well  of  appellants.  Bower  v. 
Moorman  (Idaho)  1917C-99.    (Annotated.) 

20.  The  fact  that  the  sinking  of  a  well 
will  endanger  the  supply  of  water  flowing 
from  a  well  on  adjoining  land  owned  by  a 
prior  appropriator  of  subterranean  waters 
does  not  justify  the  issuance  of  a  perma- 
nent injunction,  unless  it  is  conclusively 
shown  that  the  water  supply  of  the  first 
appropriator  will  be  actually  and  perma- 
nently diminished.  Bower  v.  Moorman 
(Idaho)  1917C-99.  (Annotated.) 

21.  Although  it  may  be  found  that  in  the 
sinking  of  a  well  by  a  landowner  direct 
communication  was  made  with  the  same 
artesian  belt  or  basin  tapped  by  an  ad- 
joining landowner,  who  was  a  prior  appro- 
priator of  subterranean  water,  the  court  is 
not  justified  in  issuing  a  perpetual  injunc- 
tion prohibiting  the  completion  of  the  well 
of  a  junior  appropriator  of  subterranean 
waters,  unless  it  further  conclusively  ap- 
pears that  the  prior  appropriator  will  suf- 
fer permanent  loss  of  water  by  reason'  of 


the  tapping  of  said  artesian  belt  or  basin. 
Bower"  v.  Moorman  (Idaho)    1917C-99. 

(Annotated.) 

22.  If  the  sinking  of  M's  well  to  the 
depth  that  B's  large  well  has  been  sunk,  or 
to  a  greater  depth,  will  not  interfere  with 
the  flow  of  the  water  in  B's  well,  or  if 
there  is  a  loss  of  water  in  B's  well  occa- 
sioned by  the  sinking  of  M's  well,  which, 
in  like  quantity,  can  be  returned  to  B's 
well  without  material  damage,  and  at  the 
same  time  water  secured  in  M's  well,  the 
court  will  not  be  justified  in  issuing  a  per- 
manent injunction  preventing  the  comple- 
tion of  M's  well.  Bower  v.  Moorman 
(Idaho)   I917C-99.  (Annotated.) 

23.  Wells — Diminution  of  Flow  in  Prior 
Wells.  Before  a  iiermanent  injunction 
should  issue  in  a  case  of  this  character, 
the  evidence  should  clearly  and  conclu- 
sively establish  that  the  real  cause  of  the 
loss  of  water  flowing  from  the  well  of  a 
prior  appropriator  of  subterranean  water 
is  the  construction  of  the  well  of  a  junior 
appropriator  of  said  subterranean  water. 
Bower  v.  Moorman  (Idaho)  1917C-99. 

(Annotated.) 

f.     Obstruction. 

24.  Liability— Extraordinary   Flood.     A 

municipality  diverting  and  obstructing  the 
course  of  a  stream,  whereby  it  is  rendered 
incapable  of  carrying  away  an  extraordi- 
nary rainfall,  is  lialale  where  as  a  result 
of  such  a  rainfall  a  flood  occurs  and  ad- 
jacent property  is  damaged.  Greenock 
Corporation  v.  Caledonian  E.  Co.  (Eng.) 
1918A-11(>3.  (Annotated.) 

Note. 
Duty  of  one  obstructing  natural  water- 
course to  anticipate  extraordinary  freshets 
or  floods.     1918A-1114. 

g.    Damage  by  Floating  Logs. 

25.  Remedy  of  Riparian  Owner — Ade- 
quacy of  Legal  Remedy.  "Where  defend- 
aits  were  entitled  to  float  logs  in  a  stream, 
riparian  owners  have  an  adequate  remedy 
at  law  to  recover  for  injuries  resulting 
from  defendants'  negligence  in  allowing 
the  logs  to  jam,  so  that  the  water,  logs, 
and  flood  wood  were  thrown  on  their  land; 
hence  they  cannot  maintain  a  bill  in 
equity.  Boutwell  v.  Champlain  Realty  Co. 
(Vt.)  1918A-726. 

Note. 
Liability   of  one  using  stream  to  float 
timber   for   resulting  injuries   to  riparian 
owner.     1918A-732. 

4.     NAVIGABLE  WATERS, 
a.     State   Regulation. 

26.  Regulation  as  to  Navigable  Waters — 
Power  of  State.  Where  Congress  has  not 
acted,   the  state   legislature  may  provide 


WATERS  AND  WATERCOURSES. 


861 


for  the  development  of  a  stream  emptying 
into  one  of  the  great  rivers,  where  such 
stream  is  in  fact  navigable.  Boutwell  v. 
Champlain  Realty  Co.  (Vt.)   1918A-726. 

b.    Power  of  State  to  Declare  Navig- 
ability. 

27.  Legislative  Power  to  Determine  Navl- 
gabllity.  The  legislature  cannot  by  declar- 
ing it  navigable  make  navigable  a  stream 
which  is  not  so  in  fact.  Boutwell  v, 
Champlain  Eealty  Co.  (Vt.)   1918A-726. 

c.    Presumption  as  to  Navigability, 

28.  Waters  above  the  flow  of  the  tide 
are  prima  facie  private  in  use  as  well  as 
ownership,  and  the  burden  of  showing  that 
a  particular  stream  is  beatable  is  on  a 
person  seeking  to  use  it  as  such.  Boutwell 
v.  Champlain  Eealty  Co.  (Vt.)  1918A-726. 

d.    Ownership. 

29.  Title  to  Bed  of  Non-navigable  Lake. 
The  state  does  not  own  and  never  owned 
the  bed  of  unnavigable  lakes,  especially  in 
view  of  Wash.  Const,  art.  26,  providing 
that  the  people  of  the  state  forever  dis- 
claim all  right  and  title  to  the  unappro- 
priated public  lands  lying  within  the 
boundaries  of  the  state  and  the  Wash.  En- 
abling Act  of  February  22,  1889,  c.  180,  25 
Stat.  676,  which,  in  specifying  the  lands 
which  shall  pass  to  the  state  upon  its  ad- 
mission into  the  Union,  neither  expressly 
nor  by  implication  refers  to  unnavigable 
lakes,  and  which  provides  tliat  the  states 
provided  for  in  such  act  shall  not  be  en- 
titled to  any  further  or  other  grants  of 
land  for  any  purpose  than  as  expressly 
provided  therein,  Bernot  v.  Morrison 
(Wash.)  1916D-280.  (Annotated.) 

5.     SUEFACE    AND    PERCOLATING 

WATERS. 

30.  Relative  Rights  of  Adjoining  Own- 
ers to  Subterranean  Waters.  Where  sub- 
terranean water  exists  in  a  state  of  nature 
throughout  a  tract  of  land,  the  ownership 
of  which  is  held  in  different  proprietors, 
it  would  seem  to  be  impossible  to  adopt  a 
rule  giving  each  proprietor  the  absolute 
right  to  withdraw  all  of  the  subterranean 
waters  from  his  tract  of  land,  and  thus  de- 
stroy the  benefits  made  possible  by  the 
proper  regulation  of  subterranean  waters. 
And  an  injunction  will  issue  to  restrain 
any  permanent  interference  by  an  adjoin- 
ing landowner  with  the  right  to  the  use  of 
subterranean  water  acquired  by  a  prior 
appropriator.  Bower  v.  Moorman  (Idaho) 
1917C-99. 

31.  Deflection  by  Eailroad  Embankment. 
Defendant  railroad,  whose  occupancy  of  a 
public  highway  for  its  tracks  was  entirely 
permissive,  is  liable  for  any  damage  to  ad- 
jacent owners  caused  by  its  embankment. 


regardless  of  whether  tbe  water  so  di- 
verted was  surface  water  or  was  flowing 
through  a  natural  drainway,  and  regardless 
of  negligence  in  its  construction,  under 
the  constitutional  guaranty  that  private 
property  shall  not  be  taken  or  damaged 
for  public  use  without  due  compensation. 
Louisville,  etc.  E.  Co.  v.  Jackson  (Ark.) 
I918A-604. 

32.  In  such  case,  the  railroad,  having  no 
control  over  any  other  part  of  the  street 
except  that  occupied  by  its  tracks,  is  not 
excused  from  liability  for  damages  from 
surface  water  consequent  upon  the  raising 
cf  an  embankment  because  the  city  failed 
to  afford  additional  facilities  for  carrying 
off  the  surface  water.  Louisville,  etc.  R. 
Co.  V.  Jackson  (Ark.)  1918A-604. 

33.  In  an  action  for  damages  to  real 
property  from  an  embankment  by  defend- 
ant railroad  changing  the  flow  of  water 
and  causing  it  to  accumulate  on  plaintfff's 
property,  where  there  was  no  evidence 
that  the  injury  was  caused  by  a  failure  of 
the  city  to  maintain  and  repair  the  street, 
an  instruction  that  the  railroad  had  no 
control  over  the  street  adjoining  plaintiff's 
premises,  except  that  actually  occupied  by 
its  roadbed  and  that  any  damage  from 
surface  water  from  the  failure  of  the  city 
to  use  reasonable  care  in  the  maintenance 
of  the  street  did  not  make  it  liable,  is 
properly  refused.  Louisville,  etc.  E.  Co. 
V.  Jackson  (Ark.)  1918A-604. 

34.  Surface  water  is  a  common  enemy 
which  any  landowner  may  defend  against 
with  such  measures  as  he  may  deem  ex- 
pedient without  laying  himself  liable  to 
any  other  owner  upon  whose  land  the  water 
is  caused  to  flow.  Louisville,  etc.  E.  Co. 
V.  Jackson  (Ark.)  1918A-604. 

35.  On  evidence  in  an  action  for  dam- 
ages from  the  raising  of  a  railroad  em- 
bankment which  changed  the  flow  of  water 
and  caused  it  to  accumulate  on  plaintiff's 
property,  it  is  held  that  whether  the  ac- 
cumulation was  caused  by  the  raising  of 
the  embankment  is  a  question  for  the  jury. 
Louisville,  etc.  E.  Co.  v.  Jackson  (Ark.) 
1918A-604. 

36.  In  such  case,  the  plaintiff,  if  not  the 
owner  of  the  property  mentioned  in  his 
complaint  at  the  time  the  alleged  per- 
manent injury  from  its  acts  of  negligence 
were  committed  by  defendant  railroad, 
cannot  recover.  Louisville,  etc.  E..  Co.  v. 
Jackson  (Ark.)  1918A-604. 

37.  In  such  case,  defendant  is  liable  if 
the  gutters  as  they  existed  at  the  time 
its  embankment  was  raised  were  sufficient 
to  take  care  of  the  water,  because  they 
were  subsequently  allowed  to  fill  up  so  that 
they  could  not  take  care  of  the  water. 
Louisville,  etc.  E.  Co.  v.  Jackson  (Ark.) 
1918A-«04. 

38.  In  an  action  by  an  owner  for  dam- 
ages to  his  property  from  surface  water 


862 


DIGEST. 

1916C— 1918B. 


from  defendant  railroad's  ebange  in  its 
roadbed,  where  defendant's  evidence 
showed  that  the  flow  of  water  was  not 
sufScient  to  overflow  the  gutters  and  that 
if  it  rose  above  the  curbing  and  under 
plaintiffs  storehouse  it  was  due  to  the  fact 
that  the  gutters  were  not  cleaned,  the  re- 
fusal of  its  instruction,  that  it  had  no  duty 
to  clean  the  gutters  in  front  of  plaintiff's 
property,  and  that  if  the  damage  was 
caused  by  the  failure  of  the  city  or  any 
other  person  to  keep  them  cleaned  it  was 
not  liable,  is  error.  Louisville,  etc.  E.  Co. 
v.  Jackson  (Ark.)  1918A-604. 

WATEEWOEKS     AND     WATEE     COM- 
PANIES. 

1.  Municipal  Water  Supply,  862. 

a.  Construction  of  Contract,  862. 

b.  Meters    and   Connections,   862. 

c.  Extension  of  Mains,  862. 

d.  Rules  of  Company,  863, 

e.  Liabilities  Arising  from  Manner  of 

Performance  of  Duties,  863. 

Condemnation  of  stream,  see  Eminent  Do- 
main, 31. 

City's  power  over  streams  outside  city,  see 
Municipal  Corporations,  45. 

1.    MUNICIPAL   WATER   SUPPLY. 

a.  Construction  of  Contract. 

1.  Contracts  for  Public  Utility — Practi- 
cal Construction.  Where  a  contract  is  en- 
tered into  between  a  city  and  a  water  sup- 
ply company,  for  the  benefit  of  the  people 
of  the  city,  and  under  which  the  people 
are  entitled  to  certain  rights,  benefits  and 
privileges,  a  construction  of  the  meaning 
of  ambiguous  and  doubtful  provisions  of 
the  contract  by  one  consumer  or  bene- 
ficiary is  not  binding  upon  other  con- 
sumers, or  beneficiaries,  not  shown  to  have 
acquiesced  in  or  assented  to  such  construc- 
tion. State  ▼.  Water  Supply  Co.  (N.  Mez.) 
1916E-1290. 

b.  Meters  and  Connections, 

2.  Construction  by  Municipality.  Where 
a  franchise  granted  to  a  water  company 
provides  that  the  company  shall  have  the 
right  "to  make  rules  and  regulations,  to 
be  approved  by  the  city  council,"  and  the 
company  contends  that  it  has  adopted  and 
enforced  a  rule  which  required  the  con- 
sumer to  pay  the  cost  of  making  connec- 
tion with  its  mains,  before  the  question 
can  arise  as  to  whether  the  rule  in  question 
amounted  to  a  construction  of  the  contract 
by  the  city,  it  is  incumbent  upon  the  com- 
pany to  show  that  the  city  council  gave  its 
approval  to  the  same.  State  v.  Water  Sup- 
ply Co,   (N.  Mex,)    1916E-1290. 

3.  Public  Supply — Eight  to  Charge  Con- 
sumer With  Cost  of  Service  Pipe.  Where 
a  franchise,  under  which  a  water  supply 
eoupany  operates,  requires  it  to  furnish 


water  to  private  consumers  at  fixed  rates, 
it  must  provide  the  necessarv  service  pipe 
from  the  main  line  in  an  abutting  street 
to  the  consumer's  property  line,  at  its  own 
expense,  unless  the  franchise  imposes  this 
burden  upon  the  consumer.  State  v.  Water 
Supply  Co.  (N.  Mex.)  1916EM290. 

(Annotated.) 

4.  Where  a  municipality  operates  its  own 
water  supply  system,  it  is  not  under  con- 
tractual obligations  to  lay  the  service  pipes 
from  the  curb  to  its  main,  hence  a  rule 
which  requires  the  consumer  to  assume  the 
burden  is  reasonable.  But  where,  under  a 
contract  and  fran«hise,  this  duty  devolves 
upon  the  holder  of  the  franchise,  such  a 
rule  is  unreasonable.  State  v.  Water  Sup- 
ply Co,  (N.  Mex,)  1916E-1290. 

(Annotated,) 
Note. 
Duty  of  water  company  to  lay  service 
pipe  without  charge  to  consumer.     1&16E- 
1297. 

c.     Extension  of  Mains. 

5.  Compelling  Extension.  A  waterworks 
company,  defendant's  predecessor,  was  or- 
ganized under  Cal.  St.  1858,  p.  218,  pro- 
viding that  all  corporations  formed  or 
claiming  any  privileges  thereunder  should 
furnish  pure,  fresh  water  to  the  inhabi- 
tants of  the  city  and  county  for  family  use 
so  long  as  the  supply  permitted,  at  reason- 
able rates  and  without  distinction  of  per- 
sons, on  proper  demand  therefor,  vesting 
it  with  the  right  of  eminent  domain,  and 
granting  an  irrevocable  easement  in  the 
streets  of  the  ?ity  for  laying  its  pipes,  etc. 
Civ.  Code,  §  549,  imposed  the  obligations 
expressly  enumerated  in  the  act  of  1?58, 
and  Const,  art.  11,  §  19,  as  amended  Feb- 
ruary 12,  1885  (St.  1885,  p.  228),  provided 
that  any  duly  incorporated  company  en- 
gaged in  municipal  water  supply  might  use 
the  public  streets  for  its  pipes  and  connec- 
tions, so  far  as  necessary.  Held  that,  when 
the  company  accepted  the  franchise  oSfered 
by  the  state,  it  assumed  a  contractual  duty 
to  be  discharged  for  the  public  benefit;  a 
community  service  commensurate  with  the 
privileges  of  its  franchise  requiring  it  to 
provide  a  system  reasonably  adequate  to 
meet  the  wants  of  the  inhabitants  at  its 
commencement,  and  also  to  extend  its  sys- 
tem as  the  reasonable  wants  of  the  grow- 
ing community  might  require,  so  that, 
when  in  a  position  to  make  reasonable  ex- 
tensions of  its  mains  bounding  a  populous 
part  of  the  city,  it  was  bound  to  and 
might  be  compelled  to  do  so.  Lukrawka 
V.  Spring  Valley  Water  Co.  (Cal.)  1916D- 
277.  (Annotated.) 

6.  Where  defendant's  predecessor  ac- 
cepted a  franchise  requiring  it  to  supply 
the  inhabitants  of  a  city  and  county  with 
water,  and,  in  the  absence  of  any  showing 
that  the  primary  and  exclusive  right  to 
initiate  proceedings  to  compel  it  to  extend 
its  water  mains  to  a  growing  part  of  the 


WATER  POWEI^-WEIGHTS  AND  MEASURES. 


863 


community  was  conferred  on  the  board  of 
supervisors  or  the  state  railroad  commis- 
sion, mandamus  is  the  proper  remedy  of 
the  inhabitants  of  the  part  of  the  city 
clearly  entitled  to  compel  the  company  to 
extend  its  pipes  and  furnish  water  service 
to  them.  Lukrawka  v.  Spring  Valley 
Water  Co.  (Cal.)  1916D-277.    (Annotated.) 

7.  Such  right  to  compel  an  extension  to 
serve  inhabitants  of  a  particular  section 
is  not  an  absolute  and  unqualified  right, 
but  only  to  do  £0  where  there  is  a  reason- 
able demand  and  a  reasonable  extension 
of  service  can  be  made  to  meet  the  de- 
mand, depending  on  the  particular  facts 
of  the  case;  but  the  expenditure  in  extend- 
ing the  service  is  not  controlling  in  deter- 
mining the  reasonableness  of  a  demand 
for  it,  because  the  water  rates  established 
by  the  municipality  must  be  sufficient  to 
yield  a  fair  and  reasonable  income  on  the 
property  devoted  to  the  public  use,  which 
will  include  such  necessary  expenses.  Luk- 
rawka V.  Spring  Valley  Water  Co.  (Cal.) 
1916D-S77.  (Annotated.) 

Note. 
Power  to  compel  extension  of  water  sys- 
tem.    19I6D-280. 

d.     Eules  of  Company. 

8.  Reasonableness.  (Public  utility  com- 
panies have  a  right  to  adopt  and  enforce 
reasonable  rules  and  regulations,  for  their 
security  and  convenience  and  enforce  com- 
pliance therewith  by  refusing  or  discon- 
tinuing the  service;  but  such  rules  must 
be  reasonable,  just,  lawful  and  not  dis- 
criminatory. State  V.  Water  Supply  Co. 
(N.  Mex.)   191<3*E-1290. 

9.  Power  to  Shift  Burden  Imposed  by 
Franchise.  Where  a  franchise,  under  which 
a  public  utility  company  operates,  imposes 
a  burden  upon  the  company,  any  rule  or 
regulation  adopted  by  the  company,  by 
which  it  attempts  to  shift  the  burden  upon 
the  consumer,  is  unreasonable  and  unjust, 
and  will  not  be  enforced.  State  v.  Water 
Supply  Co.   (N.  Mex.)   1916-1290. 

e.     Liabilities    Arising    from    Manner    of 
Performance  of  Duties. 

10.  Failure  to  Furnish  Water — Liability 
for  Loss  by  Fire.  Where  a  waterworks 
company  contracts  with  a  city  to  furnish 
it  and  its  inhabitants  water,  citizens  whose 
property  is  destroyed  through  fire  owing 
to  the  company's  negligent  failure  to  fur- 
nish water  may  recover  against  it.  Powell  - 
&  Powell  V.  Wake  Water  Co.  (N.  Car.) 
1917A-1302. 

11.  Underground  Water  Pipes — ^Liability 
for  Injuries.  A  person  conveying  water  in 
underground  pipes,  by  virtue  of  a  license 
to  use  a  public  street  for  that  purpose,  is 
liable  irrespective  of  negligence  for  in- 
juries caused  by  the  bursting  of  a  pipe. 


Charing  Cross  Elec.  Supply  Co.  v.  Hydrau- 
lic Supply  Co.  (Eng.)  1916C-1046. 

(Annotated.) 
Note. 
Liability  for  injuries  caused  by  ander> 
ground  water  pipes.     1916C-1050. 

WATER  POWER. 

Nature  of  grant,  see  Waters  and  Water- 
courses, 6-11. 


See  Easements. 


WATS. 


WEALTH. 

Reference  to  defendant's  wealth,  see  Argnr 
ment  and  Conduct  of  Counsel,  19. 

WEAPONS. 

Soldier's  pledge  of  arms,  see  Army  and 

Navy,  10-12. 
Assault  with  deadly  weapon,  see  Assault,  2. 

1.  Set-gun— Conviction  Sustained.  In  a 
prosecution  for  homicide  resulting  from  a 
gun  set  by  defendant  in  his  orchard  to 
protect  it  against  apple  thieves,  evidence 
held  to  sustain  a  conviction  for  man- 
slaughter in  the  second  degree.  Schmidt 
V.  State  (Wis.)  1916E-107. 

2.  Razor  as  Deadly  Weapon.  A  "razor" 
is  defined  as  a  sharp  instrument  or  tool 
used  for  shaving  purposes.  Brown  r.  State 
(Miss.)  1916E-307.  (Annotated.) 

3.  A  razor  is  not  a  "deadly  weapon," 
within  Miss,  Code  190G,  §  1103,  making 
any  person  guilty  of  a  misdemeanor  who 
carries  concealed  any  bowie  knife,  dirk 
knife,  butcher  knife,  pistol,  brass  or  me- 
tallic knuckles,  slungshot,  sword,  or  deadly 
weapon  of  like  kind  or  description.  Brown 
V.  State  (Miss.)  1916E-307.     (Annotated.) 

Note. 
What     constitutes     "deadly     Treapon." 
1916E-308. 

WEBB-KENTON  ACT. 

See  Intoxicating  Liquors,  58. 

WEEKLT  REST  DAT. 

See  Labor  Laws,  24-32. 

WEIGHT  OF  EVIDENCB. 

See  Evidence,  149-164. 


WEIGHTS  AND  MEASURES. 

1.  RequlTBment  of  PubUc  Weighing — 
Validity.  Mo.  Laws  1913,  p.  354,  relative 
to  the  inspection  of  hay  and  grain,  includ- 
ing the  provisions  relative  to  the  weighing 
and  grading  of  grain  by  state  inspectors. 


864 


DIGEST. 

1916C— 1918B. 


and  section  63  (p.  372),  prohibiting  the 
issuance  of  weight  certificates  except  by  a 
bonded  state  weigher,  etc.,  are  valid  as  a 
proper  exercise  of  the  police  powers  of  the 
state.  State  v.  Merchants'  Exchange 
(Mo.)  1917E-871.  (Annotated.) 

2.  Mo.  Laws  1913,  p.  354,  relative  to 
weighing  and  grading  of  grain  by  state 
inspectors  and  the  issuing  of  certificates 
therefor,  does  not  interfere  in  a  material 
sense  with  interstate  commerce.  State  v. 
Merchants'  Exchange   (Mo.)   1917E-871. 

(Annotated.) 

3.  Mo.  laws  1913,  p.  354,  relative  to  the 
inspection  of  hay  and  grain,  does  not  per- 
mit the  weighing  and  certifying  of  weights 
of  grain  both  by  the  state's  bonded  weigher 
and  a  private  warehouseman.  State  v. 
Merchants'  Exchange  (Mo.)  1917E-871. 

(Annotated.) 

WEIJ.S. 

Enjoining  diversion  of  water,  see  Waters 
and  Watercourses,  17-23. 


WHARVES. 

Liability  for  injury  to  invitees,  see  Neg- 
ligence, 10-12. 

Liability  for  injury  to  licensee,  see  Neg- 
ligence, 14-16,  21. 

WHEELS. 

Liability  of  manufacturer  for  injury,  see 
Automobiles,  58-62. 

WHITE  SLAVERY. 
See  Prostitution,  14,  15,  21. 

WHOLESALE  VENDOR. 

Meaning,  see  Licenses,  24. 

WILD  ANIMALS. 

See  Animals,  11-26. 

Subject  of  larceny  when  reclaimed,  see 
Larceny,  1. 

WILFULLY. 
Meaning,  see  Assault,  1, 

WILFULLY  AND  UNLAWFULLY. 

Meaning,  see  Indictments  and  Informa- 
tions, 13. 

WILLS. 

1.  Power  of  Disposition,  865. 

2.  Estates  Divisible,  865. 

3.  Contract  to  Make  Will,  865. 

4.  Formal  Requisites  to  Validity,  865. 

a.  Signature,  865. 

b.  Attestation,  866. 


c.  Date,  867. 

d.  Publication,  867. 

e.  Residuary  Clause,  867. 

f.  Nuncupative  Will,  867. 

g.  Holographic  Will,  868. 

h.  Evidence  and  Questions  for  Jury, 
868. 
6.  Testamentary  Capacity,  868. 

a.  Who  may  Make  Will,  868. 

b.  Mental  Capacity.  869. 

(1)  In  General^  869. 

(2)  Insane  Delusion  or  Keligioui 

Belief,  869. 

(3)  Evidence,  869. 

(a)  Burden  of  Proof,  869. 

(b)  Admissibility,  870. 

(c)  Weight  and  Sufficiency, 

871. 

(4)  Instructions,  871. 

6.  Undue  Influence,  872. 

7.  Mistake,  872. 

8.  Revocation,  872. 

a.  In  General,  872. 

b.  Subsequent  Will  or  Writing,  872, 
«.  Subsequent  Marriage,  872. 

d.  Revival,  873. 

9.  Probate,  873. 

a.  Jurisdiction   and  Nature   of  Pro- 

ceedings, 873. 

b.  Abatement  of  Contest,  874 

c.  Parties,  874. 

d.  Pleadings  and  Issues,  874. 

e.  Evidence,  875. 

f.  Hearing  and  Order  of  Proof,  875. 

g.  Findin£rs.  875. 
h.  Appeal,  875. 
i.  Costs,  876. 

j.  Effect  of  Death  of  Contestant,  876. 
k.  Probate  of  Later  Will  After  For- 
mer  Probate,  876. 
10.  Construction,  876. 

a.  General  Rules  of  Construction,  876. 

(1)  Intention  of  Testator,  876. 

(2)  Giving  Meaning  to  All  Parts. 

877.  ' 

(3)  Meaning  of  Words,  877. 

(4)  Inconsistent  Provisions,  877. 

(5)  Avoiding  Partial   Intestacy. 

877. 

(6)  Construction  to  Sustain  Will. 

877.  ' 

(7)  Error   Cured   by   Other    Re- 

citals, 877. 

(8)  Later  and  Earlier  Wills,  877. 

(9)  Codicils,  878. 

(10)  Enumeration  Following  Gen- 

eral Words,  878. 

(11)  Supplying     Omitted     Word, 

878. 

(12)  General  Words  Controlled  by 

Special,   878. 

(13)  Evidence  in  Aid  of  Construc- 

tion, 878. 

b.  Construction  of  Particular  Words, 

879. 

(1)  "Heirs"  or  "Heir9  at  Law" 

or   "Lawful  Heirs,"  879. 

(2)  Other  Words,  880. 


WILLS. 


865 


C.  Construction  of  Particular  Provi- 
sions, 881. 

(1)  Eesiduary  Clause,  881. 

(2)  De  Agnation     of     Executor, 

882. 

(3)  Vested  or  Contingent  Estate, 

882. 

(4)  Remainders,  882. 

(5)  Presumption  as  to  Tenancy 

in  Common,   883. 

(6)  Per   Capita    or  Per   Stirpes, 

883. 

(7)  Implied  Devise  or  Bequest, 

883. 

(8)  Gift,  883. 

(9)  Trust  Estates,  883. 

(10)  Power    of    Disposition    and 
Control,  883. 
d.  Suit  for  Construction,  884. 

11.  Validity  of  Provisions,  884. 

a.  Restraint  of  Marriage,  884. 

b.  Gift  Subversive  of  Religion,  885. 

c.  Gift  to  WitneBB,  885. 

d.  Trust  Provisions,  885. 

e.  Effect  of  Invalid  Provisions,  885. 

12,  Legatees  and  Devisees,  885. 

a.  Nature  of  Legacy  or  devise,  885. 

b.  Acceptance,  885. 

c.  Lapsing  and  Ademption,  886. 

d.  Election,  886. 

(1)  Acts  Constituting,  886. 

(2)  Effect,  886. 

e.  Eight  to  Accumulation  and  Income, 

886. 

f.  Agreement  for  Division,   886. 
See  Conversion  and  Eeconversion,  3,  5,  7. 
Designation  of  beneficiary  of  benefit  con- 
tract, see  Beneficial  Associations,  26. 

Deed  to  take  effect  after  death  not  testa- 
mentary, see  Deeds,  19. 

Perpetuating  testimony  as  to  competency 
of  live  testator,  see  Depositions,  1. 

Nature  of  right  to  give  and  take  by  will, 
see  Descent  and  Distribution,  2. 

Testamentary  capacity,  opinion  evidence, 
see  Evidence,  75. 

Finding  will  after  appointment,  effect,  see 
Executors  and  Administrators,  8. 

Power  of  sale  as  including  power  to  mort- 
gage, see  Executors  and  Administra- 
tors, 36,  37. 

Power  to  sell  not  power  to  give  option,  see 
Executors  and  Administrators,  42. 

Contest  by  heir's  administrator,  see  Exec- 
utors and  Administrators,  73-75. 

Power  of  guardian  respecting  ward's  will, 
see  Guardian  and  Ward,  9,  10. 

Void  as  appointing  a  fund  in  perpetuity, 
see  Perpetuities,  1. 

Correction  in  equity,  see  Rescission,  Can- 
cellation and  Reformation,  1. 

Contract  to  make  will,  see  Specific  Per- 
formance, 2-5,  9. 

Testamentary  Trusts,  see  Trusts  and  Trus- 
tees, 2,  3,  11,  12. 

1.     POWER  OF  DISPOSITION. 
1.  Injudicious  Disposition  by  Will.     The 
right  to  dispose  of  property  by  will  is  as- 
55 


sured  by  the  law,  and  does  not  depend 
upon  its  .iudicious  use.  Points  v.  Nier 
(Wash.)   1918A-1046. 

2.  Eight  to  Limit.  The  right  to  dispose 
of  property  by  will  is  a  creature  of  stat- 
ute; and  hence  suflh  right  may  be  limited. 
Porter  v.  Union  Trust  Co.  (Ind.)  1917D- 
427. 

3.  As  Natural  Bight.  The  right  to  dis- 
pose of  property  by  will  is  not  a  natural 
right  protected  by  the  constitution,  but  is 
one  conferred  and  regulated  by  statate. 
Peace  v.  Edwards  (N.  Car.)  1918A-778. 

2.     ESTATES  DIVISIBLE. 

4.  Contingent  Remainder  as  "Interest" 
in  Land.  A  contingent  remainder  is,  if 
the  person  who  is  to  take  is  certain,  such 
an  "interest  in  real  estate"  as  to  be  sub- 
ject to  devise  by  the  remainderman.  Hill 
V.  Purdy  (D.  C.)  1918B-847.    (Annotated.) 

3.     CONTRACT  TO  MAKE  WILL. 

5.  Oral  Contract  to  Devise  —  Validity. 

An  alleged  oral  contract  by  a  person  since 
deceased  to  will  property  to  the  plaintiff  is 
void  as  within  the  statute  of  frauds. 
Brown  v.  Golightly  (S.  Car.)  1918A-1185. 

(Annotated.) 

6.  An  oral  contract  by  which  one  of  the 
parties  agrees  to  make  a  will  with  a  de- 
vise of  specific  property  to  the  other,  as 
compensation  for  services  rendered  and  to 
be  rendered  to  the  former  during  his  life, 
is  valid  and  enforceable.  Gordon  v.  Spell- 
man  (Ga.)  1918A-852. 

7.  Contract  not  to  Change — ^Validity.  A 
contract  whereby  one  party  thereto  agreed 
that  his  will  disposing  of  property,  already 
made,  in  favor  of  the  other  party  to  the 
contract,  may  be  specifically  enforced, 
shall  remain  unchanged,  and  he  may  not 
avoid  the  agreement  of  devising  his  prop- 
erty by  subsequent  will  to  others,  unless 
there  are  circumstances  making  it  inequi- 
table to  enforce  the  agreement.  White  v. 
Winchester  (Md.)  1916D-1156. 

(Annotated.) 

4.     FORMAL  REQUISITES  TO  VALID- 
ITY. 

a.     Signature. 

8.  Definition  of  Term  "Sign."  To  "sign" 
a  document  is  to  aflix  a  signature  thereto, 
to  ratify  by  hand  or  seal,  or  to  subscribe 
in  one's  own  handwriting.  Estate  of  Man- 
chester   (Cal.)    1918B-227. 

9.  To  "sign"  a  document  is  to  make  any 
mark  upon  it  in  token  of  knowledge,  ap- 
proval, acceptance,  or  obligation,  and  the 
"signature"  is  the  sign  thus  made,  and, 
wherever  placed,  the  fact  that  it  was  in- 
tended as  an  executing  signature  must  sat- 
isfactorily appear  on  the  document's  face. 
Estate  of  Manchester  (Cal.)  1918B-227. 

10.  Place  of  Signature — Intent.  Where 
a  signature  is  at  the  end  of  a  will,  uni- 
versal custom  creates  the  conclusion  that 


866 


DIGEST. 

1916C— 1918B. 


it  was  appended  as  an  execution;  if  else- 
where, it  is  for  the  court  to  say  from  in- 
spection of  the  whole  document^  as  to 
language  as  well  as  form  and  relative  posi- 
tion of  parts,  whether  that  was  the  inton- 
tion.  Estate  of  Manchester  (Cal.)  1918B- 
227. 

11.  Signing  by  Another  Person,  Under 
Miss.  Code  1906,  §  5078,  permitting  sign- 
ing of  a  will  for  testator  by  another  in 
testator's  presence  and  by  his  express  di- 
rection, J,  A.,  unable  to  read  or  write,  to 
the  knowledge  of  W.,  having  requested  W. 
to  fill  out  his  will,  the  writing  by  W.  of 
the  name  of  J.  A.  at  the  beginning  of  it, 
"I,  J.  A.,  .  .  .  give  and  bequeath,"  it  then 
being  properly  attested,  and  handed  back 
to  J.  A.,  all  parties  understanding  it  to  be 
a  completed  instrument,  will  be  considered 
a  suflScient  signing.  Armstrong  v.  Walton 
(Miss.)  1916E-137.  (Annotated.) 

12.  Necessity  of  Signature  at  End.  Un- 
der Miss.  Code  1906,  §  5078,  providing  a 
will  must  be  signed,  without  stating 
where,  it  is  unnecessary  that  the  signing 
be  at  the  end.  Armstrong  v.  Walton 
(Miss.)  1916E-137.  (Annotated.) 

13.  Necessity  of  Signature  at  End — Olo- 
graphic WHL  An  olographic  will  contain- 
ing testatrix's  name  at  beginning  of  docu- 
ment, and  closing  with,  "whereunto  I 
hereby  set  my  hand,  etc.,"  but  not  sub- 
scribed, is  not  "siened,"  as  required  by 
Cal.  Civ.  Code,  §  1277,  in  view  of  section 
13,  which  provides  that  words  are  to  be 
construed  as  ordinarily  used  and  according 
to  context.  Estate  of  Manchester  (Cal.) 
1918B-227.  (Annotated.) 

14.  Signature  by  Mark.  A  testator  who 
signs  his  will  by  mark,  while  another  has 
written  his  name,  signs  and  executes  the 
will  himself,  within  Eem.  &  Bal.  Wash. 
Code,  §  1320,  providing  that  every  will 
shall  be  in  writing,  "signed"  by  testator, 
and  section  1321,  providing  that  every 
person  who  shall  sign  testator's  name  to 
any  will  by  his  direction  shall  subscribe 
his  own  name  as  a  witness  and  state  that 
he  subscribed  testator's  name  at  his  re- 
quest, applies  only  to  a  case  in  which  the 
name  of  testator  is  subscribed  by  another 
at  testator's  request  and  testator  himself 
does  no  act,  by  making  his  mark  or  other- 
wise, to  sign  the  will.  Wilson  v.  Craig 
(Wash.)  1917B-871.  (Annotated.) 

15.  Name  in  Body  of  Will.  Under  N. 
Car.  Revisal  1905,  §  3113,  requiring  that 
a  will  be  signed,  the  name  of  the  testator 
appearing  in  his  handwriting  in  the  body 
of  the  will  is  a  signing,  and  it  is  not 
necessarv  that  it  be  subscribed.  Peace  v. 
Edwards  (N.  Car.)  1918A-778. 

16.  Mark  by  Testator.  Rem.  &  Bal. 
Wash.  Code,  §  1321,  providing  that  every 
person  who  shall  sign  testator's  name  to 
any  will  by  his  direction  shall  subscribe 
his  own  name  as  witness,  and  state  that  he 
subscribed  testator's  name  at  his  request, 


does  not  apply  to  the  case  of  a  nnrse  who 
wrote  testatrix's  name,  by  direction  of  her 
physician,  on  the  will,  and  then  assisted 
testatrix  to  make  her  mark  after  the 
name,  the  signature  being  by  mark  and 
made  by  testatrix  herself.  Points  v.  Nier 
(Wash.)  1918A-1046.    ■ 

17.  A  last  will  and  testament  can  be 
signed  by  mark.  Points  v.  Nier  (Wash.) 
1918A-1046. 

18.  Where  .a  competent  testatrix  signs 
her  will  by  mark,  but  only  with  assistance, 
the  mark  is  nevertheless  her  signature. 
Points  V.  Nier  (Wash.)   1918A-1046. 

19.  The  evidence  is  held  to  be  sufficient 
to  show  that  testatrix  subscribed,  signed, 
or  authorized  signature  of  her  name  or 
mark  to  the  purported  wiU,  that  if  any 
person  did  sign  testatrix's  name  or  mark, 
such  person  subscribed  as  a  witness,  and 
that  the  subscribing  witness,  testatrix's 
physicians,  subscribed  at  the  request  of. 
testatrix  or  in  her  presence.  Points  v. 
Nier  (Wash.)  1918A-1046. 

Notes. 

Sufficiency  of  signature  of  testator  to 
wiU  with  respect  to  manner  of  signing. 
1917B-874. 

Necessity  that  will  be  signed  by  testa- 
tor at  end  thereof  in  absence  of  statute  so 
requiring.     1916E-140. 

b.     Attestation, 

20.  What  Law  Governs.  Under  Colo. 
Rev,  St.  1908,  §  7071,  requiring  a  will  to  oe 
attested  by  two  or  more  credible  wit- 
nesses, the  competency  of  attesting  wit- 
nesses must  be  determined  by  the  statute 
law  relating  to  competency  of  witnesses 
and  not  by  the  common  law.  White  v. 
Bower  (Colo.)  1917A-835. 

21.  Wife  of  Beneficiary  as  Competent 
Witness.  In  view  of  Me.  Rev.  St.  c.  77, 
under  which  a  wife  takes  one-half  of  all 
the  real  estate  of  which  the  husband  was 
seised  during  coverture  upon  his  death 
without  issue,  and  one-third  upon  his  death 
with  issue,  and  the  husband  is  powerless 
to  alienate  or  in  any  way  dispose  of  her 
statutory  interest  without  her  consent,  or 
without  paying  her  the  appraised  value 
thereof,  the  wife  of  a  person  to  whom  a 
will  gave  personal  property  and  real  es- 
tate in  fee  was  "beneficially  interested" 
within  Rev,  St.  c.  76,  I  1,  requiring  a  will 
to  be  subscribed  by  three  credible  attest- 
ing witnesses  not  beneficially  interested 
under  such  will,  as  her  interest  was  not  re- 
mote and  uncertain,  but  direct  and  fixed, 
and  the  fact  that  it  was  contingent  was 
immaterial.  Clark's  Appeal  (Me.)  1917A- 
837,  (Annotated.) 

22.  Colo.  Laws  1883.  p.  289.  expressly 
and  entirely  removes  all  disability  in  wit- 
nesses from  testifying  on  account  of  inter- 
est, so  that,  if  the  wife  of  a  beneficiary 


WIIiLS. 


867 


under  a  will  has  any  interest,  it  does  not 
disqualify  her.  White  v.  Bower  (Colo.) 
1917A-835.  (Annotated.) 

23.  Under  Colo.  Eev.  St.  1908,  §  7071,  re- 
quiring wills  to  be  attested  by  two  or 
more  credible  witnesses,  "credible"  mean- 
ing competent  to  testify  to  its  execution, 
and  section  7074,  declaring  that  a  bequest 
to  a  subscribing  witness  void  utiless  at- 
tested bv  a  sufficient  number  of  other  com- 
petent witnesses,  the  wife  of  a  beneficiary 
under  a  will  is  competent  to  witness  its 
execution.  White  y.  Bower  (Colo.)  1917A- 
835.  (Annotated.) 

24.  Competency  of  Husband  of  Devisee 
as  Witness,  Burns'  Ind.  Ann.  St.  1914, 
§  525,  providing  that  when  the  husband  or 
wife  is  a  party  to  an  action  and  not  a 
competent  witness  in  his  or  her  own  be- 
half the  other  shall  also  be  excluded,  and 
section  522,  providing  that  in  suits  by  or 
against  heirs  or  devisees  founded  on  a 
contract  with  or  demand  against  the  an- 
cestor to  obtain  title  to  or  possession  of 
property,  neither  p'Jrty  shall  be  a  compe- 
tent witness  as  to  any  matter  which 
occurred  prior  to  the  death  of  the  ances- 
tor, do  not  make  the  husband  of  one  of 
the  devisees  named  in  a  will  an  incompe- 
tent witness  under  section  3132,  requiring 
wills  to  be  attested  and  subscribed  in  the 
presence  of  the  testator  by  two  or  more 
competent  witnesses,  in  view  of  section 
3144,  providing  that  a  witness  beneficially 
interested  may  be  compelled  to  testify 
when  necessary,  but  may  not  take  any 
property  of  the  decedent  other  than  what 
he  would  have  taken  by  the  law  of  de- 
scent. Kaufman  v.  Murray  (Ind.)  1917 A- 
832.  (Annotated.) 

25.  "Credible  Witness."  As  construed 
by  the  common  law,  a  "credible  witness" 
to  a  will  means  a  "competent  witness." 
Clark's  At^peal  (Me.)  1917A-837. 

26.  Competency  of  Witness  for  One  Pur- 
pose Only.  The  witnesses  to  a  will  can- 
not be  competent  for  one  purpose  and  in- 
competent for  another.  Clark's  Appeal 
(Me.)   1917A-837. 

27.  Time  of  Determination.  Under  Me. 
Rev.  St.  c.  76,  §  2,  providing  that,  when 
the  witnesses  to  a  will  are  competent  at 
the  time  of  attestation,  their  subsequent 
incompetency  will  not  prevent  the  probate 
of  the  will,  the  witnesses  must  be  compe- 
tent at  the  time  of  the  execution  of  the 
will.     Clark's  Appeal   (Me.)    1917A-837. 

28.  Wm  of  Blind  Man— Sufficiency  of 
Execution.  The  will  of  a  blind  man, 
signed  by  the  witnesses  only  four  feet 
from  him,  while  he  had  opportunity  to 
know  by  the  sense  of  hearing  that  they 
were  signing  the  paper  which  he  had 
signed,  the  witnesses  testifying  that  he 
knew  they  signed  the  will  in  his  presence, 
was  not  invalid,  as  having  been  signed  by 
the  witnesses  out  of  testator's  presence, 
since    an    attestation   in    the    same    room 


where  a  blind  testator  is,  while  his  intel- 
lect and  hearing  remain  unimpaired,  and 
he  is  conscious  of  what  is  going  on  about 
him,  is  a  sufficient  signing  in  his  presence. 
In  re  AUred's  Will  (N.  Car.)  1916D-788. 

(Annotated.) 
Note. 

Competency,  as  attesting  witness  to 
will,  of  husband  or  wife  of  beneficiary. 
1917A-833. 

e.    Date. 

29.  Necessity  of  Date.  In  view  of  N. 
Car.  Revisal  1905,  §  3113,  prescribing  the 
formalities  necessary  to  the  execution  of 
a  valid  will,  but  not  requiring  that  it  shall 
be  dated  or  subscribed,  a  will  without  a 
date  is  valid.  Peace  v.  Edwards  (N.  Car.) 
1918A-778. 

d.     Publication. 

30.  Without  due  publication,  an  instru- 
ment is  not  a  valid  will.  In  re  Williams' 
Estate  (Mont.)  1917E-126. 

e.  Residuary  Clause. 

31.  Form  and  Requisites.  No  particular 
mode  of  expression  is  necessary  to  con- 
stitute a  residuary  clause  in  a  will,  all  that 
is  necessary  being  an  adequate  designa- 
tion of  what  has  not  otherwise  been  dis- 
posed of,  and  the  fact  that  a  provision  so 
operating  is  not  called  a  residuary  clause  is 
immaterial,  since  "residue"  means  that 
which  remains.  Faison  v.  Middleton 
(N.  Car.)  1917E-72. 

f.  Nuncupative  Will. 

37.  Attempt  to  Make  Formal  Will  as 
Nuncupative  Will.  Under  Rem.  &  Bal. 
Wash.  Code,  §  1330,  providing  that  no  nun- 
cupative will  shall  be  good  when  the  es- 
tate bequeathed  exceeds  the  value  of  $200, 
unless  proved  by  two  witnesses  present  at 
the  making  thereof,  unless  there  is  proof 
that  testator,  when  pronouncing  it,  bade 
some  person  present  to  bear  witness  that 
it  was  his  will,  and  unless  it  was  made  at 
the  last  sickness  and  at  the  dwelling  house 
of  decedent  or  where  he  had  been  resid- 
ing for  ten  davs  or  more,  it  is  not  only 
necessary  that  decedent  should  intend  to 
make  a  will,  but  he  must  intend  to  make 
an  oral  will,  and  words  spoken  at  the 
time  of  the  signing  of  a  writing  actually 
intended  by  decedent  as  a  written  will, 
and  reduced  to  writing  by  witnesses  and 
filed  in  court,  do  not  constitute  a  nun- 
cupative will.  Brown  v.  State  (Wash.) 
1917D-604,  (Annotated.) 

38.  The  evidence,  in  a  proceeding  for  the 
probate  of  an  alleged  nuncupative  will,  is 
held  to  show  that  decedent's  intention 
was  to  make  a  written  will,  which  fact 
was  not 'changed  by  the  failure  of  his  at> 
tempt  to  make  a  written  will  because  of 
defective  attestation.  Brown  v.  State 
(Wash.)  1917D-604.  (Annotated.) 


868 


DIGEST. 

1916C— 1918B. 


39.  Nnncupative  Wills  not  Favored. 
Nuncupative  wilJs  are  not  favored  in  law, 
because  of  the  great  opportunities  for 
fraud  and  -nerjury  attending  the  probating 
of  sueh  wills.  Brown  v.  State  (Wash.) 
1917D-604. 

Note. 
Attempt  to  make  formal  will  as  consti- 
tuting nuncupative  will.     1917D-608. 

g.    Holographic  Will. 

40.  Where  a  holographic  will  was  not 
signed  as  required  by  Cal.  Civ.  Code, 
§  1277,  indorsement  "my  will,"  with  dece- 
dent's signature,  on  the  envelope  contain- 
ing it,  does  not  cure  the  defect,  merely 
showing  her  belief  that  it  was  a  valid 
will,  and  the  envelope  not  being  a  part 
of  the  will.  Estate  of  Manchester  (Cal.) 
1918B-227.  (Annotated.) 

h.     Evidence  and  Questions  for  Jury. 

41.  Manner  of  Execution  —  Intent  of 
Testator.  The  power  and  method  of  tes- 
tamentary disposition  is  within  legislative 
control,  and,  in  determining  whether  a 
will  is  properly  executed,  testator's  inten- 
tion cannot  be  considered.  Estate  of  Man- 
chester (Cal.)  1918B-227. 

42.  Wife  of  Beneficiary  as  Witness. 
Under  Colo.  Rev.  St.  1908,  §  7274,  provid- 
ing that  a  wife  shall  not  be  examined  for 
or  against  her  husband  without  his  con- 
sent, a  married  woman  who  attested  a  will 
under  which  her  husband  was  a  benefi- 
ciary, and  which  he  was  seeking  to  estab- 
lish, may  testify  for  the  will.  White  v. 
Bower  (Colo.)   1917A-835.       (Annotated.) 

43.  Conclusiveness  of  Testimony  of  Sub- 
scribing Witnesses.  Wliere  a  will  is  con- 
tested, neither  party  is  limited  to  the  tes- 
timony of  the  subscribing  witnesses,  and 
either  party  may  present  other  evidence 
to  overcome  the  adverse  testimony  of  such 
witnesses.  The  questions  in  controversy 
are  to  be  determined  from  all  the  evidence 
bearing  thereon,  and  not  from  the  testi- 
mony of  the  subscribing  witnesses  only. 
Madson  v.  Christenson  (Minn.)  1916D- 
1101.  (Annotated.) 

44.  Necessity  of  Calling  Subscribing 
Witnesses.  The  statute  requires  that  all 
subscribing  witnesses,  "who  are  within  the 
state  and  are  competent  and  able  to  tes- 
tify, shall  be  produced  and  examined."' 
Where  the  proponent  called  a  subscribing 
witness  and  examined  him  as  to  the  man- 
ner in  which  the  will  was  executed,  the 
failure  to  examine  him  as  to  the  sanity  of 
the  testator  will  not  defeat  the  will,  if 
such  sanity  be  proven  by  other  evidence. 
By  calling  him  as  a  witness,  his  testi- 
mony was  made  available,  and,  if  contest- 
ants desired  his  testimony  upon  matters 
««mitted  by  proponent,  it  was  incumbent 


unon  them  to  examine  him  in  respect 
thereto.  Madson  v.  Christenson  (Minn.) 
1916D-1101. 

45.  Proof  of  Nuncupative  Will.  To  sus- 
tain a  will  as  a  nuncupative  will,  it  must 
be  proved  that  decedent,  while  uttering 
the  words  offered  as  a  will,  had  a  present 
testamentary  intention,  and  that  he  in- 
tended that  the  very  words,  then  uttered, 
and  no  others,  should  constitute  his  will; 
if  he  gives  instructions  for  a  will  which  is 
subsequently  to  be  drawn  up  and  executed 
in  writing,  and  it  is  not  done,  or  if  he 
gives  oral  directions  which  are  taken  down 
in  the  form  of  a  will,  which  he  fails  to 
execute  as  a  formal  written  will  because 
of  his  death  before  he  can  do  so,  the  writ- 
ing cannot  be  sustained  as  nuncupative 
will.     Brown  v.  State  (Wash.)  1917D-604. 

(Annotated.) 

46.  Holographic  Will  —  Sufllciency  of 
Evidence  to  Establish.  In  a  will  contest 
where  the  jury  were  instructed  that  a 
holographic  will  must  be  established  by 
the  unimpeachable  evidence  of  at  least 
three  disinterested  witnesses  that  the  en- 
tire body  of  the  will  and  the  signature 
were  in  the  handwriting  of  the  testator, 
the  evidence  is  held  to  be  sufficient  to  war- 
rant a  finding  for  the  contestee.  Mason 
v.  Bowen  (Ark.)  1917D-713. 

47.  In  a  will  contest,  the  evidence  is 
held  to  be  sufficient  to  warrant  a  jury 
finding  that  the  will  was  attested  by  two 
witnesses  in  the  manner  required  by  the 
statute.  Mason  v.  Bowen  (Ark.)  1917I>- 
713. 

48.  Proof  of  Genuineness  of  Signature — 
Weight  of  Evidence.  The  declaration  of 
two  credible  witnesses  who  attest  that 
they  recognize  a  testament  as  being  en- 
tirely written,  dated,  and  signed  in  the 
testator's  handwriting,  corroborated  by 
the  testimony  of  an  expert  in  handwrit- 
ing, and  by  the  recitals  of  the  will,  and 
by  other  rarious  extraneous  facts,  will  pre- 
vail over  the  testimony  of  two  witnesses, 
who  swear  that  a  part  of  the  date  was  not 
written  by  the  testator,  unsupported  by 
any  other  circumstances.  Succession  of 
Lefort  (La.)  1917E-769. 

Note. 
Conclusiveness    of    testimony    of    sub- 
scribing witnesses  with  respect  to  execu- 
tion of  will.     1916D-1104. 


5.     TESTAMENTARY    CAPACITT. 

a.     Who  May  Make  Will. 

49.  Age  and  Infirmity.  Infirmity  from 
old  age  does  not  render  a  person,  inca- 
pable of  making  a  will  unless  it  has  so  far 
impaired  t4e  testator's  mind  that  he  is  in- 
capable of  understanding  his  business  at 
the  time  he  is  engaged  in  making  the  will, 
Carnahan  v.  Hamilton  (HI.)  1916C-21. 


WILLS. 


869 


Note. 

Validity  of  will  made  by  blind  person. 
1916D-792. 

b.    Mental  Capacity. 
(1)     In  General. 

50.  Test  of  Testamentary  Capacity. 
While  sufficient  mind  and  memory  to  at- 
tend to  the  ordinary  business  affairs  of 
life  makes  one  competent  to  make  a  will, 
such  test  is  higher  than  the  law  requires. 
Ravenscroft  v.  Stall  (111.)  1918B-1130. 

51.  The  quantum  of  mental  capacity 
requisite  to  the  valid  execution  of  a  wiil 
is  that  the  testator  shall,  at  the  time  of 
executing  the  will,  know  and  understand 
what  he  is  about.  Points  v.  Nier  (Wash.) 
1918A-ia46. 

52.  The  test  of  "testamentary  capacity*' 
ig  that  the  testator  shall  remember  with- 
out prompting  the  extent  and  condition  of 
his  property,  comprehend  to  whom  he  is 
giving  it,  and  be  capable  of  appreciating 
the  claims  of  others  whom  he  is  excluding 
from  participation  in  the  estate.  Mason 
V.  Bowen  (Ark.)  1917D-713. 

53.  A  person  who  is  capable  of  transact- 
ing ordinary  business  is  capable  of  mak- 
ing a  valid  will.  Carnahan  t.  Hamilton 
vlll.)  1916C-21, 

54.  It  is  not  a  rule  of  law  that  testator 
should  have  sufficient  strength  of  mind  to 
know  what  property  he  owned  "without 
prompting."  (Jarnahan  v.  Hamilton  (111.) 
1916C-21. 

55.  To  incapacitate  the  person  from 
making  a  will,  the  derangement  must  be 
of  that  character  which  renders  him  in- 
capable of  understanding  the  effect  and 
consequences  of  his  act;  it  must  be  a  want 
of  capacity  which  prevents  him  from  un- 
derstanding the  relation  of  cause  and 
effect  in  ordinary  business  matters.  Car- 
nahan V.  Hamilton  (lU.)  1916C-21. 

56.  Ancestral  Insanity  —  Presumption, 
It  cannot  be  presumed  that  the  testator  is 
insane  merely  because  his  father  was  in- 
sane, as,  until  the  disease  manifests  its 
presence,  its  existence  cannot  be  inferred 
in  the  mind  of  the  person  in  auestion. 
Carnahan  v.  Hamilton  (111.)  19ieC-21. 

57.  Person  Partly  Paraljrzed.  One  who 
knows  his  property,  his  relatives  and  heirs 
at  law,  and  what  disposition  he  desires  to 
make  of  his  estate  and  informs  the  scriv- 

.  ener  of  his  wishes  has  testamentary  capa- 
city, though  he  is  suffering  from  a  para- 
lytic stroke  depriving  him  ot  the  use  of  a 
part  of  his  body,  and  so  affecting  his 
speech  as  to  cause  him  to  speak*  with  diffi- 
cultv,  though  he  can  be  understood.  Wil- 
son V.  Craig  (Wash.)  1917B-871. 

58.  Belief  in  Spiritualism  and  Witcli- 
craft.  The  fact  that  a  person  believes  in 
witchcraft,  clairvoyance,  spiritual  influ- 
ences, presentments  of  the  occurrences  of 


future  events,  dreams,  mind-reading,  and 
the  like  does  not  show  testamentary  inca- 
pacity as  a  man's  belief  cannot  be  made 
a  test  of  sanity.  Carnahan  v.  Hamilton 
(HI.)  1916C-21. 

(2)     Insane  Delusion  or  Religious  Belief. 

59.  "Monomania,"  within  Ga.  Civ.  Code 
1910,  §  3840,  providing  that  a  monomaniac 
may  make  a  will  in  no  way  resulting  from 
the  mania,  is  a  mental  disease;  not  merely 
the  unreasonable  conduct  of  a  sane  person. 
It  is  a  species  of  insanity.  "Mania"  is  a 
form  of  insanity  accompanied  by  more  or 
less  excitement  which  sometimes  amounts 
to  fury.  An  "insane  delusion,"  such  as 
will  deprive  a  person  of  testamentary 
capacity,  is  the  delusion  which  exists 
when  a  person  conceives  something  extra- 
vagant to  exist  which  has  no  existence 
whatever,  and  is  incapable  of  being  per- 
manently reasoned  out  of  that  conception. 
Dibble  v.  Currier  (Ga.)  1916C-1. 

(Annotated.) 

60.  Insane  Delusion.  An  "insane  delu- 
sion" which  will  render  one  incapable  of 
making  a  will  is  a  belief  in  a  state  or  con- 
dition of  things  in  the  existence  of  which 
no  rational  person  would  believe,  or  a  be- 
lief in  something  impossible  in  the  nature 
of  things,  or  impossible  under  circum- 
stances surrounding  the  individual,  and 
which  refuses  to  yield  either  to  evidence 
or  reason.  Carnahan  v.  Hamilton  (HI.) 
1916C-21.  (Annotated.) 

61.  Prejudice  of  the  testator  against  a 
relative  is  not  ground  for  setting  aside  a 
will  unless  it  can  be  explained  upon  no 
other  ground  than  that  of  an  insane  delu- 
sion, Carnahan  v.  Hamilton  (111.)  1916C- 
21.  (Annotated.) 

62.  A  "delusion"  of  a  testator,  such  as 
will  invalidate  a  will,  is  an  insane  belief 
or  a  mere  figment  of  the  imagination.  In 
re  Alexander's  Estate  (Pa.)  I9ieC-33, 

(Annotated.) 

63.  An  "insane  delusion"  is  an  idea  or 
belief  which  springs  spontaneously  from 
a  diseased  or  perverted  mind  without  rea- 
son or  without  foundation  in  fact.  It  is 
distinguishable  from  a  belief  which  is 
founded  upon  prejudice  or  aversion,  no 
matter  how  unreasonable  or  unfounded  the 
prejudice  or  aversion  may  be,  and  if  it  is 
the  product  of  a  reasoning  mind,  no  mat- 
ter how  slight  the  evidence  on  which  it  is 
based,  it  cannot  be  classed  as  an  insane 
delusion.  Coffey  v.  Miller  (Ky.)  1916C- 
aO.  (Annotated.) 

Note, 

Insane  delusion  with  respect  to  rela- 
tive as  affecting  testamentary  capacity. 
1916C-4, 

(3)     Evidence, 
(a)     Burden  of  Proof. 
64.  The  burden  is  on  a  party,  relying  on 
the  existence  of  a  delusion  to  invalidate  a 


870 


DIGEST. 

1916C— 1918B. 


will,  to  prove  that  such  delusion  controlled 
the  testator's  volition  and  destroyed  his 
freedom  of  action  in  disposing  of  his  es- 
tate. In  re  Alexander's  Estate  (Pa.) 
1916C-33.  (Annotated.) 

(b)     Admissibility. 

65.  Opinion  Evidence.  Where  the  pro- 
ponents produced  witnesses  who  stated 
that  testator  had  capacity  to  make  a  will, 
the  contestant,  to  meet  the  opinions  of 
such  witnesses,  may  introduce  witnesses 
who  will  state  their  opinion  that  testator 
did  not  have  such  capacity.  Eavenscroft 
V.  Stull  (ni.)  1918B-1130. 

66.  Evidence  as  to  Capacity.  A  party 
to  a  will  contest  has  a  right  to  ascertain 
and  present  to  the  jury  any  fact  in  rela- 
tion to  the  mental  capacity  of  the  tes- 
tator and  the  strength  of  his  mental 
powers.  Eavenscroft  v.  Stull  (111.)  1918B- 
1130. 

67.  General  Business  Capacity  of  Tes- 
tator. Witnesses  may  be  asked  as  to  the 
ability  of  testator  to  transact  ordinary 
business.  Eavenscroft  v.  Stull  (HI.) 
1918B-1130. 

68.  Kemote  Statements  of  Testator. 
Statements  imputed  to  testator,  four  or 
fiye  years  previous  to  his  death,  concern- 
ing his  intention  to  give  his  property  to  a 
certain  person,  are  inadmissible  as  too  re- 
mote. Eavenscroft  v.  Stull  (111.)  I918B- 
1130. 

69.  Use  of  Intoxicants  by  Testator.  Evi- 
dence of  testator's  habit  of  drinking  in- 
toxicating liquors  is  admissible.  Eavens- 
croft V.  Stull  (HI.)  1918B-1130. 

70.  No  Change  in  Testator's  Condition 
Observed.  In  a  will  contest  in  which  it 
was  claimed  that  testator  did  not  have  tes- 
tamentary capacity,  a  witness  may  state 
that  he  had  observed  no  change  in  tes- 
tator, and  that  he  was,  on  the  day  the  will 
was  executed,  the  same  as  he  was  any 
other  day  the  witness  ever  saw  him.  Car- 
nahan  v.  Hamilton  (111.)  1916C-21. 

71.  Inequality  of  Disposition,  Unequal 
disposition  of  property  is  a  circumstance 
which  the  jury  may  consider  in  connection 
with  other  evidence  in  passing  on  the 
mental  capacity  of  the  testator.  Carna- 
han  V.  Hamilton  (HI.)   1916C-21. 

72.  Declarations  of  Testator.  State- 
ments and  declarations  of  a  testator, 
whether  made  a  reasonable  time  before  or 
after  the  execution  of  a  will,  are  admis- 
sible to  show  his  mental  capacity  when 
that  issue  is  raised,  being  external  mani- 
festations of  his  mental  condition. 
Mason  v.  Bowen  (Ark.)  1917D-713. 

73.  In  a  will  contest,  evidence  of  a  state- 
ment by  the  testator  that  the  contestee 
owed  buu  money,  and  that  he  was  going 


to  live  with  him  for  the  purpose  of  col- 
lecting this  debt,  is  inadmissible  upon  the 
question  of  undue  influence,  since  state- 
ments and  declarations  of  a  testator, 
whether  made  before  or  after  the  execu- 
tion of  a  will,  are  not  competent  as  di- 
rect or  substantive  evidence  of  undue  in- 
fluence, and  are  merely  hearsay.  Mason 
T.  Bowen  (Ark.)  1917D-713. 

(Annotated.) 

74.  In  a  will  contest,  statements  of  the 
testator,  made  more  than  two  years  prior 
to  making  his  will,  and  before  going  to 
live  with  the  contestee,  that  he  intended 
his  property  to  go  to  his  relatives  on  his 
death  are  inadmissible  as  too  remote  to 
have  any  value  in  proving  the  mental 
capacity  of  the  testator,  since  declara- 
tions of  a  testator,  made  prior  to  the  ex- 
ecution of  a  will,  are  entitled  to  probative 
force,  according  to  the  nearness  or  remote- 
ness of  the  time  at  which  they  were  made; 
the  time  to  be  covered  being  left  to  the 
discretion  of  the  trial  court.  Mason  v. 
Bowen  (Ark.)  1917D-713. 

75.  Unnatural  Disposition  of  Property. 
Where  a  will  was  attacked  for  incapacity 
of  the  testatrix  and  undue  influence,  evi- 
dence of  the  great  wealth  of  the  princi- 
pal beneflciary  is  admissible  on  the  ques- 
tion of  the  unnaturalness  of  the  will;  it 
appearing  that  testatrix  practically  disin- 
herited her  grandchild,  who  was  her  only 
near  blood  relation;  such  evidence  being 
material  on  the  question  of  capacity  and 
undue  influence.  In  re  Williams'  Estate 
(Mont.)  1917E-126.  (Annotated.) 

76.  Declaration  of  Iiegatee.  In  a  will 
contest,  where  there  are  two  legatees,  evi- 
dence that  one  of  them  had  once  said  that 
testator's  mind  had  weakened  or  failed 
from  the  use  of  medicine,  and  that  he 
could  hardly  recollect  anything,  the  effort 
being  to  attack  the  whole  will,  and  to  in- 
validate it  as  a  whole,  is  incompetent,  as 
affecting  the  other  legatee.  McDonald  v. 
McLendon  (N.  Car.)  191SA-1063. 

(Annotated.) 

77.  Irrelevant  Evidence.  As  regards  the 
issue  of  lack  of  mental  capacity  of  tes- 
tatrix, introduction  of  conveyances  by  her, 
and  of  personal  tax  returns  of  propounder, 
made  after  testatrix's  death,  all  having 
no  bearing,  is  harmless.  In  re  Eawlings' 
Will  (N.  Car.)  1918A-948. 

Notes. 

Admissibility  of  declaration  of  legatee 
or  devisee  as  to  mental  capacity  of  tes- 
tator.    1918A-1066. 

Admissibility  of  declarations  of  tes- 
tator not  made  at  time  of  execution  of 
will,  on  question  of  undue  influence. 
191TD-717. 

Unnatural  or  unjust  disposition  of  es- 
tate as  evidence  of  testamentary  incapa- 
city.    1917E-130. 


WILLS. 


871 


Eight  of  physician  who  attended  tes- 
tator before  his  death  to  testify  as  to  his 
mental   condition.     1918A-1050. 

(c)     Weight  and  Sufficiency. 

78.  In  a  will  contest,  the  evidence  is 
held  to  be  sufficient  to  sustain  finding  that 
testatrix  had  testamentary  capacity  at  the 
time  of  executing  the  will.  Points  v.  Nier 
(Wash.)   1918A-1046. 

79.  Evidence  in  support  of  a  petition  for 
an  issue  devisavit  vel  non  held  insufficient 
to  show  that  the  will  was  executed  in  con- 
sequence of  an  insane  delusion  on  the  part 
of  the  testator,  the  petitioner's  father, 
though  testator  practically  disinherited 
her  and  may  have  been  mistaken  in  his 
judgment  that  she  had  been  guilty  of  un- 
natural conduct  toward  him  and  her 
mother.  In  re  Alexander's  Estate  (Pa.) 
1916C-33.  (Annotated.) 

80.  Evidence  in  a  will  contest  held  in- 
sufficient to  show  testamentary  incapacity, 
in  that  testator  had  an  insane  delusion 
that  certain  of  his  nieces  and  nephews 
had  mistreated  him.  Coffey  v.  Miller  (Ky.) 
1916C-30.  (Annotated.J 

81.  Evidence  of  Incapacity  Insufficient. 
In  a  will  contest,  a  finding  that  a  testator 
72  years  of  age  was  wanting  in  testa- 
mentary capacity  held  against  the  great 
weight  of  the  evidence.  Carnahan  v, 
Hamilton   (111.)    1916C-21. 

82.  Foolish  Conduct  as  Evidence  of  In- 
capacity. That  an  old  man,  a  widower  72 
years  of  age,  after  his  daughter's  death, 
proposed  marriage  to  two  different  women, 
is  not  very  strong  proof  of  unsoundness 
of  mind,  especially  where  he  was  unhappy 
with  his  home  life  with  his  son-in-law. 
Carnahan  v.  Hamilton  (111.)   1916C-21. 

83.  Disease  as  Evidence  of  Incapacity. 
Hardening  of  the  arteries  is  no  proof  of 
testator's  mental  incapacity  without  a 
showing  that  it  actually  did  affect  the 
mind.  Carnahan  v.  Hamilton  (111.)  1916C- 
21. 

84.  Excitability  as  Evidence  of  Incapa-. 
city.  The  fact  that  testator  shed  tears 
when  conversing  about  his  deceased 
daughter,  or  grew  excited  when  talking 
about  business  affairs  that  were  troubling 
him,  does  not  in  itself  prove  testamentary 
incapacity.  Carnahan  v.  Hamilton  (111.) 
1916C-21. 

85.  Unequal  Division  as  Indicating  In- 
capacity. The  unequal  division  of  prop- 
erty among  his  heirs  does  not  itself  jus- 
tify a  finding  of  want  of  testamentary 
capacity,  as  the  testator  has  the  right  to 
dispose  of  his  property  as  he  thinks  best. 
Carnahan  v.  Hamilton  (111.)  1916C-21. 

86.  Disease.  To  sustain  an  allegation  of 
want  of  testamentary  capacity,  something 


more  than  mere  physical  disease  and  old 
age  on  the  part  ot  the  testator  must  be 
shown.  Carnahan  v.  Hamilton  (111.) 
1916C-21. 

87.  Mental  Capacity  Established.  In  a 
will  contest,  the  evidence  is  held  to  be 
sufficient  to  warrant  a  jury  finding  that 
the  testator  had  the  mental  capacity  to 
make  a  will.  Mason  v.  Bowen  (Ark.) 
1917D-713. 

88.  Lack  of  Capacity  Established.  The 
evidence  on  a  will  contest  is  held  to  sus- 
tain a  finding  of  lack  of  mental  capacity. 
In  re  Eawlings'  Will  (N.  Car.)  1918A- 
948. 

(4)     Instructions. 

89.  Comprehension  of  Estate  "Without 
Prompting."  An  instruction  in  a  will  case 
basing  mental  capacity  on  understanding 
the  nature  and  extent  of  his  property 
"without  prompting"  is  erroneous,  where 
there  is  no  evidence  that  he  was  prompted. 
Carnahan  v.  Hamilton  (111.)   1916C-21. 

90.  Injustice  of  WilL  An  instruction  on 
mental  capacity  of  a  testator  that  testator, 
if  mentally  unsound,  did  not  have  the 
right  to  cut  off  his  grandchild  with  $100, 
was  erroneous  as  assuming  that  only  $100 
was  given,  where  there  was  evidence  that 
she  received  personal  property  in  addition 
to  the  money.  Carnahan  v.  Hamilton 
(111.)  1916C-21. 

91.  An  instruction  on  testamentary  ca- 
pacity that  if  testator  was  of  sound  mind 
he  had  the  right  to  cut  off  his  grandchild, 
as  only  heir  at  law,  and  had  the  right  to 
give  his  property  to  persons  who  would 
not  have  been  heirs  at  law  had  he  died 
without  q.  will,  but  if  he  did  not  possess 
a  sound  mind  or  memory  then  he  had  no 
right  to  cut  her  off  and  give  his  property 
to  persons  not  his  heirs,  is  erroneous  as 
having  a  tendency  to  permit  the  jury  to 
decide  whether  the  will  was  just  or  unjust 
as  to  the  various  relatives.  Carnahan  v. 
Hamilton  (111.)   1916C-21. 

92.  Instruction  not  Warranted  by  Evi- 
dence. Where  at  the  time  a  testator 
made  a  will  there  was  no  evidence  that 
he  was  suffering  from  mental  derange- 
ment, anger,  or  jealousy,  an  instruction 
based  on  those  facts  is  erroneous.  Car- 
nahan v.  Hamilton  (111.)  1916C-21. 

93.  Instructions  as  to  Capacity.  An  in- 
struction that,  if  testator  was  of  unsound 
mind  when  he  executed  the  will,  they 
should  find  that  it  was  not  his  will,  though 
they  might  believe  that  he  could  enter 
into  conversation  with  some  witnesses  on 
the  dav  of  making  the  will,  is  error.  Eav- 
enscroft  v.  Stull  (111.)  1918B-1130. 

94.  Use  of  Intoxicants  by  Testator.  It 
is  proper  to  instruct  that  the  jury  may 
consider  the  use  of  intoxicating  liquors  by 
testator  for   the  purpose   of   determining 


872 


DIGEST. 

19160— 1918B. 


whether  he  had  mental  capacity  to  make 
a  will.  Bavenscroft  v.  Stull  (111.)  1918B- 
1130. 

95.  Confidential  Relations.  In  a  will  con- 
test, a  requested  instruction  that  confiden- 
tial relations  between  proponent  and  tes- 
tator, and  the  fact  that  she  was  substan- 
tially benefited  by  the  will,  did  not  change 
the  burden  of  proof,  is  properly  refused. 
Ravenscroft  v.  StuU  (111.)  1918B-1130. 

96.  As  to  Burden  of  Proof.  The  jury 
being  distinctly  charged  that  the  burden 
of  proving  lack  of  mental  capacity  of  tes- 
tatrix was  on  caveators,  and  that  they 
must  satisfy  the  jury  that  testatrix  did 
not  have  sufficient  mental  capacity,  the 
concluding  sentence,  "If  they  have  failed 
to  so  satisfy  you,  and  the  propounder  has 
satisfied  you  that  she  did  not  have  suffi- 
cient capacity,  you  will  answer  .  .  .  "Yes" 
to  the  issue  did  she  have  sufficient  mental 
capacity,  cannot  mislead  the  jury  to  under- 
stand that  the  burden  of  proving  mental 
capacity  is  on  the  propounder.  In  re  Eaw- 
lings'  Will  (N.  Car.)  1918A-948. 

6.     UNDUE  INFLUENCE. 

97.  What  Constitutes.  The  "undue  in- 
fluence" which  will  avoid  a  will  is  that, 
directly  connected  with  its  execution,  re- 
sulting from  fear,  coercion,  or  other  cause, 
that  deprives  the  testator  of  his  free 
agency  in  the  disposition  of  his  property, 
and  is  especially  directed  toward  procur- 
ing a  will  in  favor  of  particular  parties, 
and  does  not  include  the  legitimate  influ- 
ence from  natural  affection.  Mason  v. 
Bowen  (Ark.)  1917D-713. 

98.  Circnmstances  Considered.  Old  age, 
bad  health,  and  weakness  of  mind  in  tes- 
tator are  to  be  considered  upon  the  issue 
of  undue  influence.  McDonald  v.  McLen- 
don  (N.  Car.)  1918A-1063. 

99.  Sufficiency  of  Evidence.  In  a  will 
contest,  the  evidence  is  held  to  be  suffi- 
cient to  warrant  a  jury  finding  that  the 
will  was  not  procured  by  undue  influence. 
Mason  v.  Bowen  (Ark.)  1917D-713. 

100.  Evidence  Insufficient.  Evidence  in 
a  will  contest  held  insufficient  to  raise  an 
issue  of  undue  influence.  Coffey  v.  Miller 
(Ky.)   1916C-30. 

101.  Presumption.  If  the  fact  that  the 
son  of  a  blind  testator,  to  whom  he  left 
property,  had  remained  at  home,  looking 
after  his  father  and  managing  the  prop- 
erty, is  sufficient  to  raise  a  presumption 
of  undue  influence,  such  presumption  is  one 
of  fact  only,  merely  entitling  caveators  to 
the  will  to  have  the  question  submitted 
to  the  jury,  so  that  the  court's  refusal  to 
charge  that  such  presumption,  if  the  facts 
necessary  to  establish  it  are  found,  is  de- 
cisive of  the  issue,  is  proper.  In  re  All- 
red's  Will  (N.  Car.)  1916D-788. 


7.     MISTAKE. 


102.  Mistake  of  Fact.  A  "mistake  of 
fact"  such  as  under  Ga.  Civ.  Code  1910, 
§  3836,  will  nullify  in  part  the  operation 
of  a  wiU  is  a  mistake  arising  from  mere 
ignorance,  and  not  one  resulting  from  an 
error  of  judgment  after  investigation,  or 
wilful  failure  to  make  a  proper  investiga- 
tion by  means  of  which  the  truth  could  be 
readily  and  surely  ascertained.  Dibble  v. 
Currier  (Ga.)  1916C-1. 

103.  Allegations  to  the  effect  that  the 
testatrix  desired  to  have  her  male  rela- 
tives maim  or  kill  her  former  husband,  and 
to  have  her  female  relatives  urge  them  so 
to  do,  that  because  they  refused  to  do  so 
she  believed  that  she  was  disgraced  in  the 
eyes  of  the  community  by  them,  and  that 
they  did  not  sympathize  with  her  but  with 
her  former  husband,  and  were  prompted 
thereby  in  refusing  her  request,  and  that 
this  constituted  a  mistake  of  fact  as  to 
the  conduct  of  the  heirs  at  law,  were 
subject  to  demurrer.  Such  allegations 
amounted  only  to  alleging  erroneous  infer- 
ences or  conclusions  drawn  by  the  testatrix 
from  their  refusal  to  comply  with  her  il- 
legal request.  Dibble  v.  Currier  (Ga.) 
1916C-1.  (Annotated.) 

8.    REVOCATION, 
a.    In  General. 

104.  Common-law  Bules.  As  the  stat- 
utes afford  no  rule  for  determining  by 
what  "act  and  operation  of  law"  a  will  of 
real  estate  may  be  revoked,  the  rules  of 
the  common  law  must  be  applied.  Herzog 
v.  Trust  Co.  (Fla.)  1917A-201. 

b.     Subsequent  Will  or  Writing. 

105.  Subsequent  invaUd  Will.  Under  the 
111.  statute  of  Wills  (Kurd's  Rev.  St.  1913, 
c.  148,  §  17)  providing  that  no  will  shall 
be  revoked  otherwise  than  by  destroying 
it,  or  by  other  will,  -testament  or  codicil  in 
writing  declaring  the  same,  signed  bj'  tes- 
tator in  the  presence  of  two  or  more  wit- 
nesses, and  attested  by  them  in  his  pres- 
ence,  a  former  will  and  codicil  are  not 
revoked  by  an  instrument  intended  as  a 
subsequent  will  which  expressly  revoked 
them,  but  was  invalid  because  of  th3  in- 
competency of  one  of  the  subscribing  wit- 
nesses. Moore  v.  Hewlett  (111.)  1916E- 
718. 

c.     Subsequent  Marriage. 

106.  Effect  of  Marriage.  At  common  law 
marriage  alone  did  not  cause  a  revocation 
by  operation  of  law  of  a  prenuptial  will  of 
a  man;  the  wife  having  her  dower  rights, 
notwithstanding  the  will.  Herzog  v.  Trust 
Co.  (Fla.)  1917A-201.  (Annotated.) 

107.  Effect  of  Marriage.  As  a  widow  is 
liberally  provided    for    by    her    statutory 


WILLS. 


873 


Tights  in  her  hushand's  estate,  which  she 
may  have  notwithstanding  the  execution  of 
a  will  by  her  husband,  whether  executed  be- 
fore or  after  the  marriage,  there  is  no  good 
reason  for  a  judicial  change  of  the  com- 
mon-law rule  that  marriage  alone  docs  not 
cause  a  revocation  of  a  man's  will,  when 
the  rule  has  not  been  changed  by  statute. 
Herzog  v.  Trust  Co.  (Ma.)  1917A-201. 

(Annotated.) 

108.  Eem,  &  Bal.  Wash.  Code,  §  1323,  pro- 
viding that  if,  after  making  any  will,  the 
testator  shall  marry  and  the  wife  shall  be 
living  at  the  death  of  the  testator,  such 
will  shall  be  deemed  revoked,  applies  to  a 
will  made  by  a  married  woman,  and  re- 
vokes such  will  upon  her  subsequent  remar- 
riage. In  re  Van  Guelpen's  Estate  (Wash.) 
1917C-1037.  (Annotated.) 

110.  Under  Cal.  Civ.  Code,  §  1299,  pro- 
viding that  if,  after  making  a  will,  the 
testator  marries  and  the  wife  survives 
him,  the  will  is  revoked,  unless  provi- 
sion has  been  made  for  her  by  marriage 
contract  or  by  the  will,  or  she  is  men- 
tioned in  such  way  therein  as  to  show 
an  intention  not  to  make  such  provision, 
an  antenuptial  will  standing  alone  con- 
taining no  provision  for,  nor  mention  of, 
testator's  wife,  is  revoked  by  his  mar- 
riage and  death  leaving  her  surviving 
him.  Estate  of  Cutting  (Cal.)  1917D- 
1171. 

Notes. 

Revocation  of  will  of  woman  by  subse- 
quent  marriage.     1917C-1039. 

Effect  on  will  of  marriage  of  testator 
without    issue.     1917A-203. 


d.     Revival. 

111.  An  instrument  "hereby  aflSrming 
my  will,*'  except  as  herein  modified,  and 
declaring  the  following  to  be  a  codicil 
to  testator's  last  will,  followed  by  the 
provisions  modifying  the  will,  repub- 
lishes the  will,  though  it  was  an  ante- 
nuptial will  making  no  provision  for  tes- 
tator's wife,  and  he  died  leaving  his  wife 
surviving.  Estate  of  Cutting  (Cal.) 
1917D-1171.  (Annotated.) 

112.  By  Codicil.  Under  Cal.  Civ.  Code, 
§  1287,  providing  that  the  execution  of 
a  codicil  referring  to  a  previous  will  re- 
publishes the  will  as  modified  by  the 
codicil,  an  antenuptial  will  may  be  re- 
published by  the  execution  of  a  codicil, 
notwithstanding  section  1299,  providing 
that  an  antenuptial  will  making  no  men- 
tion of  testator's  wife  is  revoked  by  his 
marriage  and  death  leaving  her  surviv- 
ing, and  that  no  other  evidence  to  rebut 
the  presumption  of  revocation  must  be 
received.  Estate  of  Cutting  (Cal.) 
1917D-1171.  (Annotated.) 


113.  Destruction  of  Bevoklng  Will. 
The  destruction  by  the  testator  of  a  will 
whereby  the  former  will  was  revoked 
operates  to  revive  the  former  will.  Moore 
V.  Eowlett  (111.)   1916E-718. 

(Annotated.) 

Note. 
Revival   of  will   revoked  by   marriage. 
1917r)-1175. 


9.     PROBATE. 

a.    Jurisdiction   and   Nature   of  Proceed- 
ings. 

114.  Jurisdiction.  The  city  court  of 
Mattoon  has  jurisdiction  of  a  will  con- 
test by  bill  in  chancery,  such  suit  being 
of  the  same  nature  as  the  common-law 
right  to  a  contest.  Ravenscroft  v.  StuU 
(111.)    1918B-1130. 

115.  Statute  Authorizing  Contest  — 
Strict  Construction.  The  right  of  action 
to  contest  a  will,  being  purely  statutory, 
is  in  derogation  of  common  law,  and  sub- 
ject to  the  rule  that  its  provisions  must 
be  strictly  construed.  Braeuel  v.  Reu- 
ther  (Mo.)   1918B-533. 

116.  Cancellation  During  Life  of  Tes- 
tator, An  action  will  not  lie  during  the 
lifetime  of  testator  to  compel  the  surren- 
der and  cancellation  of  a  will  in  the  cus- 
tody and  control  of  defendant,  on  the 
ground  that  testator  does  not  possess  tes- 
tamentary capacity.  Pond  v.  Faust 
(Wash.)    1918A-736.  (Annotated.) 

117.  Probate  and  Contest — Jurisdiction 
■ — Exclusiveness  of  Statute.  No  court  has 
jurisdiction  of  any  kind  over  wills,  ex- 
cept as  provided  by  Rem.  &  Bal.  Wash. 
Code,  §§  12S9,  1293,  1294,  1297,  1307- 
1311,  touching  the  production  of  wills  for 
probate  and  their  contest,  which  are  com- 
prehensive and  exclusive.  Pond  v.  Faust 
(Wash.)    1918A-736. 

118.  Conclusiveness  of  Prohate.  The 
probate  of  the  will  in  solemn  form  is  con- 
clusive of  its  validity.  In  an  action 
against  the  devisee,  to  impress  a  trust 
upon  the  property  devised,  because  of  the 
testator's  violation  of  his  contract  to  de- 
vise the  property  to  the  plaintiff,  it  is 
irrelevant  to  inquire  into  the  testa- 
mentary capacity  of  the  testator,  or  any 
undue  influence  alleged  to  have  been  ex- 
erted by  the  devisee  in  procuring  the 
execution  of  the  will,  and  under  the  facts 
of  the  case  an  instruction  on  these  sub- 
jects is  prejudicial  error  requiring  a  new 
trial.  Gordon  v.  Spellman  (Ga.)  1918A- 
852. 

119.  Requisites  of  Jurisdiction — Notic« 
to  Nonresidents.    Both  under  N.  Y.  Code 


874 


DIGEST. 

1916C— 1918B. 


Civ.  Proc.  §  2629  et  seq.,  autliorizing  issu- 
ance of  ancillary  letters  upon  foreign  pro- 
bate of  a  will,  and  under  general  rules 
of  law,  a  proceeding  in  another  state  for 
the  probate  of  a  will  is  in  rem,  and,  if 
the  court  otherwise  has  jurisdiction,  it 
may  make  a  decree  binding  on  nonresi- 
dents, though  no  notice  is  required  or 
given  on  the  original  probate  and  the  pro- 
bate becomes  conclusive  in  the  absence  of 
contest  within  a  given  period.  Matter 
of  Horton  (N.  Y.)   1918A-611, 

(Annotated.) 

120.  Effect  In  Other  Jurisdictions.    The 

decision  by  the  court  of  another  state  in 
probate  proceedings  that  the  domicil  of 
the  testator  at  his  death  was  in  that  state 
is  not  conclusive  upon  persons  in  New 
York  who  were  not  parties  to  the  pro- 
ceeding, and  may  be  contested  in  the 
New  York  courts.  Matter  of  Horton 
(N.  Y.)  1918A-611. 

Note. 

Conclusiveness  in  domestic  courts  of 
foreign  will  duly  probated  abroad. 
191«A-614. 

Bight  to  annul  or  establish  will  before 
death  of  testator.     1918A-738. 

b.     Abatement  of  Contest. 

121.  Death  of  Contestant.  If  a  will 
contest  is  no  different  from  an  ordinary 
civil  proceeding,  it  will  survive  and  may 
be  revived  under  Mo.  Bev.  St.  1909, 
§§  1916-1925,  in  the  name  of  the  successor 
to  the  parties  plaintiff,  in  view  of  section 
1916,  providing  that  no  action  shall  abate 
by  the  death,  marriage,  or  other  disabil- 
ity of  a  party  if  the  cause  of  action  sur- 
vives. Braeuel  v.  Beuther  (Mo.)  I918B- 
533. 

c.     Parties. 

122.  Who  may  Contest — Legatee.  Un- 
der Code  Ala.  1907,  §  6196,  giving  the 
right  to  contest  a  will  to  any  person  in- 
terested therein,  or  who,  if  the  testator 
had  died  intestate,  would  have  been  an 
heir  or  distributee  of  his  estate,  and  sec- 
tion 6207  giving  the  right  to  contest  a 
will  by  a  bill  in  chancery  to  any  person 
interested  in  any  will  who  has  not  con- 
tested it  under  the  provisions  of  section 
6196,  the  right  to  contest  is  given  only 
to  one  who  has  some  direct  legal  or  equi- 
table interest  in  decedent's  estate,  which 
will  be  injuriously  affected  by  the  estab- 
lishment of  the  will,  and  legatees,  who 
are  children  of  a  living  heir  of  testator, 
are  not  entitled  to  contest.  Braasch  v. 
Worthington    (Ala.)    1917C-903. 

(Annotated.) 

123.  Persona  Entitled  to  Contest — Inter- 
est.   A  will  contest  as  authorized  by  an 


interested  person  under  Mo.  Bev.  St.  1909, 
§  555,  can  be  brought  only  by  one  having 
a  direct  pecuniary  interest  in  the  final  de- 
termination. Braeuel  v.  Beuther  (Mo.) 
1918B-533. 

124.  Joinder  of  Complainants  Without 
Interest — Dismissal  for  Misjoinder.  Where 
some  complainants  in  a  bill  to  contest  the 
will  and  to  remove  the  estate  into  chan- 
cery for  administration  had  no  interest  in 
the  will,  except  as  legatees,  and  were  there- 
fore not  entitled  to  contest,  and  the  court 
had  already,  on  another  petition,  assumed 
jurisdiction  over  the  administration  of  the 
estate,  it  is  proper  to  sustain  a  demurrer 
as  to  the  entire  bill  for  misjoinder  of  par- 
ties complainant.  Braasch  v.  Worthington 
(Ala.)  1917C-903. 

125.  Parties.  The  executors  of  a  widow, 
to  whom  a  testator  had  devised  his  prop- 
erty in  fee  by  a  will  previously  probated, 
are  interested  in  an  application  for  the  pro- 
bate of  an  alleged  subsequent  will  which 
gave  the  widow  only  a  life  estate  and  are 
proper  parties  to  the  probate  proceedings, 
though  not  heirs  of  the  husband  or  legatees 
under  the  will  offered  for  probate.  Conzet 
V.  Hibben  (lU.)  1918A-1197. 

Note. 
Bight  of  person  who  is  merely  legatee  or 
devisee  to  contest  will.     1917C-905. 


d.    Pleadings  and  Issues. 

126.  Monomania.  A  caveat  to  the  pro- 
pounding of  a  will  alleged  that  the  testa- 
trix made  an  unfortunate  marriage;  that 
her  husband  deserted  her,  and  she  obtained 
a  divorce  from  him;  that  she  brooded  so 
much  over  the  unhappy  events  and  out- 
come of  the  marriage  that  her  mind  be- 
came unbalanced  and  incapable  of  ratioci- 
nation with  reference  to  it  and  events  asso- 
ciated with  it  or  arising  from  it;  that, 
under  an  insane  delusion  with  reference  to 
the  relationship  and  the  continuation  of 
the  affection  between  herself  and  her  heirs 
at  law,  she  sought  to  have  her  former  hus- 
band killed  or  maimed  by  them,  and,  be- 
cause of  their  refusal  to  comply  with  such 
request,  she  became  imbued  with  the  hal- 
lucination that  they  were  not  of  her  blood 
or  family,  were  not  related  to  her,  and 
were  not  entitled  to  her  affection  and 
treatment  as  kinsmen;  that  she  became 
possessed  of  an  insane  delusion  that  she 
was  disgraced  in  the  eyes  of  the  com- 
munity by  her  relatives,  because  they 
would  not  maim  or  kill  her  former  hus- 
band; that  she  was  mistaken  as  to  their 
condemning  her  or  not  sympathizing  with 
her,  and  in  believing  that  they  did  not  con- 
demn her  former  husband;  that  they  as- 
sured her  of  that  fact,  but  she  was  pos- 
sessed  of    the   insane   hallucination   that 


WILLS. 


875 


nothing  short  of  the  maiming  of  her  former 
husband  would  relieve  her  of  the  supposed 
contempt  in  which  she  thought  she  was 
held  because  of  her  unfortunate  marital 
experience  and  because  her  heirs  at  law  re- 
fused to  comply  with  her  request;  and  that, 
because  her  heirs  at  law  refused  to  violate 
the  law  at  her  demand,  under  the  influence 
of  said  insane  delusion,  she  conceived  and 
maintained  a  wholly  insane  and  mistaken 
idea  as  to  their  conduct  in  the  matter  and 
as  to  their  relations  and  feelings  toward 
her;  and  that  this  delusion  existed  prior  to 
and  at  the  time  of  the  making  of  the  will 
and  caused  her  to  make  it,  leaving  a  large 
part  of  her  property  to  different  charities, 
instead  of  to  next  of  kin.  It  is  held  that 
such  allegations  sufficiently  averred  mono- 
mania to  withstand  a  demurrer.  Dibble  v. 
Currier  (Ga.)  1916C-1.  (Annotated.) 

127.  Manner  of  Determination — Scope  of 
Proof.  The  article  of  the  La.  Civ.  Code 
(1655)  applies  to  the  probate  of  a  testa- 
ment which  is  not  opposed.  But  a  differ- 
ent rule  obtains  when  the  probate  of  the 
testament  is  opposed  ab  initio  on  the 
ground  that  it  is  a  fraud  and  a  forgery. 
In  such  a  case  the  denial  of  the  genuine- 
ness of  the  testament  removes  the  contest 
from  the  domain  of  article  1655  of  the 
Code,  and  it  presents  an  issue  which  must 
be  determined  under  the  rules  which  gov- 
ern all  contests  involving  the  genuineness 
of  a  signature  which  is  denied.  Under 
such  an  issue  the  doors  of  justice  are 
opened  wide  for  the  introduction  of  any 
legal  evidence  in  accordance  with  all  the 
forms  which  prevail  in  all  contested  facts 
or  cases.  The  textual  provisions  of  Civ. 
Code,  art.  2245,  and  Code  Prac.  art.  325, 
recognize  the  mode  of  testing  signatures  by 
a  comparison  of  writing  or  by  experts. 
Succession  of  Lefort  (La.)  1917E-769. 

128.  Permitting  Unnecessary  Plea  — 
Harmless  Error.  Error,  if  any,  in  sustain- 
ing a  so-called  plea  by  such  executors  set- 
ting up  the  probate  of  the  former  will  was 
not  prejudicial  to  the  proponents  of  the 
latter  will,  since  the  record  of  the  former 
probate  could  have  been  called  to  the 
court's  attention  without  a  plea.  Conzet  v. 
Hibben  (111.)  1918A-1197. 

e.     Evidence. 

129.  Where  two  wills  containing  incon- 
sistent dispositions  bear  the  same  date, 
evidence  is  admissible  to  show  which  was 
executed  last.  Peace  v.  Edwards  (N.  Car.) 
1918A-778,  (Annotated.) 

f .     Hearing  and  Order  of  Proof. 

130.  Sufficiency  of  Ruling  on  Offer  of 
WiU.  In  a  will  contest  case,  where,  after 
the  will  is  received  in  evidence  and  for- 
mally offered  for  probate,  the  court  sub- 
mits the  contest  to  the  jury  and  enters  an 


order  reciting  that  the  instrument  offered 
for  probate  is  rejected  as  not  being  the 
last  will  and  testament  of  deceased,  pro- 
ponents cannot  complain  that  the  court 
never  passed  on  their  offer  of  the  instru- 
ment for  probate.  In  re  Williams'  Estate 
(Mont.)  1917E-126. 

131.  Necessity  of  Leave  of  Court  for  De- 
viation. In  a  will  contest,  the  privilege  to 
recall  a  witness  to  offer  testimony  at  the 
close  of  the  rebuttal  evidence  of  the  pro- 
pounders  cannot  be  exercised  by  the  cave- 
ators without  the  consent  of  the  trial  court. 
McDonald  v.  McLendon  (N.  Car.)  1918A- 
1063. 

g.     Findings. 

132.  Consistency  of  Findings.  In  a  will 
contest,  where  the  jury  returned  special 
findings,  there  is  no'  inconsistency  between 
findings  that  testatrix  was  not  of  sound 
and  disposing  mind;  that  she  did  not  sub- 
scribe the  instrument  as  her  last  will  and 
testament;  that  she  did  not  publish  it;  that 
she  did  not  request  witnesses  to  sign  as 
such;  and  that  she  was  acting  under  undue 
influence,  there  being  no  inconsistency  be- 
tween a  finding  of  undue  influence  and 
want  of  testamentary  capacity.  In  re 
"Williams'  Estate  (Moat.)  1917E-126. 

h.    Appeal. 

133.  Harmless  Error — Evidence  as  to 
Fact  Conclusively  Shown.  It  was  error  to 
permit  a  legatee  under  the  will  to  testify 
to  statements  made  by  the  testator  at  the 
time  he  executed  the  will,  but  the  validity 
of  the  will  was  conclusively  established 
outside  such  testimony,  and  the  error  was 
without  prejudice.  Madson  v.  Christenson 
(Minn.)  1916D-1101. 

134.  Marriage  to  Insane  Person.  That  a 
witness  on  the  issue  of  testatrix's  mental 
capacity  was  allowed  to  testify  that  she 
married  one  who  had  previously  been  two 
or  three  years  in  an  insane  asylum  is  harm- 
less, being  at  most  immaterial.  In  re 
Bawlings'  WiU  (N.  Car.)  1918A-948. 

135.  Appeal  to  District  Court — Parties. 
Upon  appeal  to  the  district  court  from  an 
order  or  judgment  of  the  county -court  ad- 
mitting a  will  to  probate,  the  only  neces- 
sary parties  are  the  executor,  or  adminis- 
trator with  the  will  annexed,  who  was  the 
petitioner  or  proponent  of  the  will,  and  the 
contestants,  who  opposed  its  admission; 
and,  they  being  parties,  the  judgment  of 
the  district  court  admitting  or  refusing  to 
admit  a  will  to  probate  has  the  same  effect 
as  if  all  persons  interested  in  the  establish- 
ment of  the  will  were  made  formal  parties 
to  the  proceedings;  and  while  such  judg- 
ment remains  in  force,  subject  only  to  re- 
versal by  this  court  and  the  statutory  rem- 
edy of  contesting  the  will  after  probate, 
it  is  conclusive  upon  the  world.  Bell  v. 
Davis  (Okla.)  1917C-1075. 


876 


DIGEST. 

1916C5— 1918B. 


136.  Hearing  of  Contest — Receiving  Evi- 
dence Out  of  Order.  In  a  will  contest, 
whether  the  judge  shall  allow  a  witness  for 
the  caveators,  whose  testimony  had  been 
successfully  objected  to,  to  be  recalled  at 
close  of  the  rebuttal  evidence  of  the  pro- 
pounders,  one  of  whom  waived  all  objec- 
tion to  the  evidence,  is  entirely  within 
the  court's  discretion,  which,  when  exer- 
cised without  any  gross  abuse,  the  supreme 
court  will  not  review.  McDonald  v.  Mc- 
Lendon  (N.  Car.)  1918A-1063. 

137.  Argument  of  Counsel— Cure  by  In- 
struction. Such  error  is  not  cured  by  in- 
struction that  for  an  attorney  to  testify 
was  a  reprehensible  practice,  and  the  jury 
should  not  indulge  in  presumption  against 
the  validity  of  the  will.  Eavenscroft  v. 
StuU  (111.)  1918B-1130. 

Note. 
Power  of  executor  or  administrator  with 
will  annexed  to  appeal  from  judgment  re- 
fusing probate.     1917C-1079. 

i.     Costs. 

138.  Where  a  will  was  procured  by  fraud 
and  undue  influence,  and  the  executrix 
who  propounded  it  for  probate  was  the 
chief  beneficiary,  and  was  responsible  for 
the  fraud,  she  is  not  entitled  to  costs  on 
the  theory  that  she  propounded  the  will 
in  good  faith.  Smith  v.  Haire  (Tenn.) 
1916D-529. 

139.  An  executor  who  in  good  faith  pro- 
pounds a  will  for  probate  is  entitled  to  his 
costs  and  attorney's  fees  whether  the  will 
is  set  aside  or  not.  Smith  v.  Haire 
(Tenn.)  1916D-529. 

j.    Effect  of  Death  of  Contestant. 

140.  A  proceeding  to  contest  a  will  is 
peculiar,  in  that,  when  filed,  the  pro- 
ponents have  the  burden  of  proving  affirm- 
ative facts  essential  to  validity  of  the 
will,  and  therefore,  after  the  contest  is 
filed,  the  court  will  determine  the  validity 
of  the  will,  and  no  reviver  is  necessary  if 
the  contestants  die.  Braeuel  v.  Eeuther 
(Mo.)  1918B-533. 

k.     Probate  of  Later  Will  After  Former 
Probate. 

141.  Necessity  of  Eevoklng  Probate  of 
Former  WiU.  Where  a  will  h^s  been  ad- 
mitted to  probate  by  consent  of  all  inter- 
ested parties,  an  application  by  some  of 
them  for  the  probate  of  an  alleged  subse- 
quent will  revoking  the  former  will 
should  be  joiiled  with  an  application  to  set 
aside  the  probate  of  the  former  will  so 
that  the  questions  of  estoppel  and  fraud 
can  be  determined  as  well  as  the  execution 
of  a  subsequent  will,  and  where  no  appli- 
cation is  made  to  set  aside  the  probate  of 
the  former  will  the  admission  of  the  sub- 


sequent will  to  probate  is  properly  denied. 
Conzet  V.  Hibben  (111.)  1918A-1197. 

142.  Estoppel  to  Seek  Probate.  Parties 
to  the  proceedings  for  the  probate  of  a 
will  who  consented  to  the  probate  are  es- 
topped to  ask  for  the  probate  of  a  late^ 
will,  unless  their  consent  was  procured  by 
mistake  or  fraud.  Conzet  v.  Hibben  (111.) 
1918A-1197.  (Annotated.) 

143.  In  proceedings  to  probate  a  subse- 
quent will  after  the  former  one  had  been 
probated  by  consent  of  all  parties,  proof 
that  the  consent  of  the  parties  to  such 
property  was  given  by  mistake  or  through 
fraud  is  competent  either  in  the  probate 
court  or  in  the  circuit  court  on  appeal. 
Conzet  v.  Hibben  ^111.)  1918A-1197. 

(Annotated.) 

144.  In  proceedings  to  probate  a  subse- 
quent will  the  burden  is  on  parties  who 
consented  to  the  former  will  to  prove  that 
their  consent  was  obtained  by  mistake  or 
through  fraud.  Conzet  v.  Hibben  (111.) 
1918A-1197.  (Annotated.) 

Note. 
Estoppel  to  seek  probate  of  will.  1918A- 
1200. 

10.     CONSTRUCTION. 

a.     General   Bules   of   Construction. 

(1)     Intention  of  Testator. 

145.  The  cardinal  rule  in  the  construc- 
tion of  wills  is  to  ascertain  the  intent  of 
the  testator  from  the  language  used. 
Smith  V.  Chester  (HI.)  1917A-92o. 

146.  The  intent  of  the  testator  must  be 
sought  by  a  construction  of  the  entire  will. 
Porter  v.  Union  Trust  Co.  (Ind.)  1917D- 
427. 

147.  Testator's  Intent  to  be  Effectuated, 
In  construing  a  will,  the  court  should  aim 
to  give  effect  to  the  testator's  intent,  up- 
holding, if  possible,  each  item  of  the  in- 
strument. Lewis  V.  Eeed's  Executor  (Ky.) 
1917D-1155. 

148.  A  will  must  be  construed  not  by 
the  intention  which  existed  in  testator's 
mind,  but  according  to  that  which  is  ex- 
pressed in  the  will.  Faison  v.  Middleton 
(N.  Car.)  1917E-72. 

149.  A  will  must  receive  the  most  favor- 
able construction  to  accomplish  the  result 
intended  by  the  testator.  Chew  v.  Shel- 
don (N.  Y.)   1916D-1268. 

150.  Where  the  intention  of  the  testator 
can  be  gathered  from  his  will,  it  will  al- 
ways be  carried  into  effect,  unless  to  do  so 
would  violate  some  rule  of  law.  Sherlock 
V.  Thompson  (Iowa)  1917A-1216. 

151.  The  intent  of  the  testator  is  the 
cardinal  rule  in  the  construction  of  wills, 
and  if  that  intent  can  be  clearly  per- 
ceived, and  is  not  contrary  to  some  posi- 


WILLS. 


877 


tive  rule  of  law,  it  must  prevail.  HoMen 
V.  Circleville  Light,  etc.  Co.  (Fed.)  1916I>- 
443. 

(2)     Giving  Meaning  to  All  Parts. 

152.  Effectuating  All  Provisions.  EfiFect 
fihould  be  given,  if  possible,  to  every  pro- 
vision of  a  will.  Porter  v.  Union  Trust 
Co.  (Ind.)  1917D-427. 

153.  Under  Cal.  Civ.  Code,  §  1321,  pro- 
viding that  all  the  parts  of  a  will  are  to 
be  construed  in  relation  to  each  other,  and 
so  as,  if  possible,  to  form  one  consistent 
whole,  an  instrument  executed  by  a  testa- 
tor aflSrraing  his  will,  except  as  therein 
modified,  and  declaring  the  following  to  be 
a  codicil,  followed  by  the  provisions  modi- 
fying the  will,  but  not  again  referring  to 
the  will,  is  sufficient  as  a  republication  of 
the  antenuptial  will,  notwithstanding  the 
clesignation  in  the  instrument  of  the  latter 
part  thereof  as  a  codicil.  Estate  of  Cut- 
ting (Cal.)  1917D-1171.  (Annotated.) 

154.  Effectuating  All  Words.  Words  in 
n  will  are  not  to  be  treated  as  a  nullity, 
but  are  to  be  construed  if  possible  in  a 
way  to  give  them  effect.  In  re  Irish's 
Will  (Vt.)  1917C-1159.  ♦ 

155.  Intent  Gathered  from  Entire  Will. 
The  court  in  construing  a  will  must  ascer- 
tain the  intention  of  testator  as  gathered 
from  his  entire  will,  and  give  effect  to  it, 
when  not  in  conflict  with  recognized  rules 
of  law.  Heiseman  v.  Lowenstein  (Ark.) 
1916C-601. 

(3)     Meaning  of  Words. 

156.  Fair  Import  of  Language.  In  con- 
struing a  will,  the  language  thereof  gov- 
erns unless  there  are  clear  indications  of 
a  contrary  meaning  to  be  found  in  the  will 
considered  as  a  whole,  and  the  court  may 
not  speculate  as  to  testator's  intent,  and 
can  only  interpet  a  will  fairly  and  accord- 
ing to  established  rules  of  law,  and  with- 
out supplying  omissions  by  reading  into 
the  will  something  that  testator  did  not 
insert.     Ham  v.  Ham  (N.  Car.)  1917C-301. 

157.  Words  Construed  in  Ordinary  Sense. 

The  words  of  a  will  are  to  be  taken  in  the 
ordinary  and  grammatical  sense,  unless  a 
clear  intention  to  use  them  in  another 
sense  can  be  collected.  Matter  of  Estate 
of  Tooley  (Cal.)  1917B-516. 

(4)     Inconsistent  Provisions. 

158.  Repugnancy  —  Effect.  Where  two 
clauses  are  equally  specific  and  clearly 
repugnant,  the  latter  controls,  though, 
when  the  effect  of  the  latter  gift  is  merely 
to  enlarge  the  former,  there  is  no  repug- 
nancy. Porter  v.  Union  Trust  Co.  (Ind.) 
1917D-427. 

159.  All  Provisions  to  be  Harmonized. 
The  courts  will,  if  possible,  harmonize  pro- 
visions of  a  will,  and  only  if  inconsistent 


will  the  latter  prevail  over  former  pro- 
visions. Lewis  V.  Bead's  Executor  (Ky.) 
1917D-1155. 

(5)     Avoiding  Partial  Intestacy. 

160.  A  will  should  be  construed  so  as  to 
avoid  partial  intestacy.  Porter  v.  Union 
Trust  Co.  (Ind.)  1917D-427. 

(6)     Construction  to  Sustain  Will. 

161.  Construction  in  Favor  of  Validity. 

Tf  one  construction  of  a  will  will  make  a 
bequest  illegal  as  a  perpetuity,  while  an- 
other will  render  it  valid,  the  latter  will  be 
accepted,  if  both  constructions  are  permis- 
sible.    Allen  V.  Almy   (Conn.)   1917B-112. 

162.  Construction  in  Favor  of  Vesting  of 
Estate.  The  law  favors  a  testamentary 
construction  which  vests  the  estate.  Allen 
V.  Almy  (Conn.)  1917B-112. 

163.  Disinheritance  not  Favored.  An 
heir  will  not  be  excluded  or  disinherited, 
except  by  express  words  or  necessary  im- 
plication and  if  the  will  is  doubtful,  that 
construction  favorable  to  the  heir  will  be 
adopted.  Lewis  v.  Beed's  Executor  (Ky.) 
1917D-1155. 

164.  Avoiding  Conflicts.  In  construing 
a  will,  conflicts  should  be  reconciled,  and 
that  construction  which  will  give  effect  to 
all  provisions  should  be  preferred.  Porter 
V.  Union  Trust  Co.  (Ind.)  1917D-427. 

(7)     Error  Cured  by  Other  Becitals. 

165.  Effect  of  Error  in  BecitaL  The 
mere  fact  that  testator  described  a  mort- 
gage as  of  the  face  value  of  $2,500  when 
he  never  owned  one  of  that  value,  but  did 
own  one  of  $2,200,  is  unimportant  if  the 
mortgage  is  otherwise  identified.  McDer- 
mott  V.  Scully  (Conn.)  1917E-407. 

166.  Where  a  will  provided  "I  give  to 
R.  M.  $5,  having  heretofore  deeded  to  her 
my  house,  and  a  mortgage  of  $2,500,"  when 
the  testator  in  fact  had  not  given  the 
mortgage  to  the  beneficiary  and  even  when 
he  owned  a  similar  mortgage,  the  will 
nevertheless  provides  for  a  nominal  be- 
quest and  does  not  devise  the  mortgage 
owned.  McDermott  v.  Scully  (Conn.) 
1917E-407. 

(8)     Later  and  Earlier  Wills. 

167.  Construction  Together  of  Two  Wills. 

When  a  posterior  testament  does  not  ex- 
pressly revoke  a  prior  one,  both  must  be 
executed,  unless  the  last  will  tacitly  re- 
vokes the  first  as  a  whole.  When  they 
conflict  only  in  part,  the  provisions  of  the 
last  will  must  prevail.  Succession  of  Le- 
fort  (La.)  1917E-769.  (Annotated.) 

168.  several  Undated  Wills — Admission 
of  One  to  Probate.  Where  four  paper 
writings,  found  folded  together  among  the 
papers  of  the  deceased,  each  executed  as 


878 


DIGEST. 

1916C— 1918B. 


required  hj  statute,  and  each  a  valid  ex- 
ercise of  testamentary  capacity,  are  not 
harmonious,  so  as  to  be  upheld  as  one  will, 
but  are  inconsistent  and  mutually  destruc- 
tive, and  three  of  them  are  undated  and 
there  is  no  evidence  to  show  which  was 
the  latest  expression  of  his  intent,  neither 
can  stand.  Peace  v.  Edwards  (N.  Car.) 
1918A-778.  (Annotated.) 

Notes. 

Construction  together  as  one  will  of  sev- 
eral testamentary  instruments  partially  in- 
consistent.    1917E-781. 

Admission  to  probate  of  several  wills 
which  are  of  same  date  or  of  which  one 
or  more  are  undated.     191SA-780. 


(9)     Codicils. 

169.  An  antenuptial  will,  as  modified  by 
a  postnuptial  codicil,  stands  as  if  it  were 
but  one  testamentary  intention  expressed 
in  a  single  will  made  after  marriage  as  of 
the  date  of  the  codicil.  Estate  of  Cutting 
(Cal.)  1917D-1171.  (Annotated.) 

170.  A  provision  in  a  codicil  directing 
the  executors  to  provide  for  testator's  wife 
from  the  remainder  of  his  estate  an  annual 
income  of  $3,000,  payable  monthly,  in  ac- 
cordance with  an  antenuptiaL  contract 
whereby  he  promised  to  cause  her  to  be 

'  paid  $250  per  month  if  they  married  and 
she  survived  him,  is  a  testamentary  dis- 
position of  property,  and  not  merely  a 
direction  to  pay  a  debt  under  an  ante- 
nuptial agreement,  and  accordingly  the 
codicil  is  sufficient  to  republish  a  will  pre- 
viously revoked  by  the  testator's  marriage. 
Estate  of  Cutting  (Cal.)  1917D-1171. 

(Annotated.) 

(10)      Enumeration      Following     General 
Words. 

171.  This,  however,  is  only  a  rule  of  pre- 
sumption and  must  yield  to  the  testator's 
intent  as  gathered  from  the  whole  instru- 
ment, but  where  the  presumption  is  fa- 
vored and  supported  by  the  evident  inten- 
tion of  the  testator  as  developed  from  a 
consideration  of  all  the  parts  of  the  in- 
strument, then  such  rule  of  presumption 
should  be  applied  to  the  matter  in  ques- 
tion. Creamer  v.  Harris  (Ohio)  1916C— 
1137.  (Annotated.) 

172.  Bequest  of  Property  and  "Contents" 
Thereof.  .In  the  construction  of  wills  a 
presumption  prevails,  especially  in  items 
not  residuary,  that  where  a  bequest  of 
certain  property  and  its  "contents"  is 
coupled  with  an  enumeration  of  things, 
the  word  "contents"  shall  cover  only 
tiiings  ejusdem  generis.  Creamer  v.  Har- 
ris  (Ohio)   191GC-1137.  (Annotated.) 

173.  Persons     Taking    Under     Bequest. 

The  sixth  clause  qf  a  will  recited  that  the 
residue  of  the  testator's  estate  should  be 
held  by  his  executors  in  trust  for  the  bene- 


fit of  all  hig  nieces  and  nephews  herein- 
after named,  paying  to  each,  who  should 
survive  the  testator  for  fifteen  years,  equal 
instalments  of  the  income,  and  that  at  the 
end  of  such  period  the  property  should 
be  sold  and  divided  among  the  nieces  and 
nephews  and  their  children.  The  clauso 
further  recited  that  it  was  the  testator's 
intention  that  all  his  nieces  and  nephews 
and  their  children  should  take  an  equal 
portion  of  the  estate.  The  enumeration 
of  the  nieces  and  nephews  omitted  the 
name  of  plaintiff's  mother,  a  niece  who 
died  before  the  testator.  It  is  held  that, 
notwithstanding  the  use  of  the  expression 
"all,"  the  enumeration  of  the  nieces  and 
nephews  showed  the  intent  on  the  part  of 
the  testator  that  only  those  enumerated 
should  take;  consequently  plaintiff  was  not 
entitled  to  take  on  the  theory  that  the 
name  of  her  mother  was  omitted  through 
mistake,  the  testator  intending  to  put  his 
nieces  and  nephews  and  their  descendants 
on  equal  footing,  such  a  conclusion  being 
strengthened  by  the  declaration,  in  a  sub- 
sequent clause  of  the  will,  that  no  advance- 
ments should  be  charged  against  the  in- 
terests of  any  of  the  beneficiaries.  Lewis 
v.  Eeed's  Exyjutof  (Ky.)  1917D-1155. 

(11)     Supplying  Omitted  Word. 

174.  Testator  devised  real  estate  to  his 
sons,  to  be  equally  divided  between  them, 
but  should  either  die  before  attaining  full 
age  or  without  children,  his  share  should 
go  to  the  others  that  were  living,  and 
devised  other  real  estate  to  them,  and 
should  either  die  before  attaining  full  age 
"or  leaving  children  surviving  him,"  his 
share  should  be  taken  equally  between 
those  that  were  living.  It  is  held  that  the 
word  "without"  was  clearly  omitted  in 
the  quoted  phrase,  and  the  court  must  con- 
strue the-will  as  if  the  word  was  inserted, 
and,  so  construed,  the  will  showed  that  the 
children  of  any  son  should  take  by  descent 
from  their  father,  and  not  as  purchasers 
under  the  will.  Ham  v.  Ham  (N.  Car.) 
1917C-301. 

(12)    General  Words  Controlled  by  Special. 

175.  Specific  language  generally  controls 
that  of  a  general  nature.  Porter  v.  Union 
Trust  Co.   (Ind.)   1917D^27. 

(13)     Evidence  in  Aid  of  Construction. 

177.  Proof  of  Error  in  Recital  in  Will. 

Evidence  that  testator  had  already  deeded 
land  to  one  beneficiary  as  recited  in  the 
will,  but  that  he  had  never  deeded  a  mort- 
gage, as  recited,  to  the  beneficiary,  is  ad- 
missible to  determine  the  quantity  of  in- 
terest intended  to  be  conveyed.  McDer- 
mott  V.  Scully  (Conn.)  1917E-407. 

178.  Eelation  Between  Testator  and  Ben- 
eficiary. The  scrivener  may  be  asked 
what  were  the  relations  between  the  tes- 


WILLS. 


879 


tator  and  beneficiary  at  the  time  of  exe- 
cuting the  will  if  tending  to  prove  a  con- 
dition, a  fact  always  admissible  when  rele- 
vant and  material  and  when  the  intent  of 
the  testator  is  doubtful.  McDermott  v. 
Scully  (Conn.)  1917E-407. 

179.  Testator's  Instructions  to  Scrivener. 
Where  testator  through  mistake  described 
one  mortgage,  intending  to  describe  a 
totally  dissimilar  mortgage,  there  was  nO 
equivocation,  and  evidence  of  his  instruc- 
tions to  the  scrivener  is  inadmissible.  Mc- 
Dermott V.  Scully  (Conn.)   1917E-407, 

(Annotated.) 

180.  It  cannot  be  shown  that  the  testa- 
tor directed  the  scrivener  to  write  the  will 
in  a  form  or  with  a  meaning  different  from 
what  the  will  appears,  unless  there  is  a 
latent  ambiguity  or  equivocation  as  to  the 
person  or  subject  meant  to  be  described, 
or  unless  the  evidence  is  offered  to  rebut  a 
resulting  trust.  McDermott  v.  Scully 
(Conn.)    1917E-407.  (Annotated.) 

181.  Testator's  declarations  of  intention 
or  of  the  meaning  of  words  used  by  scriv- 
ener are  not  admissible  except  in  cases 
of  equivocation  or  latent  ambiguity,  and 
then  only  as  explanatory  of  or  connected 
with  the  language  used.  McDermott  v. 
Scully  (Conn.)  1917E-407.        (Annotated.) 

182.  Parol  Evidence  to  Identify  Lega- 
tee. Where  a  testatrix  made  a  bequest 
to  her  niece  by  name,  of  a  certain  place, 
and  it  appeared  that  she  had  a  grandniece 
of  that  name  living  at  that  place  and  also 
a  niece  whose  maiden  name  was  similar 
and  who  lived  near  by,  there  is  a  latent 
ambiguity  in  the  will,  and  parol  evidence 
is  admissible  to  establish  the  identity  of 
the  legatee.  Baumann  v.  Steingester"  (-N. 
Y.)    1916C-1071. 

b.     Construction  of  Particular  Words. 

(1)     "Heirs"  or  "Heirs  at  Law,"  or  "Law- 
ful Heirs." 

183.  Construction  of  Term  "Heirs."    In 

the  absence  of  a  contrary  meaning  shown 
by  a  will,  the  words  "heirs"  will  be  taken 
to  be  used  in  its  primary  meaning  as  des- 
ignating those  who,  in  the  absence  of  a 
will,  are  entitled  by  law  to  inherit  a  dece- 
dent's realty.  Allen  v.  Almy  (Conn.) 
1917B-112. 

184.  A  gift  of  personalty  to  "heirs," 
whether  to  one's  own  heirs  or  to  the  heirs 
of  another,  is  a  gift  to  those  who  would 
be  entitled  to  take  under  the  statute  of 
distribution,  and  in  the  same  manner,  and 
in  the  same  proportions,  as  though  the 
property  had  come  to  them  as  intestate 
estate,  in  the  absence  of  any  words  in  the 
will,  showing  that  the  word  "heirs"  is  used 
in  a  different  sense,  and  the  use  of  the 
word  "lawful"  before  the  words  "hears" 
makes  no  difference  in  legal  effect.  In 
re  Irish's  WiU  (Vt.)  1917C-1154. 

(Annotated.) 


185.  Estate  Created — Executory  Devise. 
Under  a  will  giving  a  sum  in  trust  to  pay 
the  income  to  testator's  daughter,  and  at 
her  death  to  pay  over  and  deliver  the 
same  to  her  issue,  but,  if  she  died  with- 
out surviving  issue,  then  to  testator's 
"heirs  at  law  exclusive  of  my  said  daugh- 
ter," the  heirs  take  a  vested  interest  by 
way  of  executory  devise  defeasible  in  the 
contingency  of  issue  named;  the  limitation 

.  over  haying  a  double  aspect,  and  vesting 
alternative  remainders  with  conditions 
subsequent.  Allen  v.  Almy  (Conn.)  1917B- 
112. 

186.  A  will,  after  devising  the  property 
in  trust  for  the  life  use  of  testator's  widow 
in  a  third  thereo'f,  directed  that  the  prop- 
erty be  divided  into  certain  equal  parts, 
and  gave  three  of  such  parts  to  trustees 
to  hold  the  same  and  pay  the  income  to 
testator's  daughter  during  her  life,  "and 
at  her  decease  to  pay  over  and  deliver  the 
same  to  her  issue;  but  in  case  of  her 
death  leaving  no  issue  surviving  her,  then 
to  my  heirs  at  law,  exclusive  of  my  said 
daughter."  Held,  that  the  words  "heirs 
at  law"  in  the  quoted  part  referred  to 
those  who  were  testator's  heirs  at  his 
death,  viz.,  his  five  children.  Allen  v. 
Almy  (Conn.)  1917*8-112. 

187.  Time  as  of  Which  Heirship  is  De- 
termined. Where  a  testamentary  limita- 
tion over  is  to  the  heirs  of  testator,  that 
class  is  determined  as  of  testator's  death, 
in  the  absence  of  an  intention  to  the  con- 
trary shown  by  the  will.  Allen  v.  Almy 
(Conn.)    1917B-112. 

188.  Persons  Entitled  to  Take— "Lawful 
Heirs."  A  testator  gave  property  in  trust 
for  his  mother  during  her  lifetime,  and 
provided  that  at  her  death  the  balance 
of  the  trust  fund  remaining  should  be  paid 
one-half  to  a  granddaughter,  and  one-half 
to  "my  lawful  heirs."  When  the  will  was 
executed,  he  was  confined  to  his  bed 
with  the  sickness  which  caused  his  death 
twenty-five  days  later.  He  left  no  widow, 
and  the  grandchild  was  his  only  descend- 
ant. The  grandchild's  father  was  living, 
and  was  her  only  heir.  The  will  also  gave 
property  in  trust  for  the  granddaughter, 
and  provided  that  if  she  died  before  reach- 
ing the  age  of  forty  years,  and  left  no 
isbue  or  children  of  issue,  the  trust  fund 
should  be  paid  one-half  to  the  lawful 
heirs  of  the  grandchild,  and  the  other  one- 
half  to  "my  lawful  heirs,"  and  the  residu- 
ary clause  gave  the  remaining  estate  in 
trust  for  the  granddaughter  during  her 
lifetime  with  a  similar  provision  as  to  its 
disposition  after  her  death.  It  is  held 
that  as  under  the  eleventh  and  residuary 
clauses,  the  gitt  over  was  contingent  on 
the  death  of  the  granddaughter,  the  words 
"my  lawful  heirs"  meant  those  who  by 
the  laws  of  distribution  would  in  such  con- 
tingency be  the  testator's  heirs,  and  under 
the  rule  that  words  occurring  more  than 
once  in  a  will  should  be  presumed  to  be 


880 


DIGEST. 

19160— 1918B. 


used  always  in  the  same  sense,  nnless  a 
contrary  intention  appear  by  the  context, 
or  unless  the  words  be  applied  to  a  difer- 
ent  subject,  such  words  had  the  same 
meaning  in  the  twelfth  clause,  and  there- 
under those  who  would  have  been  the  tes- 
tator's heirs  had  he  left  no  issue  were  enti- 
tled to  one-half  of  the  trust  fund.  In  re 
Irish's  Wm  (Vt.)  1917C-1154. 

(Annotated.) 

189.  A  will  gave  property  upon  the  trust 
that  the  fund  and  the  income  and  interest 
arising  thereon  should  be  used  as  required 
for  the  support  of  the  testator's  mother 
during  her  life,  and  to  defray  her  funeral 
expenses.  At  her  death,  the  testator  gave 
one-half  of  so  much  of  the  fund  as  should 
be  remaining  to  his  lawful  heirs.  It  is 
held  that  as  the  principal  of  the  trust  as 
well  as  the  income  and  interest  was  to  be 
used  as  required  for  the  support  of  the 
mother,  and  it  was  only  so  much  as  re- 
mained that  was  given  to  the  heirs,  futurity 
was  annexed  to  the  substance  of  the  gift, 
the  vesting  was  suspended  until  the  time 
when  the  bequest  would  take  effect,  and 
the  bequest  was  only  in  fa.vor  of  those 
within  the  description  of  lawful  heirs  at 
that  time.  In  re  Irish's  Will  (Vt.)  1917C- 
1154.  (Annotated.) 

190.  "Heirs."  Where  testator  devised  to 
plaintiff,  his  son,  the  use  of  an  undivided 
half  interest  in  certain  land  during  the 
life  of  J.,  subject  to  an  annuity  charge 
in  favor  of  J.,  and  on  J.'s  death  conferred 
on  plaintiff  the  right  to  purchase  such  half 
interest  for  a  specified  sum,  the  money  or 
land  on  J.'s  death  to  vest  in  the  heirs  of 
his  body,  or,  if  none,  then  in  testator's 
heirs  at  law,  the  term  "heirs  at  law"  in- 
cludes all  others  who  after  their  ancestor's 
death  were  entitled  to  inherit  all  lands, 
tenements,  and  hereditaments  belonging  to 
him  or  of  which  he  was  seized,  and  hence 
plaintiff  is  entitled  to  share  in  the  dis- 
tribution of  the  purchase  price  of  such  in- 
terest on  his  election  to  purchase  on  J.'s 

.death  without  heirs  of  his  body.     Tevis  v. 
Tevis  (Mo.)   1917A-865. 

191.  "Heirs"  as  Including  Widow.  Tes- 
tator bequeathed  his  residuary  estate  to 
his  executors  in  trust  for  his  widow  and 
sons  during  the  widow's  life,  and,  in  case 
trS.  the  death  of  the  sons  before  their 
mother,  for  the  benefit  of  their  children 
or  widows,  and,  if  they  died  leaving 
neither  issue  nor  widows,  the  entire  resi- 
due was  given  for  the  use  of  the  widow 
for  life.  The  will  gave  testator's  wife  a 
power  of  appointment,  and  provided  that, 
if  such  power  be  not  exercised,  "I  .  .  . 
bequeath  the  entire  reversion  to  my  law- 
ful heirs  and  distributees  as  provided  by 
the  intestate  laws."  A  codicil  revoked  the 
power  of  appointment,  except  as  to  $30,000, 
and  provided:  "And  as  to  the  .  .  .  remain- 
der of  my  estate  and  as  to  the  whole  of 
it,  in  case  my  wife  makes  no  such  appoint- 
ment, I  .  .  .  bequeath    the     same   to   my 


executors  and  trustees  and  the  survivor 
and  heirs  of  the  survivor  of  them,  as 
named  in  my  will,  in  trust,  to  distribute 
the  same — in  case  my  sons  are  both  dead, 
leaving  at  the  time  of  the  death  of  my 
wife  no  lawful  issue  surviving — to  my  own 
right  heirs  and  distributees  as  provided  by 
the  intestate  laws.  ..."  The  will  pro- 
vided that  the  gifts  of  income  to  testa- 
tor's wife  should  be  "in  lieu  and  satisfac- 
tion of  dower  and  her  interest  in  my  estate 
cs  if  under  the  intestate  laws  of  Penn- 
sylvania." The  sons  died  prior  to  their 
mother,  leaving  no  lawful  issue  surviving 
them.  Held,  that  the  "right  heirs  and 
distributees"  of  testator  were  to  be  ascer- 
tained as  of  the  date  of  his  death,  and  not 
as  of  the  date  of  the  death  of  the  widow, 
that  the  widow  was  excluded  from  the 
class  by  necessary  implication  from  the 
language  of  the  will,  and  that  the  residue 
should  be  awarded  to  the  estates  of  the 
two  sons  to  the  exclusion  of  collateral 
heirs.     Tatham's  Estate  (Pa.)  1917A-85o. 

Note. 
Meaning  of  term  "lawful  heirs"  as  used 
in    will.     1917C-1156. 

(2)     Other  Words. 

192.  Construction  of  "Desire."  CaJ.  Civ. 
Code,  §  1322.  provides  that  a  distinct  de- 
vise or  bequest  cannot  be  affected  by  any 
reasons  assigned  therefor,  or  by  any  other 
words  not  equally  clear,  or  by  inference 
from  other  parts  of  the  will,  or  by  an  in- 
accurate recital  of,  or  reference  to,  its 
contents  in  another  part  of  the  will.  A 
will  provided:  "I  give  all  my  property  at 
my  death  to  my  daughter  Logan  Mattie 
Tooley.  If  at  her  death  she  has  neither 
husband  or  children  I  desire  any  property 
that  may  be  left  divided  equally  among 
my  sisters  and  brother."  It  is  held  that 
the  word  "desire"  indicated  the  wish  of 
testatrix  regarding  the  disposition  of  the 
property,  and  was  a  dispositive  and  tes- 
tamentary provision,  binding  upon  the 
court  in  the  distribution  of  the  estate,  so 
that,  where  the  daughter  survived  the  tes- 
tatrix and  died  unmarried,  the  property 
was  to  be  distributed  to  the  brother  and 
sisters  of  the  testatrix.  Matter  of  Estate 
of  Tooley  (Cal.)   1917B-516. 

(Annotated.) 

193.  Such  provision  is  a  command  suffi- 
cient to  effect  a  testamentary  disposition 
of  the  property,  and  not  an  expression  of 
{1  wish  or  preference  directed  to  the 
daughter,  so  that  there  is  no  precatory 
trust  reposed  in  her.  Matter  of  Estate  of 
Tooley  (Cal.)  1917B-516.  (Annotated.) 

194.  In  the  will  of  one  who  died  and 
left  surviving  him  a  wife,  one  son,  and 
six  daughters,  he  devised  a  life  estate 
to  his  wife  and  added  that  after  her  death 
"I  will  and  desire  that  the  said  property 
shall  revert  to  my  beloved  son  Artie  Atkin- 
son provided  that  in  such  event  he  shall 


WILLS. 


881 


pay  to  each  of  his  sisters,  Annie  Hendrick- 
son,  Nancy  Hooks,  Ida  Mastellar,  Sarah 
Jackson,  Lydia  Wilson  and  Daisy  Teach, 
the  sum  of  two  hundred  dollars  ($200.00). 
Said  two  hundred  dollars  to  be  paid,  in 
yearly  payments  of  sixty-six  and  two- 
thirds  dollars  ($66%)  to  each  sister  as 
above  enumerated.  The  first  payment  to 
be  made  on  the  first  day  of  September, 
following  the  first  day  of  April  after  the 
death  of  my  wife,  Ellen  Atkinson."  In  a 
proceeding  to  determine  the  ownership  of 
the  property  and  to  partition  the  same 
it  is  held  that  the  fee  of  the  land  vested 
in  the  son  upon  the  death  of  the  testator 
but  that  the  enjoyment  of  possession  is 
postponed  until  the  life  estate  is  termin- 
ated, and  that  the  son  takes  the  fee 
charged  with  the  payment  of  the  legacies 
given  to  the  daughters  of  the  testator,  and 
that  any  one  who  succeeds  to  the  estate 
and  interest  of  the  son  prior  to  the  com- 
pletion of  the  payments  takes  the  land 
subject  to  such  charges.  Mastellar  v. 
Atkinson  (Kan.)  1917B-502.    (Annotated.) 

195.  As  used  in  a  will  expressing  a  wiU 
and  desire  to  make  certain  disposition  of 
property,  the  word  "will"  is  mandatory, 
coni/prehensive,  and  dispositive  in  nature, 
and  is  broad  enough  to  dispose  of  both 
real  and  personal  property,  and  is  as 
effective  as  the  expression  "devise  and  be- 
queath," and  the  word  "desire,"  though 
frequently  used  as  a  precatory  term,  must 
be  construed,  in  view  of  its  use  in  con- 
nection with  the  word  "will,"  as  mandatory 
rather  than  as  advisory,  where  it  is  evi- 
dent that  testator  undertook  to  dispose  of 
his  entire  estate.  Mastellar  v.  Atkinson 
(Kan.)    1917B-502.  (Annotated.) 

196.  Construction  of  "Eevert"  in  Will. 

In  a  loose  way  the  term  "revert  to"  is 
sometimes  used  in  a  will  as  the  equivalent 
of  "go  to,"  and,  where  the  language  of  a 
will  so  indicates,  it  will  be  construed  as 
used  to  designate  the  person  to  whom  the 
testator  wished  the  land  to  be  given,  Mas- 
tellar v.  Atkinson  (Kan.)   1917B-502. 

197.  Persons  Entitled  to  Gift — Taking 
by  Representation  —  Construction  of  Ex- 
press Provision.  Testator  devised  real  es- 
tate to  his  four  sons,  to  be  equally  divided 
between  them,  but  should  either  die  before 
arriving  at  full  age  or  without  children 
surviving  him,  "then  his  or  their  share" 
should  "go  to  the  others  that  are  living, 
but  not  to  any  of  my  other  children."  He 
devised  other  real  estate  to  the  same  sons, 
and  provided  that  should  either  die  before 
arriving  at  full  age  "or  [without]  leaving 
children  surviving  him  .  .  .  his  or  thoir 
share"  should  be  taken  and  divided  equally 
between  those  that  were  living.  He  made 
ample  provision  for  his  other  children. 
It  is  held  that  the  word  "others"  referred 
to  the  sons,  while  the  word  "other"  re- 
ferred to  the  other  children  of  testator; 
and  where  all  the  sons  attained  full  age, 
each  acquired  an  absolute  share  which  did 

56 


not  pass  to  the  children  of  a  deceased  son 
on  the  death  of  other  sons  without  issue. 
Ham  v.  Ham  (N.  Car.)  1917€-301, 

198.  "Or"  Construed  as  "And."  Testa- 
tor devised  described  real  estate  to  his 
four  sons,  to  be  equally  divided  between 
them,  but  should  either  die  before  attain- 
ing full  age,  "or  without  children  surviving 
him,"  his  or  their  afhare  should  go  to  the 
others  that  were  living,  but  not  to  any 
of  his  other  children,  and  devised  other 
real  estate  to  the  four  sons,  and  should 
either  die  before  attaining  full  age,  "or 
[without]  leaving  children"  surviving,  his 
or  their  share  should  be  divided  equally 
between  those  that  were  living.  It  is  held 
that  the  word  "or"  must  be  construed  as 
"and,"  and  hence  the  share  of  each  eon  be- 
came absolute  on  attaining  full  age.  Ham 
V.  Ham  (N.  Car.)  1917C-301.    (Annotated.) 

199.  "Children"  as  Including  Posthumous 
Child.  Deceased  devised  land  to  his  wife, 
with  directions  that  if  she  should  leave  the 
land  or  remarry,  it  should  tie  rented  out 
for  the  benefit  of  his  "children,"  and,  on 
their  coming  of  age,  equally  divided  be- 
tween them.  At  deceased's  death,  he  had 
two  children;  a  posthumous  child  being 
born  thereafter.  Held,  that  the  posthu- 
mous child  took  by  virtue  of  the  wiU,  being 
in  esse  and  included  in  the  expression 
"children,"  and  hence  was  not  entitled 
to  claim  as  a  pretermitted  child,  under  Ky. 
St.  §  4848.  Lamar  v.  Crosby  (Ky.)  1916B- 
1033.  (Annotated.) 

200.  "Bric-a-brac"  and  'Tictures."  A 
bequest  of  all  the  testator's  silver,  bric- 
a-brac,  and  pictures  does  not  necessarily 
include  such  articles  as  tapestries;  for 
they  cannot  be  classed  either  as  bric-a-brac 
or  pictures.  Matter  of  Kellogg  (N.  Y.) 
1916D-1298. 

Notes. 

Meaning  of  "contents"  or  similar  ex- 
pression as  used  in  will  in  connection  with 
property  bequeathed  or  devised.  1916C- 
1139. 

Construction  of  "and"  as  "or,"  and  vice 
versa,  in  construing  will.     1917C-306. 

"Father"  as  including  stepfather. 
1917B-1118. 

Meaning  of  "desire"  as  used  in  will. 
1917B-503. 

c.     Construction  of  Particular  Provisione. 
(1)     Residuary  Clause. 

201.  Residuary  Clause — Lapsed  or  Void 
Legacies.  A  residuary  clause  of  general 
terms  ordinarily  covers  lapsed  or  invalid 
legacies,  unless  the  testator's  intent  ap- 
pears   otherwise. 

Where  a  testator  clearly  showed  his  in- 
tention that  his  relatives  should  receive 
none  of  his  bounty,  and  he  mentioned  only 
one  of  them,  giving  him  family  heirlooms, 
a  devise  which  lapsed  because  of  the  de- 


882 


DIGEST. 

1916C— 1918B. 


▼isee'8  refusal  will  pass  under  the  general 
residuary  clause,  that  made  a  large  gift 
to  a  charity  in  which  testator  was  inter- 
ested. Albany  Hospital  v.  Albany  Guard- 
ian Society  (N.  Y.)  1916D-1195. 

202.  Meaning  of  "All  the  Best,  Besidue, 
and  Eemalnder."  General  words  in  a  re- 
siduary clause  of  a  will,  such  as  "all  the 
rest,  residue,  and  remainder,"  will  embrace 
every  species  of  property,  real  or  per- 
sonal, unless  restricted  by  the  context,  as 
land  can  be  passed  by  such  a  clause  with- 
out specific  description.  Faison  v.  Middle- 
ton  (N.  Car.)  1917E-72.  (Annotated.) 

203.  General  words  in  a  residuary  clause 
carry  every  estate  or  interest  of  the  tes- 
tator which  is  not  expressly  or  by  neces- 
sary implication  excluded  from  its  oper- 
ation, as  by  being  disposed  of  in  other 
parts  of  the  will.  Faison  v.  Middleton  (N. 
Car.)  1917E-72. 

204.  A  general  residuary  bequest  carries 
lapsed  and  void  legacies,  and  property 
which  is  the  subject  of  a  devise  which 
fails  by  reason  of  a  misdescription.  Faison 
V.  Middleton  (N.  Car.)  1917E-72. 

205.  Under  present  statutes,  realty 
owned  by  the  testator  at  the  time  of  his 
death  and  not  otherwise  disposed  of  passeg 
under  a  general  residuary  clause  if  the 
language  is  broad  enough  to  include  real 
estate.  Faison  v.  Middleton  (N.  Car.) 
1917E-72. 

206.  Where  it  is  manifest  from  the  ex- 
pressed words  of  the  will  that  a  gift  of 
the  residuum  is  confined  to  a  particular 
fund  or  description  of  property,  or  some 
certain  residuum,  the  residuary  legatees 
will  be  restricted  to  what  is  particularly 
given.  Faison  v.  Middleton  (N.  Car.) 
1917E-72. 

207.  It  is  a  general  rule  always  to  con- 
strue a  residuary  clause  so  as  to  prevent 
an  intestacy  as  regards  any  part  of  the 
testator's  estate,  unless  there  is  an  ap- 
parent intent  to  the  contrary,  so  that,  to 
exclude  a  portion  of  testator's  property 
not  otherwise  disposed  of,  a  plain  and 
unequivocal  intention  on  the  part  of  the 
testator  must  be  manifested.  Faison  v. 
Middleton  (N.  Car.)   1917E-72. 

Note. 
Meaning  of  "all"  as  used  in  will  in  con- 
nection    with     "rest,"    "residue,"    or    "re- 
mainder."    1917E-75. 

(2)     Designation  of  Executor. 

208.  Executor  Designated  by  Of^ce  Only. 

When  a  testator  appoints  as  executor  '"the 
priest  of  his  church,"  without  naming  him, 
the  court  will  interpret  his  testament  to 
mean  the  person  who  will  be  the  priest  at 
the  time  of  the  testator's  death.  Succes- 
sion of  Lefort  (La.)  1917E-769. 


(3)     Vested    or   Contingent   Estate. 

209.  Executory  Devise.  An  executory 
devise  of  lands  is  such  a  disposition  of 
them  by  will  that  thereby  no  estate  vests 
at  the  death  of  the  devisor,  but  only  on 
some  future  contingency.  It  differs  from 
a  remainder  in  three  very  material  points: 
(1)  That  it  needs  not  any  particular  estate 
to  support  it;  (2)  that  by  it  a  fee  simple 
or  other  less  estate  may  be  limited  after 
a  fee  simple;  (3)  that  by  this  means  a  re- 
mainder may  be  limited  of  a  chattel  in- 
terest, after  a  particular  estate  for  life 
created  in  the  same.  Miller  v.  Miller 
(Kan.)   1917A-918. 

210.  Estate  Created — Life  Estate.  Where 
a  testator,  after  devising  property  in  fee, 
added  a  codicil,  declaring  that  the  devise 
should  be  for  the  sole  and  separate  use 
of  the  devisee,  and  that  in  case  of  his 
death  without  lawful  issue,  to  others,  the 
devisee  took  a  life  estate  with  remainder 
over.  Love  ▼.  Lindstedt  (Ore.)  1917A- 
898. 

(4)     Remainders. 

211.  Repugnancy  of  Provisions.  Testa- 
tor bequeathed  one-half  of  a  tract  of  land 
to  plaintiff,  his  son,  with  the  right  to  the 
use  of  the  other  half  during  the  life  oi 
testator's  other  son,  J.,  subject  to  a  charge 
or  annuity  in  J.'s  favor  of  $288,  providing 
that,  upon  the  death  of  J.,  plaintiff  or 
his  heirs  should  have  the  right  to  pur- 
chase such  other  half  for  $2,400,  which 
sum,  or,  in  case  plaintiff  or  his  heirs 
elected  not  to  purchase,  then  such  undi- 
vided half  interest,  should  vest  in  the 
heirs  of  J.'s  body,  or,  if  none,  the  money 
or  undivided  interest  in  the  land  should 
pass  to  testator's  heirs  at  law.  Testator 
thereafter  provided  for  the  equalization  of 
certain  advancements,  and  then  directed 
that  all  of  the  property  except  that  "here- 
in before  specifically  devised"  should  be 
divided  between  four  of  his  children  speci- 
fied. Held,  that  the  provision  for  the  dis- 
position of  J.'s  share  of  the  real  estate 
so  devised  was  not  contradictory,  repug- 
nant, or  uncertain,  but  constituted  real 
property  "specifically  devised,"  and  hence 
the  remainder  could  not  pass  under  the 
residuary  clause.  Tevis  v.  Tevis  (Mo.) 
1917A-865. 

212.  Taking  by  Representation — Gift  of 
Eemalnder  to  "Children."  A  will  pro- 
vided: "I  give  and  devise  ...  to  my  son 
[naming  him]  for  .  .  .  life,  and  at  his 
death  I  devise  the  same  to  his  child  or 
children  .  .  .  and  in  default  of  such,  then 
to  my  other  children  [naming  three]  in 
equal  parts  in  fee."  All  of  testator's  chil- 
dren survived  him.  The  life  tenant  died 
without  children,  being  predeceased  by  his 
sister,  one  of  the  three  children  named. 
It  is  held  that  the  two  children  of  testator 
surviving  the  life  tenant  were  each  enti- 
tled  to   one-third   of   the   fund,   and   that 


WILLS. 


883 


the  remaining  one-third  should  be  divided 
among  the  children  of  their  deceased  sis- 
ter.    Patterson's  Estate  (Pa.)  1917B-1243. 

(Annotated.) 
Note. 

Right  of  representative  of  predeceased 
child  to  share  in  remainder  given  to  chil- 
dren as  a  class.     1917B-1245. 

(5)     Presumption  as  to  Tenancy  in  Com- 
mon. 

213.  A  will  devising  certain  shares  of 
the  estate  to  trustees  to  pay  the  income 
to  testator's  daughter  for  life,  and  at  her 
death  to  pay  over  and  deliver  the  same  to 
her  issue,  but,  if  she  should  die  without 
surviving  issue,  then  to  testator's  heirs  at 
law,  does  not,  by  the  intention  disclosed, 
rebut  the  presumption  that  the  heirs  at  law 
took  as  tenants  in  common  rather  than  as 
joint  tenants.  Allen  v.  Almy  (Conn) 
1917B-112.  (Annotated.) 

(6)     Per  Capita  or  Per  Stirpes. 

214.  A  bequest  to  persons  who  are  living 
and  to  children  of  another  who  is  dead 
presumptively  refers  to  the  children  as  in- 
dividuals and  not  as  a  class,  and  the  chil- 
dren take  the  same  share  per  capita  with 
those  persons  who  are  living,  and  the  rela- 
tions between  the  beneficiaries  and  the 
operation  of  the  statute  on  those  relations 
in  case  of  intestacy  do  not  overcome  the 
presumption  that  a  per  capita  distribution 
was  intended.  Perdue  v.  Starkey's  Heirs 
(Va.)  1916C-409.  (Annotated.) 

215.  A  husband  and  wife  executed  a 
will  whereby  they  made  specific  legacies, 
and  then  gave  to  persons  named  and  the 
daughters  of  another  person  their  estate, 
"to  be  equally  divided  between  them." 
The  beneficiaries  bore  different  degrees  of 
relationship  to  each  other  and  to  the  hus- 
band and  wife.  Held,  that  the  estate  must 
be  divided  per  capita  among  the  bene- 
ficiaries.   Perdue  v.  Starkey's  Heirs  (Va.) 

(Annotated.) 


1916C-409. 


Note. 


Bequest  to  be  divided  equally  among 
persons  standing  in  different  relationships 
to  testator  as  requiring  division  per  cap- 
ita or  per  stirpes.     19ieC-411. 

(7)     Implied  Devise  or  Bequest. 

216.  Gifts  by  Implication.  Gifts  by  Im- 
plication are  not  favored,  though  they  will 
be  given  effect  when  clearly  appearing. 
Porter  v.  Union  Trust  Co,  (Ind.)  1917D- 
427. 

217.  Erroneous  Eecital  as  Implied  Gift. 
A  bequest  may  be  implied  from  an  erro- 
neous recital  in  a  will  of  a  previous  spe- 
cific gift  in  the  will  but  not  from  a  recital 
in  reference  to  a  disposition  by  an  instru- 
ment other  than  the  will.  Porter  v.  Union 
Trust  Co.  (Ind.)  1917D-427.      (Annotated.) 


Note. 
Implied  devise  or  bequest  from  recital 
in  will.    1&17D-431. 

(8)     Gift. 

218.  Language  Importing  Gift  —  'Tay 
Over  and  Deliver."  A  provision  of  a  will, 
that  the  testamentary  trustees  should  "pay 
over  and  deliver"  the  property  to  a  daugh- 
ter's issue  at  her  death,  imports  a  gift. 
Allen  T.  Almy  (Conn.)  1917B-112. 

(9)     Trust  Estates. 

219.  Certainty  as  to  Subject-matter  — 
Eesiduum  of  Estate.  A  bequest  in  trust 
of  "all  the  rest,  residue  and  remainder  of 
my  property  of  every  kind  and  nature 
whatsoever"  is  not  uncertain  as  to  the 
subject-matter.  In  re  Dewey's  Estate 
(Utah)   1918A-475. 

220.  Bequest  With  Direction  to  Dis- 
tribute. A  will  which  gives  to  D  and  M 
$500  each,  or  if  there  be  not  enough  to  pay 
both  legacies,  then  to  each  one-half  of 
what  is  available,  directs  that  if  there  be 
a  surplus  after  paying  such  legacies  in 
full,  $500,  or  such  portion  thereof  as  said 
surplus  will  pay,  be  paid  to  T,  and  gives 
"all  the  rest,  residue  and  remainder"  to 
T,  with  provision,  "It  is  my  desire  that 
he  shall  distribute  the  same  .  .  .  among 
my  nephews  and  nieces,"  creates  a  trust 
as  to  the  residue,  to  be  distributed  among 
testatrix's  nieces  and  nephews,  other  than 
T.  In  re  Dewey's  Estate  (Utah)  1918A- 
475. 

221.  Trusts  —  Creation — Sufficiency  of 
Language.  A  will  need  use  no  particular 
words  to  create  a  trust,  but  it  is  enough 
that,  from  all  the  language  in  it,  a  trust  is 
fairlv  implied.  In  re  Dewey's  Estate 
(Utah)  1918A-475. 

(10)     Power   of   Disposition   and   ControL 

222.  Where  one  willed  a  farm  in  fee  to 
his  wife,  directing  that  his  daughter  should 
have  a  home  thereon,  and  that,  if  the  wife 
should  find  it  necessary  to  move,  the 
daughter  should  be  entitled  to  support  by 
her,  between  the  provisions  of  the  will  giv- 
ing the  property  to  the  wife  and  those 
charging  such  property  in  her  hands  with 
the  maintenance  of  the  daughter,  there 
was  no  such  repugnancy  as  would  render 
the  charge  for  her  maintenance  void. 
Chew  V.  Sheldon  (N.  Y.)  1916D-1268. 

223.  Power  to  Sell  Land  —  Implication. 

No  technical  or  express  words  are  neces- 
sary in  a  will  to  create  a  power  of  sale, 
but  if  the  intention  is  apparent  such  power 
will  be  implied,  and  it  may  be  inferred 
from  the  general  tenor  of  the  instrument, 
or  from  the  fact  that  a  trustee  is  empow- 
ered and  directed  to  do  certain  things,  to 
which    the    sale   of   the   trust   property   ia 


884 


DIGEST. 

1916C— 1918B. 


necessarily  a  condition  precedent.  Holden 
V.  Circleville  Light,  etc.  Co.  (Fed.)  1916D- 
443.  (Annotated.) 

224.  A  testator  devised  and  bequeathed 
all  of  his  residuary  estate  to  his  widow  for 
life,  and  provided  that  all  of  the  property 
remaining  at  the  time  of  her  death  "shall 
constitute  a  fund  for  the  support  and 
maintenance  of  my  daughter  .  .  .  and  her 
children  during  her  life,  and  at  the  death 
of  my  said  daughter  .  .  .  the  same  shall 
be  equally  divided  between  her  children." 
There  was  a  further  provision  that,  should 
the  daughter's  husband  die  or  become  in- 
capacitated during  the  widow's  life,  the 
daughter  should  have  the  use  of  a  house 
and  grounds  free  of  rent.  The  property 
consisted  largely  of  unproductive  real  es- 
tate. Held,  following  a  decision  of  the 
supreme  court  of  the  state  in  a  suit  be- 
tween other  parties,  that  the  fund  created 
by  the  property  remaining  at  the  death 
of  the  widow  included  all  the  property, 
real  and  personal,  and  that  both  principal 
and  income  were  charged  with  the  sup- 
port and  maintenance  of  the  daughter  and 
her  children  during  her  lifetime,  including 
the  reasonable  education  of  her  children; 
also  that  to  that  end,  which  was  clearly  the 
paramount  object  of  the  testator,  the 
daughter  took  a  life  estate  subject  to  the 
trust  with  an  implied  power  to  sell  and 
convey  real  estate  when  she  deemed  it 
necessary.  Holden  v.  Circleville  Light, 
etc.  Co.  (Fed.)   1916D-443.      (Annotated.) 

225.  The  court,  in  construing  the  pro- 
visions of  a  will  conferring  power  on  the 
executor,  must  seek  to  give  efifeet  to  the 
intention  of  testator,  and,  where  the  will 
merely  authorizes  by  implication  the  ex- 
ecutor to  sell  real  estate,  the  court  may 
not  construe  the  provisions  to  authorize 
a  mortgage.  Heiseman  v.  Lowenstein 
(Ark.)  1916C-601.  (Annotated.) 

226.  Where  testatrix  bequeaths  the  re- 
mainder of  her  property  to  her  husband 
for  his  sole  use  and  benefit,  with  power 
to  use  and  dispose  of  all  or  any  part  there- 
of during  his  lifetime,  and  on  his  death 
that  remaining,  if  any,  to  be  divided 
among  certain  individuals  named,  the  hus- 
band is  only  entitled  to  exercise  such 
power  by  a  conveyance  in  his  lifetime,  and 
cannot  exercise  it  by  will.  Mooy  v.  Gal- 
lagher (R.  L)  1916D-395.         (Annotated.) 

227.  Estate  Created — Life  Estate  With 
Power  of  Disposition.  Where  testatrix  be- 
queaths to  her  husb?ind  an  estate  for  life 
in  the  remainder  of  her  real  and  personal 
property  "for  his  sole  use  and  benefit," 
with  power  as  to  certain  of  her  real  estate 
to  use  and  dispose  of  the  same  during  his 
lifetime,  and  on  his  death  that  which 
remained  in  the  husband's  possession  to  be 
divided  among  certain  persons  designated, 
the  husband  takes  a  life  estate  with  power 
of  disposition  onlv,  and  not  a  fee.  Mooy 
V.  Gallagher  (R.  L)  19160-393. 

(Annotated.) 


Note. 


Testamentary  restriction  on  right  of  ten- 
ant in  common  to  partition.     1916D-1270. 

d.    Suit  for  Construction. 

228.  Jurisdiction  of  Equity  to  Ck)n8tnie. 
A  court  of  equity  has  jurisdiction  to  con- 
strue a  will  creating  a  trust.  Heiseman  v. 
Lowenstein  (Ark.)  19160-601. 

11.     VALIDITY  OF  PROVISIONS, 
a.     Restraint  of  Marriage. 

229.  A  condition  of  a  will  preventing 
vesting  of  the  absolute  title  of  a  devisee 
if  she  is  married  to  a  certain  individual, 
or  until  such  individual's  death,  is  not  in- 
valid as  violating  any  constitutional  right 
of  such  individual  to  security  of  life  and 
liberty.  Matter  of  Seaman  (N.  Y.)  1918B- 
1138.  (Annotated.) 

230.  A  condition  in  a  will  preventing 
vesting  of  the  estate  absolute  in  a  devisee, 
if  she  marries  a  certain  individual,  or  in 
any  event  until  his  death,  will  not  be 
held  invalid  as  contemplating  illegal  per- 
formance of  the  condition;  it  being  pre- 
sumed that  the  testator  intended  the  con- 
dition to  be  legally  and  naturallv  per- 
formed. Matter  of  Seaman  (N.  Y.)  1918B- 
1138.  (Annotated.) 

231.  At  common  law  conditions  in  gen- 
eral restraint  of  marriage  were  regarded 
as  contrary  to  public  policy.  Matter  of 
Seaman  (N.  Y.)  1918B-1138. 

(Annotated.) 

232.  The  common-law  rule  that  condi- 
tions in  a  will  in  general  restraint  of  mar- 
riage are  contrary  to  public  policy  still 
prevails  in  New  York.  Matter  of  Seaman 
(N.  Y.)  1918B-1138.  (Annotated.) 

233.  At  common  law  tliere  was  no  pro- 
hibition against  testamentary  conditions 
in  restraint  of  marriage  with  particular 
classes  of  persons  or  specific  persons. 
Matter  of  Seaman  (N.  Y.)  1918B-1138. 

(Annotated.) 

234.  A  condition  in  a  will  preventing 
vesting  of  the  estate  absolute  in  a  de- 
visee, if  she  marries  a  certain  individual, 
or  in  any  event  until  his  death,  is  not  in- 
valid as  tending  to  incite  her  to  cause  his 
death,  but  is  a  valid  restriction.  Matter 
of  Seaman  (N.  Y.)  1918B-1138. 

(Annotated.) 

235.  Legacy  Conditioned  on  Obtaining 
Divorce.  While  a  condition,  attached  to  a 
legacy,  in  restraint  of  marriage  generally 
is  invalid  as  against  public  policy,  a  con- 
dition that  the  legatee  shall  not  marrv  a 
certain  person,  or  a  legacy  to  a  widow 
to  divest  if  she  marries,  is  valid.  Daboll 
v.  Moon  (Conn.)  1917B-164.     (Annotated.) 

236.  The  condition  of  a  legacy  to  tes- 
tator's son  to  be  paid  to  him  on  the  death. 


WILLS. 


885 


of  Ws  present  wife,  or  if  he  should  obtain, 
a  divorce  from  her,  or  should  become 
separated  from  her,  or  if  -within  a  year 
after  divorce  or  separation  he  should  be- 
come married  to  a  good  respectable  woman, 
is  not  contrary  to  public  policy  as  a  re- 
straint of  marriage.  Daboll  v.  Moon 
(Conn.)   1917B-164.  (Annotated.) 

Notes. 

Validity  of  legacy  or  devise  conditioned 
on  recipient  obtaining  divorce  or  sepa- 
rating from  spouse.     1917B-167. 

Validity  of  testamentary  disposition  in 
restraint  of  marriage.     19i8B-1142. 

b.     Gift  Subversive  of  Religion, 

237.  A  testamentary  gift  to  an  incorpo- 
rated society  whose  purposes  are  to  pro- 
mote the  principle  that  human  conduct 
siiould  be  guided  by  natural  rather  than 
revealed  religion  and  to  secure  the  elim- 
ination of  sectarian  and  ecclesiastical  in- 
fluences in  the  law  is  valid.  In  re  Bow- 
man (Eng.)  1917B-1017.  (Annotated.) 

238.  A  testamentary  gift  to  an  incor- 
porated society,  whose  purpose  is  to  prom- 
ulgate the  doctrine  that  human  conduct 
should  be  based  on  natural  knowledge  and 
not  on  supernatural  belief  and  that  human 
welfare  in  this  world  is  the  proper  end  of 
all  thought  and  action,  is  valid.  Bowman 
V.  Secular  Society  (Eng.)  1917D-761. 

(Annotated.) 
Note. 

Validity  of  testamentary  disposition 
subversive  of  religion.     1917B-1024. 

c.     Gift  to  "Witness. 

230.  Colo.  Rev.  St.  1908,  §  7074,  provides 
that,  where  a  will  leaves  any  interest  to  a 
subscribing  witness,  it  shall  be  invalid,  un- 
less it  is  attested  by  a  sufficient  number 
of  other  competent  witnesses,  and  Rev.  St. 
1908,  §§  4181-4191,  makes  a  legacy  to  a 
husband  his  own  property  separate  from 
that  of  his  wife.  Held,  that  the  wife  of 
a  beneficiary  who  attested  a  will  had  no 
such  interest  thereunder  as  would  forfeit 
the  interest  of  the  husband.  White  v. 
Bower  (Colo.)   1917A-835,       (Annotated.) 

d.     Trust  Provisions. 

240.  Discretion  as  to  Distribution  — 
Effect.  That  the  will,  giving  property  in 
trust  to  be  distributed  among  testatrix's 
nephews  and  nieces,  gives  the  trustee  dis- 
cretion as  to  which  of  them  he  shall  dis- 
tribute it  among,  and  in  what  proportions, 
does  not  invalidate  the  trust.  In  re  Dew- 
ey's Estate  (Utah)  1918A-475. 

e.     Effect  of  Invalid  Provisions. 

241.  Property  Falling  into  Residue — In- 
valid Devise.  Under  X.  Car.  Revisal  1905, 
§  3142,  providing  that  unless  a  contrary  in- 


tent shall  appear  by  the  will,  such  real 
esta1:e  as  shall  be  comprised  or  intended  to 
be  comprised  in  any  devise  in  such  will, 
which  shall  fail  or  be  void  by  reason  of 
the  death  of  the  devisee  in  testator's  life- 
time, or  by  reason  of  such  devisee  being 
contrary  to  law  or  otherwise  incapable  of 
•  taking  effect,  shall  be  included  in  the  re- 
siduary devise,  if  any,  where  testator's 
will  provided  that  he  gave  and  devised  to 
"my  [leaving  a  blank  space]"  the  tract  of 
land  on  which  he  resided,  consisting  of 
648  acres,  for  life,  and  after  his  death  to 
his  heirs,  thereafter  making  a  residuary 
bequest  of  any  surplus  over  debts  and  e*- 
penses,  it  is  held  that  the  residuary  lega- 
tees were  entitled  to  the  land,  whether  it 
was  not  devised  at  all  for  failure  to  name  a 
devisee,  or  whether  it  was  a  devise  which, 
failed  because  incapable  of  taking  effect, 
since  if  the  land  was  not  devised,  it  was 
part  of  the  residuary  estate  when  the  will 
took  effect,  and  if  it  was  devised,  and  the 
devise  was  incapable  of  taking  effect  for 
failure  to  name  the  devisee,  it  went  to  the 
legatees  by  virtue  of  the  statute.  Faison 
V.  Middleton  (N.  Car.)  1917E-72. 

12.     LEGATEES  AND  DEVISEES, 
a.     Nature  of  Legacy  or  Devise, 

242.  While  a  testamentary  gift  will  bo 
construed  as  creating  a  tenancy  in  com- 
mon rather  than  a  joint  tenancy,  unless  a 
different  intention  appears  in  the  will,  "the 
intention  disclosed  by  the  instrument  will 
govern,  whichever  it  creates.  Allen  t. 
Almy  (Conn.)  1917B-112,        (Annotated,) 

b.    Acceptance, 

243.  Testamentary  Trustees  —  Right  to 
Rescind,  A  testamentary  trustee  derives 
his  authority  from  the  will,  and,  while  he 
may  refuse  to  accept  the  position,  yet,  if 
he  does  any  act  indicative  of  acceptance, 
he  may  not  thereafter  rescind  without 
consent  of  the  cestui  que  trust  or  the 
court.  Matter  of  KeUogg  (N,  Y.)  1916J>- 
1298. 

244.  Refusal  by  Trustee  to  Accept  — 
Vesting  of  Estate  in  Others.  Where  one 
of  two  or  more  trustees  refuses  to  accept, 
the  estate  vests  in  the  others  as  though 
the  trustees  refusing  were  dead  or  had 
not  been  named.  Matter  of  Kellogg  (N,  Y.) 
1916D-1298. 

24.5.  Renunciaton  by  Trustee — Right  to 
Retract,  One  of  several  testamentary 
trustees  who  had  already  renounced  as 
executor  filed  and  delivered  his  renuncia- 
tion as  trustee  before  any  action  with  re- 
spect to  the  trust  was  taken.  N.  Y.  Code 
Civ.  Proc.  §  2814,  provides  for  the  resigna- 
tion, but  not  for  the  renunciation  of  trus- 
tees. It  is  held  that,  in  view  of  section 
2639,  which  is  declarative  of  the  common 
law,  and  provides  that  a  person  named  as 
executor   may   renounce,   which   renuncia- 


886 


DIGEST. 

1916C— 1918B. 


tion  may  be  retracted  any  time  before  let- 
ters have  been  granted,  the  trustee  who 
renounced  could  not,  after  the  remaining 
trustees  had  received  part  of  the  trust 
property  and  entered  upon  their  duties,  re- 
tract his  renunciation.  Matter  of  Kellogg 
(N.  Y.)   1W6D-1298.  (Annotated.) 

246.  Presumption  of  Acceptance  of  De- 
vise or  Bequest.  Where  a  devise  or  bo- 
quest  is  beneficial,  there  is  a  presumption 
of  acceptance,  though  such  presumption  is 
not  conclusive,  and  the  devisee  may  re- 
ject. Albany  Hospital  v.  Albany  Guard- 
ian Society  (N.  Y.)  19ieD-1195. 

247.  Rejection  of  Devise — Effect.  Where 
a  devisee  rejects  a  devise,  he  has  no  title 
to  the  realty  devised,  whether  it  be  found 
that  none  passed,  or  that  his  rejection  di- 
vested all  interest.  Albany  Hospital  v. 
Albany  Guardian  Society  (N.  Y.)  1916D- 
1195.  (Annotated.) 

248.  Where  a  church,  by  resolution,  de- 
clined a  devise,  the  written  resolution  was 
sufi&cient;  reconveyance  being  unneces- 
sary. Albany  Hospital  v.  Albany  Guard- 
ian Society  (N.  Y.)  1916I>-1195. 

(Annotated.) 
Notes. 
Right  of  executor  or  trustee  to  retract 
renunciation  of  trust.     1916D-1301. 

Effect  of  refusal  of  devisee  to  accept 
devise  of  realty.     1916D-1199. 

c.     Lapsing  and  Ademption. 

249.  Lapsed  Legacy — Descent — Right  of 
Ancestor  of  Deceased  Legatee.  Wliere  a 
father  devised  land  to  his  children,  and 
one  died  without  issue  while  still  an  in- 
fant, the  surviving  children  take  as  heirs, 
under  Ky.  St.  §  1401,  prescribing  the  rules 
of  descent,  to  the  exclusion  of  the  mother. 
Lamar  v.  Crosby  (Ky.)  1916E-1033. 

250.  Bequest  Dependent  on  Devise  — 
Lapse.  Where  one  willed  a  farm  in  fee  to 
his  wife,  directing  that  his  daughter 
should  have  a  home  thereon,  and  that,  if 
the  wife  should  find  it  necessary  to  move, 
the  daughter  should  be  entitled  to  support 
by  her,  the  bequest  to  the  daughter  of  the 
charge  on  the  farm  was  not  so  dependent 
on  the  devise  of  the  wife  as  to  lapse  with 
it  when  the  wife  predeceased  the  testator. 
Chew  v.  Sheldon  (N.  Y.)  1916D-1268. 

d.     Election. 
(1)     Acts  Constituting. 

251.  Election  by  Husband  to  Take  Un- 
der Wife's  Will — Acts  Constituting  Elec- 
tion. In  order  that  acts  or  a  course  of 
conduct  of  the  surviving  consort  of  a  de- 
ceased testator  should  operate  to  equitably 
estop  such  consort  from  claiming  dower 
and  a  distributive  share  of  the  personal 
property  under  the  law  and  to  amount  to 
an  election  to  take  under  the  will,  such 
acts  must  be  of  such  an  unequivocal  char- 


acter as  win  clearly  and  distinctly  demon- 
strate a  purpose  to  accept  the  provisions 
of  the  will.  Colored  Industrial  School  v. 
Bates   (Ohio)   1916C-1198.       (Annotated.) 

Note. 
SuflBciency  of  acts  to  constitute  election 
by    husband    to    take    under    wife's    will. 
19160-1204. 

(2)     Effect. 

252. 'Election  by  Widow — Rights  as  to 
Intestate  Property.  A  widow  who  elects 
to  take  under  her  husband's  will  thereby 
bars  herself  and  her  heirs  from  inheriting 
property  of  the  husband  undisposed  of  by 
the  will.  Compton  v.  Akers  (Kan.)  1918B- 
983.  (Annotated.) 

Note. 

Election  by  widow  to  take  under  will  as 
affecting  her  right  to  intestate  property. 
1918B-986. 

e.     Eight  to  Accumulation  and  Income. 

253.  Bequest  of  Income — Accumulation. 
A.  testator  devised  and  bequeathed  all  his 
property  to  a  trustee,  with  directions  that 
the  trustee  should  collect  the  income,  and 
out  of  the  net  proceeds  pay  his  wife  $300 
per  month.  At  the  time  the  will  was 
made,  two  of  the  testator's  three  daugh- 
ters, who  were  his  only  children,  were 
married,  while  the  youngest  lacked  a  num- 
ber of  years  of  reaching  her  majority. 
The  testator  expressed  his  confidence  that 
his  wife  would  maintain  the  youngest 
daughter,  and  provided  that,  in  case  of 
emergency  or  insufBciency  of  the  income, 
the  trustee  might  sell  the  principal  to  meet 
immediate  necessities.  There  was  no  in- 
timation that  the  testator  intended  the 
daughters  to  share  in  the  property  during 
the  life  of  their  mother,  and  the  last 
clause  of  the  will  recifed  that  it  was  his 
wish  that  the  wife  during  her  life  should 
have  the  entire  benefit  of  his  estate.  It 
is  held  that,  in  view  of  Burns'  Ind.  Ann. 
St.  1914,  §  9724,  prohibiting  accumulations, 
unless  for  the  benefit  of  a  minor,  and  to 
terminate  with  the  expiration  of  the  min- 
ority, the  wife  was  entitled  to  take  all  of 
the  income  from  the  property.  Porter  v. 
Union  Trust  Co.  (Ind.)  1917D-427: 

f.     Agreement   for  Division. 

254.  Rights  of  Parties.  Where  testator 
bequeathed  all  his  silver,  bric-a-brac,  and 
pictures  to  his  three  children,  and  they  en- 
tered into  a  tentative  agreement  under 
which  each  selected  articles  of  personal 
property,  agreeing  .that,  if  they  were 
classed  as  furniture,  they  would  purchase 
such  articles  at  the  inventory  prices,  ap- 
pellant, who  refused  to  abide  by  the  classi- 
fication of  the  executor,  is  entitled  to  a 
return  of  all  sums  paid  for  articles  which 
thereafter  were  found  to  be  bric-a-brac ; 
the  others  not  demanding  a  new  division. 
Matter  of  Kellogg  (N.  Y.)  1916D-129S. 


WIRE  FENCES— WITNESSES. 


887 


See  Fences. 


WIEE  FENCES. 


WISDOM. 


Of  legislature  no   concern   of  courts,  see 
Constitutional  Law,  157-167. 

WIT  AND  HUMOE. 

No  defense  to  defamation,  see  Libel  and 
Slander,  77. 

WITHDEAWAL  OF  PLEA. 

Leave    to    withdraw    harmless    error,    see 
Appeal  and  Error,  221. 

WITNESSES. 

1.  Competency,  887. 

a.  Knowledge  of  Witness,  887. 

b.  Juror  on  Former  Trial,  888. 

c.  Person  Jointly  Indicted,  888. 

d.  Infant,  888. 

e.  Husband  and  Wife,  888. 

f.  Determination  of  Question,  888. 

g.  Expert,  888. 

h.  Privileged   Communications,   889. 

(1)  Attorney  and  Client,  889. 

(a)  In  General,  889. 

(b)  Knowledge      not      Ob- 

tained   in    Course    of 
Employment,  889. 

(c)  Compelling    Production 

of      Client's     Papers, 
889. 

(d)  Waiver     of     Privilege, 

890. 

(2)  Physician  and  Patient,  890. 

(a)  In  General,  890. 

(b)  Waiver     of     Privilege, 

890. 

(3)  Husband  and  Wife,  890. 

(4)  Stenographer    and   Employer, 

890. 

(5)  Detective  and  Employer,  891. 

(6)  Overheard    Confidential    Com- 

munications,  891. 
L  Transaction  With  Person  Since  De- 
ceased, 891. 

(1)  Evidence     Held     Admissible, 

891. 

(2)  Evidence   Held  Inadmissible, 

892. 

(3)  Waiver  of  Privilege,  892. 

2.  Examination,  892. 

a.  Mode  of  Examination,  892. 

(1)  In  General,  892. 

(2)  Leading  Questions,  893. 

(3)  Hypothetical  Questions,  893. 

b.  Cross-examination,  894. 

(1)  In  General,  894. 

(2)  Credibility  of  Witness,  895, 

(3)  Experts,  895. 

c.  Eecalling  Witness,  896. 

d.  Privilege  of  Witness,   896. 

(1)  Nature  and  Extent,  896. 

(2)  Who    may    Assert    Privilege, 

896. 

(3)  Waiver  of  Privilege,  896. 


S.  Credibilifv,  Impeachment  and  Corrobo- 
ration, 896. 
B.  Credibility,  896. 

b.  Impeachment,    897. 

(1)  Foundation,  897. 

(2)  Prior  Inconsistent  Statements 

or  Testimony,  897. 

(3)  Conviction   of   Crime   or  Ar- 

rest, 898. 

(4)  Insanity,   898. 

(5)  Impeachment  by  Party  Call- 

ing Witness,  898. 

(6)  Attacking  Character  or  Eepu- 

tation,  898. 

c.  Corroboration,  898. 
Competency,  review,  see  Appeal  and  Error, 

166,  167. 

Harmless  and  prejudicial  rulirigs,  see  Ai>- 
peal  and  Error,  318,  319. 

Eight  to  testify,  see  Attorneys,  14. 

Testimony  and  corroboration  of  complain- 
ant, see  Bastardy,  3,  4,  6,  13,  15. 

Eight  of  accused  to  confront,  see  Criminal 
Law,  33-34. 

Privilege,  transcript  of  proceedings,  see 
Discovery,  3. 

Number  of  witnesses  as  affecting  weight 
of  testimony,  see  Evidence,  163. 

Expert  evidence  as  to  probabilities,  see 
Forgery,  2. 

Effect  of  testamentary  provision  in  ante- 
nuptial contract,  see  Husband  and 
Wife,  21. 

Testimony  privileged  when,  see  Libel  and 
Slander,  41-44. 

Stockholder  of  mortgagee  as  subscribing 
witness  for  mortgagor,  see  Mortgages 
and  Deeds  of  Trust,  3. 

Credibility  for  jury,  see  Negligence,  111. 

Absence  of  witness  as  ground  for  continu- 
ance, see  Trial,  6,  7. 

Putting  witnesses  under  rule,  see  Trial,  25. 

Stopping  cross-examination,  see  Trial,  33. 

Attestation  of  will,  see  Wills,  20-29. 

Gift  to  attesting  witness,  validity,  see 
■     Wills,  239. 

1.     COMPETENCY, 
a.     Knowledge  of  Witness. 

1.  A  witness  who  knows  the  cost  of  an 
annuity  and  can  identify  the  mortuary 
tables  in  use  by  insurance  companies  is 
competent  to  testify  thereto  though  he  is 
unable  to  explain  the  manner  in  which  the 
cost  is  estimated  or  the  basis  on  which 
the  table  is  prepared.  Canadian  Pacific 
Ey.  V.  Jackson  (Can.)  1916C-912. 

2.  Age — Evidence — Eight  to  Testify  to 
Age  of  Another.  A  witness  may,  nartly  in 
view  of  the  corroborative  facts  known  to 
him,  testifv  as  to  his  own  age  from  hear- 
say; but  he  may  not  be  permitted  to  tes- 
tify as  to  the  age  of  another  person  upon 
the  basis  of  hearsay  or  reputation.  Free- 
man V.  First  National  Bank  (Okla.)  1918A- 
259.  (Annotated.) 

Notes. 
Competency  of  witness  to  testify  as  to 
his  own  age.     1918B-427. 


888 


DIGEST. 

1916C— 1918B. 


•Competency  of  witness  to  testify  to 
knowledge  of  another.    1918A-947. 

Competency  of  witness  to  testify  to  age 
of  another  person.     1918A-262. 

b.  Juror  on  Former  Trial. 

3.  Jurors  on  a  former  trial  may  testify 
on  a  subsequent  trial  as  to  physical  facts 
coming  to  their  knowledge  during  a  view 
made  by  them  on  the  former  trial.  It  is 
not  material  that  the  former  verdict  was 
set  aside  because  of  the  misconduct  of  the 
jury  in  conducting  unauthorized  experi- 
ments during  the  view.  State  v.  Ward 
(Minn.)  191&C-674.  (Annotated.) 

Note. 
Competency    as    witness    of    juror    on 
former  trial.     1916C-676. 

c.  Person  Jointly  Indicted. 

4.  On  a  trial  for  murder,  one  jointly  in- 
dicted with  defendants,  but  not  on  trial, 
is  a  competent  witness.  State  v.  Griffin 
(S.  Car.)  1916D-392. 

d.     Infant. 

5.  A  finding  that  a  witness,  11  years  old, 
who  testified  that  if  he  swore  to  a  lie  they 
would  put  him  in  jail,  that  he  intended  to 
tell  the  truth,  and  was  going  to  tell  what 
he  knew,  and  a  witness,  12  years  old,  who 
testified  that  he  had  never  been  in  court 
before,  tAat  when  he  kissed  the  book  it 
meant  that  he  would  tell  the  truth,  and 
that  if  he  should  tell  a  lie  they  would  put 
him  in  the  lockup,  were  competent  wit- 
nesses, is  conclusive  as  to  their  compe- 
tency, both  as  to  their  moral  and  religious 
sensibility  and  their  intelligence.  Stat© 
v.  Pitt  (N.  Car.)  1916C-422. 

(Annotated.) 

6.  Young  Child.  When  a  child  seven 
years  of  age  is  offered  as  a  witness  it  is 
the  duty  of  the  court  to  examine  her, 
alone  if  necessary,  as  to  her  competency, 
and  this  sound  judicial  discretion  of  the 
court  in  allowing  or  refusing  to  allow  her 
to  relate  to  the  jury  the  facts  within  her 
knowledge  will  not  ordinarily  be  inter- 
fered with  by  this  court.  It  is  erroneous 
to  take  the  unsworn  statements  of  an  in- 
terested party  as  to  t"he  qualifications  of 
such  witness  and  exclude  her  testimony 
without  examination  by  the  court.  Rob- 
erts V.  State  (Neb.)  1917E-1040. 

e.     Husband  and   Wife. 

7.  Competency — Testimony  of  Wife  to 
Nonaccess.  Though  Kirby's  Ark.  Dig. 
§  492,  makes  the  mother  a  competent  wit- 
ness in  bastardy  proceedings,  she  may  not 
testify  to  nonaccess  of  her  husband,  Ken- 
nedy V.  State  (Ark.)  1917A-1029. 

(Annotated.) 

8.  Husband  Prospective  Beneficiary  Un- 
der Wife's  WilL  The  fact  that  a  husband 
may  become  a  beneficiary  under  his  wife's 
will,  or  that,  if  she  died  intestate,  he  will 


succeed  to  her  personal  p»operty,  subject 
to  her  debts,  does  not  disqualify  him  as  a 
witness  in  her  behalf  as  to  dealings  and 
communications  with  a  decedent  with 
whom  the  wife  had  contracted  to  furnish 
board  in  return  for  decedent's  promise  to 
will  her  realty.  McCurry  v.  Purgason 
(N.  Car.)  1918A-907. 

9.  Effect  of  Deatb  of  One  Spouse.  Un- 
der the  proviso  to  111,  Evidence  Act 
(Kurd's  Bev.-  St.  1913,  c.  51),  §  5,  that 
nothing  in  the  section  shall  permit  hus- 
band or  wife  to  testify  to  any  admissions 
or  conversations  of  the  other,  whether 
made  by  one  to  the  other  or  to  a  third 
person,  except  in  causes  between  the  hus- 
band and  wife,  which  is  but  a  recognition 
and  re-enactment  of  the  common  law,  the 
wife  cannot,  even  after  death  of  her  hus- 
band, and  in  an  action  between  others  in 
which  she  had  no  interest,  testify  to  a 
conversation  between  her  husband  and 
others.  Mahlstedt  v.  Ideal  Lighting  Co. 
(111.)   1917D-209.  (Annotated.) 

Notes. 

Husband  or  wife  as  competent  witness 
in  prosecution  for  bigamy.     19ieC-1060. 

Effect  of  death  of  one  spouse  on  com- 
petency of  other  as  witness.     1917D-216. 

f.  Determination  of  Question. 
IQ.  Mental  Capacity  —  Question  for 
Court.  In  a  prosecution  for  rape,  the 
question  of  the  mental  capacity  of  prose- 
cutrix is  one  of  fact,  to  be  decided  by  the 
court  before  permitting  her  to  testify. 
State  V.  Tetrault  (N.  H.)  1918B-425. 

g.     Expert, 

11.  Discretion  of  Trial  Court.  The  ques- 
tion of  the  qualification  of  an  expert  rests 
largely  in  the  discretion  of  the  trial  court, 
depending  somewhat  on  the  subject  and 
the  particular  witness,  Mahlstedt  v.  Ideal 
Lighting  Co,  (111,)  1917D-209. 

12.  Qualification  of  Expert — Installation 
of  Gas  Engines.  A  witness,  who  had  been 
employed  for  27  years  in  the  selling  of 
gas  engines  for  boats,  is  competent  to 
testify  as  to  the  duties  of  such  agents  in 
respect  to  the  supervision  of  the  installa- 
tion of  engines  sold.  Shoop  v.  Fidelity, 
etc,  Co.  (Md.)  1916D-954, 

13.  As  to  Value.  A  witness  is  not  quali- 
fied to  testify  as  to  the  value  of  apples  in 
a  certain  market,  where  his  only  infor- 
mation on  the  subject  was  derived  from 
inquiry  made  by  him  among  certain  fruit 
dealers  in  that  place  without  any  inde- 
pendent knowledge  of  the  subject.  Dup- 
lap  V.  Great  Northern  E.  Co.  (S.  Dak.) 
1916D-805. 

14.  The  plaintiff  purchased  materials, 
machinery,  and  other  articles  and  con- 
structed and  equipped  the  factory,  paying 
the  cost,  freight,  labor,  and  expense  of  in- 
stallation. Schedules  of  the  items  were 
attached    to    the    petition.     The    plaintiff 


WITNESSES. 


889 


testified  to  the  value  of  the  plant,  taking 
into  consideration,  with  other  things,  the 
items  and  aggregates  of  the  schedules. 
Held,  he  was  a  competent  witness  and  his 
testimony  was  properly  received.  Hol- 
linger  v.  Missouri,  etc.  B.  Co.  (Kan.) 
1916D-802. 

15.  Qualification  of  Expert  —  Value  of 
Medicine.  An  experienced  chemist  is  held, 
under  the  facts  shown,  to  have  been  quali- 
fied to  testify  as  an  expert  as  to  the  ther- 
apeutic value  of  a  medicine  which  he  had 
analvzed.  Samuels  v.  United  States  (Fed.) 
1917A-711. 

16.  Proof  of  Value  of  Assets.  Where 
the  assets  of  a  corporation  are  shown  to 
include  various  items  of  property,  a  wit- 
ness should  not  give  an  opinion  as  to  the 
aggregate  value,  until  he  has  shown  quali- 
fication to  estimate  the  value  of  the  sev- 
eral   items.     Hawkins   v.   Mellis,   Pirie   & 

,  Co.  (Minn.)  1916C-640. 

Note. 
Competency  of  witness  to  testify  to  in- 
formation acquired  by  aid  of  microscope. 
1916D-930. 

h.     Privileged    Communications. 

(1)     Attorney  and  Client. 

(a)     In  General. 

17.  Testamentary  Matters.  Where  a 
testatrix  gives  instructions  to  her  attor- 
ney relative  to  her  will  in  the  presence  of 
a  third  person,  the  communications  are 
not  confidential  so  as  to  be  privileged, 
and  it  is  error,  in  an  action  to  construe 
the  will,  to  exclude  the  attorney's  testi- 
mony as  to  such  instructions.  Baumann 
V.  Steingester  (N.  Y.)  19ieC-1071. 

(Annotated.) 

18.  Illegal  Transaction  not  Privileged. 
A  communication  to  an  attorney  concern- 
ing an  intention  on  the  part  of  the  client 
to  do  some  illegal  act  in  the  future  is  not 
privileged.  Ex  parte  McDonough  (Cal.) 
1916E-327. 

19.  Disclosure  of  Name  of  Client.  An- 
attorney  who  had  been  employed  by  cer- 
tain clients  to  represent  them  in  matters 
connected  with  the  investigation  of  elec- 
tion frauds,  and  who  appeared  to  defend 
three  other  individuals  who  were  indicted 
for  such  frauds  and  put  up  a  cash  bail 
for  one  of  the  indicted  men,  cannot  be 
compelled  to  state  to  the  grand  jury  the 
names  of  the  clients  who  employed  him 
to  renresent  the  three  indicted  men,  and 
who  furnished  the  cash  for  the  bail,  under 
Cal.  Code  Civ.  Proc.  §  282,  subd.  5,  requir- 
ing an  attorney  to  maintan  inviolate  the 
secrets  of  his  client,  and  section  1881.  pro- 
viding that  an  attorney  cannot  without 
the  consent  of  his  clients,  be  examined  as 
to  any  communication  made  by  the  client, 
"communication"  in  that  section  not  being 
restricted    to    mere    words    but   including 


acts  as  well.    Ex  parte  McDonough  (Cal.) 
1916E-327.  (Annotated) 

20.  Communication  in  Presence  of  Third 
Person.  N.  Y.  Code  Civ.  Proc.  §§  835,  836, 
providing  that  an  attorney  shall  not  be 
allowed  to  disclose  communications  made 
by  his  client  to  him,  apply  only  to  con- 
fidential communications,  and  not  to  those 
made  in  the  presence  of  others.  Baumann 
V.  Steingester  (N.  Y.)  1916C-1071. 

21.  Communication  to  Prosecuting  At- 
torney. In  a  trial  for  murder  where  a 
special  deputy  sheriff,  who  had  been  in- 
strumental in  gathering  evidence  against 
the  defendant,  testified  for  the  state,  and 
on  crosa-examination  denied  his  alleged 
statements  to  an  attorney  employed  by 
the  county,  made  in  the  presence  of  others, 
to  the  effect  that  he  wished  to  get  evi- 
dence against  defendant's  employer,  and 
that  defendant  was  a  man  who  was  easily 
controlled,  the  attorney,  called  by  the  de- 
fendant to  contradict  the  witness,  may 
disclose  the  information  which  he  received 
in  his  capacity  as  attorney.  People  v. 
Boach  (N.  Y.)  1917A^10. 

22.  Attorney  of  Defendant  Officer  and 
of  Corporation.  Where  accused  is  charged 
with  aiding  and  abetting  a  bankrupt  cor- 
poration, of  which  he  was  president  and 
manager,  to  conceal  its  assets  from  its 
trustee,  evidence  of  defendant's  attorney 
that  he  was  retained  by  defendant  as  at- 
torney for  the  corporation,  and  also  to 
represent  defendant  individually,  is  not 
objectionable  as  privileged.  Kaufman  v. 
United  States  (Fed.)  1916C-466. 

Note. 
Communications   between   attorney  and 
client  in  regard  to  testamentary  matters 
as  privileged.     1916C-1073. 

(b)  Knowledge  not  Obtained  in  Course  of 

Employment. 

23.  Statements  by  Prosecuting  Witness 
to  Prosecuting  Attorney.  Where  the  dis- 
closure of  a  communication  by  a  prosecu- 
ting witness  to  the  state's  attorney  would 
not  interfere  with  the  proper  administra- 
tion of  justice,  and  is  not  against  publie 
policy,  there  is  no  confidential  relation- 
ship between  the  parties  which  prevents 
the  witness  from  being  cross-examined 
concerning  such  communication,  or  the  at- 
torney from  being  called  to  impeach  her 
if  she  denies  making  it.  Biggins  v.  State 
(Md.)  1916E-1117.  (Annotated. 

Note. 
Statement    bv    prosecuting    witness    to 
prosecuting  attorney  as  privileged.    1916E- 
1121. 

(c)  Compelling    Production    of    Client's 

Paoers. 

24.  Demand  on  Accused  for  Production 
of  Papers.     There  is  no  error  in  permit- 


890 


DIGEST. 

1916C— 1918B. 


ting  counsel  to  demand  of  defendant,  ac- 
cused of  larceny,  that  he  produce  papers 
alleged  to  be  incriminating,  where  the 
judge  instructed  the  jury  to  disregard  it 
and  the  discussion  of  its  propriety.  People 
V.  Gibson  (N.  Y.)  1918B-509. 

(Annotated.) 

(d)     WaiTer  of  Privilege. 

'  25.  Confidential  Communication.  Confi- 
dential communications  between  attorney 
and  client,  made  because  of  the  relation- 
ship and  concerning  the  subject  matter  of 
the  attorney's  employment,  are  privileged 
from  disclosure  even  in  the  interest  of 
just'ce,  but  the  rule  is  for  the  benefit  of 
the  client  and  may  be  waived,  either  ex- 
pressly or  by  implication.  Grant  v.  Harris 
(Va.'>   1916D-1081.  (Annotated.) 

26.  Where  a  settlement  contract  and 
certain  deeds  executed  by  complainant, 
which  she  sued  to  set  aside,  were  alleged 
to  have  been  procured  from  her  by  duress 
and  she  denied  that  certain  attorneys,  who 
were  instrumental  in  making  the  settle- 
ment, had  been  employed  by  her,  but 
claimed  instead  that  they  represented  the 
other  side  of  the  transaction,  and  that 
they,  at  the  instance  of  others  adversely 
interested,  induced  her  to  execute  the  deed 
and  settlement  agreement  without  knowl- 
edge as  to  its  contents,  and  while  she  was 
incompetent  to  do  so,  she  thereby  waived 
her  right  to  claim  her  privilege  to  prevent 
the  attorneys  from  testifying.  Grant  v. 
Harris   (Va.)   1916D-1081.       (Annotated.) 

(2)     Physician  and  Patient, 
(a)     In  General. 

27.  Physician  Performing  Autopsy.  In- 
formation acquired  in  the  performance  of 
an  autopsy  by  a  physician  who  bore  no 
professional  relation  to  the  deceased  in 
his  lifetime  is  not  privileged.  Carmody  v. 
Capital  Traction  Co.  (D.  C.)  1916D-706. 

(Annotated.) 

28.  Testimony  as  to  Testamentary  Capa- 
city. Where  testatrix  requested  her  at- 
tending physicians  to  witness  her  will,  or 
knowingly  assented  thereto,  the  testimony 
of  such  physicians  as  to  the  execution  of 
the  will  and  testatrix's  sanity  and  mental 
capacity  is  not  rendered  inadmissible,  in 
an  action  to  contest  the  will,  by  Rem.  & 
Bal.  Wash.  Code,  §  1214.  providing  that  a 
physician  shall  not,  without  his  patient's 
consent,  be  examined  as  to  any  informa- 
tion acquired  in  attending  such  patient, 
testatrix  having  waived  the  nrivilege. 
Points  V.  Nier  (Wash.)   1918A-1046. 

(Annotated.) 

(b)     Waver  of  Privilege. 

2f».  Waiver  by  Patient.  While  one,  by 
testifying-  to  a  consultation  by  her  with, 
or  examination  of  her  by,  a  physician  at 


a  certain  time,  waives  the  privilege  to 
have  him  not  testify  in  respect  therefor, 
the  waiver  is  not  such  as  to  allow  him  to 
testify  as  to  an  earlier  consultation  or  ex- 
amination, or  the  purpose  for  which  ^t 
such  earlier  time  he  gave  her  medicine. 
Nolan  v.  Glynn  (Iowa)  1916C-559. 

(3)     Husband  and  Wife. 

30.  Interest  in  Event.  Where  a  hus- 
band consented  to  his  wife's  contracting 
with  decedent  that  she  should  board  the 
latter  in  return  for  his  agreement  to  will 
her  certain  realty,  the  wife  could  recover 
for  her  own  separate  and  individual  bene- 
fit against  decedent's  estate,  he  having 
broken  his  contract,  whatever  was  due  her 
for  board  furnished  thereunder,  so  that, 
having  no  interest  in  the  wife's  separate 
earnings  from  the  transaction,  the  hus- 
band is  a  competent  witness  in  her  behalf 
as  to  his  dealings  and  communications 
with  the  decedent.  McCurry  v.  Purgason 
(N.  Car.)  1918A-907. 

31.  Consent.  Under  Nev.  Rev.  Laws, 
§  5424,  providing  that  a  wife  cannot  tes- 
tify for  or  against  her  husband  "without 
his  consent,"  a  wife  is  competent  to  tes- 
tify for  her  husband  in  his  action  for 
criminal  conversation,  where  the  husband 
and  wife  had  each  consented  in  open  court 
that  the  other  might  testify  to  anything 
existing  between  them  having  a  bearing 
on  the  case.  Rehling  v.  Brainard  (Xev.) 
1917C-656. 

32.  Competency  of  Wife  in  Bigamy 
Trial.  Under  Ore.  L.  O.  L.  §  1535.  as 
amended  by  Laws  1913,  p.  351,  providing 
that  in  criminal  actions,  where  the  hus- 
band is  the  party  accused,  the  wife  shall 
be  a  competent  witness  but  shall  not  be 
compelled  or  allowed  to  testify  unless  by 
consent  of  both  parties,  provided  that  in 
criminal  actions  for  polygamy  the  wife 
shall  be  a  competent  witness  as  to  the  fact 
of  marriage,  an  objection  to  the  testimony 
of  the  wife  of  accused  in  a  prosecution 
for  polygamy,  before  she  gave  any  evi- 
dence except  her  name  and  place  of  resi- 
dence, is  properly  overruled;  her  testimony 
as  to  the  fact  of  marriage  being  admis- 
sible. State  V.  Von  Klein  (Ore.)  1916C- 
1054.  (Annotated.) 

Note. 
Admissibility   of   testimony   of   married 
woman    to    prove    nonaccess    of    husband. 
1917A-1031. 

(4)     Stenographer  and    Employer. 

33.  In  an  action  for  compensation  un- 
der a  contract  to  arrange  for,  advertise, 
and  conduct  an  auction  sale  of  lands  for 
an  agreed  price  and  expenses,  the  testi- 
mony of  a  stenographer,  employed  to 
assist  plaintiff  and  paid  out  of  the  ex- 
pense fund  which  came  out  of  the  pro- 
ceeds of  sales,  concerning  matters  taken 
from    plaintiff's   books   is   not  privileged, 


WITNESSES. 


891 


PS  she  owed  no  duty  to  plaintiflF  that  she 
did  not  owe  to  defendants,  and  neither 
she  nor  plaintiff  had  any  right  to  with- 
hold information  from  defendants.  Sot- 
ham  V.  Maeomber  (Mich.)  1916C-694. 

(Annotated.) 

(5)     Detectire  and  Employer. 

33i.  Information  Acquired  in  Service 
of  Employer.  On  a  trial  for  murder  the 
testimony  of  a  private  detective,  who 
after  the  murder  had  resided  at  the  house 
of  defendant's  employer,  and  had  kept  de- 
fendant and  his  employer  under  observa- 
tion for  some  time,  that  neither  defendant 
nor  his  employer  had  acted  in  a  manner 
to  indicate  consciousness  of  guilt,  is  im- 
properly excluded  under  N.  Y.  General 
Business  Law  (Consol.  Laws,  e.  20),  §  74b, 
as  amended  by  Laws  1910,  c.  515,  forbid- 
ding a  licensed  detective  from  revealing, 
without  his  employer's  consent,  informa- 
tion obtained  by  him  "except  as  he  may 
lie  required  by  law"  as  such  provision  has 
no  application  to  the  case.  People  v. 
Eoach  (N.  Y.)  1917A-410. 

(6)     Overheard    Confidential    Communica- 
tions. 

34.  Testimony  by  Person  Overhearing. 
In  a  prosecution  for  unlawfully  selling 
liquor,  evidence  of  an  ofiicer  that  at  the 
time  of  defendant's  arrest  at  his  home, 
his  wife  stated  in  his  presence  that  she 
had  tried  to  keep  him  up,  and  he  had  con- 
tinued bootlegging,  and  she  was  through, 
was  not  inadmissible  on  the  ground  that 
a  wife  may  not  testify  against  her  hus- 
band, since  the  rule  of  privilege  does  not 
cover  conversations  between  husband  and 
wife  being  testified  to  by  a  third  person 
who  overhears  them.  State  v.  Eandalt 
(N.  Car.)   1918A-438.  (Annotated.) 

Notes. 
Eight  of  person  overhearing  privileged 
communication  to  testify  thereto.     1918A- 
441. 

Information  communicated  in  contract, 
fiduciarv  or  similar  relation  as  privileged 
from  disclosure.     1916C-698. 

Competency  of  attesting  witness  to 
deed  or  mortgage.     1917A-235. 

i.     Transaction    With    Person    Since    De- 
ceased. 

(1)     Evidence    Held    Admissible. 

35.  Person    Overhearing    Conversation. 

In  an  action  against  an  administrator  for 
compensation  for  services  rendered  to  de- 
ceased, daughters  of  plantiff  were  not  in- 
competent, under  Iowa  Code.  §  4604,  to  tes- 
tify as  to  conversations  overheard  by  them 
between  decedent  and  plaintiff  where  de- 
cedent promised  to  compensate  plaintiff, 
since  the  conversations  did  not  constitute 
a  personal  transaction  between  witnesses 


and    the    deceased.     Tucker   v.    Anderson 
(Iowa)  1918A-769. 

36.  Denial  of  Execution  of  Receipt.  In 
an  action  against  an  administrator  for 
compensation  for  services  rendered  to  de- 
ceased, wherein  the  administrator  claimed 
full  payment  and  settlement,  plaintiff  was 
not  incompetent  to  testify  that  she  had 
not  signed  the  receipt  produced,  the  pro- 
bative force  of  which  depended  entirely 
upon  the  genuineness  of  her  signature,  but 
of  which  receipt  it  did  not  appear  that 
decedent  had  any  personal  knowledge,  un- 
der Iowa  Code,  §  4604,  providing  that  no 
party  to  an  action  shall  be  examined  as 
a  witness  as  to  any  personal  transactions 
or  communications  between  such  witnesses 
and  a  person  at  the  commencement  of 
such  examination  deceased.  Tucker  v. 
Anderson  (Iowa)  1918A-769. 

(Annotated.) 

37.  Receipt  of  Letters.  Where  a  plain- 
tiff testified  to  receiving  three  letters  from 
deceased,  signed  by  him,  one  containing 
a  $20  bill,  and  that  the  letters  were  post- 
marked at  a  certain  place,  that  they  had 
on  them  what  purported  to  be  deceased's 
letter  head,  and  that  they  were  received 
by  her  in  due  course  of  mail,  such  testi- 
mony does  not  concern  a  transaction  with 
the  deceased  within  the  meaning  of  Sched- 
ule, §  2,  providing  that  in  civil  actions  no 
witness  shall  be  excluded  because  of  in- 
terest, "provided  that  in  actions  .  .  . 
against  executors  .  .  .  neither  party  shall 
be  allowed  to  testify  against  the  other  as 
to  any  transaction  with  or  statements  of 
the  testator  .  .  .  unless  called  ...  by  the 
opposite  party."  Josephs  v.  Briant  (Ark.) 
1916E-741.  (Annotated.) 

38.  Deceased  Agent  of  Party.  Eem.  & 
Bal.  Wash.  Code,  §  1211,  providing  that,  in 
an  action  or  proceeding  where  the  adverse 
party  sues  or  defends  as  deriving  right 
or  title  by,  through,  or  from  any  deceased 
person,  a  party  in  interest  shall  not  be 
permitted  to  testify  in  his  own  behalf  as 
to  any  transaction  had  by  him  with  the 
deceased,  does  not  exclude  the  testimony 
of  an  officer  and  stockholder  of  one  cor- 
poration from  testifying  as  to  a  transac- 
tion had  by  him,  as  such  officer,  with  an 
officer  and  stockholder,  since  deceased,  of 
another  corporation,  from  which  the  wit- 
ness' corporation  derives  a  right  or  title 
which  it  seeks  to  assert.  Beaston  v.  Port- 
land Trust,  etc.  Bank  (Wash.)  1917B-488. 

39.  Evidence  at  Former  Trial.  In  an 
action  to  recover  possession  of  certain 
real  estate  on  the  ground  that  a  deed 
therefor  had  been  procured  by  fraud  and 
that  the  defendant  took  his  title  with  no- 
tice of  such  fraud  the  plaintiff  testified  to 
transactions  and  communications  had  per- 
sonally by  her  with  one  of  the  defend- 
ant's grantors  who  was  charged  with  the 
fraud,  such  grantor  being  present  as  an 
attorney  in  the  case.  At  a  subsequent 
trial,  such  grantor  having  died,  the  plain- 


892 


DIGEST. 

1916C— 1918B. 


tiff  was,  on  the  defendants'  objection,  pre- 
cluded from  testifying  to  tne  matters 
covered  by  such  former  testimony,  and 
thereupon  offered  in  jevidence  the  stenog- 
rapher's-transcript  thereof.  Held,  that  an 
objection  thereto,  on  the  grounds  of  in- 
competency and  because  it  concerned 
transactions  and  communications  had  per- 
sonally with  a  deceased  grantor  from 
whom  the  defendant  claimed  title  was 
properly  overruled.  New  v.  Smith  (Kan.) 
1917B-362.  (Annotated.) 

40.  Qjround    of    Objection   not    Proved. 

The  testimony  of  a  surviving  partner  seek- 
ing to  establish  claims  for  contribution 
against  the  estate  of  a  deceased  partner 
in  answer  to  a  question  as  to  whether  a 
settlement  of  the  firm's  affairs  had  been 
made  is  not,  standing  alone,  objectionable 
as  testimony  involving  a  personal  trans- 
action with  the  deceased,  where  other  tes- 
timony shows  that  another  partner  was 
the  bookkeeper  and  cashier  of  the  firm  and 
paid  the  bills  and  distributed  the  moneys 
received  between  all  the  partners,  and  a 
party  desiring  to  preserve  an  objection  to 
the  testimony  must  apply  for  leave  and 
ask  the  partner  whether  the  settlement 
testified  to  by  him  was  made  personally 
with  the  deceased  partner.  Estate  of 
Ryan   (Wis.)   1916D-840. 

Notes. 

Competency  of  interested  witness  to  tes- 
'tify  as  to  letter  passing  between  him  and 
person  since  deceased.     1916E-747. 

Right  of  party  to  instrument  to  deny  ex- 
^''ution  thereof  by  himself  after  death  of 
other  party.     1918A-777. 

(2)     Evidence  Held  Inadmissible. 

41.  Where  plaintiff  sued  to  recover  an 
undivided  one-half  of  deceased's  property, 
alleging  oral  contract  on  his  part  to  will 
her  such  property,  her  testimony  is  incom- 
petent to  prove  the  contract  under  S.  Car. 
Civ.  Proc.  1912,  §  438,-  rendering  a  party 
incompetent  to  testify  as  to  a  transaction 
with  a  person  since  deceased  in  an  action 
against  the  heir  of  such  person.  Brown  v. 
Golightly  (S.  Car.)  1918A-1185. 

42.  Action  for  Tort.  In  a  suit  against  a 
railroad  for  an  assault  committed  by  the 
road's  alleged  agent,  deceased  prior  to  the 
action,  plaintiff  is  incompetent  as  a  wit- 
ness to  the  assault  made  upon  him,  under 
Mo.  Rev.  St.  1909,  §  6354,  providing  that, 
in  actions  where  one  of  the  original  par- 
ties to  the  contract  or  cause  of  action  is 
dead,  the  other  shall  not  be  admitted  to 
testify  either  in  his  own  favor  or  in  favor 
of  any  party  to  the  action  claiming  under 
him.  Leavea  v.  Southern  ■  R.  Co.  (Mo.) 
1918B-97.  (Annotated.) 

43.  Transactions  With  Deceased  Agent 
of  Party.  In  an  action  on  a  policy  insur- 
ing a  stallion,  where  the  brother  of  the  in- 


surer's agent  who  was  associated  with  liini 
as  a  clerk,  had  been  present  while  the 
agent  prepared  the  application,  such  agent 
having  been  taken  ill  in  the  course  of  the 
transaction,  leaving  the  office,  and  his 
brother  having  completed  the  filling  out 
of  the  application,  which,  as  to  the  cir- 
cumstances of  the  acquisition  of  the  stal- 
lion, was  not  in  accordance  with  the  facts, 
the  agent  having  died,  his  brother's  testi- 
mony that  the  insured  had  told  the  truth 
as  to  such  circumstances  was  not  inadmis- 
sible on  the  ground  that  the  facts  were 
equally  within  the  knowledge  of  the  de- 
ceased agent.  Simmons  v.  National  lave 
Stock  Co.  (Mich.)  1917D-42. 

Notes. 
Statute  against  admission  of  evidence  of 
transaction  with  decedent  as  applicable  to 
deposition    taken    before    death.     1917B- 
490. 

Rule  extending  testimony  relating  to 
transaction  with  decedent  as  applicable  to 
action  ex  delicto.     1918B-98. 

(3)     Waiver  of  I*rivilege. 

44.  Effect  on  Subsequent  Trial.  Waiver 
of  defendant's  incompetency  to  testify  to 
transactions  with  decedent  makes  him 
competent  on  subsequent  trials.  Com- 
stock's  Adm'r  v.  Jacobs  (Vt.)   1918A-465. 

45.  Transaction     With     Decedent.    An 

administrator  suing  on  behalf  of  dece- 
dent's estate,  by  calling  defendant  as  a 
witness  to  a  constituent  fact,  a  transac- 
tion in  decedent's  lifetime,  though  not  ex- 
amining him  generally  on  the  question  in 
issue,  waives  his  incompetency,  and  makes 
him  competent  as  a  general  witness.  Com- 
stock's  Adm'r  v.  Jacobs  (Vt.)  1918A-465. 

.  (Annotated.) 

46.  The  incompetency  of  a  witness  to  tes- 
tify concerning  communications  or  trans- 
actions had  with  a  person  since  deceased 
is  waived  by  the  objecting  party  showing 
on  cross-examination  the  fact  that  such  a 
communication  or  transaction  occurred. 
Poole  v.  Poole  (Kan.)  1918B-929. 

Note. 
Waiver   by    personal    representative    of 
incompetency  of  witness  to  testify  to  trans- 
action with  decedent.     1918A-471. 

2.     EXAMINATION. 

a.     Mode  of  Examination. 

(1)     In  General. 

47.  Matters  Within  Scope  of  Direct  Tes- 
timony. In  an  action  to  recover  a  broker's 
commission  upon  a  sale  of  real  estate,  the 
cross-examination  of  the  defendant  in  re- 
gard to  the  delivery  of  a  plat  to  the  plain- 
tiff is  not  objectionable,  where  it  relates 


WITNESSES. 


893 


strictly  to  the  matter  brought  out  on  his 
examination  in  chief.  Taggart  v.  Jlunter 
(Ore.)  1918A-128. 

48.  Cross-examination  of  Detective — As 
to  Name  of  Employer.  In  a  prosecution 
for  conspiring  to  demand  money  to  corrupt 
a  city  council,  where  the  person  from 
•whom  defendants  were  charged  to  have 
demanded  the  money  was  a  detective  en- 
gaged to  entrap  them,  the  right  of  defend- 
ants to  show  the  bias  of  any  particular 
witness,  by  asking  whether  he  was  one  of 
those  who  had  procured  the  investigation, 
being  protected  by  a  subsequent  ruling  of 
the  court  permitting  the  detective  to  an- 
swer whether  any  of  the  several  desig- 
nated persons  had  anything  to  do  with  his 
employment,  the  refusal  of  the  court  to 
permit  the  detective  to  answer  who  had 
employed  him  is  proper.  Hummelshime  v. 
State  (Md.)  1917E-1072. 

49.  Interrogation  as  to  Previous  Testi- 
mony. Where  a  party  is  taken  by  surprise 
by  the  testimony  of  his  own  witness,  he 
may,  within  the  sound  discretion  of  the 
court,  interrogate  the  witness  respecting 
previous  statements  or  testimony  inconsis- 
tent with  his  present  testimony.  State  v. 
Inlow  (Utah)  1917A-741. 

(2)     Leading  Questions. 

50.  Questions  asking  witnesses  on 
prosecution  for  illegal  sale  of  liquor, 
whether  they  ever  had  occasion  to  visit  de- 
fendant's place  of  business,  and  if  they 
saw  defendant  there,  merely  directing 
their  attention  to  the  matter  being  tried, 
are  not  suggestive  or  leading  in  any  proper 
sense.     People  v.  Elliott  (111.)   1918B-391. 

51.  It  is  within  the  court's  discretion 
ordinarily  to  allow  leading  questions,  espe- 
cially as  a  question,  asked  over  plaintiff's 
objection  in  ap  action  for  malpractice,  as 
to  whether  it  is  not  a  fact  that  "this  sort 
of  human  disaster"  is  preventable,  led 
away  from,  and  not  to,  the  desired  an- 
swer.' Barfield  v.  South  Highlands  Infirm- 
ary (Ala.)   1916C-1097. 

52.  Where  in  some  instances  the  prose- 
cuting attorney  led  the  witnesses,  but  in 
only  one  such  instance  was  the  evidence 
material,  and  in  that  instance  there  was 
no  objection,  the  judgment  will  not  be  re- 
versed. Belcher  v.  Commonwealth  (Ky.) 
1917B-238. 

53.  In  an  action  for  death  of  a  child 
from  falling  into  a  ditch  containing  pools 
of  hot  water,  questions  to  witnesses  as  to 
whether  children  habitually  played  about 
the  pools  are  leading,  and  too  general. 
Thompson  v.  Alexander  City  Cotton  Mills, 
1917A-721. 

54.  In  a  prosecution  for  larceny  of  a 
cow,  on  the  issue  of  defendant's  possession 
of  a  cow  branded  and  owned  by  another, 
it  is  error  to  permit  a  detective  to  be  asked 


whether  he  saw  in  defendant's  possession 
cattle  branded  NXN,  that  being  leading, 
and  no  reason  for  leading  the  witness  be- 
ing assigned-  Harris  v.  State  (Wyo.) 
1917A-1201. 

(3)     Hypothetical  Questions. 

55.  Assumption  of  Unproved  Fact. 
Plaintiflf'8  hypothetical  questions  to  ex- 
perts, on  which  they  are  asked  to  give  the 
opinion  that  had  plaintiff's  intestate  had 
proper  care  within  one  or  two  hours  after 
his  first  attack  of  apoplexy,  while  a  pas- 
senger on  defendant's  street  car,  it  was 
reasonably  certain  his  life  could  have  been 
saved,  should  not  assume  he  was  in  good 
condition,  or  apparently  in  good  condition, 
on  boarding  the  car,  without  referring  to 
the  hardened  condition  of  his  arteries  and 
the  condition  of  his  kidneys,  as  indi- 
cated by  albumen  and  granulated  casts 
in  his  urine,  shown  by  plaintiflf'g  witnesses 
to  have  existed.  Middleton  v.  Whitridge 
(N.  Y.)   1916C-856. 

56.  Hypothetical  Questions  Approved.  It 
is  held  that  the  court  did  not  err  in  per- 
mitting, over  the  objection  of  appellant, 
the  propounding  of  certain  hypothetical 
questions  and  in  permitting  such  questions 
to  be  answered.  McAlinden  v.  St.  Maries 
Hospital  Association  (Idaho)  1918A-380. 

57.  Experts  Appointed  by  Court.  In  an 
action  for  malpractice,  where  the  court  re- 
quired plaintiff  to  submit  to  an  examina- 
tion by  impartial  physicians,  either  party 
may  examine  such  witnesses  hypotheti- 
cally  as  to  matters  within  the  issues;  the 
witness  not  belonging  to  one  part  more 
than  another.  Just  v.  Littlefield  (Wash.) 
1917D-705. 

58.  Evidence  to  Support.  No  error  is 
committed  in  sustaining  an  objection  to  a 
hypothetical  question  propounded  to  a  wit- 
ness, where  such  question  is  not  based 
upon  facts  as  to  which  there  is  such  evi- 
dence that  a  jury  might  reasonably  find 
that  they  are  established.  State  v.  Klas- 
ner  (N.  Mex.)  1917D-824. 

59.  Expert  Evidence — Irresponsive  An- 
swer to  Hypothetical  Question.  The 
answer  elicited  in  response  to  a  hypothet- 
ical question  propounded  to  a  witness  on 
cross-examination  was  not  available  as  evi- 
dence, where  it  was  not  based  on  evidence 
corresponding  with  the  hypothesis  ad- 
vanced. Holmberg  v.  Jacobs  (Ore.) 
1917D-496. 

60.  Assumption  of  Facts  not  Proved.  In 
examining  an  expert  witness,  questions  as- 
suming an  hypothesis  not  supported  by  any 
evidence  are  improper.  Stonegap  Colliery 
Co.  v.  Hamilton  (Va.)  I917E-60. 

Note. 
Use    of    scientific    books    in    connection 
with     examination     of     expert     witness. 
I916E-356. 


894 


DIGEST. 

19160— 1918B. 


b.     Cross-examination. 


(1)     In  General. 

61.  As  to  Changes  in  Testimony.  A  wit- 
ness who  testifies  that  she  stated  at 
a  former  trial  that  she  had  had  im- 
proper relations  with  one  man  only, 
and  repeats  the  statement  at  the  instant 
trial,  but  says  that  at  another  trial  she 
testified  that  she  had  such  relations  with 
forty  different  men  at  a  certain  house, 
may  properly  be  cross-examined  as  to  why 
she  changed  her  testimony,  and  whether 
some  one  had  told  her  to  change  it.  State 
V.  Gardner  (Iowa)   1917I>-239. 

62.  Meaning  of  Unambiguous  Writing. 
Where,  in  an  action  for  breach  of  promise 
of  marriage,  the  meaning  of  a  letter  writ- 
ten plaintiff  by  defendant's  sister  after  the 
action  was  commenced,  which  defendant 
claimed  contained  an  offer  of  marriage 
communicated  through  his  sister,  was  too 
plain  to  be  misunderstood,  and  there  was 
no  offer  or  claim  that  plaintiff  gave  it  a 
different  interpretation,  a  question  asked 
her  as  to  what  she  considered  the  letter 
communciated  to  her  is  properly  excluded. 
Stacy  V.  Dolan  (Vt.)  1917A-650. 

63.  Question  Calling  for  Matter  Partly 
Irrelevant.  It  is  not  error  to  sustain  ob- 
jections to  questions  asked  a  prosecuting 
witness  on  cross-examination  as  to  a  con- 
versation between  her  and  the  state's  at- 
torney, which  questions  are  not  limited  to 
the  relevant  parts  of  that  conversation. 
Biggins  V.  State  (Md.)  1916E-1117. 

64.  It  is  also  proper  to  sustain  an  ob- 
jection to  a  question  as  to  what  the  state's 
attorney  had  asked  the  witness  on  that 
occasion.  Biggins  v.  State  (Md.)  1916E- 
1117. 

65.  Stopping  Irrelerant  Cross-examina- 
tion. Further  cross-examination  about  the 
height  of  the  fence  is  properly  stopped; 
witness  having  testified  that  he  saw  the 
deliveries  of  beer  at  defendant's  place  of 
business  through  a  gap  in  the  fence.  Peo- 
ple V.  Elliott  (111.)   1918B-391. 

66.  Cross-examination,  which  has  gone 
beyond  reasonable  limits,  of  a  witness, 
who  has  testified  to  seeing  cases  of  beer 
delivered  at  defendant's  place  of  business, 
and  the  name  "Leisy  Beer"  on  the  cases, 
is  properly  curtailed  when  an  effort  is 
made  to  ascertain  the  extent  of  his  edu- 
cation, by  asking  him  to  spell  "Leisv." 
People  V.  Elliott  (HI.)   1918B-391. 

67.  Circumstances  Explaining  Declara- 
tions Testified  to.  Where  the  state  sought 
to  show  that  accused  killed  decedent  by 
proving  that  decedent,  after  receiving  the 
fatal  wounds,  pointed  to  them  and  said 
"Dago,  Da<ro,"  questions  on  cross-examina- 
tion of  a  state's  witness  as  to  whether  ac- 
cused was  the  only  one  about  the  place 
referred  to  as  "Dago"  and  as  to  how  many 


others  and  who  were  so  alluded  to  are 
pertineat.  State  v.  Giudice  (Iowa)  1917C- 
1160. 

68.  Cross-examination  Outside  Scope  of 
Direct  Examination.  In  an  action  for 
death  of  a  street  car  passenger,  where  the 
plaintiff  called  defendant's  conductor  only 
to  show  that  decedent  was  on  the  car  at 
the  time  of  the  injury,  and  defendant  in 
cross-examining  him  attempted  to  show 
contributory  negligence,  the  plaintiff  is 
not  bound  by  such  evidence,  nor  can  his 
other  evidence  then  b"e  disregarded,  since 
by  cross-examining  the  witness  outside  his 
direct  testimony  defendant  made  him  his 
own  witness  and  not  plaintiff's.  Froeming 
V.  Stockton  Electric  B.  Co.  (Cal.)  1918B- 
488. 

69.  Cross-examination  of  Assignee  of 
Lease  Suing  for  Trespass.  In  trespass 
quare  clausum  fregit  by  an  assignee  of  a 
lease  against  the  lessor,  defendants  on 
cross-examination  of  plaintiff  are  prop- 
erlv  permitted  to  ask  him  from  whom  he 
had  previously  rented  the  land,  and  for 
how  long,  and  what  he  paid  for  the  lease; 
such  being  relevant  to  the  issue.  Streit  v. 
Wilkerson  (Ala.)  1917E-378. 

70.  Of  Plaintiff  in  Action  Under  Civil 
Damage  Act.  In  an  action  against  saloon 
keepers  and  their  surety  to  recover  for  in- 
juries inflicted  upon  plaintiff  by  her  father 
when  drunk,  the  allowance  of  cross-exami- 
nation of  the  plaintiff's  sister,  as  to  trouble 
plaintiff  had  had  with  her  father  before 
the  incident  complained  of,  it  being  the 
claim  of  defendants  that  the  man  was  of 
ugly  temper  and  had  beaten  the  plaintiff 
when  entirely  sober,  is  not  an  abuse  of  the 
court's  discretion  as  to  the  character  of 
such  examination.  Yonkus  v.  McKay 
(Mich.)   1917E-458. 

71.  Quantity  of  Liquor  Delivered.  Where, 
in  an  action  under  Iowa  Code,  §  2423,  to 
recover  payments  made  for  liquor  illegally 
sold  by  defendant  to  plaintiff,  the  testi- 
mony of  a  witness  delivering  liquor  ffer  de- 
fendant to  plaintiff  and  collecting  the 
money  therefor  was  indefinite  as  to  the 
quantity  of  liquor  sold  refusal  to  permit 
defendant  to  show  on  the  cross-examina- 
tion of  the  witness  that  he  worked  for 
other  liquor  houses  and  delivered  their 
liquor  to  the  plaintiff  was  error.  Cvitano- 
vich  V.  Bromberg  (Iowa)  1917B-309. 

72.  Cross-examination  of  Party  as  to 
Wealth.  In  an  action  under  Iowa  Code, 
§  2423.  to  recover  money  paid  for  liquor 
illegally  sold  by  defendant  to  plaintiff, 
questions  on  the  cross-examination  of  de- 
fendant as  to  having  become  rich  by  taking 
orders  for  liquor  are  improper  Critano- 
vieh  V.  Bromberg  (Iowa)   1917B-309. 

73.  Use  of  Documents  not  Admissible  in 
Evidence.  Upon  cross-examination  of  a 
witness  who  was  a  deputy  of  the  defendant 


WITNESSES. 


895 


insurance  association,  a  copy  of  the  asso- 
ciation's by-laws  may  be  received  to  show 
under  what  authority  the  witness  claimed 
to  act,  though  the  copy  was  not  admissible, 
being  secondary  evidence,  to  prove  the  by- 
law. Schworm  v.  Fraternal  Bankers'  Ee- 
Berve  Soc.  (Iowa)  1917B-373. 

74.  Irrelevant  Matters.  In  a  prosecu- 
tion for  polygamy,  cross-examination  of  a 
witness  as  to  whether  he  had  read  news- 
paper accounts  of  the  arrest  of  defendant 
is  properly  excluded.  State  v.  Von  Klein 
(Ore.)  19160-1054. 

(2)     Credibility  of  Witness. 

75.  Testimony  as  to  Repute — Scope  of 
Cross-examination.  In  mandamus  to  com- 
pel a  school  committee  to  admit  relators' 
children  to  the  white  school,  from  which 
they  had  been  excluded,  as  being  of  mixed 
blood,  a  witness  who  testified  that  the 
mother  of  the  children  was  generally  re- 
puted to  be  of  mixed  blood  may  be  cross- 
examined  as  to  whether  the  report  had 
been  started  through  envy  and  jealousy; 
such  evidence  tending  to  discredit  the  wit- 
ness' testimony  as  to  the  general  reputa- 
tion. Medlin  v.  County  Board  of  Educa- 
tion (N.  Car.)  1916E-300. 

76.  Denial  of  Former  Testimony.  Where, 
on  proper  foundation,  testimony  of  a  wit- 
ness given  at  a  coroner's  inquest  is  read 
to  him,  and  he  denies  its  correctness,  but 
no  further  effort  is  made  to  impeach  him, 
the  admission  of  the  testimony  read  is  not 
error.  Froeming  v.  Stockton  Electric  E. 
Co.  (Cal.)   1918B-408. 

77.  Examination  of  Expert — ^Use  of  Sci- 
entific Books.  Before  the  contents  of  med- 
ical books  may  be  introduced  in  evidence 
and  read  to  the  jury  for  the  purpose  of 
refuting  the  testimony  of  a  medical  expert, 
it  is  necessary  that  the  attention  of  the 
witness  shall  be  first  called  to  such  books, 
and  that  he  shall  have  based  his  opinion 
upon  the  same,  and  it  would  be  a  mere 
evasion  of  the  rule  to  allow  counsel,  in  the 
cross-examination  of  a  witness  who  has  not 
either  based  his  opinion  upon  the  specific 
book  nor  upon  the  authorities  generally  nor 
whose  opinion  in  the  nature  of  things  must 
necessarily  be  based  upon  authorities,  to 
read  to  such  witness  portions  of  a  medical 
work,  and  to  ask  him  if  h.(f  concurs  in  or 
differs  from  the  opinions  therein  expressed. 
Such  a  proceeding  would  be  nothing  more 
nor  less  than  impeaching  the  witness  by 
a  text-book  on  which  he  has  in  no  way 
relied,  and  where  no  foundation  for  his 
impeachment  has  been  laid,  and  by  an  au- 
thority who  is  not  present  in  court  and 
cannot  be  cross-examined.  State  v.  Bru- 
nette (N.  Dak.)  1916E-340. 

(Annotated.) 

78.  Where,  however,  a  medical  witness 
has  in  his  examination  in  chief  based  his 


opinion  upon  the  medical  authorities  gen- 
erally, rather  than  upon  the  result  of  his 
own  personal  experience,  it  is  permissible 
in  cross-examination  to  read  to  him  por- 
tions of  medical  works  and  to  ask  if  he 
concurs  therewith  or  differs  therefrom,  and 
to  thus  test  his  knowledge  and  reading  and 
accuracy,  even  though  he  has  not  in  his  di- 
rect or  cross-examination  referred  to  any 
specific  work.  Where  this  is  done,  however, 
the  proper  practice  is  for  the  court  to  cau- 
tion the  jury  that  it  is  the  testimony  of 
the  witness,  and  not  what  is  read  from  the 
book,  that  constitutes  evidence  in  the  case. 
State  V.  Brunette  (N.  Dak.)  1916E-340. 

(Annotated.) 

79.  Showing  Animus.  As  tending  to 
show  the  animus  actuating  plaintiff  in  an 
action  for  breach  of  promise  to  marry,  and 
as  bearing  on  her  credibility  as  a  witness, 
cross-examination  of  her  should  be  allowed 
to  show  that  she  sought  to  have  the  presi- 
dent of  the  bank,  of  which  defendant  was 
cashier,  discharge  a  girl  employee,  on  the 
ground  that  defendant  was  under  her  in- 
fluence, and  later  changed  her  mind  on  this 
subject,  and  sought  to  have  defendant  dis- 
charged, stating  in  each  instance  that  if 
this  was  don6  she  would  be  satisfied  and 
would  not  prosecute  her  action.  Nolan  v. 
Glynn  (Iowa)  1916C-559. 

80.  Bailroad  Claim  Agent  When  the 
claim  adjuster  of  the  railroad  company 
visited, the  plaintiff  the  day  after  she  was 
injured  in  alighting  from  the  defendant's 
train,  she  being  then  in  bed,  and  when  he 
stated  in  his  testimony,  among  other 
things,  that  his  purpose  in  calling  on  her 
to  see  if  he  could  help  her,  a  rigid  cross- 
examination  of  this  witness  was  proper. 
Florida  East  Coast  R.  Co.  v.  Carter  (Fla.) 
1916E-1299. 

81.  Cross-examination  of  Accused — Pre- 
vious Conviction  of  Crime.  Kirby's  Ark. 
Dig.  §  3138.  as  amended  by  Laws  1905, 
p.  143,  provides  that  a  witness  may  be  im- 
peached by  the  party  against  whom  he  is 
produced,  by  contradictory  evidence  by 
showing  that  he  has  made  inconsistent 
statements,  or  by  evidence  that  his  general 
reputation  for  truth  and  morality  render 
him  unworthy  of  belief,  but  not  by  evi- 
dence of  any  particular  acts,  except  that  it 
may  be  shown  by  the  examination  of  the 
witness,  or  record  of  the  judgment,  that 
he  has  been  convicted  of  a  felony.  Held 
that,  where  accused  in  a  prosecution  for 
assault  to  rape  became  a  witness  in  his 
own  behalf,  the  court  properly  permitte'd 
the  state  to  prove  by  him  on  cross-examina- 
tion that  he  had  been  previously  convicted 
of  a  similar  offense,  to  effect  his  credibil- 
ity.    Hunt  V.  State  (Ark.)  1916D-533. 

(3)     Experts. 

82.  Expert  Witness — Cross-examination 
— Statements  in  Medical  Books.    In  an  ac- 


896 


DIGEST. 

19160— 1918B. 


Hon  for  malpractice,  it  is  proper  to  per- 
mit an  expert  medical  witness  to  be  asked 
on  cross-examination  whether  it  is  true, 
as  stated  in  a  medical  treatise  of  high  au- 
thority, that  it  is  not  uncommon  even  in 
closed  fractures  of  the  femur  to  find  gan- 
grene developing  because  of  laceration  or 
pressure,  and  that  early  amputation  of  the 
thigh  above  the  fracture  is  necessary  in 
those  cases,  and  should  be  done  early  in 
order  to  save  life,  as  this  is  a  statement  of 
surgical  theory  and  practice,  and  the  gist 
of  the  question  is  whether  the  witness'  ex- 
pert opinion  concurs  with  that  of  the  au- 
thor. Barfield  v.  South  Highlands  Infirm- 
ary (Ala.)  1916C-1097. 

e.    Beealling  Witness. 

83.  Discretion  of  Court.  The  recalling 
of  a  witness  for  further  cross-examination 
rests  in  the  discretion  of  the  trial  court, 
and  so  it  is  not  error  for  the  court  to  re- 
fuse to  recall  one  of  the  state's  witnesses 
for  the  purpose  of  examining  her  as  to 
whether  she  had  not  threatened  to  frame 
up  a  case  against  accused,  there  being  no 
evidence  of  any  conspiracy.  State  v. 
Schuman  (Wash.)  1918A-633. 

d.    Privilege  of  Witness. 
(1)     Nature  and  Extent. 

84.  Privilege  Against  Self -Crimination — 
Scope.  The  personal  privilege  guaranteed 
by  Const,  art.  1,  §  6,  against  self-incrimina- 
tion cannot  be  asserted  unless  the  person  to 
whom  the  privilege  is  given,  is  subject  to 
criminal  prosecution  or  a  forfeiture,  though 
the  constitutional  provision  must  receive 
a  broad  construction  in  favor  of  the  right 
which  it  is  intended  to  secure.  People  v. 
Cassidy  (N.  Y.)  1916C-1009. 

(2)     Who  may  Assert  Privilege. 

85.  Immunity  as  to  Self-Criminating  Tes- 
timony. N.  Y.  Penal  Law  (Consol.  Laws, 
c.  40)  §  770,  declaring  that  a  person  commit- 
ting offenses  against  the  elective  franchise 
is  a  competent  witness  against  another  per- 
son so  offending,  anS  may  be  compelled  to 
testify,  but  the  testimony  shall  not  be 
used  in  any  prosecution  or  proceeding, 
civil  or  criminsd,  against  him,  provides  for 
immunity,  and  one  may  be  compelled  to 
testify,  but  his  testimony  cannot  be  used 
against  him  unless  he  has  previously 
waived  his  right  to  claim  immunity.  Peo- 
ple V.  Cassidy  (N.  Y.)  1916C-1009. 

(3)     Waiver  of  Privilege. 

86.  Effect  of  Waiver  of  Privilege — Sub- 
sequent Proceeding.  One  who  voluntarily 
testified  before  a  supreme  court  justice,  in- 
vestigating a  charge  in  connection  with  a 
nomination  of  a  candidate  by  a  judicial 
convention  for  a  public  office,  and  who  ex- 


pressly waived  immunity,  did  not  thereby 
waive  his  constitutional  right  to  decline 
to  give  testimony  on  the  trial  of  one  sub- 
sequently indicted  for  crime  in  connection 
with  the  nomination,  because  one  who  is 
entitled  to  the  constitutional  protection 
is  so  entitled  in  each  new  and  independent 
proceeding,  for  otherwise  he  would  subject 
himself  to  a  new  cross-examination  and  be 
required,  under  new  and  changed  condi- 
tions, to  give  testimony  that  might  not 
have  been  anticipated  or  intended  in  sub- 
jecting himself  to  examination  in  the  prior 
and  different  proceeding.  People  v.  Cas- 
sidy  (N.  Y.)    1916C-1009.       (Annotated.) 

87.  The  personal  privilege  against  self- 
incrimination  guaranteed  by  Const,  art.  1, 
§  6,  may  be  waived  in  any  case  by  the  per- 
son offering  himself  as  a  witness,  and, 
when  the  privilege  is  waived,  the  person 
is  subject  to  cross-examination  like  any 
other  witness.  People  v.  Cassidy  (N.  Y.) 
1916C-1009. 

88.  Effect  of  Waiver — Subsequent  Pro- 
ceeding. A  person  cannot  waive  the  privi- 
lege against  self-incrimination  guaranteed 
by  N.  Y.  Const,  art.  1,  §  6,  and  give  tes- 
timony to  his  advantage  or  the  advantage 
of  his  friends,  and  at  the  same  time  and 
in  the  same  proceeding  assert  his  privilege 
to  answer  questions  to  his  disadvantage 
or  to  the  disadvantage  of  his  friends,  but 
a  waiver  of  the  privilege  cannot  extend  to 
new  and  independent  proceedings,  where 
the  circumstances,  surroundings,  and  pros- 
pective criminal  charges  are  different. 
People  V.  Cassidy  (N.  Y.)  1916C-1009. 

(Annotated.) 
Note. 

Waiver  by  witness  of  constitutional 
privilege  as  extending  to  subsequent  trial 
or  proceeding.     1916C-1012. 

3.     Credibility,  Impeachment  and  Corrob- 
oration. 

a.     Credibility. 

89.  Falsus  In  Uno.  The  maxim,  "Falsus 
in  uno,  falsus  in  omnibus,"  is  permissive 
only,  and  not  mandatory.  People  v. 
Becker  (Kan.)  1917A-600. 

90.  Interest  In  Event.  The  testimony 
of  a  witness  for  plaintiff  cannot  be  disre- 
garded because  another  action  for  the 
same  injury  is  pending  against  him,  and 
he  is  interested  in  having  the  responsibil- 
ity placed  on  defendant;  but  the  weight 
of  his  testimony  is  for  the  jury.  Mahl- 
stedt  V.  Ideal  Lighting  Co.  (111.)  1917D- 
209. 

91.  Declarations  Showing  Bias.  Such 
statements  by  the  state's  witness  are  ad- 
missible to  show  his  bias  or  hostilitv.  Peo- 
ple V.  Roach  (X.  Y.)  1917A-410. 

92.  Question  for  Jury.  The  credibility 
of  witnesses  is  for  the  jury.  Louisville, 
etc.  R.  Co.  V.  Chambers  (Ky.)  1917B-47I. 


WITNESSES. 


897 


93.  Conviction  of  Crime.  The  credi- 
bility of  witnesses,  though  they  have  been 
convicted  of  crime,  is  for  the  Jury,  and 
the  verdict  is  conclusive  on  appeal.  State 
V.  Schuman  (Wash.)   1918A-633. 

94.  Sustaining  Credit  of  Detective — 
Showing  Practice  of  Assuming  Name.  In 
a  prosecution  for  conspiring  to  demand 
money  to  corrupt  a  city  council,  where 
the  person  from  whom  defendants  were 
charged  to  have  demanded  the  money  was 
a  detective  engaged  to  entrap  them,  tes- 
timony of  such  detective  as  to  whether  it 
was  usual  for  his  profession  to  act  under 
an  assumed  name  when  making  investi- 
gations is  admissible  in  evidence  to  sup- 
port his  credibility,  by  showing  that  he 
had  not  resorted  to  unusual  methods  of 
detection.  Hummelshime  v.  State  (Md.) 
1917E-1072. 

95.  Effect     of     False     Testimony.    In 

prosecution  for  stealing  horses,  where  im- 
peaching testimony  was  taken,  it  is  error 
to  instruct  that  the  testimony  of  impeach- 
ing witnesses  should  be  weighed  in  the 
same  manner  as  that  of  other  witnesses, 
and,  when  impeaching  witnesses  attack 
the  credibility  of  others  and  testify 
falsely,  the  jury  might  disregard  entirely 
the  impeaching  testimony  in  so  far  as 
false  and  give  to  the  testimony  of  the 
witnesses  attacked  such  weight  and  cre- 
dence as  is  deserved.  Babb  v.  State  (Ari- 
zona)   1918B-925. 

Note. 
Proof  of   drug   or   liquor  habit  to  dis- 
credit witness.     1918A-639. 


b.    Impeachment. 
(1)     Foundation. 

96.  Necessity  of  Foundation.  The  rule 
requiring  foundation  for  impeachment  is 
not  applicable  to  witnesses  testifying  by 
deposition.  Comstock's  Adm'r  v.  Jacobs 
(Vt.)  1918A-465. 

97.  A  witness  who  had  examined  the 
boiler  which  had  exploded  testified  by 
deposition,  giving  his  opinion  as  to  the 
cause  of  the  explosion,  after  which  the 
defendant  sought  to  introduce  the  deposi- 
tion of  another  witness  taken  by  the 
plaintiff,  but  not  used,  for  the  purpose 
of  showing,  by  the  copy  of  a  coroner's 
verdict  thereto  attached,  that  the  witness 
who  had  served  on  the  coroner's  jury  had 
signed  a  verdict  that  the  cause  of  the  ex- 
plosion was  unknown  to  the  jurors, 
thereby  tending  to  contradict  his  testi- 
mony given  by  deposition.  His  attention 
was  not  called  to  this  copy,  but  it  was 
offered  without  his  having  an  opportunity 
to  examine  or  explain  it,  and  its  exclusion 
was  not  error.  Denver  v.  Atchison,  etc. 
E.  Co.  (Kan.)   1917A-1007. 

57 


(2)     Prior    Inconsistent     Statements     or 
Testimony. 

98.  Prior  Conflicting  Statement — Neces- 
sity of  Foundation.  Where,  on  cross-ex- 
amining witnesses,  their  signed  statements 
were  produced  and  read  to  them  with  the 
design  of  impeachment,  but  with  no  pre- 
liminary foundation  and  without  intro- 
ducing the  statements  in  evidence,  the 
testimony  so  elicited  is  inadmissible,  as 
is  that  of  another  witness  who  took  the 
statements,  since  impeachment  by  prior 
conflicting  statements  of  witnesses  re- 
quires that  a  foundation  be  laid  before 
admitting  them.  Proeming  v.  Stockton  E. 
Co.  (Cal.)   1918B-408. 

99.  Prior  Inconsistent  Afftdavit.  The 
reading  on  cross-examination  of  so  much 
of  a  prior  affidavit  of  a  witness  as  con- 
tradicted his  testimony  on  the  stand  was 
proper  to  impeach  such  witness.  Yonkus 
V.  McKay  (Mich.)  1917E-458. 

100.  Stenographic  Eeport  of  Previous 
Testimony.  In  a  prosecution  for  murder, 
where,  after  cross-examination  of  the  de- 
fendants, the  prosecution  offered  in  evi- 
dence, for  purposes  of  impeachment,  a 
stenographic  report  of  their  previous  in- 
consistent testimony  before  the  coroner's 
jury,  it  being  shown  by  the  stenographer 
that  he  had  taken  down  only  part  of  the 
testimony,  but  that  what  he  had  taken 
down  was  correctly  reproduced,  and  where 
the  defendants  objected  to  the  admission 
of  the  report  because  it  did  not  contain 
all  the  testimony,  those  parts  of  the  report 
which  tended  to  contradict  defendants' 
testimony  at  the  trial  are  admissible. 
Patterson  v.  State  (Ala.)  1916C-968. 

101.  Testimony  Before  Grand  Jury.  In 
a  prosecution  for  adultery,  it  is  not  error 
to  admit  the  testimony  of  the  clerk  of  the 
grand  jury  that  the  husband  of  the  woman 
appeared  before  the  grand  jury  and  tes- 
tified agaiiist  his  wife  and  defendant, 
and  that  the  wife  appeared  as  a  voluntary 
witness,  and  testified  that  she  had  inter- 
course with  defendant  on  the  night  of 
their  arrest.  State  v.  Ayles  (Ore.) 
1916E-738. 

102.  Inconsistent  Statements — Founda* 
tion.  To  permit  the  impeachment  of  a 
witness  by  showing  inconsistent  aver- 
ment in  a  bill  filed  by  him  in  another  pro- 
ceeding, his  attention  must  have  been 
called  thereto  when  he  was  on  the  stand. 
Partridge  v.  United  States  (D.  C.) 
1917D-622. 

103.  Inconsistent  Statement  by  Prose- 
cuting Witness.  A  prosecuting  witness 
who  has  testified  to  intercourse  with  the 
defendant,  and  who  has  stated  that  on 
her  first  visit  to  the  state's  attorney's  of- 
fice she  refused  to  tell  him  anything,  can 
be  asked  on  cross-examination  whether  she 


898 


DIGEST. 

1916C— 1918B. 


did  not  on  that  occasion  tell  him  that  the 
defendant  did  not  have  intercourse  with 
her.     Kiggins  v.  State  (Md.)   1916E-1117. 

104.  Prior  Claim  of  Privilege.  The  court 
erred  in  admitting  certain  documentary 
evidence  showing  that  the  witness  in  a 
criminal  case  had  declined  to  answer  be- 
fore the  grand  jury  certain  questions  pro- 
pounded to  him  on  the  ground  that  his 
answer  to  those  questions  might  tend  to 
criminate  himself.  The  admission  of  this 
evidence  tended  to  destroy  or  at  least 
abridge  the  privilege  of  the  witness,  guar- 
anteed by  the  constitution  of  this  state, 
of  refusing  to  answer  questions  tending  to 
criminate  him,  and  to  deprive  him  of  the 
protection  of  that  privilege  which  it  was 
the  purpose  of  the  constitution  to  give. 
Loewenherz  v.  Merchants',  etc.  Bank  (Ga.) 
1917E-877.  (Annotated.) 

(3)     Conviction  of  Crime  or  Arrest. 

105.  Former  Conviction — ^How  Proved. 
Under  Iowa  Code,  §  4613,  declaring  that  a 
witness  may  be  interrogated  as  to  his  pre- 
vious conviction  for  felony,  but  no  proof 
is  competent,  except  the  record  thereof, 
one  testifying  in  his  own  behalf  may  be 
impeached  by  introduction  of  the  record 
of  his  conviction  of  a  felony  in  a  sister 
state.    State  v.  Foxton  (Iowa)  1916E-727. 

(4)     Insanity. 

106.  Proof  of  Insanity.  The  state  may, 
to  impeach  the  credibility  of  a  witness  for 
the  defense,  establish  by  cross-examina- 
tion that  the  witness  had  been  .adjudged 
insane  and  that  said  judgment  had  never 
been  set  aside.  Mason  v.  State  (Tex.) 
1917D-1Q94. 

(5)  Impeachment  by  Party  Calling  Wit- 

ness. 

107.  Impeachment  by  State  of  Its  Own 
■Witness.  Where  the  court  allowed  the 
state  to  contradict  its  own  witness,  who 
changed  her  testimony  from  that  given  on 
the  preliminary  hearing,  it  may  be  pre- 
sumed, in  support  of  the  ruling,  that  the 
state  was  taken  by  surprise,  and  hence 
had  the  right  to  interrogate  the  witness 
respecting  her  previous  statements.  State 
v.  Inlow  (Utah)   1917A-741. 

108.  By  Party  Calling  Wtiness.  A  party, 
by  calling  a  witness,  vouches  for  his  credi- 
bility, and  cannot  impeach  him;  but  this 
does  not  prevent  him  from  asking  to  have 
the  truthfulness  of  the  witness'  testimony 
submitted  to  the  jury,  if  it  is  inherently 
improbable  or  is  contradicted.  Carlisle  v. 
Norris  (N.  Y.)   1917A-429. 

(6)  Attacking  Character   or  Repntation. 

109.  Where  the  evidence  merely  raises  a 
suspicion  that  witnesses  for  the  state  used 
narcotics,  and  there  is  no   evidence   that 


they  are  habitnal  users  or  under  the  in- 
fluence of  drugs  at  the  time  of  testifying, 
evidence  of  the  effect  of  drugs  on  the 
memory  is  properly  refused.  State  v. 
Schuman  (Wash.)  1918A-63S. 

(Annotated.) 

110.  Where  on  cross-examination  the 
prosecuting  witness  denied  that  she  used 
cocaine,  but  was  not  asked  whether  she 
told  others  that  she  used  the  drug,  she 
cannot  be  impeached  by  extrajudicial 
statements  that  she  used  such  drug.  State 
V.  Schuman  (Wa8h.)-1918A-633. 

(Annotated.) 

111.  Use  of  Drugs.  Where  the  prosecu- 
ting witness  denied  on  cross-examination 
that  she  used  cocaine,  which  question  was 
asked  to  affect  her  credibility,  the  defense 
is  concluded  by  her  answer,  the  matter  be- 
ing wholly  collateral  to  the  offense  charged. 
State  V.  Schuman  (Wash.)  1918A-63. 

(Annotated.) 

c.     Corroboration. 

112.  Proof  of  Good  Reputation.     Where 

contestant's  principal  witness  is  impeached 
by  proof  that  at  the  time  of  the  second 
trial  he  was  incarcerated  in  a  penitentiary 
contestant  may  corroborate  the  witness  by 
proof  of  his  good  reputation,  under  tho 
common  law  and  Mont.  Rev.  Codes,  §  8026. 
In  re  Williams'  Estate  (Mont.)  1917E;- 
126. 

WOMEN. 

See  Husband  and  Wife;  Divorce;  Marriage. 
Limiting  hours  of  employment,  see  Labor 
Laws,  3-5. 

WORDS  ACTIONABLE  PER  SE. 

See  Libel  and  Slander,  6,  16-21,  24-^6. 


WORDS  AND  PHRASES. 

"Accident,"  see  Master  and  Servant,  194- 
202. 

"Accidental  means,"  see  Accident  Insur- 
ance, 15,  16,  18. 

"Across,"  see  Telegraphs  and  Telephones. 

"Action,"  see  Actions  and  Proceedings,  1; 
Attorneys,  40. 

"Actual,"  see  Eminent  Domain,  13. 

"Actual  waste,"  see  Waste,  1. 

"Added,"  see  Food,   13. 

"Advancements,"   see  Advancements,  1. 

"Aforesaid,"  see  Libel  and  Slander,  82. 

"Aider  and  abettor,"  see  Torts,  10. 

"Alien  enemy,"  see  War,  10. 

"All  contracts,"  see  Life  Insurance,  30. 

"All  damages  and  costs,"  see  Bankruptcy, 
29. 

"All  municipal  power,"  see  Intoxicating 
Liquors,  3. 

"All  the  rest,  residue  and  remainder,"  see 
Wills,  202. 

"Alteration,"  see  Alteration  of  Instru- 
ments, L 


.WORDS  AND  PHRASES. 


899 


"And"  synonymous  with  "or,"  see  Banks 
and  Banking,  30. 

"Another,"  see  Husband  and  Wife,  10. 

"Any,'  see  Abduction,  2;  Mines  and  Min- 
erals, 1;  Municipal  Corporations,  21. 

"Any  corporation,"  see  Joint  Adventure,  7. 

"Any  other  estate  or  interest  therein,"  see 
Deeds,  70. 

"Any  person,"  not  including  men,  see  Pros- 
titution, 2. 

"Area,"  see  Streets  and  Highways,  31. 

"Areaway,"  see  Streets  and  Highways,  30. 

"Assets,"  see  Executors  and  Administra- 
tora,  2,  13. 

"Associates  in  office,"  see  Public  0£S.cer3, 
4,  21. 

"Average  annual  earnings,"  see  Master  and 
Servant,  274. 

"Blacklist,"  see  Labor  Combinations,  7. 
"Blind   tiger,"   see  Disorderly  Houses,  1; 

Intoxicating  Liquors,  110. 
"Boatable   stream,"   see  ISvidence,   18. 
"Boats,"  see  Master  and  Servant,  59. 
"Boycott,"  see  Labor  Combinations,  4. 
"Bona  fide  citizens,"  see  Corporations,  1. 
"Breach    of    the    peace,"    see    Breach    of 

Peace,  i,  3,  4. 
"Breaking,"  see  Burglary,  1. 
"Bric-a-brac,"  see  Wills,  200. 
"Building,"  see  Buildings,  1. 
"Business,"  see  Master  and  Servant,  41. 

"Capitalize,"  see  Death  by  Wrongful  Act, 

50. 

"Census,"  see  Municipal  Corporations,  158. 

"Certiorari,"  see  Certiorari,  1. 

"Charitable  trust,"  see  Charities. 

"Charity,"  see  Charities,  1,  3. 

"Chattels,"  see  Executors  and  Administra- 
tors, 2. 

"Child."  see  Exemptions,  4, 

"Children,"    see   Wills,    199. 

"Chiropractic,"  see  Physicians  and  Sur- 
geons, 1. 

"Chiropractor,"  see  Physicians  and  Sur- 
geons, 1. 

"Choses  in  action,"  see  Executors  and 
Administrators,  2. 

"Circumstantial  evidence,"  see  Evidence, 
161. 

"Citizen."  see  Corporations,  2,  3. 

"Civil  conspiracy,"  see  Conspiracy,  13. 

"Common  nuisance,"  see  Nuisances,  7. 

"Commerce,"  see  Fish  and  Game,  21;  In- 
terstate Commerce,  1;  Master  and 
Servant,  41. 

"Communication,"  see  Witnesses,  19. 

"Commute,"  see  Master  and  Servant,  280. 

"Company,"  see  Trademarks  and  Trade- 
names,  6. 

"Completed,"  see  Taxation,  78,  79. 

"Condemnation,"  see  Eminent  Domain,  3. 

"Condonation,"  see  Divorce,  17. 

"Condition,"  see  New  Trial,  37. 

"Conduct,"  see  Prostitution,  6. 

"Consortium,"  see  Husband  and  Wife,  35. 

"Contents,"  see  Wills,  172. 

"Continuous  and  immediate  disability,"  see 
Accident  Insurance,  28. 


"Contractor,"   see   Mechanics'  Liens,   7. 
"Conveyance,"  see  Frauds,  Statute  of,  12. 
"Conveyances  of  land,"  see  Deeds,  70. 
"Counties,"  see  Trees  and  Timber,  IK. 
"Courts,"  see  Master  and  Servant,  117. 
"Credible,"  see  Wills,  23. 
"Credible  witness,"  see  Wills,  25. 
"Crime,"  see  Criminal  Law,  7. 
"Cruel  and  unusual  punishment,"  see  Sen- 
tence and  Punishment,  14. 

"Days,"  see  Time,  2. 

"Dealer,"  see  Junk  Dealers  and  Jnnk 
Shops,  1,  2. 

"Deadly  weapon,"  see  Weapons,  3. 

"Dealer,"  see  Interstate  Commerce,  4; 
Licenses,  25. 

"Debt,"  see  Bankruptcy,  4;  Imprisonment 
for  Debt  and  in  Civil  Cases,  2;  Mort- 
gages and  Deeds  of  Trust,  20;  Munici- 
pal Corporations,  114. 

"Dedication,"  see  Dedication,  4,  10. 

"Deed,"  see  Mechanics'  Liens,  5. 

"Deliver,"  see  Intoxicating  Liquors,  81. 

"Delivery,"  see  Deeds,  4. 

"Delusion,"  see  Wills,  62. 

"Dependent,"  see  Master  and  Servant, 
266,  269. 

"Desire,"  see  Wills,  192,  194,  195. 

"Disorderly  house,"  see  Disorderly  Houses, 
2. 

"Distinguishing  mark,"  see  Elections,  71. 

"Domestic,"  see  Animals,  1. 

"Droit  de  detraction,"  see  Taxation,  172. 

"Duress,"  see  Contracts,  3. 

"Dwelling,"  see  Accident  Insurance,  3. 

"Dwelling  house,"  see  Elections,  3. 

"Dying  without  issue,"  see  Perpetuities,  8. 

"Elevator,"  see  Master  and  Servant,  173. 
"Eminent  domain,"  see  Eminent  Domain, 

1. 
"Emoluments,"  see  Judges,  4. 
"Employee,"  see  Master  and  Servant,  244, 

249,  264. 
"Enticement,"  see  Husband  and  Wife,  55. 
"Estates,"  see  Executors  and  Administra- 
tors, 1. 
"Estimate   of   population,"   see   Municipal 

Corporations,  158. 
"Etc.,"  see  Mechanics'  Liens,  24. 
"Excise  tax,"  see  Taxation,  147. 
"Execution,"  see  Deeds,  3. 
"Executor  de  son  tort,"  see  Executors  and 

Administrators,  69. 
"Executory  devise,"  see  Wills,  209. 
"Expenses,"  see  Death  by  Wrongful  Act, 

48. 
"Express,"  see  States,  6. 
"Express    agreement,"    see    Landlord    and 

Tenant,  21. 
"Eye-witness,"  see  Accident  Insurance,  25. 

"Feloniously,"  see  Homicide,  6. 
"Felony,"  see  Criminal  Law,  7. 
"Ferry  boat,"  see  Ferries,  1. 
"Fictitious    payee,"    see   Bills   and  Notes, 

39. 
"Fiduciary  relation,"  see  Fraud,  7. 
"Fly  power,"  see  Corporations,  81. 


900 


"Food,"  see  Food- 

"For,"  see  Process,  9. 

"For  residence  purposes,"  see  Deeds,  50,  51. 

"Fraternal     beneficiary     association,"     see 

Beneficial  Associations,  5. 
"From,"  see  Time,  5.  7. 
"Fruit  stand,"  see  Streets  and  Highways, 

22. 
"Fugitive  from  justice,"  see  Extradition,  2. 

"Game,"  see  Animals,  26. 
"General,"  see  Descent  and  Dlstributloii,  5. 
"Goods,"  see  Frauds,  Statute  of,  11. 
"Goods  and  chattels,"  see  Executors  and 

Administrators,  2. 
"Goods,  chattels,  or  assets  of  any  estate, 

real   or   personal,"  see  Executors  and 

Administrators,  2. 

"Hatchway,"   see   Streets   and  Highways, 

30. 
"Hazardous,"  see  Master  and  Servant,  257. 
"Head  of  a  family,"  see  Executions,  4. 
"Heirs,"  see  Wills,  183-190. 
"Heirs  at  law,"  see  Wills,  185,  186,  189. 
"Holder,"  see  Bills  and  Notes,  7,  42. 
"Holder    in    due    course,"  see    Bills    and 

Notes,  28,  42,  46. 
"Householder,"  see  Executions,  4. 
"House  of  ill  fame,"  see  Disorderly  Houses, 

6. 

"Id  est,"  see  Libel  and  Slander,  82. 

"Immediate  disability,"  see  Accident  In- 
surance, 2. 

"Immoral  purposes,"  see  Prostitution,  12, 
13. 

"Implied  powers,"  see  Corporations,  15. 

"Infamous  crime,"  see  Criminal  Law,  5. 

"Injury,"  see  Master  and  Servant,  196. 

"In  the  course  of"  or  "out  of"  the  employ- 
ment, see  Master  and  Servant,  46-51. 

"Independent  contractor,"  see  Independent 
Contractors,  3,  4,  6. 

"Indictment,"  see  Grand  Jury,  2. 

"Indispensable  party,"  see  Parties  to  Ac- 
tions, 2. 

"Incidental  powers,"  see  Corporations,  14. 

"Increase  of  salary,"  see  Judges,  4. 

"Inherit,"  see  Tenants  in  Common,  2. 

"Inheritance  tax,"  see  Taxation,  28, 

"Innkeeper,"  see  Innkeepers,  2. 

"Innuendo,"  see  Libel  and  Slander,  82. 

"Insane  delusion,"  see  Wills,  59,  60,  63. 

"Insanity,"   see   Insanity,   24. 

"Insolvent,"  see  Banks  and  Banking,  67^ 
68. 

"Insurable  interest,"  see  Life  Insurance, 
6,  13. 

"Intemperance,"^  see  Public  Officers,  48. 

"Interest,"  see  Judges,  13. 

"Jeopardy  for  the  same  offense,"  see  For- 
mer Jeopardy,  2. 

"Jeopardy  of  life  or  limb,"  see  Former 
Jeopardy,   2. 

"Jeopardy  of  life  and  liberty  for  the  same 
offense,"  see  Former  Jeopardy,  2. 

"Jitney,"  see  Carriers  of  Passeneers,  So. 

"Joint-stock  corporation,"  see  Joint  Ad- 
venture, 8. 


DIGEST. 

1916C— 1918B. 

"Judicial  notice,"  see  Evidence,  1. 
"Judicial  power,"  see  Constitutional  Law, 
12. 


"Laborer,"  see  Mechanics'  Liens,  10. 
"Law,"  see  Municipal  Corporations,  52. 
"Lawful  heirs,"  see  WiUs,  1S4,  188. 
"Liabilities,"  see   Sales,   14. 
"Libel,"  see  Libel  and  Slander,  4,  29. 
"Libelous  per  se,"  see  Libel  and  Slander, 

16. 
"Lost"    distinguished   from    "mislaid,"   see 

Lost  Property,  3. 
"Loss  of  arm,"  see  Master  and  Servant, 

205. 
"Loss  of  eye,"   see  Master  and   Servant, 

204. 
"Loss  of  finger,"  see  Master  and  Servant, 

203. 
"Loss   of   hand,"   see  Accident  Insurance, 

19. 
"Lottery,"  gee  Gaming,  2. 
"Lying  in  wait,"  see  Homicide,  60. 

"Malice,"  see  Libel  and  Slander,  12. 
"Malice  aforethought,"  see  Rotbery,  1. 
"Malice  in  fact,"  see  Libel  and  Slander, 

11. 
"Malicious  act."  see  Torts,  2. 
"Mania,"   see  Wills,   59. 
"Market  price,"  see  Sales,  4. 
"Materialman,"  see  Mechanics'  Liens.  10. 
"May"    meaning   "must,"    see   Banks    and 

Banking,  69. 
"Memory,"  see  Libel  and  Slander,  35. 
"Middle  of  the  main  channel,"  see  States, 

4. 
"Middle  of  the  river,"  see  States,  4. 
"Mining  lease,"  see  Mines  and  Minerals, 

5. 
"Misdemeanor,"  see  Criminal  Law,  7. 
"Mislaid,"    distinguished   from   "lost,"   see 

Lost  Property,  3. 
"Mistake  of  fact,"  see  Wills,  102, 
"Monomania,"   see   Wills,   59. 
"Monopoly,"  see  Monopolies,  1. 
"Moot  case,"  see  Actions  and  Proceedings, 

7. 
"More  or  less,"  see  Deeds,  45. 
"Mortgage,"  see  Mortgages  and  Deeds  of 

Trust,  2,  20. 
"Motor  car,"  see  Automobiles,  4. 
"Motorcycle,"   spe   Automobiles,   4. 
"Motor  vehicle,"  see  Automobiles,  5;  Hom- 
icide,  5. 
"Municinal     corporation,"     see     Municipal 

Corporations,  4. 

"Natural  heirs,"  see  Deeds,  41,  42. 
"Near  beer,"  see  Intoxicating  Liquors,  10. 
"Necessary,"  see  Taxation,  56. 
"Negotiate,"  see  Bills  and  Notes,  7. 
"Negotiated,"  sep  B  lis  and  Notes,  28. 
"Notorious,"  see  Descent  and  Distribution, 

5. 
"Nuisance  per  accident,"  see  Nuisances,  3. 

"Obligation,"  see  Assignments,  14. 
"Obtain,"  see  False  Pretenses,  5. 
"Office,"  see  Public  Oflacers,  7. 
"Officers,"  see  Municipal  Corporations,  14' 
Public  Oflicers,  2. 


WORDS  AND  PHRASES. 


901 


"Operating,"  see  Street  Railways,  19,         , 
"Option,"  see  Vendor  and  Purchaser,  2. 
"Or"   synonymous   with   "and,"   see  Banks 

and  Banking,  30. 
"Or"  construed  "and,"  see  Charities,  25. 
"Or,"  see  Wills,  198. 
"Order  of  court,"  see  Judgments,  2,  H. 
"Ordinary,"  see  Schools,  25. 
"Ordinary  care  by  child,"  see  Ne^^gence^ 

51. 
"Original      contractor,"     see     Mechanics' 

Liens,  10. 
"Or  other  power,"  see  Master  and  Servant^ 

255 
"Other,''  see  Statutes,  68;  Wills,  197. 
"Others,"  see  Wills,   197. 
"Other  timber,"   see  liens,  4. 
"Otherwise,"  see  Public  Officers,  23. 
"Out  of"  and  "in  course  of"  employment, 

see  Master  and  Servant,  206-230. 
"Owner  of  the  hotel,"  see  Landlord  and 

Tenant,  13. 

"Parole,"  see  Pardons,  3. 

"Partnership,"  see  Partnership,  2. 

"Par  value,"  see  Counties,  11. 

"Passenger,"  see  Carriers  of  Passengers, 
11. 

"Passenger  depot,"  see  Bailroads,  48. 

"Pay  over  and  deliver,"  see  Wills,  218. 

"Peddler,"  see  Hawkers  and  Peddlers,  1,  2. 

"Pending,"  see  Actions  and  Proceedings,  8. 

"Pending  appeal,"  see  Appeal  and  Error, 
47. 

"Permissive  waste,"  see  Waste,  1. 

"Perquisite,"  see  Judges,  4. 

"Perpetuity,"  see  Perpetuity,  2. 

"Person"  includes  corporation,  see  Limita- 
tion of  Actions,  5. 

"Persons,"  see  Public  Officers,  26. 

"Plant,"  see  Master  and  Servant,  174. 

"Police  power,"  see  Constitutional  Law, 
14,  25,  27,  39. 

"Preliminary  injunction,"  see  Injunctions, 
38. 

.'Tremises"  of  school,  see  Intoxicating 
Liquors,  71. 

"Presentment,"  see  Grand  Jury,  2. 

"Private  nuisance,"  see  Nuisances,  1. 

"Probable  cause,"  see  Malicious  Prosecu- 
tion, 7. 

"Proceeding,"  gee  Actions  and  Proceedings, 
2;  Attorneys,  40. 

"Property,"  see  ConstltntionaTLaw,  48. 

"Prostitution,"  see  Prostitution,  1. 

"Public  purpose,"  see  Trees  and  Timber,  6. 

"Public  service,"  see  Taxation,  2. 

"Public  use,"  see  Public  Service  Commis- 
sions, 4;  Telegraphs  and  Telephones,  1. 

•Tublic  utility,"  see  Public  Service  Com- 
missions, 3  J  Telegraphs  and  Tele- 
phones, 1. 

"Qualified  privilege,"  see  Libel  and  Slan- 
der, 48. 
"Quotient  verdict,"  see  Verdicts,  4. 

"Razor,"  see  Weapons,  2. 
"Rape,"  see  Rape,  1. 

"Realty,"  see  Trademarks  and  Trade- 
names, 6. 


"Reasonable  time,"  see  Time,  <J. 

"Recrimination,"  see  Divorce,  23, 

"Recent,"  see  Larceny,  9. 

"Receiver,"  see  Receivers,  1. 

"Relator,"  see  Quo  Warranto,  6. 

"Reputed  owner,"  see  Mechanics'  Liens,  7. 

"Reserved,"  see  Dedication,  20. 

"Residence,"  see  Deeds,  51:  Limitation  of 
Actions,  37. 

"Resident,"  see  Fish  and  Game,  3. 

"Residing,"  see  Beneficial  Associations,  4. 

"Residue,"  see  Wills,  31. 

"Res  ipsa  loquitur,"  see  Independent  Con- 
tractors, 10. 

"Respondent,"  see  Quo  Warranto,  6. 

"Restaurant  keeper,"  see  Innkeepers,  3. 

"Restraining  order,"  see  Injunctions,  38. 

"Revenue,"  seie  Schools,  17,  18. 

"Revert,"   see  Wills,    193. 

"Right  heirs  and  distributees,"  see  WiUB, 
190. 

"Sawlogs,"  see  Usages  and  Customs,  1. 

"Scilicet,"  see  Libel  and  Slander,  8'^. 

"Second  delivery,"  see  Escrow,  1. 

"Securities,"  see  Taxation,  163. 

"Self-executing,"  see  Constitutional  Law, 
96. 

"Sending,"  see  Libel  and  Slander,  165. 

"Serious  illness,"  see  Life  Insurance,  17. 

"Servant,"  see  Master  and  Servant,  264. 

"Ship,"  see  Intoxicating  Liquors,  81. 

"Sign,"  see  Wills,  8,  9. 

"Signature,"  see  Wills,  9. 

"Slanderous  per  se,"  see  Libel  and  Slan- 
der, 19. 

"Spoliation,"  see  Alteration  of  Instru- 
ments. 

"Special  deposit,"  see  Banks  and  Banking, 
41,  42.  * 

"Specific,"  see  Eminent  Domain,  13. 

"Spendthrift  trust,"  see  Trusts  and  Tru»- 
tees,  6. 

"State  oflScers,"  see  Public  Officers,  1. 

"Stepfather,"  see  Marriage,  1. 

"Stock  in  a  corporation,"  see  Corporations, 
75. 

"Strict,"  sec  Municipal  Corporations,  37. 

"Strictly,"  see  Municipal  Corporations,  37. 

"Student  fireanan,"  see  Master  and  Servant, 
63. 

"Suicide,"  see  Life  Insurance,  40. 

"Superintendence,"  see  Master  and  Ser- 
vant, 28. 

"Subcontractor,"  see  Mechanics'  Liens,  10. 

"Subject  of  the  action,"  see  Set-off  and 
Counterclaim,  3. 

"Subject,"  see  Trees  and  Timber,  9. 

"Temporary  injunction,"  see  Injunctions, 
38. 

"Tent,"  see  Buildinsrs,  1. 

"Terms,"  see  New  Trial,  37. 

"Terms"  synonymous  with  "Terms  and  Con- 
ditions," see  New  Trial,  37. 

"Then,"  see  Indictments  and  Informations, 
15. 

"Then  and  there,"  see  Indictments  and  In- 
formations, 15. 

"Thing  in  action,"  see  Assignments,  14. 

"Timber,"  see  Trees  and  Timber,  1. 


902 


DIGEST. 

1916C— 1918B. 


"Tool   or   instrument,"   see   Landlord   and 

Tenant,  35. 
"Transfer,"  see  Vendor  and  Purchaser. 
"Twice    in   jeopardy   of   punishment,"  see 

Former  Jeopardy,  2. 

"Ultra  vires  contracts,"  see  Corporations, 

13. 
"Undue  influence,"  see  Wills,  97. 

"Value,"  see  Bills  and  Notes,  50. 
"Vehicle,"  see  Master  and  Servant,  173. 
"Void  marriage,"  see  Marriage,  3. 
"Voidable  marriage,"  see  Marriage,  3. 
"Voluntary  waste,"  see  Waste,  1. 
"Volunteer,"  see  Master  and  Servant,  217. 

"Wages,"  see  Judges,  4. 

"Waste,"  see  Waste,  1. 

"Wholesale  vendor,"  see  Licenses,  24. 

"Wilfully,"  see  Assault,  1. 

"Wilfully  and  unlawfully,"  see  Indictments 

and  Informations,  13. 
"Will,"  see  Wills,  194. 

1.  Act  of  God — Definition.  An  "act  of 
God"  is  the  action  of  an  irresistible  physi- 
cal force  not  attributable  in  any  degree  to 
the  conduct  of  man  and  not  in  reason  pre- 
ventable by  human  foresight,  strength,  or 
care.  Hecht  v.  Boston  Wharf  Co.  (Mass.) 
1917A-445. 

Note. 
Meaning  of  "all"  as  used  in  prohibitory 
or  regulatory  statute.     1917E-39. 

2.  "All  Coal."  The  grantee's  acceptance 
of  a  deed  conveying  the  surface,  but  ex- 
cepting and  reserving  "all  the  coal  in,  un- 
der and  upon  said  tract  of  land,  and  the 
right  aad  privileges  of  the  said  parties  of 
the  first  part,  their  heirs,  and  assigns  to 
enter  upon  said  tract  of  land  and  excavate 
and  mine,  prepare  for  market,  and  remove 
said  coal  with  all  the  usual  mining  privi- 
leges," does  not  waive  his  right  of  sub- 
jacent support,  etonegap  Colliery  Co.  v. 
Hamilton  (Va.)  1917E-60.        (Annotated.) 

Note. 
Meaning  of  "all  damages."     1917E-82. 

3.  "All  Matters."  In  an  action  to  set 
aside  a  deed  and  recover  the  rental  value 
of  the  land  and  the  value  of  personalty 
converted  by  defendant,  an  agreed  order 
of  settlement,  entered  November  11,  1911, 
and  reciting  that  "all  matters  between 
them  are  settled,  and  as  to  all  matters  of 
accounts  between  said  parties,  this  cause 
is  now  dismissed  settled,"  includes  the 
rent  for  the  year  1911,  especially  where  an- 
other clause  of  the  agreed  order  specified 
a  matter  other  than  such  rent  as  being  ex- 
cepted; the  word  "all"  being  comprehen- 
sive enough  to  embrace  not  only  such  mat- 
ters of  account  as  were  set  up  in  the 
pleadings  and  judgment,  but  also  such 
matters  as  were  incidental  to  the  litiga- 
tion, or  might  thereafter  have  been  as- 
serted by  either  party  against  the  other 


in  the  absence  of  the  compromise  settle- 
ment.   Middleton  v.  Stone  (Ky.)  1917E-84. 

Notes. 

Meaning  of  "all  matters."     1917E-87. 

Meaning  of  "all  property"  as  used  in  in- 
strument, statute,  etc.  other  than  will. 
1917E-58. 

Legal  meaning  of  "any."     1917E-2. 

4.  "Any  Other  Purpose"  Defined.  Wis. 
St.  1913,  §  4394,  provides  that  any  person 
who  shall  set  or  fix  in  any  manner  any 
gun  or  other  firearm  to  kill  game  of  any 
kind  by  coming  in  contact  therewith,  or 
with  any  string,  wire,  or  other  contrivance 
attached  thereto,  by  which  the  same  may 
be  discharged,  "or  for  any  other  purpose," 
shall  be  punished,  etc.,  and  if  the  death 
of  any  person  is  caused  thereby,  he  is 
deemed  guilty  of  "manslaughter  in  the 
second  degree."  Held,  that  the  phrase 
"or  for  any  other  purpose"  was  not  to 
be  construed,  under  the  rule  ejusdem  gen- 
eris, as  limited  to  the  setting  of  guns  to 
kill  game,  etc.,  but  prohibited  the  setting 
of  a  gun  for  any  purpose  whatever  other 
than  with  intent  to  effect  the  death  of  or 
physical  injury  to  a  human  being  or  the 
wrongful  destruction  of  property,  or  for  a 
purpose  evincing  a  depraved  mind,  regard- 
less of  danger  to  human  life,  so  that  where 
defendant  set  a  gun  in  his  orchard  to  pre- 
vent persons  from  stealing  his  apples  and 
decedent  was  shot  and  killed  thereby,  the 
court  properly  limited  the  jury  to  a  con- 
viction of  murder  in  the  first  or  second 
degree  and  manslaughter  in  the  second  de- 
gree, and  refused  to  submit  manslaughter 
in  the  fourth  degree  or  excusable  homi- 
cide. Schmidt  v.  State  (Wis.)  1916E- 
107.  (Annotated.) 

5.  Business.  The  word  "business"  is 
commonly  employed  in  connection  with 
an  occupation  for  livelihood  or  profit,  but 
is  not  limited  to  such  pursuits.  Griffin  v. 
Eussell  (Ga.)  1917D-994. 

"Commodity,"  legal  meaning.     1916D-986. 

6.  "Constitutional  Bight."  The  expres- 
sion "constitutional  right"  means  a  right 
guaranteed  to  the  citizens  by  the  constitu- 
tion and  so  guaranteed  as  to  prevent  legis- 
lative interference  therewith.  Delaney  v. 
Plunkett   (Ga.)    1917E-685. 

7.  "Damage  by  the  Elements."  Fire  is 
one  of  the  elements  included  in  the  ex- 
pression "damages  by  the  elements  ex- 
cepted," where  that  phrase  is  used  in  a 
lease  of  a  building.  O'Neal  v.  Bainbridge 
(Kan.)   1917B-293.  (Annotated.) 

8.  "Distinct."  As  defined  by  lexicog- 
raphers, "distinct"  means  "clear  to  the 
senses  or  mind";  "easily  perceived  or  un- 
derstood"; "plain";  "unmistakable."  Hill 
V.  Norton  (W.  Va.)  1917D-489. 


WORDS  AND  PHRASES. 


903 


Note. 
"From"  as  word  of  inclusion  or  •xclu- 
sion.     1918A-924. 

9.  Hatch  —  Definition.  "Hatch"  is  a 
nautical  term  and  generally  signifies  an 
opening  in  the  deck  of  a  snip.  State  v. 
Armstrong  (Neb.)  1917A-554. 

10.  "Horse."  The  use  of  the  word 
"horse"  as  a  generic  term  in  pleading  in- 
cludes "mare."  MeCarver  v.  GriflBji  (Ala.) 
1917C-1172. 

11.  The  term  "horse  power,"  though 
originally  employed  to  designate  the  power 
of  a  steam  engine,  has  come  to  mean  the 
unit  used  in  estimating  the  power  re- 
quired to  drive  machinery.  Eastern  Pa. 
Power  Co.  v.  Lehigh  Coal,  etc.  Co.  (Pa.) 
1916I>-1000.  (Annotated.) 

12.  Meanimg  of  "Inherit."  E.  I.  Gen. 
Laws  1909,  c.  312,  §  10,  provides  that  ad- 
ministration of  the  estate  of  a  person 
dying  intestate  shall  be  granted,  if  the 
deceased  is  a  married  woman,  to  her  hus- 
band, if  competent,  who  shall  not  be  com- 
pelled to  distribute  the  surplus  of  the  per- 
sonal estate  after  the  payment  of  her 
debts,  but  shall  be  entitled  to  retain  the 
same  for  his  own  use.  Testator  be- 
queathed $5,000  and  certain  real  estate  to 
a  trustee  in  trust  for  the  benefit  of  C.  for 
life,  with  power  to  manage  the  same  gen- 
erally and  to  sell  and  reinvest  the  pro- 
ceeds if  desirable.  A  subsequent  clause 
of  the  will  declared  that  in  all  cases  where 
testator  had  given  property  in  trust  for 
the  benefit  of  other  persons,  and  had  not 
specially  provided  for  its  disposition  on 
their  death,  the  trustee, ,  on  such  event, 
should  pay  and  convey  the  property  in 
fee,  discharged  of  all  trusts,  to  the  persons 
who,  by  the  laws  of  Rhode  Island  would 
inherit  it  had  the  persons,  for  whose  bene- 
fit it  was  given,  died  seized  and  possessed 
thereof  in  fee.  It  is  held,  that  the  real 
property  having  been  converted  into  per- 
sonalty by  the  trustee  during  the  life- 
time of  the  beneficiary  for  life,  the  word 
"inherit"  could  not  be  construed  as  hav- 
ing been  used  by  testator  in  its  strict 
legal  sense  as  designating  those  persons 
only  who  would  inherit  real  property  from 
an  intestate  ancestor,  but  the  word  was 
used  in  the  sense  of  "take";  and  hence, 
on  the  death  of  the  beneficiary  for  life, 
the  remainder  of  the  trust  fund  so  be- 
queathed to  her  passed  to  her  husband 
and  not  to  her  heirs.  Quinn  v.  Hall 
(R.  I.)  1917C-373.  (Annotated.) 

Notes. 

Meaning  of  "inherit,"  "inherited,"  etc. 
1917C-386. 

What  constitutes  "loss"  of  eyesight. 
1918A-531. 

13.  Masculine  Words  as  Extending  to 
Females — Rule  Inapplicable.     Iowa  Code, 


S  48,  par.  3,  providing  that  words  import- 
ing masculine  gender  only  may  be  ex- 
tended to  females,  does  not  operate  wher* 
its  application  violates  reason  and  nulli- 
fies the  intent  of  the  legislature.  State 
V.  Gardner  (Iowa)  1917D-239. 

14.  "Natural  Rights"  and  "CivU  Rights" 
Defined.  By  the  term  "natural  rights"  Is 
meant  those  rights  which  are  necessarily 
inherent,  rights  which  are  innate  and 
which  come  from  the  very  elementary 
laws  of  nature,  such  as  life,  liberty,  the 
pursuit  of  happiness,  and  self-preservation. 

By  the  term  "civil  rights,"  in  its  broader 
sense,  is  meant  those  rights  which  are  the 
outgrowth  of  civilization,  which  arise  from 
the  needs  of  civil  as  distinguished  from 
barbaric  communities,  and  are  given,  de- 
fined, and  circumscribed  by  such  positive 
laws,  enacted  by  such  communities  as  are 
necessary  to  the  maintenance  of  organized 
government,  and  th«  term  comprehends  all 
rights  which  civilized  communities  under- 
take, by  the  enactment  of  positive  laws, 
to  prescribe,  abridge,  protect,  and  en- 
force.— ^Byers  v.  Sun  Savings  Bank 
(Okla.)   1916D-a22. 

Note. 
Meaning  of  term  "natural  heirs."  1917A- 
1159. 

15.  In  that  act  the  word  "or"  between 
the  words  "ship"  and  "convey"  should  be 
read  "and";  those  conjunctions  being  fre- 
quently convertible.  Bird  v.  State  (Tenn.) 
1917A-634.  (Annotated.) 

16.  "Or     Elsewhere"     Defined.    It    is 

clearly  manifest  tfiat  the  general  words 
"or  elsewhere,"  contained  in  the  statute, 
were  used  for  the  purpose  of  including 
other  places  than  are  suggested  by  the 
specific  words  "at  a  house  of  ill  fame  or  at 
any  other  place  of  like  character."  State 
V.  Sanders  (La.)  1916E-105. 

Note. 
Legal  meaning  of  "otherwise."    1916C5- 
644. 

17.  Parens  Patriae  —  Definition.  The 
words  "parens  patriae,"  meaning  "father 
of  his  country,"  were  applied  originally  to 
the  king,  and  are  used  to  designate  the 
state,  referring  to  its  sovereign  power  of 
guardianship  over  persons  under  disabil- 
ity.    In  re  Turner  (Kan.)   1916E-1022. 

Notes. 

Meaning  of  "plant"  as  used  with  refer- 
ence to  business.     1917A-317. 

What  is  included  in  term  "premises"  as 
used  with  respect  to  land.     1916C-1192. 

18.  Distinction  between  "Bent"  and 
**Royalty."  Where  a  deed  from  a  grantor 
who  had  owned  the  land  for  years  and 
knew  of  the  existence  of  mines,  they  hav- 
ing been  actually  worked  in  his  lifetime, 


904 


to  Ws  sons,  provided  that,  if  his  wife  sur- 
vived him,  she  should  receive  one-half  of 
all  rents  from  the  place  from  all  resources 
whatsoever,  she  is  entitled  to  share  in  the 
income  from  the  mines  while  operated  on 
a  royalty  basis,  as  well  as  all  other  in- 
come and  proceeds  from  the  farm,  regard- 
less of  the  manner  and  form  of  payment 
or  the  name  by  which  it  might  be  desig- 
nated; since,  while  "royalty"  is  a  more 
appropriate  word  where  rental  is  based 
upon  the  quantity  of  coal  or  other  mineral 
that  is  or  may  be  taken  from  a  mine,  the 
terms  "rent"  and  "royalty,"  as  the  result 
of  usaee  and  custom,  are  often  used  in- 
terchangeably, and  "all  resources  whatso- 
ever" necessarily  include  the  mines. 
Saulsberry  v.  Saulsberry  (Ky.)  1916E- 
1223.  (Annotated.) 


Notes. 

Distinction  between  rent  and  royalty. 
1916E-1225. 

Meaning  of  term  "recent**  or  "recently." 
1918A-814. 

19.  "Eevenue" — Meaning  of  Term.  The 
constitution,  in  limiting  appropriations 
which  may  lawfully  be  made  by  each 
general  assembly  for  the  ordinarv  and  con- 
tingent expenses  of  the  government  until 
the  expiration  of  the  first  fiscal  quarter 
after  the  adjournment  of  the  next  regular 
session  to  the  amount  of  revenue  author- 
ized by  law  to  be  raised  in  such  time,  does 
not  regard  the  amount  of  the  state's  total 
revenue  as  merely  the  amount  of  its 
moneys  raised  by  direct  taxation.  Fergus 
V.  Brady  (Dl.)  191&B-220.       (Annotated.) 

Note. 
Legal  meaning  of  "revenue."  1918B-200. 

EO.  Meaning  of  "Said."  Where  the  de- 
scription of  a  zone  of  a  paving  district, 
which  had  referred  to  block  10,  subse- 
ouentl-"^  refers  to  said  lot  10,  "said"  must 
be  treated  as  "aforesaid,"  and  the  word 
"lot"  as  "block";  the  error  being  a  mere 
clerical  one.  Moore  v.  Paving  Improve- 
ment District  (Ark.)  1917D-599. 

(Annotated.) 

Note. 
Ijegal  meaning  of  "said."     1917D-603. 

21.  The  word  "serious"  is  not  generally 
nsed  to  signify  a  dangerous  condition,  but 
rather  to  define  a  grave,  important,  or 
weighty  trouble.  Schas  v.  Equitable  Life 
Assurance  Soc.  (N.  Car.)  1918A-679. 

(Annotated.) 

22.  "Strand."  The  word  "strand"  sig- 
nifies tne  shore  or  bank  of  the  sea  or  a 
river.  Harris  v.  St.  Helens  (Ore.)  1916D- 
1073. 

23.  "Unfaithfully,''  'Improperly"  and 
"Illegally"  Defined,  The  word  "unfaith- 
fully" signifies,  bad  faith.  The  word  "im- 
properly" implies  such  conduct  as  a  man 


DIGEST. 

1916C— 1918B. 

of  ordinary  and  reasonable  care  and  pru- 
dence would  not,  under  the  circumstances, 
have  been  guilty  of.  The  word  "illegally" 
means  unlawfully  and  contrary  to  law 
(citing  Words  and  Phrases,  Unfaithfully; 
see  also  Words  and  Pharses,  First  and 
Second  Series,  Illegal).  State  v.  American 
Surety  Co.  (Idaho)  1916E-209. 

24.  "Wases"  and  "Salary"  Distin- 
guished, The  word  "salary,"  as  used  in 
a  city  ordinance  providing  for  the  com- 
pensation of  firemen,  is  synonymous  with 
"wages,"  though  the  word  "salary"  is 
sometimes  understood  to  relate  to  com- 
pensation for  oflficial  or  other  services,  as 
distinguished  from  "wages,"  which  is  the 
compensation  for  labor.  Walsh  v.  Bridge- 
port (Conn.)  1917B-318.  (Annotated.) 

25.  "Wharf."  A  wharf  is  a  bank  or 
other  erection  on  the  shore  of  a  harbor, 
river,  or  canal,  for  the  convenience  of  lad- 
ing and  unlading  ships  or  boats.  Harris 
V.  St.  Helens  (Ore.)  1916D-1073. 


Note. 
Distinction       between 
"wages."     1917B-321. 


"salary"      and 


WOES  AND  LABOR. 

Actionable    deceit    in    procuring   services, 
see  Fraud,  8. 

1.  Recovery  on  Express  Contract — In- 
structions. In  an  action  against  a  de- 
cedent's estate  to  recover  for  services  ren- 
dered decedent  under  an  express  contract 
an  instruction  that  direct  evidence  of  such 
agreement  was  not  necessary  if  from  all 
the  facts  and  circumstances  in  evidence  the 
jury  could  find,  by  a  preponderance,  that 
there  must  have  been  such  an  agreement 
is  not  defective  as  authorizing  plaintiff 
to  recover  on  an  implied  contract,  since 
the  instruction  simply  states  the  correct 
rule  that  an  express  agreement  can  be 
proved  by  facts  and  circumstances  as  well 
as  by  direct  evidence.  Estate  of  Oldfield 
(Iowa)  1917D-1067. 

2.  Services  by  Member  of  Household — 
Express  Contract — Instructions.  In  an  ac- 
tion against  a  decedent's  estate  to  recover 
for  services  rendered  decedent,  the  in- 
struction that  if  the  plaintiff  established 
the  rendition  of  services  under  an  ex- 
press agreement  by  which  she  was  to  be 
paid  therefor,  she  would  be  entitled  to 
recover,  though  such  services  may  have 
been  rendered  at  a  time  when  she  was 
furnished  a  home,  food,  and  clothing  and 
was  living  with  decedent  in  his  home  and 
with  his  family,  is  not  defective  as  as- 
suming that  there  was  evidence  of  an 
express  agreement,  and  that  such  agree- 
ment did  Eot  contemplate  payment  for 
services  by  furnishing  a  home,  food,  cloth- 
ing, etc.,  when  considered  in  connection 
with  other  instructions,  that  the  furnish- 
ing ef  a  home,  food^  and  clothing  to  one 


"WORKMEN'S  COMPENSATION  ACTS— WRONGS 


905 


performing  services  raises  a  presumption 
that  neither  expects  to  pay  nor  receive 
compensation,  but  that  the  services  are 
gratuitous,  which  presumption  the  plain- 
tiff must  overcome  by  a  preponderance  of 
the  evidence,  and,  failing  which,  the  ver- 
dict should  be  for  the  defendant.  Estate 
of  Oldfield  (Iowa)   1917D-1067. 

3.  Recovery  not  Excessive.  Where 
plaintiff  worked  on  decedent's  farm  for 
seven  years,  the  work  consisting  of  house- 
hold duties  and  manual  labor  on  the  farm, 
a  verdict  of  $3,164  is  not  excessive.  Es- 
tate of  Oldfield  (Iowa)  1917D-1067. 

4.  Remedy  for  Breach — Option  to  Sue 
at  Once  for  Damages.  In  case  of  a  re- 
jection of  services  by  one  who  has  agreed 
to  make  compensation  by  will  the  promisee 
may  immediately  renounce  the  contract 
and  sue  decedent  for  damages.  McCurry 
T.  Purgason  (N.  Car.)  1918A-907. 

WORKMEN'S  COMPENSATION  ACTS. 

See  Master  and  Servant,  101-364. 

WORTHLESS  CHECK. 
See  False  Pretenses,  3,  4. 

WRECKER. 

As    within    Federal    Employers'    Liability 
Act,  see  Master  and  Servant,  65. 

WRITINO. 

Parol  evidence  to  vary,  see  Evidence,  114- 

131. 
Notice  to  be  written,  see  Notice,  1. 


WRIT    OF    CERTIORAEL 
Bet  Certiorari. 

WRIT  OF  ENTRY. 
6ee  Entry,  Writ  of. 

WRIT  OF  ERROR. 
See  Appeal  and  Error. 
WVit  as  general  appearance,  see  Appear- 
ances, 5. 

WRIT  OF  HABEAS  CORPUS. 
See  Habeas  Corpus. 

WRIT  OF  MANDAMUS. 
See  Mandamus. 

WRIT  OF  PROHIBITION. 

See  ProMbitlon. 

WRIT  OF  QUO  WARRANTO. 
See  Quo  Warranto. 

WRITS. 

No  action  on  dissolution  of,  see  MaUcious 
Prosecution,  3. 


WRONa& 


See  Torts. 


% 


INDEX  TO  THE  NOTES 


IN 


ANNOTATED  CASES 

(American  and  English) 

Volumes  1916  C  to  1918  B 


BANCROFT-WHITNEY  COMPANY  EDWARD  THOMPSON  COMPANY 

SAN  FRANCISCO  NOETHPOKT,  L.  I.,  N.  Y. 

1918  1918 


INDEX  TO  THE  NOTES 

IN 

ANN.  CAS. 

1916C-1918B 


:■■-:)  s. 


'  ABANDONMENT. 

See  Alienation  of  Affections;  Appeal  and 
Error;  Eminent  Domain;  Homestead; 
Husband  and  Wife. 


ABATEMENT. 
See  Actions;  Nuisances. 

ABBREVIATIONS. 
See  Names. 

ABOBTION. 

Woman  upon  whom  abortion  is  committed 
as  accomplice,  1916C-629. 

ABSENCE. 

See  Death;  Homestead. 

ABUSIVE  LANGUAGE. 
See  Breach  of  Peace;  Disorderly  Conduct. 

ABUTTING   OWNEES. 
See  Streets  and  Highways. 

AOCELEEATION    OF    INDEBTEDNESS. 
See  Usury. 

ACCEPTANCE. 
See  Bills  and  Notes;   Contracts;  Corpora- 
tions; Dedication. 

ACCESSION. 

Mortgage  on  animals  as  including  in- 
crease, 1917C-1173. 

Eight  of  chattel  mortgagee  or  conditional 
vendor  to  accession  to  propert7  mort- 
gaged or  sold,  1917C-1170. 

ACCESSORIES. 
See  rixtures. 


ACCIDENT. 

Disease  as  an  accident,  1918B-297. 
See  also  Accident  Insurance;  Confusion  of 
Goods;  Workmen's  Compensation  Acts. 

ACCIDENT  INSURANCE. 

Construction  of  policy;  construction  of 
clause  in  accident  insurance  policy  ex- 
cepting death  caused  by  disease, 
1917C-463. 

—construction  of  hernia  clause  in  accident 
insurance  policy,  1918A-710. 

— construction  of  provision  in  accident  in- 
surance policy  relating  to  injury 
"caused  by  burning  of  buUding"  or 
similar  phrase,  1917C-410. 

— construction  of  sunstroke  clause  in  acci- 
dent insurance  policy,  I918A-523. 

— disease  as  accident  under  accident  in- 
surance policy,  1918B-298. 

— ^intentional  exertion  as  "accidental 
means"  of  injury  within  accident  in- 
surance policy,  1917A-88. 

— right  to  recover  under  accident  insur- 
ance policy  for  injuries  received  while 
fighting,  1916C-579. 

— what  constitutes  "loss"  of  eyesight 
within  accident  insurance  policy, 
1918A-531. 

— what  constitutes  loss  or  severance  of 
limb  or  member  within  meaning  of 
accident  insurance  policy,  1917B-1008. 

Standard  policy:  construction  of  statute 
requiring  stand^d  accident  insurance 
policy,  1916I>-670. 

Waiver  of  conditions:  waiver  of  provision 
in  accident  insurance  policy  limiting 
time  to  bring  suit  thereon,  1916C-449. 

— ^waiver  of  provision  in  accident  insur- 
ance policy  requiring  notice  of  injury 
or  death  to  be  given  within  certain 
time,  1917A-114. 

Workmen's  compensation  acts:  receipt  of 
insurance  as  affecting  right  to  com- 
pensation under  workmen's  compensa- 
tion act,  1918B-635. 


(1) 


DIGEST. 

1916C— 1918B. 


ACCOMPLICES. 

Confession  of  defendant  as  sufficient  cor- 
roboration of  accomplice,  1916C-570. 

Woman  upon  whom  abortion  is  committed 
as  accomplice,  1916C-629. 

ACCORD  AND  SATISFACTION. 

Part  payment  with  receipt  in  full  as  satis- 
faction of  liquidated  and  undisputed 
debt,  1917A-130. 

ACCOUNTANTS. 
See  Expert  Accountants. 

ACCOUNTS. 

Lien  of  attorney  on  account  in  his  posses- 
sion  connected  with  litigation,  1917I>- 
149. 
See  also  Guardians;  Evidence. 

ACKNOWLEDGMENTS. 

Evidence  requisite  to  impeach  acknowledg- 
ment, 1917A-368. 

Stockholder  or  officer  of  corporation  in- 
terested in  instrument  as  disqualified 
to  take  acknowledgment  thereof, 
1916D-705. 


ACTIONS — Continued. 

Merger  or  suspension  of  civil  action  predi- 
cated on  commission  of  felony,  1916C— 
847. 

Moot  case:  what  constitutes  moot  case, 
1918B-558. 

Nature:  nature  of  action  for  penalty  for 
violation  of  intoxicating  liquor  stat- 
ute, 1916E-870. 

— ^nature  of  action  or  proceeding  for  vio- 
lation of  municipal  ordinance,  1917A— 
330. 

See  also  Agency;  Amendment;  Assault; 
Assignments;  Attachment;  Attorneys; 
Death  by  Wrongful  Act;  Divorce; 
Eminent  Domain;  Executors  and  Ad- 
ministrators; Foreign  Corporations; 
Fraudulent  Sales  and  Conveyances; 
Jury;  Libel  and  Slander;'  Lost  In- 
struments; Malicious  Prosecution; 
National  Banks;  Parties  to  Actions; 
Ees  Judicata;  Subrogation;  Tele- 
graphs and  Telephones;  Witnesses. 

ACT  OF  GOD.     • 

Liability  of  carrier  for  damages  caused  by 
act  of  God  co-operating  with  its  own 
negligence,  1918A-581. 

Loss  resulting  from  rise  or  fall  of  tide  as 
due  to  act  of  God,  1917A-450. 


ACQUIESCENCE. 

See  Nuisances. 


ADDITIONAL  INSTRUCTIONS. 
See  Instructions. 


ACQXnTTAL. 
See  Malicious  Prosecution. 

ACTIONS. 

Abatement  and  revival:  dissolution  of  cor- 
poration as  abating  action  against  it 
to  recover  penalty  or  forfeiture, 
1917A-1180. 

—survival  of  action  for  negUgence  of  at- 
torney, 1917B-48. 

— survival  of  right  of  action  for  con- 
spiracy to  restrain  trade,  1916C-726. 

—validity  of  statute  providing  for  sur- 
vival of  action  for  personal  injuries 
after  death  of  person  injured,  1917E- 
1171. 

Alien  enemies:  right  of  alien  enemy  to  de- 
fend action,  1917C-211. 

— right  of  alien  enemy  to  sue  or  continue 
suit,  1917C-204. 

— right  to  sue  alien  enemy,  1917C-211. 

Assignability  of  right  of  action  for  pen- 
alty, 1916D-893. 

Form  of  action  for  negligence  or  breach 
of  duty  by  attorney,   1917B^45. 

Injunctions:  power  of  court  to  enjoin  pro- 
ceedings in  another  state  or  country, 
1918B-1150. 


ADDITIONS. 
See  Cliattel  Mortgages. 

ADDRESS. 
See  Municipal  Corporations. 

ADHERENCE   TO   ENEMIES. 
See  Treason. 

ADJOINING  LANDOWNERS. 

Liability  of  adjoining  landowner  for  use 
of  party  wall  in  absence  of  agreement 
to  contribute,  1916E-116o. 

Liability  of  landowner  excavating  on  his 
own  premises  for  resulting  injury  to 
adjoining  building,  1917A-352. 

Eight  of  landowner  to  sink  well  and  in- 
tercept subterranean  waters  supplying 
neighbor's  well   or  spring,   I917C-106. 

Eights  of  adjoining  landowners  with  re- 
spect to  tree  on  or  overhangfing 
boundary  line,  1918B-1157. 

Termination  of  right  to  maintenance  of 
party    wall,    1916C-374. 

ADMINISTRATORS. 
See  Executors  and  Administrators. 


INDEX  TO  THE  NOTES. 


ADMISSIONS  AND  DECLARATIONS. 

Accused  person:  admissibility  of  prior  ex- 
culpatory statement  by  accused  to 
contradict  evidence  given  by  him  or 
on  his  behalf  at  trial,  1917D-1101. 

Deeds:  admissibility  of  declaration  of 
grantor  after  conveyance  as  to  deliv- 
ery of  deed,  1916E-713. 

Infants:  declarations  of  infant  at  time  of 
assault  or  homicide  as  part  of  res 
gestae,  1916C-1187. 

Master  and  servant:  admissibility  in  pro- 
ceeding under  workmen's  compensa- 
tion act  of  statement  by  injured 
employee  respecting  cause  of  injury, 
1916C-775. 

Pleading:  admission  from  inconsistent  de- 
fenses in  pleading,  1917C-740. 

Production  of  documents:  effect  on  right 
to  production  of  document  of  admis- 
sion by  opposing  party  as  to  its  con- 
tents, 1916D-698. 

Wills:  admissibility  of  declaration  of  leg- 
atee or  devisee  as  to  mental  capacity 
of  testator,   1918A-1066. 

— admissibility  of  declarations  of  testator 
not  made  at  time  of  execution  of  will, 
on      question      of      undue      influence, 
1917D-717. 
See  also  Dying  Declarations. 

ADMISSION  TO  BAR. 
See  Attorneys. 


ADOPTED  STATUTES. 
See  Statutes. 

ADOPTION. 

Adopted     child     as     "dependent"     within 

workmen's   compensation   act,   1918B— 

755. 
Eight  of  inheritance  from  adopted  child  as 

between  natural  parents  and  adoptive 

parents   or   their   descendants,   1916C- 

757. 
Succession  to  estate  inherited  from  foster 

parent    bv    adopted    child    who    dies 

without  issue,  1916C-762. 
Validity     of    contract    or    proceeding    of 

adoption  not  made  in  conformity  with 

statute,  1916D-1110. 

ADOPTION  OF  COMMON  LAW. 
See  Common  Law. 

ADULTERY. 

Connivance     or     procurement     by     other 

spouse  as  defense  to  prosecution  for 

adultery,  1916E^-741. 
Imputing    adultery    to    man    as    slander, 

1917A-1044. 
Persons   capable    of   committing   crime   of 

adultery,  1917A-703. 


ADULTERY— Continued. 

Separation  agreement  as  bar  to  action  for 

divorce  on  ground  of  adultery,  1916C- 

349. 

ADVANCEMENTS. 
See  Executors  and  Administrators. 

ADVERSE  POSSESSION. 

Acquisition  by  adverse  possession  of  title 
to  property  in  hands  of  bailee,  1917A- 
1163. 

Acquisition  of  title  to  land  within  right  of 
way  of  railroad  by  adverse  possession 
or  prescription,   1916D-1186. 

Necessity  that  tenant  surrender  possession 
before  asserting  title  adverse  to  land- 
lord, 1917D-548. 

What  constitutes  notice  to  railroad  com- 
pany of  adverse  possession  of  its  prop- 
erty, 1917A-1274. 

See  also  Prescription. 

ADVERTISEMENTS. 
See  Judicial  Sales. 

ADVERTISING. 

Mnnicipal    regulation    of    billboards    and 

signs,    19160-491. 
Personal  liability  of  attorney  for  expense 

of  advertising,  1917B-525. 
Bight  of  tenant  of  building  to  use  of  front 

wall  for  advertising  purposes,  1916C- 

482. 
Liability  of  attorney  for  erroneous  advice 

given  to  client,  1917B-19. 
See   also  Judgments;   Malicious   Proseca* 
tion. 

ADVISORY  OPINIONS. 
See  Courts. 

AFFIANCED  PERSONS. 
See  Undue  Influence. 

AFFIDAVITS. 

Proof  bv  parol  of  contents  of  lost  or  de- 
stroyed affidavit,  1916D-253. 

Validity   of   affidavit  made  by  telephone, 
1917B-903. 
See  also  Searches  and  Seizures. 

AFFIRMATIVE  RELIEF. 
See  Quieting  Title. 

AGE. 

Competencv  of  witness  to  testify  as  to  his 

own   age,   1918B-427. 
Competency  of  witness  to  testify  to  age 

of  another  person,  1918A-262. 


DIGEST. 

1916C— 1918B. 


AGED  PEESONS. 
See  Guardians. 

AGENCY. 

Alien  enemies:  authority  of  agent  becom- 
ing alien  enemy,  1917C-197. 

Application  of  payments:  right  of  agent 
to  control  application  of  payment, 
1917C-584. 

Automobile  agents:  nature  and  construc- 
tion of  automobile  sales  agency  con- 
tracts, 1917E-568. 

Compensation:  amount  of  compensation  of 
person  other  than  real  estate  broker 
for  effecting  gale  of  land  where  con- 
tract fails  to  fix  compensation,  1916EI- 
306. 

— ^illegal  contracts  as  to  compensation  by 
agents  of  vendor  or  vendee,  1917A- 
511. 

— recovery  of  profits  as  damages  for 
breach  of  contract  to  sell  on  commis- 
sion, 1917B-1194. 

Contracts:  act  of  agent  in  entering  into 
usurious  contract  as  binding  principal, 
1916C-327. 

— ^implied  authority  of  officers,  agents,  or 
servants  to  contract  for  medical,  sur- 
gical, or  other  attendance  or  supplies 
for  sick  or  injured  persons,  1918A- 
791. 

— ^power  of  agent  to  bind  principal  for 
traveling  expenses,   1917C-840. 

— right  of  agent  of  undisclosed  principal 
to  sue  on  contract  made  in  his  own 
name,  1917A-454. 

— rights  as  against  carrier  of  undisclosed 
principal  of  person  shipping  goods  or 
live  stock,  1918A-826. 

— warranty  to  agent  as  inuring  to  benefit 
of  undisclosed  principal,  1918B-130. 

Del  credere  agents:  nature  and  extent  of 
liability  of  del  credere  agent  to  prin- 
cipal, 1916C-1091. 

Executors  de  son  tort:  when  agent  is 
chargeable  as  executor  de  son  tort, 
1917E-3. 

Insurance  agents:  liability  of  agent  to  in- 
surance company  for  failure  to  collect 
premium,  1916D-651. 

— ^liability  of  agent  to  insurance  company 
for  issuing  policy  in  violation  of  in- 
structions, 1917B-493. 

— liability  of  insurance  agent  to  owner  of 
property  for  failure  to  procure  insur- 
ance, 1918B-1037. 

— right  of  fire  insurance  agent  to  insure 
his  own  property,  1916D-1278. 

— validity  of  insurance  policy  issued  by 
agent  on  property  of  corporation  of 
which  agent  is  stockholder,  1916D- 
1275. 

Kevocation  of  agency  by  death  of  princi- 
pal, 1&17E-380. 

8ee  also  Brokers;  Foreign  Corporations; 
Mercantile  Agencies;  Partnership. 


AGEICUIiTUEE, 


Diseased  trees,  etc.:  validity  of  statute 
providing  for  destruction  of  diseased 
fruit  trees,  fruit  or  vegetables,  1917E- 
220. 

Farm  loans:  validity  of  farm  loan  statute, 
1917E-216. 

Seed:  express  or  implied  warranty  on  sale 
of  seed,  1918B-72. 

— ^validity  of  statute  regulating  sale  of 
seed,  1917E-167. 

Weeds:  duty  of  owner  to  destroy  noxious 
weeds  on  his  land,   1917A-183. 

"Workmen's  compensation  acts:  agricul- 
tural employment  as  within  purview 
of  workmen's  compensation  act, 
1917D-12. 

AI.COHOL. 

See  Intoxicating  Uquors. 

ALIENATION  OF  AFFECTIONS. 

Action  by  wife  for  alienation  of  affections, 
1916C-748. 

Actual  separation  or  abandonment  as  pre- 
requisite to  action  for  alienation  of 
affections,  1918A-647. 

Admissibility  in  action  for  alienation  of 
affections  of  evidence  of  acts  com- 
mitted after  separation  of  spouses, 
1917D-484. 

Liability  of  parent  or  guardian  for  aliena- 
tion of  affections,  1917E-1017. 

Liability  of  relative  other  than  parent  or 
guardian  for  alienation  of  affections, 
1917E-1027. 


ALIENATION  OF  REALTY. 
See  Deeds;  Marshaling  Assets. 

ALIENATION  OF  STOCK. 
See  Corporations. 

ALIENS. 

Alien  enemies:  expatriated  person  as  alien 
enemy,  1916D-306. 

— rights  and  liabilities  of  alien  enemies, 
1917C-189. 

Compulsory  military  service:  alien  as  sub- 
ject to  compulsory  military  service, 
1917C-814. 

Discrimination:  validity  of  statute  dis- 
criminating against  aliens  in  employ- 
ment of  laborers,  1917B-287. 

Immigration:  classes  of  aliens  excluded  by 
immigration  act,  19170-235. 

— immigrant  prostitution  or  immorality, 
1917C-250. 

— soliciting  or  importing  alien  contract 
labor  as  crime,  19170-261. 

Naturalization:  grounds  for  revocation  of 
naturalization,  19170-45, 


INDEX  TO  THE  NOTES. 


ALIMONY. 

Allowance     of     alimony     in     gross     sum, 

1917A-248. 
Life    of    decree    for    permanent    alimony, 

1917A-582. 
Validity  of  conveyance  by  husband  with 

intent    to    deprive    wife    of    alimony, 

1918B-936, 

ALL. 

Meaning  of  "all"  as  used  in  prohibitory  or 
regulatory  statute,  1917E-39. 

Meaning  of  "all"  as  used  in  will  in  con- 
nection with  "rest,"  "residue,"  or  "re- 
mainder,"   1917E-75. 

Meaning  of  "all"  as  used  with  respect  to 
minerals,   1917E-70. 

Meaning  of  "all  damages,"  1917E-82. 

Meaning  of  "all  matters,"  1917E-87. 

Meaning  of  "all  property"  as  used  in  in- 
strument, statute,  etc.,  other  than  will, 
1917E-58. 

ALLOWANCE. 

See  Executors  and  Administrators;  Work- 

men's  Compensation  Acts. 


ALL  REVENUE. 

Legal   meaning  of   "all   revenue,"   1918B- 
206. 


ALTERATION  OF  CHARTER. 
See  Corporations. 

ALTERATION  OF  INSTRUMENTS. 

Addition  of  words  "or  bearer"  or  words 
"or  order"  or  substitution  of  one  ex- 
pression for  other  as  material  altera- 
tion of  instrument,  1917C-1177. 

Effect  of  detaching  from  promissory  note 
contract  or  memorandum  attached 
thereto,   1917E-603. 

Implied  authority  to  fill  in  blanks  so  as  to 
complete  signed  instrument,  1917E- 
518. 

Ratification  or  waiver  of  alteration  of  in- 
strument, 1917D-335. 

AMBASSADORS  AND  CONSULS. 

Rights  and  duties  of  consul  with  respect 
to  decedent's  estate,  1916D-237. 

AMENDMENTS. 

Attachment  bond:  right  to  amend  attach- 
ment bond,  1917D-117. 

Beneficial  associations:  validity  of  amend- 
ments to  by-laws  of  fraternal  benefit 
societies  as  applied  to  existing  mem- 
bers, 1917B-S14. 

Constitutions:  judicial  notice  of  proceed- 
ings for  adoption  of  amendment  to 
constitution,  1917D-1031. 

Judgments:  power  of  court  to  amend  or 
set  aside  judgment  at  subsequent  term 
where    proceeding    therefor    is    com- 


AMENDMENTS— Continued. 

menced   during   term   at  which   judg- 
ment is  rendered,  1916D-1260. 

Motion  for  new  trial:  amendment  of  mo- 
tion for  new  trial,  1917D-104. 

Parties:  right  to  amend  action  by  adding 
new  parties  plaintiff,   1916C-591. 

Pleading:  amendment  of  pleading  where 
plaintiff  in  action  is  nonexistent, 
1917D-1197. 

— ^right  of  plaintiff  to  amend  so  as  to 
change  capacity  in  which  he  sues  from 
representative  to  individual  one  or 
vice  versa,  1916C-401. 

— service  of  new  answer  to  amended  bill 
or  complaint,  1918A-205. 

Statutes:  effect  of  partial  invalidity  of 
amending  statute,  1916D-21. 

— effect  of  repeal  or  amendment  of  re- 
pealing statute  as  reviving  repealed 
statute,  1918B-281. 

AMOUNT  IN  CONTROVERSY. 
See  Appeal  and  Error. 

AMUSEMENTS. 
See  Theaters  and  Amusements. 

ANCESTORS. 
See  Insanity. 

ANCIENT  MAPS. 
See  Mai>s. 

ANCIENT  SURVEYS. 
See  Surveys. 

AND 

Construction  of  "and"  as  "or,"  and  vice 
versa,  in  construing  will,  1917C-306. 

ANIMALS. 

Bees:  law  of  bees,  1917B-983. 

Cats:  legal  status  of  cat,  1917A-391. 

Cattle:  validity  of  ordinance  regulating 
keeping  of  cattle  within  municipal 
limits,  1917E-929. 

Diseased  animals:  validity  of  statute  pro- 
viding for  destruction  of  diseased  ani- 
mals with  compensation  to  owner, 
1917D-89. 

Increase:  mortgage  on  animals  as  includ- 
ing increase,   1917C-1173. 

Injuries  by  animals:  liability  of  owner  for 
injuries     caused    by    runaway    horse,' 
I916E-1114. 

Injuries  to  animals:  liability  as  for  negli- 
gence of  owner  of  uninclosed  land  for 
injury  to  domestic  animal  straying 
thereon,  1917A-288. 

— liability  of  railroad  for  frightening 
horse  by  operation  of  handcar,  19I6E- 
32L 


6. 


DIGEST. 

19160— 1918B. 


ANIMAIiS — Continued. 

Injuries  to  animals:  rights  and  duties  of 
person  driving  automobile  in  highway 
with  respect  to  horse  drawing  vehicle, 
1916E-662. 

Insurance:  animal  insurance,  1917D-45. 

— fire  insurance  policy  on  live  stock  in  des- 
ignated location  as  covering  animals 
temporarily  elsewhere,  1916EJ-398. 

Master  and  servant:  duty  and  liability  of 
master  to  servant  with  respect  to  ani- 
mal furnished  by  him  to  servant, 
1917A-309. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  animals,  1916D-35. 

Wild  animals:  right  of  property  in  wild 
animal,  1917B-949. 

See  also  Fish  and  pame. 

ANNULMENT. 
See  Compromise  and  Settlement. 

ANONYMOUS  LETTERS. 

Sending  anonymous  letter  as  criminal 
offense,  1917C-699. 

ANSWER. 
See  Pleading. 

ANTAGONISM. 
See  Trusts  and  Trustees. 

ANTECEDENT   DEBT. 
See  Bills  and  Notes. 

ANTENUPTIAL  AGREEMENTS. 

Effect  of  partial  invalidity  of  antenuptial 
contract,  1918B-925. 

Effect  on  antenuptial  agreement  for  re- 
lease of  dower  or  like  interest  of  fail- 
ure of  consideration  for  agreement, 
1918A-1168. 

ANTICIPATORY     BREACH     OF     CON- 
TRACT. 

See  Contracts. 

ANTI-NEPOTISM. 
See  Public  Officers. 

ANTI-TRUST  LAWS. 
See  Monopolies. 
* 
ANY. 

Legal  meaning  of  "any,"  1916E-2. 

APARTMENT  HOUSES. 

Legal  status  of  owner  of  apartment  house, 
1917A-256. 

APPARATUS. 
See  Electricity. 


APPEAL  AND  ERROR. 


Amount  in  controversy  for  purpose  of  ap- 
peal where  defendant  has  filed  coun- 
terclaim, 1917D-99. 

Appealable  judgments:  appealability  of 
order  transferring  cause  from  state  to 
federal  court,  1916D-1049, 

— finality  of  order  in  habeas  corpus  pro- 
ceedings, 1916D-506. 

Attachment  or  garnishment:  appeal  in 
principal  action  as  bringing  attach- 
ment or  garnishment  proceeding  up 
for  review,  1918A-516. 

Attorneys:  liability  of  attorney  to  client 
for  failure  to  institute  proceedings  for 
review,  1917B-31. 

— review  of  disbarment  proceedings  by 
appeal  or  writ  of  error,  1918B-837. 

Bond:  effect  of  abandonment  or  dismissal 
of  appeal  on  liability  of  sureties  on 
appeal  bond,  1916C-1226. 

Costs:  liability  of  landowner  for  costs  on 
appeal  in  eminent  domain  proceedings, 
1917E-262. 

Exceptions:  necessity  of  exception  to 
direction  of  verdict,  1917A-8't9. 

Excessive  sentence:  right  of  prisoner  who 
has  received  excessive  sentence  to  bo 
discharged  on  appeal,  1916I>-36S'. 

Holidays:  validity  of  act  in  connection 
with  appeal  or  writ  of  error  performed 
on  holiday,  1916E-853. 

Intoxicating  liquors:  appeal  from  judg- 
ment in  action  for  penalty  for  viola- 
tion of  intoxicating  liquor  statute, 
1916E-873. 

—right  to  and  effect  of  judicial  review  of 
revocation  of  liquor  license,  1917A- 
1024. 

Jurisdiction  and  power  of  appellate  court: 
jurisdiction  of  appellate  court  after 
remand,  1917A-284. 

— meaning  of  "revenue  laws"  in  statute  re- 
lating to  appellate  jurisdiction,  1918B- 
214. 

— right  of  appellate  court,  upon  granting 
new  trial,  to  limit  issues  to  be  tried 
by  jury,  1917E-888. 

Juvenile  courts:  appeal  from  judgment  of 
juvenile  court,  1916E-1017. 

Eecord:  lien  of  attorney  on  printed  record 
on  appeal  in  his  possession  connected 
with  litigation,  1917D-149. 

Bight  to  appeal:  payment  of  fine  in  crim- 
inal case  as  waiver  of  right  to  appeal, 
1916C-619. 

—power  of  executor  or  administrator  with 
will  annexed  to  appeal  from  judgment 
refusing  probate,  1917C-1079. 

— right  of  citizens  or  taxpayers  to  appeal 
as  such  from  judgment  in  proceeding 
to  which  they  are  not  parties,  1918A- 
365. 

— right  of  municipality  to  appeal  from 
judgment  in  prosecution  for  violation 
of  ordinance,  1917D-986. 

Statutes:  effect  of  partial  invalidity  of 
Statute  relating  to  appeals,  1916D-79. 


INDEX  TO  THE  NOTES. 


APPEAL  AND  ERROR— Continued. 

Time  for  appeal:  exclusion  or  inclusion  of 
Sunday  or  holiday  in  computation  of 
time  for  taking  or  perfecting  appeal, 
1917E-930. 

Trial  without  jury:  effect  of  admission  of 
incompetent  evidence  in  trial  before 
court  without  jury,  1917C-660. 

Workmen's   compensation   acts:   review  of 
facts  on  appeal  under  workmen's  com- 
pensation act,  1918B-647. 
See  also  Judgments;  Rehearing. 

APPEARANCE. 

Exclusion  or  inclusion  of  Sunday  or  holi- 

da}'  in  computing  time  for  appearance, 

1917E'-935. 
Moving  to   set  aside   order  in   cause   for 

want    of    jurisdiction    as     general   or 

special  appearance,  19i7B-454. 
Voluntary    appearance     as     vesting    court 

with    jurisdiction    of    corporation    in 

criminal  case,  1916E-1290. 
Waiver  of  special  appearance  by  pleading 

to  merits,  1916E-1270. 

APPLIANCES. 

See  Carriers  of  Passengers. 

APPLICATION  FOR  POLICY. 
See  Insurance. 

APPLICATION  OF  PAYMENT. 
See  Payment. 

APPLICATION  TO  COURT. 

Validity  of  application  to  court  made  by 
telephone,  1917B-903. 

APPOINTMENT  TO  OFFICE. 
See  Libel  and  Slander. 


ARGUMENT  OF  COUNSEL. 

Comment  by  prosecutor  on  failure  of  ac- 
cused to  testify,  1917D-277. 

Propriety  of  argument  of  counsel  in  per- 
sonal injury  case  asking  jury  what 
they  would  take  for  similar  injury, 
I917A-1099. 

Propriety  of  argument  of  counsel  referring 
to  poverty  or  wealth  of  party  to  ac- 
tion, 1917B-312. 

Restricting  argument  of  counsel  in  crim- 
inal action  as  constituting  reversible 
error,  1917A-718. 

See  also  Misconduct  of  Counsel. 

ARID  LAinSS. 
See  Reclamation. 

ARM. 

"What  constitutes  "loss"  of  arm  within 
workmen's   compensation  act,   1918A- 


536. 


ARMY  Ain>  NAVY. 


APPREHENDED     INJURY 
NESS. 
See  Pajonent. 


TO     BUSI- 


Compulsory  military  service,  1917C-812. 

Elections:  right  to  vote  of  soldier  or  sailor 
in  actual  service,  I917B-485. 

Infants:  right  of  infant  unlawfully  en- 
listed to  release  from  detention  of 
military  or  naval  authorities,  1917C- 
778. 

Liability:  civil  or  criminal  liability  of 
soldier  for  injury  to  person  or  prop- 
erty, 1917C-8. 

Pensions:  effect  with  respect  to  pension  of 
pensioner  becoming  inmate  of  sol- 
dier's home,  1916C-854. 

Pledge  of  property:  liability  of  civilian  for 
purchasing  or  receiving  in  pledge  pub- 
lic property  from  soldier  or  sailor, 
1918B-523. 

"Workmen's  compensation  acts:  employment 
in  navy  yard  as  within  purview  of 
workmen's  compensation  act,  1917D- 
26. 

See  also  Militia. 


APPROPRIATIONS. 

Effect  of  partial  invalidity  of  appropria* 

tion  statute,  1916D-2.5. 
Eight  to  use  public  funds  for  purpose  other 

than     that   of     appropriation,    I917B- 

864. 

ARBITRATION  AND  AWARD. 

Power  of  arbitrators  to   determine  exist- 
ence of  usage  or  custom,  1916D-360. 

AREA  WAYS. 
See  Streets  and  Highways. 

ARGUMENT. 
See  Briefs. 


ARRAIGNMENT. 
See  Criminal  Law. 

ARREST. 

Eight  of  private  person  to  arrest  another 
for  violation  of  municipal  ordinance 
committed  in  his  presence,  1917A-599. 

Eight  to  arrest  person  without  warrant  on 
ground  of  insanity,   1917D-536. 
See  also  False  Imprisonment. 

ARREST  OF  JUDGMENT. 

Exclusion  or  inclusion  of  Sunday  or  holi- 
day in  computation  of  time  for  motion 
in  arrest  of  judgment,  1917E-939. 


DIGEST. 

1916C— 1918B. 


ABSENALS. 


Employment  in  arsenal  as  within  pur- 
view of  workmen's  compensation  act, 
1917I>-14. 

ABT. 

Measure  of  damages  for  loss  or  destruction 
of  works  of  art  having  no  market 
value,  1917B-579. 

ASHES. 

Liability  of  municipality  for  tort  com- 
mitted in  removal  of  ashes,  19160- 
242. 

ASSAXTLT. 

Damages:  provocation  in  mitigation  of 
damages  for  assault:  1917D-582. 

Evidence:  declarations  of  infant  at  time 
of  assault  as  part  of  res  gestae,  1916C- 
1187. 

Firearms:  discharging  firearm  to  frighten 
person  as  assault,  1917D-617. 

Justification:  defense  of  property  as  jus- 
tification for  assault,  1917D-291. 

— trespass  as  justification  of  assault  and 
battery,  1917D-307, 

Limitation  of  actions:  what  is  civil  action 
for  assault  within  statutory  limita- 
tion applicable  thereto,  1917A-118. 

Negligence:  liability  as  for  negligence  of 
person  who  injures  bystander  while 
acting  in  self-defense,  1916C-1150. 

Pleading:  inconsistent  defenses  in  action 
for  assault,  1917C-737. 

Punishment:  what  constitutes  cruel  and 
unusual  punishment  for  assault, 
1918B-398. 

Retreat:  right  of  person  assaulted  on  his 
own  premises  to  repel  attack  without 
retreating,  1916C-918. 

Sheriffs  and  constables:  liability  of  sure- 
ties on  bond  of  sheriff  or  constable  for 
assault  committed  by  officer,  1916I>- 
923. 

See  also  Bape;  Bobbery. 

ASSEBTION  OF  CLAIM. 
See  Libel  and  Slander. 

ASSESSMENT. 
See  Taxation. 


ASSESSMENTS. 

See  Beneficial  Associations. 

ASSETS. 

See  Marshaling  Assets. 

ASSIGNMENTS. 

Contracts  of  sale:  right  of  assignee  of 
contract  for  purchase  of  land  to  sue 
for  rescission  thereof,  1917E-845, 


ASSIGNMENTS— Continued. 

Debts:  validity  of  statute  forbidding  as- 
signment of  debt  or  claim  for  collec- 
tion in  another  jurisdiction,  1916D- 
870. 

Expectancy:  validity  of  transfer  of  ex- 
pectancy in  estate  made  by  heir  or 
beneficiary  to  stranger,  1916'E-1241. 

Judgments:  effect  on  judgment  lien  of  as- 
signment of  judgment  or  execution 
issued  to  or  for  benefit  of  judgment 
debtor,  1917C-557. 

Leases:  effect  of  assignment  of  lease  or 
sublease  by  tenant  on  liability  for 
rent,  1916E-788. 

Life  insurance:  validity  and  effect  of  as- 
signment by  wife  of  insurance  in  her 
favor  on  life  of  husband,  1917B-302. 

Mechanics'  liens:  assignor  of  mechanic's 
lien  as  necessary  party  to  action  by 
assignee  to  foreclose  lien,  1918B-5. 

Penalties:  assignability  of  right  of  action 
for  penalty,  1916D-893. 

Trademarks  and  trade  names:  assignability 
of  trademarks  and  trade  names, 
1917A-260. 

ASSIGNMENTS       FOB       BENEFIT     OF 
CBEDITORS. 

Liability  of  assignee  for  benefit  of  cred- 
itors for  rent,  1916E-815. 

Eight  of  defendant  who  has  made  assign- 
ment for  benefit  of  creditors  to  move 
to  dissolve  attachment  of  chattels, 
1916D-479. 

ASSOCIATE  COUNSEL. 

Personal  liability  of  attorney  for  fee  of 
associate  counsel,  1917B-524. 


ASSOCIATIONS. 

See  Building  and  Loan  Associations; 
Chambers  of  Commerce;  Societies  and 
Clubs. 

ASYLUMS. 
See  Hospitals  and  Asylums. 


ATTACHMENT. 

Appeal  in  principal  action  as  bringing  at- 
tachment or  garnishment  proceeding 
up  for  review,  1918A-516. 

Attorneys:  liability  of  attorney  to  client 
for  negligent  act  with  respect  to  at- 
tachment, 1917B-26. 

Bond:  right  to  amend  attachment  bond, 
1917D-117. 

Chattel  mortgages:  waiver  of  chattel  mort- 
gage lien  by  attachment,  1916C-408. 

Dissolution:  dissolution  of  attachment  by 
death  of  defendant,  1917A-149. 

— ^right  of  defendant  to  move  to  dissolve 
attachment,  1916D-476. 

Equitable  interest  in  real  property  as  sub- 
ject to  attachment,  1916C-7S6. 


INDEX  TO  THE  NOTES. 


ATTACHMENT— Continued. 

Foreign  corporations:  right  to  issue  at- 
tachment against  foreign  corporation 
on  ground  of  nonresidence,  1916E-362. 

Junior  attachments:  rights  of  parties  on 
sale  under  junior  attachment,  1917B- 
710. 

Lost  writ:  proof  by  parol  of  contents  of 
lost  or  destroyed  writ  of  attachment, 
1916D-252. 

Stock:    rights    of   unregistered    transferee 
as   against    attachment   or    execution 
levied  on  stock,  1917A-428. 
See  also  Exemptions. 

ATTEMPT  TO  COMMIT  CBIME. 
See  False  Pretenses;  Bobbery. 

ATTEMPT  TO  SAVE  UFE. 
See  Contributory  NegUgence. 

ATTESTATION. 
See  Deeds;  Mortgages;  Wills. 

ATTORNEYS. 

Admission  to  bar:  validity  of  rule  regu- 
lating admission  to  bar,  1917A-5o2. 

Advice  of  counsel  as  ground  for  opening 
default  judgment,  1917A-709. 

Appointment  of  counsel  to  represent  juve- 
nile offenders,  1916E-1016. 

Compensation:  interest  on  attorney's  fees, 
1916E-249. 

— liability  of  husband  for  counsel  fees  in- 
curred bv  wife  in  divorce  action, 
1917A-68&. 

— personal  liability  of  receiver  for  attor- 
ney's fees,  1917B-354. 

— power  of  executor  or  administrator  to 
employ  attorney  under  express  con- 
tract as  to  amount  of  compensation, 
1917B-2I6. 

— right  of  attorney  to  recover  for  services 
beneficial  to  person  not  employing 
him,  1917A-423. 

— right  to  recover  attorney's  fees  in  action 
on  replevin  or  detinue  bond,  1916D- 
874. 

— solicitation  of  business  by  attorney  as 
forfeiture  of  right  to  compensation 
therefor,  1917C-872. 

— validity  of  contract  for  compensation  of 
attorney  made  after  fiduciary  relation 
is  established,  1917A-531. 

— validity  of  stipulation  for  attorney's  fee 
in  promissory  note.  1917D-365. 

— validity  of  mechanic's  lien  law  provid- 
ing for  taxing  of  attorney's  fees, 
1916D-1044. 

Contempt:  practicing  law  without  license 
as  contempt  of  court,  1917B-1200. 

Disbarment:  criticism  of  decision  of  court 
as  ground  of  disbarment,  1918A-283. 

— disbarment  in  one  court  as  affecting 
status  of  attornev  in  another  court, 
1917D-572. 


ATTORNEYS— Continued. 

Disbarment:  misconduct  in  official  or  fidu- 
ciary capacity  other  than  that  of  at- 
torney as  ground  for  suspension  or 
disbarment,  1917B-232. 

— pardon  as  affecting  right  to  disbar 
attorney  for  criminal  misconduct, 
1917A-1226. 

— right  of  attorney  to  review  of  disbar- 
ment proceedings,  1918B-836. 

Dismissal  of  action:  right  of  client  to  dis- 
miss action  without  attorney's  con- 
sent, 1917A-570. 

Expenses:  personal  liability  of  attorney 
for  incidental  expenses  of  action, 
1917B-520. 

Lien:  extent  of  attorney's  lien  on  judg- 
ment,  1916E-387. 

— lien  of  attornev  aa  extending  to  action 
for  tort,  1917D-917. 

— lien  of  attorney  on  papers  in  his  posses- 
sion connected  with  litigation,  1917D- 
147. 

Limitation  of  actions:  validity  of  acknowl- 
edgment by  client  of  debt  to  attorney 
barred  by  limitations,  1916E-436. 

Negligence:  liability  of  attorney  for  negli- 
gence or  breach  of  duty,  1917B-3. 

Privileged  communications:  communica- 
tions between  attorney  and  client  in 
regard  to  testamentary  matters  as 
privileged,  1916C-1073. 

See  also  Appearance;  Argument  of  Coun- 
sel; Bills  and  Notes;  Champerty  and 
Maintenance;  Coroners;  Instructions; 
Judges;  Libel  and  Slander;  Miscon* 
duct  of  Counsel;  Power  of  Attorney; 
Prosecuting  Attorneys;  Schools. 

AUCTIONS. 

Price  obtained  for  personalty  at  public 
auction  as  evidence  of  its  value, 
1916D-800. 

Eight  of  action  by  highest  bidder  at  auc- 
tion sale  for  refusal  of  auctioneer  to 
knock  down  property  to  him,  1918A- 
850. 

AUTHENTICITY. 
See  Letters. 

AUTOMOBILES. 

Agents:  nature  and  construction  of  auto- 
mobile sales  agency  contracts,  1917E- 
568. 

Injuries  in  operation:  application  of  last 
clear  chance  doctrine  to  collision  be- 
tween automobile  and  street  car, 
1916E-515. 

— liability  of  automobile  owner  to  chauf- 
feur for  personal  injuries,  1916E-1090. 

— liability  of  owner  of  automobile  for  act 
of  driver  other  than  his  servant  or 
child,  1917E-228. 

— liability  of  owner  of  automobile  for  acts 
of  his  chauffeur  or  agent,  1917D-1001. 

— negligence  of  driver  as  imputable  to  oc- 
cupant of  automobile,  191GE-268. 


10 


DIGEST. 

1916a-1918B. 


AUTOMOBILES— Continued. 

Injuries  in  operation:  rights  and  duties  of 
persons  driving  automobiles  in  high- 
ways, 1916E-661. 

Insurance:  automobile  insurance,  1917I>- 
53. 

— insurance  against  liability  of  automobile 
owner,  1917D-61, 

License  number  on  motor  vehicle  as  evi- 
dence of  ownership  thereof,  1916I>- 
1163. 

Manufacturer's  liability:  liability  of  maker 
of  automobile  to  third  persons  for  de- 
fective construction  thereof,  1917E]- 
584. 

Begulation:  constitutionality  of  statutes 
and  ordinances  regulating  speed  of 
vehicles  in  streets  and  highways, 
1916E-1067. 

— construction  of  statute  requiring  person 
operating  automobile  to  give  name  and. 
address  to  person  injured,  1917E-588. 

— effect  of  partial  invalidity  of  statute  re- 
lating to  use  of  motor  vehicles  on  high- 
ways, 1916D-58. 

— municipal  regulation  of  automobiles  with 
respect  to  equipment,  use  of  streets,  or 
the  like,  1916E-1047. 

— validity  of  inclusion  or  exclusion  of  non- 
residents in  statute  regulating  use  of 
motor  vehicles,  1917E-324. 

Speed:  opinion  evidence  as  to  speed  of  au- 
tomobile, 1917D-613. 

Taxicab  proprietor  as  common  carrier, 
1916D-767. 

See  also  Motorcycles. 

AVAILABILITY  OF  FUNDS. 
See  Bills  and  Notes. 

AVEBAGE  WEEKLY  EARNINGS. 

Meaning  of  phrase  "average  weekly  earn- 
ings" in  workmen's  compensation  or 
similar  act,  1918B-640. 

Tips  as  part  of  average  weekly  earnings 
under  workmen's  compensation  act, 
1918B-1122. 

AVOIDANCE. 

See  Belease  and  Discharge. 

AWARD. 

See   Arbitration   and   Award;    Workmen's 
Compensation  Acts. 


BAILIFFS. 


Personal  liabilitv  of  attorney  for  fees  of 
bailiff,  1917B-520. 

BAILMENTS. 

Acquisition  by  adverse  possession  of  titje 
to  property  in  hands  of  bailee,  1917A- 
1163. 

See  also  Escrows. 

BALLOTS. 
See  Elections. 

BANANA  PEELS. 
.  See  Carriers  of  Passengers. 

BANKRUPTCY. 

Coporations:  criminal  liability  of  corpo- 
ration for  violation  of  bankruptcy 
law,  1916C-464. 

Discharge:  effect  of  discharge  in  bank- 
ruptcy upon  judgment  for  wilful  and 
malicious  injuries  to  person  or  prop- 
erty, 1917A-212. 

— ^false  statement  to  mercantile  agency  as 
ground  for  refusing  discharge  in  bank- 
ruptcy, 1916D-760. 

Evidence:  improbable  testimony  by  bank- 
rupt, 1917B-1096. 

Homestead:  effect  of  fraudulent  convey- 
ance of  homestead  by  bankrupt,  1917C— 
1004. 

Malicious  prosecution:  instituting  bank- 
ruptcy proceeding  as  ground  for  ac- 
tion for  malicious  prosecution,  191CD, 
909. 

Mechanics'  liens:  effect  of  bankruptcy  of 
owner  of  property  on  right  to  me- 
chanic's lien,  1917C-292. 

Public  officers:  salary  or  pension  of  public 
officer  or  employee  as  affected  bv  his 
bankruptcy,    1916D-629. 

Bent:  liability  of  assignee  or  trustee  in 
bankruptcy  for  rent,   1916E-816. 

Set-off:  set-off  by  bank  of  deposit  against 
debt  due  bank  by  depositor  as  void- 
able transfer  under  bankruptcy  law, 
1916C-990. 

— set-off  under  American  bankruptcy  acts, 
1916C-975. 

Statutes:  effect  of  partial  invalidity  of 
state  bankruptcy  law,  1916D-37. 


BAGGAGE. 

Duty  of  carrier  to  provide  safe  place  for 
delivery  of  baggage  to  passenger, 
1916C-1213. 

See  also  Innkeepers. 

BAIL. 

Allowance  of  interest  on  forfeited  bail 
bond,  1916C-114. 


BANKS. 

Checks:  liability  of  bank  to  true  holder 
or  pavee  of  cheek  paid  on  forged  in- 
dorsement, 1917D-10oS. 

— right  of  drawer  to  stop  payment  of  certi- 
fied check,  1917A-947. 

Collections:  duty  of  bank  receiving  paper 
for  collection  to  protest  same  and  give 
notice  thereof  in  absence  of  express 
instruction,  1918A-S92. 


INDEX  TO  THE  NOTES. 


11 


BANKS— Contintied. 

Deposits:  complete  execution  of  gift  inter 
vivos  by  deposit  of  money  in  bank  to 
credit  of  another,  1917E-367. 

—criminal  liability  of  officer  of  insol- 
vent bank  for  receiving  deposit 
therein  consisting  of  check  on  same 
bank,  1916E-592. 

— intent  as  element  of  offense  of  receiv- 
ing deposit  in  insolvent  bank,  1917B- 
1081. 

— lien  or  set-off  of  insolvent  bank  against 
deposit  for  debt  of  depositor  not  yet 
due,  19170-1205. 

—right  of  depositor  in  insolvent  bank  to 
set  off  deposit  against  debt  to  bank, 
1917C-1187. 

—set-off  by  bank  of  deposit  against  debt 
due  bank  by  depositor  as  voidable 
transfer  under  bankruptcy  law, 
1916C-990. 

—rights  of  parties  to  joint  deposit  in 
bank,  1916D-519. 

— statement  by  bank  officer  to  obtain  de- 
posit as  constituting  crime  of  obtain- 
ing money  by  false  pretenses,  1916C- 
1162. 

Examiners:  bank  examiners,  1916E-219. 

Federal  Eeserve  Act:  validity  and  effect  of 
Federal  Eeserve  Act,  19170-1099. 

Fraud  on  bank  as  constituting  attempt  to 
obtain  money  by  false  pretenses, 
1917B-1232. 

Garnishment:  money  standing  in  name  of 
debtor  but  belonging  to  third  person 
as  reachable  in  garnishment  proceed- 
ing, 19170-1145. 

Guaranty:  liability  of  bank  on  contract  of 
guaranty,  1916D-554. 

Insolvency:  when  bank  is  "insolvent," 
19160-85. 

National  banks:  jurisdiction  of  action 
against  national  bank  to  recover  pen- 
alty for  taking  usurious  interest, 
1916D-1246. 

Notes:  what  constitutes  payment  of  note 
at  bank  where  it  is  made  payable, 
1917A-508. 

Passbooks:  lien  of  attorney  on  bankbook 
in  his  possession  connected  with  liti- 
gation, 1917D-149. 

Privileged  communications:  information 
acquired  bv  banker  as  privileged  from 
disclosure,"  1916C-703. 

Savings  banks:  set-off  against  receiver  of 
savings  bank,  1916D-600. 

Statutory  regulation:  effect  of  partial  in- 
validity of  statute  relating  to  banks, 
1916D-37. 

BASEBALL. 

Contracts  for  services  of  ball  players, 
19170-392. 

BASTARDY. 
See  Illegitimacy. 


BATHING  RESORTS. 

Duty  to  patrons  of  proprietor  of  bathing 
resort  or  beach,  1917B-333. 


"BEARER." 
See  Alteration  of  Instruments. 

BEDDINO. 

State  or  municipal  regulation  of  use  or 
sale  of  second-hand  clothing,  bedding, 
or  the  like,  1917C-1068. 

BED  OF  LAKE. 
Bee  Waters  and  Watercourses. 

BEES. 
See  Animals. 

BELLIGERENT  POWERS. 
See  International  Law. 

BENEFICIAL  ASSOCIATIONS. 

Beneficiaries:  "child"  in  benefit  insurance 
policy  as  including  illegitimate  child, 
1918B-261. 

— effect  of  divorce  upon  rights  of  bene- 
ficiary under  benefit  certificate, 
19170-270. 

— ^liability  for  inducing  change  of  bene- 
ficiary in  insurance  policy,  1917A-473. 

— persons  included  within  the  term  "fam- 
ily" when  used  to  designate  beneficia- 
ries in  benefit  certificate,  19170-694. 

— selection  by  insured  of  beneficiary  not 
having  insurable  interest  in  former's 
life  as  against  public  policy,  19160- 
587. 

By-laws:  validity  of  amendments  to  by- 
laws of  fraternal  benefit  societies  as 
applied  to  existing  members,  1917B- 
814. 

Oonstruction  of  policy:  construction  of  re- 
striction in  contract  of  benefit  insur- 
ance as  to  travel  by  or  residence  of 
insured,  1917A-381. 

— construction  of  restriction  in  contract  of 
benefit  insurance  as  to  use  of  intoxi- 
cants by  insured,  1918A-623. 

— death  while  engaged  in  violating  law 
within  exception  in  insurance  policy, 
19170-592. 

Evidence:  admissibility  of  benefit  certifi- 
cate in  evidence  without  other  parts 
of  contract,  19170-145. 

Forfeiture:  waiver  of  forfeiture  of  bene- 
fit certificate  for  nonpayment  of 
assessment  or  dues  by  acceptance  of 
arrearages  or  similar  act,  1916D-591. 

Membership:  what  constitutes  membership 
in   beneficial   association,   1917B-380. 

Statutes:  "child"  in  statute  relating  to 
benefit  insurance  as  including  illegiti- 
mate child,  1918B-256. 


12 


DIGEST. 

1916C— 1918B. 
ASSOCIATIONS   —    Con- 


BENEFICIAI. 

tinued. 
Workmen's  compensation  acts:   receipt  of 
insurance  as   affecting  right  to   com- 
pensation under  workmen's  compensa- 
tion act,  1918B-635. 

See  also  Societies  and  Clubs. 

BENEFICIARIES. 
See  Insurance;  Trusts  and  Trustees;  Work- 
men's Compensation  Acts. 

BEQUESTS. 
See  Wills. 

BESTIALITY. 

Imputing  bestiality  to  man  as  slander, 
I917A-1045. 

BEVERAGES. 
See  Food  and  Drugs;  Intoxicating  LicLUOrs. 

BIAS. 
See  Judges. 

BICYCLES. 

Bights  and  duties  of  person  driving  auto- 
mobile in  highway  with  respect  to 
bicycle,  1916E-675. 

BIDS. 

Implied  liability  of  municipality  under 
contract  let  contrary  to  statute  re- 
quiring competitive  bidding,  1917A- 
1263. 

Necessity  for  readvertisement  where  bid- 
der to  whom  municipal  contract  is 
awarded  fails  to  comply  with  condi- 
tions or  abandons  work,  1916D-1189. 

Eight  of  action  by  highest  bidder  at  auc- 
tion sale  for  refusal  of  auctioneer  to 
knock  down  property  to  him,  1918A- 
850. 

Bights  of  parties  with  respect  to  certified 
check  or  other  deposit  made  with  bid, 
1916C-427. 

Validity  of  contract  to  prevent  bidding  at 
judicial  sale,  1917D-232. 

BIGAMY. 

Cohabitation    under    foreign    marriage    As 

bigamy,  1917C-1141. 
Husband  or  wife  as  competent  witness  in 

prosecution  for  bigamy,  1916C-1060. 

BILL. 
See  Pleading. 

BILLBOARDS. 

Municipal  regulation  of  billboards  and 
signs,  191CC-491. 


BILLHEADS. 


Evidentiary  effect  of  us  of  printed  letter- 
head or  billhead,  1917B-271. 

BILLS  AND  NOTES. 

Alteration:  addition  of  words  "or  bearer" 
or  words  "or  order"  or  substitution  of 
one  expression  for  other  as  material 
alteration  of  instrument,  1917C-1177. 

— effect  of  detaching  from  promissory  note 
contract  or  memorandum  attached 
thereto,  1917E-603. 

Attorneys'  fees:  lien  of  attorney  on  note 
in  his  possession  connected  with  liti- 
gation, 1917D-149. 

—provision  in  note  for  payment  of  at- 
torney's fees  as  binding  indorser, 
1917C-1082. 

—-validity  of  stipulation  for  attorney's 
fee  in  promissory  note,  1917D-365. 

Bona  fide  holders:  validity  in  hands  of 
bona  fide  holder  of  negotiable  contract 
void  by  statute  between  original  par- 
ties, 1917D-696. 

Conditional  acceptance:  construction  of 
acceptance  of  bill  of  exchange  condi- 
tioned on  possession  or  availability  of 
funds,  1918A-941. 

Conditional  delivery:  parol  evidence  of 
conditional  delivery  of  bill  or  note, 
I917D-1049. 

Corporations:  liability  of  person  signing 
negotiable  paper  as  officer  of  corpora- 
tion,  1917D-568. 

Demand  notes:  when  note  payable  on  de- 
mand is  overdue  as  between  maker 
and  indorser,  1917B-842. 

E'xtension  of  time:  construction  of  exten- 
sion of  or  agreement  to  extend  time 
of  payment  of  note,  1918B-157. 

False  pretenses:  bill  or  note  as  "property," 
etc.,  within  statute  against  false  pre- 
tenses, 1917D-627. 

Fictitious  payee  of  promissory  note  or 
biU.  1918A-669. 

Guaranty:  power  of  national  bank  to 
guarantee  commercial  paper,  1916D- 
559. 

Lost  instruments:  jurisdiction  of  action  on 
lost  instrument,  1917A-1289. 

Negotiability  of  note  containing  provision 
allowing  discount  if  paid  within  cer- 
tain time,  1918B-600. 

Nominal  holders:  right  of  action  thereon 
of  nominal  holder  of  promissory  note, 
1917A-490. 

Payment:  what  constitutes  payment  of 
note  at  bank  where  it  is  made  paya- 
ble, 1917A-508. 

Pleading:  inconsistent  defenses  in  action 
on  bill  or  note,  1917C-721. 

Protest  and  notice:  duty  of  bank  receiving 
paper  for  collection  to  protest  same 
and  give  notice  thereof  in  absence  of 
express  instruction,  1918A-892. 

— right  to  notice  of  dishonor  of  stock- 
holder or  officer  indorsing  corporate 
paper,  1917B-836. 


INDEX  TO  THE  NOTES. 


13 


BHiliS  AND  NOTES— Continued. 
Signatures:  necessity  of  proving,  in  action 

on    promissory     note,     signatures     of 

maker  and  indorser,  1917A-770. 
Suretyship:  diversion  of  note  or  proceeds 

as  discharging  surety  thereon,  1916I>- 

733. 
Transfer:  negotiation  of  note  of  debtor  as 

constituting  payment  of  original  debt, 

1917C-364. 
— transfer  of  negotiable  note  as  security 

for  antecedent  debt,  1917D-386. 
Usury:  renewal  note  as  affected  by  usury 

in  original  note,  1918A-753. 

BILLS  FOR  RAISING  REVENUE. 

Legal     meaning     of     "bills     for     raising 
revenue,"  1918B-209. 

BILLS  OF  SALE. 

Meaning   of   "plant"    as   used  in   ETnglish. 
Bills  of  Sale  Act,  1917A-327. 


BONDS— Continued. 

Reformation:  right  to  reform  bond  by 
changing  name  of  obligee,  1916C-184. 

See  also  Appeal  and  Error;  Attachment; 
Credit  Insurance;  Municipal  Corpora- 
tions; Public  Contracts;  Public 
Officers;  Sheriffs  and  Constables; 
Suretyship. 

BOOKa 

Lien  of  attorney  on  book  in  his  possession 
connected  with  litigation,  1917D-149. 

Measure  of  damages  for  loss  or  destruction 
of    books    having    no    market    value, 
1917B-579. 
See  also  Corporations;  Evidence. 

BOOTHS. 

See  Elections. 


BOUNDARIES. 
See  Adjoining  Landowners. 


BLACKLISTING. 

Legality  of  blacklisting  agreement,  1917A- 
644. 

BLANKS. 
See  Alteration  of  Instruments. 

BLASTING. 
See  Explosions  and  Explosives. 

BLINDNESS. 
See  Wills. 

BOARDING  HOUSES. 
See  Apartment  Houses. 


BREACH  OF  CONTRACT. 

See  Contracts. 

BREACH   OF  PEACE. 

Language    constituting   breach    of   peace, 

1917C-889. 

BREACH  OF  PROMISE  OF  MARRIAGE. 

Disease  as  defense  to  action  for  breach  of 
promise  of  marriage,  1917D-1084. 

Effect  of  offer  by  defendant  to  marry 
plaintiff  on  action  for  breach  of 
promise  of  marriage,  1917A-652. 

Understanding  of  family  or  friends  of 
party  as  evidence  of  agreement  to 
marry,  1916C-564. 


BOARD  OF  REVENUE. 

Legal    meaning    of    "board    of    revenue," 
1918B-220. 


BONA  FIDE  PURCHASERS. 

See  Bills  and  Notes;   Sales;   Vendor  and 
Purchaser. 


BONDS. 

Attorneys:  lien  of  attorney  on  bond  in  his 
possession  connected  with  litigation, 
1917D-149. 

Construction:  meaning  of  "all  damages"  as 
used  in  bond,  1917E-82. 

Defenses:  inconsistent  defenses  in  action 
on  bond,  1917C-721. 

Injunctions:  bond  as  prerequisite  to  issu- 
ance of  temporary  injunction,  1917B- 
126. 

Issuance:  authority  of  public  officer  to 
complete  bond  issue  after  repeal  of 
statute  authorizing  issue,  1916E-406. 


BREACH  OF  WARRANTY. 

See  Warranty. 

BRIBERY. 

Inducement  to  commit  bribery  with  view 
to  prosecution  therefor  as  defense  to 
such  prosecution,  1916C-730. 

Promise  to  do  certain  things  after  election 
as  bribery  of  electors,  1918A-888. 

Sufficiency  of  indictment  or  information 
for  bribery  with  respect  to  allegation 
of  value  of  thing  offered  or  received 
as  bribe,  1918A-314. 

BRICKS. 

Brick  kiln  as  nuisance,  1917E'-420. 
State    or    municipal    regulation    of    manu- 
facture of  bricks,  1917B-931. 

BRIDGES. 

Effect  of  partial  invalidity  of  statute  relat- 
ing to  bridges,  1916D-58. 


14 


DIGEST. 

1916C— 1918B. 


BRIDGES — Continued. 

Liability  for  injury  to  bridge  caused  by 

vessel,  1917B-938. 
Power  of  municipality  to  compel  railroad 

or    street    railway    to    repair    bridge 

within  municipal  limits,   1916C-1171. 
Use  of  bridge  by  traction  engine,  1917E- 

802. 

BBIEFS. 

Personal  liability  of  attorney  for  expense 
of  printing  briefs,  argument,  etc., 
1917B-525. 

BBOKEBS. 

Compensation:  illegal  contracts  as  to  com- 
pensation   by    agents    of    vendor    or 

vendee,  1917A-511. 
— liability  on  contract  of  buyer  and  seller 

to    pay    broker's    commission   jointly, 

1918B-180. 
Contract   of    saJe:    power   of    real    estate 

broker    to    make    contract    of    sale, 

1917A-522. 
"Dealer":    broker    buying    or    selling    for 

future   delivery   as    "dealer,"    1917A- 

952. 
Regulations:  state  or  municipal  regulation 

of    personal    property    loan    brokers, 

1916E-618. 
Witnesses:  information  acquired  by  broker 

as  privileged  from  disclosure,  1916C- 

703. 

See  also  Agency. 

BBOTHEB. 

B'rotber  as  "dependent"  within  workmen's 
compensation  act,  1918B-759. 

Communication  to  brother  as  privileged 
within  law  of  libel  and  slander, 
1917E-897. 


BUnJDING  AND  LOAN  ASSOCIATIONS. 

Appointment  of  receiver  for  building  and 

loan  association,  1917A-827. 
Avoidance  of  building  and  loan  contract 

on  ground  of  fraud,  1917A-890. 
Constitutionality    of    statutes    exempting 

building    and    loan    associations    from 

usury  laws,   1916B-232. 
To   whom    building   and    loan    association 

may  loan  money,  1917B-590. 


BUIIiDING  CONTRACTS. 

Principal    contractor    as    necessary    party 

defendant     to     action     to     foreclose 

mechanic's  lien,  1918B-6. 
Bight    of    buildinjc    contractor    to    rescind 

contract  for  failure  of  owner  to  make 

payment,  1916C-54. 


BUIIiDINO  RESTRICTIONS. 
See  Vendor  and  Purchaser. 


BUILDINGS. 


Contract  for  sale  of  building  as  contract 
for  sale  of  realty  within  statute  of 
frauds,  1916D-970. 

Employment  in  connection  with  construc- 
tion, repair,  etc.,  of  building  as  within 
purview  of  workmen's  compensation 
act,  1917D-14. 

Liability  of  owner  for  injuries  caused  by 
collapse  of  building,  1917A-478. 

Liability  of  owner  of  building  for  injury 
to  pedestrian  resulting  from  erection 
of  scaffold  for  repairing  or  painting 
building,'  1916C-123. 

Eight  of  municipality  to  enjoin  violation 
of  ordinance  prohibiting  erection  of 
wooden  building  within  fire  limits, 
1916C-965. 

See  also  Adjoining  Landowners;  Landlord 
and  Tenant;  Nuisances;  Streets  and 
Highways. 

BULK  SALES. 
See  Fraudulent  Sales  and  Conveyances. 

BUBDEN  OF  PBOOF. 

Acknowledgment:  burden  of  proof  as  to 
verity  of  certificate  of  acknowledg- 
ment, I917A-369. 

Alteration  of  instruments:  burden  of 
showing  ratification  or  waiver  of 
alteration  of  instrument,  1917D-345. 

Attorneys:  burden  of  proof  as  to  validity 
of  contract  for  compensation  of  attor- 
ney made  after  establishment  of  rela- 
tion, 1917A-336. 

Elections:  burden  of  proving  irregularity 
in  election  affecting  indeterminable 
number  of  votes,  1918A-58. 

Expectancy:  burden  of  proof  as  to  valid- 
ity of  transfer  of  expectancy  in 
estate,  1916E-1250. 

Gas:  burden  of  proof  in  action  against 
gas  company  for  injuries  caused  by 
escape  of  gas,  1916E-2S0. 

Immigration:  burden  of  proof  as  to  right 
to  exclude  alien  under  immigration 
act,  19170-247. 

Master  and  servant:  burden  of  proof  as  to 
giving  notice  of  injury  under  work-" 
men's  compensation  act,  1917D-877. 

— burden  of  proving  that  accident  arose 
out  of  and  in  course  of  employment 
within  meaning  of  workmen's  compen- 
sation act,  1918B-768. 

Parent  and  child:  burden  of  proof  of  un- 
due influence  in  case  of  conveyance 
inter  vivos  by  parent  to  child,  1918B- 
457. 

Parties  to  actions:  burden  of  proof  of  non- 
existence of  plaintiff  in  action,  1917D- 
1196. 

Quo  warranto:  burden  of  proof  in  quo 
warranto  proceeding  or  action  in 
nature  thereof,  1917B-467. 


INDEX  TO  THE  NOTES. 


15 


BURDEN  OF  PROOF— Continued. 

Release  and  discharge:  burden  of  proving 
misstatement  by  physician  as  ground 
for  avoiding  release  of  claim  for  per- 
sonal injuries,  1918A-358.    ' 

BURGIxARY. 

Burglary  by  opening,  sufficiently  to  gain 
entrance,  door  or  window  partly  open, 
1916C-320. 

Inducement  to  commit  burglary  with  view 
to  prosecution  therefor  as  defense  to 
such  prosecution,  1916C-730. 

Unauthorized  entry  of  premises  by  em- 
ployee of  owner  as  burglarious  entry, 
1916E-534. 

What  constitutes  cruel  and  unusual  pun- 
ishment for  burglary,  1918B'-398. 

BURIAIi  INSURANCE. 

Contract  for  burial  as  insurance  contract, 
19ieC-1016. 

BUSINESS. 

See  Chambers  of  Commerce;  Eminent 
Domain;  Fraud;  Good  Will;  Letters; 
Monopolies;  Partnership;  Payment; 
Telegraphs  and  Telephones;  Vehicles. 

BUSINESS  COMPETITION. 
See  Municipal  Corporations. 

BUTCHERS. 
Butcher  as  "dealer,"  1917A-952. 

BY-LAWS. 

See  Beneficial  Associations;  Corporations; 
Stock  Exchanges. 

BYSTANDERS. 
See  Negligence. 


CANALS. 

Employment  in  connection  with  Isthmian 
Canal  as  within  purview  of  workmen's 
compensation  act,   1917D-16. 

Interest  in  land  acquired  by  condemnation 
for  canal  as  easement  or  fee,  1918A- 
809. 

CANCELLATION. 
See  Fire  Insurance. 

CANVASSERS. 
Canvasser  as  "dealer,"  I917A-953. 

CARPENTERS. 

Structural  carpentry  as  employment  within 
purview  of  workmen's  compensation 
act,  1917D-28. 


CARRIERS  OF  GOODS. 

Act  of  God:  liability  of  carrier  for  dam- 
ages caused  by  act  of  God  co-operat- 
ing with  its  own  negligence,  1918A- 
581. 

Agency:  rights  as  against  carrier  of  un- 
disclosed principal  of  person  shipping 
goods,  I918A-826. 

Contract  of  carriage:  exclusion  or  inclu- 
sion of  Sunday  or  holiday  in  computa- 
tion of  time  for  performance  of  act  by 
parties  to  shipping  contract,  I917E- 
947. 

Criminal  liability:  liability  of  corporation 
to  indictment  for  unjust  discrimina- 
tion in  transportation,  1916C-464. 

Delay:  measure  of  damages  for  carrier's 
delay  in  transporting  goods  resulting 
in  depreciation  in  value,  1917D-164. 

Freight  charges:  implied  agreement  by 
consignee  of  goods  to  pay  freight 
charges,  1917C-864. 

— Pliability  as  between  consignor  and  con- 
signee for  payment  of  freight  under- 
charges on  interstate  shipment,  1916E- 
378. 

Regulation:  effect  of  partial  invalidity  of 
statute  relating  to  freight  rates, 
1916D-86. 

—effect  of  partial  invalidity  of  statute  re- 
lating to  shipments  of  freight,  1916D- 
86. 

— power  of  public  ■  service  commission  to 
compel  carrier  to  furnish  particular 
class  of  service,  1917B-1160. 

—state  regulation  of  carriers  of  goods  as 
interference  with  interstate  commerce, 
1917A-973. 

— validity  of  statute  imposing  penalty  on 
carrier  of  goods  for  failure  to  pay 
claim  within  certain  time,  1916D-335. 

— validity  of  statute,  ordinance  or  rule 
providing  for  reciprocal  demurrage, 
1916E-701. 

Wharves:  right  of  person  going  on  wharf 
to  receive  freight  to  recover  damages 
for  injuries  sustained  on  defective 
wharf.  1916C-145. 

See  also  Household  Goods;  Intoxicating 
Liquors;  Public  Service  Corporations; 
Transportation. 

CARRIERS  OF  LIVE  STOCK. 

Liability  of  carrier  of  live  stock  for  injury 
to  stock  where  shipper  loads  stock  im- 
properly, 1916E-1203. 

Rights  as  against  carrier  of  undisclosed 
principal  of  person  shipping  live  stock, 
1918A-826. 

State  regulation  of  carriers  of  live  stock 
as  interference  with  interstate  com- 
merce, 1917A-973. 

Validity  of  statute  imposing  penalty  on 
carrier  of  live  stock  for  failure  to  pay 
claim  within  certain  time,  1916D-335. 

See  also  Carriers  of  Passengers;  Public 
Service  Corporations. 


le 


DIGEST. 

1916C— 1918B. 


CABBIEBS  OF  PASSENGEBS. 


Appliances:  liability  of  carrier  of  passen- 
gers with  respect  to  appliances  pur- 
chased from  manufacturer,  1916E-929. 

Baggage:  duty  of  carrier  to  provide  safe 
place  for  delivery  of  baggage  to  pas- 
senger, 1916C-1213. 

Banana  peels:  liability  of  carrier  for  in- 
jury to  passenger  caused  by  slipping 
on  banana  peel  or  the  like,  1916E- 
1087. 

Carriers  by  water:  liability  of  carrier  by 
water  for  injury  to  or  death  of  pas- 
senger falling  overboard,  1917D-1038. 

Changing  cars:  duty  of  carrier  to  give  pas- 
senger notice  of  and  time  to  make 
'     change  of  cars,  1917D-488. 

Contributory  negligence:  contributory 
negligence  of  passenger  in  alighting 
from  street  car  and  passing  to  rear  of 
it  across  parallel  tracks  without  look- 
ing for  approaching  car,  1916E-998. 

^-contributory  negligence  of  passenger  in 
■permitting  part  of  his  body  to  pro- 
trude from  car,  1916C-1218. 

— ^failure  of  carrier  to  enforce  rule  as  af- 
fecting contributory  negligence  of 
passenger  in  violation  thereof,  1916B- 
1308. 

Destination  of  passenger:  duty  of  railroad 
to  put  passenger  off  at  destination  not 
stopping  station,  1916E-1220. 

Fire  apparatus:  duty  of  driver  of  street 
car  to  avoi<i  injury  to  passenger  by 
collision  with  fire  apparatus,  1918A- 
293. 

Free  passengers:  liability  of  carrier  to 
person  riding  on  drover's  pass  or  in 
charge  of  stock,  1917E-149. 

Insane  passengers:  duty  and  liability  of 
carrier  with  respect  to  insane  pas- 
senger, 1916E-256. 

Insufficient  employees:  operating  car  or 
train  with  insufficient  number  of  em- 
ployees as  negligence  on  part  of  car- 
rier of  passengers,  1917C-73. 

Intending  passengers:  when  intending 
passenger  actually  becomes  such, 
1917C-1206. 

Jitney  buses:  jitney  bus  proprietor  as 
common  carrier  of  passengers,  1917C- 
1060. 

— state  or  municipal  regulation  of  jitnev 
buses,  1917C-1051. 

Motorcycles:  right  of  action  by  passenger 
on  motorcycle  for  collision  with  motor 
truck,   19i7A-225. 

Overcrowding  of  cars:  act  of  carrier  in 
permitting  cars  to  be  overcrowded  as 
constituting  nuisance,  1918A-994. 

Person  wrongfully  on  train:  liability  of 
railroad  company  to  person  wrong- 
fully riding  on  train  by  permission  or 
direction  of  railroad  employee,  19170- 
358. 

Presumption  of  negligence  from  collision 
resulting  in  injury  to  passenger, 
1917C-634. 


CABBIEBS  OF  PASSENGEBS  —  Con- 
tinued, 

Regulation:  effect  of  partial  invalidity  of 
statute  relating  to  passenger  rates, 
1916D-«6. 

— effect  of  partial  invalidity  of  statute  re- 
lating to  passes  and  tickets,  1916D- 
85. 

— power  of  public  service  commission  to 
compel  carrier  to  furnish  particular 
class  of  service,  1917B-1160. 

— ^power  of  public  service  commission  to 
regulate  running  time  of  trains, 
1916D-1034. 

— state  regfulation  of  carriers  of  pas- 
sengers as  interference  with  interstate 
commerce,  1917A-973. 

— statute  requiring  separate  accommoda- 
tion for  white  and  colored  passengers 
as  interference  with  interstate  com- 
merce, 1917A-983. 

— validity  of  order  of  public  service  com- 
mission regulating  commutation  rates, 
1917B-1153. 

— validity  of  order  of  public  service  com- 
mission requiring  running  of  Sunday 
train,  1917B-1205. 

— validity  of  regulation  of  extent  of  train 
service  to  be  furnished  by  railroad, 
1917B-1217. 

Sick  passengers:  duty  and  liability  of  car- 
rier to  passenger  taken  sick  during 
transit,  19160-862. 

Taxicab  proprietor  as  common  carrier, 
1916D-767.. 

Tickets  and  fares:  person  buying  and  sell- 
ing railroad  tickets  as  "dealer," 
1917A-961. 

— validity  of  rule  of  street  railway  with 
respect  to  use  of  transfer,  1916D-5S6. 

Wharves:  right  of  passenger  on  boat  or 
train  for  damages  for  injuries  sus- 
tained on  defective  wharf,  1916C-142. 

— right  of  person  meeting  passenger  to  re- 
cover damages  for  injuries  sustained 
on  defective  wharf,  l'916C-145. 

See  also  Public  Service  Corporations; 
Street  Bailways. 

CABTOONS. 

See  Libel  and  Slander. 

CASUALTY. 

Insurance  of  automobile  against  casualty, 
1917D-57. 

CATS. 

See  Animals. 


CATTLE. 
See  Animals. 

CAUSE    OF    ACTION. 
See  Attorneys. 


INDEX  TO  THE  NOTES. 


17 


CAVEAT  EMPTOR. 
See  Guardians. 

,  CEMETERIES. 

Equitable  relief  against  cemetery  as  nui- 
sance,  1917B-563. 

See  also  Dead  Bodies. 

I  CERTIFIED  CHECKS. 

See  Bids;  Checks. 

CERTIORARI. 

Certiorari  to  review  disbarment  proceed- 
ings, 1918B-838. 

CESTUI  QUE  TRUST. 
See  Trusts  and  Trustees. 

CHALLENGES. 

See  Jury. 

CHAMBERS  OF  COMMERCE. 

Powers  and  liabilities  of  private  corpora- 
tion or  association  organized  to  pro- 
mote business  interests  of  community, 
1917C-787. 

CHAMPERTY  AND  MAINTENANCE. 

Validity  of  agreement  by  person  other 
than  attorney  to  collect,  settle  or  com- 
promise claim  for  commission,  1918A- 
797. 


CHANCE  VERDICT. 


See  Verdict. 


^.na?^ 


CHANGE  IN  TITLE. 
See  Fire  Insurance. 

CHANGE  OF  CARS. 
See  Carriers  of  Passengers. 

CHANGE  OF  JUDGE. 
See  Judges. 

CHANGE  OF  NAME. 
See  Names. 

CHANGE   OF  PURPOSE. 
See  Corporations. 

CHANGE  OF  REGISTRATION. 
See  Elections. 

CHANGE   OF   VENUE. 
See  Venue. 


CHARACTER. 

See  Death  by  Wrongful  Act;  Fines  and 
Penalties;  Libel  and  Slander;  Mali- 
cious Prosecution. 


CHARITIES. 

Pire  company,  insurance  patrol  or  the  like 
as  charitable  institution,  1917C-797. 

Gift  for  establishment  of  home  for  persons 
of  particular  class  as  charitable  gift, 
1917E-857. 

Hospital  as  charity  exempt  from  taxation, 
1917B-278. 

Inadequacy  of  gift  to  accomplish  purpose 
of  charitable  trust  as  affecting  its 
validity,  1916D-487. 

Validity  of  statute  or  ordinance  regula- 
ting solicitation  of  funds  for  private 
eharity,  I917D-1133. 

.    CHARTERS. 
See  Corporations. 

CHARTS. 
See  Hospitals  and  Asylums. 

CHATTEL  MOBTGAGES. 

Attachment  of  chattels:  right  of  defend- 
ant who  has  mortgaged  chattels  to 
move  to  dissolve  attachment  thereof, 
1916D-479. 

— ^waiver  of  chattel  mortgage  lien  by  at- 
tachment, 1916C-408. 

Injury  to  chattels:  right  of  action  of  chat- 
tel mortgagor  against  third  person  for 
injury,  etc.,  to  chattels,  1917D-554. 

Property  covered:  chattel  mortgage  on 
stock  of  mercantile  goods  as  covering 
additions  thereto,  1916D-1215. 

•—mortgage  on  animals  as  including  in- 
crease, 1917C-1173. 

—right  of  chattel  mortgagee  or  condi- 
tional vendor  to  accession  to  property 
mortgaged  or  sold,  19170-1170. 

Eecording:  validity  of  chattel  mortgage 
not  recorded  as  required  by  statute 
as  against  person  taking  conveyance 
subsequent  to  actual  recording,  1917A- 
196. 

CHATTELS. 
See  Sales. 

CHAUFFEURS. 
See  Automobiles. 

CHECKS. 

Criminal  liability  of  officer  of  insolvent 
bank  for  receiving  deposit  therein 
consisting  of  check  on  same  bank, 
1916E-592. 

Giving  worthless  check  as  false  pretense, 
1916E-736. 


18 


DIGEST. 

19ieC— 1918B. 


CHECKS — Continaed. 

Liability  of  bank  to  true  holder  or  payee 

of  check  paid  on  forged  indorsement, 

1917D-1058. 
Lien    of   attorney   on   check   book    in   his 

possession   connected   with   litigation, 

1917D-149. 
Right  of  drawer  to  stop  payment  of  c«* 

tified  check,  1917A-947. 
See  also  Bids. 

CHILDBEN'. 
"Child"    as    including    illegitimate    child, 
1918B-249. 

See  also  Infants;  Wills. 

CHIROPRACTIC. 

Validity  of  special  regulation  of  chiroprac- 
tic treatment  of  disease,  1917B-798. 

CHOSES  IN  ACTION. 
Chose  in  action  as  embraced  within  "con- 
tents"  or  similar   expression  in  will, 
1916C-1139. 

CHRISTIANITY. 
Christianity     as     part     of     common     law, 
1918A-971. 

CHRISTIAN  SCIENCE. 

Special  regulation  of  Christian  Science  or 
other  drugless  treatment  of  disease, 
1917B-798. 

CIGARS. 

of     cigars     as     "dealer," 


Manufacturer 
I917A-953. 


CITIZENSHIF. 

"Child"  in  statute  relating  to  naturaliza- 
tion of  Indians  as  including  illegiti- 
mate child,  1918B-256. 

"Citizen"  as  including  corporation,  joint 
stock  company  or  partnership,  1917C- 
875. 

Expatriated  person  as  alien  enemy,  1916D- 
306. 

Grounds  for  revocation  of  naturalization, 
1917C-45. 

Naturalization  of  alien  enemy,  1917C-214. 

CIVIL  DAMAGE  ACTS. 
Damages  for  death  by  intoxication,  1917B- 


530. 


CIVILIANS. 
See  Army  and  Navy. 


CLAIMS. 

Liability  of  attorney  to  client  for  negli- 
gence with  respect  to  collection  of 
claims,  1917B-32. 

See  also  Assignments;  Carriers  of  Goods; 
Carriers  of  Live  Stock;  Champerty 
and  Maintenance;  Executors  and  Ad- 
ministrators; Libel  and  Slander;  Mu- 
nicipal Corporations;  Telegraphs  and 
Telephones. 


CLEAiriNG  STREETa 
See  Streets  and  Highways. 

CLERKS  OF  COURT. 

Personal  liability  of  attorney  for  fees  of 
clerk  of  court,  1917B-520. 

CLOSETS. 
See  Healtb. 

CLOTHES. 

Effect  OB  relation  of  employee  as  such  of 

stopping  work   temporarily  to   obtain 

clothes,  1918A-1196. 
State   or   municipal   regulation   of   use   or 

sale  of  second  hand  clothes,  bedding, 

or  the  like,  1917C-1068. 

CLUBS. 
See  Societies  and  Clubs. 

COAL  HOLES. 
See  Streets  and  Highways. 

COHABITATION. 
See  Bigamy. 

COLLATERAL  ATTACK. 
See  Eminent  Domain;  Monopolies. 

COLLATERAL  SECURITT. 
See  Stock  and  Stockholders. 

COLLECTIONS. 

See  Assignments;  Banks;  Champerty  and 

Maintenance. 

COLLEGES. 
See  Sciiools. 

COLLISIONS. 

See  Automobiles;  Carriers  of  Passengers; 
Ships  and  Shipping;  Street  Railways. 

COLORED  PERSONS. 

Separation  of  white  and  colored  pupils  for 

purposes  of  education,  1916C-S06. 

See  also  Jury. 

COMBINATIONS. 
See  Sales. 

COMMERCE. 

See  Interstate  Commerce;  Intrastate  Com- 
merce. 

COMMERCIAL  PAPER. 
See  Bills  and  Notes. 


INDEX  TO  THE  NOTES. 


19 


COMMISSIONERS. 

Personal  liability  of  attorney  for  fees  of 
commissioner,  1917B-524. 
See  also  Public  Service  Commissions. 

COMMISSION   GOVERNMENT. 
See  Municipal  Corporations.  ■ 

COMMISSION  MERCHANTS. 

Validity  of  state  or  municipal  regulation 
of  commission  merchants,  1917B-631. 

COMMISSIONS. 

See    Agency;    Brokers;    Champerty    and 
Maintenance. 

COMMITTEE. 
See  Insanity. 

COMMITTEES. 
See  Public  Officers. 

COMMODITY. 

Legal  meaning  of  "commodity,"  1916I>- 
986. 

COMMON  CARRIERS. 
See  Jitney  Buses. 

COMMON  LAW. 

Adoption   of   common  law   in   relation   to 

crimes,  1918A-990. 
Extent  of  adoption  of  common  law,  1918A- 

981, 
What  the  "common  law"  includes,  1918A- 

968. 
See  also  Employers'  Liability  Acts. 

COMMUNISM. 
See  Religious  Societies. 

COMMUTATION  RATES. 
See  Tickets  and  Pares. 

COMPENSATION, 

See  Agency;  Attorneys;  Bribery;  Brokers; 
Champerty  and  Maintenance;  Emi- 
nent Domain;  Master  and  Servant; 
Public  Of&cers;  Streets  and  High- 
ways; Tenants  in  Common;  Work- 
men's Compensation  Acts. 

COMPETENCY. 
See  Witnesses. 


COMPETITIVE  BIDDINa. 
See  Bids. 

COMPLAINT. 
See  Pleading. 

COMPLETE. 

Meaning  of  "complete"  or  "completed**  as 
applied  to  railroad,  1916D-1232. 

COMPROMISE  AND  SETTLEMENT. 

Liability  of  attorney  to   client  for  unau- 
thorized compromise  of  client's  claim, 
1917B-14. 
Mistake  of  law  as  ground  for  annulment  of 
compromise,  1916D-347. 
See  also  Champerty  and  Maintenance. 

COMPULSORY     MILITARY     SERVICE. 
See  Army  and  Navy. 

COMPUTATION  OF  TIME. 
See  Time. 

CONCUSSION. 
See  Explosions  and  Explosives. 

CONDEMNATION. 
See  Eminent  Domain. 

CONDITIONAL   CONDEMNATION. 

See  Eminent  Domain. 

CONDITIONAL  DELIVERY. 
See  Bills  and  Notes. 

CONDITIONAL  SALES. 

Election  of  remedies  on  breach  of  condi- 
tional sale,  1917D-464. 

Eight  of  chattel  mortgagee  or  conditional 
vendor  to  accession  to  property  mort- 
gaged or  sold,  1917C-1170. 

Eight  of  conditional  vendee  to  recover 
damages  for  breach  of  warranty, 
1918B-914. 

Eights  of  parties  in  case  of  conditional 
sale  of  property  to  be  attached  to 
realty  of  third  person,  1916D-915. 

CONDITIONS. 
See   Deeds;    Statutes;    Wills. 

CONDONATION. 
See  Divorce. 


COMPETITION. 
See  Municipal  Corporations;  Partnership. 


CONDUCT. 
See  Divorce;  Jury. 


20 


DIGEST. 

1916C— 1918B. 


CONTESSIONS. 


Admissibility  of  confession  obtained  by 
fraud  or  trick,  1916D-966. 

Confessions  of  defendant  as  sufficient  cor- 
roboration  of   accomplice,   1916C-570. 

Intoxication  as  affecting  admissibility  of 
confession,  1916C-1168. 

CONTUCT  OF  LAWS. 

Law  governing  right  of  married  woman  to 
become  surety  for  husband,  1917B- 
597. 

Law  governing  status  of  person  as  legi- 
timate or  illegitimate,  1917C-537. 

Law  governing  transfer  of  corporate 
stock,  1917D-959. 

Law  governing  validity  of  stipulation  for 
attorney's  fee  in  promissory  note, 
1917D-365. 

See  also  Actions;  Assignments;  Foreign 
Laws;  Workmen's  Compensation  Acts. 

CONFUSION  OP  GOODS. 

Confusion  of  goods  resulting  from  mistake 

or  accident,  1918A-746. 
Tortious  or  wrongful  confusion  of  goods, 

1918A-740. 

CONGBESS. 

Power  of  legislature  to  punish  person 
other  than  witness  for  contempt, 
1918B-378. 

CONNIVANCE. 
See  Adultery. 

CONSCEIPTION. 
See  Army  and  Navy. 

CONSENT. 
See  Mechanics'  Liens;   Nuisances;  Physi- 
cians and  Surgeons;  Suretysliip. 

CONSIDERATION. 
See  Antenuptial  Agreements;  Bills  and 
Notes;  Eminent  Domain;  Frauds, 
Statute  of;  Belease  and  Discharge; 
Ssiles;  Vendor  and  Purchaser;  Ven- 
dor's Lien. 

CONSOLIDATION. 
See  Corporations. 

CONSOBTIUM. 
See  Husband  and  Wife. 

CONSPIBACY. 

Liaibility  of  corporation  to  indictment  for 
criminal   conspiracy,   19160-462. 

Survival  of  right  of  action  for  conspiracy 
to  restrain  trade,  1916C-726. 
See  also  Blacklisting. 


CONSTABLES. 
See  Sheriffs  and  Constables. 

CONSTITUTIONAL  LAW. 

Actions:  validity  of  statute  providing  for 
survival  of  action  for  personal  inju- 
ries after  death  of  person  injured, 
1917E-1171. 

Agriculture:  validity  of  farm  loan  statute, 
1917E-216. 

— validity  of  statute  providing  for  de- 
struction of  diseased  fruit  trees,  fruit 
or  vegetables,  1917E-220. 

— validity  of  statute  regulating  sale  of 
seed,  1917E-I67. 

Amendments  to  constitution:  judicial  no- 
tice of  proceedings  for  adoption  of 
amendment  to  constitution,  1917D- 
1031. 

Animals:  validity  of  ordinance  regulating 
keeping  of  cattle  within  municipal 
limits,  1917E-929. 

— validity  of  statute  providing  for  de- 
struction of  diseased  animals  with 
compensation  to  owner,  1917D-89. 

Assignments:  validity  of  statute  forbid- 
ding assignment  of  debt  or  claim  for 
collection  in  another  jurisdiction, 
1916D-870. 

Automobiles:  municipal  regulation  of  au- 
tomobiles with  respect  to  equipment, 
use  of  streets,  or  the  like,  1916E-1047. 

— validity  of  inclusion  or  exclusion  of  non- 
residents in  statute  regulating  use  of 
motor  vehicles,  1917E-324. 

Banks:  validity  and  effect  of  federal  re- 
serve act,  1917C-1099. 

— validity  of  statute  creating  office  of 
bank  examiner,  1916E-219. 

Beneficial  associations:  validity  of  amend- 
ments to  by-laws  of  fraternal  benefit 
societies  as  applied  to  existing  mem- 
bers, 1917B-814. 

Billboards:  municipal  regulation  of  bill- 
boards and  signs,  19160-491. 

Bricks:  state  or  municipal  regulation  of 
manufacture  of  bricks,  1917B-931. 

Building  and  loan  associations:  constitu- 
tionality of  statutes  exempting  build- 
ing and  loan  associations  from  usury 
laws,   1916E-232. 

Carriers  of  goods:  power  of  public  service 
commission  to  compel  carrier  to  fur- 
nish particular  class  of  service,  1917B- 
1160. 

— validity  of  statute  imposing  penalty  on 
carrier  of  goods  for  failure  to  pay 
claim  within  certain  time,  1916D-335. 

— validity  of  statute,  ordinance  or  rule 
providing  for  reciprocal  demurrage, 
19160-701. 

Carriers  of  live  stock:  validity  of  statute 
imposing  penalty  on  carrier  of  live 
stock  for  failure  to  pav  claim  within 
certain  time,  1916D-335. 

Carriers  of  passengers:  power  of  public 
service  commission  to  compel  carrier 
to  furnish  particular  class  of  service, 
1917B-1160. 


INDEX  TO  THE  NOTES. 


21 


CONSTITUTIONAL  LAW— Continued. 

Carriers  of  passengers:  power  of  public 
service  commission  to  regulate  run- 
ning time   of  trains,   1916D-1034. 

— state  or  municipal  regulation  of  jitney 
buses,  1917C-1051. 

— validity  of  order  of  public  service  com- 
mission regulating  commutation  rates, 
1917B-1153. 

— validity  of  order  of  public  service  com- 
mission requiring  running  of  Sunday 
train,  1917B-1205. 

— validity  of  regulation  of  extent  of  train 
service  to  be  furnished  by  railroad, 
1917B-1217. 

Charities:  validity  of  statute  or  ordinance 
regulating  solicitation  of  funds  for 
private  charity,  1917D-1133. 

"Citizen"  as  including  corporation  within 
constitutional  protection  of  privileges 
and  immunities,  1917C-876. 

Commission  merchants:  validity  of  State 
or  municipal  regulation  of  commission 
merchants,  1917B-631, 

Coroners:  right  of  accused  or  suspected 
person  to  appear  by  counsel  at  coro- 
ner's inquest,  1916D-394. 

Corporations:  validity  and  effect  of  stat- 
ute making  stockholder  liable  for  cor- 
porate debts  after  bona  fide  transfer 
of  stock,  1917A-109. 

Decedents'  estates:  validity  of  statute  fix- 
ing probate  or  administration  fees, 
1916C-213. 

Descent  and  distribution:  right  to  take 
property  by  inheritance  or  will  as 
natural  right  protected  by  constitu- 
tion, 1918A-939. 

Detectives:  statutory  regulation  of  private 
detectives,  1917A-584. 

Divorce:  validity  of  statute  requiring  cer- 
tain period  of  residence  within  state 
as  prerequisite  to  divorce,  1916E- 
1110. 

Elections:  validity  and  construction  of 
statute  providing  for  preferential  sys- 
tem of  voting,  19170^82. 

Electricity:  power  of  public  service  com- 
mission to  prevent  maintenance  of 
electric  wires  in  close  proximity, 
•   1918B-847. 

— state  or  municipal  regulation  of  electri- 
cians, 1916E-694. 

Eminent  domain:  power  of  telegraph  or 
telephone  company  to  condemn  rail- 
road right  of  way  under  state  statute, 
1917B-689. 

— validity  of  statute  conferring  on  public 
service  commission  or  other  body  ju- 
risdiction of  eminent  domain  proceed- 
ings, 1916C-420. 

Evidence:  validity  of  ordinance  providing 
that  certain  state  of  facts  shall  con- 
stitute prima  facie  evidence  of  viola- 
tion thereof,  1916C-1062. 

Fires:  validity  of  statute  making  railroad 
absolutelv  liable  for  damage  by  fire, 
1918A-63'2, 


CONSTITUTIONAL  LAW— Continued. 

Fish  and  game:  validity  and  construction 
of  federal  statutes  protecting  game, 
1917D-6o4. 

— ^validity  and  construction  of  statute 
regulating  method  of  taking  fish, 
1917D-814. 

— validity  of  statute  requiring  license  to 
hunt  game,  1916C-134. 

Food  and  drugs:  state  or  municipal  regu- 
lation of  ice  cream,  1917B-645. 

— statutory  or  municipal  regulation  of 
meat  dealers,  1917A-198. 

— validity  and  construction  of  federal 
regulation  of  manufacture,  sale  or  pos- 
session of  opium  or  other  narcotic, 
1917D-856. 

—validity  and  construction  of  statute  or 
ordinance  regulating  sale  of  egga, 
1918A-181. 

Foreign  corporations:  imposition  of  license 
tax  or  fee  on  foreign  corporation, 
1916C-1248. 

*— validity  of  statute  designating  particu- 
lar kind  of  agent  of  foreign  corpora- 
tion on  whom  process  may  be  served, 
1916E-339. 

Fuel:  power  of  municipality  to  engage  in 
business  of  furnishing  fuel  to  inhabi- 
tants, 1916C-742. 

Gas:  state  or  municipal  regulation  of  gas 
rates,  1917B-1036. 

Guardians:  validity  of  statute  providing 
for  appointment  of  guardian  for  aged 
person,  1917A-874, 

Ice:  power  of  municipality  to  operate 
plant  for  purpose  of  furnishing  ice  to 
inhabitants,  1916C-1287. 

Immigration:  authority  of  Congress  over 
immigration,  1917C-238. 

Imprisonment  for  debt:  civil  liability  for 
tort  as  debt  within  constitutional  pro- 
vision against  imprisonment  for  debt, 
1917D-841. 

Innkeepers:  validity  of  statute  or  ordi- 
nance licensing  or  regulating  hotels, 
lodging  or  rooming  houses,  ox  the  like, 
1916C-290. 

Intoxicating  liquors:  right  to  prohibit  pos- 
session of  intoxicating  liquor  for  per- 
sonal use,  1916E-780. 

— state  regulation  of  transportation  of  in- 
toxicating liquors,  1917A-622. 

— validity  of  intoxicating  liquor  statute 
which  makes  distinction  between 
races  with  respect  to  granting  of  li- 
cense or  otherwise,  1916E-170. 

— validity  of  statute  forbidding  bringing 
of  liquor  into  prohibition  territory, 
1917A-740. 

Jury:  constitutionality  of  statute  reouir- 
ing  prepayment  or  taxation  as  costs 
of  jury  fees,  1917B-308. 

— validity  "and  construction  of  constitu- 
tional or  statutory  provision  for  ver- 
dict by  less  than  whole  number  of 
jurors,  1916E-500. 

Labor:  constitutionality  of  workmen's 
compensation  act,  191SB-611. 


DIGEST. 

1916C— 1918B. 


CONSTITUTIONAI,  LAW— Continued. 

Labor:  validity  of  statute  discriminjiting 
against  aliens  in  employment  of  labor- 
ers, 1917B-287. 

•^validity  of  statute  prohibiting  importa- 
tion of  contract  labor,  1917C-262. 

— validity  of  statute  regulating  employ- 
ment of  adult  females  in  other  re- 
spects than  number  of  hours  of  labor, 
1916D-1065. 

— validity  of  statute  requiring  weekly 
rest  day  for  employees,  1916D-1058. 

"Law":  ordinance  as  "law"  within  mean- 
ing of  constitutional  provision,  1917C- 
687. 

Loan  brokers:  state  or  municipal  regula- 
tion of  personal  property  loan  brokers, 
1916E-618. 

Mechanics'  liens:  validity  of  mechanic's 
lien  law  providing  for  taxing  of  attor* 
ney's  fees,  1916D-1044. 

Mercantile  agencies:  statutory  regulation 
of  mercantile  agencies,  1916D-749. 

Mines  and  minerals:  statutory  regulation 
of  sale  of  petroleum  products,  191 7 A- 
167. 

— validity  of  license  tax  imposed  on  owner 
of  premises  for  extracting  mineral 
therefrom,   1918A-678. 

Motorcycles:  statutory  regulation  of  mo- 
torcycles, 1917A-218. 

Moving  pictures:  statutory  regulation  of 
moving  pictures,  1916C-301. 

Municipal  corporations:  commission  form 
of  municipal  government,  1917C-1103. 

— interest  on  municipal  bonds  as  factor  in 
determining  whether  municipality  has 
exceeded  constitutional  debt  limit, 
1918B-098. 

Names:  validity  and  construction  of  stat- 
ute authorizing  change  of  name  by  in-" 
dividual,  1917A-437. 

Nursing:  state  regulation  of  practice  of 
nursing,  1917C-168. 

Parades:  validity  of  statute  or  ordinance 
regulating  parades  or  processions, 
1916D-847. 

Partial  invalidity  of  constitution:  effect  of 
partial  invalidity  of  provision  in  state 
constitution,  1916D-15. 

Physicians  and  surgeons:  special  regula- 
tion of  Christian  Science  or  other 
drugless  treatment  of  disease,  1917B- 
798. 

— special  regulation  of  persons  treating 
ocular  diseases,  1917B-S03. 

Police:  validity  of  statutes  creating  met- 
ropolitan police,  1917D-1112. 

Privies:     validity     of     statute     or     ordi- 
nance regulating  out-of-door   closets   or 
privies,  1916D-212. 

Process:  validity  of  statute  providing  for 
service  on  agent  of  nonresident  part- 
nership, 1916D-  813. 

Processions:  validity  of  statute  or  ordi- 
nance regulating  parades  or  proces- 
sions, 1916D-847. 

Prostitution:  validity  and  ronstniction  of 
statute    making    owner    of    premises 


CONSTITUTIONAL  LAW— Continued, 
liable  for  use  thereof  for  purpose  of 
prostitution,  1917A-459. 

Public  officers:  estoppel  of  public  oflScer  to 
deny  validity  of  statute  by  accepting 
compensation    thereunder,    1917C-284. 

— right  of  woman  to  be  notary  public, 
19l7D-^34. 

— validity  and  construction  of  anti-nepo- 
tism law,   1917D-735. 

— validity  of  statute  establishing  fund  for 
bonding  of  public  officers,  1918A-603. 

Public  service  commissions:  power  of  pub- 
lic service  commission  to  compel  car- 
rier to  furnish  particular  class  of  ser- 
vice, 1917B-1160. 

— power  of  public  service  commission  to 
make  test  order,  1917E-794. 

— power  of  public  service  commission  to 
prevent  maintenance  of  electric  wires 
in  close  proximity,  1918B-847. 

—power  of  public  service  commission  to 
regulate  running  time  of  trains, 
1916D-1034. 

— validity  of  order  of  public  service  com- 
mission regulating  commutation  rates, 
1917B-1153. 

— validity  of  order  of  public  service  com- 
mission requiring  running  of  Sundav 
train,  1917B-1205. 

— validity  of  statute  conferring  on  com- 
mission power  to  fix  rates  for  public 
service  corporations,  1917C— 57. 

— validity  of  statute  conferring  on  public 
service  commission  or  other  body  ju- 
risdiction of  eminent  domain  proceed- 
ings, 1916C-420. 

— validity  of  statute  conferring  on  public 
service  commission  power  to  deter- 
mine necessity  for  construction  or  ex- 
tension of  public  utility,  1916E-299. 

Eailroads:  state  regulation  of  railroads  as 
interference  with  interstate  com- 
merce, 1917A-973. 

Schools:  power  of  legislature  with  respect 
to  expenditure  of  school  funds,  1917C- 
917. 

— validity  of  health  regulation  relating  to 
school  children,  1917A-765. 

—validity  of  statute  fixing  minimum  sal- 
ary of  school  teachers,  1916E— i20. 

— validity  of  statutory  or  other  prohibi- 
tion against  secret  societies  among 
students,  1916E-527. 

Second  hand  clothing,  etc.:  state  or  muni- 
cipal regulation  of  use  or  sale  of  sec- 
ond hand  clothes,  bedding,  or  the  like, 
1917C-1068. 

Smoke:  validitv  of  smoke  ordinance  or 
statute,  1918B-173. 

Statutes:  effect  of  partial  invalidity  of 
statute,   1916D-9. 

— effect  of  repeal  or  amendment  of  repeal- 
ing statute  as  reviving  repealed  stat- 
ute, 1918B-281. 

Streets  and  highways:  constitutionality  of 
statutes  and  ordinances  regulating 
speed  of  vehicles  in  streets  and  high- 
ways, 1916E-1067. 


INDEX  TO  THE  NOTES. 


23 


CONSTITUTIONAL  LAW— Continued. 

Streets  and  highways:  validity  of  ordi- 
nance prohibiting  use  of  streets  by 
business  vehicles,   1916E-969. 

Taxation:  constitutionality  of  poll  taxes, 
1917E-I208, 

—liability  to  taxation  within  state  of 
shares  of  stock  of  foreign  corporation, 
1916C-829. 

— ^public  property  as  subject  to  special  as- 
sessment, 19'l7D-844, 

— validity  and  construction  of  statute  giv- 
ing priority  to  lien  for  taxes,  I917A— 
1079. 

—validity  of  exemption  froi)i  taxation  of 
money  loaned  on  mortgage  security, 
1916E-757. 

— validity  of  statute  imposing  restriction 
on  exercise  of  rights  by  delinquent 
taxpayer,  1916D-1099. 

Transient  merchants:  state  or  municipal 
regulation  of  transient  merchants, 
1917E-505. 

Trees  and  timber:  validity  anfl  construc- 
tion  of  forestry  legislation,   1917A-'5. 

— validity  of  license  tax  imposed  on  owner 
of  premises  for  extracting  turpentine 
therefrom  or  cutting  timber  thereon, 
1918A-678. 

Telegraphs  and  telephones:  power  of 
municipality  to  construct  and  operate 
municipal  telephone  system,  1918A- 
380. 

War:  compulsory  militarv  service,  1917C- 
812. 

— expatriated  person  as  alien  enemy, 
1916D-306, 

— nature  and  scope  of  war  power,  1918B- 
1009. 

— rights  and  liabilities  of  alien  enemies, 
1917C-189. 

"Waters  and  watercourses:  power  of  state 
to  grant  title  to  land  under  navigable 
water,  1918B-1107. 

"Witnesses:  "Waiver  by  witness  of  consti- 
tutional privilege  as  extending  to  sub- 
sequent trial  or  proceeding,  1916C- 
1012. 

"Workmen's  compensation  acts:  constitu- 
tionality of  workmen's  compensation 
act,  1918B-611. 

CONSTRUCTION. 
See  Automobiles;  Bills  and  Notes;  Con- 
tracts; Deeds;  Drunkenness;  Elec- 
tions; Fish  and  Game;  Insurance; 
Jury;  Landlord  and  Tenant;  Munici- 
pal Corporations;  Physicians  and  Sur- 
geons; Statutes;  "Warehouses;  Waters 
and  "Watercourses;  Wills, 

CONSTRUCTIVE  DELIVERY. 
See  Frauds,  Statute  of. 

CONSTRUCTIVE  NOTICE. 
See  Recording  Acts. 

CONSTRUCTIVE   TOTAL  LOSS. 
See  Marine  Insurance. 


CONSTRUCTIVE  TRUSTS. 
See  Trusts  and  Trustees. 

CONSULS. 
See  Ambassadors  and  Consuls. 

CONSUMERS. 
See  Food  and  Drugs. 

CONSUMMATION  OF  CONTRACT. 
See  Contracts. 

CONTEMPT. 

Liability  of  corporation  for  criminal  con- 
tempt, 1916C-463. 

Power  of  juvenile  court  to  punish  for  con- 
tempt, 1916E-1014. 

Power  of  legislature  to  punish  person 
other  than  witness  for  contempt, 
1918B-378. 

Practicing  law  without  license  as  con- 
tempt of  court,  1917B-1200. 

"What  constitutes  cruel  and  unusual  pun- 
ishment for  contempt  of  court,  1918B- 
398. 

CONTENTS. 
Meaning  of  "contents"  or  similar  expres- 
sion as  used  in  will  in  connection  with 
property      bequeathed      or      devised, 
19160-1139. 

CONTEST. 
See  Wills. 

CONTINGENCY. 
See  Frauds,  Statute  of. 

CONTINGENT  REMAINDERS. 
See  Remainders  and  Reversions. 

CONTINUANCE. 
See  Trial. 

CONTINUANCE  IN  SERVICE, 
See  Master  and  Servant. 

CONTRACTORS. 
See  Building  Contracts. 

CONTRACTS. 

Alien  enemies:  contract  rights  of  alien 
enemy,  1917C-195. 

Amusement  contracts,  19i7C-391. 

Attorneys:  lien  of  attorney  on  contract  in 
liis  possession  connected  with  litiga- 
tion, 1917D-149. 

Automobiles:  nature  and  construction  of 
automobile  sales  agency  contracts, 
1917E-568. 

Bids:  implied  liability  of  municipality 
under  contract  let  contrary  to  statute 


24 


CONTEACTS— Continued. 

requiring  competitive  bidding,  1917A- 
1263. 

Bids:  necessity  for  readvertisement  where 
bidder  to  whom  municipal  contract  is 
awarded  fails  to  comply  with  condi- 
tions or  abandons  work,  1916D-1189. 

— rights  of  parties  with  respect  to  certi- 
fied check  or  other  deposit  made  with 
bid,  1916C-427. 

Breacb:  exemplary  damages  in  action  on 
contract  other  than  contract  to  marry, 
1917E^12. 

— ^Injunction  as  remedy  for  breach  of  ex- 
press covenant  not  to  engage  in  same 
business  as  covenantee,   1916C-187. 

— measure  of  damages  for  breach  of  con- 
tract to  make  will,  1918A-854. 

— measure  of  damages  for  breach  of  con- 
tract to  sell  land  due  to  vendor's  in- 
ability to  make  title,  1917B-858. 

— ^recovery  of  profits  as  damages  for 
breach  of  contract  to  sell  on  commis- 
sion, 1917B-1194. 

— remedies  of  party  to  contract  upon  anti- 
cipatory breach  thereof  or  prevention 
of  performance,   1917E-712. 

— running  of  statute  of  limitations  against 
action  for  services  performed  in  con- 
sideration of  oral  agreement  to  com- 
pensate by  will,  1918A-912. 

— ^war  as  excuse  for  breach  oif  contract, 
1918A-14. 

— whether  stipulated  forfeiture  for  breach 
of  contract  a  penalty  or  liquidated 
damages,  1917D-739. 

Building  contracts:  principal  contractor  as 
necessary  party  defendant  to  action  to 
foreclose  mechanic's  lien,  1918B-6. 

— right  of  building  contractor  to  rescind 
contract  for  failure  of  owner  to  make 
payment,  1916C-54. 

Carriers:  statute  regulating  contracts  of 
carriers  as  interference  with  interstate 
commerce,  1917A-973. 

Computation  of  time:  exclusion  or  inclu- 
sion of  Sunday  or  holiday  in  compu- 
tation of  time  for  performance  of  act 
under  contract,  1917E-945. 

Convicts:  contractual  capacity  of  convict, 
1916D-225. 

"Damage  by  elements":  construction  of 
phrase  "damage  by  elements"  or  simi- 
lar phrase  as  used  in  contract,  1917B- 
298. 

Infants:  infancy  as  defense  to  action  for 
money  loaned,  1916C-999. 

— power  of  infant  to  consent  to  issuance 
of  liquor  license,   1916C-497. 

— right  of  infant  who  repudiates  contract 
for  services  to  recover  therefor, 
1916E-261. 

— what  constitutes  reasonable  time  for  in- 
fant to  disaffirm  contract  after  major- 
ity, 1917D-413. 

Interference:  civil  liability  for  interfer- 
ence with  contract  relations,  1916E- 
608. 


DIGEST. 

1916C— 1918B. 

CONTRACTS— Continued. 

Insurance:  contract  for  burial  as  insur- 
ance contract,  I916C-I016. 

—what  is  an  "insurance  company"  or  "con- 
tract of  insurance,"  1916C-1022. 

Militia:  enlistment  in  militia  as  contract, 
1917B-244. 

Municipal  corporations:  implied  liability 
of  municipality  under  contract  let  con- 
trary to  statute  requiring  competitive 
bidding,  1917A-1263. 

— liability  of  municipality  or  officer  for 
failure  to  take  from  contractor  bond 
for  protection  of  laborers  or  material- 
men, 1917B-1089. 

— mandamus  as  remedy  in  behalf  of  muni- 
cipality to  compel  performance  of  con- 
tractual obligation,  1918A-915, 

^necessity  for  readvertisement  where  bid- 
der to  whom  municipal  contract  is 
awarded  fails  to  comply  with  condi- 
tions or  abandons  work,  1916D-1189. 

— power  of  municipality  to  enter  into 
partnership  contract  for  construction 
of  improvement,  1916C-909. 

— rights  of  parties  with  respect  to  certified 
check  or  other  deposit  made  with  bid, 
1916C-427. 

Offer  and  acceptance:  acceptance  of  offer 
once  rejected  as  consummating  con- 
tract of  sale,  1917C-987. 

Pleading:  inconsistent  defenses  in  action 
growing  out  of  contract,  1917C-715. 

Validity:  admissibility  of  parol  evidence 
to  show  illegality  of  contract,  1917I>- 
426. 

— effect  of  partial  invalidity  of  ante- 
nuptial contract,  1918B-925. 

— illegal  contracts  as  to  compensation  by 
agents  of  vendor  or  vendee,  1917A- 
511. 

— legalitv  of  blacklisting  agreement, 
1917A-644. 

— presumption  and  burden  of  proof  of 
undue  influence  in  case  of  convey- 
ance inter  vivos  bv  parent  to  child, 
1918B-457. 

— principle  of  estoppel  as  applicable  to 
rights  of  parties  under  void  Sunday 
contract,  1916E-467. 

— renewal  contract  as  affected  by  usury 
in   original    contract,    1918A-753. 

-^right  of  railroad  company  to  grant  ex- 
clusive privileges  on  depot  grounds, 
191SA-702. 

— solicitation  of  business  by  attorney  as 
forfeiture  of  right  to  compensation 
therefor,  1917C-S72. 

— validity  and  effect  of  contract  induced 
by  threats  of  criminal  prosecution 
against  friend,  or  relative  other  than 
parent,  child  or  spouse,  1917C-1033. 

— validity  and  effect  of  contract  of  par- 
ent or  child  induced  by  threats  of 
criminal  prosecution  against  other, 
1917C-1026. 

— validity  of  agreement  by  person  other 
than  attorney  to  collect,  settle  or  com- 
promise claim  for  commission,  1918A- 
797. 


INDEX  TO  THE  NOTES. 


25 


CONTEACTS — Continued. 

Validity:  validity  of  contract  designed  to 
influence  public  election,  1917C-350. 

— validity  of  contract  for  compensation  of 
attorney  made  after  fiduciary  relation 
is  established,  1917A-531. 

— validity  of  contract  for  contingent  com- 
pensation in  procuring  legislation, 
1916E-948. 

— validity  of  contract  made  by  telephone, 
1917B-907. 

— validity  of  contract  not  to  change  will, 
1916D-1160. 

— validity  of  contract  of  adoption  not 
made  in  conformity  with  statute, 
1916D-1110. 

— validity  of  contract  to  prevent  bidding 
at  judicial  sale,  1917D-232. 

— validity  of  contract  to  procure  pardon 
or  parole,  1917D-890. 

— validity  of  sale  of  liquors  where  seller 
knows  same  will  be  illegally  resold, 
1918B-978. 

— validity  of  stipulation  for  attorney's  fee 
in  promissory  note,  1917D-365. 

— validity  of  transfer  of  expectancy  in 
estate  made  by  heir  or  beneficiary  to 
stranger,  1916E-1241. 

See  also  Agency;  Alteration,  of  In- 
struments; Antenuptial  Agreements; 
Banks;  Beneficial  Associations;  Bills 
and  Notes;  Blacklisting;  Breach  of 
Promise  of  Marriage;  Brokers;  Build- 
ing and  Loan  Associations;  Carriers 
of  Goods;  Chambers  of  Commerce; 
Compromise  and  Settlement;  Corpo- 
rations; Dower;  Executors  and  Ad- 
ministrators; Frauds,  Statute  of; 
Homestead;  Husband  and  Wife;  Im- 
migration; Landlord  and  Tenant; 
Master  and  Servant;  Mechanics' 
Liens;  Mines  and  Minerals;  Monopo- 
lies; Parent  and  Child;  Parol  Evi- 
dence; Release  and  Discharge;  Sales; 
Suretyship;  Telegraphs  and  Tele- 
phones; Vendor  and  Purchaser. 

CONTRIBUTION. 

Eight    of   contribution  between    partners, 
1916D-820. 
See  also  Adjoining  Landowners.' 

OONTRIBUTOEY  NEGLIGENCE. 

Adjoining  landowners:  contributory  negli- 
gence of  adjoining  owner  as  affecting 
liability  of  landowner  excavating  on 
his  own  premises,  1917A-356, 

Animals:  contributory  negligence  as 
affecting  liability  of  owner  for  inju- 
ries caused  by  runaway  horse,  1916E- 
1117. 

Attempt  to  save  life:  contributory  negli- 
gence in  attempt  to  save  human  life, 
1917C-654. 

Automobiles:  contributory  negligence  of 
pedestrian  as  affecting  liability  for 
injury  by  automobile,  1916E-669. 

—negligence  of  driver  as  imputable  to  oc- 
cupant of  automobile,  1916C-268. 


CONTEIBUTOEY  NEGLIGENCE— Con- 
tinued. 

Carriers  of  passengers:  contributory  neg- 
ligence as  affecting  liability  of  car- 
rier of  passenger  for  injury  to  person 
riding  in  charge  of  stock,  1917E-152. 

• — contributory  negligence  of  passenger  in 
alighting  from  street  car  and  passing 
to  rear  of  it  across  parallel  tracks 
without  looking  for  approachine  car. 
I916E-998.        *  ^*'  »         ' 

— contributory  negligence  dl  passenger  in 
permitting  part  of  his  body  to  pro- 
trude from  car,  1916C-1218. 

— failure  of  carrier  to  enforce  rule  as 
affecting  contributory  negligence  of 
passenger  in  violation  thereof,  1916E- 
1308. 

Contributory  negligence  as  defeating  re- 
covery where  previous  negligence  of 
defendant  has  incapacitated  him  from 
avoiding  injury  to  plaintiff,  I916D- 
501. 

Gas:  contributory  negligence  as  affecting 
liability  of  gas  company  for  escape 
of  gas,  1916E-280. 

Imputed  negligence:  negligence  of  driver 
as  imputable  to  occupant  of  automo- 
bile, 1916C-268. 

— negligence  of  driver  as  imputable  to  oc- 
cupant of  vehicle,  1&16E-685. 

Master  and  servant:  contributorv  negli- 
gence as  affecting  liability  of  master 
to  servant  with  respect  to  animal  fur- 
nished by  him  to  servant,  1917A-314. 

— contributory  negligence  of  domestic 
servant  as  precluding  recovery  from 
master  for  personal  injuries,  1917D- 
501. 

Motorcycles:  contributory  negligence  of 
driver  of  motorcycle  as  affecting  right 
to  recover  for  collision  with  auto- 
mobile, 1917A-222. 

Eailroads:  contributory  negligence  of  per- 
son on  track  at  place  other  than 
crossing  as  affecting  liabilitv  for  in- 
jury by  train  running  without  head- 
light, 1918A-1184. 

Street  railways:  contributory  negligence 
of  pedestrian  as  affecting  liability  for 
injuries  by  street  car  in  rounding 
curve,  1916E-682. 

Streets  and  highways:  contributory  negli- 
gence as  affecting  liability  for  inju- 
ries sustained  by  pedestrian  from  coal 
hole  in  sidewalk,  1917D-496. 

Wharves:  contributory  negligence  as  pre- 
cluding recovery  for  injuries  sustained 
on  defective  wharf,  1916C-157. 

CONVERSATION. 

See   Libel   and   Slander;    Telegraphs   and 

Telephones. 

CONVERSION. 

Measure  of  damages  for  conversion  of, 
or  failure  to  deliver,  household  goods, 
1917B-585. 

Measure  of  damages  for  conversion  of 
shares  of  stock,  1916C-641. 


26 


CONVEYANCES. 
See  Deeds. 

CONVICTION. 
See  Criminal  Law. 

CONVICTS. 

Contractual    capacity    of    convict,    1916D- 

225. 
Bight  to  inflict    corporal    punishment    on 

convict,  1916C-130. 
Service  of  process  on  convict,  1916D-1207. 
See  also  Prisons  and  Prisoners;  Befonua- 
tories. 

COPIES. 
See  Foreign  Laws. 

COPYRIGHT. 

Application  of  copyright  law  to  moving 
pictures,  I916C-305. 

COBONERS. 

Admissibility  of  coroner's  verdict  as  evi- 
dence in  subsequent  proceedings, 
1917B-892. 

Bight  of  accused  or  suspected  person  to 
appear  by  counsel  at  coroner's  inquest, 
1916D-394. 

COBPOBAL  PUNISHMENT. 
See  Convicts. 

COBPOBATIONS. 

Chambers  of  commerce:  powers  and  lia- 
bilities of  private  corporation  or  as- 
sociation organized  to  promote  busi- 
ness interests  of  community,  1917C- 
787. 

Charitable  corporations:  fire  company,  in- 
surance patrol  or  the  like  as  charitable 
institution,  1917C-797. 

"Citizen"  as  including  corporation,  1917C- 
875. 

Consolidation:  necessity  of  assent  of  all 
stockholders  to  consolidation  of  cor- 
porations, 1918A-165. 

Crimes:  criminal  liability  of  corporation 
for  act  of  misfeasance  other  than  hom- 
icide, 1916C-459. 

— method  or  process  by  which  court  may 
acquire  jurisdiction  of  defendant  cor- 
poration in  criminal  case,  1916E-1289. 

Debt  limit:  construction  of  debt  limit  pro- 
vision in  charter  of  private  corpora- 
tion, 1918B-966. 

Dissolution:  dissolution  of  attachment  by 
dissolution  of  defendant  corporation, 
1917A-159. 

■ — dissolution  of  corporation  as  abating  ac- 
tion against  it  to  recover  penalty  or 
forfeiture,  1917A-1180. 


DIGEST. 

1916C— 1918B. 

COBPOBATIONS— Continued. 

Toreign  corporations:  imposition  of  license 
tax  or  fee  on  foreign  corporation, 
1916C-1248. 

—liability  to  suit  within  state  of  foreign 
corporation  which  has  revoked  desig- 
nation of  agent  for  service  of  pro- 
cess and  has  ceased  to  do  business 
within  state,  1916D-378. 

— ^liability  to  taxation  within  state  of 
shares  of  stock  of  foreign  corporation, 
1916C-829. 

— right  to  issue  attachment  against  for- 
eign corporation  on  ground  of  non- 
residence,  1916E-362. 

—right  to  serve  process  on  public  oflBcial 
or  designated  agent  of  foreign  corpo- 
ration in  action  arising  out  of  trans- 
action in  another  state,  1918A-392. 

— validity  of  statute  designating  particular 
kind  of  agent  foreign  corporation  on 
whom  process  may  be  served,  1916E- 
339. 

Libel  and  slander:  liability  of  corporation 
for  libel  or  slander,  1917D-967. 

Mortgages:  power  of  trustee  of  corporate 
mortgage  to  release  mortgaged  prop- 
erty, 1916D-1182. 

— right  of  creditor  to  object  to  mortgage 
of  property  of  corporation  made  with- 
out required  consent  of  stockholders, 
1916C-1039. 

Officers:  acceptance  of  office  in  private  cor- 
poration,  1917D-516. 

— authority  of  officer  of  corporation  to 
enter  into  contract  for  purchase  or 
sale  of  real  estate,  1917A-482. 

—distinction  between  "office"  and  "em- 
ployment" in  private  corporation, 
1917D-320. 

— eligibility  of  officer  of  corporation  to 
whom  stock  is  transferred  for  purpose 
of  enabling  him  to  become  officer, 
I916C-963. 

— implied  authority  of  officers,  agents,  or 
servants  to  contract  for  medical,  sur- 
gical, or  other  attendance  or  supplies 
for  sick  or  injured  persons,  1918A-791. 

— liability  of  corporate  director  to  corpo- 
ration or  stockholder  for  secret  profits, 
l'917A-238. 

— liability  of  person  signing  negotiable 
paper  as  officer  of  corporation,  1917D- 
568. 

—presumption  that  contract  executed  by 
president  of  corporation  is  authorized 
by  corporation,  1917A-360. 

— ^purchase  of  stock  by  director  as  affected 
bv  fiduciary  relation  to  stockholder, 
1918B-241. 

— right  to  notice -of  dishonor  of  stockholder 
or  officer  indorsing  corporate  paper, 
1917B-836. 

— stockholder  or  officer  of  corporation  in- 
terested in  instrument  as  disqualified 
to  take  acknowledgment  thereof, 
1916D-705. 

Predecessor:  liability  of  corporation  for 
debts  of  predecessor,  l916I)-658. 


INDEX  TO  THE  NOTES. 


27 


CORPORATIONS — Continued. 

Promoters:  liability  of  corporation  to  third 
parties  on  contracts  of  its  promoters, 
1916C-105. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  corporations, 
1916D-38. 

Stock  and  stockholders:  admissibility  in 
evidence  of  books  or  records  of  corpo- 
ration in  action  between  members  or 
between  corporation  and  member, 
1917D-558. 

— alteration  in  charter  or  change  in  corpo- 
rate design  as  releasing  subscriber  to 
stock,  1918A-79. 

— effect  on  sales  of  corporate  stock  of  sev- 
enteenth section  of  statute  of  frauds 
and  equivalent  enactments,  1917C-991. 

— law  governing  ,  transfer  of  corporate 
stock,  1917D-959. 

— liability  for  corporation  debts  or  calls 
of  person  who  holds  stock  as  collat- 
eral security,  1916C-567. 

— liability  to  taxation  within  state  of 
shares  of  stock  of  foreign  corporation, 
1916C-829. 

— liability  of  corporate  director  to  corpo- 
ration or  stockholder  for  secret  profits, 
1917A-238. 

— liability  on  stock  subscription  as  de- 
pendent upon  whole  amount  of  stock 
having  been  subscribed,  1918B-1137. 

— measure  of  damages  for  conversion  of 
shares  of  stock,  1916C-641, 

— necessity  of  assent  of  all  stockhold- 
ers to  consolidation  of  corporations, 
1918A-165. 

— preferred  shareholder  as  creditor  or 
stockholder  of  corporation,  1917B-55S. 

— purchase  of  stock  by  director  as  affected 
by  fiduciary  relation  to  stockholder, 
1918B-241. 

— right  of  stockholder  to  inspect  books  of 
corporation  as  absolute  or  qualified, 
1917D-S98. 

— right  of  stockholder  to  preference  in 
subscribing  for  new  stock,  1918B-132. 

— rights  of  unregistered  transferee  as 
against  attachment  or  execution  levied 
on  stock,  1917A-42S. 

— right  to  notice  of  dishonor  of  stockholder 
or  officer  indorsing  corporate  paper, 
1917B-836. 

— situs  of  corporate  stock  for  purposes  of 
succession  tax,  1918A-555. 

— stockholder  or  officer  of  corporation  in- 
terested in  instrument  as  disqualified 
to  take  acknowledgment  thereof, 
1916D-705. 

— sufficiency  as  to  contents  of  notice  of 
special  meeting  of  stockholders,  1917E— 
1004. 

— validity  and  effect  of  statute  making 
stockholder  liable  for  corporate  debts 
after  bona  fide  transfer  of  stock, 
1917A-109. 

— validity  of  corporate  by-law  regulating 
alienation  of  stock,  1916D-1202. 


CORPORATIONS— Continued. 

Stock  and  stockholders:  validity  of  insur- 
ance policy  issued  by  agent  on  prop- 
erty of  corporation  of  which  agent  is 
stockholder,  1916D-1275. 

— waiver  of  notice  of  stockholders'  meet- 
ing, 1916E-1038. 

— when  subscriber  to  stock  becomes  stock- 
holder, 1917E-209. 

Taxation:  effect  of  partial  invalidity  of 
statute  relating  to  taxation  of  corpo- 
ration, 1916D-91. 

— imposition  of  license  tax  or  fee  on  for- 
eign corporation,  1916C-1248. 

— ^liability  to  taxation  within  state  of 
shares  of  stock  of  foreign  corporation. 
1916C-829. 

— situs  of  corporate  stock  for  purposes  of 
succession  tax,  1918A-555. 

— situs  of  income  of  corporation  for  pur- 
pose of  income  tax,  1918A-426. 

See  also  Insurance;  Public  Service  Com- 
missions; Public  Service  Corporations; 
Public  Utilities;  Religious  Societies; 
Trademarks  and  Trade  Names. 

CORROBORATION. 
See  Confessions. 

COSTS. 

Allowance  of  costs  in  proceeding  in  juve- 
nile court,  1916E-1018. 

Constitutionality  of  statutes  requiring  pre- 
payment or  taxation  as  costs  of  jury 
fees,  1917B-308. 

Costs  in  action  for  penalty  for  violation 
of  intoxicating  liquor  statute,  1916E- 
873. 

Liability  of  landowner  for  costs  on  appeal 
in  eminent  domain  proceeding,  1917E- 
262. 

Power  of  court  to  impose  costs  on  attorney 
for  misconduct,  1917B-43. 

COSURETIES. 
Bee  Suretyship. 

COTENANCY. 
See  Estates. 

COUNCIL. 
Bee  Municipal  Corporations. 

COUNSEL, 
See  Attorneys;   Schools. 

COUNTERCLAIM. 
See  Set-off. 

COUNTIES. 

County  propertv  as  subject  to  special  as- 
sessment, 1917D-847. 


28 


COUNTIES — Continued, 

Effect  of  partial  invalidity  of  statute  re- 
lating to  counties,  1916D-40. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  county  courts,  1916D-42. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  county  officers,  1916D-82. 

COUESE  OF  CONDUCT. 
See  Divorce. 

COUBSE   OF  EMPLOYMENT. 

See  Employers'  Liability  Acts;  Workmen's 
Compensation  Acts. 

C0UBT8. 

Army  and  navy:  criminal  jurisdiction  of 
state  court  over  member  of  national 
guard,  1917A-279. 

— ^jurisdiction  of  court  over  military  forces, 
1917C-8. 

"Citizen"  as  including  corporation  for  pur- 
pose of  giving  court  jurisdiction, 
1917C-875. 

Corporations:  method  or  process  by  which 
court  may  acquire  jurisdiction  of  de- 
fendant corporation  in  criminal  case, 
1916E-1289. 

Courthouses:  effect  of  partial  invalidity 
of  statute  relating  to  county  court- 
house,  1916D-41. 

Dead  bodies:  power  of  court  to  order  ex- 
humation of  dead  body  for  evidentiary 
purposes,   1916D-331. 

Decisions:  criminality  of  act  committed 
after  decision  holding  statute  inappli- 
cable and  before  reversal  of  decision, 
1916E-373. 

— force  and  effect  of  advisory  opinion  by 
appellate  judges,  1917A-495. 

False  pretenses:  jurisdiction  of  offense  of 
obtaining  property  by  false  pretenses, 
1917E-311. 

Holidays:  right  to  hold  court  on  holiday, 
1916E-852. 

— validity  of  judicial  business  performed 
on  holiday,   1916E-S49. 

Indictments:  power  of  court  to  set  aside 
indictment  on  own  motion  and  order 
resubmission,   1918A-860. 

Intoxicating  liquors:  jurisdiction  of  action 
for  penalty  for  violation  of  intoxicat- 
ing liquor  statute,  1916E-872. 

Judicial  notice:  judicial  notice  of  con- 
tents of  legislative  journals  on  issue 
as  to  enactment  of  statute,  1916E— 
1284. 

— judicial  notice  of  mortality  tables, 
1918B-415. 

— judicial  notice  of  proceedings  for  adop- 
tion of  amendment  to  constitution, 
1917D-1031. 

Jury:  power  of  court  to  exclude  person 
from  jury  service,  1916C-1209. 

Juvenile  courts:  effect  of  partial  invalidity 
of  statute  relating  to  juvenile  offend- 
ers and  courts,  1916D-67. 


DIGEST. 

1916C— 1918B. 

COURTS — Continued. 

Juvenile  courts:  establishment  of  and  pro- 
cedure in  juvenile  courts,  1916E-1010. 

Lost  instruments:  jurisdiction  of  action  on 
lost  instrument,  1917A-1289. 

Names:  right  of  individual  to  change  name 
as  resting  in  judicial  discretion, 
1917A-437. 

National  banks:  jurisdiction  of  action 
against  national  bank  to  recover  pen- 
alty for  taking  usurious  interest, 
1916D-1246. 

Naturalization:  grounds  for  revocation  of 
naturalization,   19170-45. 

"Order  of  court":  what  constitutes  "order 
of  court,"  1917C-1041. 

Ordinances:  judicial  inquiry  into  motives 
prompting  enactment  of  legislative  or- 
dinance, 1917B-834. 

Sewers:  power  of  court  lo  compel  munici- 
pality to  remove,  construct  or  enlarge 
sewer,  1917E-308. 

Statutory  regulation:  effect  of  partial  in- 
validity of  statute  relating  to  courts, 
1916D-42. 

Telephones:  validity  of  notice,  application, 
or  order  of  court  given  by  telephone, 
1917B-903. 

Term  of  court:  exclusion  or  inclusion  of 
Sunday  or  holiday  in  computation  of 
time  of  term  of  court  or  quasi-judicial 
body,  1917E^937. 

Wills:  conclusiveness  in  domestic  courts  of 
foreign  will  duly  probated  abroad, 
191SA-614. 

— jurisdiction  of  equity  to  reform  will, 
1917D-1157. 

See  also  Appeal  and  Error;  Attorneys; 
Contempt;  Discovery;  Injunctions; 
Judgments;  New  Trial;  Prosecuting 
Attorneys;  Removal  of  Causes;  Trial; 
Venue;  Verdict. 


COVENANTS. 

See  Contracts;  Deeds;  Landlord  and  Ten- 
ant: Mines  and  Minerals;  Vendor  and 
Purchaser. 


CREDIBILITY. 
See  Witnesses. 

CREDIT  INSURANCE. 

Contracts  of  credit  insurance,  1917D-75. 

CREDITORS. 

See  Debtor  and  Creditor  and  cross-refer- 
ences thereunder. 

CRIMINAL  CONVERSATION. 

Action  bv  wife  for  criminal  conversation, 

1916C-74S. 
Proof  of  marriage  in  action  for  criminal 

conversation,  1917A-755. 


INDEX  TO  THE  NOTES. 


29 


CEIMINAL  LAW. 

Abortion:  woman  upon  whom  abortion  is 
committed  as  accomplice,  1916C-629. 

Adultery:  connivance  or  procurement  by 
other  spouse  as  defense'  to  prosecution 
for   adultery,   1916E-741. 

— persons  capable  of  committing  crime  of 
adultery,  1917A-703. 

Alien  labor:  soliciting  or  importing  alien 
contract  labor  as  crime,  1917C-261. 

Army  and  navy;  criminal  jurisdiction  of 
state  court  over  member  of  national 
guard,  1917A-279. 

— criminal  liability  of  soldier  or  militia- 
man for  injury  to  person  or  property, 
1917C-25. 

— liability  of  civilian  for  purchasing  or 
receiving  in  pledge  public  property 
from  soldier  or  sailor,  1918B-523. 

Arraignment:  waiver  of  arraignment  in 
criminal  case,  1917D-829. 

Arrest:  jurisdiction  to  try  prisoner  forcibly 
or  unlawfully  brought  within  jurisdic- 
tion, 1917D-229, 

Assault:  declarations  of  infant  at  time  of 
assault  as  part  of  res  gestae,  1916C- 
1187. 

— defense  of  property  as  justification  for 
assault,  1917D-291. 

— discharging  firearm  to  frighten  person  as 
assault,  1917D-617. 

— right  of  person  assaulted  on  his  own 
premises  to  repel  attack  without  re- 
treating, 1916C-918. 

— trespass  as  justification  of  assault  and 
battery,  1917D-37. 

Automobiles:  construction  of  statute  re- 
quiring person  operating  automobile 
to  give  name  and  address  to  person  in- 
jured, 1917E-588. 

Banks:  criminal  liability  of  officer  of  in- 
solvent bank  for  receiving  deposit 
therein  consisting  of  check  on  same 
bank,  1916E-592. 

Intent  as  element  of  offense  of  receiving 
deposit  in  insolvent  bank,  1917B-1081. 

Bigamy:  cohabitation  under  foreign  mar- 
riage as  bigamy,  1917C-1141. 

— husband  or  wife  as  competent  witness 
in  prosecution  for  bigamy,  1916C-1060. 

Bribery:  promise  to  do  certain  things  after 
election  as  bribery  of  electors,  1918A- 
888. 

— sufficiency  of  indictment  or  information 
for  bribery  with  respect  to  allegation 
of  value  of  thing  offered  or  received 
as  bribe,   1918A-314. 

Burglary:  burglary  by  opening,  sufficiently 
to  gain  entrance,  door  or  window 
partly   open,   1916C-320. 

— ^unauthorized  entry  of  premises  by  em- 
ployee of  owner  as  burglarious  entry, 
1916E-534. 

"Child"  in  statute  relating  to  crime  as 
including  illegitimate  child,  1918B- 
254. 

Common  law:  adoption  of  common  law  in 
relation  to  crimes,  1918A-990. 


CBIMINAL  LAW— Continued. 

Confessions:  admissibility  of  confession 
obtained  by  fraud. or  trick,  1916D-966. 

— confession  of  defendant  as  sufficient  cor- 
roboration  of   accomplice,    1916C-570. 

— intoxication  as  affecting  admissibility 
of  confession,  1916C-1168. 

Coroners:  admissibility  of  coroner's  verdict 
as  evidence  in  criminal  action,  1917B- 
893. 

— right  of  accused  or  suspected  person  to 
appear  by  counsel  at  coroner's  request, 
1916D-394. 

Corporations:  criminal  liability  of  corpora- 
tion for  act  of  misfeasance  other  than 
homicide,  1916C-459. 

— method  or  process  by  which  court  may 
acquire  jurisdiction  of  defendant  cor- 
poration in  criminal  case,  1916E-1289. 

Deaf  and^  dumb  persons:  responsibility  of 
deaf  and  dumb  persona  for  crime, 
1917B-240. 

Detectives:  criminal  liability  of  private 
detective,  1917A-588. 

Duress:  validity  and  effect  of  contract  in- 
duced by  threats  of  criminal  prosecu- 
tion against  friend,  or  relative  other 
than  parent,  child  or  spouse,  1917C- 
1033. 

— validity  and  effect  of  contract  of  parent 
or  child  induced  by  threats  of  criminal 
prosecution  against  other,  1917C-1026. 

Embezzlement:  restoration  of  property  or 
settlement  or  offer  to  settle  with  owner 
as  defense  to  prosecution  for  embezzle- 
ment, 1916C-66. 

Entrapment:  inducement  to  commit  offense 
with  view  to  prosecution  therefor  as 
defense  to  such  prosecution,  1916C- 
730. 

Exculpatory  statements:  admissibility  of 
prior  exculpatory  statement  by  ac- 
cused to  contradict  evidence  given  by 
him  or  on  his  behalf  at  trial,  191 7D- 
1101. 

Extradition:  person  in  custody  on  charge 
of  other  crime  as  subject  to  extradi- 
tion, 1917B-337. 

False  pretenses:  bill  or  note  as  "property," 
etc.,  within  statute  against  false  pre- 
tenses, 1917D-627. 

— giving  worthless  check  as  false  pre- 
tense, 1916E-736. 

— jurisdiction  o'f  offense  of  obtaining 
property  by  false  pretenses,  1917E- 
311. 

—obtaining  loan  of  money  as  constituting 
crime  of  obtaining  money  by  false  pre- 
tenses, 1916C-1158. 

— ^what  constitutes  attempt  to  obtain 
money  by  false  pretenses,  1917B-1230. 

Finger  prints:  law  of  finger  prints,  1917A- 
417. 

Footprints:  admissibility  in  criminal  case 
of  evidence  obtained  by  requiring  de- 
fendant to  furnish  shoe  to  compare 
with  footprint,  1917D-237. 

Forgery:  forgery  of  or  by  typewriting, 
1916D-784. 


30 


DIGEST. 


1916C- 
OBIMINAIi  LAW — Continued. 

Homicide:  declarations  of  infant  at  time 
of  homicide  as  part  of  res  gestae, 
1916C-1187. 

— fact  that  death  resulted  from  superven- 
ing cause  as  defense  to  charge  of 
homicide,  1916C-692. 

— ^propriety  of  instruction  ai  to  punish- 
ment imposed  for  various  degrees  of 
homicide,  1917A-752. 

— right  of  jury  to  convict  for  lesser  degree 
under  indictment  or  information  char- 
ging act  declared  by  statute  to  be 
murder  in  first  degree,  1916C-556, 

—what  constitutes  "lying  in  wait"  within 
statute  relating  to  homicide,  I916C- 
969. 

Indictment  and  information:  necessity  that 
criminal  information  filed  by  prose- 
cuting attorney  be  under  oath,  1917C- 
531. 

— ^power  of  court  to  set  aside  indictment 
on  own  motion  and  order  resubmission, 
1918A-860. 

Injunctions:  power  of  equity  to  enjoin 
criminal  prosecution,  19160-1153. 

— right  of  state  to  enjoin  private  nuisance 
which  is  also  crime,  19160-455. 

Insanity:  irresistible  or  uncontrollable  im- 
pulse as  defense  to  criminal  charge, 
19170-609. 

— time  or  stage  in  criminal  proceedings 
when  question  of  insanity  of  defend- 
ant may  be  determined  by  inquisition 
or  otherwise,  1916E-424. 

Intoxicating  liquors:  criminal  liability  of 
steward  of  social  club  for  sale  of  in- 
toxicating liquors,  1916D-943. 

Jeopardy:  failure  to  interpose  objection 
of  former  jeopardy  on  second  trial  as 
waiver  of  plea,  19170-765. 

Judgment:  admissibility  in  subsequent 
civil  action  of  judgment  of  conviction 
based  on  plea  of  guilty,  1917E-1109. 

Larceny:  bees  as  subject  of  larceny, 
1917B-987. 

— restoration  of  property  or  settlement  or 
offer  to  settle  with  owner  as  defense 
to  prosecution  for  larceny,  1916C-6S. 

• — wild  animal  as  subject  of  larceny, 
1917B-971. 

Libel  and  slander:  comment  on  crime  or 
criminal  charge  as  privileged  within 
law  of  libel  and  slander,  1917B-424. 

— criminal  liability  for  defamation  of  de- 
ceased person,  1917E-234. 

— words  imputing  criminal  immorality  to 
man  as  libel  or  slander,  1917A-1043. 

Licenses:  right  to  join  two  or  more  de- 
fendants in  indictment  for  violation 
of  license  statute,  1918A-571. 

Practice:  effect  of  partial  invalidity  of 
statute  relating  to  practice  and  pro- 
cedure in  criminal  cases,  1916D-80. 

Preliminary  examination:  right  of  accused 
person  to  preliminary  examination, 
19160-312. 

— waiver  of  preliminary  examination  by 
accused  person,  1917E-179. 


-1918B. 

CRIMINAL  LAW— Continued. 

Presumptions:  conflict  between  presump- 
tion of  innocence  and  presumption  of 
identity  of  person  from  identity  of 
name,  1917E-122. 

Prostitution:  immigrant  prostitution  or 
immorality,  1917C-250. 

— validity  and  construction  of  statute 
making  owner  of  premises  criminally 
liable  for  use  thereof  for  purpose  of 
prostitution,  1917A-461. 

— whether  man  can  be  "prostitute,"  or 
guilty  of  resorting  to  house  of  ill- 
fame  for  purpose  of  prostitution, 
1917D-248. 

Kape:  impotency  as  defense  to  charge  of 
rape  or  assault  with  intent  to  rape, 
1916D-535. 

Bobbery:  attempt  to  commit  robbery  or 
assault  with  intent  to  commit  robbery, 
1918A-406. 

Seduction:  admissibility  of  evidence  of  de- 
fendant's reputation  in  prosecution  for 
seduction,  1916E-381. 

Sentence  and  punishment:  effect  of  failure 
to  ask  convicted  person  if  he  has  any- 
thing to  say  before  sentence,  191 60- 
95. 

— right  of  prisoner  who  has  received  ex- 
cessive sentence  to  be  discharged  on 
habeas  corpus  or  appeal,  1916D-368. 

—-what  is  cruel  and  unusual  punishment, 
1918B-396. 

Statutes:  criminality  of  act  committed 
after  decision  holding  statute  inappli- 
cable and  before  reversal  of  decision, 
1916E-373. 

— effect  of  partial  invalidity  of  criminal 
statute,  1916D-45. 

Sundays  and  holidays:  engaging  in  labor 
or  amusement  on  Sunday  as  offense  at 
common  law  or  under  statute  other 
than  Sunday  law,  1918B-387. 

Threats:  criminal  liability  for  threat  of 
prosecution  in  connection  with  demand 
for  payment  of  debt,  1917E-246. 

— sending  anonymous  letter  as  criminal 
offense,  19170-699. 

— threat  to  accuse  of  crime  as  criminal 
offense,  1917B-134. 

Trees  and  timber:  criminal  liability  for 
unlawful  cutting  of  timber  on  public 
lands,  1917A-18. 

Trial:  prejudicial  newspaper  publication  as 
ground  for  continuance  of  criminal 
case,  1918A-449. 

— right  of  accused  to  consult  with  or  sit 
by  counsel  during  trial,  1916D-204. 

— right  of  criminal  court  to  exclude  per- 
sons from  courtroom,  1917E-625. 

— right  of  private  counsel  to  assist  prosecu- 
tion in  criminal  case,  1917D-512. 

Variance:  effect  of  variance  between  in- 
dictment and  proof  with  respect  to 
suffix  to  name,  1917A-1214. 

Witnesses:  admissibility  in  civil  case  of 
evidence    ihowing    that    witness    had 


INDEX  TO  THE  NOTES. 


31 


CEIMINAL  LAW— Continned, 

previously  claimed  privilege  in  crimi- 
nal case,  1917E-879. 

See  also  Actions  and  Proceedings;  Appeal 
and  Error;  Argument  of  Counsel; 
Attorneys;  Dying  Declarations;  False 
Imprisonment;  Grand  Jury;  Jury; 
Juvenile  Courts;  Life  Insurance;  Ma- 
licious Prosecution;  Prosecuting  Attor- 
neys. 

CfRITICISM. 
See  Attorneys. 


CROPS. 

Validity  of  parol  preservation  of  crops  hj 
vendor  of  land,  1916C-344. 


CBOSS-BILLS. 
See  Quieting  Title. 

CEOSS-MARKS. 
See  Elections. 

CRUEL  PUNISHMENT. 
See  Sentence  and  Punislunent. 

CRUELTY. 

Habits  or  course  of  conduct  of  spouse  as 
cruelty  warranting  divorce,  1918B-480. 

Separation  agreement  as  bar  to  action  for 
divorce  on  ground  of  cruelty,  I916C- 
351. 

CURTESY. 

Act  of  husband  as  tenant  by  curtesy  as 
constituting  election  to  take  under 
wife's  will,  1916C-1205. 

CUSTODY. 
See  Jury;  Parent  and  Child. 

CUSTOMS. 
See  Usages   and   Customs. 

CUSTOMS  OFFICERS. 

Eight  of  customs  officer  to  damages  for 
im'uries  sustained  on  defective  wharf, 
1916C-142. 

DAMAGE  BY  ELEMENTS. 

Construction  of  phrase  "damage  by  ele- 
ments" or  similar  phrase  as  used  in 
contract,  1917B-296. 

DAMAGES. 

Adjoining  landowners:  liability  of  owner 
for  damages  caused  bv  overhanging 
branches  of  trees,  1918B-1166. 


DAMAGES— Continued. 

Alienation  of  affections:  damages  recover- 
able in  action  by  wife  for  alienation 
of  affections,  1916C-752. 

—measure  of  damages  in  action  against 
parent  or  guardian  for  alienation  of 
affections,  1917E-1021. 

— measure  of  damages  in  action  against 
relative  for  alienation  of  affections. 
1917E-1029. 

"All  damages":  meaning  of  "all  damages." 
1917E^2. 

Amusement  contracts:  damages  for  breach 
of  contract  for  services  of  theatrical 
performer,  1917C-395. 

Assault:  provocation  in  mitigation  of  dam- 
ages for  assault,  1917D-582. 

Attorneys:  measure  of  damages  recover- 
able by  client  for  negligence  of  attor- 
ney, 1917B-38. 

Automobiles:  measure  of  damages  for 
breach  of  automobile  sales  agency  cop- 
tract,   1917E-576. 

Building  contracts:  prospective  profits  as 
damages  on  rescission  of  building  con- 
tract for  failure  of  owner  to  make 
payment,  I916C-59. 

Carriers  of  goods:  measure  of  damages  for 
carrier's  delay  in  transporting  goodd 
resulting  in  depreciation  in  value, 
1917D-164. 

Criminal  conversation:  damages  recover- 
able in  action  by  wife  for  criminal 
conversation,  1916C-752. 

Death  by  wrongful  act:  admissibility  in 
action  for  death  by  wrongful  act  of 
evidence  of  property  inherited  by 
plaintiff  from  deceased,  1916D-340. 

—damages  recoverable  for  death  by  in- 
toxication, 1917B-540. 

— death  of  human  being  as  element  of  re- 
covery in  civil  action  between  third 
persons,  1917B-886. 

Excessive  or  inadequate  damages:  inade- 
quacy or  excessiveness  of  verdict  in 
civil  action  for  rape,  1917E-135. 

—what  is  excessive  or  inadequate  verdict 
in  action  against  physician  for  mal- 
practice, 1916C-1078. 

—what  is  excessive  or  inadequate  verdict 
in  action  for  false  imprisonment, 
1916C-505. 

— ^what  is  excessive  or  inadequate  verdict 
in  action  for  malicious  prosecution, 
1916C-250. 

— ^what  is  excessive  verdict  for  mental 
anguish  in  telegraph  case,   1916C-524. 

— what  is  excessive  verdict  in  action  for 
libel  or  slander,  1916D-1175. 

Exemplary  damages  in  action  on  contract 
other  than  contract  to  marry,  1917E^ 
412. 

Impotency:  necessity  that  impotency  be 
pleaded  specially  in  action  for  per- 
sonal injuries,  19160-383. 

Insurance:  measure  of  damages  recover- 
able by  owner  of  property  for  failure 
of  agent  to  procure  insurance,  1918B- 
1040. 


32 


DIGEST. 

1916C— 1918B. 


DAMAGES — Continued. 

Libel  and  slander:  intoxication  as  justifi- 
cation or  mitigation  of  slander,  1916EJ- 
564. 

Liquidated  damages:  deposit  made  with 
bid  as  liquidated  damages,  1916C— 432. 

— stipulation  for  liquidated  damages  as 
barring  injunction  to  restrain  breach 
of  covenant  not  to  engage  in  same 
business,  19160-191. 

— ^whether  stipulated  forfeiture  for  breach 
of  contract  a  penalty  or  liquidated 
damages,  1917D-739. 

Market  value:  measure  of  damages  for 
conversion  of,  or  failure  to  deliver, 
household  goods,  1917B-585. 

— measure  of  damages  for  loss  or  destruc- 
tion of  property  having  no  market 
value,  1917B-579. 

Mines  and  minerals:  measure  of  damages 
recoverable  of  tenant  in  common  for 
removing  minerals  from  soil,  1918B- 
584. 

Profits:  recovery  of  profits  as  damages  for 
breach  of  contract  to  sell  on  commis- 
sion, 1917B-1194. 

Sales:  damages  for  breach  of  warranty 
on  sale  of  seed,  1918B-83. 

—right  of  conditional  vendee  to  recover 
damages  for  breach  of  warranty, 
1918B-914. 

Ships  and  shipping:  right  to  recover  dam- 
ages for  loss  of  use  of  vessel  result- 
ing from  collision  without  total  loss, 
1917B-999. 

Stock:  measure  of  damages  for  conversion 
of  shares  of  stock,  1916C-641. 

Use  of  property:  right  to  recover  damages 
for  loss  of  use  in  case  of  injury  to 
article  used  for  pleasure,  1917A-127. 

Vendor  and  purchaser:  measure  of  dam- 
ages for  breach  of  contract  to  sell 
land  due  to  vendor's  inability  to  make 
title,  1917B-858. 

Wills:  measure  of  damages  for  breach  of 
contract   to  make  will,   1918A-854. 

See  also  Eminent  Domain;  I^andlord  and 
Tenant;  Life  Estates;  Monopolies; 
Streets  and  Highways;  Telegraphs  and 
Telephones. 

DAMS. 
Eight   of  railroad   company   to   erect   and 
maintain  dam,  1916E-1217. 

DATE. 
See  Wills. 

DAY  OF  BEST. 
See  Labor  Laws. 

DEAD  BODIES. 

Power  of  court  to  order  exhumation  of 
dead  body  for  evidentiary  purposes, 
1916D-331. 

DEADLY  WEAPONS. 
See  Weapons. 


DEAF   AlTD   DUMB   PERSONS. 

Eesponsibility  of  deaf  and  dumb  persons 
for  crime,  1917B-240. 


DEALEB. 

Meaning  of  "deal"  or  "dealer,"  1917A-949. 

DEATH. 

Grant  of  letters  testamentary  or  of  ad- 
ministration as  evidence  of  death, 
1918A-1011. 

Time  of  death  within  rule  as  to  presump- 
tion of  death  from  absence,  1917A-82. 

See  also  Actions;  Agency;  Attachment; 
Deeds;  Libel  and  Slander;  Life  Insur- 
ance. 

DEATH   BY   WBONGFUL   ACT. 

Administration:  right  of  action  within  ju- 
risdiction as  suflficient  property  right 
to  warrant  grant  of  administration, 
1917C-1217. 

Death  of  human  being  as  element  of  re- 
covery in  civil  action  between  third 
persons,  1917B-8S6. 

Evidence:  admissibility  in  action  for  death 
by  wrongful  act  of  evidence  of  domes- 
tic relations  of  deceased,  1916C-671. 

— admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  habits  or 
physical  condition  of  deceased,  1916E- 
652. 

— admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  property 
inherited  by  plaintiff  from  deceased, 
1916D-340. 

— ^admissibility  in  action  for  death  by 
wrongful  act  of  mortality  tables  to 
show  probable  duration  of  life,  1918A- 
1021. 

— admissibility  of  coroner's  verdict  as  evi- 
dence in  action  for  death  by  wrong- 
ful act,  1917B-S97. 

Illegitimate  child:  "child"  in  statute  relat- 
ing to  death  by  wrongful  act  as  in- 
cluding illegitimate   child,   1918B-255. 

— right  of  parent  to  recover  for  death  of 
illegitimate  child,  1916C-720. 

— right  of  person  other  than  parent  to  re- 
cover for  death  of  illegitimate  child, 
1916E-454. 

Intoxication:  damages  for  death  by  in- 
toxication, 1917B-530. 

Limitation  of  actions:  commencement  of 
running  of  statute  of  limitations 
against  action  for  death  by  wrongful 
act,   1916C-713. 

—pleading  statute  of  limitations  in  action 
for  death  by  wrongful  act,  1916D- 
1241. 

Parties  to  actions:  right  to  amend  action 
for  death  by  wrongful  act  by  adding 
new  parties  plaintiff,  1916C-596. 

Survival  of  actions:  validity  of  statute 
providing  for  survival  of  action  for 


INDEX  TO  THE  NOTES. 


33 


DEATH  BY  "WEONOFUL  ACT— Con- 
tinued. 

personal   injuries  after  death  of  per- 
son injured,  1917E^1171. 

Trespassing  child:  liability  of  landowner 
for  injury  to  trespassing  child  on  ac- 
count of  unguarded  pond,  pool,  well, 
etc.,  1916C-1085. 

DEATH  PENALTY. 

Death  penalty  as  cruel  and  unusual  pun- 
ishment, 1918B-398. 

DEBT  LIMIT. 
See  Corporations;  Municipal  Corporations. 

DEBTOR  AND  CEEDITOE. 

Payment  of  debt  to  alien  enemy,  1917C- 
199. 

See  also  Assignments;  Corporations;  De- 
scent and  Distribution;  Executors  and 
Administrators;  Fraudulent  Sales  and 
Conveyances;  Imprisonment  for  Debt; 
Mercantile  Agencies;  Sales;  Surety- 
ship; Threats;  Vendor  and  Purchaser. 

DECAY. 

Damage  by  decay  as  included  within  term 
"damage  by  elements,"  1917B-298. 

DECEASED  PERSONS. 

See  Libel  and  Slander. 

DECEDETfTS'  ESTATES. 

See  Descent  and  Distribution;  Executors 
and  Administrators;  Partnership. 

DECISIONS. 
See  Attorneys;  Courts. 

DECLARATION. 
See  Pleading. 

DECLARATIONS. 
See  Admissions  and  Declarations. 

DECORATING. 

Decorating  as  employment  within  pur- 
view of  workmen's  compensation  act, 
1917A-16. 

DECREASE    OF   ALLOWANCE. 

See  Workmen's  Compensation  Acts. 

DEDICATION. 

DedicatioJi  of  park  or  square  by  selling 
lots  according  to  map  or  plat,  1917B- 
197. 


DEDICATION— Continued. 

Necessity  for  acceptance  where  land  is 
dedicated  to  public  use  by  municipal- 
ity, 1917D-452. 

Beservfition  of  land  on  map  or  plat  for 
specified  purjiose  as  dedication  thereof 
to  public,  1916D-178. 

Rcvocability  of  dedication  of  land  to  pub- 
lic use,  1917A-1109. 

Attestation:  competency  of  attesting  wit- 
ness to  deed,  1917A-235. 

Attorneys:  lien  of  attorney  on  deed  in  his 
possession  connected  with  litigation, 
1917D-149. 

Construction:  "child"  in  deed  as  including 
illegitimate  child,  1918B-259. 

— construction  of  absolute  deed  as  equi- 
table mortgage  in  favor  of  third  per- 
son, 1917C-970. 

— construction  of  habendum  clause  in  deed 
in  connection  with  premises,  1917D- 
661. 

— construction  of  instrument  in  form  of 
deed  to  become  efiFective  upon  death 
of  grantor,  1916D-996. 

— construction  of  term  "more  or  less"  in 
deed  of  realty,  1917D-155. 

— distinction  between  exception  and 
reservation  in  deed,  1918A-877. 

— estate  created  by  grant  or  devise  of  life 
estate  with  absolute  power  of  disposi- 
tion, 1916D-400. 

— nature  of  estate  resulting  from  creation 
of  cotenancy,  1917B-57. 

"Contents":  deed  as  embraced  within 
"contents"  or  similar  expression  in 
will,  1916C-1139. 

Covenants:  necessity  of  notice  to  cov- 
enantor of  good  title  to  defend  evic- 
tion proceeding  in  order  to  conclude 
him  in  action  on  covenant,  1916E-148. 

Delivery:  admissibility  of  declaration  of 
grantor'  after  conveyance  as  to  deliv- 
ery of  deed,  1916E-713. 

Fixtures:  gas  or  electric  appliances  as  fix- 
tures as  between  grantor  and  grantee, 
1917B-187. 

Grantor:  effect  of  omission  of  grantor's 
name  from  body  of  deed,  1916E-521. 

Priority  as  between  purchase  money  mort- 
gage and  deed,  1916C-946.  . 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  deeds,  1916D-47. 

Validity:  presumption  and  burden  of  proof 
of  undue  influence  in  case  of  convey- 
ance inter  vivos  ty  parent  to  child, 
1918B-457. 

— validity  and  effect  of  conveyance  of 
homestead  without  joinder  or  consent 
of  wife,  1917A-71. 

— validity  and  effect  of  deed  or  grant  of 
present  estate  to  grantee  not  in  exist- 
ence, 1916D-864. 

— validity  of  condition  in  deed  in  restraint 
of  marriage,  1917D-282. 

— validity  of  condition  in  deed  prohibit- 
ing sale  of  liquor  on  land  granted, 
1917C-110. 


34  DIGEST. 

1916C— 1918B. 

DEDICATION— Continued. 

Validity:  validity  of  conveyance  of  inter- 
est of  one  remainderman  to  another, 
1917A-S20. 

—validity  of  conveyance  of  life  estate, 
1917A-579. 

— validity  of  partial  or  limited  restraint 
on  alienation  of  fee  simple  estate, 
1916D-1254. 

See  also  Duress;  Fraudulent  Sales  and 
Conveyances;  Homestead;  Bes  Judi- 
cata; Vendor's  Uen;  Waters  and 
Watercourses. 

DE  FACTO  OFFICEBS. 
See  Public  Officers. 


DEFAMATION. 
See  Libel  and  Slander. 

DEFAULT. 
See  Judgmental 


DELIVERY. 

See  Bills  and  Notes;  Deeds;  Escrows; 
Frauds,  Statute  of;  Telegraphs  and 
Telephones. 

DEMAND. 
See  Threats. 

DEMAND  NOTES. 
See  Bills  and  Notes. 

DEMURRAGE, 
See  Carriers  of  Goods. 

DENTISTS. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  licensing  of  dentists,  1916D- 
58. 

DEPENDENTS. 
See  Workmen's  Compensation  Act. 


DEFECTS. 
See  Streets  and  Highways. 


DEPOSIT. 

See  Bids. 


DEFENSE  OF  PBOPEBTT. 
See  Assault. 

DEFENSES. 

See  Pleading. 

DEFICIENCY. 

See  Mortgages. 

DEFINITIONS. 
See  Words  and  Phrases. 

DEGREES. 
See  Homicide. 

DE  JURE  OFFICERS. 
See  Public  Officers. 

DELAY. 

See   Carriers   of   Ctoods;    Telegraphs   and 
Telephones. 

DEL  CREDERE  AGENT. 
See  Agency. 

DELIBERATIONS. 
See  Jury. 

DELINQUENT   TAXPAYERS. 

See  Taxation. 


DEPOSITIONS. 

Necessity  and  sufficiency  of  naming  of 
witness  in  notice  of  taking  deposi- 
tion, 1918A-950, 

Proof  by  parol  of  contents  of  lost  or  de- 
stroyed depositions,  1916D-253. 

Relative  weight  of  deposition  and  oral 
testimony,  1917D-75S. 

Statute  against  admission  of  evidence 
of  transaction  with  decedent  as  appli- 
cable to  deposition  taken  before 
death,  1917B-490. 

Validity  of  deposition  taken  on  holiday, 
1916E-851. 

DEPOSITS. 
See  Banks. 

DEPOTS. 
See  Railroads. 

DEPRECIATION. 
See  Carriers  of  Goods. 

DEPUTIES. 
See  Prosecuting  Attorneys;  Public  Officers, 

DESCENT    AND   DISTRIBUTION. 

Adoption:  right  of  inheritance  from 
adopted  child  as  between  natural  par- 
ents and  adoptive  parents  or  their  de- 
scendants, 1916C-757. 

—succession  to  estate  inherited  from  fos- 
ter parent  by  adopted  child  who  dies 
without  issue,  1916C-762. 


INDEX  TO  THE  NOTES. 


35 


DESCENT    AND    DISTEIBUTION— Con- 

tinnecl. 

Constitutional  law:  right  to  take  property 
by  inheritance  or  will  as  natural  right 
protected  by  constitution,  1918A-939. 

Debts:  distributive  share  of  heir  in  real 
estate  as  chargeable  with  heir's  in-, 
debtedness  to  estate  either  as  against 
land  itself  or  proceeds  of  sale  thereof, 
1916D-1294. 

—laches  or  neglect  of  creditor  of  deceased 
as  precluding  enforcement  of  debt 
against  heir  or  devisee,  1917C-9o. 

Expectancy:  validity  of  transfer  of  ex- 
p>eetancy  in  estate  made  by  heir  or 
beneficiary  to  stranger,  1916E-1241. 

Illegitimacy:  "child"  in  statute  of  descent 
and  distribution  as  including  illegiti- 
mate child,  1918B-251. 

—law  governing  legitimacy  of  person  with 
respect  to  right  to  inheriT,  1917C-538. 

— right  of  illegitimate  child  to  inherit 
from  or  through  father,  1917C-826. 

"Inherit":  meaning  of  "inherit,"  "inher- 
ited," etc.,  1917C-386. 

Workmen's  compensation  acts:  devolution 
of  dependent's  right  to  compensation 
under  workmen's  compensation  act, 
1918B-762. 

See  also  Death  by  Wrongful  Act. 


DEVISEES, 
Liability   of    devisee    of   lessee   for   rent, 

1916E-S20. 
See  also  Descent  and  Distribution;  Wills. 

DEVOLUTION, 
See  Descent  and  Distribution. 

DIAGNOSIS, 
See  Physicians  and  Surgeons. 

DIABIES. 

Private   diary  as  evidence,  1916C-717. 

DICTATION, 

See  Libel  and  Slander. 


DICTAGEAPH. 
See  Evidence. 

DILIGENCE, 
See  Mines  and  Minerals. 

DIRECTION  OF  VEEDICT. 
See  Verdict. 


DESCRIPTION. 
See  Recording  Acts;  Searches  and  Seizures. 


DIBECTOBS, 
See  Corporations. 


DESERTION. 

Right  of  wife  to  leave  marital  home  be- 
cause of  conduct  of  husband's  rela- 
tives, 1916E-209. 


DESIRE. 

Meaning    of    "desire"    as    used    in    "will, 
1917B-503. 


DISABILITY. 
See  WorlnneH's  Compensation  Acts. 

DISAFFIRMANCE. 
See  Infants. 

DISBARMENT. 
See  Attorneys. 


DE  SON  TORT, 
See  Esecutors  and  Adminlstratoxa; 

DESTINATION, 
See  Carriers  of  Passengers. 

DETECTAPHONB. 

See  Evidence. 

DETECTIVES. 
Private  detectives,  1917A-584. 

DETINUE. 
See  Replevin. 

DEVIATION  FROM  EMPLOYMENT. 
See  Master  and  Servant. 


DISCHARGE. 
See  Bankruptcy;   Suretyship. 

DISCHARGING   FIREARMS. 
See  Assault. 

DISCONTINUANCE. 
See  Eminent  Domain. 

DISCOUNT, 
See  Bills  and  Notes. 

DISCOVERY, 

Effect  on  right  to  production  of  docu- 
ment of  admission  by  opposing  party 
as  to  its  merits,  1916D-698. 

Power  of  court  to  compel  submission  to 
physical  examination,  1917D-351. 

Transcript  of  court  proceedings  as  privi- 
leged from  inspection,  1916C-876. 


36 


DIGEST. 

1916C— 1918B. 


DISEASE. 


DITCHES. 


Death  resulting  from  disease  caused  by 
wound  as  affecting  liability  for  homi- 
cide,   1916C-693. 

Disease  as  an  accident,  1918B-297. 

Nonoccupational  disease  as  "injury'^ 
within  meaning  of  workmen's  com- 
pensation  act,   1918B-362. 

Occupational  disease  as  "injury"  within 
meaning  of  workmen's  compensation 
act,  1918B-366. 

See  also  Accident  Insurance;  Agriculture; 
Animals;  Breach  of  Promise  of  Mar- 
riage; Physicians  and  Surgeons. 

DISHONESTY. 

What  constitutes  dishonesty  of  employee 
within  policy  of  fidelity  insurance, 
1917C-425. 

DISHONOR. 
See  Bills  and  Notes. 

DISMISSAL  AND  NONSUIT. 

Right  of  client  to  dismiss  action  without 
attorney's   consent,   1917A-570. 

Right  to  voluntary  dismissal  of  bill  in 
equity,   1917A-1185. 

Voluntary  dismissal  of  bill  for  divorce, 
1917A-1197. 

See  also  Appeal  and  Error. 

DISORDERLY  CONDUCT. 

Language  constituting  disorderly  conduct, 
1917C-889. 

DISORDERLY  HOUSES. 

"What  constitutes  cruel  and  unusual  pun- 
ishment for  keeping  disorderly  house, 
1918B-399. 

See  also  Prostitution. 

DISPUTED  WRITING. 
See  Handwriting. 

DISQUALIFICATION. 
See  Judges. 

DISSOLUTION. 
See  Attachment;   Corporations. 

DISTINGUISHINQ  MARKS. 
See  Elections. 

DISTRIBUTION. 
See  Descent  and  Distribution. 

DISTRICT  a 
See  Schools. 


Interest  in  land  acquired  by  condemna- 
tion for  ditch  as  easement  or  feoj 
1918A-809. 

DIVERSION. 
See  Suretyship. 

DIVISION   FENCES. 
See  Fences. 

DIVORCE. 

Alimony:  allowance  of  alimony  in  gross 
sum,  1917A-248. 

— ^life  of  decree  for  permanent  alimony, 
1917A-582. 

— validity  of  conveyance  by  husband  with 
intent  to  deprive  wife  of  alimony, 
19I8B-936. 

Attorney's  fees:  liability  of  husband  for 
counsel  fees  incurred  by  wife  in  di- 
vorce action,  1917A-6S9. 

Condonation  as  defense  in  action  for  di- 
vorce, 1918A-651. 

Cruelty:  habits  or  course  of  conduct  of 
spouse  as  cruelty  warranting  divorce, 
1918B-480. 

Desertion:  right  of  wife  to  leave  marital 
home  because  of  conduct  of  husband's 
relatives,  I916E-209. 

Dismissal:  voluntary  dismissal  of  bill  for 
divorce,   1917A-1197. 

Homestead:  divorce  as  affecting  right  of 
husband  to  convey  homestead,  1917A- 
77. 

Insurance:  effect  of  divorce  upon  rights  of 
beneficiary  in  insurance,  19170-269. 

Recrimination:  right  of  recrimination  in 
divorce  action  as  affected  by  compar- 
ative gravity  of  offenses,  1917A-177. 

Remarriage:  estoppel  by  remarriage  to  at- 
tack  decree   of  divorce,   1917E-12o. 

Restoration  of  property:  right  of  divorced 
person  to  bring  independent  action 
against  former  spouse  for  restoration 
of  property,  1917A-1243. 

Separation  agreement  as  bar  to  action  for 
divorce,  1916G-347. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  divorce  proceed- 
ings, 1916D-80. 

—validity  of  statute  requiring  certain 
period  of  residence  within  state  as 
prerequisite  to  divorce,  19I6E-1110. 

Trial:  change  of  venue  in  divorce  action, 
1917A-940. 

— continuances  in  divorce  cases,  1918B- 
1087. 

Wills:  validity  of  legacy  or  devise  condi- 
tioned on  recipient  obtaining  divorce 
or  separating  from  spouse,  1917B-167. 

DOCKS. 

See  Wharves. 


INDEX  TO  THE  NOTES. 


37 


DOCTJlVrENTARY  EVIDENCE. 
See  Evidence. 

DOCUMENTS. 
See  Discovery. 

DOMESTIC  RELATIONS. 
See  Death  by  Wrongful  Act. 

DOMESTIC  SERVANTS. 
See  Master  and  Servant. 

DOMINANT  ESTATES. 
See  Easements. 

DOORS. 

See  Burglary;  Owners  of  Premises;  Streets 
and  Highways. 

DOWER. 

Election  by  -widow  to  take  provision  in 
will  in  lieu  of  dower  as  affecting  her 
right  to  intestate  property,  191 7B- 
986. 

Priority  as  between  purchase  money  mort- 
gage and  dower  rights,  1916C-946. 

Eight  of  married  woman  to  release  dower 
by    express    contract    with    husband, 
1917A-48. 
See  also  Antenuptial  Agreements. 

DRAINAGE. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  drainage,  1916D-48. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  drains  and  sewers  in  munici- 
palities, 1916D-76. 

Interest  in  land  acquired  by  condemna- 
tion for  sewer  purposes  as  easement 
or  fee,  1918A-809. 

Meaning  of  "plant"  as  applied  to  sewer 
system,   1917A-321. 

Power  of  court  to  compel  municipality  to 
remove,  construct  or  enlarge  sewer, 
1917E-308. 

DRINKING. 

Effect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  drink, 
1918A-1195. 

DRIVERS. 
See  Automobiles;  Vehicles. 

DROVERS. 
See  Carriers  of  Passengers. 

DRUGS. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  licensing  of  pharmacists, 
1916D-57. 

See  also  Food  and  Drugs;  Physicians  and 
Surgeons;  Witnesses. 


DRUNKENNESS. 

Benefit  insurance:  construction  of  restric- 
tion in  contract  of  benefit  insurance 
as  to  use  of  intoxicants  by  insured, 
1918A-623. 

Confessions:  intoxication  as  affecting  ad- 
missibility of  confession,  1916C-1168. 

Death:  damages  for  death  by  intoxica- 
tion, 1917B-530. 

Inebriates:  construction  of  statute  pro- 
viding for  compulsory  commitment 
of  inebriate  to  institution  for  treat- 
ment, 1917E-359. 

Proof  of  intoxication:  admissibility  of 
nonexpert  testimony  to  prove  intoxi- 
cation, 1917C-628. 

Slander:  intoxication  as  justification  or 
mitigation  of  slander,  1916E-564. 

Witnesses:  proof  of  liquor  habit  to  dis- 
credit witness,  1918A-639. 

Workmen's  compensation  acts:  intoxica- 
tion of  employee  as  precluding  recov- 
ery under  workmen's  compensation 
act,  1918B-686. 

DUES. 
See  Beneficial  Associations. 

DUMB  PERSON& 
See  Deaf  and  Dumb  Persons. 

DURATION  OF  LIFE. 
See  Death  by  Wrongful  Act. 


DURESS. 

Duress  as  affecting  waiver  of  preliminary 
examination  by  accused  person, 
1917E-183. 

Payment  to  prevent  apprehended  injury 
to  business  as  payment  under  duress, 
I918B-516. 

Threat  of  abandonment  by  spouse  ai 
duress,  1917A-174. 

Validity  and  effect  of  contract  induced  by 
threats  of  criminal  prosecution 
against  friend,  or  relative  other  than 
parent,  child  or  spouse,  1917C-1033. 

Validity  and  effect  of  contract  of  parent 
or  child  induced  by  threats  of 
criminal  prosecution  against  other, 
1917C-1026. 

DYING  DECLARATIONS. 

Admissibility  of  dying  declaration  as  af- 
fected by  malice  or  desire  for  revenge 
on  part   of  declarant,   1917A-1247. 

Dying  declaration  as  admissible  only 
when  death  of  declarant  is  under  in- 
quiry, 1917A-612. 

DYNAMITE. 

Storage  of  dynamite  as  nuisance,  19160- 
£20. 


38 


DIGEST. 

1916C— 1918B. 


EARNING  CAPACITT. 
See  Workmen's  Compensation  Acts. 

EARNINGS. 
See  Average  Weekly  Earnings. 

EARTH  CLOSETS. 
See  Health. 


EASEMENTS. 

Forfeiture  of  easement  for  misuse,  1917A- 

1018. 
Forfeiture  of  easement  of  right  of  way  by 

nonuse,  1917D-595. 
Nature  and  effect  of  grant  of  right  to  take 

ice   from   another's   premises,    1917D- 

93. 
Restriction  of  easement  to  use  connected 

with  dominant  estate,  1917A-12oO. 
Sale   of  land   for   taxes   as   extinguishing 

private  easement,  1916C-638. 
See   also  Eminent  Domain;    Prescription. 

EATING. 

Effect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  eat, 
1918A-1194. 

EDITION. 
See  Newspapers. 

EDUCATION. 
See  Schools. 

EGGS. 
See  Food  and  Drugs. 

EJECTMENT. 

Inconsistent  defenses  in  action  of  eject- 
ment, 1917C-731. 

Statutory  right  to  new  trial  in  ejectment, 
1916E-556. 

••EJUSDEM  GENERIS." 

Meaning  of  term  "ejusdem  generis"  as 
used  in  workmen's  compensation  act, 
1917D-7. 

ELECTION. 

See  Conditional  Sales;  Employers'  Liabil- 
ity Acts;  Equitable  Election;  Work- 
men's Compensation  Acts. 

ELECTIONS. 

Ballots:  validity  of  ballot  with  respect  to 
kind  of  mark  for  candidate,  191SA- 
1131. 

►—validity  of  ballot  with  respect  to  place 
of  mark  for  candidate,  1917E-657. 


ELECTIONS— Continued. 

Bribery:  promise  to  do  certain  things  after 

election  as  bribery  of  electors,  1918A- 

888. 
Contracts:    validity   of   contract   designed 

to    influence    public    election,    1917C- 

350. 

Preferential  voting:  validity  and  constiruc- 
tion  of  statute  providing  for  prefer- 
ential system  of  voting,  19170-482. 

Registration:  change  by  voter  of  enrol- 
ment or  registration,   1917A-1278. 

—effect  of  failure  to  comply  with  regis- 
tration laws  on  validity  of  votes  cast 
at  election,  1916E-408. 

Result  of  election:  rejection  of  entire  vote 
of  election  district  for  irregularity 
affecting  indeterminable  number  of 
votes,  1918A-41. 

Eight  to  vote:  effect  on  election  of  wrong- 
fully depriving  electors  of  right  to 
vote,  1917E-470. 

— residence  at  school  or  public  institution 
as  affecting  right  to  vote,  1917C-403. 

— right  to  vote  of  soldier  or  sailor  in  ac- 
tual service,  1917B-485. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  elections,  1916D- 
50. 

Voting  rooms  or  booths:  effect  on  election 
of  failure  to  comply  with  statute  as 
to  arrangement  of  voting  rooms  or 
booths,   1916E-917. 

See  also  Libel  and  Slander. 


ELECTRICITY. 

Electricians:  state  or  municipal  regula- 
tion of  electricians,  1916E-694. 

Evidence:  weight  of  testimony  to  strange 
phenomena   of   electricity,   1917B-477. 

Fixtures:  electric  light  plant  or  acces- 
sories  as    fixtures,    1917B-183. 

"Plant":  meaning  of  "plant"  as  applied 
to  electric  lighting  system,  1917A-321. 

Poles  and  wires:  acquirement  by  prescrip- 
tion of  right  to  maintain  telegraph, 
telephone  or  electric  light  pole,  1916E- 
981. 

• — duty  and  liability  of  one  maintaining 
electric  wires  in  reference  to  children, 
1917A-895. 

— interference  with  electric  wires  in  mov- 
ing building,  1917C-79. 

— liability  of  electric  light  company  for 
injuries  resulting  from  coudition  of 
inside  wiring  or  apparatus,  191 7A- 
1175. 

— power  of  public  service  commission  to 
prevent  maintenance  of  electric  wires 
in  close  proximity,  1918B-847. 

— revocation  or  expiration  of  right  of  elef*- 
tric  company  to  maintain  poles  and 
wires  in  street,  1917E-525. 

ELEVATED  RAILROADS, 

See  Carriers  of  Passengers. 


INDEX  TO  THE  NOTES. 


39 


ELEVATORS. 

Operation  of  elevator  as  employment  with- 
in purview  of  workmen's  compensa- 
tion act,  1917D-16. 

EUGIBIIilTY. 

See  Corporations. 

EMANCIPATION. 
See  Infants. 

EIMBEZZLEMENT. 

Eestoration  of  property  or  settlement  or 
offer  to  settle  with  owner  as  defenses 
to  prosecution  for  embezzlement, 
I916C-66. 

What  constitutes  embezzlement  by  em- 
ployee within  policy  of  fidelity  in- 
surance, 1917C-427. 

EMINENT  DOMAIN. 

Abandonment  of  occupation:  necessity 
that  landowner  return  condemnation 
money  on*  abandonment  of  occupation 
by  condemnor,  1917C-1136. 

Appeal:  liability  of  landowner  for  costs 
on  appeal  in  eminent  domain  proceed- 
ing, 1917E-262. 

Collateral  attack  on  eminent  domain  pro- 
ceeding, 1916C-40. 

Conditional  condemnation  of  property, 
1917C-631. 

Discontinuance  of  proceeding:  right  of 
landowner  to  damages  upon  volun- 
tary discontinuance  of  eminent  do- 
main proceedings,   1916D-723. 

Easement  or  fee:  interest  in  land  ac- 
quired bv  condemnation  as  easement 
or  fee,   i918A-806. 

Elements  of  damages:  loss  of  profits  or 
injury  to  business  as  element  of  dam- 
ages in  eminent  domain  proceedings, 
1918B-S69. 

— recoverj'  of  damages  in  condemnation 
proceedings  for  injury  to  personal 
property  or  expense  of  removing  it 
from  premises,  1918B-886. 

—right  to  compensation  in  condemnation 
proceedings  for  improvements  placed 
on  land  bv  condemnor  with  authority 
or  color  thereof,  1917C-141. 

— value  of  fixtures  as  element  of  dam- 
ages sustained  by  appropriation  of 
propertv  in  eminent  domain  proceed- 
ing. 19160-780. 

Evidence:  admissibility  in  eminent  do- 
main proceedings  of  evidence  of  price 
paid  by  another  than  condemnor  for 
similar  property,  1916E-59S. 

Jurisdiction:  validity  of  statute  confer- 
ring on  public  service  commission  or 
other  body  jurisdiction  of  eminent 
domain  proceedings.  1916C— 420. 

Open  and  close:  right  to  open  and  close 
in  eminent  domain  proceeding  where 


EMINENT  DOMAIN— Continued. 

only    issue     involved     ia     amount    of 
damages,  1916D-960. 

Eailroads:  right  of  railroad  company  to 
condemn  water  over  which  right  of 
way  is  constructed,  1916E-121.0. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  eminent  domain. 
1916D-53. 

Streets:  persons  entitled  to  compensation 
for  vacation  of  street,  1916C-238. 

— right  of  abutting  owner  to  damages  for 
change  of  street  to  established  grade 
where  he  improves  property  after 
grade  is  established,  1916D-1143. 

Telegraphs  and  telephones:  power  of  tele- 
graph or  telephone  company  to  con- 
demn railroad  right  of  way  under 
state  statute,  1917B-689. 

EMPLOYEES. 

See     Employers'    Liability   Acts;     Work- 
men's Compensation  Acts. 

EMPLOYEES'  LIABILITY  ACTS. 

Course  of  employment:  necessity  that  ser- 
vant be  acting  in  course  of  employ- 
ment when  injured  in  order  to  recover 
under  employers'  liability  act,  1918A- 
1070. 

Federal  act:  employeies  entitled  to  pro- 
tection under  federal  employers'  lia- 
bility act,  1916E-472;  1918B-55. 

— existence  of  relation  of  employer  and 
employee  under  federal  employers' 
liability  act,  1918B-46. 

— necessity  of  election  between  federal  em- 
ployers' liability  act  and  state  statute 
or  common  law,  1917A-1270. 

— right  of  action  under  federal  employers' 
liability  act  as  sufficient  property  right 
to  warrant  grant  of  administration, 
1917C-1221. 

— validity  of  verdict  by  loss  than  whole 
number  of  jurors  in  action  under  fed- 
eral employers'  liability  act,  1916E- 
504. 

Partial  invalidity:  effect  of  partial  invalid- 
itv  of  employers'  liability  act,  1916D- 
G9. 

"Plant":  meaning  of  "plant"  as  used  in  em- 
ployers' liability  act,  1917A-324. 

State  act:  what  statutes  are  impliedly  re- 
pealed by  state  employers'  liability  act, 
1916E-773. 

EMPLOYMENT. 

Distinction  between  "office"  and  "employ- 
ment," 1917D-319. 
See  also  Employers'  Liability  Acts;  Work- 
men's Compensation  Acts. 

ENEMIES. 
See  Sliips  and  Shipping;  Treason;  War. 


40 


DIGEST. 

1916C— 1918B. 


ENGINEERS. 


ESTATES. 


Engineering  as  employment  within  purview       Nature  of  estate  resulting  from   creation 
of  workmen's  compensation  act,  1917D-  of  cotenancy,  1917B-5T. 

See  also  Deeds;  Merger. 

ESTIMATE. 
Comparative  weight  of  estimate  and  actual 
measurement,  1916C-573. 

ESTIMATED  REVENUE. 
Legal   meaning   of    "estimated    revenue," 
1918B-206. 

ESTOPPEL. 

Contracts:  principle  of  estoppel  as  appli- 
cable to  rights  of  parties  under  void 
Sunday  contract,  1916E-467. 

Corporations:  estoppel  of  subscriber  to 
stock  to  object  to  alteration  in  charter 
or  change  in  corporate  design  1918A- 
79. 

Divorce:  estoppel  by  remarriage  to  attack 
decree  of  divorce,  1917E-125. 

Guaranty:  estoppel  of  bank  to  deny  lia- 
bility on  guaranty,  1916D-560. 

Homestead:  estoppel  of  husband  in  case  of 
conveyance  of  homestead  without  con- 
sent of  wife,  1917A-78. 

Mechanics'  liens:  representations  of  sub- 
contractor inducing  payment  to  con- 
tractor as  estopping  former  from 
claiming  mechanic's  lien,  1916D-1068. 

Names:  delivering  papers  or  documents  to 
person  of  same  name  as  working  es- 
toppel against  ovmer,  1917A-562. 

Nuisances:  acquiescence  in  or  consent  to 
erection  of  structure  as  precluding 
objection  thereto  as  nuisance,  I916G- 
1235. 

Public  oflScers:  estoppel  of  public  oflBcer  to 
deny  validity  of  statute  by  accepting 
compensation  thereunder,  1917C-284. 

Taxation:  estoppel  of  taxpayer  returning 
property  for  taxation  to  dispute  assess- 
ment based  on  return,  1916C-230. 

— estoppel  of  taxpayer  to  question  validity 
of  tax,  1916C-225. 

Wills,  estoppel  to  seek  probate  of  will, 
1918A-1200. 

EVICTION. 
See  Deeds;  Landlord  and  Tenant. 

EVIDENCE. 

Admissions  and  declarations:  admissibility 
in  proceeding  under  workmen's  com- 
pensation act  of  statement  by  injured 
employee  respecting  cause  of  injury, 
1916C-775. 

— admissibility  of  declaration  of  grantor 
after  conveyance  as  to  delivery  of 
deed,  1916E-713. 

— admissibility  of  declaration  of  legatee 
or  devisee  as  to  mental  capacity  of 
testator,  1918A-1066. 


16. 

ENGINES. 
See  Fires;  Streets  and  Highways. 

ENLISTMENT. 
See  Militia. 

ENROLLMENT. 

See  Elections. 

ENTERTAINMENTS. 
Bee  Theaters  and  Amusements. 

ENTRIES. 
See  Surveyors. 

ENTRY  OF  JUDGMENT. 
See  Judgments. 

EN  VENTRE   SA  MERE. 
See  Wills. 

EQUIPMENT. 
See  Automobiles. 

EQUITABLE  ELECTION. 

Election  by  widow  to  take  under  will  as 
affecting  her  right  to  intestate  prop- 
erty, 1918B-986. 

SuflBciency  of  acts  to  constitute  election  by 
husband  to  take  under  wife's  will, 
1916C-1204. 

EQUITABLE  INTERESTS. 
See  Attachment. 

EQXHTABLE  MORTGAGES. 

Construction  of  absolute  deed  as  equitable 
mortgage  in  favor  of  third  person, 
1917C-970. 

EQUITY. 

Recovery  in  equity  of  penalty  for  viola- 
tion of  intoxicating  liquor  statute, 
1916E-873. 

See  also  Courts;  Dismissal  and  Nonsuit; 
Fraudulent  Sales  and  Conveyances; 
Injunctions. 

ESCROWS. 

Effect  on  rights  of  parties  of  unauthorized 
delivery  by  escrow  holder,  19I7E— 427. 

ESPIONAGE. 
See  War. 


INDEX  TO  THE  NOTES. 


41 


EVTDBNCE— Continued, 

Admissions  and  declarations:  admissibility 
of  declarations  of  testator  not  made 
■  at  time  of  execution  of  will,  on  ques- 
tion of  undue  influence,  1917D-717. 

— admissibility  of  prior  exculpatory  state- 
ment by  accused  td  contradict  evidence 
given  by  him  or  on  his  behalf  at 
trial,  1917D-1101. 

— admission  from  inconsistent  defenses  in 
pleading,  1917C-740. 

— declarations  of  infant  at  time  of  assault 
or  homicide,  as  part  of  res  gestae, 
1916C-1187. 

— eflPect  on  right  to  production  of  document 
of  admission  by  opposing  party  as  to 
its  contents,  1916D-698. 

Age:  competency  of  witness  to  testify  as 
to  his  own  age,  1918B-427. 

— competency  of  witness  to  testify  to  age 
of  another  person,  1918A-262. 

Alienation  of  affections:  admissibility  in 
action  for  alienation  of  affections  of 
evidence  of  acts  committed  after  sepa- 
ration of  spouses,  1917D-484. 

— evidence  in  action  against  parent  for 
alienation  of  affections,  1917E-1020, 

— evidence  in  action  against  relative  for 
alienation  of  affections,  1917E-1029. 

— evidence  in  action  bv  wife  for  alienation 
of  affections,  19160-751. 

Beneficial  associations:  admissibility  of 
benefit  certificate  in  evidence  without 
other  parts  of  contract,  1917C-145. 

Billheads:  evidentiary  effect  of  use  of 
printed  billhead,  1917B-271. 

Bills  and  notes:  necessity  of  proving,  in 
action  on  promissory  note,  signatures 
of  maker  and  indorser,  1917A-770. 

Book  entries:  necessity  that  book  of  ac- 
counts offered  in  evidence  be  book  of 
original  entry,  19170-961. 

Breach  of  promise  of  marriage:  under- 
standing of  family  or  friends  of  party 
as  evidence  of  agreement  to  marry, 
19160-564. 

Burden  of  proof:  burden  of  proof  as  to 
right  to  exclude  alien  under  immigra- 
tion act,  19170-247. 

— ^burden  of  proof  as  to  validity  of  con- 
tract for  compensation  of  attorney 
made  after  establishment  of  relation, 
1917A-536. 

— burden  of  proof  as  to  validity  of  trans- 
fer of  expectancy  in  estate,  1916E'- 
1250. 

— ^burden  of  proof  as  to  verity  of  certificate 
of  acknowledgment,  1917A-369. 

— ^burden  of  proof  in  action  against  gas 
companv  for  injuries  caused  by  escape 
of  gas,  ^1916E-280. 

— burden  of  proof  in  quo  warranto  pro- 
ceeding or  action  in  nature  thereof, 
1917B-467. 

— burden  of  proof  of  giving  notice  of  in- 
Jury  under  workmen's  compensation 
act,  1917D-877. 

— burden  of  proof  of  nonexistence  of  plain- 
tiff in  action,  1917D-1196, 


EVIDENCE— Oontinued. 

Burden  of  proof:  burden  of  proof  of  un- 
due influence  in  case  of  conveyance 
inter  vivos  by  parent  to  child,  1918B- 
457. 

— burden  of  proof  that  accident  arose  oat 
of  employment  within  meaning  of 
workmen's  compensation  act,  1918B- 
770. 

— burden  of  proving  irregularity  in  elec- 
tion affecting  indeterminable  number 
of  votes,  1918A-58. 

— burden  of  proving  misstatement  by 
physician  as  ground  for  avoiding  re- 
lease of  claim  for  personal  injuries, 
1918A-358'. 

— burden  of  showing  ratification  or  waiver 
of  alteration  of  instrument,  1917D- 
345. 

Oharacter:  admissibility  of  evidence  of 
character  or  reputation  of  defendant 
in  action  to  recover  penalty,  1916D- 
1151. 

— admissibility  of  evidence  of  plaintiff's 
character  in  action  for  malicious  prose- 
cution, 1916D-1167. 

Confessions:  admissibility  of  confessions 
obtained  by  fraud  or  trick,  1916D-966. 

— confession  of  defendant  as  sufficient  cor- 
roboration of  accomplice,  1916C-570. 

— intoxication  as  affecting  admissibility  of 
confession,  19160-1168. 

Coroner's  verdict:  admissibility  of  cor- 
oner's verdict  as  evidence  in  subse- 
quent proceedings,  1917B-892. 

Corporations:  admissibility  in  evidence  of 
books  or  records  of  corporation  in  ac- 
tion between  members  or  between  cor- 
poration and  member,  1917D-o58. 

Criminal  conversation:  evidence  in  action 
by  wife  for  criminal  conversation, 
19160-751. 

— proof  of  marriage  in  action  for  crim- 
inal conversation,  1917A-755. 

Dead  bodies:  power  of  court  to  order  ex- 
humation of  dead  body  for  evidentiary 
purposes,  1916D-331. 

Death:  grant  of  letters  testamentary  or  of 
administration  as  evidence  of  death, 
1918A-1011. 

Death  by  wrongful  act:  admissibility  in  ac- 
tion for  death  by  wrongful  act  of  evi- 
dence of  domestic  relations  of  de- 
ceased, 19160-671. 

— admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  habits  or 
phvsical  condition  of  deceased,  1916E- 
652. 

— admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  property 
inherited  by  plaintiff  from  deceased, 
1916D-340. 

— evidence  in  action  for  death  by  intoxi- 
cation, 1917B-542. 

Depositions:  necessity  and  sufficiency  of 
naming  of  witness  in  notice  taking 
deposition,  1918A-950. 

— statute  against  admission  of  evidence  of 
transaction    with    decedent    as    appli- 


42 


DIGEST. 

19ieC— 1918B. 


EVIDENCE — Continued, 

cable  to  deposition  taken  before  death, 
1917B-490. 

Depositions:  validity  of  deposition  taken 
on  holiday,  1916E-851. 

Detectaphones:  admissibility  of  evidence 
received  through  deteetaphone  or  dic- 
tagraph, 1916C-181. 

Detectives:  competency  of  evidence  of  pri- 
vate detective,  1917A-589. 

Diaries:  private  diary  as  evidence,  1916C- 
717. 

Divorce:  evidence  of  condonation  in  action 
for  divorce,  1918A-661. 

Pying  declarations:  admissibility  of  dying 
declaration  as  affected  by  malice  or 
desire  for  revenge  on  part  of  declarant, 
1917A-1247. 

—dying  declaration  as  admissible  only 
when  death  of  declarant  is  under  in- 
quiry, 1917A-612. 

Eminent  domain:  admissibility  in  eminent 
domain  proceeding  of  evidence  of 
price  paid  by  another  than  condemnor 
for  similar  property,  1916C-598. 

Expert  and  opinion  evidence:  admissi- 
bility of  direct  opinion  of  witness  as 
to  ownership  of  personalty,  1916D-289. 

•^admissibility  of  nonexpert  testimony  to 
prove  intoxication,  1917C-628. 

—opinion  evidence  as  to  speed  of  auto- 
mobile, 1917D-613. 

—use  of  scientific  books  in  connection  with 
examination  of  expert  witness,  1916E- 
356. 

Finger  prints  as  evidence,  1917A-417. 

Footprints:  admissibility  in  criminal  case 
of  evidence  obtained  by  requiring  de- 
fendant to  furnish  shoe  to  compare 
with  footprint,  1917D-237. 

Foreign  laws:  admissibility  of  printed  copy 
of  statutes  to  prove  law  of  another 
jurisdiction,  1916D-853. 

Grand  jury:  evidence  on  resubmission  of 
cause  to  grand  jury,  1916D-276. 

Handwriting:  testing  handwriting  witness 
by  use  of  other  writing,  1917B-1060. 

Hospital  charts:  hospital  chart  as  evidence, 
1916C-78. 

Insanity:  admissibility,  on  issue  of  sanity, 
of  evidence  of  insanity  of  ancestors  or 
kindred,  1918B-124. 

—suicide  as  evidence  of  insanitv,  1916E— 
488. 

Intoxicating  liquors:  evidence  in  action  for 
penalty  for  violation  of  intoxicating 
liquor  statute,  1916E-874. 

Judgments:  admissibility  in  subsequent 
civil  action  of  judgment  of  conviction 
based  on  plea  of  guilty,  1917E-11C9. 

Judicial  notice:  judicial  notice  of  contents 
of  legislative  journals  on  issue  as  to 
enactment  of  statute,  1916E-12S4. 

— judicial  notice  of  mortality  tables, 
1918B-415. 

—judicial  notice  of  proceedings  for  adop- 
tion of  amendment  to  constitution, 
1917D-1031. 


EVIDENCE— Continued. 

Juvenile  courts:  evidence  in  juvenile  court 
proceeding,  1916E-1016. 

Knowledge:  competency  of  witness  to  tes- 
tify to  knowledge  of  another,  1918A- 
947. 

Letterheads:  evidentiary  effect  of  use  of 
printed  letterhead,  1917B-271. 

Letters:  admissibility  in  evidence  of  self- 
serving  letter  sent  in  general  course 
of  business,  1917D-790. 

Libel  and  slander:  admissibility  of  testi- 
mony of  readers  or  hearers  of  libel  or 
slander  as  to  their  understanding  of 
identity  of  person  defamed,  1917(%-36. 

Malicious  prosecution:  acquittal  in  crim- 
inal prosecution  as  evidence,  in  action 
for  malicious  prosecution,  of  want  of 
probable  cause,  I916E-376. 

Maps:  admissibility  in  evidence  of  ancient 
map,  1916C-176. 

Mercantile  agencies,  statement  to  or  re- 
port by  mercantile  agency  as  evidence, 
1916D-760. 

Microscope:  competency  of  witness  to  tes- 
tify to  information  acquired  by  aid  of 
microscope,  1916D-930. 

Mortality  tables:  admissibility,  in  action 
for  death  by  wrongful  act,  of  mortal- 
ity tables  to  show  probable  duration  of 
life,  1918A-1021. 

— judicial  notice  of  mortality  tables, 
1918B-415. 

New  trial,  admission  of  incompetent  evi- 
dence as  ground  for  granting  of  new 
trial  by  trial  court,   1917D-545. 

Ownership:  license  number  on  motor  vehi- 
cle as  evidence  of  ownership  thereof, 
1916D-1163. 

Parol  evidence:  admissibility  of  extrinsic 
evidence  with  respect  to  approval  or 
disapproval  of  bill  by  executive, 
1917C-836. 

— admissibility  of  parol  evidence  to  show 
illegality  of  contract,  1917D-426. 

— admissibility  of  parol  evidence  to  show 
place  of  payment  under  contract  silent 
in  that  respect,  1916E-366. 

— parol  evidence  of  conditional  delivery 
of  bill  or  note,  19170-1049. 

— parol  evidence  to  show  falsity  of  certi- 
ficate of  acknowledgment,  i917A-373. 

— proof  by  parol  of  contents  of  lost  memo- 
randum required  by  statute  of  frauds, 
1916E-173. 

— proof  by  parol  of  contents  of  lost  or  de- 
stroyed deposition,  1916D-2o3. 

— proof  by  parol  of  contents  of  lost  or  de- 
stroyed judicial   record,   1916D-248. 

Presumptions:  conflict  between  presump- 
tion of  identity  of  person  from  iden- 
tity of  name  and  another  presumption, 
19i7E-121. 

— ^presumption  as  to  authenticity  of  lettei 
received  in  reply  to  letter,  19170-925. 

— presumption  as  to  knowledge  of  foreign 
law.  1916D-1072. 

— presumption  as  to  liability  of  wife  for 
household  expenses,  1917C-561. 


INDEX  TO  THE  NOTES. 


43 


EVIDENCE— Continued. 

Presumptions:  presumption  from  use  or 
omission  of  suffix  to  name,  1917A— 
1215. 

— presumption  in  favor  of  certificate  of 
acknowledgment,   1917A-369, 

— presumption  of  invalidity  of  contract  for 
compensation  of  attorney  made  after 
establishment  of  relation,  1917A-535. 

— ^presumption  of  negligence  from  collision 
resulting  in  injury  to  passenger, 
1917C--634. 

— presumption  of  receipt  of  letter,  1917E- 
1058. 

— presumption  of  receipt  of  telegram, 
1917E-1081. 

Presumption  of  temperance  or  sobriety, 
1918A-620. 

— ^presumption  of  undue  influence  arising 
from  relation  of  "man  and  woman  en- 
gaged to  be  married,  1916C-1031. 

— ^presumption  of  undue  influence  in  case 
of  conveyance  inter  vivos  by  parent 
to  child,  1918B-457. 

— presumption  that  contract  executed  by 
president  of  corporation  is  authorized 
by  corporation,  1917A-360. 

— time  of  death  within  rule  as  to  presump- 
tion of  death  from  absence,  1917 A-82, 

Prima  facie  evidence:  validity  of  ordi- 
nance providing  that  certain  state  of 
facts  shall  constitute  prima  facie  evi- 
dence of  violation  thereof,  1916C- 
1062. 

Robbery:  admissibility  of  evidence  in 
prosecution  for  assault  with  intent  to 
commit  robbery,  1918A-416. 

Sales:  evidence  in  action  for  breach  of 
warranty  in  sale  of  seed,  1918B-87. 

Seduction:  admissibility  of  evidence  of  de- 
fendant's reputation  in  prosecution  for 
seduction,  1916E-381. 

Surveys:  admissibility  in  evidence  of  an- 
cient survey,  19l'6C-176. 

— admissibility  in  evidence  of  field  book 
entries  of  deceased  survevor,  1917E- 
675. 

Teler^rams:  admissibility  in  evidence  of 
self-serving  telegram  sent  in  general 
course  of  business,  1917D-790. 

Telephones:  conversations  by  telephone  as 
evidence.  I916E-977. 

Trial  without  jury:  effecf  of  admission  of 
incompetent  evidence  in  trial  before 
court  without  jury,  1917C-660. 

Usages  and  customs:  admissibility  of  evi- 
dence of  peculiar  signification  of  word 
in  localitv  where  instrument  was  exe- 
cuted, 19i6C-655. 

Value:  price  paid  for  personalty  or  ser- 
vices as  evidence  of  value  thereof, 
1916D-797. 

Weight  and  sufficiency:  comparative 
weight  of  estimate  and  actual  meas- 
urement, 1916E-573. 

—conclusiveness  of  testimony  of  subscrib- 
ing witnesses  with  respect  to  execu- 
tion of  will,  1916D-1104. 

— evidence  requisite  to  impeach  acknowl- 
edgment, 1917A-368. 


EVIDENCE— Continued. 

Weight  and  sufficiency:  improbable  testi- 
mony by   bankrupt,  1917B-1096. 

— relative  weight  of  deposition  and  oral 
testimony,  1917D-758. 

— sufficiency  of  evidence  in  action  against 
gas  company  for  injury  caused  by  es- 
cape of  gas,  1916E-280. 

— sufficiency  of  evidence  in  prosecution  for 
assault  with  intent  to  commit  robbery, 
1918A-416. 

— sufficiency  of  evidence  to  establish  con- 
structive or  resulting  trust,  1916D- 
1194. 

— sufficiency  of  evidence  to  show  emanci- 
pation of  infant,  1917D-585. 

— sufficiency  of  evidence  to  show  mailing 
of  letter,  1917E-1076. 

— sufficiency  of  proof  to  establish  contents 
of  lost  instrument,  1917A-1104. 

— unnatural  or  unjust  disposition  of  es- 
tate as  evidence  of  testamentary  inca- 
pacity, 1917E-130. 

— weight  of  evidence  of  private  detective, 
1917A-589. 

— ^what  constitutes  scintilla  of  evidence, 
1918B-943. 

— withdrawal  of  unreasonable  testimony 
from  consideration  of  jury,  1917B- 
473. 

Wills:  foreign  probate  of  will  as  evidence 
in  domestic  courts,  1918A-616. 

See  also  Misconduct  of  Counsel;  Witnesses. 

EXAMINATION. 
See  Criminal  Law. 

EXAMINATION  OF  TITLE. 
See  Judicial  Sales. 

EXAMINERS. 
See  Banks. 

EXCAVATIONS. 

See   Adjoining    Landowners;    Mines    and 
Minerals. 

EXCEPTION. 
See  Appeal  and  Error. 

EXCEPTIONS. 
See  Deeds;  Statutes. 

EXCESSIVE  INSTRUCTIONS. 
See  Instructions. 

EXCESSIVE  SENTENCE. 
See  Sentence  and  Punishment. 

EXCESSIVE  VERDICT. 
See  Verdict. 


44 


EiXCHANGES. 
See  Stock  Exchanges. 

EXCLUSION  FBOM  COURTROOM. 
See  Trial. 

EXCULPATORY  STATEMENTS. 
See  Admissions  and  Declarations. 

EXECUTION. 
See  Life  Insurance. 

EXECUTIONS. 

Assignment:  eflFect  on  judgment  lien  of 
assignment  of  judgment  or  execution 
issued  to  or  for  benefit  of  judgment 
debtor,  1917C-557. 

Attorneys:  lien  of  attorney  on  execution 
in  his  possession  connected  witli  liti- 
gation, 1917D-149. 

Computation  of  time:  exclusion  or  inclu- 
sion of  Sunday  or  holiday  in  compu- 
tation of  time  for  issuance  of  execu- 
tion, 1917E-941. 

Junior  execution:  rights  of  parties  on  sale 
under  junior  execution,  1917B-710. 

Lost  writ:  proof  by  parol  of  contents  of 
lost  or  destroyed  writ  of  execution, 
1916D-252. 

Several  judgments:  issuance  of  execution 
as  giving  priority  to  one  of  several 
equal  judgments,  1917D-187. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  executions,  1916D- 
80. 

Stock:    rights    of  unregistered    transferee 
as  against  execution  levied  on  stock, 
1917A-428. 
See  also  Exemptions;  Judicial  Sales. 

EXECUTIVE  ACTION. 
See  Statutes. 

EXECUTIVE  OFFICERS. 
See  Malicious  Prosecution. 

EXECUTORS  AND  ADMINISTRATORS. 

Actions:  necessity  that  executor  or  admin- 
istrator in  action  brought  by  him 
allege  that  suit  is  brought  in  repre- 
sentative capacity,  1916E-114. 

— personal  representative  of  deceased 
owner  of  premises  as  necessary  party 
defendant  to  action  to  foreclose  me- 
chanic's lien,  1918B-16. 

Advancements:  right  of  executor  or  ad- 
ministrator to  recover  from  estate  ad- 
vancement made  to  member  of  dece- 
dent's family,  1917A-134. 

Appointment:  right  of  action  within  juris- 
diction as  sufficient  property  right  to 
warrant  grant  of  administration, 
1917C-1217. 


DIGEST. 

1916C— 1918B. 

EXECUTORS   AND   ADMINISTRATORS 

— Continued. 

Attorneys;  power  of  executor  or  adminis- 
trator to  employ  attorney  under  ex- 
press contract  as  to  amount  of  com- 
pensation, I917B-216. 

"Child"  in  statute  relating  to  administra- 
tion of  decedents'  estates  as  including 
illegitimate  child,  1918B-254. 

Claims;  presentations  of  claim  as  condi- 
tion precedent  to  enforcement  of  mort- 
gage against  decedent's  estate,  1917B- 
158. 

Consul:  rights  and  duties  of  consul  with 
respect  to  decedent's  estate,  1916D-237. 

De  son  tort:  what  acts  of  intermeddling 
charge  person  as  executor  de  sou  tort, 
1917E-3. 

Equitable  election:  act  of  husband  as 
executor  as  constituting  election  to 
take  under  wife's  will,  1916C-1207. 

Fees:  validity  of  statute  fixing  adminis> 
tration  fees,  19160-213. 

Indebtedness  of  heir:  distributive  share  of 
heir  in  real  estate  as  chargeable  with 
heir's  indebtedness  to  estate  either  as 
against  land  itself  or  proceeds  of  sale 
thereof,  1916D-1294. 

Indebtedness  of  representative:  liability 
of  sureties  of  executor  or  administra- 
tor for  debt  of  their  principal  to  de- 
cedent, 1916D-636. 

Letters:  grant  of  letters  testamentary  or 
of  administration  as  evidence  of  death, 
1918A-1011. 

Public  administrators,  1918B-10o9. 

Rent:  liability  of  executor  or  administra- 
tor of  lessee  for  rent,  1916E-820. 

Renunciation:  right  of  executor  or  trustee 
to  retract  renunciation  of  trust, 
1916D-1301. 

Revocation  of  appointment:  validity  of 
acts  of  administrator  whose  appoint- 
ment is  revoked  by  subsequent  dis- 
covery of  will.  1917B-1128. 

Sale  of  realty:  implied  power  of  executor 
to  sell  real  estate  of  testator,  1916D- 
410. 

^limit  of  time  within  which  leave  will 
be  granted  to  sell  decedent's  reaJty, 
1917C-600. 

Tombstones:  liability  of  decedent's  estate 
for  'cost  of  monument  or  tombstone, 
1917B-256. 

"Widow's  allowance:  effect  of  voluntary 
separation  on  right  to  widow's  allow- 
ance, 19160-866. 

See  also  Descent  and  Distribution;  Hus- 
band and  Wife;  Wills;  Witnesses. 


EXEMPLARY  DAMAGES. 
See  Damages. 

EXEMPTIONS. 

'Child"  in  statute  relating  to  exemptions 
as  including  illegitimate  child,  1918B- 
256. 


INDEX  TO  THE  NOTES. 


45 


EXEIklPTIONS — Continued, 

Vehicle  as  "tool,"  "implement"  or  "instru- 
ment" within  exemption  statute, 
1917D-96. 

See  also  Process;  Taxation. 

EXHUMATION. 
See  Dead  Bodies. 

EXPATRIATED    PERSONS. 
See  War. 

EXPECTANCY. 
See  Descent  and  Distribution. 

EXPENSES. 
See  Attorneys. 

EXPERT  ACCOUNTANTS. 

Personal  liability  of  attorney  for  fees  of 
expert  accountant,  1917B-525. 


EXTENSION  OP  TIME. 
See  Bills  and  Notes. 

EXTORTION. 

Criminal  liability  for  threat  of  prosecu- 
tion in  connection  with  demand  for 
payment  of  debt,  1917E-246. 

Threat  to  accuse  of  crime  as  criminal 
offense,  1917B-134. 

EXTRADITION. 

Person  in  custody  on  charge  of  other  crime 
as  subject  to  extradition,  1917B-337. 

EXTRAHAZARDOUS. 

Meaning  of  "extrahazardous"  as  used  in 
workmen's  compensation  act,  191 7D- 
10. 

EXTRAORDINARY  FLOODS. 
See  Waters  and  Watercourses. 


EXPERT  EVIDENCE. 
See  Evidence;  Witnesses. 

EXPLOSIONS  AND  EXPLOSIVES. 

Inducement  to  violate  statute  regulating 
manufacture  and  use  of  explosives 
with  view  to  prosecution  therefor  as 
defense  to  such  prosecution,  1916C- 
733. 

Injury  to  property  by  concussion  or  vibra- 
tion resulting  from  blasting,  1916C- 
1176. 

Liability  as  for  negligence  of  one  throw- 
ing awav  small  quantity  of  explosive, 
1917E-345. 

Seller  of  powder  as  "dealer,"  1917A-961. 

Storage  of  gasoline  or  other  explosive  as 
nuisance,  19160-820. 

EXPRESS  COMPANIES. 

Express  agent  as  employee  of  railroad  un- 
der federal  employers'  liability  act, 
1918B-52, 

EXPRESS  CONTRACTS. 

See  Executors  and  Administrators. 

"EXPRESSIO    UNIUS    EST    EXCLUSIO 
ALTERIUS." 

Meaning  of  phrase  "expressio  unius  est 
exclusio  alterius"  as  used  in  work- 
men's  compensation   act,   1917D-8. 

EXPRESS  WARRANTY. 
See  Warranty. 

EXPULSION  FROM  SCHOOL. 
See  Schools. 


EXTRINSIC  EVIDENCE. 
See  Statutes. 

EYE  DISEASES. 
See  Physicians  and  Surgeons. 


EYESIGHT. 

What     constitutes     "loss"     of     eyesight, 
1918A-533. 


FACILITY  OF  PAYMENT. 

Construction  of  "facility  of  payment" 
clause  in  industrial  insurance  policy, 
1918B-1193. 


FACTORIES. 

Employment  in  factory  as  within  pur- 
view of  workmen's  compensation  act, 
I917D-18. 

FACTORS. 

Validity  of  state  or  municipal  regulation 
of  commission  merchants,  1917B--631. 

FAILURE  OF  CONSIDERATION. 
See  Antenuptial  Agreements. 

FALLING  OVERBOARD. 
See  Carriers  of  Passengers. 

FALSE  IMPRISONMENT. 

Inconsistent  defenses  in  action  for  false 
imprisonment,  1917C-737. 

Liability  of  person  reporting  commission 
of  offense  to  police  officer  for  arrest  by 
officer  without  warrant,  1917E-404. 


46 


DIGEST. 

1916C— 1918B. 


FALSE  IMPRISONMENT— Continued. 
What  is  excessive  or  inadequate  verdict  in 

action  for  false  imprisonment,  1916C- 

505. 

See  also  Arrest. 

FALSE  PRETENSES. 

Attempt:  what  constitutes  attempt  to  ob- 
tain money  by  false  pretenses,  1917B- 
1230. 

Bill  or  note  as  "property,"  etc.,  within 
statute  against  false  pretenses,  1917D- 
627. 

Checks:  giving  worthless  cheek  as  false 
pretense,  1916E-736. 

Corporations:  criminal  liability  of  corpo- 
ration for  obtaining  money  by  false 
pretenses,  1916C-465. 

Inducement  to  commit  crime  of  obtaining 
goods  by  false  pretenses  with  view  to 
prosecution  therefor  as  defense  to  such 
prosecution,  1916C-731. 

Jurisdiction  of  oflfense  of  obtaining  prop- 
erty by  false  preteuses,  1917E-311. 

Loan  of  money:  obtaining  loan  of  money 
as  constituting  crime  of  obtaining 
money  by  false  pretenses,  19160-1158. 

FAMILY. 

Communication  to  member  of  family  as 
privileged  within  law  of  libel  and 
slander,  1917E-898. 

Member  of  family  as  "dependent"  within 
workmen's  compensation  act,  1918B- 
751. 

Persons  included  within  term  "family" 
when  used  to  designate  beneficiaries 
in  insurance  policy  or  benefit  certifi- 
cate, 1917C-694. 

FAMILY  EXPENSES. 

Meaning  of  term  "family  expenses," 
19170-575. 

FARES. 
See  Tickets  and  Fares. 

FARMERS. 
Parmer  as  "dealer,"  1917A-961. 

FARM  LOANS. 
See  Agriculture. 

FATHER. 
"Father"  as  including  stepfather,  1917B- 
1118. 

FEDERAL  COURTS. 
See  Removal  of  Causes. 

FEDERAL     EMPLOYERS'     LIABILITY 
ACT. 

See  Employers'  Liability  Acts, 


FEDERAL  GOVERNMENT. 

Public  property  of  national  government  as 
subject  to  special  assessment,  1917D- 
844. 

See  also  Militia. 

FEDERAL  RESERVE  ACT. 
See  Banks. 

FEB  IN  LAND. 
See  Eminent  Domain. 

FEES. 

See  Attorneys;  Jury;  Taxation.  And  see 
cross-references  under  the  title  Com- 
pensation. 

FELONIES. 
See  Actions  and  Proceedings. 

FENCES. 

Prescriptive  obligation  to  maintain  divi- 
sion fence,  1917B-1253. 

FERTILIZER. 

Place  for  storing  or  mixing  fertilizer  as 
nuisance,  1917D-1152. 

FICTITIOUS  PAYEES. 
See  Bills  and  Notes. 

FIDELITY  INSURANCE. 

Act  or  default  of  employee  covered  by 
fidelity  bond  or  insurance,  19170-420, 

Eecovery  of  premium  paid  for  fidelity  in- 
surance, 1916C-1222. 

FIDUCIARIES. 

Misconduct  of  attorney  acting  in  fiduciary 
capacity  as  ground  for  disbarment, 
1917B-232. 

Information  acquired  in  fiduciary  relation 
as  privileged  from  disclosure,  1916C- 
701. 

Statement  by  fiduciary  with  respect  to  sub- 
ject-matter of  trust  as  privileged  with- 
in law  of  libel  and  slander,  1917B- 
227. 

Purchase  of  stock  by  director  as  affected' 
by   fiduciary    relation   to   stockholder, 
191SB-241. 

FIELD  NOTES. 
See  Surveyors. 

FIGHTING. 
See  Accident  Insurance. 

FILLING  BLANKS. 
See  Alteration  of  Instruments. 


INDEX  TO  THE  NOTES. 


47 


riNAIi  "S." 
See  Names. 

FINDER. 
Bee  Lost  Property. 

FINES  AND  PENALTIES. 

Abatement  of  action:  dissolution  of  corpo- 
ration as  abating  action  against  it  to 
recover  penalty,  1917A-1180. 

Assignability  of  right  of  action  for  pen- 
alty, 1916D-893. 

Breach  of  contract:  whethei  stipulated 
forfeiture  for  breach  of  contract  a 
penalty  or  liquidated  damages,  1917D- 
739. 

Computation  of  time:  exclusion  or  inclu- 
sion of  Sunday  in  computation  of 
statutory  penalty,  1917E-945. 

Evidence:  admissibility  of  evidence  of 
character  or  reputation  of  defendant 
in  action  to  recover  penalty,  1916D- 
1151. 

Intoxicating  liquors:  action  for  penalty  for 
violation  of  intoxicating  liquor  stat- 
ute, 1916E-S68. 

— disposition  of  penalty  recovered  for  vio- 
lation of  intoxicating  liquor  statute, 
1916E-874. 

— recovery  of  several  penalties  in  single 
action  for  violation  of  intoxicating 
liquor  statute,  1916E-873. 

National  banks:  jurisdiction  of  action 
against  national  bank  to  recover  pen- 
alty for  taking  usurious  interest, 
1916D-1246. 

Prostitution:  validity  and  construction  of 
statute  imposing  penalty  on  owner  of 
premises  for  use  thereof  for  purpose 
of  prostitution,  1917A-459. 

Statutes:  effect  of  invalidity  of  provision 
of  statute  prescribing  penalty,  1916D- 
31. 

See  also  Appeal  and  Error;  Carriers  of 
Goods;  Carriers  of  Live  Stock. 

FINGER. 

What  constitutes  "loss"  of  finger  within 
workmen's  compensation  act,  1918A— 
538. 

FINGER  PRINTS. 

Law  of  finger  prints,  1917A-417. 

FIREARMS. 
See  Assault. 

FIRE  COMPANIES. 

Fire  company,  insurance  patrol  or  the  like 
as  charitable  institution,  1917C-797. 

FIRE  DEPARTMENT. 

Care  required  of  driver  of  street  car  or 
other  vehicle  to  avoid  collision  with 
fire  apparatus,  p.918A-290. 


FIRE   DEPARTMENT— Continued. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  municipal  fire  department, 
1916D-75. 

Speed  or  other  highway  restriction  as  ap- 
plicable to  fire  apparatus,  1917D-565. 

FIRE  ESCAPES. 
Duty  to  maintain  fire  escapes,  1916E-629. 

FIRE  INSURANCE. 

Agents:  liability  of  agent  to  insurance 
company  for  issuing  policy  in  viola- 
tion of  instruction,  1917B-493. 

— liability  of  insurance  agent  to  owner  of 
property  for  failure  to  procure  insur- 
ance, 1918B-1037. 

— right  of  fire  insurance  agent  to  insure 
his  own  property,  1916D-1278. 

Automobiles:  insurance  of  automobile 
against  fire,  1917D-54.  n 

Cancellation  of  policy:  necessity  of  return 
or  tender  of  unearned  premium  to 
effect  cancellation  of  fire  insurance 
policy  by  insurer,  1917B-910. 

Construction  of  policy:  construction  of 
vacancy  clause  in  fire  insurance  policy 
issued  upon  rented  property  1917B- 
669. 

— construction  of  watchman  clause  in  fire 
insurance  policy,  1917D-821. 

— fire  insurance  policy  on  live  stock  in 
designated  location  as  covering  ani- 
mals temporarily  elsewhere,  1916E- 
398. 

— overheating  as  fire  within  fire  insurance 
policy,   1916D-228. 

— sale  and  reacquisition  of  title  as  viola- 
tion of  clause  in  fire  insurance  policy 
prohibiting  change  in  interest,  title, 
etc.,  1917C-934. 

Fraudulent  conveyances:  right  to  proceeds 
of  insurance  on  property  conveyed  in 
fraud  of  creditors,  1917E-291. 

Insurable  interest  of  tenant  of  property 
for  specific  term,  1917C-951. 

Ordinances:  effect  of  local  ordinance  or 
regulation  on  liability  under  fire  in- 
surance policy,  1917B-1250. 

Patrol:  fire  company,  insurance  patrol  or 
the  like  as  charitable  institution, 
1917C-797. 

^liability  of  fire  insurance  patrol  in  tort, 
I917E-684. 

Revival  of  policy:  revival  of  fire  insurance 
policy  after  satisfaction  of  lien  or  in- 
eum.brance  attaching  to  property  in 
violation  of  policy,  1917B-1241. 

— revival  of  fire  insurance  policy  by  occu- 
pancy after  vacancy,  1916C-770. 

Schools:  validity  of  expenditure  of  school 
funds  for  establishment  of  school  in- 
surance fund,  1917C-925. 

Subrogation:  right  of  insurance  company 
to  enforce  subrogation  by  suit  in  its 
own  name,  1918A-834. 

— subrogation  of  insurer  to  rights  of 
mortgag.ee,    1917B-1135. 


48 


DIGEST. 

1916C— 1918B. 


FIBE  INSUEANCE — Continued. 
Validity   of  insurance  policy  on  property 

illegally  kept  or  used,  1916C-1070. 
Waiver  of  conditions  in  insurance  policy 

by    insurer's    failure    to    inquire    into 

existing  facts,  1917B-500. 

FIRES. 

Brick  kilns:  danger  from  fire  as  warrant- 
ing relief  against  brick  kiln  as  nui- 
sance, 1917E-423. 

"Damage  by  elements":  damage  by  fire  as 
included  within  term  "damage  by  ele- 
ments," 1917B-296. 

Fire  limits:  right  of  municipality  to  en- 
join violation  of  ordinance  prohibit- 
ing erection  of  wooden  building 
within  fire  limits,  1916C-965. 

Hotels:  liability  of  innkeeper  to  guest  for 
injuries  sustained  by  latter  in  fire, 
1917A-143. 

— validity  of  statute  or  ordinance  requir- 
ing hotels  and  the  like  to, provide  pro- 
tection against  fire,  1916C-294. 

Bailroads:  validity  of  statute  making  rail- 
road absolutely  liable  for  damage  by 
fire,  1918A-632. 

Stationary  engines:  liability  for  fire 
caused  by  stationary  engine,  furnace, 
or  the  like,  1917C-771. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  fires,  1916D-54. 

FISH  AND  OAME. 

Corporations:  criminal  liability  of  corpo- 
ration for  fishing,  1916C-465. 

Punishment:  what  constitutes  cruel  and 
unusual  punishment  for  violation  of 
fish  and  game  law,  1918B-401. 

Statutory  regulation:  effect  of  partial  in- 
validity of  statute  relating  to  fish  and 
game,  1916D-55. 

—validity  and  construction  of  Federal 
statutes   protecting  game,  19I7D-654. 

—validity  and  construction  of  statute 
regulating  method  of  taking  fish, 
1917r)-814. 

— validity  of  statute  requiring  license  to 
hunt  game,  1916C-134. 

Wild  animals:  right  of  property  in  wild 
animal,  1917B-949. 

See  also  Animals. 

FIXTURES. 

Contracts  involving  theatre  fixtures, 
1917C-399. 

Gas  or  electric  light  plant  or  accessories 
as  fixtures,  1917B-183. 

Value  of  fixtures  as  element  of  damages 
sustained  by  appropriation  of  prop- 
erty in  eminent  domain  proceeding, 
1916C-780. 

See  also  Conditional  Sales. 

FLAGS. 
See  Parades. 


FLOODS. 
See  Waters  and  Watercourses. 

FLOWAGE. 
See  Waters  and  Watercourses. 

FOOD  AND  DRUGS. 

Criminal  prosecution:  criminal  liability  of 
corporation  for  violating  food  law, 
1916C'-465. 

—inducement  to  commit  offense  under 
pure  food  and  drugs  act  with  view  to 
prosecution  therefor  as  defense  to 
such  prosecution,  1916C-734. 

Eggs:  validity  and  construction  of  stat- 
ute or  ordinance  regulating  sale  of 
eggs,  1918A-181. 

Ice-cream:  state  or  municipal  regulation 
of  ice-cream,  1917B-645. 

Injuries:  liability  as  for  negligence  of 
proprietor  of  restaurant  or  lunch 
room  to  person  injured  by  eating 
therein,  1916D-921. 

—liability  for  injury  resulting  from  for- 
eign substance  in  beverage,  191 7B- 
_  575. 

— liability  for  injury  resulting  from  for- 
eign substance  in  food,  1918B-225. 

Meat:   butcher  as  "dealer,"  1917A-952. 

— statutory  or  municipal  regulation  of 
meat  dealers,  1917A-198. 

Milk:  person  selling  milk  as  "dealer," 
1917A-959. 

Oleomargarin:  person  selling  oleomargarin 
as  "dealer,"  1917A-959. 

Opium,  etc.:  validity  and  construction  of 
federal  regulation  of  manufacture, 
sale  or  possession  of  opium  or  other 
narcotic,  1917D-856. 

Partial  invalidity  of  statute:  effect  of  par- 
tial invalidity  of  statute  relating  to 
foods  and   drugs,  1916D-56. 

Workmen's  compensation  acts:  employ- 
ment in  connection  with  preparation 
of  food  as  within  purview  of  work- 
men's compensation  act,  1917D-23. 

FOOT. 

What  constitutes  "loss"  of  foot,  within 
workmen's  compensation  act,  1918A- 
539. 

FOOTPRINTS. 
See  Evidence. 

FORCE. 

Validity  of  personal  service  of  process 
procured  by  fraud  or  force,  1916C-612. 

FORECLOSURE. 
See  Mechanics'  Liens;  Mortgages. 

FOREIGN  ACTIONS. 
See  Actions. 


INDEX  TO  THE  NOTES. 


49 


FOEEION  CORPORATIONS. 

^Attachment:  right  to  issue  attachment 
against  foreign  corporation  on  ground 
of  nonresidence,  1916E-362. 

Service  of  process:  liability  to  suit  within 
state  of  foreign  corporation  which  hag 
revoked  designation  of  agent  for  ser- 
vice of  process  and  has  ceased  to  do 
business  within  state,   1916D-378. 

—right  to  serve  process  on  public  official 
or  designated  agent  of  foreign  corpo- 
ration in  action  arising  out  of  trans- 
action in  another  state,  1918A-392. 

•^validity  of  statute  designating  partic- 
ular kind  of  agent  of  foreign  corpora- 
tion on  whom  process  may  be  served, 
1916E-339. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  foreign  corpora- 
tions,  1916D-39. 

Taxation:  imposition  of  license  tax  or  fee 
on  foreign  corporation,  1916C-1248. 

— liability  to  taxation  within  state  of 
shares  of  stock  of  foreign  corporation, 
1916C-829. 

- — situs  of  stock  of  foreign  corporation 
for  purposes  of  succession  tax,  1918A- 
558. 

FOREIGN  LAWS. 

Admissibility  of  printed  copy  of  statutes 

to  prove  law  of  another  jurisdiction, 

1916r)-853. 
Misrepresentation    as    to    foreign    law    as 

fraud,  1917E-1096. 
Presumption   as   to   knowledge   of  foreign 

law,  1916D-1072. 

FOREIGN  MARRIAGES. 
See  Bigamy. 

FOREIGN  SUBSTANCES. 
See  Food  and  Drugs. 

FOREIGN  WILLS. 

See  Wills. 

FORESTRY. 

Employment  in  forestry  service  as  within 
purview  of  workmen's  compensation 
act,  1917D-23. 

See  also  Trees  and  Timber. 

FORFEITURES. 

Dissolution  of  corporation  as  abating  ac- 
tion against  it  to  enforce  forfeiture, 
1917A-1180. 

Validity  and  construction  of  statute  sub- 
jecting owner  of  premises  to  for- 
feiture for  use  thereof  for  purpose  of 
prostitution,  1917A-459. 

See  also  Bail;  Beneficial  Associations; 
Contracts;  Easements;  Fines  and  Pen- 
alties; Fire  Insurance;  Homestead. 


FORGED   INDORSEMENT. 
See  also  Checks. 

FORGERY. 

Forgery  of  or  by  typewriting,  1916D-784. 

FORMER  EVIDENCE. 
See  Witnesses. 

FORMER  JEOPARI>Y. 
See  Jeopardy. 

FORNICATION. 

Imputing  fornication  to  man  as  slander, 
1917A-1044. 

FORTIFICATIONS. 

Eiver  and  harbor  or  fortification  work  as 
employment  within  purview  of  work- 
men's compensation  act,  1917D-27. 

FRANCHISES. 

Effect  of  partial  invalidity  of  statutes  re- 
lating to  franchises,  1916D-56. 

Injury  to  franchise  as  element  of  damages 
in  eminent  domain  proceeding, 
1918B-877. 

Eight  of  municipality  to  enforce  by  man- 
damus contract  obligation  arising 
from  franchise,  1918A-916.  • 

FRATERNAL  ASSOCIATIONS. 

See  Beneficial  Associations;  Societies  and 

Clubs. 

FRAUD. 

Appeal  and  error:  jurisdiction  of  appellate 
court  after  remand  where  decision  is 
obtained  by  fraud,  1917A-286. 

Attorneys:  liability  of  attorney  to  client 
for  fraud  or  unfair  dealing,  1917B-11. 

Building  and  loan  associations:  avoidance 
of  building  and  loan  contract  on 
ground  of  fraud,  1917A-890. 

Confessions:  admissibility  of  confession 
obtained  by  fraud  or  trick,  1916D- 
966. 

Corporations:  purchase  of  stock  by  direc- 
tor as  affected  by  fiduciary  relation 
to  stockholder,  1918B-241. 

Elections:  rejection  of  entire  vote  of  elec- 
tion district  for  fraud  affecting 
indeterminable  number  of  votes, 
1918A-41. 

Fidelity  insurance:  what  constitutes  fraud 
of  employee  within  policy  of  fidelity 
insurance,   1917C-420. 

Foreign  laws:  misrepresentation  as  to  for- 
eign law  as  fraud,  1917B-1096. 

Mercantile  agencies:  false  statement  to 
mercantile  agency  ag  fraud  on  subse- 
quent creditor,  I916D-753. 


50 


DIGEST. 

1916C— 1918B. 


FRAX7I> — Continued. 

Naturalization:  fraud  as  ground  for  revo- 
cation of  naturalization,  1917C-46. 

Personal  services:  right  of  action  for 
fraud  in  inducing  performance  of  per- 
sonal services  with'out  intent  to  pay 
therefor,  19160-172. 

Profits:  statement  of  opinion  as  to  future 
profits  of  business  as  ground  for  ac- 
tion for  fraud  or  for  rescission  of 
contract,   1916D-1040. 

Eecord  of  instrument  as  constructive 
notice  of  fraud,  1917A-267. 

Service  of  process:  validity  of  personal 
service  of  process  procured  by  fraud 
or  force,  1916C-612. 

Vendor  and  purchaser:  fraud  as  affecting 
right  to  damages  for  breach  of  con- 
tract to  sell  land  due  to  vendor's  in- 
ability to  make  title,  1917B-860. 

See  also  Confusion  of  Goods;  False  Pre- 
tenses; Fraudulent  Sales  and  Convey- 
ances; Post  Office;  Release  and  Dis- 
charge. 

FEAUDS,  STATUTE  OF. 

Brokers:  necessity  that  broker  have  writ- 
ten authority  to  enter  into  contract 
of  sale,  1917A-524. 

Crops:  validity  of  parol  reservation  of 
crops  by  vendor  of  land,  19160-344. 

Memorandum:  necessity  for  statement  of 
consideration  in  contract  within  stat- 
ute of  frauds  other  than  contracif  to 
answer  for  debt  of  another,  1918A- 
134. 

— ^proof  by  parol  of  contents  of  lost  memo- 
randum required  by  statute  of  frauds, 
19160-173. 

— sufiiciency  of  printed  signature  to 
memorandum  within  statute  of  frauds, 
1918B-1030. 

Performance  within  year;  whether  con- 
tract which  depends  upon  contingency 
for  performance  within  year  is  within 
statute  of  frauds,  1916E-1136. 

Sales  of  goods:  continuance  of  existing 
possession  by  vendee  as  suflScient  de- 
livery to  take  verbal  sale  of  goods  out 
of  statute  of  frauds,  1917B-572. 

— effect  on  sales  of  corporate  stock  of 
seventeenth  section  of  statute  of 
frauds  and  equivalent  enactments, 
19170-991. 

— symbolical  or  constructive  delivery  of 
goods  within  statute  of  frauds, 
1917B-066. 

Sales  of  realty:  contract  for  sale  of  build- 
ing as  contract  for  sale  of  realty 
within    statute   of   frauds,    1916D-970. 

FRAUDULENT  SALES  AND  CONVEY- 
ANCES. 

Delay  in  recording  deed  as  constituting 
fraud  on  creditors  of  grantor, 
191SA-1054. 


FRAUDULENT  SALES  AND  CONVEY- 
ANCES — Continued. 

Mortgagee  as  creditor  entitled  to  attack 
conveyance  of  same  or  other  property 
by  mortgagee,  19170-953. 

Remedies  of  creditor  for  violation  of  bulk 
sales  law,  19160-928. 

Bight  to  proceeds  of  insurance  on  property 
conveved  in  fraud  of  creditors, 
1917E-291. 

Validity  as  against  creditors  of  convey- 
ance of  homestead,  1917C-994. 

FRESHETS. 
See  Waters  and  Watercourses. 

FRIEin>S. 

Oommunication  based  on  friendship  as 
privileged  from  disclosure,  19160-699. 

Validity  and  effect  of  contract  induced  by 
threats  of  criminal  prosecution 
against  friend,  or  relative  other  than 
parent,  child  or  spouse,  19170-1033. 

FRIGHTENING. 
See  Assault. 

FRIVOLOUS  PLEADING. 

See  Pleading. 

FROM. 

"From"  as  word  of  inclusion  or  exclusion, 
1918A-924. 

FRUIT. 

Right  to  fruit  of  overhanging  tree, 
1918B-1168. 

See  also  Agriculture. 

FRUIT  STANDS. 
See  Streets  and  Highways. 

FRUSTRATION  OF  VOYAGE. 
See  Marine  Insurance. 

FUEL. 
See  Municipal  Corporations. 

FUNERAL  EXPENSES. 

See  Executors   and  Administrators;    Hus- 
band and  Wife. 

FURNACES. 

Liability  for  fire  caused  by  stationary  en- 
gine, furnace,  or  the  like,  1917CJ-77L 

FUTURE  DELIVERY. 
See  Hawkers  and  Peddlers. 


INDEX  TO  THE  NOTES. 


51 


FUTTTBE  ESTATES. 
See  Taxation. 

nJTURE  PROFITS. 
See  Fraud. 

GAME. 

See  Fish  and  Game. 


GAMING. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  gambling,  1916I>-46. 

What  constitutes  cruel  and  unusual 
punishment  for  sale  of  lottery  tickets, 
1918B-400. 

GARBAGE. 

Liability  of  municipality  for  tort  com- 
mitted in  removal  of  garbage, 
I916C-242. 


GARNISHMENT. 

Appeal  in  principal  action  as  bringing  at- 
tachment or  garnishment  proceeding 
up  for  review,  1918A-516. 

Money  standing  in  name  of  debtor  but  be- 
longing to  third  person  as  reachable 
in  garnishment  proceeding,  1917G— 
1145. 

GAS. 

Effect  of  partial  invalidity  of  statute  re* 

lating  to  natural  gas,  1916D-70. 
Gas  or  electric  light  plant  or  accessories 

as  fixtures,  1917B-183. 
Liability     of     gas     company     for     injury 

caused  by  escape  of  gas  from  pipes, 

1916E-277. 
State  or  municipal  regulation  of  gas  rates, 

1917B-1026. 
Storage  of  gas  as  nuisance,  1916E-820. 

GASOLINE. 

Storage  of  gasoline  as  nuisance,  1916C-820. 

GATES. 
See  Streets  and  Highways. 

GENERAL  APPEARANCE. 
See  Appearance. 

GENERAL  DENIAL. 
See  Pleading. 

GENERAL  REVENOE. 

Legal  meaning  of  "general  revenue," 
1918B-207. 


GIFTS. 

Bank  deposit:  complete  execution  of  gift 
inter  vivos  by  deposit  of  money  in 
bank  to  credit  of  another,  1917E- 
367. 

• — ^joint  deposit  in  bank  as  constituting 
gift,  1916D-520. 

"Child":  "child"  In  statute  creating  pre- 
sumption of  gift  as  including  illegiti- 
mate child,  1918B-258. 

—when  gift  to  "children"  and  like  in- 
cludes child  on  ventre  sa  mere, 
1916E-1034. 

Validity:  presumption  and  burden  of 
proof  of  undue  influence  in  case  of 
conveyance  inter  vivos,  1918B— 457. 

— validity  of  gift  made  on  Sunday, 
1917A-4?4. 

—validity  of  gift  of  mortgage  inter  vivos 
without  writing,  1916C-814. 
See  also  Charities;  Wills. 

GOOD  WILL. 

Injury  to  good  will  as  element  of  damages 
in  eminent  domain  proceeding, 
1918B-878. 

Sale  of  business  as  passing  good  will  with- 
out mention  thereof,  1917A-1015. 

GOVERNMENT. 
See  Federal  Government. 

GOVERNOR. 

Exclusion  or  inclusion  of  Sunday  or  holi- 
day in  computation  of  time  for  return 
of  bill  by  governor,  1917E-943. 
See  also  Statutes. 

GRADES. 
See  Streets  and  Highways. 

GRAIN. 

Seller  of  grain  as  "dealer,"  1917A-953. 

GRANDCHILDREN. 

Grandchild  as  "dependent"  within  work- 
men's compensation  act,  1918B-756. 

GRAND   JURY. 

Legality  of  grand  jury  not  selected  in  ac- 
cordance with   statute,   1918A-1080. 

Power  of  court  to  reassemble  discharged 
grand  jury,  19160-207. 

Power  of  grand  jury  to  report  crime  or 
misconduct  otherwise  than  by  indict- 
ment or  presentment,  1916E-228. 

Resubmission  of  cause  to  grand  jury, 
1916D-273. 

See  also  Jury. 


GERMINATING  POWER, 
See  Seed. 


GRANTEE. 
See  Deeds. 


52 


DIGEST. 
1916C— 1918B. 


OBANTOB. 
See  Deeds. 

GBOUNB  BEITP. 

Grpund  rent  as  realty  or  personalty, 
1918A-150. 

QUAEANTT. 

Inconsistent   defenses   in    action    gprowing 

out  of  contract  of  guaranty,  1917C- 

720. 
Liability  of  bank  on  contract  of  guaranty, 

1916D-554. 
Bight  of  guarantor  to  control  application 

of  payment,  1917C-585. 

GUAKDIANS.  • 

Accounting:  lapse  of  time  as  affecting 
right  to  open  guardian's  account  or 
settlement,  1917A-648. 

Alienation  of  affections:  liability  of  parent 
or  guardian  for  alienation  of  affec- 
tions,   1917E-1017. 

Appointment:  validity  of  statute  provid- 
ing for  appointment  of  guardian  for 
aged  person,  1917A-874. 

Leases:  power  of  guardian  to  lease  ward's 
real  estate,  1917A-1256. 

Sales:  doctrine  of  caveat  emptor  as  ap- 
plicable to  sale  by  guardian,  1917E- 
255. 

— power  of  guardian  to  sell  personal  prop- 
erty of  ward,  1916C-334. 

"Wills:  right  of  guardian  or  guardian  ad 
litem  to  contest  will,  1918B-538. 

GTTAED  RAILS. 
See  Railroads.' 

GUESTS. 
See  Innkeepers. 

HABEAS  CORPUS, 

Finality  of  order  in  habeas  corpus  proceed- 
ings, 1916D-506. 

Bight  of  prisoner  who  has  received  exces- 
sive sentence  to  be  discharged  on 
habeas  corpus  op  appeal,  1916D-368. 

HABENDUM  CLAUSE. 
See  Deeds. 

HABITS. 

See   Death   by   Wrongful   Act;    Divorce; 

Witnesses. 

HAIL  INSURANCE. 
Contracts  of  hail  insurance,  1917D-S1 

HAND. 
What    constitutes   "loss"   of   hand   within 
workmen's   compensation  act,   1918A- 
636. 


HANDCARS. 
See  Railroads. 

HANDWRITING. 

Testing  handwriting  witness  bv  use  of 
other  writing,  1917B-1060. 

HARBORS. 

Biver  and  harbor  or  fortification  work  as 
employment  within  purview  of  work- 
men's compensation  act,  1917D-27. 

HAWKERS  AND  PEDDLERS. 

Sale  by  sample  for  future  delivery  as  ped- 
dling, 1917D-686. 
See   also  Peddlers;    Transient  Merchants. 

HAT. 

Seller  of  hay  as  "dealer,"  1917A-953. 

HAZARDOUS. 

Meaning  of  "hazardous"  as  used  in  work- 
men's compensation  act,  1917D-10. 

HEADLIGHTS. 

See  Railroads. 

HEALTH. 

State  or  municipal  regulation   of  use   or 

sale  of  second  hand  clothes,  bedding, 

or  the  like,  1917C-1068. 
Validity  of  statute  or  ordinance  regulating 

out-of-door  closets  or  privies,  1916D- 

212. 
Validity  of  health  regulation  relating  to 

school  children,  1917A-765. 

HEALTH  INSURANCE. 

Construction  of  statute  requiring  standard 
health  insurance  policy,  1916D-670. 

HEIRS. 

Heir  of  deceased  owner  of  premises  as 
necessary  party  defendant  to  action 
to  foreclose  mechanic's  lien,  I918B-16. 

Liability  of  heir  or  devisee  for  rent, 
1916E-820. 

Meaning  of  term  "lawful  heirs"  as  used  in 
will,  I917C-1156. 

Meaning  of  term  "natural  heirs,"  1917A- 
.     1159. 

See  also  Descent  and  Distribution;  Execu- 
tors and  Administrators;  Remainders 
and  Reversions. 

HERNIA. 
See  Accident  Insurance. 

HIGH  SCHOOLS. 

Validity  of  expenditure  of  school  funds 
for  maintenance  of  high  school,  1917C- 
921. 


-   INDEX  TO  THE  NOTES. 


53 


HIGHWAYS. 
See  Streets  and  Highways. 

HIBED    GIRLS. 
See  Master  and  Servant. 

HOLIDAYS. 
See  Sundays  and  Holidays, 

HOMES. 

See  Charities. 

HOMESTEAD. 

Abandonment  or  forfeiture  of  homestead 
by  involuntary  or  compulsory  absence, 
1917E-112. 

Conveyance:  right  to  reformation  of  con- 
veyance of   homestead,   1916E-1131. 

— ^validity  and  effect  of  alienation  or  in- 
cumbrance of  homestead  without  join- 
der or  consent  of  wife,  1917A-71. 

— validity  as  against  creditors  of  convey- 
ance of  homestead,  1917C-994. 

Mechanic's  lien  against  homestead,  1917E- 
747. 

Priority  as  between  purchase  money  mort- 
gage and  claim  of  homestead,  1916C- 
949. 

HOMICIDE. 

Defenses:  fact  that  death  resulted  from 
supervening  cause  as  defense  to  charge 
of  homicide,  1916C-692. 

Degrees:  right  of  jury  to  convict  for  lesser 
degree  under  indictment  or  informa- 
tion charging  act  declared  by  statute 
to  be  murder  in  first  degree,  1916C- 
556. 

Evidence:  declarations  of  infant  at  time 
of  homicide  as  part  of  res  gestae, 
1916C-1187. 

Instructions:  propriety  of  instruction  as 
to  punishment  imposed  for  various  de- 
grees  of  homicide,  1917A-752. 

"Lying  in  wait":  what  constitutes  "lying 
in  wait"  within  statute  relating  to 
homicide,  1916C-969. 

Punishment:    what    constitutes    cruel    and 
unusual     punishment     for     homicide, 
1918B-398. 
See  also  Dying  Declarations. 

HORSES. 

See  Animals. 

HORTICULTURE. 

Horticultural  labor  as  employment  as 
within  purview  of  workmen's  compen- 
sation act,  1917D-23. 

HOSPITALS  AND  ASYLUMS. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  hospitals  and  asylums, 
1916D-60. 


HOSPITALS  AND  ASYLUMS— Continued, ' 

Hospital  as  charity  exempt  from  taxation, 

1917B-278. 
Hospital  chart  as  evidence,  1916C-78. 
Eight  to  damages  for  unlawful  detention 

in  hospital  or  institution  for  insane, 

1917C-162. 
Validity  of  expenditure    of    school    funds 

for   maintenance    of    orphan    asylum, 

1917C-924. 

See  also  Drunkenness. 

HOTELS. 

See  Apartment  Houses;  Innkeepers. 

HOURS  OF  LABOR. 
See  Labor  Laws. 

HOUSEHOLD  GOODS. 

Measure  of  damages  for  conversion  of,  or 
failure  to  deliver,  household  goods, 
1917B-585. 

HOUSEHOLD  EXPENSES. 
See  Husband  and  Wife. 

HUMAN  BEINGS. 
See  Death  by  Wrongful  Act 

HUSBAND  AND  WIFE. 

Alienation  of  affections:  action  by  wife 
for  alienation  of  affections,  1916C- 
748. 

— actual  separation  or  abandonment  as 
prerequisite  to  action  for  alienation 
of  affections,  1918A-647. 

' — admissibility  in  action  for  alienation  of 
affections  of  evidence  of  acts  com- 
mitted after  separation  of  spouses, 
1917D-484. 

— liability  of  parent  or  guardian  for  alien- 
ation of  affections,  19171^-1017. 

— ^liability  of  relative  other  than  parent 
or  guardian  for  alienation  of  affec- 
tions, 1917E-1027. 

Antenuptial  agreements:  effect  of  partial 
invalidity  of  antenuptial  contract, 
1918B-925. 

I — effect  on  antenuptial  agreement  for  re- 
lease of  dower  or  like  interest  of 
failure  of  consideration  for  agree- 
ment, 1918A-1168. 

Automobiles:  liability  of  owner  of  auto- 
mobile for  act  of  wife  driving  same, 
1917E-228. 

Criminal  conversation:  action  by  wife  for 
criminal   conversation,   19160-748. 

— proof  of  marriage  in  action  for  criminal 
conversation,  1917A-755. 

Duress:  threat  of  abandonment  by  spouse 
as  duress,  1917A-174. 

Executor  de  son  tort:  what  acts  of  inter- 
meddling charge  surviving  spouse  as 
executor  de  son  tort,  1917E-3. 


54  DIGEST. 

1916C— 1918B. 

HUSBAND  AND  WIFE— Continued. 

Funeral  expenses:  liability  of  husband  for 
wife's     funeral     expenses,  1917B-I164. 

Household  expenses:  liability  of  wife  for 
household  expenses,  1917C-561. 

Imprisonment  of  husband:  right  of  wife  to 
recover  damages  for  imprisonment  of 
husband,  1916C-481. 

Injuries  to  wife:  notice  to  municipality 
as  prerequisite  to  action  for  injury 
to  wife  of  plaintiff,  1916E-560. 

— right  of  husband  to  recover  for  loss  of 
consortium  in  action  for  personal  in- 
juries to  wife  where  statute  gives 
wife  right  of  action  for  such  injuries, 
1916C-886. 

Libel  and  slander:  communication  to  hus- 
band or  wife  as  privileged  within  law 
of  libel  and  slander,  1917E-S96. 

Life  insurance:  validity  and  effect  of  as- 
signment by  wife  of  insurance  in  her 
favor  on  life  of  husband,  1917B-302. 

Mechanics'  liens:  husband  of  owner  of 
premises  as  necessary  party  defend- 
ant to  action  to  foreclose  mechanic's 
lien,  1918B-15. 

— wife  of  owner  of  premises  as  necessary 
party  defendant  to  action  to  foreclose 
mechanic's  lien,  1918B-14. 

Personal  property:  right  of  husband,  as 
against  wife,  to  dispose  of  his  per- 
sonalty during  coverture,  1918B-934. 

Separation:  effect  of  voluntary  separation 
on  right  to  widow's  allowance,  1916C- 
866. 

— separation  agreement  as  bar  to  action 
for  divorce,  1916C-347. 

— separation  as  affecting  right  of  husband 
to  convey  homestead,  1917A-77. 

Support:  what  constitutes  cruel  and  un- 
usual punishment  for  nonsupport  of 
wife,  1918B-399. 

Suretyship:  right  of  married  woman  to 
become  surety  for  husband.  1917B- 
597. 

Taxation:  what  constitutes  "residence"  of 
husband  or  wife  for  purpose  of  taxa- 
tion, 1917B-731. 

Testamentary  capacity:  insane  delusion 
with  respect  to  fidelity  of  spouse  as 
affecting  testamentary  capacity,  1916C— 
16. 

Witnesses:  admissibility  of  testimony  of 
married  woman  to  prove  nonaccess  of 
husband,  1917  A-1 031. 

—competency,  as  attesting  witness  to  will, 
of  husband  or  wife  of  beneficiary, 
1917A-833. 

•^effect  of  death  of  one  spouse  on  compe- 
tency of  other  as  witness,  1917D-216. 

— husband  or  wife  as  competent  witness 
in  prosecution  for  bigamv,  1916C— 
1060. 

Workmen's  compensation  acts:  wife  as 
"dependent"  within  workmen's  com- 
pensation act,  1918B-756. 

See  also  Adultery;  Divorce:  Dower;  Equi- 
table Election;  Homestead. 


ICE. 

Manufacturer  of  ice  as  "dealer,"  1917A- 

953. 
Nature    and   effect   of   grant    of   right    to 

take     ice     from     another's     premises, 

1917D-93. 
Power    of    municipality   to    operate   plant 

for  purpose  of  furnishing  ice  to  inhab- 
itants, 1916C-1287. 
Eight   to   harvest   ice    as   between   person 

having  right  of  flowage  and  riparian 

proprietor,  1917C-782. 

ICE-CBJLAM. 
See  Food  and  Drugs. 

IDEM  SONANS. 
See  Names. 

IDENTITY. 

Conflict  between  presumption  of  identity 
of  person  and  identity  of  name  and 
another  presumption,  1917E-121. 

See  also  Libel  and  Slander. 
ILLEGAL  CONTEACTS. 


Adoption:  validity  of  contract  of  adoption 
not  made  in  conformity  with  statute, 
1916D-1110. 

Antenuptial  agreements:  effect  of  partial 
invalidity  of  antenuptial  contract, 
1918B-925. 

Attorneys:  solicitation  of  business  by  at- 
torney as  forfeiture  of  right  to  com- 
pensation therefor,  1917C-872. 

—validity  of  contract  for  compensation 
of  attorney  made  after  fiduciary  re- 
lation is  established,  1917A-531. 

— validity  of  stipulation  for  attorney's  fee 
in  promissory  note,  1917D-365. 

Blacklisting:  legality  of  blacklisting 
agreement,  1917A-644. 

Brokers:  illegal  contracts  as  to  compen- 
sation by  agents  of  vendor  or  vendee, 
1917A-511. 

Claims:  validity  of  agreement  by  person 
other  than  attorney  to  collect,  settle  or 
compromise  claim  for  commission, 
1918A-797. 

Duress:  validity  and  effect  of  contract  in- 
duced by  threats  of  criminal  prosecu- 
tion against  friend,  or  relative  other 
than  parent,  child  or  spouse,  1917C- 
1033. 

— ^validity  and  effect  of  contract  of  parent 
or  child  induced  by  threats  of  crim- 
inal prosecution  against  other,  191 7C- 
1026.     " 

Elections:  validity  of  contract  designed  to 
influence  public  election,  1917C-350. 

Expectancy:  validity  of  transfer  of  ex- 
pectancy in  estate  made  by  heir  or 
beneficiary  to  stranger,  1916E-1241. 

Intoxicating  liquors:  validity  of  sale  of 
liquors  where  seller  knows  same  will 
be  illegally  resold,  1918B-978. 


INDEX  TO  THE  NOTES. 


55 


ILLEGAL  CONTRACTS— Continued. 

Judicial  sales:  validity  of  contract  to  pre- 
vent bidding  at  judicial  sale,  1917D- 
232. 

Legislation:  validity  of  contract  for  con- 
tingent compensation  in  procuring 
legislation,   1916E-948, 

Pardons:  validity  of  contract  to  procure 
pardon  or  parole,  1917D-890. 

Parol  evidence:  admissibility  of  parol  evi- 
dence to  show  illegality  of  contract, 
1917D-426. 

Railroads:  right  of  railroad  company  to 
grant  exclusive  privileges  on  depot 
grounds,  1918A-702. 

Sundays  and  holidays:  principle  of  estop- 
pel as  applicable  to  rights  of  parties 
under  void  Sunday  contract,  1916E- 
467. 

Telephones:  validity  of  contract  made  by 
telephone,  1917B-907. 

Undue  influence:  presumption  and  burden 
of  proof  of  undue  influence  in  case  of 
conveyance  inter  vivos  by  parent  to 
child,  1918B-457. 

Usury:  renewal  contract  as  affected  by 
usury  in  original  contract,  1918A-753. 

Wills:  validity  of  contract  not  to  change 
will,  1916D-1160. 

See  also  Banks;  Bills  and  Notes;  Dower; 
Homestead;  Infants;  Release  and  Dis- 
charge. 

ILLEGITIMACT. 

"Child"    as    including    illegitimate    child, 

1918B-249. 
Conflict  of  laws:  law  governing  status  of 

person    as   legitimate   or   illegitimate, 

1917C-537. 
Death  by  wrongful  act:  right  of  parent  to 

recover  for  death  of  illegitimate  child, 

1916C-720. 
— right  of  person  other  than  parent  to  re- 
cover for  death  of  illegitimate  child, 

1916E-454, 

Evidence:    admissibility    of    testimony    of 

married  woman  to  prove  nonaccess  of 

husband,  1917A-1031. 
Inheritance:  right  of  illegitimate  child  to 

inherit  from  or  through  father,  1917C- 

826. 
Slander:   charging  man  with  being  father 

of  bastard  as  slander,  1917A-1045. 
Testamentary     capacity;     insane    delusion 

with    respect    to    paternity    of    child 

as     affecting     testamentary    capacity, 

1916C-18. 
Workmen's  compensation  acts:  illegitimate 

child  as  "dependent"  within  workmen's 

compensation  act,  1918B-754. 

ILL  FEELING. 
See  Trusts  and  Trustees. 

ILLNESS. 
See  Accident  Insurance;  Life  Insurance. 


IMMIGRATION. 

Classes  of  aliens  excluded  by  immigration 
act,  19170-235. 

Criminal  liability  of  corporation  for  bring- 
ing labor  into  United  States,  1916C- 
465. 

Immigrant  prostitution  or  immorality, 
1917C-250. 

Inducement  to  commit  immigration  offense 
with  view  to  prosecution  therefor  as 
defense  to  such  prosecution,  1916C- 
732. 

Soliciting  or  importing  alien  contract  labor 
as  crime,  1917C-261. 


IMMORAL  CONDUCT. 
Sefe  Libel  and  Slander. 

IMPEACHMENT. 
See  Acknowledgment;  Witnesses. 

IMPLEMENTS. 

Vehicle  as  "tool,"  "implement"  or  "instru- 
ment"  within  exemption  statute, 
1917D-96. 

IMPLIED  CONTRACTS. 

See  Attorneys;  Carriers  of  Goods;  Good 
Will;  Master  and  Servant;  Municipal 
Corporations. 

IMPLIED  COVENANTS. 
See  Landlord  and  Tenant. 

IMPLIED  GIPTS. 
See  Wills. 

IMPLIED  VENDOR'S  LIEN. 
See  Vendor's  Lien. 

IMPLIED  WARRANTY. 
See  Warranty. 

IMPORTS. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  import  taxes,  1916D-89. 

IMPOTENCY. 

Impetency  as  defense  to  charge  of  rape  or 
assault  with  intent  to  rape,  1916i>- 
535. 

Necessity  that  impotency  be  pleaded  speci- 
ally in  action  for  personal  injuries, 
1916C-383. 

IMPRISONMENT. 

See  Husband  and  Wife;  Sentence  and  Pun- 
ishment. 


56 


DIGEST. 

1916C— 1918B. 


IMPRISONMENT  FOB  DEBT. 


INCUMBRANCES. 


Civil  liability  for  tort  as  debt  within  con- 
stitutional provision  against  imprison- 
ment for  debt,  1&17D-841. 

"What  constitutes  cruel  and  unusual  pun- 
ishment for  nonpayment  of  debt, 
1918B-398. 

IMPROBABLE  TESTIMONY. 
See  Bankruptcy. 

IMPROVEMENTS. 

Bight  of  defaulting  purchaser  under  con- 
tract for  sale  of  land  to  reimburse- 
ment for  improvements,  1917C-85. 

Right  to  compensation  in  condemnation 
proceedings  for  improvements  placed 
on  land  by  condemnor  with  authority 
or  color  thereof,  1917C-141. 

Validity  of  contract  for  improvement  of 
homestead  without  joinder  of  wife, 
1917A-76. 

See  also  Mechanics'  Liens;  Municipal  Cor< 
perations. 

IMPULSE. 
See  Insanity. 

IMPUTED  NEOrJGENOE. 

See  Contributory  Negligence. 

INADEQUACY. 
See  Charities;  Verdict. 

INCEST. 

Imputing  incest  to  man  as  slander,  1917A- 
1046. 

INCIDENTAL  EXPENSES. 
See  Attorneys. 

INCOME  TAXES. 
See  Taxation. 

INCOMPETENT  EVIDENCE. 
See  Evidence;    Witnesses. 

INCONSISTENT  DEFENSES. 
See  Pleading. 

INCONTESTABLE  CLAUSE. 
See  Life  Insurance. 

INCREASE. 
See  Animals. 

INCREASE  OF  ALLOWANCE. 
See  Workmen's  Compensation  Acts. 


See  Fire  Insurance;  Marshaling  Assets. 

INDEMNITY  INSURANCE. 

Indemnity  insurance  against  liability  of 
physician  for  malpractice,  1916E-1159. 

INDEPENDENT  CONTRACTORS. 

Distinction  between  independent  con- 
tractor and  workman  under  work- 
men's compensation  act,  19I8B-708. 

Effect  of  employment  of  independent  con- 
tractor on  liability  of  landowner  ex- 
cavating on  his  own  premises,  1917A- 
356.  ' 

Employee  of  independent  contractor  as 
"workman"  within  workmen's  com- 
pensation act,  1918B-709. 

Independent  contractor  as  employee  of 
railroad  under  federal  employers'  lia- 
bility act,  I918B-52. 

Liability  of  owner  of  building  for  injury 
to  pedestrian  resulting  from  negli- 
gence of  independent  contractor  in 
erection  of  scaffold,  1916C-I23. 


INDIANS. 

"Child"  in  statute  relating  to  naturaliza- 
tion of  Indians  as  including  illegiti- 
mate child,  I918B-256. 

INDICTMENT. 
See  Criminal  Law;  Grand  Jury. 

INDORSEMENT. 
See  Bills  and  Notes;  Checks. 

INDUCEMENT. 
See  Criminal  Law. 

INDUSTRIAL  INSURANCE. 

Nature  and  construction  of  industrial  in- 
surance policy,  1918B-1186. 

INEBRIATES. 
See  Drunkenness. 

INFANTS. 

Advancements:  right  of  executor  or  admin- 
istrator to  charge  estate  for  advance- 
ments made  for  benefit  of  infant, 
1917A-138. 

Aliens:  exclusion  of  alien  child  under  im- 
migration act,   1917C-247. 

Contracts:  infancy  as  defense  to  action  for 
money  loaned,  1916C-999. 

.—power  of  infant  to  consent  to  issuance 
of  liquor  license,  1916C-497. 

—right  of  infant  who  repudiates  contract 
for  services  to  recover  therefor, 
1916C-261. 


INDEX  TO  THE  NOTES. 


57 


INT  ANTS — Continued. 

Contracts:  validity  and  effect  of  contract 
of  child  induced  by  threats  of  crim- 
inal proseution  against  parent,  1917C- 
1026. 

— what  constitutes  reasonable  time  for  in- 
fant to  disaffirm  contract  after  major* 
ity,  1917D-413. 

Declarations:  declarations  of  infant  at 
time  of  assault  or  homicide  as  part  of 
res  gestae,  1916C-1187. 

Emancipation:  sufficiency  of  evidence  to 
show  emancipation  of  infant,  1917D- 
585. 

Injuries:  duty  and  liability  of  one  main- 
taining electric  wires  in  reference  to 
children,  1917A-895. 

— infancy  of  claimant  as  suspending  limi- 
tation of  time  for  filing  claim  against 
municipality,   1916G-1042. 

— ^law  of  road  as  applicable  with  respect 
to  one  using  highway  for  play,  1917C- 
454. 

— liabilitv  for  injury  to  infant  stealing 
ride  on  vehicle,  1917D-379. 

— liability  of  landowner  for  injury  to  tres- 
passing child  on  account  of  unguarded 
pond,  pool,  well,  etc.,  1916C-1085. 

— notice  to  municipality  as  prerequisite  to 
action  for  injury  to  child  of  plaintiff, 
1916E-560. 

Judgments:  vacation  of  judgment  affecting 
infant  duly  represented,  1917B-922. 

Juvenile  courts:  effect  of  partial  invalidity 
of  statute  relating  to  juvenile  offend- 
ers and  courts,  1916D-67. 

— establishment  of  and  procedure  in  juve- 
nile courts,  1916E-1010. 

Libel  and  slander:  communication  to  child 
as  privileged  within  law  of  libel  and 
Blander,  1917E-896. 

Military  service:  infant  as  subject  to  com- 
pulsory military  service,  1917C-814. 

— right  of  infant  unlawfully  enlisted  to  re- 
lease from  detention  of  military  or 
naval  authorities,  1917C-778. 

Taxation:  what  constitutes  "residence"  of 
infant  for  purposes  of  taxation,  191 7B- 
731. 

Workmen's  compensation  acts:  child  as 
"dependent"  within  workmen's  com- 
pensation act,  1918B-754. 

— election  by  infant  employee  with  respect 
to  acceptance  of  provisions  of  work- 
men's compensation  act,  1918B— 716. 

— ^increase  of  allowance  to  infant  under 
workmen's  compensation  act,  1918B- 
735. 

—minor  employed  in  violation  of  law  as 
entitled  to  compensation  under  work- 
men's compensation  act,  1918B-679. 

See  also  Adoption:  Illegitimacy;  Parent 
and  Child. 


INHEBIT. 

Meaning    of    "inherit,"    "inherited,"    etc., 

1917C-386. 
See  also  Death  by  Wrongful  Act;  Descent 
and  Distribution;  Life  Estates. 

INHEEITANCE  TAXES. 
See  Taxation. 

INITIAI.S. 

Sufficiency  of  signature  of  testator  to  will 
by  initU^iB,  1917B-875. 

INITIATION. 

Initiation  ai  prerequisite  to  membership 
in  beneficial  association,  1917B-380. 

INJTTNCTIONS. 

Ereach  of  contract:  injunction  as  remedy 
for  breach  of  express  covenant  not  to 
engage  in  same  business  as  covenantee, 
1916C-187. 

— ^injunction  to  restrain  breach  of  contract 
by  theatrical  performer,  1917C-395, 

Criminal  prosecutions:  power  of  equity  to 
enjoin  criminal  prosecution,  1916C- 
1153. 

Foreign  proceedings:  power  of  court  to  en- 
join proceedings  in  another  state  or 
country,  1918B-1150. 

Libel  and  slander:  injunction  against  pub- 
lication of  or  to  compel  retraction  of 
libel,  1916D-1088. 

Municipal  corporations:  right  of  citizen  to 
enjoin  business  competition  by  munici- 
pality, 1918B-118. 

Mortgages  or  trust  deeds:  right  to  enjoin 
sale  under  mortgage  or  trust  deed  on 
ground  of  conflicting  liens  or  rights  or 
because  of  disputed  title,  1917D-125. 

Xuisances:  equitable  relief  against  ceme- 
tery as  nuisance,  1917B-563. 

— right  of  state  to  enjoin  private  nuisance 
which  is  also  crime,  1916C-455. 

Ordinances:  right  of  municipality  to  enjoin 
violation  of  municipal  ordinance, 
19160-963. 

Preliminary  injunctions:  modification  or 
suspension  of  preliminary  injunction 
before  trial,  1916E-205. 

Temporary  injunctions:  distinction  be- 
tween temporary  restraining  order  and 
temporary  injunction,  1917B-123. 

INJUBY. 

"What  is  "injury"  within  meaning  of  work- 
men's compensation  act,  1918B— 362. 
See  also  Negligence. 


INFORMATION. 
See  Criminal  Law. 


INJURY  TO  BUSINESS. 
Bee  Eminent  Domain;  Payment. 


58 


DIGEST. 

1916C— 1918B, 


INJUEY  TO  PERSONALTY. 
See  Eminent  Domain. 

INNKEEFEBS. 

Intrusting  baggage  to  innkeeper  or  his  em- 
ployee as  establishing  relation  of  inn- 
Iceeper  and  guest,  1918A-541. 

Liability  of  innkeeper  to  guest  for  injuries 
sustained  by  latter  in  fire,  1917A-143. 

Validity  of  statute  or  ordinance  licensing 
or  regulating  hotels,  lodging  or  room- 
ing houses,  or  the  like,  1916C-290. 
See  also  Apartment  Houses. 

INNOCENCE. 
Conflict  between  presumption  of  innocence 
and  presumption  of  identity  of  person 
from  identity  of  name,  1917E-122. 

INQUEST. 
See  Coroners. 

INSANITY. 

Arrest:  right  to  arrest  person  without 
warrant  on  ground  of  insanity,  1917I>- 
536. 

Carriers  of  passengers:  duty  and  liability 
of  carrier  with  respect  to  insane  pas- 
senger, I916E;-256. 

Defense  to  crime:  irresistible  or  uncon- 
trollable impulse  as  defense  to  crim- 
inal charge,  1917C-609. 

•—time  or  stage  in  criminal  proceedings 
when  question  of  insanity  of  defend- 
ant may  bo  determined  by  inquisition 
or  otherwise,  1916E^24. 

Evidence:  admissibility,  on  issue  of  san- 
ity, of  evidence  of  insanity  of  ances- 
tors or  kindred,  1918B-124. 

— suicide  as  evidence  of  insanity,  1916E- 
488. 

Homestead:  insanity  of  wife  as  affecting 
right  of  husband  to  convey  homestead, 
1917A-78. 

Landlord  and  tenant:  liability  of  com- 
mittee of  lunatic  for  rent,  1916E-819. 

Taxation:  what  constitutes  "residence"  of 
person  non  compos  mentis  for  purpose 
of  taxation,  1917B-731. 

Unlawful  detention:  right  to  damages  for 
unlawful  detention  in  hospital  or  in- 
stitution for  insane,  19170-162. 

See  also  Deaf  and  Dumb  Persons;  Drunk- 
enness; Hospitals  and  Asylums;  Wills. 

INSIDE  WIRING. 
See  Electricity. 

INSOLVENCY. 

Effect  of  partial  invalidity  of  Btate  insol- 
vency law,  1916D-37. 

Instituting  insolvency  proceeding  as 
ground  for  action  for  malicious  prose- 
cution, 1916D-909. 

See  also  Bankruptcy;  Banks;  Stock  Ex- 
changes. 


INSPECTION  OF  BOOEIS. 
See  Corporations 

INSTIGATINO  PROSECUTION. 

See  Malicious  Prosecution. 

INSTRUCTIONS. 

Necessity  that  further  instructions  re- 
quested by  jury  be  given  in  open 
court,  1917A-399. 

Necessity  that  further  instructions  to  jury, 
after  retirement,  be  given  in  presence 
or  with  consent  of  counsel,  1917A-409. 

Negative  pregnant  in  instruction,  1917A- 
676. 

Propriety  of  instruction  or  comment  by 
court  to  effect  that  perjury  has  been 
committed  at  trial,  1917B-128. 

Propriety  of  requesting  or  giving  numerous 
or  lengthy  instructions,  1918A-1091. 
See  also  Homicide. 

INSTRUMENTS. 

Vehicle  as  "tool,"  "implement,"  or  "instru- 
ment" within  exemption  statute, 
1917D-96. 

INSURABLE   INTEREST. 
See  Insurance. 

INSURANCE. 

Accident  insurance:  construction  of  clause 
in  accident  insurance  policy  excepting 
death  caused  by  disease,  1917CM63. 

— construction  of  hernia  clause  in  accident 
insurance  policy,  1918A-710. 

— construction  of  provision  in  accident  in- 
surance policy  relating  to  injury 
"caused  by  burning  of  building"  or 
similar  phrase,  1917C— 410. 

— construction  of  statute  requiring  stand- 
ard accident  insurance  policy,  1916D- 
670. 

— construction  of  sunstroke  clause  in  acci- 
dent insurance  policy,  1918A-523. 

— disease  as  accident  under  accident  insur- 
ance policy,  1918B-298. 

— intentional  exertion  as  "accidental 
means"  of  injury  within  accident  in- 
surance policy,  1917A-88. 

— receipt  of  insurance  as  affecting  right 
to  compensation  under  workmen's  com- 
pensation act,  1918B-630. 

^right  to  recover  under  accident  insur- 
ance policy  for  injuries  received  while 
fighting,  1916C-579. 

— waiver  of  provision  in  accident  insur- 
ance policy  limiting  time  to  bring  suit 
thereon,  1916C-449. 

— waiver  of  provision  in  accident  insur- 
ance policy  requiring  notice  of  injury 
or  death  to  be  given  within  certain 
time,  1917A-114. 


INDEX  TO  THE  NOTES. 


59 


INStTRANCD— Continued. 

Accident  insurance:  what  constitutes 
"loss"  of  eyesight  within  accident  in- 
surance policy,  1918A-531. 

— what  constitutes  loss  or  severance  of 
limb  or  member  within  meaning  of 
accident  insurance  policy,  1917B-1008. 

Agents:  liability  of  agent  to  insurance 
company  for  failure  to  collect  pre- 
mium, 1916D-651. 

—liability  of  agent  to  insurance  company 
for  issuing  policy  in  violation  of  in- 
struction, 1917B-493. 

— Pliability  of  insurance  agent  to  owner  of 
property  for  failure  to  procure  insur- 
ance, 1918B-1037. 

— validity  of  insurance  policy  issued  by 
agent  on  property  of  corporation  of 
•  which  agent  is  stockholder,  1916I>- 
1275. 

Animal  insurance,  1917D-45. 

Application:  misstatement  of  name  in  ap- 
plication for  insurance  as  avoiding 
policy,  1916D-1297. 

Attorneys:  lien  of  attorney  on  insurance 
policy  in  his  possession  connected  with 
litigation,  1917D-149. 

Automobiles:  automobile  insurance,  1917D- 
53. 

— insurance  aeainst  liability  of  automobile 
owner,  1917D-61. 

Beneficiaries:  liability  for  inducing  change 
of  beneficiary  in  insurance  policv, 
1917A-473. 

Benefit  insurance:  admissibility  of  benefit 
certificate  in  evidence  without  other 
parts  of  contract,  1917C-145. 

— "child"  in  benefit  insurance  policv  as  in- 
cluding illegitimate  child,  1918B-261. 

— "child"  in  statute  relating  to  benefit  in- 
surance as  including  illegitimate  child^ 
1918B-256. 

—construction  of  restriction  in  contract  of 
benefit  insurance  as  to"  travel  by  or 
residence  of  insured,  1917A-381. 

— construction  of  restriction  in  contract  of 
benefit  insurance  as  to  use  of  intoxi- 
cant by  insured,  1918A-623. 

—effect  of  divorce  upon  rights  of  bene- 
ficiary under  benefit  certificate,  1917C- 
270. 

— persons  included  within  the  term  "fam- 
ily" when  used  to  designate  bene- 
ficiaries in  benefit  certificate,  1917C— 
694. 

-^receipt  of  insurance  as  affecting  right  to 
compensation  under  workmen's  com- 
pensation act,  1918B-635. 

— selection  by  insured  of  beneficiary  not 
having  insurable  interest  in  former's 
life  as  against  public  policy,  1916C- 
587. 

— validity  of  amendments  to  by-laws  of 
fraternal  benefit  societies  as  applied 
to  existing  members,  1917B-814. 

— waiver  of  forfeiture  of  benefit  certificate 
for  nonpayment  of  assessment  or  dues 
bv  acceptance  of  arrearages  or  similar 
act,  1916D-591. 


INSURANCE— Continued. 

Benefit  insurance:  what  constitutes 
membership  in  beneficial  association, 
1917B-380. 

Burial  insurance:  contract  for  burial  as 
insurance  contract,  1916C-1016, 

Credit  insurance,  1917D-75. 

Definitions:  what  is  "insurance  company" 
or  "contract  of  insurance,"  1916C- 
1022. 

False  pretenses:  fraud  on  insurer  as  con- 
stituting attempt  to  obtain  money  by 
false  pretenses,   1917B-1235. 

Fidelity  insurance:  act  or  default  of  em- 
ployee covered  by  fidelity  bond  or  in- 
surance, 1917C-420. 

— recovery  of  premium  paid  for  fidelity  in- 
surance, 1916C-1222. 

Fire  insurance:  construction  of  vacancy 
clause  in  fire  insurance  policy  issued 
upon  rented  property,  1917B-669. 

— construction  of  watchman  clause  in  fire 
insurance   policy,    1917D-821. 

— effect  of  local  ordinance  or  regulation  on 
liability  under  fire  insurance  policy, 
1917B-1250. 

— fire  company,  insurance  patrol  or  the  like 
as  charitable  institution,  1917C-797. 

■ — fire  insurance  policy  on  livestock  in  des- 
ignated location  as  covering  anigials 
temporarily  elsewhere,  1916E-398. 

— ^insurable  interest  of  tenant  of  property 
for  specific  term,  1917C-951. 

— insurance  of  property  of  alien  enemy, 
1917C-200. 

— liabilitv  of  fire  insurance  patrol  in  tort, 
1917E-684. 

— necessity  of  return  or  tender  of  un- 
earned premium  to  effect  cancellation 
of  fire  insurance  policy  by  insurer, 
1917B-910. 

— overheating  as  fire  within  fire  insurance 
policy,  1916D-228. 

— revival  of  fire  insurance  policy  after 
satisfaction  of  lien  or  incumbrance  at- 
taching to  property  in  violation  of 
policy,  1917B-1241. 

— revival  of  fire  insurance  policy  by  occu- 
pancy after  vacancy,  1916C-770. 

— right  of  fire  insurance  agent  to  insure  his 
own  property,  1916D-1278. 

— right  to  proceeds  of  insurance  on  prop- 
erty conveyed  in  fraud  of  creditors, 
1917E-291. 

— sale  and  reacquisition  of  title  as  viola- 
tion of  clause  in  fire  insurance  policy 
prohibiting  change  in  interest,  title, 
etc.,  1917C-934. 

— validity  of  expenditure  of  school  funds 
for  establishment  of  school  insurance 
fund,  1917C-925. 

— validitv  of  insurance  policy  on  property 
illegallv  kept  or  used,  1916C-1070. 

Hail  insurance,  1917D-81. 

Health  insurance:  construction  of  statute 
requiring  standard  health  insurance 
policy.  1916D-670. 

Indemnity  insurance  against  liability  of 
phv«ician  for  malpractice,  1916E- 
1159. 


60 


DIGEST. 

1916C— 1918B, 


INSUEANCfEr— Continued. 

Industrial  insurance,  1918B-1186. 

Life  insurance:  admissibility  of  coroner's 
verdict  as  evidence  in  action  on  life 
insurance  policy,  1917B-893. 

— construction  of  restriction  in  contract  of 
life  insurance  as  to  travel  by  or  resi- 
dence of  insured,  1917A-381. 

— death  while  engaged  in  violating  law 
within  exception  in  life  insurance  pol- 
icy, 1917C-592. 

— effect  of  divorce  upon  rights  of  bene- 
ficiary in  life  insurance  policy,  1917C— 
269. 

— effect  of  incontestable  clause  in  life  in- 
surance policy  in  case  of  legal  execu- 
tion of  insured,  1917D-1183. 

— effect  of  incontestable  clause  in  life 
policy  on  provision  against  suicide, 
1917D-1186. 

* — insurance  of  life  of  alien  enemy,  1917C- 
200. 

— meaning  of  term  "severe"  or  "serious" 
illness  in  application  for  life  insur- 
ance policy,  1918A-682. 

— ^persons  included  within  term  "family" 
when  used  to  designate  beneficiaries  in 
life  insurance  policy,  1917C-694. 

— receipt  of  insurance  as  affecting  right 
-to  compensation  under  workmen's  com- 
pensation act,  1918B-635. 

— relation  by  affinity  as  supporting  insur- 
able interest  in  life,  1917C-158. 

—right  of  insurance  beneficiary  having  no 
insurable  interest  in  life  of  insured  to 
keep  contract  alive  for  his  own  benefit, 
1917A-1085. 

— rights  of  parties  in  case  of  insurance 
procured  by  parent  on  life  of  minor 
child,  1917E-643. 

— selection  by  insured  of  beneficiary  not 
having  insurable  interest  in  former's 
life  as  against  public  policy,  1916C- 
587. 

— validity  and  effect  of  assignment  by  wife 
of  insurance  in  her  favor  on  life  of 
husband,  1917B-302. 

Marine  insurance:  frustration  of  voyage 
because  of  existence  of  war  as  con- 
structive total  loss  within  marine  in- 
surance policy,  1916D-884. 

Mutual  insurance:  set-off  against  receiver 
of  mutual  insurance  company,  1916D- 
600. 

Pleading:  inconsistent  defenses  in  action 
growing  out  of  contract  of  insurance, 
1917C-719. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  insurance,  19161)— 
61. 

Subrogation:  right  of  insurance  company 
to  enforce  subrogation  by  suit  in  its 
own  name,  1918A-834. 

— right  of  subrogation  of  insurer  as  af- 
fected by  release  by  insured  of  person 
causing  loss,  1917A-1298. 

— subrogation  of  insurer  to  rights  of  mort- 
gagee, 1917B-1135. 


INSUEANCE>-Continued. 

Waiver  of  conditions  in  insurance  policy 
by  insurer's  failure  to  inquire  into  ex- 
isting facts,  1917B-500. 

INSUBANCE  PATEOL. 
See  Fire  Insurance. 

INSTJBBECTION. 

Existence  of  insurrection  as  affecting  lia- 
bility of  soldier  or  militiaman  for  in- 
jury to  person  or  property,  1917C-15. 

INTENT. 
8ee  Banks;   Partnership. 

INTENTIONAL  EXERTION. 
See  Accident  Insurance. 

INTEREST. 

Alien  enemies:  suspension  of  interest  on 
debt  between  alien  enemies  1917C- 
199. 

Attorneys:  interest  on  attorney's  fees, 
1916E-249. 

Bail  bonds:  allowance  of  interest  on  for- 
feited bail  bond,  1916C-114. 

Bids:  right  to  interest  on  deposit  returned 
to  bidder,  1916C-433. 

Judgments:  right  to  interest  on  judgment 
as  affected  by  modification  of  judg- 
ment on  appeal,  1917C-413. 

Municipal  obligations:  interest  on  city 
warrants,  1916C-576. 

— interest  on  municipal  bonds  as  factor 
in  determining  whether  municipality 
has  exceeded  constitutional  debt  limit, 
1918B-598. 

See  also  Usury. 

INTERFERENCE      WITH      CONTRACT 
RELATIONS. 

See  Contracts. 

INTERMEDDLINa. 
See  Executors  de  Son  Tort. 

INTERNATIONAL  WAR. 
See  War. 

INTERNMENT. 
See  War. 

INTERSTATE  COMMERCE. 

Freight  undercharges:  liability  as  between 
consignor  and  consignee  for  payment 
of  freight  undercharges  on  interstate 
shipment,  1916E-378. 

State  statutes:  railroad  employee  engaged 
in  interstate  commerce  as  within  pur- 


INDEX  TO  THE  NOTES. 


61 


INTEESTATE  COMMEECE— Continued, 
view  of  workmen's  compensation  act, 
1918B-664. 

State  statutes:  etate  regulation  of  rail- 
roads as  interference  with  interstate 
commerce,  1917A-973. 

— Tfitatute  conferring  on  public  service  eota- 
mission  power  to  fix  rates  for  public 
service  corporations  as  interference 
with  interstate  commerce,  1917C-62. 

—validity  of  statute  imposing  penalty  on 
carrier  of  goods  or  livestock  for  fail- 
ure to  pay  claim  within  certain  time, 
1916D-335. 

—validity    of    statute,    ordinance    or   rule 
providing    for    reciprocal    demurrage, 
1916E-701. 
See  also  Foreign  Corporations. 

INTEEUEBAN  EATLV/AYS. 
See  Carriers  of  Passengers. 

INTEE  VIVOS. 
See  Gifts. 

INTEESTATE  PEOPEETT. 
See  Wills. 

INTIMrDATION. 

Eejection  of  entire  vote  of  election  dis- 
trict for  intimidation  affecting  inde- 
terminable number  of  votes,  1918A- 
41. 

INTOXICATING   LIQUOES. 

Contracts:  validity  of  sale  of  liquors  where 
seller  knows  same  will  be  illegally  re- 
sold, 1918B-978. 

Corporations:  criminal  liability  of  cor- 
poration for  violation  of  liquor  law, 
1916C^65. 

"Dealer":  person  engaged  in  liquor  traffic 
as  "dealer,"  I917A-955. 

Deeds:  validity  of  condition  in  deed  pro- 
hibiting sale  of  liquor  on  land  granted, 
1917C-110.  ^ 

Inducement  to  violate  liquor  law  with 
view  to  prosecution  therefor  as  defense 
to  such  prosecution,  1916C-732. 

Infants:  power  of  infant  to  consent  to  is- 
suance of  liquor  license,  1916C-497. 

Intoxicants:  medicinal  or  toilet  prepara- 
tion containing  alcohol  as  within  pur- 
view of  intoxicating  liquor  statute, 
1917C-909. 

— regulation  of  alcoholic,  spirituous,  malt 
or  vinous  liquor  as  including  or  ex- 
cluding nonintoxicating  liquor,  1917A- 
94. 

Licenses:  mandamus  to  control  issuance  of 

liquor  license,  1918A-687. 
■—right  to  and  eifect  of  judicial  review  of 

revocation   of   liquor   license,    1917A- 

1024. 


INTOXICATING  UQUOES— Continued. 

Licenses:  validity  of  intoxicating  liquor 
statute  which  makes  distinction  be- 
tween races  with  respect  to  granting 
of  license  or  otherwise,  1916C-170. 

Local  option:  territory  affected  by  adop- 
tion of  local  option  law,  1917C-512. 

Penalties:  action  for  penalty  for  violation 
of  intoxicating  liquor  statute,  1916E- 
868. 

—•what  constitutes  cruel  and  unusual  pun- 
ishment for  violation  of  liquor  law, 
1918B-401. 

Personal  use:  right  to  prohibit  possession 
of  intoxicating  liquor  for  personal  use, 
1916E-780. 

"Premises":  what  is  included  in  term 
"premises"  in  statute  relating  to  sale 
of  intoxicating  liquor,  1916C-1193. 

Social  clubs:  application  of  statute  regu- 
lating liquor  traffic  to  bona  fide  social 
club  distributing  liquor  to  members, 
1916D-940. 

Statutes:  effect  of  partial  invalidity  of 
prohibition  liquor  law,  1916D-63. 

—effect  of  partial  invalidity  of  statute  re- 
lating to  intoxicating  liquors,  1916D- 
62. 

Transportation:  state  regulation  of  trans- 
portation of  intoxicating  liquors, 
1917A-622. 

— ^validity  of  statute  forbidding  bringing 
of  liquor  into  prohibition  territory, 
1917A-740. 

INTOXICATION. 
See  Drunkenness. 

INTEASTATE  COMMEECB. 

Bailroad  employee  engaged  in  intrastate 
commerce  as  within  purview  of  work- 
men's compensation  act,  1918B-664. 

INVEESE    OEDEE    OF    ALIENATION. 
See  Marshaling  Assets. 

INVESTMENTS. 
Liability  of  attorney  for  negligence  in  in- 
vesting funds  of  client,  1917B-21. 

INVOLUNTAET  ABSENCE. 
See  Homestead. 

lEEEGULAEITIES. 
See  Elections. 

lEEESISTIBLE  IMPULSE. 
See  Insanity. 

lEEIGATION. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  irrigation,  1916D-49. 

Liability  of  owner  of  irrigation  ditch  for 
damages  arising  from  its  construction 
and  maintenance,  1916D-981. 


DIGEST. 

1916C— 1918B. 


ISTHMIAN  CANAL. 
See  Canals. 

JAII.S. 

See  Convicts;  Jails;  Prisons  and  Prisoners; 
Seformatories. 

JEOPARDY. 

Failure  to  interpose  objection  of  former 
jeopardy  on  second  trial  as  waiver  of 
plea,  1917C-765. 

JITNEY  BUSES. 

Jitney  bns  proprietor  as  common  carrier 

of  passengers,  1917C-1060. 
State   or   municipal   regulation   of  jitnej 

buses,  1917C-1051. 

JOINT  DEPOSITS. 
See  Banks. 

JOINDER  OF  DEFENDANTS. 
See  Licenses. 

JOINT  PARTIES. 
See  Jury. 

JOINT  STOCK  COMPANIES. 

"Citizen"  as  including  joint  stock  com- 
pany, 19I7C-878. 

JOINT  TENANTS. 

Joint   deposit   in  bank  as  creating  joint 

tenancy,  1916D-522. 
Nature  of  estate  resulting  from  creation 

of  cotenancy,  1917B-57. 

JOURNALS. 

See  Statutes. 

JS. 

See  Names. 

JUDGES. 

Compensation  of  judge  of  juvenile  court, 

1916E-1011. 
Disbarment:      misconduct     of     judge     as 

ground  for  disbarment,  1917B-232. 
Disqualification:  application  for  change  of 

judge  or  venue  on  ground  of  bias  of 

judge  as  ousting  judge  of  jurisdiction, 

1916D-1281. 
— bias  of  judge  existing  prior  to  trial  as 

ground    for    reversal    in    absence    of 

showing  of  prejudice  at  trial,  1917E- 

954. 
— disqualification  of  judge  by  interest  in 

legal  question  involved  in  litigation, 

1917A-1068. 


JUDGES — Continued. 

Disqualification:  of  judge  to  review  Ms 
own  acts,  1917A-840. 

•—necessity  as  justifying  action  by  dis- 
qualified judge  or  officer  exercising 
judicial  power,  1917A-1061. 

—participation  as  or  relationship  to  coun- 
sel in  action  as  disqualifying  judge, 
1917A-1231. 

Statutes:    effect   of   partial    invalidity    of 
statute  relating  to  judges,  1916D-66. 
See  also  Courts;  Jury. 

JUDGMENTS. 

Assignment:  effect  on  judgment  lien  of 
assignment  of  judgment  or  execution 
issued  to  or  for  benefit  of  judgment 
debtor,  1917C-557. 

Attorneys:  extent  of  attorney's  lien  on 
judgment,  I916E-387. 

—liability  of  attorney  to  client  for  negli- 
gence with  respect  to  enforcement  of 
judgment,  1917B-30. 

•—liability  of  attorney  to  client  for  negli- 
gence with  respect  to  entry  or  protec- 
tion of  judgment,  1917B-29. 

Computation  of  time:  exclusion  or  inclu- 
sion of  Sunday  or  holiday  In  compu- 
tation of  time  for  entry  of  judgment, 
1917E-939. 

Defaults:  advice  of  counsel  as  ground  for 
opening  default  judgment,  1917A-709. 

Evidence:  admissibility  in  subsequent  civil 
action  of  judgment  of  conviction  based 
on  plea  of  guilty,  1917E-1109. 

Holidays:  validity  of  judgment  rendered 
or  entered  on  holiday,  1916E-852. 

Interest:  right  to  interest  on  judgment  as 
affected  by  modification  of  judgment 
on  appeal,  1917C-413. 

Intoxicating  liquors:  judgment  in  action 
for  penalty  for  violation  of  intoxi- 
cating liquor  statute,  1916E-873. 

Juvenile  courts:  judgments  of  juvenile 
court,  1916E-1017. 

Limitation  of  actions:  when  statute  of 
limitations  begins  to  run  against  ac- 
tion on  judgment,  1916C-625. 

Lost  judgment:  proof  by  parol  of  con- 
tents  of  lost  or  destroyed  judgment  or 
decree,  1916D-254. 

Priorities:  issuance  of  execution  as  giving 
priority  to  one  of  several  equal  judg- 
ments, 1917D-187. 

— priority  as  between  implied  vendor's 
lien  and  judgment  against  purchaser, 
1916D-384. 

— priority  as  between  purchase  money 
mortgage  and  judgment,  1916C-949. 

Ees  judicata:  estoppel  by  judgment  as 
applicable  to  person  assisting  prose- 
cution or  defense  of  action,  1916E- 
154. 

— ^judgment  settling  title  to  land  as  con- 
clusive between  successful  claimant 
and  grantor  of  defeated  claimant, 
1916E-161. 


INDEX  TO  THE  NOTES. 


63 


JUDGMENTS— Continued. 

Ees  judicata:  order  in  habeas  corpus  pro- 
ceeding as  res  judicata,  1916D-506. 

— voluntary  dismissal  of  bill  for  divorce 
as  res  judicata,  1917A-1201. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  judgments,  1916D- 
80. 

Tender:  effect  of  tender  of  amount  due  on 
judgment,  1916C-536. 

Vacation:  power  of  court  to  amend  or  set 
aside  judgment  at  subsequent  term 
where  proceeding  therefor  is  com- 
menced during  term  at  which  judg- 
ment is  rendered,  1916D-1260. 

— vacation  of  judgment  affecting  infant 
duly  represented,  1917B-922. 

See  also  Alimony;  Appeal  and  Error; 
Arrest  of  Judgment;  Bankruptcy; 
Deeds. 

JUDICIAL  NOTICE. 

Judicial  notice  of  contents  of  legislative 
journals  on  issue  as  to  enactment  of 
statute,  1916E-1284. 

Judicial  notice  of  mortality  tables,  1918B- 
415. 

Judicial  notice  of  proceedings  for  adop- 
tion of  amendment  to  constitution, 
1917D-1031. 

JUDICIAL    PROCEEDINaS. 
See  Libel  and  Slander. 

JUDICIAL  RECORDS.  , 

See  Records. 


JURY. 

Challenges:  right  and  manner  of  exercise 
of  peremptory  challenges  by  joint  par- 
ties in  civil  actions,  1917E-461. 

Custody  and  conduct:  allowing  recreation 
to  jury  during  trial  as  ground  for  new 
trial,  1918B-855. 

—prejudice  of  ofScer  as  disqualifying  him 
from  acting  as  custodian  of  iury, 
1917B-254.  ••     ^' 

— private  communication  by  trial  judge 
with  jury  during  deliberations  as 
ground  for  new  trial,  1917A-403. 

Fees:  constitutionality  of  statutes  requir- 
ing prepayment  or  taxation  as  costs  of 
jury  fees,  1917B-308. 

Juvenile  courts:  necessity  for  jury  in  pro- 
ceedings in  juvenile  court,  1916E- 
1016. 

Qualifications:  prejudice  against  race  or 
color  of  party  to  action  as  disqualifv- 
ing  juror,  1917C-1167. 

— qualification  as  juror  of  member  of  grand 
jury  indicting  defendant,   1917D-456. 

Service:  power  of  court  to  exclude  person 
from  jury  service,  1916C-1209. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  juries  and  jury 
commissioners,  1916D-81. 

Verdict:  validity  and  construction  of  con- 
stitutional or  statutory  provision  for 
verdict  by  less  than  whole  number  of 
jurors,  1916E-500. 

Witnesses:  competency  as  witness  of  juror 
on  former  trial,  1916C-676. 

See  also  Coroners;  Grand  Jury;  Verdict. 


JUDICIAL  SALES. 

Bidding:  validity  of  contract  to  prevent 
bidding  at  judicial  sale,  1917D-232. 

Equitable  mortgages:  deed  given  at  judi- 
cial sale  as  equitable  mortgage  in 
favor  of  original  owner  of  premises, 
1917C-970. 

Examination  of  title:  right  of  purchaser 
at  judicial  sale  to  reasonable  time  to 
examine  title,  19160-764, 

Junior  writ:  rights  of  parties  on  sale  un- 
der junior  attachment  or  execution, 
1917B-710. 

Bent:  liability  of  purchaser  of  leasehold 
at  judicial  sale  for  rent,  1916E-821. 

Validity:  misnomer  of  party  in  advertise- 
ment or  notice  of  sale  as  affecting 
validity  of  judicial  sale.   1917B-1046. 

— validitv  of  judicial  sale  held  on  holiday, 
1916E-8n2. 

See  also  Mortgages. 

JUNK. 

Purchaser  and  seller  of  junk  as  "dealer," 
1917A-954. 

JURISDICTION. 
See     Appeal     and     Error;     Appearance; 
Courts;     Criminal    Lav/;     False    Pre- 
tenses;   Instructions;    Misconduct    of 
Counsel. 


JUSTICE  OF  THE  PEACE. 

Application  for  change  of  judge  or  venue 
on  ground  of  bias  of  judge  as  ousting 
judge  of  jurisdiction,  1916D-1281. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  justices  of  the  peace,  1916I>- 
66. 

JUSTIFICATION. 
See  Assault;  Libel  and  Slander. 

JUVENILE  COURTS. 

Establishment  of  and  procedure  in  juve- 
nile courts,  1916E-1010. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  juvenile  offenders  and  courts, 
1916D-67. 

KEROSENE. 

Storage  of  kerosene  as  nuisance,  1916C- 
820. 

KILNS. 
See  Bricks. 

KINDRED. 

See  Insanity. 


64 


KNOWLEDGE. 


Competency  of  witness  to  testify  to  knowl- 
edge of  another,  1918A-947. 

Presumption  as  to  knowledge  of  foreign 
law,  1916D-1072. 

LABOR. 
See  Sundays  and  Holidays. 


con- 


LABOK  COMBINATIONS. 

Civil  liability  for  interference  with 

tract  relations,  1916E-608. 
Publication  that  employer  has  been  placed 

on    "unfair    list"    of    labor    union    as 

libelous,  1918B-570. 

LABOB  LAWS. 

Aliens:  soliciting  or  importing  alien  con- 
tract labor  as  crime,  1917C-261. 

— validity  of  statute  discriminating 
against  aliens  in  employment  of  labor- 
ers, 1917B-287. 

Corporations:  criminal  liability  of  corpo- 
ration for  violation  of  labor  law, 
1916C-465. 

Females:  validity  of  statute  regulating 
employment  of  adult  females  in  other 
respects  than  number  of  hours  of 
labor,  1916D-1065. 

Hours  of  labor:  statute  regulating  hours 
of  service  of  railroad  employees  as 
interference  with  interstate  commerce, 
1917A-981. 

— validity  of  statute  requiring  weekly  rest 
day  for  employees,  1916D-1058. 

Partial  invalidity  of  statute:  effect  of  par- 
tial invalidity  of  statute  relating  to 
labor,  1916D-67. 

IiACHES. 

Laches  as  barring  injunction  to  restrain 
breach  of  covenant  not  to  engage  in 
same  business,  1916C-190. 

Laches  as  barring  right  of  contribution  be- 
tween partners,  1916D-838. 
See  also  Descent  and  Distribution. 

LAKES. 

See  Waters  and  Watercourses. 

LANDLORD  AND  TENANT. 

Advertising:  right  of  tenant  of  building 
to  use  of  front  wall  for  advertising 
purposes,  19160-482. 

Alien  enemies:  effect  on  lease  of  tenant 
becoming  alien  enemy,  1917C-202. 

Corporations:  criminal  liability  of  cor- 
poration as  tenant  for  wilful  destruc- 
tion of  -premises,  1916C-465. 

Employee  as  tenant:  person  occupying 
premises  of  employer  as  part  of  com- 
pensation as  tenant  of  owner,  1916G- 
1111. 


DIGEST. 

1916C— 1918B. 

LANDLORD  AND  TENANT— Continued. 

Eviction:  right  of  tenant  to  recover  dam- 
ages in  case  of  eviction  by  title  para- 
mount, 1916D-1147. 

Fixtures:  gas  or  electric  appliances  as  fix- 
tures as  between  landlord  and  tenant, 
1917B-188. 

—value  of  fixtures  attached  by  tenant  as 
element  of  damages  sustained  by  ap- 
propriation of  property  in  eminent 
domain  proceeding,  1916C-782. 

Guardians:  power  of  guardian  to  lease 
ward's  real  estate,  1917A-1256. 

Homestead:  validity  of  lease  of  homestead 
without  joinder  of  wife,  1917A-76. 

Leases:  construction  of  covenant  in  lease 
for  renewal  as  covenant  for  perpetual 
renewal,  1916C-1096. 

— construction  of  phrase  "damage  by  ele- 
ments" or  similar  phrase  as  used  in 
lease,  1917B-296. 

— contracts  for  lease  of  theatres,  1917C- 
398. 

— implication  of  covenant  for  quiet  enjoy- 
ment in  lease,  1917C-615. 

— ^lien  of  attorney  on  lease  in  his  posses- 
sion connected  with  litigation,  1917D- 
149. 

Mechanics'  liens:  lessee  of  premises  as 
necessary  party  defendant  to  action 
to  foreclose  mechanic's  lien,  1918B-15. 

— lessor  of  premises  as  necessary  party  de- 
fendant to  action  to  foreclose  mechan- 
ic's lien,  1918B-15. 

— mechanic's  lien  on  realtv  for  improve- 
ments made  by  lessee  with  consent  of 
owner,  1916C-1133. 

Passageways:  duty  of  landlord  to  light 
passageway  common  to  tenants,  1917E- 
596. 

Eent:  distinction  between  rent  and  roy- 
alty, 1916E-1225. 

—effect  of  assignment  of  lease  or  sublease 
by  tenant  on  liability  for  rent,  1916E- 


— inconsistent  defenses  in  action  relating 
to  rent,  1917C-733. 

— person  to  whom  rent  is  payable,  in  ab- 
sence of  governing  statute  in  case  of 
sale,  mortgage  or  other  grant  of  re- 
version, 1916D-192. 

— rent  as  realty  or  personalty,  1918A-148. 

Set-off:  right  to  interpose  set-off  or  coun-* 
terclaim  in  action  by  landlord  to  re- 
cover demised  premises,  1916D-372. 

Title  to  premises:  necessity  that  tenant 
surrender  possession  before  asserting 
title  adverse  to  landlord,  1917D-548. 

Wharves:  liability  of  lessor  or  lessee  for 
injuries  sustained  on  defective  wharf, 
1916C-154. 

See  also  Apartment  Houses;   Fire  Insur- 
ance. 

LANGUAGE. 
See  Breach  of  Peace;  Disorderly  Conduct. 

LAPSE    OF   LEGACIES, 
See  Wills. 


INDEX  TO  THE  NOTES. 


LAPSE  OF  TIME. 
See  G-uardians. 


LEGACY  TAXES. 
See  Taxation. 


LAECENT. 


subject 
subject 


of    larceny, 

of    larceny, 

automobile 


Animals:     bees 

1917B-987. 
— wild     animal 

1917B-971. 
Automobiles:      insurance     of 

against  theft,  1917D-54. 

Corporations:  liability  of  corporation  to 
indictment  for  larceny,  1916C-463. 

Defenses:  inducement  to  commit  larceny 
with  view  to  prosecution  therefor  aa 
defense  to  such  prosecution,  1916C- 
732. 

— restoration  of  property  or  settlement  or 
offer  to  settle  with  owner  as  defense 
to  prosecution  for  larceny,   1916C-68. 

Fidelit}-  insurance:  what  constitutes  lar- 
ceny by  employee  within  policy  of 
fidelity 'insurance,  1917C-427. 

Mislaid  property:  larceny  by  finder  of  mis- 
laid property,  1917D-806. 

Punishment:  what  constitutes  cruel  and 
unusual  punishment  for  larceny, 
1918B-399. 

LAST  CLEAR  CHANCE. 
See  Negligence. 

LAW  EXAMINEiRS. 
See  Attorneys. 

LAWFUL  HEIES. 

Meaning  of  term  "lawful  heirs"  as  used  in 
will,  1917C-1156. 

LAW  MERCHANT. 

Law  merchant  as  part  of  common  law, 
1918A-971. 


LEGAL  EXECUTION. 
See  Life  Insurance. 

LEGISLATUEE. 

Exclusion  or  inclusion  of  Sunday  or  holi- 
day in  computation  of  time  for  ses- 
sion of  legislature,  1917E-943. 

Power  of  legislature  to  punish  person 
other  than  witness  for  contempt, 
1918B-378. 

Service  of  civil  process  upon  members  of 
legislature,  1917B-641. 
See  also  Illegal  Contracts;  Statutes. 

LEGITIMACY. 
See  Illegitimacy. 

.    LENGTHY  INSTRUCTIONS. 
See  Instructions. 

LETTERHEADS. 

Evidentiary  effect  of  use  of  printed  letter- 
head or  billhead,  1917B-271. 

LETTERS. 

Admissibility  in  evidence  of  self-serving 
letter  or  telegram  sent  in  general 
course  of  business,  1917D-790. 

Lien  of  attorney  on  letter  in  his  posses- 
sion connected  with  litigation,  1917D- 
149. 

Presumption  as  to  authenticity  of  letter 
received  in  reply  to  letter,  1917D-925, 

Presumption  of  receipt  of  letter,  19I7E- 
1058. 

Sufficiency  of  evidence  to  show  mailing  of 
letter,  1917E-1076. 

See  also  Anonymous  Letters;   Witnesses. 


LAW  OF  THE  ROAD. 

Law  of  road  as  applicable  with  respect  to 
one  using  highway  for  play,  1917C- 
454. 

LAWS. 

Ordinance  as  "law,"  1917C-687. 

LAYMEN. 

See   Champerty   and   Maintenance;    Mali- 
cious Prosecution- 

LEASES. 

Eee  Fire  Insurance;  Landlord  and  Tenant; 
Mines  and  Minerals;  Moving  Pictures. 

LEGACIES. 
See  Wills. 


LETTERS  OF  CREDIT. 

Liability  of  national  bank  on  letter  of 
credit,  1916D-559, 

LETTERS  TESTAMENTARY. 

See  Executors  and  Administrators. 

LEVEES. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  levees,  1916D-50. 

LIABILITY  INSURANCE. 
See  Automobiles. 

LIBEL  AND  SLANDER. 

Actionable  words:  comment  on  matter  of 
public  interest  as  libel  or  slander, 
I917B-409. 


66 


DIGEST. 

1916C— 1918B. 


LIBEL  AND  SLANDEBr— Continued. 

Actionable  words:  liability  for  defamation 
of  deceased  person,  1917E-234. 

— newspaper  cartoon  as  libel,  1917E— 190. 

— ^publication  that  employer  has  been 
placed  on  "unfair  list"  of  labor  union 
as  libelous,  1918B-570. 

—statement  in  response  to  extra-judicial 
assertion  of  civil  liability  as  action- 
able libel  or  slander,  1916E-633. 

—words  imputing  immoral  conduct  to  man 
as  actionable  libel  or  slander,  1917A- 
1043. 

Corporations:  liability  of  corporation  for 
libel  or  slander,  1917D-967. 

— liability  of  corporation  to  indictment  for 
criminal  libel,  1916C-463. 

Damages:  loss  of  election  or  appointment 
to  office  as  element  of  damages  for 
libel  or  slander,  1918B-11'29. 

— what  is  excessive  verdict  in  action  for 
libel  or  slander,  1916D-1175. 

Evidence:  admissibility  of  testimony  of 
readers  or'  hearers  of  libel  or  slander 
as  to  their  understanding  of  identity 
of  person  defamed,  1917C-36. 

Injunction  against  publication  of  or  to 
compel  retraction  of  libel,  1916D-1088. 

Intoxication  as  justification  or  mitigation 
of  slander,  1916E-564. 

Limitation  of  actions:  running  of  statute 
of  limitations  against  action  for  libel 
or  slander,  1917C-64. 

Pleading:  inconsistent  defenses  in  action 
for  libel  or  slander,  1917C-737. 

— sufficiency  of  complaint  in  action  for 
slander  with  respect  to  averments  of 
publication  end  of  time  and  place, 
1918B-504. 

Privileged  communications:  communica- 
tion to  relative  or  member  of  family 
as  privileged  within  law  of  libel  and 
Blander,  1917E-895. 

— fact  that  conversation  is  overheard  by 
third  person  as  affecting  privilege  of 
communication  with  law  or  slander, 
1917E-699. 
— petition  for  legislative  or  executive  ac- 
tion as  privileged  within  law  of  libel 
and  slander,  1918A-462. 

— privilege  of  attorney  from  prosecution 
for  libel  or  slander  for  statements 
made  in  judicial  proceedings,  1917E- 
169. 

— report  of  mercantile  agency  as  privi- 
leged within  law  of  libel  and  slander, 
1916D-764. 

— statement  by  fiduciary  with  respect  to 
subject-matter  of  trust  as  privileged 
within  law  of  libel  and  slander, 
1917B-227. 

— statement  with  respect  to  character  of 
domestic  servant  as  privileged,  1917A- 
342. 

— testimony  of  witness  as  privileged 
within  law  of  libel  and  slander, 
191SA-822. 

Publication  of  libel  by  communication  to 
stenographer,  1917E-987. 


LIBEL  AND  SLANDER— Continued. 

Kepetition  or  republication:  liability  of 
author  of  libel  or  slander  for  repeti- 
tion or  republication  by  others, 
I916E-9a8. 

Separate  actions:  right  to  maintain  sepa- 
rate actions  for  separate  statements 
of  same  libel  or  slander  by  same  per- 
son, 1917A-250. 

Slander  of  title:  malice  as  essential  ele- 
ment of  cause  of  action  for  slander  of 
title,  1916D-317. 

LICENSE. 

Bight  of  licensee  to  recover  damages  for 
injuries  sustained  on  defective  wharf, 
1916C-149. 

LICENSES. 

Detectives:  validity  of  statute  licensing 
private  detectives,  1917A-584. 

Fish  and  game:  validity  of  statute  requir- 
ing license  to  hunt  game,  1916C-I34. 

Foreign  corporations:  imposition  of  license 
tax  or  fee  on  foreign  corporations, 
1916C-1248. 

Hotels:  validity  of  statute  or  ordinance  li- 
censing or  regulating  hotels,  lodging 
or  rooming  houses,  or  the  like,  1916C- 
290. 

Indictment:  right  to  join  two  or  more  de- 
fendants in  indictment  for  violation 
of  license  statute,  1918A-571. 

Moving  pictures:  licensing  motion  picture 
exhibitions,  1916C-303. 

Owners  of  premises:  validity  of  license  tax 
imposed  on  owner  of  premises  for  ex- 
tracting mineral  or  turpentine  there- 
from or  cutting  timber  thereon, 
i918A-678. 

Eight  of  person  entitled  to  license  or  evi- 
dence thereof  to  do  act  for  which  li- 
cense is  required,   1917B-145. 

Statutes:  effect  of  partial  invalidity  of 
statute  imposing  license  tax,  1916D- 
89. 

— effect  of  partial  invalidity  of  statute  re- 
lating to  licenses,  1916D-56. 

Transient  merchants:  state  or  municipal 
regulation  of  transient  merchants, 
1917E-505. 

See  also  Attorneys;  Automobiles;  Intoxi- 
cating Liquors;  Motorcycles. 

LIENS. 

Inconsistent  defenses  in  action  growing 
out  of  lien  on  realty,  1917C-736. 

Priority  as  between  purchase-money  mort- 
gage and  other  lien  or  claim,  I916C- 
945. 

See  also  Attorneys;  Bonds;  Chattel  Mort- 
gages; Fire  Insurance;  Judgments; 
Logs  and  Lumber;  Mechanics'  Liens; 
Mortgages;   Taxation;   Vendor's  Lien. 


INDEX  TO  THE  NOTES. 


67 


LIFE  ESTATES. 

Estate  created  by  grant  or  devise  of  life 
estate  with  absolute  power  of  dispo- 
sition, 1916D-400. 

Merger  of  estates  where  life  tenant  is  also 
trustee  of  property,  •1917A-1221. 

Eight  of  life  tenant  to  recover  damages  for 
injurv  both  to  life  estate  and  inheri- 
tance, 1916C-881. 

Validity    of    conveyance    of    life    estate, 
19i7A-579. 
See  also  Remainders  and  Beversions. 

IiIPE  INSURANCE. 

Assignment:  validity  and  effect  of  assign- 
ment by  wife  of  insurance  in  her 
favor  on  life  of  husband,  1917B-302. 

Construction  of  application:  meaning  of 
term  "severe"  or  "serious"  illness  in 
application  for  life  insurance  policv, 
1918A-682. 

Construction  of  policy:  construction  of  re- 
striction in  contract  of  life  insurance 
as  to  travel  by  or  residence  of  insured, 
1917A-381. 

— death  while  engaged  in  violating  law 
within  exception  in  life  insurance  pol- 
icy, 1917C-592. 

— effect  of  incontestable  clause  in  life  in- 
surance policy  in  case  of  legal  execu- 
tion of  insured,  1917D-1183. 

— effect  of  incontestable  clause  in  life  pol- 
icy on  provision  against  suicide, 
1917D-1186. 

— persons  included  within  the  term  "fam- 
ily" when  used  to  designate  benefici- 
aries in  life  insurance  policy,  1917C- 
694. 

Divorce:  effect  of  divorce  upon  rights  of 
beneficiarv  in  life  insurance  policy, 
1917C-269. 

Evidence:  admissibility  of  coroner's  .ver- 
dict as  evidence  in  action  on  life  in- 
surance policy,   1917B-893. 

Industrial   insurance,   19186-1186,. 

Insurable  interest:  relationship  by  affinity 
as  supporting  insurable  interest  in 
life,  1917C-158.' 

• — right  of  insurance  beneficiarv  having  no 
insurable  interest  in  life  of  insured  to 
keep  contract  alive  for  his  own  bene- 
fit, 1917A-108.5. 

— selection  by  insured  of  beneficiary  not 
having  insurable  interest  in  former's 
life  as  against  public  policy,  1916C- 
■587. 

Parent  and  child:  right  of  parties  in  case 
of  insurance  procured  bv  parent  on 
life  of  minor  child,  1917E-643. 

Waiver  of  conditions  in  insurance  policy 
bv  insurer's  failure  to  inquire  into  ex- 
isting facts,  1917B-500. 

Workmen's  compensation  acts:  receipt  of 
insurance  as  affecting  right  to  com- 
pensation under  workmen's  compensa- 
tion act,  1918B-635. 


LIGHTING    PASSAGEWAYS. 
See  Landlord  and  Tenant. 

LIMBS. 
See  Workmen's  Compensation  Acts. 

LIMITATION  OF  ACTIONS. 

Accident  insurance :  waiver  of  provision  in 
accident  insurance  policy  limiting 
time  to  bring  suit  thereon,  1916C— 449. 

Acknowledgment  of  debt:  validity  of  ac- 
knowledgment by  client  of  debt  to 
attorney  barred  by  limitations,  1916E- 
436. 

Alienation  of  affections:  limitation  against 
action  by  wife  for  alienation  of  affec- 
tions or  criminal  conversion,  1916C- 
743. 

Alien  enemies:  running  of  statute  of  limi- 
tations as  between  alien  enemies, 
19170-213. 

Assault:  what  is  civil  action  for  assault 
within  statutory  limitation  applicable 
thereto,  1917A-118. 

Attorneys:  limitation  of  action  based  on 
negligence  of  attorney,  1917B-48. 

Death  by  wrongful  act:  commencement  of 
running  of  statute  of  limitations 
against  action  for  death  bv  wrongful 
act,  19160-713. 

— pleading  statute  of  limitations  in  action 
for  death  by  wrongful  act,  1916D- 
1241. 

Fraud:  record  of  instrument  as  construc- 
tive notice  of  fraud,  1917A-267. 

Intoxicating  liquors:  limitation  against 
action  for  penalty  for  violation  of  in- 
toxicating liquor  statute,  1916E-871. 

Judgments:  when  statute  of  limitations  be- 
gins to  run  against  action  on  judg- 
ment, 19160-625. 

Libel  and  slander;  running  of  statute  of 
limitations  against  action  for  libel  or 
slander,  19170-64. 

Partnership:  right  of  contribution  between 
partners  as  barred  by  limitations, 
1916D-838. 

Quieting  title:  running  of  statute  of  limi- 
tations against  action  to  quiet  title, 
1917A-661. 

"Kevenue  laws":  meaning  of  "revenue 
laws"  in  statute  relating  to  limitation 
of  actions,  1918B-216. 

Suspension  of  statute:  infancy  or  other 
disability  of  claimant  as  suspending 
limitation  of  time  for  filing  claim 
against  municipality,  19160-1042. 

— part  payment  by  principal  with  consent 
of  surety  as  suspending  statute  of  lim- 
itations'as  to  surety,  1916D-327. 

Trusts  and  trustees:  application  of  statute 
of  limitations  as  between  trustee  and 
beneficiary  of  express  trust,  I917C- 
1018. 

Wills:  running  of  statute  of  limitations 
against  action  for  services  performed 
in  consideration  of  oral  agreement  to 
compensate  by  will,  1918A-912. 


£8 


LIMITING  ISSUES. 
See  Appeal  and  Error. 

LINE  or  TITLE. 
See  Recording  Acts. 


DIGEST. 
1916C— 1918B. 


LOGS  AND  LUMBER. 


By  whom  and  for  what  labor  or  services 
logger's  lien  may  be  claimed,  I916C- 
198. 

Person  buying  and  selling  lumber  as 
"dealer,"  i917A-958. 


LIQUIDATED  CLAIMS. 
See  Accord  and  Satisfaction. 

LIQUIDATED  DAMAGES. 
See  Damages. 

LIQUORS. 
See  Intoxicating  Liquors. 

LISTING  PROPERTY. 
See  Taxation. 

LIVE   STOCK. 

Person   buying   and   selling  live   stock   as 

"dealer,"  1917A-958. 
See  also  Carriers  of  Live  Stock;  Carriers 
of  Passengers;  Fire  Insurance. 

LOAN  BROKERS. 

State  or  municipal  regulation  of  personal 
property  loan  brokers,  1916E-618. 

LOANS. 

See  Agriculture;  Building  and  Loan  Asso- 
ciations; False  Pretenses;  Infants; 
Mortgages. 

LOCAL  ASSESSMENTS. 
See  Taxation. 

LOCAL  IMPROVEMENTS. 
See  Municipal  Corporations. 

LOCAL  OPTION. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  local  option,  1916D-62. 

Territory  afifected  by  adoption  of  local 
option  law,  I917C-512. 

LOCAL  REGULATIONS. 
See  Fire  Insurance. 

LOCAL  SIGNIFICANCE. 
See  Usages  and  Customs. 

LODGING  HOUSES. 

Validity  of  statute  or  ordinance  licensing 
or  regulating  hotels,  lodging  or  room- 
ing houses,  or  the  like,  1916C-290. 


LONGSHOREMEN. 

Longshore  work  as  employment  as  witUn 
purview  of  workmen's  compensation 
act,  1917D-24. 

LOSS  OF  ELECTION. 
See  Libel  and  Slander. 

LOSS  OF  EYESIGHT. 
See  Eyesight. 

LOSS  OF  UMB  OR  MEMBER. 

See    Accident    Insurance;     Arm;    Finger; 

Foot;  Hand;  Phalange. 

LOSS  OF  PROFITS. 

See  Eminent  Domain. 

LOSS  OF  USE. 
See  Ships  and  Shipping. 

LOSS  OF  VESSEL. 
See  Marine  Insurance;  Ships  and  Shipping. 

LOST  INSTRUMENTS. 

Jurisdiction  of  action  on  lost  instrument, 
1917A-1289. 

Proof  by  parol  of  contents  of  lost  or  de- 
stroyed judicial  record,  1916D-248. 

Sufficiency  of  proof  to  establish  contents 
of  lost  instrument,  1917A-1104. 
See  also  Frauds,  Statute  of. 

LOST  PROPERTY. 

Eights  of  parties  with  respect  to  mislaid 
property  as  distinguished  from  lost 
property,  1917D-803. 

LOTTERIES. 
See  Gaming. 

LUMBER. 
See  Logs  and  Lumber. 

LUMP  SUM  AWARD. 
See  Workmen's  Compensation  Acts. 

LUNACY. 
See  Insanity. 

LUNCH  ROOMS. 
See  Restaurants. 


INDEX  TO  THE  NOTES. 


69 


LYING  IN  WAIT. 

"What  constitutes  "lying  in  wait"  withia 
statute  relating  to  homicide,  19160- 
969. 

MACHINERY. 

Installation  of  machinery  as  employment 
within  purview  of  workmen's  compen- 
sation act,  1917D-24. 

MAGISTRATES. 
"See  Malicious  Prosecution. 

MAIL  CRANES. 
See  Railroads. 

MAILS. 
See  Letters;  Post  Office. 

MAINTENANCE. 
See  Champerty  and  Maintenance. 

MAJORITY. 
See  Municipal  Corporations;   Partnership. 

MALICE. 

Act  lawful  in  itself  not  rendered  unlawful 
by  malicious  motive,  1916C-438. 

MALICE. 

See  also  Dying  Declarations;   Libel  and 

Slander. 

MALICIOUS  INJURIES. 
See  Bankruptcy. 


MALPRACTICE. 
See  Physicians  and  Surgeons. 

MANDAMUS. 

Abatement  of  mandamus  by  termination 
of  respondent's  office,  1918A-1000. 

Mandamus  as  remedy  in  behalf  of  munici- 
pality to  compel  performance  of  con- 
tractual obligation,  1918A-915. 

Mandamus  to  control  issuance  of  liquor  li- 
cense, 1918A-687. 

Mandamus  to  review  disbarment  proceed- 
ings, 1918B-837. 

MANUFACTURERS. 

Manufacturer  as  "dealer,**  1917A-958. 

Manufacturing  as  employment  within  pur- 
view of  workmen's  compensation  act, 
1917D-24. 

Meaning  of  "plant"  as  applied  to  manu- 
facturing establishment,  1917A-32(}. 

See  also  Bricks;  Carriers  of  Passengers; 
Food  and  Drugs. 

MAPS. 

Admissibility  in  evidence  of  ancient  map, 
1916C-176. 

See  also  Dedication. 

MARINE  INSURANCE. 

Frustration  of  voyage  because  .of  existence 
of  war  as  constructive  total  loss 
within  marine  insurance  policy, 
1916D-884. 


MALICIOUS   PROSECUTION. 

Defenses:  advice  of  magistrate  or  layman 
as  defense  to  action  for  malicious 
prosecution,  1918A-498. 

Evidence:  acquittal  in  criminal  prosecu- 
tion as  evidence,  in  action  for  mali- 
cious prosecution,  of  want  of  probable 
cause,  1916E-376. 

— admissibility  of  evidence  of  plaintiflPs 
character  in  action  for  malicious  pros- 
ecution, 1916D-1167. 

Grounds  of  action;  instituting  bankruptcy 
or  insolvency  proceeding  as  ground 
for  action  for  malicious  prosecution, 
1916D-909. 

— institution  of  proceeding  to  abate  nui- 
sance as  ground  for  action  for  mali- 
cious prosecution,  1916E-493. 

Persons  liable:  liability  as  for  malicious 
prosecution  of  one  advising  or  pro- 
curing third  person  to  institute  pro- 
ceeding, 191SA-485. 

— liability  as  for  malicious  prosecution  of 
one  who  states  facts  to  magistrate, 
public  prosecutor  or  executive  officer, 
1918A-492. 

Verdict:  what  is  excessive  or  inadequate 
verdict  in  action  for  malicious  prose- 
cution, 1916C-250. 


MARITIME  EMPLOYEEa 
See  Workmen's  Compensation  Acts. 

MARK. 

Sufficiency  of  signature  of  testator  to  will 
by  mark,  1917B-874. 

MARKET  VALUE. 
See  Damages;  Sales. 

MARKS. 
See  Edectiona. 

MARRIAGE. 

Validity  of  condition  in  deed  in  restraint 
of  marriage,  1917D-282. 

Validity  of  testamentary  disposition  in 
restraint  of  marriage,  191SB-1141. 

Whether  marriages  within  prohibited  de- 
grees of  relationship  are  voidable  or 
void,  1917C-151. 

See  also  Bigamy;  Breach  o£  Promise  of 
Marriage;  Criminal  Conversation;  Di- 
vorce; Schools;  Undue  Influence; 
Wills. 


70 


DIGEST. 

1916C5— 1918B. 


MARRIED  WOMEN. 
See  Husband  and  Wife. 


MARSHALING  ASSETS. 

Inverse    order    of    alienation    within    doc* 
trine    of    marshaling    assets,    I916D- 


1119. 


MARSHAI.S. 


Personal  liability  of  attorney  for  fees 
of  marshal,  1917B-520. 

MASSAGE. 

Validity  of  special  regulation  of  treat- 
ment of  disease  by  massage,  1917B- 
798. 

MASTER  AND  SERVANT. 

Act  of  servant:  implied  authority  of  offi- 
cers, agents,  or  servants  to  contract 
for  medical,  surgical,  or  other  attend- 
ance or  supplies  for  sick  or  injured 
persons,  1918A-791. 

— liability  of  attorney  for  negligent  act  of 
clerk  or  assistant,  1917B-18. 

— liability  of  owner  of  automobile  for  acts 
of  his  chauffeur  or  agent,  1917D-1001. 

— ^liability  of  railroad  company  for  per- 
sonal injuries  caused  by  object  thrown 
from  train  by  employee,  1917D-540. 

Animals:  duty  and  liability  of  master  to 
servant  with  respect  to  animal  fur- 
nished by  him  to  servant,  1917A-309. 

Automobiles:  liability  of  automobile  owner 
to  chauffeur  for  personal  injuries, 
1916E-1090. 

Blacklisting:  legality  of  blacklisting 
agreement,  1917A-644. 

Contract  of  employment:  distinction  be- 
tween "salary"  and  "wages,"  1917B- 
321. 

— effect  of  partial  invalidity  of  statute  re- 
lating to  wages,  1916D-68. 

— term  of  employment  and  rate  of  com- 
pensation of  one  continuing  in  service 
after  termination  of  contract,  1918B- 
1176. 

— tips  as  part  of  earnings  or  wages, 
1918B-1122. 

"—what  constitutes  'Toss"  within  meaning 
of  statute  terminating  seamen's  wages 
upon  loss  of  vessel,  1916D-688. 

Domestic  servants:  liability  of  master  for 
injuries  to  domestic  servant,  1917D- 
499. 

Employers'  liability  acts:  effect  of  par- 
tial invaliditv  of  employers'  liability 
act,  1916D-69. 

— employees  entitled  to  protection  under 
federal  employers'  liability  act, 
1916E-472;    1918B-55. 

— existence  of  relation  of  emplover  and 
emplovee  under  federal  emplovers'  lia- 
bility'act,  1918B-46. 

• — meaning  of  "plant"  as  used  in  employ- 
ers' liability  act,  1917A-324. 


MASTER  AND  SERVANT— Continued. 

Employers'  liability  acts:  necessity  of 
election  between  federal  employers' 
liability  act  and  state  statute  or  com- 
mon law,  1917A-1270. 

— necessity  that  servant  be  acting  in 
course  of  employment  when  injured  in 
order  to  recover  under  employers'  lia- 
bility act,  1918A-1070. 

—right  of  action  under  federal  employers* 
liability  act  as  sufficient  property 
right  to  warrant  grant  of  administra- 
tion, 1917C-1221. 

— validity  of  verdict  by  less  than  whole 
number  of  jurors  in  action  under  fed- 
eral employers'  liability  act,  1916E- 
504. 

— ^what  statutes  are  impliedly  repealed  by 
state  employers'  liabiRty  act,  1916E- 
773. 

"Employment":  distinction  between  office 
and  employment,  1917D-319. 

Landlord  and  tenant:  person  occupying 
premises  of  employer  as  part  of  com- 
pensation as  tenant  of  owner,  1916C- 
1111. 

Pleading:  inconsistent  defenses  in  action 
growing  out  of  contract  of  employ- 
ment, 1917C-719. 

Privileged  communications:  information 
acquired  in  employment  as  privileged 
from   disclosure,   19160-701. 

— statement  with  respect  to  character  of 
domestic  servant  as  privileged,  1917A- 
342. 

Railroads:  duty  of  railroad  company  to 
block  frogs,  switches  and  guard  rails, 
1916E-642. 

— ^location  of  mail  crane  near  railroad 
track  as  actionable  negligence,  1916E- 
717. 

— running  train  on  wrong  or  unusual  .track 
as  negligence,  1917A-936. 

— running  train  without  headlight  as  neg- 
ligence towards  person  on  track  at 
place  other  than  crossing,  1918A-1181. 

Eestraint  of  trade:  injunction  as  remedy 
for  breach  of  covenant  by  employee 
not  to  engage  '  in  same  business, 
1916C-187. 

Stopping  work:  effect  on  relation  of  em- 
ployee as  such  of  his  stopping  work 
temporarilv  for  his  own  purposes, 
1918A-1194. 

Wharves:  right  of  employee  of  third  per- 
son to  recover  damages  for  injuries 
sustained  on  defective  wharf,  1916C- 
146. 

Workmen's  compensation  acts:  admissibil- 
ity in  proceeding  under  workmen's 
compensation  act  of  statement  by  in- 
jured emplovee  respecting  cause  of  in- 
jury, 1916C-775. 

— award  or  right  to  compensation  under 
workmen's  compensation  act  as  vest- 
ing in  beneficiary,  1917D-1169. 
rard  to  minor  under  workmen's  com- 
pensation act  as  affecting  right  of  ac- 
tion by  parent,  1916D-1172. 


INDEX  TO  THE  NOTES. 


71 


MASTER  AND  SERVANT— Continued. 

Workmen's  compensation  acts:  "child"  in 
workmen's  compensation  act  as  in- 
cluding  illegitimate   child,  1918B-258. 

— constitutionality  of  workmen's  compen- 
sation act,  1918B-611. 

— disease  as  accident  under  workmen's 
compensation  act,  1918B-309. 

— effect  of  partial  invalidity  of  workmen's 
compensation  act,  1916D-68. 

— increase,  decrease,  termination  or  sus- 
pension of  allowance  under  workmen's 
compensation  act,  1916E-889;  1918B- 
733. 

— intoxication  of  employee  as  precluding 
recovery  under  workmen's  compensa- 
tion act,  1918B-q86. 

— liability  of  master  for  injuries  to  domes- 
tic servant  under  workmen's  compen- 
sation act,  1917D-504. 

— lump  sum  award  under  workmen's  com- 
pensation act,  1918B-694. 

— maritime  employees  as  within  purview 
of  workmen's  compensation  act, 
1918B-661. 

— meaning  of  phrase  "average  weekly 
earnings"  in  workmen's  compensation 
or  similar  act,  1938B-640. 

— meaning  of  "plant"  as  used  in  work- 
men's compensation  act,  1917A-323. 

— notice  of  injury  under  workmen's  com- 
pensation act,  1917D-867. 

—occupations  or  employments  within  pur- 
view of  workmen's  compensation  acts, 
1917D-4. 

— person  employed  in  violation  of  law  as 
entitled  to  compensation  under  work- 
men's compensation  act,  1918B-679. 

— provisions  in  workmen's  'compensation 
acts  respecting  medical  examination 
of  workmen,  1918B-670. 

— railroad  employees  as  within  purview  of 
workmen's  compensation  act,  1918B- 
664. 

— receipt  of  insurance  or  other  benefit  as 
affecting  right  to  compensation  under 
workmen's  compensation  act,  1918B- 
635. 

— residence  of  beneficiary  as  affecting 
right  to  compensation  under  work- 
men's compensation  act,  19186-634. 

— review  of  facts  on  appeal  under  work- 
men's compensation  act,   1918B-647. 

— right  to  and  effect  of  election  with  re- 
spect .to  acceptance  of  provisions  of 
workmen's  compensation  act,  1918B- 
715. 

— right  to  compensation  under  workmen's 
compensation  act  as  dependent  on  loss 
of  earning  capacity,  1917E-lo6. 

— total  disabilitv  under  workmen's  com- 
pensation act,  1917E-240. 

— what  constitutes  "loss"  of  eyesight 
within  workmen's  compensation  act, 
1918A-533. 

— what  constitutes  "loss"  of  limb  or  part 
thereof  within  workmen's  compensa- 
tion act,  1918A-536. 

— what  is  accident  arising  out  of  and  in 
course  of  employment  within  meaning 


MASTER  AND  SERVANT— Continued, 
of      workmen's      compensation      act, 
1918B-768. 

Workmen's  compensation  acts:  what  is 
"injury"  or  "personal  injury"  withia 
meaning  of  workmen's  compensation 
act,  1918B-362. 

— what  statutes  are  impliedly  repealed  by 
workmen's  compensation  act,  1916E- 
773. 

— who  is  "dependent"  within  workmen's 
compensation  act,  1918B-749. 

— who  is  "workman"  within  meaning  of 
workmen's  compensation  act,  1918B- 
704. 

— workmen's  compensation  act  as  applica- 
ble to  injury  arising  from  war,  1917C- 
760. 

— workmen's  compensation  act  as  applica- 
ble to  injury  received  in  another  juris- 
diction, 1918B-625. 

— ^workmen's  compensation  act  as  retro- 
active  in  operation,  1918B-617. 

See  also  Burglary;  Carriers  of  Passengers; 
Fidelity  Insurance;  Labor  Combina- 
tions; Labor  Laws;  Release  and  Dis- 
charge. 

MATERLAXMEN. 
See  Municipal  Corporations. 

MATERIALS. 
See  Meclianics'  Liens. 

MATTERS. 
Meaning  of  "all  matters,"  1917E-87. 

MEASUREMENT. 

Comparative  weight  of  estimate  and  actual 
measurement,  1916E-573. 

MEASURE  OF  DAMAGES. 

See  Damages. 

MEAT. 

See  Food  and  Drugs. 

MECHANICS'  LIENS. 

Application  of  payment:  right  of  owner  of 
building  on  which  mechanic's  lien  is 
claimed  to  control  applicati'^Ji  of  pay- 
ment,  1917C-588. 

Bankruptcy:  effect  of  bankruptcy  of 
owner  of  property  on  right  to  me- 
chanic's lien,  1917C-292. 

Consent  of  owner:  mechanic's  lien  on 
realty  for  improvements  made  with 
consent  but  not  at  expense  of  owner, 
1916C-1133. 

Defenses:  failure  to  comply  with  contract 
as  defense  to  claim  for  mechanic's 
lien,   1916E-549. 

— loss  of  mechanic's  lien  by  taking  mort- 
gage security,  1916D-179. 


72 


DIGEST. 

1916C— 1918B. 


MECHANICS'  LIENS— Continued. 

Defenses:  representations  of  subcontractor 
inducing  payment  to  contractor  as  es- 
topping former  from  claiming  me- 
chanic's lien,  l&16r)-1068. 

Foreclosure:  necessary  or  proper  parties  to 
action  to  foreclose  mechanic's  lien, 
1918B-3. 

Homestead:  mechanic's  lien  against  home- 
stead, 1917E-747. 

"Plant":  meaning  of  "plant"  as  used  in 
mechanic's  lien  law,  1917A-328. 

Priority  as  between  purchase  money  mort- 
gage and  mechanic's   lien,   1916C-951. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  mechanics'  liens, 
1916D-69. 

—validity  of  mechanic's  lien  law  provid- 
ing for  taxing  of  attorney's  fees, 
1916D-1044. 

"Subcontractor":  who  is  "subcontractor" 
within  mechanic's  lien  law,  1917C- 
801. 

Transportation  of  materials:  right  to  me- 
chanic's lien  for  transportation  of 
materials  to  be  used  in  connection 
with  improvement,  1916E-1030. 

MEDICAL  ATTENDANCE. 

See  Master  and  Servant;  Physicians  and 

Surgeons. 

MEDICAL  EXAMINATION. 
See  Workmen's  Compensation  Acts. 

MEDICINAL     PREPAKATIONS. 
See  Intoxicating  Liquors. 

MEETINGS. 
See  Stock  and  Stockboldera 

MEMBER  OF  FAMILY. 
See  Family. 

MEMBERSHIP. 

See  Beneficial  Associations. 

MEMORANDUM. 

See    Alteration    of    Instruments;    Frauds, 

Statute  of. 

MENTAL  ANGUISH. 
See  Damages. 

MENTAL  CAPACITY. 
See  Deaf  and  Dumb  Persons;  Wills. 

MERCANTILE  AGENCIES. 

Report  of  mercantile  agency  as  privileged 
within  law  of  libel  and  slander, 
1916D-764. 

The  law  of  mercantile  agencies,  1916D- 
747. 


MERCANTILE  BUSINESS. 


Meaning  of  "plant"  as  applied  to  mercan- 
tile business,  1917A,  320. 

MERCHANTS. 
See  Transient  Merchants. 

MERGER. 

Merger   of   estates   where    life     tenant   is 
also  trustee  of  property,  1917A-1221. 
See  also  Actions  and  Proceedings. 

MESSAGES. 
See  Telegraphs  and  Telephones. 

METROPOLITAN  POLICE. 
See  Police. 

MICROSCOPE. 
See  Evidence. 

MILITIA. 

Civil  or  criminal  liability  of  militiaman 
for  injury  to  person  or  property, 
1917C-8. 

Criminal  jurisdiction  of  state  court  over 
member  of  national  guard,  1917A-279. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  militia,  1916D-70. 

Enlistment  in  militia  as  contract,  1917B- 
244. 

Power  of  federal  government  with  respect 
to  state  rililitia,  1917B-250. 
See  also  Army  and  Navy. 

MILK. 

Person  selling  milk  as  "dealer,"  191 7A- 
959. 

See  also  Food  and  Drugs. 

MILLS. 

Employment  in  mill  as  within  purview 
of  workmen's  compensation  act,  1917D- 
18. 

MINES  AND  MINERALS. 

"AH":  meaning  of  "all"  as  used  with 
respect  to  minerals,   1917E-70. 

Injuries:  employment  in  connection  with 
mining  as  within  purview  of  work- 
men's compensation  act,  1917D-26. 

—liability  of  mine  owner  or  operator  for 
injuries  resulting  from  unguarded 
mining  excavations,  1916E-484. 

Leases:  covenants  in  mining  leases  for 
diligent  prosecution  of  work,  191 7E- 
112U. 

Oil:  person  selling  oil  as  "dealer,"  1917A- 
959. 

— statutory  regulation  of  sale  of  petroleum 
products,  1917A-167. 


INDEX  TO  THE  NOTES. 


73 


MINES  AND  MINERALS— Continued. 

Oil:  storage  of  oil  as  nuisance,  1916C-820. 

Partial  invalidity  of  statute:  effect  of 
partial  invalidity  of  statute  relating 
to  mines  and  minerals,  1916D-70. 

Partition  of  mining  interests  and  mining 
rights,  1917D-135. 

Severance  of  estates:  resulting  rights  of 
mine  owner  after  severance  of  sur- 
face  and   mineral  estates,   1918B-550. 

Taxation:  validity  of  license  tax  imposed 
on  owner  of  premises  for  extracting 
mineral  therefrom,  1918A-678. 

Tenants  in  common:  right  of  tenant  in 
common  to  remove  minerals  from  soil, 
1918B-580. 

Timber:  protection  of  timber  on  mineral 
lands,  1917A-12. 

MINIMUM  SALARY. 
See  Schools. 

MINISTERIAL   OFFICERS. 
See  Public  Officers. 

MINORS. 
See  Infants. 

MISCONDUCT   OF   COUNSEL. 

Conduct  of  counsel  in  getting  inadmissible 
evidence    before    jury    as    ground   for 
new  trial,  1917A-441. 
See  also  Argiunent  of  Counsel. 

MISFEASANCE. 
See  Corporations. 


MODIFICATION. 
See  Injunctions. 

MONEY. 

Money  as  embraced  within  "contents"  or 
expression    in    will,     1916C- 


similar 
1139. 


See   also   False    Pretenses;    Garnishment. 

MONEY  HAD  AITO  KBCEIVED. 

Inconsistent  defenses  in  action  for  money 
had  and  received,  19170-725. 

MONOPOLIES. 

Breach  of  contract:  injunction  ag  remedy 
for  breach  of  express  covenant  not  to 
engage  in  same  business  as  covenan- 
tee, I916C-187. 

"Commodity":  legal  meaning  of  "commod- 
ity," I916r)-986. 

Conspiracy:  survival  of  right  of  action 
for  conspiracy  to  restrain  trade, 
1916C-726. 

Intoxicating  liquorS;  validity  of  condition 
in  deed  prohibiting  sale  of  liquor  on 
land  granted,  1917C-112. 

"Market  price":  selling  price  fixed  by 
combination  or  monopoly  as  "market 
price,"  1918A-575. 

Partial  invalidity  of  statute:  effect  of 
partial  invalidity  of  statute  relating 
to  monopolies,  1916D-36. 

Set-off:   right   of  defendant  in   action   by 
monopoly  on  collateral  attack  to  set 
off  damages  sustained  by  him  on  ac- 
count of  monopoly,  1916D,  946. 
See  also  Blacklisting. 


MISLAID  PROPERTY. 
See  Lost  Property. 

MISNOMER. 
See  Judicial   Sales. 

MISREPRESENTATIONS. 
See  Fraud;  Release  and  Discharge. 

MISSTATEMENT. 
See  Insurance. 

MISTAKE. 

Mistake  of  law  as  ground  for  annulment 
of  compromise,  1916D-347. 
See  also  Confusion  of  Goods. 

MISUSER. 
See  Easements. 

MITIGATION  OF  DAMAGES. 
See  Assaxilt;  Damages. 


MONUMENTS. 
See  Executors  and  Administrators. 

MOOT  CASE. 
See  Actions. 

MORE  OR  LESS. 

Construction   of  term   "more    or    less"  in 
'  deed  of  realty,  1917D-155. 

MORTALITY  TABLES. 

Admissibility,  in  action  for  death  by 
wrongful  act,  of  mortality  tables  to 
show  probable  duration  of  life,  1918A- 
1021. 

Judicial  notice  of  mortality  tables,  1918B- 
415. 

Mortgages:  competency  of  attesting  wit- 
ness to  deed -or  mortgage,  1917A-23o. 

Attorneys:  lien  of  attorney  on  mortgage 
in  his  possession  connected  with  liti- 
gation, 1917D-149. 

Corporations:  power  of  trustee  of  corpo- 
rate mortgage  to  release  mortgaged 
property,  1916D-1182. 


74 


DIGEST. 

1916C— 1918B. 


MOETALITT  TABLES— Continued. 

Corporations:  right  of  creditor  to  object 
to  mortgage  of  property  of  corpora- 
tion made  without  required  consent  of 
stockholders  1916C-1039. 

Decedents'  estates:  presentation  of  claim 
as  condition  precedent  to  enforcement 
of  mortgage  against  decedent's  estate, 
1917B-156. 

Deficiency:  personal  liability  for  defi- 
ciency of  person  procuring  mortgage 
to  be  given  or  assumed  in  name  of 
another,  1917A-687. 

Equitable  mortgages:  construction  of  abso- 
lute deed  as  equitable  mortgage  in 
favor  of  third  person,  1917C-970. 

Foreclosure:  effect  of  partial  invalidity 
of  statute  relating  to  foreclosure  sales, 
1916D-47. 

—right  to  enjoin  sale  under  mortgage  or 
trust  deed  on  ground  of  conflicting 
liens  or  rights  or  because  of  disputed 
title,    1917D-125. 

— subrogation  of  purchaser  at  invalid 
foreclosure  sale  to  rights  of  mortgagee 
or  other  claimant,  1917D-576. 

Fixtures:  gas  or  electric  appliances  as  fix- 
ture«  as  between  mortgagor  and  mort- 
gagee, 1917B-185. 

Fraudulent  conveyances:  mortgagee  as 
creditor  entitled  to  attack  conveyance 
of  same  or  other  property  by  mort- 
gagee, 1917C-953. 

Gifts:  validity  of  gift  of  mortgage  inter 
vivos  without  writing,  1916C-814. 

Homestead:  validity  and  effect  of  mort- 
gage of  homestead  without  joinder  or 
consent  of  wife,  1917A-71, 

Husband  and  wife:  right  of  married 
woman  to  mortgage  property  as  se- 
curity for  husband's  debt,  1917B-604. 

Mechanics'  liens:  loss  of  mechanic's  lien 
by  taking  mortgage  security,  1916D- 
179. 

—mechanic's  lien  on  realty  for  improve- 
ments made  by  mortgagor,  1916C— 
1135. 

Mortgagee  of  premises  as  necessary  party 
defendant  to  action  to  foreclose  me- 
chanic's lien,  1918B-19. 

Purchase-money  mortgages:  priority  as  be- 
tween purchase-money  mortgage  .and 
other  lien  or  claim,  1916C-945. 

Bent:  liabilitv  of  mortgagee  of  leasehold 
interest  for  rent,  1916E-813. 

Taxation:  validity  of  exemption  from  tax- 
ation of  money  loaned  on  mortgage 
security,  1916E-757. 

Trusts   and   trustees:    power   of  trustee  to 
mortgage   trust   property,   1916C-606. 
See  also  Marshaling  Assets. 

MOTIONS. 
See  New  TriaL 

MOTIVE. 
See   Malice;    Municipal  Corporations. 


MOTOECYCLES. 


Law  of  motorcycles,  1917A-218. 

Bights  and  duties  of  person  driving  auto- 
mobile in  highway  with  respect  to 
motorcycle,  1916E-676. 

MOTOE  VEHICTLES. 
See  Automobiles;  Motorcycles. 

MOVING  BUILDINGS. 
See  Streets  and  Highways. 

MOVING   PICTUEES. 

Construction  of  lease  or  sale  of  moving 
picture   films,   1916C-307. 

Construction  of  theater  lease  in  connection 
with  exhibition  of  moving  pictures, 
1916C-307. 

English  cinematograph  act,  1916C-309. 

Statutory  regulation  of  moving  pictures, 
1916C-301. 

Unlawful  use  of  portrait  or  name  in  mov- 
ing picture,  1916C-308. 
See  also  Theaters  and  Amusements. 

MUNICIPAL  COEPOEATIONS. 

Animals:  validity  of  ordinance  regulating 
keeping  of  cattle  within  municipal 
limits,  1917E-929. 

Automobiles:  municipal  regulation  of  au- 
tomobiles with  respect  to  equipment, 
use  of  streets,  or  the  like,  1916E-1047. 

Billboards  and  signs:  municipal  regulation 
of  billboards  and  signs,  19160-491. 

Bricks:  municipal  regulation  of  manufac- 
ture of  bricks,  1917B-931. 

Business  enterprises:  power  of  municipal- 
ity to  construct  and  operate  munici- 
pal telephone  system,  1918A-380. 

— power  of  municipality  to  engage  in  busi- 
ness of  furnishing  fuel  to  inhabitants, 
1916C-742. 

— power  of  municipality  to  operate  plant 
for  purpose  of  furnishing  ice  to  inhab- 
itants, 19160-1287. 

— right  of  municipality  to  enter  into  busi- 
ness competition  with  citizen,  1918B- 
104. 

Carriers  of  goods:  validity  of  ordinance 
providing  for  reciprocal  demurrage, 
1916C-701. 

Carriers  of  passengers:  municipal  regu- 
lation  of   jitney  buses,   19170-1051. 

Charities:  validity  of  ordinance  regulating 
solicitation  of  funds  for  private  char- 
ity, 1917D,  1133, 

Claims:  infancy  or  other  disability  of 
claimant  as  suspending  limitation  of 
time  for  filing  claim  against  munici- 
pality, 19160-1042. 

•^notice  to  municipality  as  prerequisite  to 
action  for  injurv  to  wife  or  child  of 
plaintiff,  1916E-560. 

— sufficiency  of  statutory  notice  of  claim 
against   municipality   with  respect   to 


INDEX  TO  THE  NOTES. 


75 


MUNICIPAL  CORPORATIONS  —  Con- 
tinued. 

name  and  address  of  claimant,  1916E- 
722. 

Commission  form  of  municipal  govern- 
ment, 1917C-1103 

Commission  merchants:  validity  of  mu- 
nicipal regulation  of  commission  mer- 
chants,  1917B-631. 

Contracts:  implied  liability  of  municipal- 
ity under  contract  let  contrary  to 
statute  requiring  competitive  bidding, 
1917A-1263. 

— liability  of  municipality  or  officer  for 
failure  to  take  from  contractor  bond 
for  protection  of  laborers  or  material- 
men, I917B-I089. 

— ^mandamus  as  remedy  in  behalf  of  mu- 
nicipality to  compel  performance  of 
contractual  obligation,  1918A-915. 

— necessity  for  readvertisement  where 
bidder  to  whom  municipal  contract  is 
awarded  fails  to  comply  with  condi- 
tions  or  abandons  work,   1916D-1189. 

— power  of  municipality  to  enter  into 
partnership  contract  for  construction 
of  improvement,  1916C-909. 

— rights  of  parties  with  respect  to  certi- 
fied check  or  other  deposit  made  with 
bid.  1916C-427. 

Council:  legality  of  action  by  majority  of 
quorum  of  municipal  council,  1916E- 
274. 

— right  of  member  of  municipal  council 
-to  vote  on  matter  involving  his  per- 
sonal interest,  1917C-518, 

Courts:  effect  of  partial  invalidity  of  stat- 
ute relating  to  municipal  courts, 
19I6D-43. 

Debt  limit:  interest  on  municipal  bonds 
as  factor  in  determining  whether  mu- 
nicipality has  exceeded  constitutional 
debt  limit,  1918B-598. 

— right  of  municipality  to  contract  for 
local  improvement  with  special  assess- 
ment against  persons  benefited  where 
cost  exceeds  authorized  debt  limit, 
1917B-192. 

Dedication:  necessity'  for  acceptance 
where  land  is  dedicated  to  public  use 
by  municipality,   1917D-452. 

Detectives:  municipal  regulation  of  pri- 
vate detectives,  1917A-584. 

Drainage:  power  of  court  to  compel  mu- 
nicipality to  remove,  construct  or  en- 
large sewer,  1917E-308. 

Eggs:  validity  and  construction  of  ordi- 
nance regulating  sale  of  eggs,  1918A- 
181. 

Elections:  effect  of  partial  invalidity  of 
statute  relating  to  municipal  elections, 
1916D-52. 

Electricians:  municipal  regulation  of  elec- 
tricians, 1916E-694. 

Employees:  municipal  employment  as 
within  purview  of  workmen's  compen- 
sation act,  1917D-26. 


MUNICIPAL  CORPORATIONS  —  Con- 
tinued. 

Palse  pretenses:  fraud  on  municipality  as 
constituting  attempt  to  obtain  money 
by  false  pretenses,  1417B-1232. 

Fire  insurance:  effect  of  local  ordinance 
on  regulation  on  liability  under  fire 
insurance   policy,   1917B-1250. 

Hotels,  etc.:  validity  of  statute  or  ordi- 
nance licensing  or  regulating  hotels, 
lodging  or  rooming  houses,  or  the  like, 
1916C-290. 

Ice-cream:  municipal  regulation  of  ice- 
cream, 1917B-645. 

Loan  brokers:  municipal  regulation  of 
personal  property  loan  brokers, 
1916E-618. 

Meat:  municipal  regulation  of  meat  deal- 
ers, 1917A-198. 

Officers:  abatement  of  mandamus  against 
municipal  officer  by  termination  of 
respondent's  office,  1918A-1002. 

— power  of  body  having  authority  to  re- 
move public  officer  to  appoint  com- 
mittee to  conduct  hearing,  1916C- 
1273. 

— right  of  de  jure  office  to  recover  from 
municipality  salary  paid  to  de  facto 
officer  during  latter's  incumbency, 
1917D-1137. 

— validity  of  act  of  municipal  officer 
performed  on  holiday,  1916E-848. 

Ordinances:  effect  of  partial  invalidity  of 
ordinance,   1916D-14. 

' — ^judicial  inquiry  into  motives  prompting 
enactment  of  legislative  ordinance, 
1917B-834. 

— nature  of  action  or  proceeding  for  viola- 
tion of  municipal  ordinance,  1917A- 
330. 

— opinions,  acts,  etc.,  of  members  of  coun- 
cil as  aid  to  interpretation  of  ordi- 
nance, 1917B-829. 

— ordinance  as  "law,"  1917C — 687. 

— right  of  municipality  to  appeal  from 
judgment  in  prosecution  for  violation 
of  ordinance,  1917D-986. 

— right  of  municipality  to  enjoin  violation 
of  municipal  ordinance,  1916C-963. 

— right  of  private  person  to  arrest  an- 
other for  violation  of  municipal  ordi- 
nance committed  in  his  presence, 
1917A-590. 

— validity  of  ordinance  adopted  or  pub- 
lished on  holiday,  1916E-849. 

— validity  of  ordinance  providing  that 
certain  state  of  facts  shall  constitute 
prima  facie  evidence  of  violation 
thereof,    1916C-1062. 

Parades:  validity  of  ordinance  regulating 
parades  or  processions,  1916D-847. 

Partial  invalidity  of  statute:  effect  of  par- 
tial invalidity  of  statute  relating  to 
municipal  corporations,   1916D-71. 

■ — effect  of  partial  invalidity  of  statute 
relating  to  municipal  taxation, 
1916D-93. 


76 


DIGEST. 

1916C— 1918B. 


Con- 


MTTNICIPAIi       COEPOEATIONS 

tinued. 

Paupers:  liability  of  municipality  to  in- 
dividual for  medical  attendance  fur- 
nished  pauper,   1916D-183. 

Police:  policeman  as  public  officer,  1917B- 
663. 

— ^validity  of  statutes  creating  metro- 
politan police,   1917D-1112. 

Privies:  validity  of  ordinance  regulating 
out-of-door  closets  or  privies,  1916D- 
212. 

Public  administrators:  liability  of  munici- 
pality few  acts  of  public  administra- 
tor, 1918I>-1074. 

Public  service  corporations;  review  by 
public  service  commissions  of  munici- 
pal regulation  of  public  service  corpo- 
ration,  1916E-1083. 

Bailroads  and  street  railways:  power  of 
municipality  to  compel  railroad  or 
street  railway  to  repair  bridge  within 
municipal  limits,  1916C-1171. 

Second  hand  clothing,  etc.:  municipal 
regulation  of  use  or  sale  of  second 
hand  clothes,  bedding,  or  the  like, 
1917C-1068. 

Schools:  liability  of  municipal  corpora- 
tion or  school  board  for  defective 
condition  of  public  school  premises, 
1917D-797. 

Smoke:  validity  of  smoke  ordinance  or 
statute,   1918B-173. 

Streets:  care  required  of  driver  of  street 
car  or  other  vehicle  to  avoid  collision 
with  "fire  apparatus,  1918A-290. 

— constitutionality  of  ordinance  regulat- 
ing speed  of  vehicles  in  streets  and 
highways,    1916E-1067. 

— ^fruit  stand  or  similar  structure  on  pub- 
lic highway  as  nuisance,  1916D-773. 

— law  of  road  as  applicable  with  respect 
to  one  using  highway  for  play, 
1917C-454. 

— liability  as  for  negligence  of  person 
obstructing  highway  under  statutory 
or  municipal  authority,  1917A-1003. 

— liability  of  municipality  for  injuries 
sustained  by  pedestrian  from  coal 
hole  in  sidewalk,  1917D-494. 

— liability  of  municipality  for  tort  com- 
mitted in  cleaning  streets  or  in  re- 
moval of  garbage,  ashes,  or  other 
refuse,   1916C-242. 

— ^personal  liability  of  public  officer  for 
injuries  caused  by  defective  condi- 
tion of  street  or  highway,  1917D- 
939. 

— revocation  or  expiration  of  right  of 
electric  company  to  maintain  poles 
and  wires  in  street,  1917E-525. 

— right  of  abutting  owner  to  damages  for 
change  of  street  to  established  grade 
where  he  improves  propertv  after 
grade  is  established,  1916D-1143. 

- — speed  or  other  highway  restriction  as 
applicable  to  fire  apparatus,  1917D- 
565. 


MUNICIPAL  CORPORATIONS  —  Con- 
tinued. 

Streets:  statute  conferring  on  public  ser- 
vice commission  power  to  fix  rates  for 
public  service  corporations  as  inter- 
ference with  municipal  control  of 
highways,    1917C'-62. 

— stopping  or  leaving  vehicle  in  danger- 
ous place  in  street  as  negligence  pre- 
cluding recovery  for  resulting  in- 
juries, 1917C-1229. 

— ^use  of  highway  by  traction  engine, 
1917E-798. 

— use  of  streets  for  moving  buildines. 
1917C-77.  *  ' 

— ^validity  of  inclusion  of  several  streets 
in  one  improvement,  1916I>-4o5. 

— validity  of  ordinance  prohibiting  use  of 
streets  by  business  vehicles,  1916E- 
969. 

Taxation:  municipal  property  as  sulyject 
to  special  assessment,   1917D-S49. 

Transient  merchants:  municipal  regulation 
of  transient  merchants,  1917E-50o. 

Warrants:  interest  on  city  wa^-rants. 
1916C-576. 

Waterworks:  power  to  compel  extension 
of  water  system,  1916D-28o. 

MURDER. 
See  Homicide. 

MUTUAI.  INSURANCE. 

Set-off  against  receiver  of  mutual  insur- 
ance company,  1916D-600. 


NAMES. 

Change  of  name:  change  of  name  of  cor- 
poration as  releasing  subscriber  to 
stock,  1918A-79. 

— validity  and  construction  of  statute  au- 
thorizing change  of  name  by  indi- 
vidual, 1917A-437. 

Identity  of  name:  conflict  between  pre- 
sumption of  identity  of  person  from 
identity  of  name  and  another  pre- 
sumption, 1917E-121, 

— delivering  papers  or  documents  to  person 
of  same  name  as  working  estoppel 
against  owner,  1917A-562. 

"S":  addition  or  omission  of  final  "s"  as 
affecting  application  of  doctrine  of 
idem  sonans,  1918A-351. 

"Sr."  or  "Jr.":  effect  of  use  of  "Sr."  or 
".Tr."  in  connection  with  name,  1917A- 
1211. 

Wills:  sufficiency  of  signature  of  testator 
to  will  bv  wrong  or  assumed  name, 
I917B-876. 

See  also  Bonds;  Deeds;  Judicial  Sales; 
Municipal  Corporations;  Societies  and 
Clubs;  Trademarks  and  Trade  Names. 


NAMING  WITNESS. 
See  Depositions. 


INDEX  T.O  THE  NOTES. 


77 


NAPHTHA. 

Storage  of  naphtha  as  nuisance,  1916C- 
820. 

NARCOTICS. 
See  Food  and  Drugs. 

NATIONAL  BANES. 

Examiners  of  national  banks,  1916E-222. 
Jurisdiition    of     action    against     national 

bank   to  recover    penalty   for    taking 

usurious  interest,  1916D-1246. 
Liability  of  national  bank  on  contract  of 

guaranty,  1916D-557. 
Liability    of    national   bank   on    letter   of 

credit,  1916D-559. 

NATIONAL  FOREST  RESERVE. 
See  Trees  and  Timber. 

NATIONAL  GUARD. 
See  Militia. 

NATIONAL  PROPERTY. 
See  Federal  Government. 

NATURAL  GAS. 
See  Ga£. 

NATURAL  HEIRS. 

Meaning  of  term  "natural  heirs,"  1917A- 
1159. 

.     NATURALIZATION. 

"Child"  in  statute  relating  to  naturaliza- 
tion of  Indians  as  including  illegiti- 
mate child,  1918B-256. 

Grounds  for  revocation  of  naturalization, 
1917C-45. 

Naturalization  of  alien  enemy,  1917C-214. 

NAVIGABLE  WATERS. 
See  Waters  and  Watercourses. 

NAVY. 

See  Army  and  Navy. 

NAVY  YARD. 
See  Army  and  Navy. 

NECESSITY. 
See  Judges. 

NEGATIVE  PREGNANT. 
See  Pleading. 

NEGLIGENCE. 

Adjoining  landowners:  liability  of  land- 
owner excavating  on  his  own  premises 


NEGLIGENCE— Continued. 

for  resulting  injury  to  adjoining  build- 
ing, 1917A-352. 

Agriculture:  duty  of  owner  to  destroy 
noxious  weeds  on  his  land,  1917A-183. 

Animals:  liability  as  for  negligence  of 
owner  of  uninclosed  land  for  injury  to 
domestic  animal  straying  thereon, 
1917A-288, 

— ^liability  for  injuries  by  bees,  1917B-988. 

— liability  for  injuries  to  or  by  cat,  1917A- 
391. 

— liability  of  owner  for  injuries  caused  by 
runaway  horse,  1916E-1114. 

Army  and  navy:  civil  liability  of  soldier 
or  militiaman  for  injury  to  person  or 
property,  1917C-S. 

Assault:  liability  as  for  negligence  of 
person  who  injures  bystander  while 
acting  in  self-defense,  1916C-1150. 

— ^liability  of  sureties  on  bond  of  sheriff  or 
constable  for  assault  committed  by 
officer,  1916D-923. 

Attorneys:  liability  of  attorney  for  negli- 
gence or  breach  of  duty,  1917B-3. 

Automobiles:  application  of  last  clear 
chance  doctrine  to  collision  between 
automobile  and  street  car,  1916E-ol5. 

— liability  of  maker  of  automobile  to  third 
persons  for  defective  construction 
thereof,  1917E-584. 

— liability  of  owner  of  automobile  for  act 
of  driver  other  than  his  servant  or 
child,  1917E-228. 

^liability  of  owner  of  automobile  for  actg 
of  his  chauffeur  or  agent,  1917D-1001. 

— rights  and  duties  of  persons  driving  au- 
tomobiles in  highways,  1916E-661. 

Banks:  liability  of  bank  examiner  for 
breach  of  duty,  1916E-220. 

— negligence  of  subagent  as  affecting  lia- 
bility of  bank  for  failure  to  protest 
paper  received  for  collection,  19I8A- 
900. 

Bathing  resorts:  duty  to  patrons  of  pro- 
prietor of  bathing  resort  or  beach, 
1917B-333. 

Bridges:  liability  for  injury  to  bridge 
caused  by  vessel,  1917B-938. 

Buildings:  liability  of  owner  for  injuries 
caused  by  collapse  of  building,  1917A- 
478. 

— liability  of  owner  of  building  for  injury 
to  pedestrian  resulting  from  erection 
of  scaffold  for  repairing  or  painting 
building,  1916C-123. 

Carriers  of  goods:  liability  of  carrier  of 
goods  for  damages  caused  by  act  of 
God  co-operating  with  its  own  negli- 
gence, 1918A-581. 

— measure  of  damages  for  carrier's  delay 
in  transporting  goods  resulting  in  de- 
preciation in  value,  1917D-164. 

—validity  of  statute  imposing  penalty  on 
carrier  of  goods  for  failure  to  pay 
claim  within  certain  time.  1916D-335. 

Carriers  of  live  stock:  liability  of  carrier 
of  live  stock  for  injury  to  stock  where 
shipper  loads  stock  improperly,  1916E- 
1203. 


78 


DIGEST. 

1916C— 1918B. 


NEGUGENCE — Continued. 

Carriers  of  live  stock:  validity  of  statute 
imposing  penalty  on  carrier  of  live 
stock  for  failure  to  pay  claim  within 
certain  time,  1916D-335. 

Carriers  of  passengers:  contributory  negli- 
gence of  passenger  in  alighting  from 
street  -car  and  passing  to  rear  of  it 
across  parallel  tracks  without  looking 
for  approaching  car,  1916E-998. 

•—contributory  negligence  of  passenger  in 
permitting  part  of  his  body  to  pro- 
trude from  car,  1916C-1218. 

• — duty  and  liability  of  carrier  to  passenger 
taken  sick  during  transit,  1916C-862. 

— duty  and  liability  of  carrier  with  re- 
spect to  insane  passenger,  1916E-256. 

— duty  of  carrier  to  give  passenger  notice 
of  and  time  to  make  change  of  cars, 
1917D-488'. 

— duty  of  carrier  to  provide  safe  place  fox 
delivery  of  baggage  to  passenger, 
1916C-1213. 

— duty  of  railroad  to  put  passenger  off  at 
destination  not  stopping  station, 
1916E-1220. 

— failure  of  carrier  to  enforce  rule  as 
affecting  contributory  negligence  of 
passenger  in  violation  thereof,  1916E- 
1308. 

— ^liability  of  carrier  by  water  for  injury 
to  or  death  of  passenger  falling  over- 
board, 1917D-1038. 

— ^liability  of  carrier  for  injury  to  passen- 
ger caused  by  slipping  on  banana  peel 
or  the  like,  1916E-1087. 

— ^liability  of  carrier  of  passengers  for  act 
of  God  co-operating  with  its  own  negli- 
gence, 1918A-581. 

— Pliability  of  carrier  of  passengers  with  re- 
spect to  appliances  purchased  from 
manufacturer,  1916E-929. 

— liability  of  carrier  to  person  riding  on 
drover's  pass  or  in  charge  of  stock, 
1917E-149. 

— liability  of  railroad  company  to  person 
wrongfully  riding  on  train  by  permis- 
sion or  direction  of  railroad  employee, 
1917C-358. 

— operating  car  or  train  with  insuflRcient 
number  of  employees  as  negligence  on 
part  of  carrier  of  passengers,  1917C- 
73. 

^presumption  of  negligence  from  collision 
resulting  in  injury  to  passenger,  1917C- 
634. 

— when  intending  passenger  actually  be- 
comes such,  1917C-1206. 

Chattel  mortgages:  right  of  action  of 
chattel  mortgagor  against  third  per- 
son for  injury,  etc.,  to  chattels,  1917D- 
554. 

Confusion  of  goods:  tortious  or  wrongful 
confusion  of  goods,  1918A-740. 

Contributory  negligence:  contributory  neg- 
ligence as  defeating  recovery  where 
previous  negligence  of  defendant  has 
incapacitated  him  from  avoiding  in- 
jury to  plaintiff,  1916D-501. 


ITEGUGENCE — Continued. 

Contributory  negligence:  contributory  neg- 
ligence as  precluding  recovery  for  in- 
juries sustained  on  defective  wharf, 
1916C-157. 

— contributory  negligence  in  attempt  to 
save  human  life,  1917C-654. 

Death  by  wrongful  act:  admissibility  in 
action  for  death  by  wrongful  act  of 
evidence  of  domestic  relations  of  de- 
ceased, 1916C-671. 

— admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  habits  or 
physical  condition  of  deceased,  1916E- 
652. 

— admissibility  in  action  for  death  by 
wrongful  act  of  evidence  of  property 
inherited  by  plaintiff  from  deceased, 
1916D-340. 

— admissibility  in  action  for  death  by 
wrongful  act  of  mortality  tables  to 
show  probable  duration  of  life,  1918A- 
1021. 

— admissibility  of  coroner's  verdict  as  evi- 
dence in  action  for  death  by  wrongful 
act,  1917B-897. 

— "child"  in  statute  relating  to  death  by 
wrongful  act  as  including  illegitimate 
child,  1918B-255. 

—commencement  of  running  of  statute  of 
limitations  against  action  for  death  by 
wrongful  act,  19I6C-713. 

— damages  for  death  by  intoxication, 
1917B-530. 

— death  of  human  being  as  element  of  re- 
covery in  civil  action  between  third 
persons,.  1917B-886. 

— ^pleading  statute  of  limitations  in  action 
for  death  by  wrongful  act,  1916D- 
1241. 

" — right  of  action  within  jurisdiction  as 
suflSeient  property  right  to  warrant 
grant  of  administration,  1917C-1217. 

— right  of  parent  to  recover  for  death  of 
illegitimate  child,  1916C-720. 

— right  of  person  other  than  parent  to  re- 
cover for  death  of  illegitimate  child, 
1916E-454. 

— validity  of  statute  providing  for  sur- 
vival of  action  for  personal  injuries 
after  death  of  person  injured,  1917E- 
1171. 

Detectives:  civil  liability  of  private  detec- 
tive or  his  employer,  1917A-584. 

Electricity:  duty  and  liability  of  one 
maintaining  electric  wires  in  reference 
to  children,  1917A-895. 

— liability  of  electric  light  company  for 
■  injuries  resulting  from  condition  of 
inside  wiring  or  apparatus,  1917A- 
1175. 

Escrows:  effect  on  rights  of  parties  of  un- 
authorized delivery  by  escrow  holder, 
1917E-427. 

Explosions  and  explosives:  injury  to  prop- 
erty bv  concussion  or  vibration  result- 
ing from  blasting,  1916C-1176. 

— liability  as  for  negligence  of  one  throw- 
ing away  small  quantity  of  explosivej 
1917B-345. 


INDEX  TO  THE  NOTES. 


79 


NEOIJGENCE — Continued. 

Fidelity  insurance:  what  constitutes  negli- 
gence of  employee  within  policy  of 
fidelity  insurance,  1917C-434. 

Fire  department:  care  required  of  driver 
of  street-car  or  other  vehicle  to  avoid 
collision  with  fire  apparatus,  1918A- 
290. 

Fire-escapes:  duty  to  maintain  fire-escapes, 

1916E-629. 
Fire  insurance:  liability  of  fire  insurance 

patrol  in  tort,  1917E-684. 
— negligence  of  watchman  on  premises  as 

forfeiting  fire  insurance  policy,  1917D- 

822. 

Fires:  liability  for  fire  caused  by  station- 
ary engine,  furnace,  or  the  like, 
1917C-771. 

— validity  of  statute  making  railroad  abso- 
lutely liable  for  damage  by  fire,  1918A- 
632. 

Food  and  drugs:  liability  for  injury  result- 
ing from  foreign  substance  in  bever- 
age, 1917B-575. 

— liability  for  injury  resulting  from  for- 
eign substance  in  food,  1918B-22o. 

Gas:  liability  of  gas  company  for  injury 
caused  by  escape  of  gas  from  pipes, 
1916E-277. 

Hospitals  and  asylums:  right  to  damages 
for  unlawful  detention  in  hospital  or 
institution  for  insane,  1917C-162. 

Husband  and  wife:  right  of  husband  to  re- 
cover for  loss  of  consortium  in  action 
for  personal  injuries  to  wife  where 
statute  gives  wife  right  of  action  for 
such  injuries,  1916C-886. 

Imputed  negligence:  negligence  of  driver 
as  imputable  to  occupant  of  automo- 
bile, 1916E-268. 

— negligence  of  driver  as  imputable  to  oc- 
cupant of  vehicle,  1916E-685. 

Infants:  liability  for  injury  to  infant  steal- 
ing ride  on  vehicle,  1917D-379, 

Innkeepers:  liability  of  innkeeper  to  guest 
for  injuries  sustained  by  latter  in  fire 
1917A-143. 

Insurance  agents:  liability  of  agent  to  in- 
surance company  for  failure  to  collect 
premium,  1916D-651. 

- — liability  of  agent  to  insurance  company 
for  issuing  policy  in  violation  of  in- 
struction, 1917B-493. 

— liability  of  insurance  agent  to  owner  of 
property  for  failure  to  procure  insur- 
ance, 1918B-1037. 

Irrigation:  liability  of  owner  of  irrigation 
ditch  for  damages  arising  from  its  con- 
struction and  maintenance,  1916D-981. 

Landlord  and  tenant:  duty  of  landlord  to 
light  passageway  common  to  tenants, 
1917E-596, 

Life  estates:  right  of  life  tenant  to  re- 
cover damages  for  injury  both  to  life 
estate  and  inheritance,  1916C-881. 

Master  and  servant:  admissibility  in  pro- 
ceeding under  workmen's  compensation 
act  of  statement  by  injured  employee 
respecting  cause  of  injury,  1916C-775. 


NEGLIOENCE— Continued. 

Master  and  servant:  award  or  right  to 
compensation  under  workmen's  com- 
pensation act  as  vesting  in  beneficiary. 
•    1917D-1169. 

— award  to  minor  under  workmen's  com- 
pensation act  as  affecting  right  of  ac- 
tion by  parent,  1916D-1172. 

— "child"  in  workmen's  compensation  act 
as  including  illegitimate  child,  I91SB- 
258. 

— constitutionality  of  workmen's  compen- 
sation act,  1918B-611. 

— disease  as  accident  under  workmen's 
compensation  act,  1918B-309. 

— duty  and  liability  of  master  to  servant 
with  respect  to  animal  furnished  by 
him  to  servant,  1917A-309. 

— duty  of  railroad  company  to  block  frogs, 
switches  and  guard  rails,  1916E-642. 

— effect  on  relation  of  employee  as  such 
of  his  stopping  work  temporarily  for 
his  own  purposes,  1918A-1194. 

— employees  entitled  to  protection  under 
federal  employers'  liability  act,  1916E'- 
472;  1918B-55. 

— existence  of  relation  of  employer  and 
employee  under  federal  employers'  lia- 
bility act,  1918B-46. 

— increase,  decrease,  termination  or  sus- 
pension of  allowance  under  workmen's 
compensation  act,  1916E-8S9:  1918B- 
733. 

— intoxication  of  employee  as  precluding 
recovery  under  workmen's  compensa- 
tion act,  1918B-686. 

— ^liability  of  automobile  owner  to  chauf- 
feur for  personal  injuries,  1916E-1090. 

— liability  of  master  for  injuries  to  domes- 
tic servant,  1917D-499. 

— location  of  mail  crane  near  railroad 
track  as  actionable  negligence,  1916E- 
717. 

— lump  sum  award  under  workmen's  com- 
pensation act,  19I8B-694. 

— maritime  employees  as  within  purview 
of  workmen's  compensation  act,  1918B- 
661. 

— meaning  of  phrase  "average  weekly 
earnings"  in  workmen's  compensation 
or  similar  act,  1918B-640. 

— meaning  of  "plant"  as  used  in  employers' 
liability  act,  1917A-324. 

— meaning  of  "plant"  as  used  in  workmen's 
compensation  act,  1917A-323. 

— necessity  of  election  between  federal 
employers'  liability  act  and  state  stat- 
ute or  common  law,  1917A-1270. 

— necessity  that  servant  be  acting  in  course 
of  employment  when  injured  in  order 
to  recover  under  employers'  liability 
act,  1918A-1070. 

— notice  of  injury  under  workmen's  com- 
pensation act,  1917D-867. 

— occupations  of  employments  within  pur- 
view of  workmen's  compensation  acts, 
1917D-4. 

— person  employed  in  violation  of  law  as 
entitled  to  compensation  under  work- 
men's compensation  act,  1918B-679. 


80 


DIGEST. 

1916C— 1918B. 


NEGLIGENCE — Continued. 

Master  and  servant:  provisions  in  work- 
men's compensation  acts  respecting 
medical  examination  of  workmen, 
1918B-e70. 

— railroad  employees  as  within  purview  of 
workmen's  compensation  act,  191SB- 
664. 

— receipt  of  insurance  or  other  benefit  as 
affecting  right  to  compensation  under 
workmen's  compensation  act,  1918B-* 
635. 

•^residence  of  beneficiary  as  affecting 
right  to  compensation  under  workmen's 
compensation  act,  1918B-634. 

— review  of  facts  on  appeal  under  work- 
men's compensation  act,  1918B-647. 

— ^right  to  and  effect  of  election  with  re- 
spect to  acceptance  of  provisions  of 
workmen's  compensation  act,  1918B- 
715. 

— ^right  to  compensation  under  workmen's 
compensation  act  as  dependent  on  loss 
of  earning  capacity,  1917E-156. 

— running  train  on  wrong  or  unusual  track 
as  negligence,  1917A-936. 

— tips  as  part  of  earnings  or  wages,  1918B- 
1122. 

— total  disability  under  workmen's  com- 
pensation act,  1917E-240. 

— validity  of  verdict  by  less  than  whole 
number  of  jurors  in  action  under  fed- 
eral employers'  liability  act,  1916E- 
504. 

— what  constitutes  "loss"  of  eyesight 
within  workmen's  compensation  act, 
1918A-533. 

— what  constitutes  "loss"  of  limb  or  part 
thereof  within  workmen's  compensa- 
tion act,  1918A-536. 

—what  is  accident  arising  out  of  and  in 
course  of  employment  within  meaning 
of  workmen's  compensation  act,  1918B- 
768. 

— what  is  "injury"  or  "personal  injury" 
within  meaning  of  workmen's  compen- 
sation act,  1918B-362. 

— what  statutes  are  impliedly  repealed  by 
state  employers'  liability  or  workmen's 
compensation  act,  1916E-773. 

— who  is  "dependent"  within  workmen's 
compensation  act,  1918B-749. 

— who  is  "workman"  within  meaning  of 
workmen's  compensation  act,  1918B- 
704. 

— ^workmen's  compensation  act  as  appli- 
cable to  injury  arising  from  war, 
1917C-760. 

— workmen's  compensation  act  as  appli- 
cable to  injury  received  in  another 
jurisdiction,  19186-625. 

— workmen's  compensation  act  as  retro- 
active in  operation,  1918B-617. 

Mines  and  minerals:  liability  of  mine 
owner  or  operator  for  injuries  result- 
ing from  unguarded  mining  excava- 
tions, 1916E^84. 

Motorcycles:  liability  for  negligent  opera- 
tion of  motorcycle,  1917A-218. 


NEGLIGENCE— Continued. 

Municipal  corporations:  notice  to  munici- 
pality as  prerequisite  to  action  for  in- 
jury to  wife"  or  child  of  plaintiff, 
1916E-560. 

— sufficiency  of  statutory  notice  of  claim 
against  municipality  with  respect  to 
name  and  address  of  claimant,  1916E- 
722. 

Owners  of  premises:  liability  of  landowner 
for  injury  to  trespassing  child  on  ac- 
count of  unguarded  pond,  pool,  well, 
etc.,  1916C-1085. 

— ^liability  of  proprietor  for  injuries  re- 
ceived in  turnstile,  revolving  door,  or 
swinging  door,  1916D-1235. 

Physicians  and  surgeons:  consent  as  affect- 
ing right  to  perform  surgical  operation, 
1916C-110O. 

— failure  of  surgeon  to  make  test  before 
operation    as   malpractice,    1918A-883. 

— ^indemnity  insurance  against  liability  of 
physician  for  malpractice,  1916E-1159. 

— liability  of  physician  for  malpractice  in 
making  wrong  diagnosis,  1917D-708. 

— what  is  excessive  or  inadequate  verdict 
in  action  against  physician  for  mal- 
practice, 1916C-1078. 

Pleading:  inconsistent  defenses  in  action 
growing  out  of  negligence,  1917C-736. 

Public  officers:  neglect  of  duty  as  affect- 
ing right' of  public  officer  to  salary, 
1918B-435. 

— personal  liability  of  public  administrator 
for  injurv  to  property  administered, 
1918B-1072. 

Eailroads:  liability  of  railroad  company 
for  injuries  caused  by  operation  of 
hand  car,  1916E-321. 

— ^liability  of  railroad  company  for  per- 
sonal injuries  caused  by  objects  thrown 
or  falling  from  train,  1917D-540. 

— liability  of  railroad  to  person  on  or  near 
right  of  way  injured  by  suction  from 
passing  train,  1918A-8'72. 

— ^running  train  without  headlight  as  neg- 
ligence towards  person  on  track  at 
place  other  than  crossing,  1918-^-1181. 

Belease  and  discharge:  avoidance  of  re- 
lease of  claim  for  personal  injuries  on 
account  of  misstatements  by  physician 
as  to  nature  of  injuries.  1918A-358. 

Eestaurants:  liability  as  for  negligence  of 
proprietor  of  restaurant  or  lunch  room 
to  person  injured  bv  eating  therein, 
1916D-921. 

Schools:  liability  of  municipal  corporation 
or  school  board  for  defective  condition 
of  public  school  premises,  1917D-797. 

Ships  and  shipping:  right  to  recover  dam- 
ages for  loss  of  use  of  vessel  resulting 
from  collision  without  total  loss, 
1917B-999. 

Street  railways:  application  of  last  clear 
chance  doctrine  to  collision  between 
automobile  and  street-car,  1916E-51o. 

— liability  of  street  railway  company  for 
injuries  caused  by  striking  pedestrian 
in  rounding  curve,  1916E-679. 


INDEX  TO  THE  NOTES. 


81 


NEGLIGENCE— Continued. 

Streets  and  highways:  application  of  doc- 
trine of  res  ipsa  loquitur  to  injury  to 
person  in  highway  caused  bv  fall  of 
wall  or  portion  thereof,  1916E-1073. 

—law  of  road  as  applicable  with  respect 
to  one  using  highway  for  play,  1917C— 
454. 

■ — legal  liability  for  injuries  sustained  by 
pedestrian  from  coal  hole  in  sidewalk, 
1&17D-494. 

— liability  as  for  negligence  of  person  ob- 
structing highway  under  statutory  oT 
municipal  authority,  1917A-1003. 

— liability  for  injuries  caused  by  door  or 
gate  opening  outwards  in  street, 
1916E-458. 

— liability  for  injuries  resulting  from  use 
of  highway  by  traction  engine,  1917E- 
798. 

• — liability  of  municipality  for  tort  com- 
mitted in  cleaning  streets  or  in  re- 
moval of  garbage,  ashes,  or  other 
refuse,   1916C-242. 

—personal  liability  of  public  officer  for  in- 
juries caused  by  defective  condition 
of  street  or  highway,  1917D-939. 

-i— stopping  or  leaving  vehicle  in  dangerous 
place  in  street  as  negligence  preclud- 
ing recovery  for  resulting  injuries, 
1917C-1229. 

— use  of  streets  for  moving  buildings, 
1917C-77. 

Telegraphs  and  telephones:  duty  of  tele- 
graph company  to  notify  sender  of 
delay  in  transmission  of  delivery  of 
message,  1917C-545. 

— liability  of  telegraph  company  for  dis- 
closure of  contents  of  message,  1916C- 
727. 

— liability  of  telegraph  company  for  re- 
fusal to  accept  message  for  transmis- 
sion, 1916D-467. 

Tenants  in  common:  right  of  one  tenant  in 
common  to  sue  for  damages  for  injury 
to  premises,   1918A-608. 

Theaters  and  amusements:  lial)ilit}'  of  or- 
ganizer or  promoter  of  public  enter- 
tainment not  given  for  profit  for  per- 
sonal injuries,  1917E-238. 

Waters  and  watercourses:  duty  of  one  ob- 
structing natural  watercourse  to  an- 
ticipate extraordinary  freshets  or 
floods,   1918A-1114. 

— liability  of  one  using  stream  to  float 
timber  for  resulting  injuries  to  ripar- 
ian owner,  1918A-732. 

Waterworks  and  water  companies:  liabil- 
ity for  injuries  caused  by  underground 
water  pipes,  1916C-1050. 

Wharves:  injuries  to  person  on  or  about 
wharves,  docks,  or  piers,  1916C-139. 

See  also  Act  of  God;  Argument  of  Counsel; 
Bankruptcy;  Damages;  Descent  and 
Distribution;  Imprisonment  for  Debt; 
Subrogation;  Taxation;  Telegraphs  and 
Ttlephones;  Torts. 


NEGOTIABLE  INSTEUMENTS. 
See  Bills  and  Notes. 

NEGBOES. 

Separation  of  white  and  colored  pupils  for 
purposes  of  education,  1916C-806. 

NEUTBAL  PORTS. 
See  War. 

NEUTBAL  PBOPEBTY. 
See  International  Law. 

NEWSPAPEBS. 

Communication   to   newspaper  reporter  as 

privileged  from  disclosure,  1916C-705. 
Newspaper  cartoon  as  libel,  1917E-190. 
Prejudicial      newspaper       publication     as 

ground    for    continuance    of     criminal 

case,  1918A-449. 
Publication  in  single  edition  of  newspaper 

as  sufficient  publication,  1917E-994. 

NEWTBIAL. 

Admission  of  incompetent  evidence  as 
ground  for  granting  of  new  trial  by 
trial  court,  1917D-545. 

Amendment  of  motion  for  new  trial, 
1917D-104. 

Exclusion  or  inclusion  of  Sunday  or  holi- 
day in  computation  of  time  for  motion 
for  new  trial,  1917E-934, 

Power  of  court  to  open  or  vacate  order  de- 
termining motion  for  new  trial,  19170- 
1151. 

Statutorv  right  to  new  trial  in  ejectment, 
1916E-556. 

See  also  Appeal  and  Error;  Jury;  Miscon- 
duct of  CounseL 

NITROGLYCERINE. 

Storage  of  nitroglycerine  as  nuisance, 
1916C-820. 

NOMINAL  HOLDERS. 
See  Bills  and  Notes. 

NONACCESS. 

See  Husband  and  Wife. 

NON  COMPOS  MENTIS. 
See  Insanity. 

NONEXISTENCE. 
See  Parties  to  Actions. 

NONEXPERT  EVIDENCE. 
See  Evidence. 


82 


DIGEST. 

1916C— 1918B. 


NONINTOXICATING  LIQUORS. 
See  Intoxicating  Liquors. 

NON-NAViaABLE  WATEBS. 

See  Waters  and  Watercourses. 

NONOCCUPATIONAL  DISEASE. 
See  Disease. 

NONRESIDENTS. 

See    Attachment;    Automobiles;    Fartner- 

sMp. 

NONSUPPOET. 
See  Husband  and  Wife. 


NONUSER. 

See  Easements. 

NORMAL  SCHOOLS. 

of   expenditure   of    school 


Validity 

for    maintenance 
1917C-921. 


of    normal 


funds 
school, 


NOTARY  PUBLIC. 

Personal  liability  of  attorney  for  notarial 

fees,  1917B-524. 
Right   of    woman    to    be    notary  public, 

1917D-534. 

NOTES. 
See  Bills  and  Notes. 

NOTICE. 

Alien  enemies:  sufficiency  of  notice  of  ac- 
tion against  alien  enemy,  1917C-212. 

Injunctions:  notice  as  prerequisite  to  issu- 
ance of  temporary  restraining  order, 
1917B-126. 

Sundays  and  holidays:  exclusion  or  inclu- 
sion of  Sunday  or  holiday  in  compu- 
tation of  time  for  publication  of  no- 
tice, 1917E-942.. 

— exclusion  or  inclusion  of  Sunday  or  holi- 
day in  computation  of  time  for  service 
and  return  of  notice,  1917E-935. 

— validity  of  notice  served  on  holiday, 
1916E-8oO. 

Telephones:  validity  of  notice  given  by 
telephone,  1917B-903. 

Written  notice:  necessity  that  notice  re- 
quired or  authorized  bv  law  be  in 
writing.  1916E-1147. 

See  also  Accident  Insurance;  Adverse 
Possession;  Bills  and  Notes;  Carriers 
of  Passengers;  Depositions;  Judicial 
Sales;  Municipal  Corporations;  Re- 
cording Acts;  Stock  and  Stockholders; 
Suretyship;  Taxation;  Workmen's  Com- 
pensation Acts. 

NOXIOUS  WEEDS. 
See  Agriculture. 


NUISANCES. 

nuisance,    1917B- 


Bees:    keeping   bees    as 
991. 

Brick  kiln  as  nuisance,  1917E-420. 

Carriers  of  passengers:  act  of  carrier  in 
permitting  cars  to  be  overcrowded  as 
constituting  nuisance,  I918A-994. 

Cemeteries:  equitable  relief  against  ceme- 
tery as  nuisance,  1917B-563. 

Corporations:  liability  of  corporation  to 
indictment  for  committing  nuisance, 
1916C-463. 

Estoppel:  acquiescence  in  or  consent  to 
erection  of  structure  as  precluding  ob- 
jection thereto  as  nuisance,  1916C- 
1235. 

Explosives:  storage  of  gasoline  or  other 
explosive  as  nuisance,  1916C-S20. 

Fertilizer:  place  for  storing  or  mixing  fer- 
tilizer as  nuisance,  1917D-1152. 

Fruit  stand  or  similar  structure  on  public 
highway  as  nuisance,  1916D-773. 

Injunctions:  right  of  state  to  enjoin  pri- 
vate nuisance  which  is  also  crime, 
19160-455. 

Malicious  prosecution:  institution  of  pro- 
ceeding to  abate  nuisance  as  ground 
for  action  for  malicious  prosecution,, 
1916E-493. 

Partial  invalidity  of  statute:  effect  of  par- 
tial invalidity  of  statute  relating  to 
nuisances,  19i6D-77. 

Privies:  validity  of  statute  or  ordi- 
nance regulating  out-of-door  closets  or 
privies,  1916D-212. 

NUMBER. 
See  Automobiles. 

NUMEROUS  INSTRUCTIONS. 
See  Instructions. 

NUNCUPATIVE  WILLS. 
See  Wills. 


State   regulation  of 
1917C-168. 


NURSING. 

practice   of    nursing, 


Validity    of 

phone,  1917B-90O. 


OATHS. 

oath    administered    by 


tele- 


OBLIGEE. 
See  Bonds. 

OBSCENITY. 

Criminal  liability  of  corporation  for  mail- 
ing obscene  matter,  19160-465. 

Inducement  to  commit  offense  of  selling 
obscene  matter  with  view  to  prosecu- 
tion therefor  as  defense  to  such  prose- 
cution, 19160-734. 

See  also  Breach  of  Peace. 


INDEX  TO  THE  NOTES. 


83 


OBSTRUCTIONS. 

See  Streets  and    Highways;    Waters  and 
Watercourses. 

OBTAINING  CLOTHES. 

Effect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  obtain 
clothes,  1918A-1196, 


OPINION  EVIDENCE. 

See  Evidence. 

OPINIONS. 
See  Courts;   Municipal  Corporations. 

OPIUM. 
See  Food  and  Drugs. 


OBTAINING  TOOLS. 

Effect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  obtain 
tool,  1918A-1197. 

OCCUPANCY. 
See  Fire  Insurance. 

OCCUPATIONAL  DISEASE. 
See  Disease. 

OFFENSIVE  LANGUAGE. 
See  Breach  of  Peace;  Disorderly  Conduct. 


OPTICIANS. 
See  Physicians  and  Surgeons. 

OPTIONS. 

Option  to  purchase  realty  as  violating  rule 
against  perpetuities,  1916D-577. 

OPTOMETRISTS. 
See  Physicians  and  Surgeons. 

OB. 

Construction   of  "and"   as   "or,"   and   vice 
versa^  in  construing  will,  1917C-306. 


OFFER   AND   ACCEPTANCE. 
See  Contracts. 


ORAL  TESTIMONT. 
See  Evidence. 


OFFER  OF  SETTLEMENT. 
See  Embezzlement;  Larceny. 


"OR  BEARER." 
See  Alteration  of  Instruments. 


OFFICER  OF  THE  REVENUE. 

Legal  meaning  of  "officer  of  the  revenue,'' 
1918B-220. 


OFFICERS. 
See  Army  and  Navy;  Corporations;  Jury; 
Municipal     Corporations;      Probation 
Officers;  Public  Officers. 

OIL. 

See  Mines  and  Minerals. 

OLEOMARGARINE. 

Person  selling  oleomargarine  as  "dealer," 
1917A-959. 

OPEN  AND  CLOSE. 

See  Trial.  • 

OPENING  JUDGMENTS. 
See  Judgments;  New  Trial. 

OPERATIONS. 

See  Physicians  and  Surgeons. 

OPINION. 

See  Fraud. 


"ORDER." 

See  Alteration  of  Instruments. 

ORDERS. 

Proof  by  parol  of  contents  of  lost  or  de- 
stroyed order,  1916D-254. 

Validity  of  order  of  court  sent  by  tele- 
phone, 1917B-903. 

See  also  Appearance;  New  Trial;  Public 
Service  Commissions. 

ORDINANCES. 
See  Municipal  Corporations. 

ORDINARY  REVENUE. 

Legal  meaning  of  "ordinary  revenue,** 
1918B-208. 

"OR  ORDER." 

See  Alteration  of  Instruments. 

ORGANIZERS. 
See  Theaters  and  Amusements. 

ORPHAN  ASYLUMS. 

Validity  of  expenditure  of  school  funds 
for  maintenance  of  orphan  asylum, 
1917C-924. 


84 


DIGEST. 

1916C— 1918B. 


OSTEOPATHY. 


PAINTING. 


Validity  of  special  regulation  of  oste- 
opathy, 1917B-798. 

OTHERWISE. 
Legal  meaning  of  "otherwise,"  1916C-644. 

OUT-OF-DOOR  CLOSETS. 
See  Health. 

OUTSTANDING  TITLE. 
See  Tenants  in  Common. 

OVERHANGING  TREES. 
See  Adjoining  Landowners. 

OVERHEARING  COMMUNICATION. 
See  Libel  and  Slander;  Witnesses. 

OVERHEATING. 
See  Fire  Insurance. 

OWNERSHIP. 

Admissibility  of  direct  opinion  of  witness 
as  to  ownership  of  personalty,  1916D- 
289. 

See  also  Automobiles. 

OWNERS  OF  PREMISES. 

Coal  holes:  liability  of  owner  of  premises 
for  injuries  sustained  by  pedestrian 
from  coal  hole  in  sidewalk,  1917I>- 
495. 

Collapse  of  building:  liability  of  owner  for 
injuries  caused  by  collapse  of  build- 
ing, 1917A-478. 

Intoxication:  liability  of  owner  of  prem- 
ises for  death  by  intoxication,  19I7B- 
540. 

Mechanics'  liens:  owner  of  premises  as 
necessary  party  defendant  to  action 
to  foreclose  mechanic's  lien,  1918B-11. 

Ponds,  etc.:  liability  of  landowner  for  in- 
jury to  trespassing  child  on  account  of 
unguarded  pond,  pool,  well,  etc.,  1916C- 
1085. 

Prostitution:  validity  and  construction  of 
statute  making  owner  of  premises 
liable  for  use  thereof  for  purpose  of 
prostitution,  1917A-459. 

Revolving  doors,  etc.:  liability  of  pro- 
prietor for  injuries  received  in  turn- 
stile, revolving  door,  or  swinging  door, 
1916D-123.'. 

Scaffolding:  liability  of  owner  of  building 
for  injury  to  pedestrian  resulting  from 
erection  of  scaffold  f»r  repairing  or 
painting  building,  1916C-123. 

Taxation:  validity  of  license  tax  imposed 
on   owner  of  premises  for  extracting 
mineral    or    turpentine    therefrom    or 
cutting   timber   thereon.   1918A-678. 
See  also  Adjoining  Landowners. 


Painting  as  employment  within  purview  of 
workmen's  compensation  act,  1917D- 
20. 

PARADES. 

Validity  of  statute  or  ordinance  regulating 
parades  or  processions,  I916D-847. 

PARALLEL  TRACKS. 
Seb  Carriers  of  Passengers. 

PARDONS. 

Pardon  as  affecting  ■  right  to  disbar  at- 
torney for  criminal  misconduct,  1917A- 
1226. 

Validity  of  contract  to  procure  pardon  or 
parole,  1917D-890. 

PARENT  AND  CHILD. 

Alienation  of  affections:  liability  of  pa- 
rent for  alienation  of  affections, 
1917E-1017. 

Custody  and  control  of  child:  contract  by 
parent  for  services  of  minor  child  as 
binding  latter,  1918B-827. 

— finality  of  order  in  habeas  corpus  pro- 
ceeding involving  custody  of  child, 
1916D-511. 

Duress:  validity  and  effect  of  contract  of 
parent  induced  by  threats  of  criminal 
prosecution  against  child,  1917C-1026. 

"Father":  as  including  stepfather,  1917B- 
1118. 

Gifts:  presumption  and  burden  of  proof  of 
undue  influence  in  case  of  conveyance 
inter  vivos  by  parent  to  child,  1918B- 
457, 

Libel  and  slander:  communication  to  pa- 
rent as  privileged  within  law  of  libel 
and  slander,  1917E-896. 

Life  insurance:  rights  of  parties  in  case 
of  insurance  procured  by  parent  on 
life  of  minor  child,  1917E-643. 

Negligence  of  child:  liability  of  owner  of 
automobile  for  negligence  of  child 
driving  car.  1917D-1002. 

Seduction  of  child:  right  of  mother  to 
maintain  action  for  daughter's  seduc- 
tion, 1916E-1275. 

Surgical  operation:  consent  of  parent  as 
necessary  to  operation  on  child,  1916C- 
1107. 

Workmen's  compensation  acts:  award  to 
minor  under  workmen's  compensation 
act  as  affecting  right  of  action  by 
parent,  1916D-1172. 

— parent  as  "dependent"  within  workmen's 
compensation  act,  1918B-7o2. 

See  also  Adoption;  Illegitimacy;  Infants. 

PARKS  AND  PUBLIC  SQUARES. 

Dedication  of  park  or  square  by  selling 
lots  according  to  map  or  plat,  1917B- 
197. 


INDEX  TO  THE  NOTES. 


85 


PARKS  AND  PUBLIC  SQUARES— Con- 
tinued. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  parks  in  cities,  1916D-76. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  parks  in  counties,  1916D-41. 

Interest  in  land  acquired  by  condemnation 
for  park  purposes  as  easement  or  fee, 
1918A-812, 

PAROL  EVIDENCE. 

Acknowledgment:  parol  evidence  to  show 
falsity  of  certificate  of  acknowledg- 
ment, 1917A-373. 

Bills  and  notes:  parol  evidence  of  condi- 
tional delivery  of  bill  or  note,  1917D- 
1049. 

Contracts:  admissibility  of  parol  evidence 
to  show  illegality  of  contract,  1917D- 
426. 

Frauds,  statute  of:  proof  by  parol  of  con- 
tents  of  lost  memorandum  required  by 
statute  of  frauds,  1916E-173. 

Payment:  admissibility  of  parol  evidence 
to  show  place  of  payment  under  con- 
tract silent  in  that  respect,  1916E- 
366. 

Records:  proof  by  parol  of  contents  of  lost 
or  destroyed  judicial  record,  1916D- 
248. 

Statutes:  admissibility  of  extrinsic  evi- 
dence with  respect  to  approval  or  dis- 
approval of  bill  by  executive,  1917C- 
836. 

PAROL  GIFTS. 
See  Gifts. 

PAROLE. 
See  Pardons. 

PARTIAL  INVALIDITY. 
See  Antenuptial  Agreements;  Statutes. 

PARTIES  TO  ACTIONS. 

Alienation  of  affections:  parties  to  action 
by  wife  for  alienation  of  affections  or 
criminal  conversation,  1916C-750. 

Amendments:  right  of  plaintiff  to  amend 
so  as  to  change  capacity  in  which  he 
sues  from  representative  to  individual 
one  or  vice  versa,  1916C-401. 

— right  to  amend  action  by  adding  new 
parties  plaintiff,  1916C-591. 

Bills  and  notes:  right  of  action  thereon  of 
nominal  holder  of  promissory  note, 
1917A-490. 

Mechanics'  liens:  necessary  or  proper  par- 
ties to  action  to  foreclose  mechanic's 
lien,  191SB-3. 

Nonexistence  of  plaintiff  (not  corporation) 
as  defense  to  action,  1917D-1193. 

Penalties:  who  may  bring  action  for  pen- 
alty or  violation  of  intoxicating  liquor 
statute,  1916E-S71. 

See  also  Appeal  and  Error;  Argument  of 
Counsel;  Criminal  Law;  Judicial 
Sales;  Jury;  Res  Judicata;  Subroga- 
tion. 


PARTITION. 

Partition  of  mining  interests  and  mining 
rights,  1917D-I35. 

Testamentary  restriction  on  right  of  ten- 
ant in  common  to  partition,  1916D- 
1270. 

Validity  of  service  by  publication  in  ac- 
tion for  partition,  1916E-1002. 

PARTNERSHIP. 

Agreement:  injunction  as  remedy  for 
breach  of  covenant  in  partnership 
agreement  not  to  engage  in  same 
business,  1916C-189. 

Alien  enemies:  effect  on  contract  of  part- 
nership of  partner  becoming  alien 
enemy,  1917C-202. 

Attorneys:  liability  of  attorney  for  negli- 
gent act  of  partner,  1917B-16. 

"Citizen"  as  including  partnership,  1917C- 

o7o. 

Competitive  business:  right  of  partner  to 
carry  on  business  in  competition  with 
firm,  1916E-993. 

Contribution:  right  of  contribution  be- 
tween partners,  1916D-820. 

Creation:  intent  as  essential  to  creation  of 
partnership,  1916E-440. 

Majority:  power  of  majority  of  partners 
to  bind  firm,  1916C-110. 

Municipal  corporations:  power  of  munici- 
pality to  enter  into  partnership  con- 
tract for  construction  of  improvement, 
1916C-909. 

Service  of  process:  validity  of  statute  pro- 
viding for  service  on  agent  of  non- 
resident partnership,  I916D-813. 

Surviving  partners:  right  of  surviving 
partner  to  purchase  deceased  partner's 
interest,  1917C-946. 

— when  surviving  partner  is  chargeable  aa 
executor  de  son  tort,  1917E-22. 

PART  PAYMENT. 

See  Accord  and  Satisfaction;  Limitation 
of  Actions. 

PARTY  WALLS. 

Liability  of  adjoining  landowner  for  use 
of  partv  wall  in  absence  of  agreement 
to  contribute,  1916E-1165. 

Termination  of  right  to  maintenance  of 
party  wall,  1916C-374. 

PASSAGEWAYS. 
See  Landlord  and  Tenant. 

PASSENGERS. 
See  Carriers  of  Passengers. 

PASSES. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  passes,  1916D-8o. 
See  also  Carriers  of  Passengers. 


86 


DIGEST. 

1916C— 1918B. 


PATROL. 
See  Fire  Insurance. 


PERJURY. 
See  TriaL 


PAUPERS. 
See  Poor  and  Poor  Laws. 

PAWNBROKERS. 

IVand  on  pawnbroker  as  constituting  at- 
tempt to  obtain  money  by  false  pre- 
tenses, 1917B-1236. 

Pawnbroker  as  "dealer,"  1917A-960. 
See  also  Loan  Brokers. 

PAYMENT. 

Admissibility  of  parol  evidence  to  show 
place  of  pavment  under  contract  silent 
in  that  respect,  1916E-366. 

Payment  to  prevent  apprehended  injury 
to  business  as  payment  under  duress, 
1918B-516. 

Right  of  third  person  to  control  applica- 
tion of  payment,  1917C-582. 

What  constitutes  payment  of  note  at  bank 
where  it  is  made  payable,  1917A-508. 

See  also  Appeal  and  Error;  Bills  and 
Notes;  Building  Contracts;  Checks; 
Facility  of  Payment;  Tender;  Threats. 

PEDDLERS. 

Peddler  as  "dealer."  1917A-953. 

See  also  Hawkers  and  Peddlers. 

PEDESTRIANS. 
See  Streets  and  Highways. 

PENAL  INSTITUTIONS. 
See  Prisons  and  Prisoners. 

PENALTIES. 
See  Bail;  Fines  and  Penalties. 

PENNY  ARCADES. 
See  Theaters  and  Amusements. 

PENSIONS. 

Effect  with  respect  to  pension  of  pensioner 
becoming  inmate  of  soldiers'  home, 
1916C-854. 

Pension  of  public  officer  as  affected  by  his 
bankruptcy,  I916D-629. 

PER  CAPITA. 
See  Wills. 

PEREMPTORY  CHALLENOES. 
See  Jury. 

PERFORMANCE. 
See  Contracts. 


PERPETUITIES. 

Gift  for  establishment  of  home  for  persons 
of  particular  class  as  within  rule 
against  perpetuities,  1917E-866. 

Option  to  purchase  realty  as  violating  rule 
against  perpetuities,  1916D-577. 

PERSON. 

Corporation  as  "person"  within  penal  stat- 
ute, 1916C-462. 

PERSONAL  INJURY. 

What  is  "personal  injury"  within  meaning 
of  workmen's  compensation  act,  1918B- 
362. 

See  also  Argument  of  Counsel;  Automo- 
biles; Negligence. 

PERSONAL  PROPERTY. 

Admissibility  of  direct  opinion  of  witness 

as  to  ownership  of  personalty,  191 6D- 

289. 
Inconsistent  defenses  in  action  relating  to 

personal  property,  1917C-725. 
Price  paid  for  personalty  as  evidence  of 

value  thereof,  1916D-797. 
Kent  as  realty  or  personalty,  1918A-148. 
See     also     Damages;     Eminent    Domain; 

Guardians;  Husband  and  Wife;  Loan 

Brokers. 

PERSONAL  REPRESENTATIVES. 

See  Executors  and  Administrators;   Wit- 
nesses. 


PERSONAL  SERVICE. 
See  Process. 

PERSONAL  SERVICES. 
See  Fraud;  Parent  and  Child. 

PER  STIRPES. 
See  Wills. 

PETITIONS. 
Bee  Libel  and  Slander. 

PETROLEUM. 

See  Mines  and  Minerals. 

PHALANGE. 

What  constitutes  "loss"  of  phalange  with- 
in workmen's  compensation  act,  1918A— 
539. 

PHARMACISTS. 
See  Druggists. 


INDEX  TO  THE  NOTES. 


87 


PHOTOGRAPHS. 

Personal  liability  of  attorney  for  expense 
of  taking  photographs,  1917B-526. 

PHYSICAL  CONDITION. 
See  Death  by  Wrongful  Act. 

PHYSICAL  EXAMINATION. 
Power  of   court   to   compel   submission   to 

physical  examination,  1917D-3ol. 
Talidity  of  health  regulation  relating  to 

school  children,  1917A-765. 

PHYSICAL  FACTS. 
See  Evidence. 

PHYSICIANS  AND  SURGEONS. 

Christian  Science:  special  regulation  of 
Christian  Science  or  other  drugless 
treatment  of  disease,  1917B-798. 

Corporations:  criminal  liability  of  corpo- 
ration for  advertising  practice  of 
medicine,  1916C-465. 

License  statutes:  effect  of  partial  invalid- 
ity of  statute  relating  to  licensing  of 
physicians  and  surgeons,  1916D-57. 

Malpractice:  failure  of  surgeon  to  make 
test  before  operation  as  malpractice, 
1918A-883. 

— indemnity  insurance  against  liability  of 
physician  for  malpractice,  1916E-1159. 

— liability  of  physician  for  malpractice  in 
making  wrong  diagnosis,  1917D-708. 

— ^what  is  excessive  or  inadequate  verdict 
in  action  against  physician  for  mal- 
practice, 1916C-1078. 

Ocular  diseases:  special  regulation  of  per- 
sons treating  ocular  diseases,  I917B- 
803. 

Paupers:  liability  of  municipality  to  indi- 
vidual for  medical  attendance  fur- 
nished pauper,  1916D-183. 

Release  and  discharge:  avoidance  of  re- 
lease of  claim  for  personal  injuries  on 
account  of  misstatements  by  physician- 
as  to  nature  of  injuries,  1918A-358. 

Surgical  operations:  consent  as  affecting 
right  to  perform  surgical  operation, 
1916C-I105. 

Violation  of  statute:  inducement  to  vio- 
late law  regulating  practice  of  medi- 
cine with  view  to  prosecution  there- 
for as  defense  to  such  prosecution, 
1916C-733. 

Witnesses:  right  of  physician  who  at- 
tended testator  before  his  death  to 
testify  as  to  his  mental  condition, 
1918A-1050. 

See  also  Master  and  Servant. 

PIERS. 
See  Wharves. 

PILE  DRIVING. 
Pile    driving   as    employment   within    pur- 
view of  workmen's  compensation  act- 
1917D-26, 


PILOTS. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  pilots,  1916D-78. 

PIPES. 
See  Waterworks  and  Water  Companies. 

PLACE  OF  MARK. 
See  Elections. 

PLACE  OF  TRIAL. 
See  Trial;  Venue. 

PLANT. 

Meaning  of  "plant"   as  used  with  refer- 
ence to  business,  1917A-317. 
See  also  Fixtures. 

PLATS. 
See  Dedication. 

PLAYWRIGHTS. 

Contracts  with  playwrights,  1917C-397. 

PLEADING. 

Alienation  of  affections:  pleading  in  ac- 
tion against  parent  for  alienation  of 
affections,  1917E-1020. 

Alteration  of  instruments:  necessity  of 
pleading  ratification  or  waiver  of 
alteration  of  instrument,  1917D-345. 

Amendment:  amendment  of  pleading  where 
plaintiff  in  action  is  nonexistent, 
1917D-1197. 

— right  of  plaintiff  to  amend  so  as  to 
change  capacity  in  which  he  sues  from 
representative  to  individual  one  or 
vice  versa,  1916C-401. 

— right  to  amend  action  by  adding  new 
parties  plaintiff,  1916C-591. 

— service  of  new  answer  to  amended  bill 
or  complaint,  1918A-205. 

Attorneys:  liability  of  attorney  to  client 
for  negligence  with  respect  to  plead- 
ings, 1917B-25, 

"Child"  in  pleading  as  including  illegiti- 
mate child,  1918B-261. 

Divorce:  pleading  condonation  in  action 
for  divorce,  1918A-660. 

Executors  and  administrators:  necessity 
that  executor  or  administrator  in  ac- 
tion brought  by  him  allege  that  suit 
is  brought  in  representative  capacity, 
1916E-114. 

Felony:  exclusion  or  inclusion  of  Sunday 
or  holiday  in  computation  of  time  for 
filing  pleading,  1917E'-939. 

Impotency:  necessity  that  impotency  be 
pleaded  specially  in  action  for  per- 
sonal injuries,  1916C-383. 

Inconsistent  defenses  within  rules  of 
pleading,  1917C-704. 


DIGEST. 
1916C— lOlSB. 


PLEADING — Continued. 

Intoxicating  liquors":  pleading  in  action 
for  penalty  for  violation  of  intoxica- 
ting liquor  statute,  1916E-872. 

"Law":  ordinance  as  "law"  within  mean- 
ing of  phrase  "contrary  to  law"  in 
pleading,  1917C-691. 

Libel  and  slander:  sufficiency  of  complaint 
in  action  for  slander  with  respect  to 
averments  of  publication  and  of  time 
and  place,  1918B^04. 

Limitation  of  actions:  pleading  statute  of 
limitations  in  action  for  death  by 
wrongful  act,  1916D-1241. 

Lost  pleading:  proof  by  parol  of  contents 
of  lost  or  destroyed  pleading,  1916D- 
253. 

Negatives  pregnant,  1917A-668. 

Quieting  title:  right  to  affirmative  relief 
on  cross  bill  in  suit  to  quiet  title, 
1917D-674. 

Sales:  pleading  in  action  for  breach  of 
warranty  in  sale  of  seed,  1918B-86. 

Set-oflf:  waiver  of  failure  to  reply  to  coun- 
terclaim, 1917D-619. 

Sham  pleading:  striking  out  general  denial 

as  sham  or  frivolous,  1917D-1177. 

See  also  Appearance. 

PLEA  OF  OUILTT. 
See  Evidence. 

PLEASUEE. 
See  Damages. 

PLEDGE. 

Liability  of  civilian  for  purchasing  or  re- 
ceiving in  pledge  public  property  from 
soldier  or  sailor,  1918B-523. 

Right  of  married  woman  to  pledge  prop- 
erty as  security  for  husband's  debt, 
1917B-604. 

See  also  Pawnbrokers;  Stock  and  Stock- 
holders. 

PLUMBEES. 

Plumber  as  "dealer,"  1917A-96(>. 

POLES. 

See  Electricity;  Telegraphs  and  Tele- 
phones. 

POLICE. 

Eflfeet  of  partial  invalidity  of  statute  re- 
lating to  municipal  police  department, 
1916D-75. 

Finger  print  as  part  of  police  record, 
1917A-418. 

Policeman  as  public  officer,  1917B-663. 

Validitv  of  statutes  creating  metropolitan 
police,  1917D-1112. 

POLICIES. 
See  Insurance. 


POLL  TAXES. 
See  Taxation. 

PONDS  AND  POOLS. 

Liability  of  landowner  for  injury  to  tres- 
passing child  on  account  of  unguarded 
pond,  pool,  well,  etc.,  I916C-10So. 

POOR  AND  POOB  LAWS. 

"Child"  in  statute  relating  to  poor  as  in- 
cluding illegitimate  child,  1918B-257. 

Liability  of  municipality  to  individual  for 
medical  attendance  furnished  pauper, 
1916D-183. 

Who  is  pauper  or  poor  person  within  poor 
laws,  1916C-389. 

PORTERS. 
See  Average  Weekly  Earnings. 

PORTRAITS. 

Measure  of  damages  for  loss  or  destruc- 
tion of  portraits  having  no  market 
value,  1917B-579. 

POSSESSION. 

See  Bills  and  Notes;  Frauds,  Statute  of; 
Intoxicating  Liquors;  Landlord  and 
Tenant. 

POSTHUMOUS  CHILD. 

Posthumous  child  as  "dependent"  within 
workmen's  compensation  act,  1918B- 
755. 

POST  OFFICE. 

Inducement  to  violate  .postal  law  with 
view  to  prosecution  therefor  as  de- 
fense to  such  prosecution,  1916C-733. 

Validity  of  espionage  act,  1918B-1011. 

What   constitutes  cruel  and  unusual  pun- 
ishment  for  use   of  mails  for  fraud- 
ulent purpose,   1918B-401. 
See  also  Letters. 

POVERTY. 
See  Argument  of  CounseL 

POWDER. 
See  Explosions  and  Explosives. 

POWER  OF  ATTORNEY. 

Revocation  of  agency  under  power  of  at- 
torney by  death  of  principal,  1917E- 
383. 

PRACTICE. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  practice  in  civil  cases, 
1916D-78. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  practice  in  criminal  cases, 
191(5D-SO. 


INDEX  TO  THE  NOTES. 


89 


PRACTICE  OF  LAW. 
See  Attorneys. 


PRESIDENT. 
See  Corporations. 


PREAMBLE. 

See  Statutes. 

PREDECEASED  CHILD. 
See  Wills. 

PREDECESSOR. 
See  Corporations. 

PRE-EXISTING  DEBTS. 

See  Bills  and  Notes;   Sales;  Vendor  and 
Purchaser. 

PREFERENCE. 
See  Stock  and  Stockholders. 

PREFERENTIAL  VOTING. 
See  Elections. 

PREFERRED  SHAREHOLDERS. 
See  Stock  and  Stockholders. 

PREJUDICE. 
See  Judges;  Jury. 

PRELIMINARY  EXAMINATION. 
See  Criminal  Law. 

PRELIMINARY  INJUNCTION. 
See  Injunctions. 

PREMISES. 

What  is  included  in   term   "premises"   as 
used  with  respect  to  land,  1916C-1192. 
See    also    Deeds;    Owners    of    Premises; 
Searches  and  Seizures. 

PREMIUMS. 
See  Insurance. 

PRESCRIPTION. 

Acquirement  by  prescription  of  right  to 
maintain  telegraph,  telephone  or  elec- 
tric light  pole,  1916E-981. 

Acquisition  of  title  to  land  within  right  of 
way  of  railroad  by  adverse  possession 
or  prescription,  1916D-1186. 

Prescriptive  obligation  to  maintain  divi- 
sion fence,  1917B-1253. 

Prescriptive  right  of  individual  to  take 
water  from  another's  well  or  spring, 
1917A-881. 

See  also  Adverse  Possession. 


PRESUMPTIONS. 

Acknowledgment:  presumption  in  favor  of 
certificate  of  acknowledgment,  1917A- 
369. 

Attorneys:  presumption  of  invalidity  of 
contract  for  compensation  of  attorney 
made  after  establishment  of  relation, 
1917A-530. 

Carriers  of  passengers:  presumption  of 
negligence  from  collision  resulting  in 
injury  to  passenger,  1917C-634. 

Corporations:  presumption  that  contract 
executed  by  president  of  corporation 
is  authorized  by  corporation,  1917A- 
360, 

Death:  time  of  death  within  rule  as  to 
presumption  of  death  from  absence, 
1917A-82. 

Foreign  laws:  presumption  as  to  knowl- 
edge of  foreign  law,  1916D-1072. 

Gifts:  "child"  in  statute  creating  presump- 
tion of  gift  as  including  illegitimate 
child,  1918B-258. 

Husband  and  wife:  presumption  as  to  lia- 
bility of  wife  for  household  expenses, 
1917C-561. 

Letters:  presumption  as  to  authenticity  of 
letter  received  in  reply  to  letter, 
1917D-925. 

— presumption  of  receipt  of  letter,  1917E- 
1058. 

Names:  conflict  between  presumption  of 
identity  of  person  from  identity  of 
name  and  another  presumption,  1917E- 
121. 

— presumption  from  use  or  omission  of 
suffix  to  name,  1917A-1215. 

Telegrams:  presumption  of  receipt  of  tele- 
gram, 1917E-1081. 

Temperance:  presumption  of  temperance  or 
sobriety,  1918A-620. 

Undue  influence:  presumption  of  undue  in- 
fluence arising  from  relation  of  man 
and  woman  engaged  to  be  married, 
1916C-1031. 

— presumption  of  undue  influence  in  case 
of  conveyance  inter  vivos  by  parent 
to  child,  1918B-457. 

PRETENSES. 
See  False  Pretenses. 


PRETERMISSION. 

"Child"  in  statute  of  pretermission  as  in- 
cluding illegitimate  child,  1918B-253. 


PREVENTION  OF  PERFORMANCE. 
See  Contracts. 

PRICE. 
See  Value. 


90 


DIGEST. 

1916C— 1918B. 


PEIMA  FACIE  EVIDENCE. 
See  Evidence. 

PBIMABIES. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  primary  elections,  1916D-52. 

PRINCIPAL  AND  AGENT. 
See  Agency. 

PRINCIPAL  AND  SURETT. 
See  Suretyship. 

PRINCIPAL  CONTRACTOR. 

See  Building  Contracts. 

• 
PRINTED  COPIES. 

See  Foreign  Laws. 

PRINTED  SIGNATURE. 
See  Frauds,  Statute  of. 

PRIORITY. 
See  Judgments. 

PRISONS  AND  PRISONERS. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  penal  institutions,  1916D-77. 
See  also  Convicts;  Reformatories. 

PRIVACY,  RIGHT  OF. 

Finger  print  as  part  of  police  record, 
1917A-418. 

Unlawful  use  of  portrait  or  name  in  mov- 
ing picture,  19I6C-308. 

PRIVATE  CHARITIES. 

See  Charities. 

PRIVATE  COUNSEL. 
See  Prosecuting  Attorneys. 

PRIVATE  DETECTIVES. 
See  Detectives. 

PRIVATE  DIARIES. 
See  Diaries. 

PRIVATE  NUISANCES. 
See  Nuisances. 

PRIVATE  SCHOOLS. 

Validity  of  expenditure  of  school  funds 
for  maintenance  of  private  school, 
19I7C-922: 


PRIVIES. 

Eflfect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  use 
privy,  1918A-1195. 

See  also  Health. 

PRIVILEGE. 
See  Discovery;  Witnesses. 

PRIVILEGED  COMMUNICATIONS. 
See  Libel  and  Slander;   Witnesses. 

PRIZES. 
'        See  War. 

PROBABLE  CAUSE. 
See  Malicious  Prosecution. 

PROBATE. 
See  Wills. 

PROBATION  OFFICERS. 

Probation  oflScers  of  juvenile  courts, 
1916E-I011. 

PROCEDURE. 

Eflfect  of  partial  invalidity  of  statute  re- 
lating to  procedure  in  civil  cases, 
1916D-78. 

Eflfect  of  partial  invalidity  of  statute  re- 
lating to  procedure  in  criminal  cases, 
1916D-80. 

Procedure  in  juvenile  courts,  1916E-1014. 

PROCESS. 

Corporations:  process  by  which  court  may 
acquire  jurisdiction  of  defendant  cor- 
poration in  criminal  case,  1916E-1289. 

Issuance  or  execution  of  process:  exclusion 
or  inclusion  of  Sunday  or  holiday  in 
computation  of  time  for  issuance  of 
execution  of  process,  1917E-941. 

Lost  process:  proof  by  parol  of  contents  of 
lost  or  destroyed  process,   1916D-2o2. 

Service  of  process:  exclusion  or  inclusion 
of  Sunday  or  holiday  in  computation 
of  time  for  service  and  return  of  pro- 
cess, 1917E-935. 

—liability  to  suit  within  state  of  foreign 
corporation  which  has  revoked  desig- 
nation of  agent  for  service  of  process 
and  has  ceased  to  do  business  within 
state,  1916D-37S. 

— right  to  serve  process  on  public  oflScial 
or  designated  agent  of  foreign  corpo- 
ration in  action  arising  out  of  transac- 
tion in  another  state,  1918A-392. 

—service  of  civil  process  upon  members  of 
legislature.  1917B-fi41. 

— service  of  process  on  convict,  1916D- 
1207. 


INDEX  TO  THE  NOTES. 


91 


PROCESS — Continued. 

Service    of    process:  validity    of    personal 

service  of  process  procured  by  fraud 

or  force,  1916C-612. 
— validitv  of  process  issued  or  served  on 

holiday,  1916E-So0. 
— validitv  of  service  by  publication  in  ac- 
tion for  partition,  1916E-1002. 
— validity  of  service  by  telephone,  1917B- 

903 
— validity  of  statute  designating  particular 

kind  of  agent  of  foreign  corporation 

on    whom    process    may    be     served, 

1916E-339. 
— validity  of  statute  providing  for  service 

on  agent  of  nonresident  partnership, 

1916D-813. 

PROCESSIONS. 
See  Parades. 

PROCUREMENT. 
See  Adultery. 

PRODUCTION  OF  DOCUMENTS. 
See  Discovery. 

PROFANE  LANGUAGE. 
See  Breach  of  Peace;  Disorderly  Conduct. 

PROFITS. 

Loss  of  profits  as  element  of  damages  in 
eminent  domain  proceedings,  1918B— 
869. 

Prospective  profits  as  damages  on  rescis- 
sion of  building  contract  for  failure  of 
owner  to  make  payment,  1916C— 59. 

Kecovery  of  profits  as  damages  for  breach 
of  contract  to  sell  on  commission, 
1917B-1194. 

Statement  of  opinion  as  to  future  profits 
of  business  as  ground  for  action  .for 
fraud  or  for  rescission  of  contract, 
1916D-1040. 

See  also  Corporations;  Theaters  and 
Amusements. 

PROHIBITION. 
See  Intoxicating  Uquors. 

PROMISSORY    NOTES. 

See  Bills  and  Notes. 

PROMOTERS. 
See    Corporations;    Theaters   and    Amuse- 
ments. 

PROPERTY. 

See    All;     Animals;     Personal    Property; 

Real  Property. 

PROSECUTING   ATTORNEYS. 

Misconduct  of  prosecuting  attorney  as 
ground  for  disbarment,  1917B-234. 


PROSECUTING  AT  T  CRN ETS— Con- 
tinued. 

Necessity  that  criminal  information  filed 
by  prosecuting  attorney  be  under 
oath,  I917C-531. 

Eight  of  private  counsel  to  assist  prosecu- 
tion in  criminal  case,  I917D-512. 

Statement  by  prosecuting  witness  to  pros- 
ecuting attorney  as  privileged,  1916E- 
1121. 

Validity    of    appointment    of    deputy    or 
special  prosecuting  attorney,   1918A- 
718. 
See  also  Malicious  Prosecution. 

PROSTITUTION. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  houses  of  prostitution, 
1916D-77. 

Immigrant  prostitution  or  immorality, 
1917C-250. 

Inducement  to  provide  inmate  for  house 
of  prostitution  with  view  to  prosecu- 
tion therefor  as  defense  to  such  pros- 
ecution, 1916C-734. 

Validity  and  construction  of  statute  mak- 
ing owner  of  premises  liable  for  use 
thereof  for  purpose  of  prostitution, 
1917A-459. 

Whether  man  can  be  "prostitute,"  or 
guilty  of  resorting  to  house  of  ill 
fame  for  purpose  of  prostitution, 
1917D-248. 

PROTEST. 
See  Bills  and  Notes. 

PROVISOS. 

See  Statutes. 

PROVOCATION. 
See  Assault. 

PUBLIC  ADMINISTRATORS. 
See  Executors  and  Administrators. 

PUBLICATION. 

Construction  of  requirement  of  publica- 
tion once  per  week  for  certain  num- 
ber of  weeks,  1917B-209. 

Exclusion  or  inclusion  of  Sunday  or  holi- 
day in  computation  of  time  for  pub- 
lication  of   notice,   1917E-942. 

Publication  in  single  edition  of  newspaper 
as  suAcient  publication,  1917E-994. 

See  also  Libel  and  Slander;  Municipal 
Corporations;  Process;  Statutes;  Trial. 

PUBLIC  BUILDINGS. 
See  Courts. 

PUBLIC  CONTRACTS. 
See   Bids;    Municipal   Corporations. 


92 


DIGEST. 

1916C— 1918B. 


PUBLIC  FUNDS. 


Sight  to  use  public  funds  for  purpose 
other  than  that  of  appropriation, 
1917B-864. 


PUBLIC  IMPROVEMENTS. 

See  Municipal  Corporations. 

PUBLIC  INSTITUTIONS. 

Residence  at  public  institution  as  affect- 
ing right  to  vote,  1917C-403. 

PUBLIC  INTEREST. 
See  Libel  and  Slander. 

PUBLIC  LANDS. 

Corporations:  criminal  liability  of  corpo- 
ration for  inclosing  public  domain, 
1916C-465. 

Eminent  domain:  interest  in  public  land 
acquired  by  condemnation  as  ease- 
ment or  fee,  1918A-806. 

Taxation:  public  property  as  subject  to 
special  assessment,  1917D-844. 

— state  lands  under  contract  of  purchase 
as  subject  to  taxation,  1917C-129. 

Trees  and  timber:  protection  of  timber  on 
public  lands,  1917A-5. 

Waters  and  watercourses:  power  of  state 
to  grant  title  to  land  under  navigable 
water,  1918B-1107. 

See  also  Reclamation. 

PUBLIC  NUISANCES. 
See  Nuisances. 

PUBLIC  OFFICERS. 

Anti-nepotism  law;  validity  and  construc- 
tion of  anti-nepotism  law,  1917D-735. 

Bond  issue:  authority  of  p'ublic  officer  to 
complete  bond  issue  after  repeal  of 
statute  authorizing  issue,  1916C'-406. 

Bonds:  validity  of  statute  establishing 
fund  for  bonding  of  public  officers, 
1918A-603. 

Compensation:  distinction  between  "sal- 
ary" and  "wages,"  1917B-321. 

— estoppel  of  public  officer  to  deny  valid- 
ity of  statute  by  accepting  compensa- 
tion  thereunder,    1917C-284. 

— neglect  of  duty  as  affecting  right  of 
public  officer  to  salary,  1918B-435. 

—right  of  de  jure  officer  to  recover  from 
state  or  municipality  salary  paid  to 
de  facto  officer  during  latter'a  in- 
cumbency, 1917D-1137. 

— right  of  de  jure  officer  to  recover  salary 
from  de  facto  officer  during  latter's 
incumbency,   1916D-474. 

— right  to  fee  or  allowance  as  between 
officer  and  deputy,  1918A-S40. 

— salary  or  pension  of  public  officer  or  em- 
ployee as  affected  by  his  bankruptcy, 
19160-629. 


PUBLIC  OFFICERS— Continued. 

Contracts:  liability  of  municipality  or  offi- 
cer for  failure  to  take  from  contrac- 
tor bond  for  protection  of  laborers  or 
materialmen,    1917B-1089. 

Detectives:  private  detective  as  public 
officer,  1917A-584. 

Disbarment:  misconduct  of  ministerial 
officer  as  ground  for  disbarment, 
1917B-236. 

Liability:  personal  liability  of  officer  for 
sale  of  property  for  taxes  under  void 
statute,  1918B-190. 

— ^personal  liability  of  public  officer  for 
injuries  caused  by  defective  condition 
of  street  or  highway,  1917D-939. 

Mandamus:  abatement  of  mandamus  by 
•  termination  of  respondent's  office, 
1918A-1000. 

"Office":  distinction  between  office  and 
employment,  1917D-319. 

Partial  invalidity  of  statute:  effect  of 
partial  invalidity  of  statute  relating 
to  public  officers,  1916D-81. 

Payment  made  to  public  official  to  prevent 
apprehended  injury  to  business  as 
payment  under  duress,  191SB-519. 

Policeman   as  public   officer,  1917B-663. 

Probation  officers  of  juvenile  courts, 
1916E-1011. 

Removal:  power  of  body  having  authority 
to  remove  public  officer  to  appoint 
committee  to  conduct  hearing,  1916C- 
1273.  ^ 

Women:  right  of  woman  to  be  notarv 
public,   1917D-534. 

See  also  Bribery;  Judges;  Libel  and 
Slander;  Municipal  Corporations;  Pro- 
cess. 

PUBLIC  POLICY. 
See  Insurance. 

PUBLIC  PROPERTY. 

See    Army    and    Navy;     Public    Lands; 
Taxation. 

PUBLIC  PROSECUTOR. 
See  Malicious  Prosecution. 

PUBLIC  SCHOOLS. 
See  Schools. 

PUBLIC   SERVICE   COMMISSIONS. 

Powers:  power  of  public  service  commis- 
sion to  compel  carrier  to  furnish  par- 
ticular class  of  service,  1917B-1160. 

— power  of  public  service  commission  to 
make  test  order,  1917E-794. 

—power  of  public  service  commission  to 
prevent  maintenance  of  electric  wires 
in  close  proximity,  1918B-847. 

— power  of  public  service  commission  to 
regulate  running  time  of  trains, 
1916D-1034. 


INDEX  TO  THE  NOTES. 


93 


PUBLIC  SERVICE  COMMISSIONS— Con- 
tinued. 

Powers:  review  by  public  service  commis- 
sion  of   municipal   regulation   of   public 
service   corporation,   1916E-1083. 

— validity  of  order  of  public  service  com- 
mission regulating  commutation  rates 
'  1917B-1153. 

— validity  of  order  of  public  service  com- 
mission requiring  running  of  Sunday 
train,  1917B-1205. 

— validity  of  regulation  of  extent  of  train 
service  to  be  furnished  by  railroad, 
1917B-1217. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  public  service  com- 
missions, 1916D-38. 

— effect  of  partial  invalidity  of  statute  re- 
lating to  railroad  commissions,  1916D- 
84. 

— statute  creating  board  to  regulate  rail- 
roads as  interference  with  interstate 
commerce,  1917A-975. 

— validity  of  statute  conferring  on  commis- 
sion power  ,to  fix  rates  for  public  ser- 
vice corporations,  1917C-57. 

— validity  of  statute  conferring  on  public 
service  commission  or  other  body  .-juris- 
diction of  eminent  domain  proceedings, 
I916C-420. 

— validity  of  statute  conferring  on  public 
service  commission  power  to  determine 
necessity  for  construction  or  extension 
of  public  utility,  1916E-299. 

PUBLIC  SERVICE  CORPORATIONS, 

Building  restriction  or  restrictive  agree- 
ment as  binding  public  service  corpo- 
ration, 1918B-591. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  public  service  corporations, 
1916D-38. 

Validity  of  statute  conferring  on  commis- 
sion power  to  fix  rates  for  public  ser- 
vice corporations,  1917C-57. 

See  also  Carriers  of  Passengers;  Gas;  Pub- 
lic Service  Commissions;  Public  Utili- 
ties; Railroads. 

PUBLIC  TRIAIfc 
See  Trial. 

PUBLIC  UTILITIES. 

Corporation  not  operated  for  profit  as  pub- 
lic utility,  1916D-899. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  public  utilities,  1916D-76. 

Right  of  municipality  to  operate  public 
utility  in  competition  with  citizen, 
1918B-106. 

Validity  of  statute  conferring  on  public 
service  commission  power  to  determine 
necessity  for  construction  or  extension 
of  public  utility,  1916E-299. 

*  PUBLIC  WHARVES. 

Liability  for  injuries  sustained  on  defec- 
tive public  wharf,  1916C-150. 


PUBLIC  WORKS. 

Effect  of  partial  invalidity  of  statute  re- 
latiAg  to  municipal  public  works, 
1916D-76. 

PULLMAN  CARS. 
See  Sleeping  Car  Companies. 

PUNISHMENT. 
See  Convicts;  Sentence  and  Punishment. 

PUPILS. 
See  Schools. 

PURCHASE  MONEY  MORTGAGES. 

See  Mortgages. 

PURCHASERS  FOR  VALUE. 
See  Sales;  Vendor  and  Purchaser. 

PURE  SEED  LAW. 
See  Agriculture. 

QUALIFICATIONS. 
See  Jury. 

QUASI-JUDICIAL  BODY. 
See  Courts. 

QUESTIONS  OF  LAW  AND  FACT. 

Negligence  of  attorney  as  question  of  law 
or  fact,  1917B-11. 

Privileged  nature  of  comment  on  matter 
of  £ublic  interest  as  question  of  law 
or  fact,  1917B-431. 

Sufficiency  of  compliance  with  watchman 
clause  in  fire  insurance  policy  as  ques- 
tion of  law  or  fact,  1917D-823. 

"Whether  act  of  intermeddling  charges  per- 
son as  executor  de  son  tort  as  ques- 
tion of  law  or  fact,  1917E-22. 

Whether  assault  is  made  with  intpnt  to 
commit  robbery  as  question  of  law  or 
fact,  1918A-419. 

QUIET  ENJOYMENT. 
See  Landlord  and  Tenant. 

QUIETING  TITLE. 

Inconsistent    defenses   in   action    to    quiet 

title,  1917C-734. 
Eight  to  affirmative  relief  on  cross  bill  to 

quiet   title,    1917D-674. 
Running  of  statute  of  limitations  against 

action  to  quiet  title,  1917A-661. 

QUORUM, 
see  Municipal  Corporations. 


u 


DIGEST. 

1916C— 1918B. 


QUOTIENT  VERDICT. 
See  Verdict. 

QUO  WARRANTO. 

Burden  of  proof  in  quo  warranto  proceed- 
ing or  action  in  nature  thereof,  1917B- 
467. 

RACES. 
See  Intoxicatiiig  Liquors;  Jury. 

BJULROADS. 

Adverse,  possession:  what  constitutes  no- 
tice to  railroad  company  of  adverse 
possession  of  its  property,  1917A-1274. 

Animals:  effect  of  partial  invalidity  of 
statute  relating  to  injury  to  stock  by 
railroad,  1916D-3o. 

Bridges:  power  of  municipality  to  compel 
raUroad  to  repair  bVidge  within  muni- 
cipal limits,  1916C-1171. 

Completed:  meaning  of  "complete"  or 
"completed"  as  applied  to  railroad, 
1916D-I232. 

Corporations:  alteration  in  charter  or 
change  in  corporate  design  as  releas- 
ing subscriber  to  railroad  stock, 
1918A-79. 

Crossings:  withdrawal  of  unreasonable  tes- 
timony as  to  looking  or  listening  for 
train  from  consideration  of  jury, 
1917B-477. 

"Depots":  effect  of  partial  invalidity  of 
statute  relating  to  depots,  1916D-85. 

— ^legal  meaning  of  "depot,"  I917A-1283. 

— right  of  railroad  company  to  grant  ex- 
clusive privileges  on  depot  grounds, 
1918A-702. 

Fires:  effect  of  partial  invalidity  of  statute 
relating  to  fires  set  by  railroads, 
1916D-54. 

— validity  of  statute  making  railroad  ab- 
solutely liable  for  damage  by  fire, 
1918A-632. 

Frogs,  switches,  etc.:  duty  of  railroad  com- 
pany to  block  frogs,  switches  and 
guard  rails,  1916E-642. 

Hand  cars:  liability  of  railroad  company 
for  injuries  caused  by  operation  of 
hand  car,  1916E-321. 

Headlights:  running  train  without  head- 
light as  negligence  towards  person  on 
track  at  place  other  than  crossing, 
1918A-1181. 

Mail  cranes:  location  of  mail  crane  near 
railroad  track  as  actionable  negligence, 
1916E-717. 

Motorcycles:  right  of  action  by  driver  of 
motorcycle  for  collision  with  train, 
1917A-224. 

Object  falling  from  train:  liability  of  rail- 
road company  for  personal  injuries 
caused  by  objects  thrown  or  falling 
from  train,  1917D-540. 

"Plant"  as  including  rolling  sto6k  of  rail- 
road, 1917A-32I. 


RAILROADS— Continued. 

Eight  of  way:  acquisition  of  title  to  land 
within  right  of  way  of  railroad  by  ad- 
verse possession  or  prescription,  1916D- 
1186. 

— estate  or  interest  acquired  by  railroad 
in  land  purchased  for  right  of  way, 
1916E-763. 

—interest  in  land  acquired  by  condemna- 
tion for  railroad  purposes  as  easement 
or  fee,  1918A-810. 

—power  of  telegraph  or  telephone  com- 
pany to  condemn  railroad  right  of  way 
under  state  statute,  1917B-689. 

^right  of  railroad  company  to  condemn 
water  over  which  right  of  way  is  con- 
structed, 1916E-1215. 

Speed:  withdrawal  of  unreasonable  testi- 
mony as  to  speed  of  train  from  con- 
sideration of  jury,  1917B-479. 

Statutory  regulation:  effect  of  partial  in- 
validity of  statute  relating  to  rail- 
roads, 1916D-84. 

— state  regulation  of  railroads  as  interfer- 
ence with  interstate  commerce,  191 7 A— 
973. 

Suction:  liability  of  railroad  to  person  on 
or  near  right  of  .way  injured  by  suc- 
tion from  passing  train,  i918A-872. 

Taxation:  assessment  of  railroad  right  of 
way  for  street  improvement,  1916E- 
579. 

— effect  of  partial  invalidity  of  statute  re- 
lating to  taxation  of  railroads,  1916D- 
91. 

— valuation  of  railroad  property  for  pur- 
pose of  taxation,  1916E-1186. 

Tickets:  person  buying  and  selling  rail- 
road tickets  as  "dealer,"  1917A-961. 

Timber:  rights  of  railroad  company  with 
respect  to  timber  on  public  lands, 
1917A-10. 

Vehicles:  stopping  or  leaving  vehicle  near 
railroad  as  negligence,  1917C-1233. 

Wrong  track:  running  train  on  wrong  or 
unusual  track  as  negligence,  1917A- 
936. 

Workmen's  compensation:  railroad  em- 
ployees as  within  purview  of  work- 
men's compensation  act,  1918B-664. 

— railroad  employment  as  within  purview 
of  workmen's  compensation  act, 
1917B-26. 

See  also  Carriers  of  Passengers;  Ease- 
ments; Employers'  Liability  Acts; 
Public  Service  Corporations. 

RAPE. 

Impotency  as  defense  to  charge  of  rape  or 
assault  with  intent  to  rape,  1916D- 
535, 

Inadequacy  or  excessiveness  of  verdict  in 
civil  action  for  rape,  1917E-135. 

What  constitutes  cruel  and  unusual  punish- 
ment for  rape,  1918B-399, 

RATES. 

See    Gas;     Public    Service    Corporations; 

Tickets  and  Fares. 


INDEX  TO  THE  NOTES. 


95 


RATIFICATION. 
See  Alteration  of  Instruments. 


BECOBD. 

See  Appeal  and  Error. 


EEADVEETISEMENT. 
,•  See  Contracts. 

SEAL  ESTATE  BBOKBBS. 
See  Agency;  Brokers. 

BEAL  PBOPEBTT. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  title  to  real  property,  1916D- 
47. 

Inconsistent  defenses  in  action  relating  to 
real  property,  1917C-729. 

Meaning  of  "plant"  as  used  with  reference 
to  real  estate,  19I7A-321. 

Rent  as  realty  or  personalty,  1918A-148. 

What  constitutes  real  estate  "dealer," 
1917A-961. 

See  also  Attachment;  Executors  and  Ad- 
ministrators; Becording  Acts. 


BECOBDING  ACTS. 

Constructive  notice  from  record  of  instru- 
ment containing  defective  description 
of  real  property,  19176-78.').    • 

Delay  in  recording  deed  as  constituting 
fraud  on  creditors  of  grantor,  1918A- 
1054. 

Liability  of  attorney  to  client  for  failure 
to  r^rd  instrument,  1917B-22. 

Record  orinstrument  as  constructive  notice 
of  fraud,  1917A-267. 

Record  of  instrument  out  of  line  of  title 

as  constructive  notice,  1917E-486. 

See  also  Chattel  Mortgages. 


BECOBDS. 

Proof  by  parol  of  contents  of  lost  or  de- 
stroyed judicial  record,  1916D-248. 
See  also  Corporations. 


BECEIPT  OF  UBTTEB. 
See  Letters. 


BECOVEBY  OF  PAYMENTS. 
See  Payment. 


BECEIPT  OF  TELEGBAM. 
See  Telegraphs  and  Telephones. 


BECBEATION. 
See  Jury. 


BECEIPTS. 
See  Accord  and  Satisfaction;  Warehouses. 


BECBIMINATION. 
See  Divorce. 


BECEIVEBS. 

Appointment  of  receiver  for  building  and 
loan  association,  1917A-827. 

Liability  of  receiver  for  rent,  1916E-818. 

Personal  liability  of  receiver  for  attor- 
ney's fees,  1917B-354. 

Receiver  of  property  as  necessary  party  de- 
fendant to  action  to  foreclose  mechan- 
ic's lien,  1918B-23. 

Set-off  against  receiver,  1916D-599. 


REDEMPTION. 
See  Taxation. 

«         BED  FLAGS. 
See  Parades. 

BE-EMPLOYMENT. 
See  Belease  and  Discharge. 


Meaning  of  term 
1918A-814. 


"BECENT." 

recent"   or   "recently," 


BEFEBEES. 

Personal  liability  of  attorney  for  fees  of 
referee,  1917B-524. 


RECIPBOCAL   DEMURRAGE. 
See  Carriers  of  Goods. 

BECITALS.     . 
See  Wills. 

EECLAMATION. 

Employment  in  connection  with  reclama- 
tion of  arid  lands  as  within  purview  of 
workmen's  compensation  act,  1917D- 
14. 


BEFOBMATION. 

See  Bescission,  Cancellation  and  Beforma- 
tion. 


BEFORMATOBIES. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  reformatories,  1916D-78. 
See  also  Convicts;  Prisons  and  Prisoners. 

BEGISTRATION. 
See  Elections. 


96 


EEGULATIONS. 
See  cross-references  under  Rules  and  Begu- 

lations. 

EEHEABINO. 

Exclusion  or  inclusion  of  Sunday  or  holi- 
day, in  computation  of  time  for  appli- 
cation for  rehearing,  1917E-941. 

Jurisdiction  of.  appellate  court  to  grant  re- 
hearing after  remand,  1917A-285. 

EEJECTION  OF  VOTEM 

See  Elections. 

RELATIONSHIP. 
See  Life  Insurance;  Marriage. 

RELATIVES. 

Communication  to  relative  as  privileged 
within  law  of  libel  and  slander, 
1917E-898. 

Liability  of  relative  other  than  parent  or 
guardian  for  alienation  of  affections, 
1917E-1027. 

Validity  and  effect  of  contract  induced 
by  threats  of  criminal  prosecution 
against  friend,  or  relative  other  than 
parent,  child  or  spouse,  1917C-1033. 

See  also  Divorce;  Insanity;  Judges;  Wills. 

RELEASE  AND  DISCHARGE. 

Avoidance  of  release  of  claim  for  personal 
injuries  on  account  of  misstatements 
by  physician  as  to  nature  of  injuries, 
1918A-358. 

Liability  of  attorney  to  client  for  unau- 
thorized release  of  client's  claim, 
1917B-14. 

Eight  of  subrogation  of  insurer  as  affected 
by  release  by  insured  of  person  caus- 
ing loss,  1917A-1298. 

Validity  of  release  given  in  consideration 
of  re-employment  of  releasor  by  re- 
leasee, 1916E-175. 

See  also  Dower;  Mortgages;  Stock  and 
Stockholders;  Suretyship. 


AND      REVERSIONS- 


DIGEST. 
1916C— 1918B. 

REMAINDERS 

Continued. 

Remainder  to  heirs  of  testator  as  vested  or 
contingent,  1917A-859. 

Bight  of  life  tenant  to  recover  damages 
for  injury  both  to  life  estate  and  in- 
heritance, 1916C-881. 

Right  of  representative  of  predeceased 
child  to  share  in  remainder  given  to 
children  as  a  class,  1917B-1245. 

Validity  of  conveyance  of  intereet  of  one 
remainderman  to  another,  1917A-520. 
■  See  also  Life  Estates. 


REMAND. 
See  Appeal  and  Error. 

BEMARRIAOE. 
See  Divorce. 

REMEDIES. 
See   Fraudulent    Sales    and    Conveyances. 

REMOVAL. 
See  Public  Officers;   Trusts  and  Trustees. 

REMOVAL  OF  CAUSES. 

Appealability  of  order  transferring  cause 
from  state  to  federal  court,  1916D- 
1049. 

Meaning  of  "revenue  laws"  in  statute  re- 
lating to  removal  of  causes,  1918B-270. 

RENEWAL. 

See   Landlord    and    Tenant;    Master    and 
Servant;   Usury. 

RENT. 
See  Landlord  and  Tenant. 

RENUNCIATION, 

See  Executors  and  Administrators;  Trusts 

and  Trustees. 


RELIGION. 
See  Wills. 


REPEAL. 
See  Bonds;  Statutes. 


RELIGIOUS  SOCIETIES. 

Communistic  society  or  corporation  as  con- 
trary to  public  policy,  1917A-468. 

REMAINDER. 

Meaning  of  "all"  as  used  in  will  in  connec- 
tion with  "rest,"  "residue,"  or  "re- 
mainder," 1917E-75. 

REMAINDERS  AND   REVERSIONS. 

Destruction  of  contingent  remainder  to  un- 
born person,  1917A-902.    • 


REPETITION. 
See  Libel  and  Slander. 

REPLEVIN. 


Right  to  recover  attorney's  fees  in  action'- 
on  replevin  or  detinue  bond,  1916D-* 
874. 

REPLY. 

See  Pleading. 

REPLY  LETTERS. 
See  Letters. 


INDEX  TO  THE  NOTES. 


97 


REPORTERS. 
See  Newspapers. 

REPORTS. 
See  Grand  Jury;  Mercantile  Agencies. 

REPRESENTATIVES. 
See  Executors  and  Administrators. 

REPUBLICATION. 
See  Libel  and  Slander. 

REPUDIATION. 
See  Infants. 

REPUTATION. 

See  Fines  and  Penalties;  Malicious  Prose- 
cution; Seduction. 

RESCISSION,      CANCELLATION      AND 
REFORMATION. 

Bonds:  right  to  reform  bond  by  changing 
name  of  obligee,  1916C-184. 

Building  and  loan  associations:  avoidance 
of  building  and  loan  contract  on 
ground  of  fraud,  1917A-890. 

Building  contracts:  right  of  building  con- 
tractor to  rescind  contract  for  failure 
of  owner  to  make  payment,  1916C-54. 

Contracts  of  sale:  right  of  assignee  of  con- 
tract for  purchase  of  land  to  sue  for 
rescission  thereof,  1917E-845. 

— right  of  purchaser  to  rescind  contract  of 
sale  for  breach  by  vendor  in  tendering 
less  land  than  quantity  contracted  for, 
1916D-1154. 

— statement  of  opinion  as  to  future  profits 
of  business  as  ground  for  action  for 
fraud  or  for  rescission  of  contract, 
1916D-1040. 

Homestead:  right  to  reformation  of  con- 
veyance of  homestead,.  1916E-1131. 

Wills:  jurisdiction  of  equity  to  reform 
will,  1917D-1157. 

RESERVATION. 
See  Dedication;  Deeds. 

RES  GESTAE. 

See  Evidence. 

RESIDENCE. 

See  Divorce;  Elections;  Insurance;  Taxa- 
tion;  Workmen's  Compensation  Acts. 

RESIDUE. 

Meaning  of  "all"  as  used  in  will  in  con- 
nection with  "rest,"  "residue,"  or  "re- 
mainder,"  1917E-75,6 


RES  IPSA  LOQUITUR. 
See  Negligence. 

RESISTING  OFFICER. 

Defense  of  property  as  justification  for 
resisting  officer,  1917D-293. 

BES  JUDICATA. 

Estoppel  by  judgment  as  applicable  to 
person  assisting  prosecution  or  de- 
fense of  action,  1916E-154. 

Judgment    settling   title    to   land    as    con- 
,     elusive    between    successful    claimant 
and    grantor    of    defeated    claimant, 
I916E-161. 

Order  in  habeas  corpus  proceeding  as  res 
judicata,  1916D-506. 

Voluntary  dismissal  of  bill  for  divorce  as 
res  judicata,  1917A-1201. 
See  also  Deeds;  Wills. 

REST. 

Meaning  of  "all"  as  used  in  will  in  con- 
nection with  "rest,"  "residue,"  or  "re- 
mainder,"  1917E-75. 

RESTAURANTS. 

Liability  as  for  negligence  of  proprietor 
of  restaurant  or  lunch  room  to  person 
injured  by  eating  therein,  1916I)-921. 

REST  DAY. 
See  Labor  Laws. 

RESTING. 

Effect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  rest, 
1918A-1196. 

RESTORATION  OF  PROPERTY. 
See  Divorce;  Embezzlement. 

RESTRAINING   ORDERS. 
See  Injunctions. 

RESTRAINT  OF  MARRIAGE. 
See   Marriage. 

RESTRAINT   OF   TRADE. 
See  Monopolies. 

RESTRAINT    ON   ALIENATION 
See  Deeds. 

RESTRICTIVE   COVENANTS. 
See  Deeds;   Vendor  and  Purchaser. 

RESULTING    TRUSTS. 
See  Trusts  and  Trustees. 


m 


DIGEST. 

1916C— 1918B. 


EETENTION  OF  POSSESSION 
See  Frauds,  Statute  of. 

RETRACTION. 
See  Libel  and  Slander. 

RETREAT. 
See  Self-defense. 

RETURN. 
See  Notice;  Process. 

REVENGE. 
See  Dying  Declarations. 

REVENUE. 
.Legal  meaning  of  "revenue,"  1918B-200. 

REVENUE  DEBTS  OR  CHARGES. 


ROBBERY. 


Attempt  to  commit  robbery  or  assault 
with  intent  to  commit  robbery,  1918A- 
406. 

What  constitutes  cruel  and  unusual  pun- 
ishment for  robbery,  1918B-400. 

ROOMING  HOUSES. 

Validity  of  statute  or  ordinance  licensing 
or  regulating  hotels,  lodging  or  room- 
ing houses,  or  the  like,  1916C-290. 

ROOMS. 

See  Elections. 

ROUNDING  CURVES. 
See  Street  Railways. 

ROYALTIES. 


Legal     meaning     of     "revenue     debts     or      Distinction     between     rent     and     royalty, 
^charges,"  1918B-219.  1916&-1225. 


REVENUE  LAWS 


RULES  AND  REGULATIONS. 


Legal  meaning  of  "revenue  laws,"  1918B-  See  Attorneys;  Carriers  of  Goods;  Car- 
riers of  Passengers;  Fire  Insurance; 
Stock  Exchanges;   Street  Railways. 


209. 


REVENX7E  MEASURE. 


Legal  meaning  of  "revenue  measure," 
1918B-218. 

REVENUE    TAX. 

Legal  meaning  of  "revenue  tax,"  1918B- 
219. 

REVIVAL. 

See    Actions;   Fire    Insurance;    Statutes; 
Wills. 

REVOCATION. 

See  Agency;  Dedication;  Executors  and 
Administrators;  Intoxicating  Liciuors; 
Telegraphs  and  Telephones;  Wills. 

REVOLVING  DOORS. 
See  Owners  of  Premises. 

RIGHT  OF  PRIVACY. 
See  Privacy,  Right  of. 

RIGHT   OF  WAY. 
See  Easements;  Railroads. 

RIPARIAN    RIGHTS. 
See  Waters  and  Watercourses. 

RIVERS. 

Eiver  amd  harbor  or  fortification  work  as 
employment  within  purview  of  work- 
men's  compensation   act,    1917D-27. 


RUNAWAY  HORSES. 
See  Animals. 

"S." 
See  Names. 

SAID. 

Legal  meaning  of  "said,"  1917D-603. 

SAILORS. 

See  Army  and  Navy. 

SALARY. 

Distinction  between  "salary"  and  "wages," 
1917B-321. 

See  also  Public  Oficers. 

SALES. 

Alien  enemies:  contract  of  sale  with  alien 
enemy,   1917Cy203. 

Automobiles:  liability  of  maker  of  auto- 
mobile to  third  persons  for  defective 
construction   thereof.,   1917E-584. 

— nature  and  construction  of  automobile 
sales  agency  contracts,  1917E-o68. 

Conditional  sales:  election  of  remedies  on 
breach  of  conditional  sale,  1917D- 
464. 

— right  of  chattel  mortgagee  or  condi- 
tional vendor  to  accession  to  property 
mortgaged  or  sold,  1917G-U70. 


INDEX  TO  THE  NOTES. 


99 


SALES — Continued. 

Conditional  sales:  right  of  conditional 
vendee  to  recover  damages  for  breach 
of  warranty,  1918B-914. 

— rights  of  parties  in  case  of  conditional 
sale  of  property  to  be  attached  to 
realty  of  third  person,  1916D-91o. 

"Market  price":  selling  price  fixed  by  com- 
bination or  monopoly  as  "market 
price,"  1918A-575. 

Offer  and  acceptance:  acceptance  of  offer  • 
once    rejected    as   consummating    con- 
tract of  sale,  1917C-987. 

Pleading:  inconsistent  defenses  in  action 
growing  out  of  contract  of  sale,  1917C- 
727. 

Purchasers  for  value:  purchaser  of  chattel 
for  pre-existing  debt  as  purchaser  for 
value,  1918A-455. 

Vendor's  lien:  transfer  of  warehouse  re- 
ceipt as  divesting  vendor's  lien, 
1917D-112. 

Warranty:  express  or  implied  warranty  on 
sale  by  sample,  1917C-311. 

— express  or  implied  warranty  on  sale  of 
seed,  1918B-72. 

— warranty  to  agent  as  inuring  to  benefit 
of  undisclosed  principal,  1918B-130. 

See  also  Corporations;  Damages;  Food  and 
Drugs;  Frauds,  Statute  of;  Guardians; 
Hawkers  and  Peddlers;  Judicial  Sales; 
Bestaurants;  Tenants  in  Common; 
Value. 

SAMPLES. 
See  Hawkers  and  Peddlers;  Sales. 


SCHOOLS — Continued. 

Buildings:  power  of  school  authorities  to 
permit  use  of  school  building  for  other 
than  religious  or  public  school  pur- 
poses, 1916C-480. 

Elections:  residence  at  sehool  as  affecting 
right  to  vote,  1917C-403. 

Pupils:  power  to  expel  or  suspend  pupil 
from  school,  1918A-400. 

— separation  of  white  and  colored  pupils 
for  purposes  of  education,  1916C-806. 

— validity  of  health  regulation  relating  to 
school  children,  1917A-765. 

— validity  of  statutory  or  other  prohibi- 
tion against  secret  societies  among 
students,  1916E-527. 

School  districts:  power  of  sehool  district 
to  employ  counsel,  1918A-502. 

School  funds:  power  of  legislature  with  re- 
spect to  expenditure  of  school  funds, 
1917C-917. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  schools  and  col- 
leges, 1916D-86. 

— effect  of  partial  invalidity  of  statute 
relating  to  taxation  for  schools, 
1916D-93. 

Teachers:  comment  on  educator  or  teacher 
as  privileged  within  law  of  libel  and 
slander,  1917B-421. 

— marriage  as  ground  for  removal  of 
woman  school  teacher,  1917D-271.   • 

— validity  of  statute  fixing  minimum  sal- 
ary of  school  teachers,  1916E-420. 
See  also  Befonnatories. 


SANATOEIUMS. 
See  Hospitals  and  Asylums. 


SCIENTIFIC  BOOKS. 
See  Witnesses. 


SATISFACTION. 
See  Accord  and  Satisfaction. 


SCINTILIiA. 
See  Evidence). 


SAVING  LIFE. 
See  Contributory  Negligence. 

SAVINGS   BANKS. 

Eight  of  depositor  in  insolvent  bank  to  set 
off  deposit  against  debt  to  bank, 
1917C-1187. 

Set-off  against  receiver  of  savings  bank, 
1916D-600. 

SCAFFOLDING. 

Meaning  of  "sca.ffolding"  as  used  in  work- 
men's compensation  act,  1917I>-15. 
See  also  Owners  of  Premises 

SCHOOLS. 

Buildings:  liability  of  municipal  corpora- 
tion or  school  board  for  defective  con- 
dition    of     public     school     premises, 
.     1917D-797. 


8CIBE  FACIAS. 

Proof  by  parol  of  contents  of  lost  or  de- 
stroyed writ  of  scire  facias,  1916D- 
252. 

SEALS. 

Seal  as  sufficient  signature  to  will,  1917B- 

876. 

SEAMEN. 
See  Ships  and  Shipping. 

SEABCHES   AND    SEIZUBES 

Sufficiency  of  description  of  premises  in 
search  warrant  or  affidavit  therefor, 
1916D-952. 

SECOND-HAND  GOODS. 

What  constitutes  second-hand  goods  "deaV 
er."  1917A-961. 


100 


DIGEST. 

1916C— 1918B, 


SECONIK-HAND   MATERIAL. 
See  Clothing. 

SECBECY. 

Communication  based  on  promise  of  secrecy 
as  privileged  from  disclosure,  1916C— 
699. 

SECRET  PROFITS. 
See  Corporations. 

SECRET  SOCIETIES. 
See  Schools. 

SECTARIAN  SCHOOLS. 

Validity    of    expenditure   of  school   funds 
.    for   maintenance   of   sectarian  school, 
•■ '    19I7C-923. 

SECURITIES. 

Lien  of  attorney  on  securities  in  his  pos- 
session,    connected     with     litigation, 
1917D-149. 
See  also  Gnardlans;  Mortgages. 

SEDUCTION. 

Admissibility  of  evidence  of  defendant's 
reputation  in  prosecution  for  seduc- 
tion, 1916E-381. 

Eight  of  mother  to  maintain  action  for 
daughter's  seduction,  1916EJ-1275. 

SEED. 
See  Agriculture. 

SELF-CRIMINATION. 
See  Witnesses. 

SELF-DEFENSE. 

Liability  as  for  negligence  of  person  who 
injures  bvstander  while  acting  in  self- 
defense,  19160-1150. 

Right  of  person  assaulted  on  his  own  prem- 
ises to  repel  attack  without  retreat- 
ing, 1916G-918. 

SELF-SERVING   EVIDENCE. 
See  Evidence. 

SENTENCE  AND  PUNISHMENT. 

Effect  of  failure  to  ask  convicted  person 
if  he  has  anything  to  say  before  sen- 
tence, 1916C-95. 

Propriety  of  instruction  as  to  punishment 
imposed  for  various  degrees  of  homi- 
cide, 1917A-752. 

Punishment  of  corporation  for  criminal 
acts,  1916C-465. 


SENTENCE  AND  PUNISHMENT— Con- 
tinued. 

Right  of  prisoner  who  has  received  exces- 
sive sentence  to  be  discharged  on 
habeas  corpus  or  appeal,  1916D-368. 

What  is  cruel  and  unusual  punishment, 
1918B-396. 

See  also  Appeal  and  Error;  Convicts;  Life 
Insurance. 

SEPARATION. 

See    Alienation    of    Affections;    Divorce; 
Husband  and  Wife. 

SEPARATION  OF  RACES. 
See  Carriers  of  Passengers;  Schools. 

SERIOUS  ILLNESS. 
See  Life  Insurance. 

SERVICE. 
See  Notice;  Pleading;  Process. 

SERVICE  PIPES. 
See  Waterworks  and  Water  Companies. 

SERVICES. 

Price    paid    for    services   as   evidence    of 
value  thereof,  1916D-802. 
See  also  Infants;  Parent  and  Child. 

SESSIONS. 

See  Legislature. 

SET-OFF. 

Appeal:  amount  in  controversy  for  purpose 

of   appeal   where   defendant   has   filed 

counterclaim,  1917D-99. 
Bankruptcy;  set-off  under  American  bank- 
ruptcy acts,  1916C-975. 
Banks:    lien   or   set-off  of   insolvent    bank 

against  deposit  for  debt  of  depositor 

not  yet  due,  1917C-1205. 
. — right  of  depositor  in  insolvent  bank  to 

set  off  deposit  against  debt  to  bank, 

19170-1187. 
— set-off  by  bank  of  deposit  against  debt 

due   bank   by   depositor    as    voidable 

transfer  under  bankruptcy  law,  1916C- 

990. 
Monopolies:   right  of  defendant  in   action 

by  monopoly  on  collateral  contract  to 

set  off  damages  by  him  on  account  of 

monopoly,   1916D-946. 
Landlord    and   tenant:    right    to    interpose 

set-off   or    counterclaim    in    action    by 

landlord  to  recover  demised  premises, 

1916D-372. 
Pleading:    waiver    of   failure   to   reply   to 

counterclaim,  1917D-619. 
Eeceivers:  set-off  against  receiver,  1916D- 

599. 
Torts:  counterclaim  for  tort  in  action  for 

tort,  1917D-114. 


INDEX  TO  THE  NOTES. 


101 


SETTING  ASIDE  INDICTMENT. 
See  Criminal  Law. 

SETTLEMENT. 
See  Compromise  and  Settlement;   Embez- 
zlement; Guardians;  Larceny. 

SEVEEANCE  OF  ESTATES 
See  Mines  and  Minerals. 

SEVERANCE  OF  LIMB. 
See  Accident  Insurance. 

SEVERE  ILLNESS. 
See  Life  Insurance. 

SEWERS. 
See  Drainage. 

SHAFTS. 
See  Mines  and  Minerals. 

SHAM  PLEADING. 
See  Pleading. 

SHERIFFS  AND  CONSTABLES. 

Liability  of  sureties  on  bond  of  sheriff 
or  constable  for  assault  committed  by- 
officer,   1916D-923. 

Personal  liability  of  attorney  for  fees  of 
sheriff  or  constable,  1917B-520. 
See  also  Judicial  Sales. 

SHIPS  AND  SHIPPING. 

Bridges:  liabilitj^  for  injury  to  bridge 
caused  by  vessel,   1917B-938. 

Collision:  right  to  recover  damages  for 
loss  of  use  of  vessel  resulting  from 
collision  without  total  loss,  1917B-999. 

Master  and  servant:  employee  working  on 
waterfront  as  entitled  to  protection 
under  federal  employers'  liability  act, 
1918B-68. 

— operation  of  vessel  as  employment 
within  purview  of  workmen's  compen- 
sation act,  1917D-29. 

— what  constitutes  "loss"  within  meaning 
of  statute  terminating  seamen's  wages 
upon  loss  of  vessel,  1916D-688. 

— work  on  ship  as  within  purview  of 
workmen's  compensation  act,  191 7D- 
21. 

Pilots:  effect  of  partial  invalidity  of  stat- 
ute relating  to  pilots,  1916D-^78. 

War:  right  to  bring  prize  into  neutral  port, 
1917D-448. 

Wharves:  right  of  person  having  business 
with  officer  of  vessel  to  recover  dam- 
ages for  injuries  sustained  on  defec- 
tive wharf,  1916C-145. 

See  also  Carriers  of  Passengers;  Marine 
Insurance. 


SHOES. 
See  Evidence. 

SHOOTING. 

See  Assault. 

SICKNESS. 

See  Carriers  of  Passengers;  Disease;  Life 
Insurance;  Master  and  Servant. 

SIDE  TRACKS. 
See  Street  Railways. 

SIDEWALKS. 
See  Streets  and  Higliway& 

SIGNATURE. 

See  Bills  and  Notes;  Frauds,  Statute  of; 

Wills. 

SIGNS. 

Municipal  regulation  of  billboards  and 
signs,  1916C-491. 

SINGLE  EDITION. 
See  Newspapers. 

SISTER. 

Sister  as  "dependent"  within  workmen's 
compensation  act,  1918B-759. 

SITUS. 
See  Taxation. 

SLANDER. 
See  Libel  and  Slander. 

SLANDER  OF  TITLE. 
See  Libel  and  Slander. 

SLEEPING  CAR  COMPANIES. 

Pullman  car  employee  as  employee  of  rail- 
road under  federal  employers'  liabil- 
ity act,  1918B-53. 

SMOKE. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  smoke  as  nuisance,  1916D-77. 

Validity  of  smoke  ordinance  or  statute, 
1918B-173. 

SOBRIETY. 

Presumption  of  temperance  or  sobriety, 
1918A-620. 

SOCIETIES  AND  CLUBS. 

Application  of  statute  regulating  liquor 
traffic  to  bona  fide  social  club  distrib- 
uting liquor   to  members,  I916D-940. 


102  DIGEST. 

1916C— 1918B. 

SOCIETIES  AND  CLUBS— Continued. 

Fire  company,  insurance  patrol  or  the  like 
as  charitable  institution,  1917C-797. 

Powers  and  liabilities  of  private  corpo- 
ration or  association  organized  to  pro- 
mote business  interests  of  community, 
1917C-787. 

Bight  of  unincorporated  benevolent,  fra- 
ternal or  social  organization  to  protec- 
tion in  use  of  its  name,  1918A-245. 

See  also  Building  and  Loan  Associations; 
Religious  Societies;  Schools. 


Imputing    sodomy 
1917A-1045. 


SODOMY. 

to    man 


as    slander, 


SOLDIEBS. 
See  Army  and  Navy;  Elections. 

SOLICITATION   OF   BUSINESS. 
See  Attorneys. 

SPECIAL  APPEABANCE. 
See  Appearance. 

SPECIAL  ASSESSMENTS. 
See  Taxation. 

SPECIAL   MEETINGS. 
See  Stock  and  Stockholders. 

SPECIAL  PEOSECUTING  ATTORNEYS. 
See  Prosecuting  Attorneys 

SPEED. 

See  Automobiles;  Railroads;   Street  Rail- 
•ways. 

SPENDTHRIFT  TRUFTS. 
See  Trusts  and  Trustees. 

SPRINGS. 
See  Waters  and  Watercourses. 

SB. 

See  Names. 

STARE  DECISIS. 

Force  and  effect   of   advisory  opinion  by 
Appellate  judge,  1917A-495. 


STATE  BANES. 

Examiners  of  state  banks,  1916E-219. 
Liability    of    state    bank    on    contract 
guaranty,  1916D-555. 


STATE   COURTS. 
See  Courts;  Removal  of  Causes. 

STATE  FOREST  RESERVES. 
See  Trees  and  Timber. 

STATE  LANDS. 
See  Public  Lands. 

STATES. 


of 


Abatement  of  mandamus  against  state 
ofBcer  by  termination  of  respondent's 
oflSce,  1918A-1000. 

Bight  to  damages  for  unlawful  detention 
in  state  hospital  or  institution  for 
insane,  1917C-162. 

State  property  as  subject  to  special  as- 
sessment,   1917D-845. 

See  also  Common  Law;  Public  Lands; 
Public  Oflcers. 

STATE  STATUTES. 
See  Employers'  Liability  Acts. 

STATIONARY  ENGINES. 
See  Fires. 

STATIONS. 
See  Carriers  of  Passengers;  Depots. 

STATUTE  OF  FRAUDS. 
See  Frauds,  Statute  of. 

STATUTE  OF  LIMITATIONS. 
Sm  Limitation  of  Actions. 


STATUTES. 

Adopted  statutes:  construction  of  adopted 
statute,   1917B-651. 

"All":  meaning  of  "all  property"  as  used 
in  instrument,  statute,  etc.,  other  than 
will,  1917E-58. 

—meaning  of  "all"  as  used  in  prohibitory 
or  regulatory   statute,  1917E-39. 

• — meaning  of  "all  damages"  as  used  in 
statute,  1917E-83. 

Amendment:  effect  of  paftial  invalidity 
of  amending  statutes,  1916D-21. 

"Child"  in  statute  as  including  illegiti- 
mate child,   1918B-250. 

Conditions:  effect  of  invalidity  of  condi- 
tion in  statutes,  1916D-26.    * 

Enactment:  judicial  notice  of  contents  of 
legislative  journals  on  issue  as  to 
enactment  of  statute,  1916E-1284. 

— validitv  of  adoption  or  publication  of 
statute   on   holiday,   1916E-849. 

Exceptions:  effect  of  invalidity  of  excep- 
tion to  statute,  1916D-26. 


INDEX  TO  THE  NOTES. 


103 


STATUTES— Continued. 

Executive  action:  admissibility  of  ex- 
trinsic evidence  with  respect  to  ap- 
proval or  disapproval  of  bill  by  exec- 
utive, 1917C-836. 

— exclusion  or  inclusion  of  Sunday  or 
holiday  in  computation  of  time  for 
return  of  bill  by  governor,  191 7E- 
943. 

"Law":  ordinance  as  "law"  within  mean- 
ing of  statutory  provision,  1917C- 
689. 

Partial  invalidity:  effect  of  partial  in- 
validity of  statutes,  1916D-9. 

Preamble  as  aid  to  construction  of  stat- 
ute, 1917C-500. 

Provisos:  effect  of  invalidity  of  proviso 
in  statute,  1916D-26. 

Public  oflSeers:  estoppel  of  public  ofl5cer 
to  deny  validity  of  statute  by  ac- 
cepting compensation  thereunder, 
1917C-284. 

Eepeal:  effect  of  partial  invalidity  of  re- 
pealing  statute,   1916D-21. 

— effect  of  repeal  or  amendment  of  repeal- 
ing statute  as  reviving  repealed  stat- 
ute,   1918B-281. 

— what  statutes  are  impliedly  repealed  by 
state  employers'  liability  or  work- 
men's compensation  act,  i916E-773. 

Eetroactive  operation:  workmen's  con- 
pensation  act  as  retroactive  in  opera- 
tion,  1918B-617. 

Taking  effect:  effect  of  invalidity  of  pro- 
vision in  statute  as  to  time  of  taking 
effect,    1916I>-32. 

— "from"  as  word  of  inclusion  or  exclu- 
sion with  respect  to  taking  effect  of 
statute,   19I8A-928. 

Title:  effect  of  invalidity  of  title  to  stat- 
ute, 1916D-28. 

See  also  Bonds;  Drunkenness;  Employers' 
Liability  Acts;  Foreign  Laws;  In- 
surance; Jury. 

STEALING   EIDE. 
See  Infants. 

STEAM-ROLLERS. 
See  Streets  and  Highways. 

STEAMSHIPS. 
See  Carriers  of  Passengers. 

STENOGRAPHERS. 

Personal  liability  of  attorney  for  fees  of 
stenographer,   1917B-525. 

See  also  Libel  and  Slander. 

STEPCHILDREN. 

Stepchild  as  "dependent"  within  work- 
men's compensation  act,  1918B-756. 

STEPFATHER. 

"Father"  as  including  stepfather,  1917B- 
1118. 


STIPULATED   FORFEITURE. 
See  Contracts. 

STIPULATIONS. 
See  Telegraphs  and  Telephones, 

STOCK. 

See  Carriers  of  Live  Stock;  Fire  Insur- 
ance. 

STOCK  AND  STOCKHOLDERS. 

Acknowledgment:  stockholder  or  officer 
of  corporation  interested  in  instru- 
ment as  disqualified  to  take  acknowl- 
edgment thereof,   1916D-705. 

Bills  and  notes:  right  to  notice  of  dishonor 
of  stockholder  or  officer  indorsing  cor- 
porate paper,  1917B-836. 

Books  and  records:  admissibility  in  evi- 
dence of  books  or  records  of  corpo- 
ration in  action  between  members  or 
between  corporation  and  member, 
1917D-558. 

— right  of  stockholder  to  inspect  books 
of  corporation  as  absolute  or  quali- 
fied, 1917D-898. 

Consolidation  of  corporations:  necessity 
of  assent  of  all  stockholders  to  con- 
solidation of  corporations,  1918A- 
165. 

Conversion  of  stock:  measure  of  damages 
for  conversion  of  shares  of  stock, 
1916C-641. 

Insurance:  validity  of  insurance  policy 
issued  by  agent  on  property  of  cor- 
poration of  which  agent  is  stock- 
holder,  1916D-1275. 

Mortgages:  right  of  creditor  to  object 
to  mortgage  of  property  of  corpora- 
tion made  without  required  consent 
of  stockholders,   1916C-1039. 

Preferred  shareholder  as  creditor  or 
stockholder  of  corporation,  1917B- 
558. 

Stockholders'  liability:  effect  of  partial 
invalidity  of  statute  relating  to  lia- 
bility of  stockholders,  1916D-39. 

—liability  for  corporation  debts  or  calls 
of  person  who  holds  stock  as  collat- 
eral security,   1916C-567. 

—validity  and  effect  of  statute  making 
stockholder  liable  for  corporate  debts 
after  bona  fide  transfer  of  stock, 
1917A-109. 

Stockholders'  meetings:  sufficiency  as  to 
contents  of  notice  of  special  meeting 
of   stockholders,    1917E-1004. 

—waiver  of  notice  of  stockholders'  meet- 
ing, 1916E-1038. 

Subscription  to  stock:  alteration  in  char- 
ter or  change  in  corporate  design  as 
releasing  subscriber  to  stock,  1918A- 
79. 

— liability  on  stock  subscription  as  de- 
pendent upon  whole  amount  of  stock 
having  been   subscribed,  1918B-1137. 


1<H 


DIGEST. 

1916C— 1918B. 


STOCK  AND  STOCKHOLDERS— Con- 
tinued. 

Subscription  to  stock:  right  of  stock- 
holder to  preference  in  subscribing 
for  new  stock,  1918B-132. 

— when  subscriber  to  stock  becomes  stock- 
holder, 1917E-209. 

Taxation:  effect  of  partial  invalidity  of 
statute  relating  to  taxation  of  stock 
and   stockholders,    1916D-92, 

— liability  to  taxation  within  state  of 
shares  of  stock  of  foreign  corporation, 
1916C-829. 

— situs  of  corporate  stock  for  purpose  of 
succession  tax,  1918A-555. 

Transfer  of  stock:  effect  on  sales  of  cor- 
porate stock  of  seventeenth  section 
of  statute  of  frauds  and  equivalent 
enactments,  1917C-991. 

—eligibility  of  officer  of  corporation  to 
whom  stock  is  transferred  for  pur- 
pose of  enabling  him  to  become  offi- 
cer,  1916E-963. 

— ^law  governing  transfer  of  corporate 
stock,  1917D-959. 

— purchase  of  stock  by  director  as  aflfected 
by  fiduciary  relation  to  stockholder, 
1918B-241. 

— rights  of  unregistered  transferee  as 
against  attachment  or  execution  lev- 
ied on  stock,  1917A-428. 

—validity  of  corporate  by-law  regulating 
alienation  of  stock,  19160-1202. 

STOCKBBOEEBS. 

See  Brokers. 

STOCK  EXCHANGES 

Validity  of  rule  of  stock  exchange  with 
respect  to  seat  of  insolvent  or  default- 
ing member,  1916E-879. 

STOCK  OF  GOODS. 
See  Chattel  Mortgages. 

STOPPING  PAYMENT. 
See  Checks. 

STOPPING  STATION. 
See  Carriers  of  Passengers. 

STOPPING  WORK. 
See  Master  and  Servant. 

STORAGE. 

Storage  as  hazardous  employment  within 
purview  of  workmen's  compensation 
act,  1917D-28. 

STORES. 

Liability  of  proprietor  for  injuries  re- 
ceived in  turnstile,  revolving  door, 
swinging  door,   1916D-1235. 


STRAW. 
Seller  of  straw  as  "dealer,"  1917A-953. 

STREAMS. 
See  Waters  and  Watercourses. 

STREET    RAILWAYS. 

Automobiles:  applicatioa  of  last  clear 
ehance  doctrine  to  collision  between 
automobile  and  street-car,   1916E-515. 

— rights  and  duties  of  person  driving 
automobile  in  highway  with  respect 
to  conductor  on  street  car,  1916E-6r4. 

— rights  and  duties  of  person  driving  au- 
tomobile in  highway  with  respect  to 
I         passenger  on  street-car,  1916E-673. 

Bridges:  power  of  municipality  to  compel 
street  railway  to  repair  bridge  within 
municipal    limits,    1916C-1171. 

Evidence:  withdrawal  of  unreasonable 
testimony  as  to  looking  or  listening 
for  street-car  from  consideration  of 
jury,  1917B-479. 

— withdrawal  of  unreasonable  testimony 
as  to  speed  of  street-car  from  consid- 
eration of  jury,  1917B-479. 

Fire  apparatus:  care  required  of  driver 
of  street-car  to  avoid  collision  with 
fire  apparatus,  1918A-290. 

Motorcycles:  right  of  action  by  driver 
of  motorcvcle  for  collision  with  trolly 
car,  1917A-224. 

Bounding  curves:  liability  of  street  rail- 
way company  for  injuries  caused  by 
striking  pedestrian  in  rounding  curve, 
1916E-679. 

Tracks:  power  of  street  railway  to  con- 
struct side  tracks,  1916C-793. 

— stopping  or  leaving  vehicle  near  street 
railway  track  as  negligence,  1917C- 
1233. 

Transfers:  validity  of  rule  of  street  rail- 
wav  with  respect  to  use  of  transfer, 
1916D-586. 

See  also  Carriers  of  Passengers;  Public 
Service  Corporations;  Workmen's 
Compensation  Acts. 

STREETS   AND   HIGHWAYS. 

Change  of  grade:  right  of  abutting  owner 
to  damages  for  change  of  street  to 
established  grade  where  he  improves 
property  after  grade  is  established, 
1916D-1143. 

Cleaning  streets:  liability  of  municipality 
for  tort  committed  in  cleaning  streets 
or  in  removal  of  garbage,  ashes,  or 
other  refuse,  19160-242. 

Condemnation  of  land:  interest  in  land 
acquired  by  condemnation  for  high- 
wav  purposes  as  easement  or  fee, 
1918A-808. 

Defective  condition:  personal  liability  of 
public  officer  for  injuries  caused  by 
defective  condition  of  streei  or  high- 
day,  1917D-939. 


INDEX  TO  THE  NOTES. 


105 


STREETS  AND  HIGHWAYS— Continued. 

Doors  or  gates:  liability  for  injuries 
caused  bv  door  or  gate  opening  out- 
■warda  in' street,  1916E-458. 

Municipal  control:  statute  conferring  on 
public  service  commission  power  to 
fix  rates  for  public  service  corpora- 
tions as  interference  with  municipal 
control  of  highways,  1917C-62. 

Obstructions:  criminal  liability  of  corpo- 
ration for  obstruction  of  public  road, 
1916C-463. 

— fruit  stand  or  similar  structure  on  pub- 
lic highway  as  nuisance,  1916D-773. 

■ — liability  as  for  negligence  of  person 
obstructing  highway  under  statutory 
or  municipal  authority,   1917A-1003. 

Poles  and  wires:  revocation  or  expiration 
of  right  of  electric  company  to  main- 
tain poles  and  wires  in  street,  1917E- 
525. 

Scaffolds:  liability  of  owner  of  building 
for  injury  to  pedestrian  resulting  from 
erection  of  scaffold  for  repairing  or 
painting  building,   1916C-123, 

Sidewalks:  legal  liability  for  injuries  sus- 
tained bv  pedestrian  from  coal  hole 
in  sidewalk,  1917D-494. 

— right  of  abutting  owner  to  use  sidewalk 
for  area  ways  and  the  like,  1917A— 
558. 

Street  improvements:  validity  Of  inclusion 
of  several  streets  in  one  improvement, 
1916D-455. 

Use  of  streets:  constitutionality  of  stat- 
utes and  ordinances  regulating  speed 
of  vehicles  in  streets  and  highways, 
1916E-1067. 

> — effect  of  partial  invalidity  of  statute 
relating  to  use  of  motor  vehicles  on 
highways,    1916D-58. 

— law  of  road  as  applicable  with  respect 
to  one  using  highway  for  play,  .1917C- 
454. 

— liabilitv  for  injury  to  infant  stealing 
ride  *^on  vehicle,  1917D-379. 

— municipal  regulation  of  automobiles 
with  respect  to  equipment,  use  of 
streets,  or  the  like,   1916E-1047. 

- — rights  and  duties  of  persons  driving 
automobiles    in    highways,    1916E-661. 

■ — speed  or  other  highway  restriction  as 
applicable  to  fire  apparatus,  1917D- 
565. 

— stopping  or  leaving  vehicle  in  dangerous 
place  in  street  as  negligence  preclud- 
ing recovery  for  resulting^  injuries, 
1917C-1229. 

— use    of    highway     by     traction     engine, 
1917E-798. 
•  ■ — use    of    streets     for     moving    buildings, 
1917C-77. 

— validity  of  ordinance  prohibiting  us© 
of  streets  bv  business  vehicles,  1916E— 
969. 

Vacation  of  streets:  persons  entitled  to 
compensation  for  vacation  of  street, 
1916C-238. 


STREETS  AND  HIGHWAYS— Continued. 

Walls:   application  of  doctrine  of  res  ipsa 
loquitur  to  injury   to  person  in  high- 
way caused  by  fall  of  wall  or  portion 
thereof,   1916E-1073. 
See  also  Animals;  Street  Railways. 

STRUCTURAL  CARPENTRY. 
See  Carpenters. 

STUDENTS. 
See  Schools. 

SUBCONTRACTORS. 

Who  is  "subcontractor"  within  mechanic's 
lien  law,  1917C-801. 

SUBLEASE. 
See  Landlord  and  Tenant. 

SUBPOENAS. 

Subpoena  as  prerequisite  to  issuance  oi 
restraining  order,  1917B-126. 

SUBROGATION. 

Payment  of  whole  debt  by  surety  as  es- 
sential to  right  of  subrogation  to 
creditor's  securities,  1917C-1183. 

Bight  of  insurance  company  to  enforce 
subrogation  by  suit  in  its  own  name, 
1918A-834. 

Eight  of  subrogation  of  insurer  as  af- 
fected by  release  by  insured  of  per- 
son causing  loss,  1917A-1298, 

Subrogation  of  insurer  to  rights  of  mort- 
gagee, 1917B-1135. 

Subrogation  of  purchaser  at  invalid  fore- 
closure sale  to  rights  of  mortgagee  or 
other  claimant,   1917D-576. 

SUBSCRIBING   WITNESSES. 
See  Wills. 

SUBSCRIPTION. 
See  Stock  and  Stockholders. 

SUBSTITUTE    PROSECUTING    ATTOR- 
NEYS. 

See  Prosecuting  Attorneys. 

SUBTERRANEAN  WATERS. 
See  Waters  and  Watercourses. 

SUBWAYS. 
See  Carriers  of  Passengers. 

SUCCESSION. 
See  Descent  and  Distribution. 


106 


DIGEST. 

1916C— 1918B. 


SUCCESSION  TAXES. 
See  Taxation. 

SUCTION. 
See  Bailroads. 

sumcrENCY  of  evedenoe. 

See  Evidence. 

SUICIDE. 

Suicide  as  evidence  of  insanity,  1916E- 
488. 

See  al3o  Life  Insurance. 

SUNDAYS  AND   HOLIDAYS. 

Computation  of  time:  exclusion  or  inclu- 
sion of  Sunday  or  holiday  in  computa- 
tion of  time,  1917E-934. 

Contracts:  principle  of  estoppel  as  ap- 
plicable to  rights  of  parties  under 
void   Sunday   contract,    1916E-467. 

Corporations:  criminal  liability  of  corpo- 
ration for  Sabbath  breaking,  1916C- 
465. 

Criminal  law:  engaging  in  labor  or  amuse- 
ment on  Sunday  as  offense  at  common 
law  or  under  statute  other  than  Sun- 
day law,  1918B-387. 

Gifts:  validity  of  gift  made  on  Sunday, 
1917A-424. 

Moving  pictures:  application  of  Sunday 
laws  to  moving  picture  shows,  1916C-- 
304. 

Official  or  judicial  acts:  validity  of  official 
or  judicial  act  performed  on  holiday, 
1916E-847. 

Bailroads:  validity  of  order  of  public  ser- 
vice commission  requiring  running  of 
Sunday  train,  I917B-1205. 

SUNSTROKE. 
See  Accident  Insurance. 

SUPERVENING  CAUSE. 
See  Homicide. 

SUPPORT. 
See  Husband  and  Wife. 

SURETYSHIP. 

Application  of  payment:  right  of  surety 
to  control  application  of  payment, 
1917C-587. 

Discharge  of  surety:  diversion  of  note 
or  proceeds  as  discharging  surety 
thereon,  1916D-733. 

— effect  on  liability  of  surety  of  release  of 
cosurety,   1917B-1183. 

—sufficiency  as  to  form  of  notice  to  credi- 
tor to  sue  principal  in  order  to  dis- 
charge surety,  1916C-632. 


SURETYSHIP — Continued. 

Husband  and  wife:  right  of  married 
woman  to  become  surety  for  husband, 
1917B-597. 

Liability  of  surety:  effect  of  abandon- 
ment or  dismissal  of  appeal  on  liabil- 
ity of  sureties  on  appeal  bond,  1916C'- 
1226. 

—failure  of  principal  to  sign  obligation 
as  affecting  liability  of  surety,  1917C- 
1073. 

—•liability  of  sureties  of  executor  or  ad- 
ministrator for  debt  of  their  principal 
to  decedent,  1916D-636. 

—liability  of  sureties  on  bond  of  public 
administrator,    1918B-1072. 

^liability  of  sureties  on  bond  of  sheriff 
or  constable  for  assault  committed  by 
officer,  1916D-923. 

— part  payment  by  principal  with  consent 
of  surety  as  suspending  statute  of 
limitations  as  to  surety,  1916D-327. 

Mechanics'  liens:  surety  on  bond  of  con- 
tractor or  purchaser  as  necessary 
party  defendant  to  action  to  fore- 
close mechanic's  lien,  1918B-23. 

Subrogation:  payment  of  whole  debt  by 
surety  as  essential  to  right  of  subro- 
gation to  creditor's  securities,  1917C- 
1183. 

SURFACE. 
See  Mines  and  Minerals. 

SURGEONS. 
See  Physicians  and  Surgeons. 

SURGICAL    ATTENDANCE. 
See  Master  and  Servant. 


SURVEYS. 

Admissibility  in  evidence  of  ancient  sur- 
vey, 1916C-176. 

Admissibility  in  evidence  of  field  book 
entries  of  deceased  surveyor,  1917E- 
675. 


SURRENDER   OF  POSSESSION. 
See  Landlord  and  Tenant. 

SURVIVAL  OF  ACTIONS. 
See  Actions. 

SURVIVING  PARTNERS. 
See  Partnership. 

SURVIVORSHIP. 

Admissibility  of  coroner's  verdict  as  evi- 
dence on  issue  of  survivorship,  1917B- 
899. 


SUSPENSION    FROM 
See  Schools. 


SCHOOL. 


INDEX  TO  THE  NOTES. 


107 


SUSPENSION   OF    ACTION. 

See  Actions. 

SUSPENSION    OF    ALLOWANCE. 

See  Workmen's  Compensation  Acts. 

SUSPENSION    OF    ATTORNEY. 
See  Attorneys. 

SUSPENSION  OF  INJUNCTION. 
See  Injunctions. 

SWTNGING  DOOES. 
See  Owners  of  Premises. 

SYMBOLICAL     DELIVERY. 
See  Frauds,  Statute  of. 

TABLES. 
See   Mortality   Tables. 

TAXATION. 

Decedents'  estates:  validity  of  statute  fix- 
ing probate  or  administration  fees, 
1916C-213. 

Delinquent  taxpayers:  validity  of  statute 
imposing  restriction  on  exercise  of 
rights  by  delinquent  taxpayer,  1916D- 
1099. 

Estoppel:  estoppel  of  taxpayer  returning 
property  for  taxation  to  dispute  as- 
sessment based  on  return,  1916C-230. 

— estoppel  of  taxpayer  to  question  valid- 
ity of  tax,  1916C-22. 

Exemptions:  hospital  as  charity  exempt 
from  taxation,  1917B-278. 

— validity  of  exemption  from  taxation  of 
money  loaned  on  mortgage  security, 
1916E-757. 

Foreign  corporations:  liability  to  taxa- 
tion within  state  of  shares  of  stock  of 
foreign   corporation,   1916C-829.  ' 

Income  taxes:  effect  of  partial  invalidity 
of  statute  relating  to  income  taxes, 
1916D-89. 

— meaning  of  "plant"  as  used  in  English 
Income  Tax  Act,  1917A-322. 

— situs  of  income  of  corporation  for  pur- 
pose of  income  tax,  1918A— 426. 

— taxable  personal  income  under  income 
tax  statute,  1916D-1265. 

Inheritance  taxes:  effect  of  partial  in- 
validity of  statute  relating  to  inherit- 
ance taxes,  1916D-89. 

— situs  of  corporate  stock  for  purposes  of 
succession  tax,  1918A-555. 

— time  for  taxing  future  estates  under 
succession  tax  acts,  1916D-309. 

Mercantile  agencies:  taxation  of  mercan- 
tile agencies,  1916D-749. 

Poll  taxes:  constitutionality  of  poll  taxes, 
1917E-1208. 


TAXATION— Continued. 

Priorities:  priority  as  between  purchase 
money  mortgage  and  tax  assessment, 
19160-955. 

—validity  and  construction  of  statute  giv- 
ing priority  to  lien  for  taxes,  1917A- 
1079. 

Bailroads:  valuation  of  railroad  property 
for  purpose   of  taxation,   1916E-1180. 

"Residence":  what  constitutes  "residence" 
in  jurisdiction  within  personal  prop- 
erty or  inheritance  tax  statute, 
1917B-726. 

Special  assessments:  assessment  of  rail- 
road right  of  way  for  street  improve- 
ment,   1916E-579. 

—public  property  as  subject  to  special 
assessment,  1917D-844. 

—right  of  municipality  to  contract  for 
local  improvement  with  special  as- 
sessment against  persons  benefited 
where  cost  exceeds  authorized  debt 
limit,   1917B-192. 

—time  within  which  special  or  local  as- 
sessment must  be  made,  1917E-137. 

^tate  lands  under  contract  of  purchase  as 
subject  to  taxation,  1917C-129. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  taxation,  1916D- 
87. 

Tax  sales:  effect  of  jwirtial  invalidity  of 
statute  relating  to  tax  sales  and 
deeds,  1916D-48. 

— personal  liability  of  officer  for  sale  of 
property  for  taxes  under  void  statute, 
1918B-190. 

— sale  of  land  for  taxes  as  extinguishing 
private  easement,  1916C-638. 

— sufficiency  of  notice  to  redeem  from  tax 
sale  with  respect  to  statement  as  to 
expiration  of  time  to  redeem,  1917A- 
243. 

Trusts  and  trustees:  situs,  for  purpose  of 
taxation,  of  personal  property  held  in 
trust,   1917D-948.  .  ,  .  ,;,^ai' 

See  also  Licenses. 

TAXICABS. 

Taxicab  proprietor  as  common  carrier, 
1916D-767. 

TAXPAYERS. 
See  Appeal  and  Error. 

TEACHERS. 
See  Schools. 

TELEGRAPHS    AND    TELEPHONES. 

Disclosure  of  contents  of  message:  liabil- 
ity of  telegraph  company  for  disclos- 
ure of  contents  of  message,  1916C- 
727. 

Eminent  domain:  power  of  telegraph  or 
telephone  company  to  condemn  rail- 
road right  of  way  under  state  statute, 
1917B-689. 


108 


DIGEST. 

1916C— 1918B. 


TELEaBAPHS     AND     TELEPHONES— 

Continued. 

Evidence:  admissibility  in  evidence  of 
self-serving  letter  or  telegram  sent  in 
general  course  of  business,  1917D-790. 

— conversations  by  telephone  as  evidence, 
1916E-977. 

— presumption  of  receipt  of  telegram, 
1917E-1081. 

Mental  anguish:  what  is  excessive  verdict 
for  mental  anguish  in  telegraph  case, 
1916C-524. 

Municipal  corporations;  power  of  munici- 
pality to  construct  and  operate  mn- 
nicipal   telephone   system,    1918A-380. 

Notice  of  claim:  commencement  of  suit  as 

'i  presentation  of  claim  within  stipula- 
tion on  telegraph  blank,  1917D-162. 

Notice  of  delay:  duty  of  telegraph  com- 
pany  to  notify  sender  of  delay  in 
transmission  or  delivery  of  message, 
1917C-545. 

Poles  and  wires:  acquirement  by  prescrip- 
tion of  right  to  maintain  telegraph, 
telephone  or  electric  light  pole, 
1916E-981. 

— revocation  or  expiration  of  right  of 
electric  company  to  maintain  poles 
and  wires  in  street,  1917E-525. 

Privileged  communications:  telegram  as 
privileged   communication,   19160-704. 

Befusal  to  accept  message:  liability  of 
telegraph  company  for  refusal  to  ac- 
cept message  for  transmission,  191 6D- 
467. 

Service  by  telephone:  validity  of  service, 
notice,  or  other  transaction  by  tele- 
phone, 1917B-903. 

TEMPERANCE. 

Presumption  of  temperance  or  sobriety, 
1918A-620. 

TEMPOBAB.Y    INJUNCTIONS    OE    EE- 

STRAINING  ORDERS. 

See  Injunctions. 

TENANT  BY  CTJRTEST. 

See  Curtesy. 

TENANTS  IN  COMMON. 

Nature  of  estate  resulting  from  creation 
of  cotenancy,  1917B-57. 

Eight  of  one  tenant  in  common  to  sue  for 
damages  for  injury  to  premises, 
1917A-608. 

Eight  of  tenant  in  common  to  compensa- 
tion for  services  in  selling  common 
property,   1916C-680. 

Eight  of  tenant  in  common  to  remove 
minerals  from  soil,  1918B-580. 

Eule  preventing  tenant  in  common  from 
purchasing  outstanding  title  as  appli- 
cable where  tenants  hold  adversely  to 
each  other,  1916D-1307. 

See  also  Partition. 


TENDER. 


Effect  of  tender  of  amount  due  on  judg- 
ment, 1916C-536. 

See  also  Fire  Insurance. 

TENT. 
Legal  meaning  of  "tent,"  1918B-138. 

TERMINATION    OF    ALLOWANCE. 
See  Workmen's  Compensation  Acts. 

TERMINATION  OF  CONTRACT. 
See  Master  and  Servant. 

TERM    OF    COURT. 
See  Courts. 

TESTAMENTARY  CAPACITY. 
See  Wills. 

TEST  ORDER. 
See  Public   Service  Commissions. 

THEATERS  AND  AMUSEMENTS. 

Contracts:  amusement  contracts,  1917C- 
391. 

"Dealer":  operator  of  penny  arcade  as 
"dealer,"   1917A-960. 

Moving  pictures,  1916C-301. 

Personal  injuries:  liability  of  organizer  or 
promoter  of  public  entertainment  not 
given  for  profit  for  personal  injuries, 
1917E-238.  ' 

Sundays  and  holidays:  engaging  in  labor 
or  amusement  on  Sunday  as  offense  at 
common  law  or  under  statute  other 
than  Sunday  law,  1918B-387. 

Tickets  of  admission:  right  of  purchaser 
of  ticket  of  admission  to  place  of 
amusement,  1916D-464. 

THEFT. 
See  Larceny. 

THREATS. 

Criminal  liability  for  threat  of  prosecu- 
tion in  connection  with  demand  for 
payment  of  debt,  1917E-246. 

Sending  anonymous  letter  as  criminal  of- 
fense, 1917C-699. 

See  also  Duress;  Extortion. 

TICKETS  AND  FARES. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  tickets,  1916D-85. 

Person  buying  and  selling  railroad  tickets 
as  "dealer,"  1917A-961. 

Statute  regulating  railroad  tickets  and 
scalping  as  interference  with  inter- 
state commerce,  1917A-997. 


INDEX  TO  THE  NOTES. 


109 


TICKETS  AND  FARES— Continued. 

Validity  of  order  by  public  service  com- 
mission regulating  commutation  rates, 
19173-1153. 

Validity  of  rule  of  street  railway  with  re- 
spect to  use  of  transfer,  1916D-5S6. 
See  also  Theaters  and  Amusements. 

TIDE. 

Loss  resulting  from  rise  or  fall  of  tide  as 
due  to  act  of  God,  1917A-450. 

TIMBER. 
See  Trees  and  Timber. 

TIME. 

Exclusion  or  inclusion  of  Sunday  or  holi- 
day in  computation  of  time,  1917E- 
934. 

"From"  as  word  of  inclusion  or  exclusion, 
1918A-924. 

Presumption  as  to  time  of  receipt  of  let- 
ter,  1917E-1068. 

Time  of  death  within  rule  as  to  presump- 
tion of  death  from  absence,  1917A-82. 

What  constitutes  reasonable  time  for  in- 
fant to  disaflSrm  contract  after  major- 
ity,  1917D-413. 

TIME  FOR  ARGUMENT. 
See  Argument  of  Counsel. 

TIME  OF  PAYMENT. 
See  Bills  and  Notes. 

TIPS. 
See  Average  Weekly  Earnings. 

TITHES. 
See  Animals. 

TITLE. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  title  to  real  property, 
1916D-47. 

See  also  Adverse  Possession;  Animals; 
Fire  Insurance;  Judicial  Sales;  Land- 
lord and  Tenant;  Libel  and  Slander; 
Recording  Acts;  Tenants  in  Common; 
Vendor  and  Purchaser;  Waters  and 
Watercourses. 


TOOLS. 

Effect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  obtain 
tool,  1918A-1197. 

Vehicle  as  "tool,"  •'implement"  or  "in- 
strument" within  exemption  statute, 
1917D-96. 

TORTS. 

Act  lawful  in  itself  not  rendered  unlaw- 
ful by  malicious  motive,  1916C-438. 

Civil  liability  for  interference  with  con- 
tract  relations,   1916E-608. 

See  also  Attorneys;  Fire  Insurance;  Im- 
prisonment for  Debt;  Negligence;  Set- 
off; Subrogation;  Taxation;  Wit- 
nesses. 


TOTAL  DISABILITY. 
See  Workmen's  Compensation  Acts. 

TOTAL  LOSS. 
See  Marine  Insurance. 

TOWNS. 

Lien  of  attorney  on  town  order  in  his  pos- 
session connected  with  litigation, 
1917D-150. 

TRACTION  ENGINES. 
See  Streets  and  Highways. 

TRADEMARKS    AND    TRADE    NAMES. 

Assignability    of    trademarks    and    trade 

names,  1917A-260. 
Bight      of      unincorporated      benevolent, 

fraternal    or    social     organization    to 

protection  in  use  of  its  name,  1913A- 

245. 
Use  of  personal   or  corporate  trade  name 

as  unfair  competition,  1918A-229.  , 

TRAINS. 
See  Carriers  of  Passengers;  Railroads. 

TRANSACTIONS  WITH  DECEDENTS. 

See  Witnesses. 

TRANSCRIPT. 
See  Discovery, 


TOBACCO. 
Seller  of  tobacco  as  "dealer."  1917A-953. 


TRANSFER   OF    EXPECTANCY. 
See   Descent    and   Distribution. 


TOILET  PREPARATIONS. 
See  Intoxicating  Liquors. 


TRANSFER  OF  STOCK. 
See   Stock   and   Stockholders. 


TOMBSTONES. 
See  Executors  and  Administrators. 


TRANSFERS. 
See  Street  Railways. 


110 


DIGEST. 

1916C— 1918B. 


TRANSFER  TAXES. 
See  Taxation. 


TRIAL. 


TRANSIENT  MERCHANTS. 
State  or  municipal  regulation  of  transient 
merchants,  1917E-505. 

TRANSMISSION    OF   MESSAGES 
See  Telegrams  and  Telephones. 

TRANSPORTATION. 

Employment  in  connection  with  trans- 
portation of  goods  as  within  purview 
of  workmen's  compensation  act, 
1917D-28. 

See  also  mtoxlcatljig  Iiiquors;  Mechanics' 
Isiens. 

TRAVEL. 
See  Insurance. 

TEAVELINa  EXPENSES. 
See  Agency. 

TREASON. 

What  constitutes  "adherence  to  enemies," 
etc.,  within  law  of  treason,  1917D- 
479. 

TREES  AND  TIMBER. 

Adjoining  landowners:  rights  of  adjoining 
landowners  with  respect  to  tree  on  or 
overhanging  boundary  line,  1918B- 
1157. 

Diseased  trees:  validity  of  statute  provid- 
ing for  destruction  of  diseased  fruit 
trees,  1917E-220. 

Forestry:  employment  in  forestry  service 
as  within  purview  of  workmen's  com- 
pensation act,  1917D-23. 

— validity  and  construction  of  forestry 
'legislation,   1917A-5. 

Loggers'  liens:  by  whom  and  for  what 
"  labor  or  services  logger's  lien  may  be 
claimed,  1916C-198. 

Moving  buildings:  liability  for  injury  to 
trees  in  moving  building,  1917C-80. 

Taxation:  validity  of  license  tax  imposed 
on  owner  of  premises  for  extracting 
mineral  or  turpentine  therefrom  or 
cutting   timber  thereon,   1918A-678. 

Waters  and  watercourses:  liability  of  one 
•  using  stream  to  float  timber  for  re- 
sulting injuries  to  riparian  owner, 
1918A-732. 

TRESPASS. 

Inconsistent  defenses  in  action  growing 
out  of  trespass  on  realty,  1917C-735. 

Eight  of  trespasser  to  recover  damages 
for  injuries  sustained  on  defective 
wharf,    1916C-150. 

See  also  Assault;  Infants. 


Attorneys:  liability  of  attorney  to  client 
for  negligence  with  respect  to  trial  of 
cause,  1917B-27. 

Continuance:  continuances  in  divorce 
cases,  1918B-1087. 

— exclusion  or  inclusion  of  Sunday  or 
holiday  in  computation  of  time  of 
continuance,  1917E-938. 

—prejudicial  newspaper  publication  as 
ground  for  continuance  of  criminal 
case,  1918A-449. 

Criminal  actions:  effect  of  failure  to  ask 
convicted  person  if  he  has  anything 
to  say  before  sentence,  1916C-9o. 

—right  of  accused  to  consult  with  or  sit 
by  counsel  during  trial,   1916D-204. 

— right  of  criminal  court  to  exclude  per- 
sons from   courtroom,    1917E-625. 

—right  of  private  counsel  to  assist  pros- 
ecution in   criminal  case,  1917D-512. 

•—time  or  stage  in  criminal  proceedings 
when  question  of  insanity  of  defend- 
ant may  be  determined  by  inquisition 
or  otherwise,  1916E-424. 

Misconduct  of  judge:  propriety  of  instruc- 
tion or  comment  by  court  to  effect 
that  perjury  has  been  committed  at 
trial,  1917B-128. 

Open  and  close:  right  to  open  and  close 
where  only  issue  is  amount  plaintiff 
is  entitled  to  recover,  1916D-958. 

Penal  actions:  trial  of  action  for  penalty 
for  violation  of  intoxicating  liquor 
statute,  1916E-873. 

Physical  examination:  power  of  court  to 
compel  submission  to  physical  exam- 
ination,  1917D-351. 

Place  of  trial:  power  of  court  to  try  case 
at    place    other    than    courthouse    or 
courtroom,  1917E-1050. 
Time   of   trial:    exclusion   or   inclusion    of 
Sunday  or  holiday  in  computation  of 
time  for  trial,  1917E-938. 
Trial  without  jury:  effect  of  admission  of 
incompetent   evidence    in   trial   before 
court    without  jury,   1917C-660. 
See   also   Argument   of    Counsel;    Courts; 
Injunctions;      Instructions;      Judges; 
Jury;    Misconduct    of    Counsel;    New 
Trial;  Venue;   Verdict. 

TRICKS. 
See  Confessions. 

TRUST  DEEDS. 

Lien  of  attorney  on  trust  deed  in  his  pos- 
session connected  with  litigation, 
1917D-150. 

Eight  to  enjoin  sale  under  mortgage  or 
trust  deed  «on  ground  of  conflicting 
liens  or  rights  or  because  of  disputed 
title,  1917D-123: 

TRUSTS. 
See  Monopolies. 


INDEX  TO  THE  NOTES. 


Ill 


TRUSTS  AND  TEUSTEES. 

Bank  deposits:  joint  deposit  in  bank  as 
creating  trust,  1916D-523. 

Construction  or  resulting  trusts:  suffi- 
ciency of  evidence  to  establish  con- 
strutive  or  resulting  trust,  1916D— 
1194. 

Limitation  of  actions:  application  of  stat- 
ute of  limitations  as  between  trustee 
and  beneficiary  of  express  trust, 
1917C-1018. 

Mechanics'  liens:  cestui  que  trust  as 
necessary  party  defendant  to  action 
to  forelose  mechanic's  lien,  1918B-18. 

— trustee  of  property  as  necessary  party 
defendant  to  action  to  forecl0se 
mechanic's   lien,   1918B-17. 

Merger  of  estates  where  life  tenan-li  is 
also  trustee  of  property,  1917A-1221. 

Mortgaging  trust  property:  power  of 
trustee  to  mortgage  trust  property, 
1916C-606. 

Personal  interest  of  trustee:  effect  of 
trustee  having  interest  in  subject- 
matter  of  trust,  1918A-481. 

Eemoval  of  trustee:  antagonism  or  ill 
feeling  between  trustee  and  benefi- 
ciary as  ground  for  removal  of 
trustee,  1918B-1044. 

Benunciation:  right  of  executor  or  trustee 
to  retract  renunciation  of  trust, 
1916D-1301. 

Spendthrift  trusts:  sufficiency  of  instru- 
ment to  create  spendthrift  trust, 
1917B-400. 

Taxation:  situs,  for  purpose  of  taxation, 
of  personal  property  held  in  trust, 
1917D-948. 

See  also  Mortgages. 

TURNPIKES    AND    TOLI.ROADS. 

Criminal  liability  of  corporation  for  col- 
lecting excessive  toll,  1916C-465. 

TURNSTILES. 
See  Owners  of  Premises. 

TURPENTINE. 
See  Licenses. 

TYPEWRITING. 

Forgery  of  or  by  typewriting,  1916D-784. 

UNCONTROLLABLE  IMPULSE. 
See  Insanity. 

UNDERGROUND   PIPES. 
See   Waterworks    and    Water    Companies. 

UNDERSTANDING. 

See  Breach  of  Promise  of  Marriage;  Libel 
and  Slander. 


UNDERTAKERS. 
See  Burial  Insurance. 

UNDISCLOSED  PRINCIPAL. 
See  Agency. 

UNDISPUTED  WRITING. 
See  Handwriting. 

UNDUE  n^LUENCE. 

Admissibility  of  declaration  of  testator 
not  made  at  time  of  execution  of  will, 
on  question  of  undue  influence,  1917D- 
717. 

Presumption  and  burden  of  proof  of  undue 
influence  in  case  of  conveyance  inter 
vivos  by  parent  to  child,  1918B-457. 

Presumption  of  undue  influence  arising 
from  relation  of  man  and  woman  en- 
gaged to  be  married,  1916C-1031. 

UNEARNED  PIUBMIUM. 
See  Fire  Insurance. 

UNFAIR  COMPETITION. 
See  Trademarks  and  Trade  Names. 

UNFAIR  LIST. 
See  Labor  Combinations. 

UNIFORM      WAREHOUSE      RECEIPTS 
ACT. 

See  Warehouses. 

UNINCORPORATED    ASSOCIATIONS. 

See  Societies  and  Clubs. 

UNITED  STATES. 
See  Common  Law;  Iililitift. 

UNLAWFUL  ASSEMBLY. 

Engaging  in  labor  or  amusement  on  Sun- 
day as  offense  at  common  law  or  un- 
der statute  other  than  Sunday  law, 
1918B-387. 

UNNATURAL  DISPOSITION  OF  PROP- 
ERTY. 

See  Wills. 

UNREASONABLE  TESTIMONY. 
See  Evidence. 

UNREGISTERED    TRANSFERS. 
See  Stock  and  Stockholders. 

UNUSUAL  PUNISHMENT. 
See  Sentence  and  Punishment. 


1]2 


DIGEST. 

1916C— 1918B. 


USAGES  AND  CUSTOMS. 


VARIANCE. 


Admissibility  of  evidence  of  peculiar  sig- 
nification of  word  in  locality  where 
instrument   was   executed,    1&16C-655. 

Effect  of  custom  on  personal  liability  of 
attorney  for  incidental  expenses  of 
action/l917B-523. 

Power  of  arbitrators  to   determine  exist- 
ence of  usage  or  custom,  1916D-360. 
See  also  Beneficial  Associations. 

USE   OF  PEOPEETT. 
See  Damages;   Ships  and  Shipping. 

USING  PRIVY. 

Effect  on  relation  of  employee  as  such  of 
stopping  work  temporarily  to  use 
privy,  1918A-1195. 

USURY. 

Acceleration  of  debt:  provision  for  accel- 
eration of  maturity  of  debt  on  default 
in  pavment  of  interest  or  installment 
of  principal  as  usurious,  1917D-725. 

Agency:  act  of  agent  in  entering  into 
usurious  contract  as  binding  principal, 
1916C-327. 

Building  and  loan  associations:  constitu- 
tionality of  statutes  exempting  build- 
ing and  loan  associations  from  usury 
laws,  1916&-232. 

Corporations:  Criminal  liability  of  corpo- 
ration for  receiving  illegal  interest, 
19160-465. 

National  banks:  jurisdiction  of  action 
against  national  bank  to  recover  pen- 
alty for  taking  usurious  interest, 
1916D-1246. 

Punishment:  what  constitutes  cruel  and 
unusual  punishment  for  taking  usury, 
1918B-400. 

Renewal  contract  as  affected  by  usury  in 
original  contract,  1918A-753. 

VACANCY. 

See  Fire  Insurance. 

VACATION. 

See  Judgments;    New  Trial;    Streets   and 

Highways. 

VALUATION. 
See  Taxation. 

VALUE. 

Admissibility  in  eminent  domain  proceed- 
ing of  evidence  of  price  paid  by  an- 
other than  condemnor  for  similar 
property,  1916E-598. 

Price  paid  for  personalty  or  services  as 
evidence  of  value  thereof,  1916D-797. 

See  also  Bribery;  Carriers  of  Goods;  Dam- 
ages. 


Effect  of  variance  between  indictment  and 
proof  with  respect  to  suffix  to  name, 
1917A-1214. 

VASECTOMY. 

Vasectomy  as  cruel  and  unusual  punish- 
ment, 1918B-398. 

VEGETABLES. 
See  Agriculture. 

VEGETATION. 

Injury  to  vegetation  as  warranting  relief 
against  brick  kiln  as  nuisance,  1917E- 

Actn 


422. 


VEHICLES. 


Care  required  of  driver  of  street-car  or 
other  vehicle  to  avoid  collision  with 
fire  apparatus,  1918A-290. 

Operation  of  vehicle  as  employment  within 
purview  of  workmen's  compensation 
act,  1917D-28. 

Vehicle  as  "tool,"  "implement"  or  "instru- 
ment" within  exemption  statute, 
1917D-96. 

See  also  Automobiles;  Motorcycles;  Neg- 
ligence; Streets  and  Highways;  Taxi- 
cabs;  Wagons. 

VENDOR  AND  PURCHASER. 

Assignment:  right  of  assignee  of  contract 
for  purchase  of  land  to  sue  for  rescis- 
sion thereof,  1917E-845. 

Breach  of  contract:  measure  of  damages 
for  breach  of  contract  to  sell  land  due 
to  vendor's  inability  to  make  title, 
1917B-858. 

— right  of  defaulting  purchaser  under  con- 
tract for  sale  of  land  to  reimbursement 
for  improvements,  1917C-85. 

—right  of  purchaser  to  rescind  contract 
of  sale  for  breach  by  vendor  in  ten- 
dering less  land  than  quantity  con- 
tracted for,  1916D-1154. 

Brokers:  power  of  real-estate  broker  to 
make  contract  of  sale,  1917A-522. 

Building  restrictions  and  restrictive  agree- 
ments: building  restriction  or  restric- 
tive agreement  as  binding  public  or 
public  service  corporation.  1918B-o91. 

—enforcement  in  equity  against  subpur- 
chaser of  restrictive  covenant  not 
running  with  lands,  where  covenantee 
has  no  interest  in  adjoining  land, 
19160-942. 

Corporations:  authority  of  officer  of  corpo- 
ration to  enter  into  contract  for  pur- 
chase or  sale  of  real  estate,  1917A- 
482. 

Crops:  validity  of  parol  reservation  of 
crops  by  vendor  of  land,  19160-344. 

Homestead:  validity  of  contract  to  con- 
vev  homestead  without  joinder  of 
wife,  1917A-76. 


INDEX  TO  THE  NOTES. 


113 


VENDOR  AND  PURCHASER— Continued, 

•Mechanic's  lien  on  realty  for  iinprove- 
menta  made  by  purchaser  under  con- 
tract of  sale  with  consent  of  owner, 
1916C-1135. 

Option  to  purchase  realty  as  violating  rule 
against  perpetuities,   1916D-577. 

Purchasers  for  value:  person  taking  con- 
veyance of  realty  in  payment  of  pre- 
existing debt  as  purchaser  for  value, 
1918A-112. 

Taxation:  state  lands  under  contract  of 
purchase  as  subject  to  taxation, 
1917C-129. 

See  also  Agency;  Dedication;  Deeds;  Ven- 
dor's Lien. 

VENDOR'S  LIEN. 

Existence  of  implied  vendor's  lien  where 
consideration  for  conveyance  is  agree- 
ment to  support  vendor  for  life,  19170" 
288. 

Priority  as  between  implied  vendor's  lien 
and  judgment  against  purchaser, 
1916D-384. 

Transfer  of  warehouse  receipt  as  divesting 
vendor's  lien,  1917D-112. 

VENUE. 

Application  for  change  of  judge  or  venue 
on  ground  of  bias  of  judge  as  ousting 
judge  of  jurisdiction,  1916D-1281. 

Bias  of  judge  existing  prior  to  trial  as 
ground  for  reversal  in  absence  of 
showing  of  prejudice  at  trial,  1917E- 
954. 

Change  of  venue  in  divorce  action,  1917A- 
940. 

VERDICT. 

Chance  or  quotient  verdict:  validity  of 
chance  or  quotient  verdict,  1917C- 
1224. 

Direction  of  verdict:  necessity  of  excep- 
tion to  direction  of  verdict,  1917A- 
849. 

Excessive  or  inadequate  verdict:  inade- 
quacy or  excess! venesa  of  verdict  in 
civil  action  for  rape,  1917E-135. 

— what  is  excessive  or  inadequate  verdict 
in  action  against  physician  for  mal- 
practice, 1916C-1078. 

— what  is  excessive  or  inadequate  verdict 
in  action  for  false  imprisonment, 
1916C-505. 

— what  is  excessive  or  inadequate  verdict 
in  action  for  malicious  prosecution, 
1916C-250. 

— what  is  excessive  verdict  for  mental 
anguish  in  telegraph  case,  1916C-524. 

— what  is  excessive  verdict  in  action  for 
libel  or  slander,  1916D-1175. 

Negative  pregnant  in  verdict,  1917A-676. 
See  also  Coroners;  Jury. 

VERIFICATION. 
See  Criminal  Law. 


VESSELS. 

See    Carriers    of    Passengers;    Ships    and 

Shipping. 

VESTED    REMAINDERS. 
See  Remainders  and  Reversions. 

VESTED  RIGHTS. 
See  Workmen's  Compensation  Acts. 

VIBRATION. 
See  Explosions  and  Explosives. 

VIOLATION  or  LAW. 

See  Life  Insurance. 

VOLUNTARY  APPEARANCE. 
See  Appearance. 

VOLUNTARY  ASSOCIATIONS. 
See  Societies  and  Clubs. 

VOTES. 
See  Elections. 

VOUCHERS. 

Lien  of  attorney  on  voucher  in  hia  pos- 
session connected  with  litigation, 
1917D-150. 

VOYAGE. 
See  Marine  Insurance. 

VULGAR  LANGUAGE. 
See  Breach  of  Peace;  Disorderly  Conduct. 

WAGES. 

Distinction  between  "salary"  and  "wages," 
1917B-321. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  wages,  1916D-68. 

Term  of  employment  and  rate  of  compen- 
sation of  one  continuing  in  service 
after  termination  of  contract,  1918B- 
1176. 

Tips  as  part  of  earnings  or  wages,  4^9183- 
1122, 

What  constitutes  "loss"  within  meaning 
of  statute  terminating  seamen's  wages 
upon  loss  of  vessel,  1916D-688. 

WAGONS. 

Right  of  action  by  driver  of  motorcycle 
for  collision  with  wagon,  1917A-223. 

WAIVER. 
See  Alteration  of  Instruments;  Appeal 
and  Error;  Appearance;  Beneficial 
Associations;  Criminal  Law;  Insur- 
ance; Jeopardy;  Mechanics'  Liens; 
Pleading;  Stock  and  Stockholders; 
Witnesses. 


114 


WANT  OP  JURISDICTION. 
See  Appearance. 

WAR. 


Alien  enemies:  expatriated  person  as  alien 
enemy,  1916D-306. 

— rights  and  liabilities  of  alien  enemies, 
1917C-189. 

Contracts:  war  as  excase  for  breach  of 
contract,  1918A-14. 

Espionage:  validity  of  espionage  act. 
1918B-1011. 

Internment:  internment  of  person  of  hos- 
tile origin  or  association,  1917D-409. 

— status  of  interned  alien  enemy,  1917C- 
193. 

Marine  insurance:  frustration  of  voyage 
because  of  existence  of  war  as  con- 
structive total  loss  within  marine  in- 
surance policy,  1916D-884. 

Neutral  property:  right  of  belligerent 
power  to  requisition  goods  of  neutral, 
I916E-245. 

Personal  liability  of  soldiers:  existence  of 
war  as  affecting  liability  of  soldier 
or  militiaman  for  injury  to  person  or 
property,  1917C-lo. 

Prizes:  right  to  bring  prize  into  neutral 
port,  1917D-448. 

War  power:  nature  and  scope  of  war 
power,  1918B-1009, 

Workmen's  compensation  act  as  applicable 
to  injury  arising  from  war,  1917C-760. 

Bee  also  Army  and  Navy;  Militia;  Ships 
and  Shipping;   Treason. 

WARD. 

See  Guardians. 

WAREHOUSES. 

Construction  of  uniform  warehouse  receipts 
act,  1917E-29. 

Employment  in  warehouse  as  within  pur- 
view of  workmen's  compensation  acts, 
1917l>-4. 

Transfer  of  warehouse  receipt  as  divesting 
vendor's  lien,  1917D-112. 

WARRANT. 

Proof  by  parol  of  contents  of  lost  or  de- 
stroyed warrant,  1916D-252. 
See     also    Arrest;     False    Imprisonment; 
Searches  and  Seizures. 

WARRANTS. 

Lien  of  attorney  on  warrant  in  his  posses- 
sion connected  with  litigation,  1917D- 
150. 
See  also  Municipal  Corporations. 

WARRANTY. 

Express  or  implied  warranty  on  sale  by 
sample,  1917C-311. 


DIGEST. 
1916C— 1918B. 

WARRANTY— Continned. 

Express   or   implied  warranty   on   sale   of 

seed,  1918B-72. 
Eight    of    conditional   vendee   to   recover 

damages     for     breach     of     warranty. 

1918B-914. 
Warranty  to  agent  as  inuring  to  benefit 

of  undisclosed  principal,  1918B-130. 


WATCHMAN  CI.AUSE. 
Bee  Fire  Insurance. 

WATER-CLOSETS. 
See  Health. 

WATERCRAFT. 
See  Ships  and  Shipping. 

WATERS  AND  WATERCOURSES. 

"Damage  by  elements":  damage  by  water 
as  included  within  term  "damage  by 
elements,"  1917B-297. 

Eminent  domain:  right  of  railroad  com- 
pany to  condemn  water  over  which 
right  of  way  is  constructed,  1916E- 
1215. 

Floating  timber:  liability  of  one  using 
stream  to  float  timber  for  resulting 
injuries  to  riparian  owner,  1918A-732. 

Ice:  nature  and  effect  of  grant  of  right 
to  take  ice  from  another's  premises, 
1917I>-93. 

—right  to  harvest  ice  as  between  person 
having  right  of  flowage  and  riparian 
proprietor,  1917C-782. 

Lakes:  title  to  bed  of  non-navigable  lake, 
1916D-299. 

Land  under  water:  power  of  state  to  grant 
title  to  land  under  navigable  water, 
1918B-1107. 

Master  and  servant:  river  and  harbor  or 
fortification  work  as  employment 
within  purview  of  workmen's  compen- 
sation act,  1917D-27. 

—well-digging  as  employment  within  pur- 
view of  workmen's  compensation  act 
1917D-30. 

Obstruction:  criminal  liability  of  corpora- 
tion for  obstruction  of  public  water- 
way, 19160463. 

• — duty  of  one  obstructing  natural  water- 
course to  anticipate  extraordinary 
freshets  or  floods,  1918A-1114. 

Power:  constru£tion  of  grant  of  water 
power,  1916D-1002. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  nuisances  affect- 
ing watercourses,  1916D-77. 

— effect  of  partial  invalidity  of  statute 
relating  to  waters  and  watercourses, 
1916D-93. 

Tides:  loss  resulting  from  rise  or  fall  of 
tide  as  due  to  act  of  God,  1917A-450. 

Wells  and  springs:  prescriptive  right  of 
individual  to  take  water  from  an- 
other's well  or  spring,  1917A'-881. 


INDEX  TO  THE  NOTES. 


115 


WATERS  AND  WATERCOITRSES— Con- 
tinued. 

Wells  and  springs:  right  of  landowner  to 
sink  well  and  intercept  subterranean 
waters  supplying  neighbor's  well  or 
spring,   1917C-106. 

See  also  Irrigation. 

WATEEWOEKS     AND     WATEE     COM- 
PANIES. 

Eminent  domain:  interest  in  land  acquired 
by  condemnation  for  purpose  of  water 
supply  as  easement  or  fee,  1918A- 
809. 

Extension  of  water  system:  power  to  com- 
pel extension  of  water  system,  1916D- 
285. 

Pipes:  duty  of  water  company  to  lay  ser- 
vice pipe  without  charge  to  con- 
sumer, 1916E-1297, 

— liability  for  injuries  caused  by  under- 
ground T?ater  pipes,  1916C-1050. 

"Plant":  meaning  of  "plant"  as  applied  to 
water  system,  1917A-321. 

Statutes:  effect  of  partial  invalidity  of 
statute  relating  to  water  in  munici- 
palities, 1916D-76. 

WEALTH, 
'   See  Argument  of  Cotmsel. 

WEAPONS. 

What  constitutes  "deadly  weapon,"  1916E- 
308. 

WEAEINO  APPAEEL. 

Measure  of  damages  for  loM  of  wearing 
apparel,  1917B-585. 

WEEDS. 
See  Agriculture. 

WEEKLY  EAENINGS. 
See  Average  Weekly  Earnings. 

WEEKLY  BEST  DAY. 
See  Labor  Laws. 

WEIGHT  OF  EVIDENCE. 
See  Evidence. 

WEIGHTS  AND  MEASURES. 

Criminal  liability  of  corporation  for  use 
of  false  weights  and  measures,  1916C— 
465. 

WELLS. 

Liability   of   land    owner    for    injury    to 
trespassing    child    on    account   of    un- 
guarded pond,  pool,  well,  etc.,  1916C- 
1085. 
See  also  Waters  and  Watercourses. 


WHAEVES. 

Effect  of  partial  invalidity  of  statute  re- 
lating to  wharves,  1916D-93. 

Employment  on  wharf  as  within  purview 
of  workmen's  compensation  act, 
1917D-21. 

Injuries  to  persons  on  or  about  wharves, 
docks,  or  piers,  1916C-139. 

WIDOWS. 

Widow  of  owner  of  premises  as  necessary 
party  defendant  to  action  to  foreclose 
mechanic's  lien,  1918B-14. 

See  also  Equitable  Election;  Executors 
and  Administrators. 


WIFE. 
See  Husband  and  Wife. 

WILD  ANIMALS. 
See  Animals. 

WHiFUL  INJTTEIES. 
See  Bankruptcy. 

WILLa 

iAinnuIment  or  establishment:  right  to  an- 
nul or  establish  will  before  death  of 
testator,  1918A-738. 

Attestation:  competency,  as  attesting  wit- 
ness to  will,  of  husband  ^r  wife  of 
beneficiary,  1917A-833. 

Constitutional  law:  right  to  take  property 
by  inheritance  or  will  as  natural  right 
protected  by  constitution,1918A-939. 

Construction:  bequest  to  be  divided 
equally  among  persons  standing  in 
different  relationships  to  testator  as 
requiring  division  per  capita  or  per 
stirpes,  1916C-411. 

—"child"  in  will  as  including  illegitimate 
child,  1918B-261. 

—construction  of  "and"  as  "or,"  and  vice 
versa,   in   construing   will,    1917C-306. 

•^construction  together  as  one  will  of 
several  testamentary  instruments  par- 
tially inconsistent,  1917E-781. 

—estate  created  by  grant  or  devise  of  life 
estate  with  absolute  power  of  disposi- 
tion, 1916D-400. 

• — implied  devise  or  bequest  from  recital 
in  will,  1917D-431. 

• — implied  power  of  executor  to  sell  real 
estate  of  testator,  1916D-410. 

—meaning  of  "all"  as  used  in  will  in  con- 
nection with  "rest,"  "residue,"  or 
"remainder,"  1917E-75. 

—meaning  of  "contents"  or  similar  ex- 
pression as  used  in  will  in  connection 
with  property  bequeathed  or  devised, 
1916C-1139. 

— meaning  of  "desire"  as  used  in  will, 
1917B-503. 

—meaning  of  term  "lawful  heirs"  as  used 
in  will,  1917C-1156. 


116 


DIGEST. 


1916C 

WHiLS — Continued, 

Construction:  nature  of  estate  resulting 
from  creation  of  cotenancy,  1917B-57. 

— right  of  representative  of  predeceased 
child  to  share  in  remainder  given  to 
children  as  a  class,  1917B-1245. 

— what  is  included  in  term  "premises"  as 
used  in  will,  1916C-119. 

— ^when  gift  to  "children",  and  like  in- 
cludes child  en  ventre  sa  mere,  1916E- 
1034. 

Contracts  relating  to  wills:  Measure  of 
damages  for  breach  of  contract  to 
make  will,  1918A-854. 

: — running  of  statute  of  limitations  against 
action  for  services  performed  in  con- 
sideration of  oral  agreement  to  com- 
pensate by  will,  191-8A-912. 

— validity  of  contract  not  to  change  will, 
1916D-1160. 

Equitable  election:  election  by  widow  to 
take  under  will  as  affecting  her  right 
to  intestate  property,  1918B-986. 

— sufficiency  of  acts  to  constitute  election 
by  husband  to  take  under  wife's  will, 
1916C-1204. 

Execution:  conclusiveness  of  testimony  of 
subscribing  witnesses  with  respect  to 
execution  of  will,  1916D-1104. 

— necessity  that  will  be  signed  by  testa- 
tor at  end  thereof  in  absence  of  stat- 
ute so  requiring,  191611-140. 

— sufficiency  of  signature  of  testator  to 
will  with  respect  to  manner  of  sign- 
ing, 1917B-874. 

Foreign  wills:  conclusiveness  in  domestic 
courts  of  foreign  will  duly  probated 
abroad,  1918A-614. 

tiegacies  and  devises:  "child"  in  statute 
avoiding  lapsing  of  legacies  as  in- 
eluding  illegitimate  child,  1918B-254, 

— effect  of  refusal  of  devisee  to  accept 
devise  of  realty,  1916D-1199. 

Nuncupative  wills:  attempt  to  make  for- 
mal will  as  constituting  nuncupative 
will,  1917D-608. 

Probate  and  contest:  admission  to  probate 
of  several  wills  which  are  of  same 
date  or  of  which  one  or  more  are  un- 
dated, 1918A-780. 

— estoppel  to  seek  probate  of  will,  1918A- 
1200. 

— power  of  executor  or  administrator 
with  will  annexed  to  appeal  from 
judgment  refusing  probate,  1917C- 
1079. 

— power  or  duty  of  administrator,  guard- 
ian, or  the  like,  to  contest  will,  1918B- 
536. 

— proof  by  parol  of  contents  of  lost  or 
destroyed   probate   record,   1916D-254. 

— right  of  person  who  is  merely  legatee 
or  devisee  to  contest  will,  1917C-905. 

— validitv  of  statute  fixing  probate  fees, 
1916<:-213. 

Eef oraiation :  jurisdiction  of  equity  to  re- 
form will,  1917D-llo7. 


— 1918B. 

WILLS— Continued. 

Eevocajtion  and  revival:  effect  on  will  of 
marriage  of  testator  without  issue, 
1917A-203. 

— revival  of  will  revoked  by  marriage, 
1917D-1175. 

— revocation  of  will  of  woman  by  subse- 
quent marriage,  1917C-1039. 

Testamentary  capacity:  admissibility  of 
coroner's  verdict  as  evidence  on  issue 
of  testamentary   capacity,   1917B-899. 

— admissibility  of  declaration  of  legatee 
or  devisee  as  to  mental  capacitv  of 
testator,  1918A-1066. 

— insane  delusion  with  respect  to  relative 
as  affecting  testamentary  capacity, 
1916C-4. 

— right  of  physician  who  attended  testa- 
tor before  his  death  to  testify  as  to 
his  mental  condition,  1918A-l650. 

— unnatural  or  unjust  disposition  of  estate 
as  evidence  of  testamentary  inca- 
pacity, 1917E-130. 

— validity  of  'Will  made  by  blind  person, 
1916D-792. 

Undue  influence:  admissibility  of  declara- 
tions of  testator  not  made  at  time  of 
execution  of  will,  on  question  of  un- 
due influence,  1917D-717. 

Validity  of  provisions:  validity  of  legacy 
or  devise  conditioned  on  recipient  ob- 
taining divorce  or  separating  from 
spouse,  1917B-167, 

— validity  of  testamentary  disposition  in 
restraint  of  marriage,  191SB-1141. 

— validity  of  testamentary  disposition 
subversive  of  religion,  1917B-1024. 

See  also  Deeds;  Executors  and  Adminis- 
trators; Privileged  Communications; 
Partition;  Remainders  and  Rever- 
sions; Trusts  and  Trustees. 

WINDOWS. 
See  Burglary. 

WIRES. 

See    Electricity;     Telegraphs    and    Tele- 
phones. 


WITNESSES. 

Acknowledgment:    competency  of  witnesses 

on    issue    of    verity    of    acknowledg- 
ment,  1917A-372. 
Age:   competency  of  witness  to  testify  as 

to  his  own  age,  1918B-427. 
^-competency  of  witness  to  testify  to  age 

of  another  person,   1918A-262. 
Depositions:    necessity    and    sufficiency   of 

naming  of  witness  in  notice  of  taking 

deposition,  1918A-950. 
Expert      witnesses:      testing     handwriting 

witness     by    use     of     other     writing, 

1917B-1060. 
— use    of    scientific    books    in    connection 

with   examination    of    expert   witness, 

1916E-356. 


INDEX  TO  THE  NOTES. 


117 


WITNESSES— Continued. 

Fees:    personal    liability    of    attorney   for 

fees  and  expenses  of  witness,  1917B- 

523. 

Husband  and  wife:  admissibility  of  testi- 
mony of  married  woman  to  prove  non- 
access  of  husband,  1917A-1031. 

— effect  of  death  of  one  spouse  on  com- 
petency of  other  as  witness,  1917D- 
216. 

— husband  or  wife  as  competent  witness 
in  prosecution  for  bigamy,  1916C- 
1060. 

Impeachment:  proof  of  drug  or  liquor 
habit  to  discredit  witness,  1918A-639. 

Jurors:  competency  as  witness  of  juror  on 
former  trial,  1916C-676. 

Libel  and  slander:  testimony  of  witness  as 
privileged  within  law  of  libel  and 
slander,   1918A-822. 

Privilege:  admissibility  in  civil  case  of 
evidence  showing  that  witness  had 
previously  claimed  privilege  in  crim- 
,      inal  case,  1917E-879. 

— comment  by  prosecutor  on  failure  of  ac- 
cused to  testify,  1917D-277. 

— waiver  by  witness  of  constitutional  privi- 
lege as  extending  to  subsequent  trial 
or  proceeding,  19160-1012. 

Privileged  communications:  communica- 
tions between  attorney  and  client  in 
regard  to  testamentary  matters  as 
privileged,   1916C-1073. 

— information  communicated  in  contract, 
fiduciary  or  similar  relation  as  privi- 
leged from  disclosure,  1916C-698. 

— ^right  of  person  overhearing  privileged 
communication  to  testify  thereto, 
19I8A-441. 

— statement  by  prosecuting  witness  to 
prosecuting  attorney  as  privileged, 
1916E-1121. 

Transactions  with  decedent:  admissibility 
of  evidence  given  at  former  trial  con- 
cerning transaction  with  person  since 
deceased,  1917B-366. 

^-competency  of  interested  witness  to 
testify  as  to  letter  passing  between 
him  and  person  since  deceased, 
1916E-747. 

— ^right  of  party  to  instrument  to  deny 
execution  thereof  by  himself  after 
death   of  other  party,   1918A-777. 

— right  of  physician  who  attended  testa- 
tor before  his  death  to  testify  as  to 
his  mental  condition,  1918A-1050. 

— rule  excluding  testimony  relating  to 
transaction  with  decedent  as  appli- 
cable  to  action   ex   delicto,   1918B-98. 

— statute  against  admission  of  evidence  of 
transaction  with  decedent  as  appli- 
cable to  deposition  taken  before 
death,  1917B-490. 

■ — ^waiver  by  personal  representative  of  in- 
competency of  witness  to  testify  to 
transaction  with  decedent,  1918A-471. 

See  also  Deeds;  Evidence;  Mortgages; 
Wills. 


WOMEN. 

Eight    of    woman    to    be    notary    public, 
1917I>-534. 
See  also  Labor  Laws;  Schools. 

WORDS. 

Admissibility  of  evidence  of  peculiar 
signification  of  word  in  locality  where 
instrument  was  executed,  1916C-655. 

WORDS  AND  PHRASES. 

"All":  meaning  of  "all"  as  used  in  pro- 
hibitory or  regulatory  statute,  1917E- 
39. 

— ^meaning  of  "all"  as  used  in  will  in  con- 
nection with  "rest,"  "residue,"  or 
"remainder,"  1917E-75. 

— meaning  of  "all"  as  used  with  respect  to 
minerals,  1917E-70. 

— meaning  of  "all  damages,"  1917B-82. 

— meaning  of  "all  matters,"  1917E-87. 

—meaning  of  "all  property"  as  used  in  in- 
strument, statute,  etc.,  other  than 
will,  1917E-58. 

— meaning  of  "all  revenue,"  1918B-206. 

"And":  construction  of  "and"  as  "or"  in 
construing   will,    1917C-306. 

"Any":  legal  meaning  of  "any,"  1916E-2. 

"Average  weekly  earnings":  meaning  of 
phrase  "average  weekly  earnings"  in 
workingmen's  compensation  or  similar 
act,   1918B-640. 

— tips  as  part  of  "average  weekly  earn- 
ings" under  workmen's  compensation 
act,  1918B-1122. 

"Bills  for  raising  revenue":  legal  meaning 
of  "bills  for  raising  revenue,"  1918B- 
209. 

"Board  of  revenue":  legal  meaning  of 
"board  of  revenue,"  1918B-220. 

"Child":  "child"  as  including  illegitimate 
child,  1918B-249. 

— when  gift  to  "children"  and  like  in- 
cludes child  en  ventre  sa  mere,  1916E- 
1034. 

"Citizen"  as  including  corporation,  joint 
stock  company  or  partnership.  1917C- 
875. 

"Commodity":  legal  meaning  of  "commod- 
ity," 1916D-986. 

"Completed":  meaning  of  "complete"  or 
"completed"  as  applied  to  railroad, 
1916D-1232. 

"Contents":  meaning  of  "contents"  or 
similar  expression  as  used  in  will  in 
connection  with  propertv  bequeathed 
or  devised,  1916C-1139. 

"Damage  by  elements":  construction  of 
phrase  "damage  by  elements"  or  simi- 
lar phrase  as  used  in  contract,  1917B- 
296. 

"Deadlv  weapon":  what  constitutes 
"deadly  weapon,"  1916E-308. 

"Dealer":  meaning  of  "deal"  or  "dealer," 
1917A-949. 


118 


DIGEST. 

1916C— 1918B, 


WORDS  AND  PHRASES— Continued. 

"Dependent":  who  is  "dependent"  within 
workmen's  compensation  act,  1918B- 
749. 

"Depot":  legal  meaning  of  "depot," 
1917A-1283. 

"Desire":  meaning  of  "desire"  as  use-i  in 
will,  1917B-O03. 

"Ejusdem  generis":  meaning  of  term 
"ejusdem  generis"  as  used  in  work- 
men's compensation  act,  1917D-7. 

"Estimated  revenue":  legal  meaning  of 
"estimated  revenue,"  1918B-206. 

"Expressio  unius  est  exclusio  alterius": 
meaning  of  phrase  *'expressio  unius 
est  exclusio  alterius"  as  used  in  work- 
men's compensation  act,  1917D-8. 

"Extrahazardous":  meaning  of  "extra- 
hazardous" as  used  in  workmen's  com- 
pensation act,  1917D-10. 

"Facility  of  payment" — construction  of 
"facility  of  payment"  clause  in  indus- 
trial insurance  policy,  1918B-1193. 

"Family":  persons  included  within  the 
term  "family"  when  used  to  desig- 
nate beneficiaries  in  insurance  policy 
or  benefit  certificate,  191TC-694. 

"Family  expenses":  meaning  of  term 
"family  expenses,"  1917C-575. 

"Father"  as  including  stepfather,  1917B- 
1118. 

"From"  as  word  of  inclusion  or  exclusion, 
1918A-924. 

"General  revenue":  legal  meaning  of  "gen- 
eral revenue,"  1918B-207. 

"Hazardous":  meaning  of  "hazardous"  as 
used  in  workmen's  compensation  act, 
1917D-10. 

"Implement":  vehicle  as  "implement" 
within  exemption  statute,  1917D-96. 

"Inherit":  meaning  of  "inherit,"  "in- 
herited," etc.,  1917C-386. 

"Injury":  what  is  "injury"  within  mean- 
ing of  workmen's  compensation  act, 
1918B-362. 

"Insolvent":  when  bank  is  "insolvent," 
1916C-85. 

"Instrument":  vehicle  as  "instrument" 
within  exemption  statute,  1917D-96. 

"Law":  ordinance  as  "law,"  1917C'-687. 

•'Lawful  heirs":  meaning  of  term  "lawful 
heirs"  as  used  in  will,  19170-1156. 

"Lying  in  wait":  what  constitutes  "lying 
in  wait"  within  statute  relating  to 
homicide,  1916C-969. 

"More  or  less":  construction  of  term 
"more  or  less"  in  deed  of  realty, 
1917D-155. 

"Natural  heirs":  meaning  of  term  "nat- 
ural heirs,"  1917A-1159. 

"Officer  of  the  revenue":  legal  meaning  of 

"officer  of  the  revenue,"  1918B-220. 
"Or":    construction    of   "or"    as    "and"    in 

construing  will,  1917C— 306. 
"Order  of  court":  what  constitutes  "order 

of  court,"  1917C-1041. 
"Ordinary     revenue":     legal     meaning    of 
"ordinary  revenue,"   1913B-208. 


WORDS  AND  PHRASES— Continued. 

"Otherwise":  legal  meaning  of  "other- 
wise," 19160-644, 

"Personal  injury":  what  is  "personal  in- 
jury" within  meaning  of  workmen's 
compensation  act,  1918B-362. 

"Plant":  meaning  of  "plant"  as  used  with 
reference  to  business,  1917A-317. 

"Premises":  what  is  included  in  term 
"premises"  as  used  with  respect  to 
land,  1916C-1192. 

"Recent":  meaning  of  term  "recent"  or 
"recently,"  1918A-814. 

"Rent":  distinction  between  rent  and 
royalty,   1916E-1225. 

"Residence":  what  constitutes  "residence" 
in  jurisdiction  within  personal  prop- 
erty or  inheritance  tax,  1917B-726. 

"Revenue":  legal  meaning  of  "revenue," 
1918B-200. 

"Revenue  debts  or  charges":  legal  mean- 
ing of  "revenue  debts  or  charges," 
1918B-219. 

"Revenue  laws":  legal  meaning  of 
"revenue  laws,"  1918B-209. 

"Revenue  measure":  legal  meaning  of 
"revenue  measure,"  1918B-218. 

"Revenue  tax":  legal  meaning  of  "revenue 
tax,"  1918B-219. 

"Royalty":  distinction  between  rent  and 
royalty,  1916E-1225. 

"Said":  legal  meaning  of  "said,"  1917D- 
603. 

"Salary":  distinction  between  "salary" 
and  "wages,"  1917B-321. 

"Scaffolding":  meaning  of  "scaffolding"  as 
used  in  workmen's  compensation  act, 
1917D-15. 

"Subcontractor":  who  is  "subcontractor" 
within  mechanic's  lien  law,  19170-801. 

"Tent":  legal  meaning  of  "tent,"  1918B- 
138. 

"Tool":  vehicle  is  "tool"  within  exemption 
statute,  1917D-96. 

"Wages":  distinction  between  "salary" 
and  "wages,"  1917B-321. 

"Workman":  who  is  "workman"  within 
meaning  of  workmen's  compensation 
act,  1918B-704. 

See  also  Alteration  of  Instruments;  Com- 
mon Law;  Deeds;  Evidence;  False 
Pretenses;  Imprisonment  for  Debt;  In- 
surance; Lost  Property;  Names;  Poor 
and  Poor  Laws;  Prostitution;  Public 
Officers;  Sales;  Ships  and  Shipping; 
Treason. 

WORKMEN'S    COMPENSATION    ACTS. 

Accident  or  injury  within  act:  disease  as 
accident  under  workmen's  compensa- 
tion act,  1918B-309. 

■ — right  to  compensation  under  workmen's 
compensation  act  as  dependent  on  loss 
of  earning  capacity,  1917E-156. 

— total  disability  under  workmen's  com- 
pensation act,  1917E-240. 

— what  constitutes  "loss"  of  eyesight 
within  workmen's  compensation  act, 
191SA-533. 


INDEX  TO  THE  NOTES. 


119 


WORKMEN'S  COMPENSATION  ACTS— 

Continued. 
Accident  or  injury  within  act:  what  con- 
stitutes "loss"  of  limb  or  part  thereof 
within    workmen's    compensation    act, 
1918A-536. 

— ^what  is  accident  arising  out  of  and  in 
course  of  employment  within  meaning 
of  workmen's  compensation  act, 
1918B-768. 

— ^what  is  "injury"  or  "personal  injury" 
within  meaning  of  workmen's  com- 
pensation  act,   1918B-362. 

—workmen's  compensation  act  as  appli- 
cable to  injury  received  in  another 
jurisdiction,  1918B-625. 

Appeal  and  error:  review  of  facts  on  ap- 
peal under  workmen's  compensation 
act,  1918B-647. 

"Average  weekly  earnings":  meaning  of 
phrase  "average  weekly  earnings"  in 
workmen's  compensation  or  similar 
act,  1918B-640. 

— tips  as  part  of  average  weekly  earnings 
under  workmen's  compensation  act, 
1918B-1122, 

Award  or  allowance:  award  or  right  to 
compensation  under  workmen's  com- 
pensation act  as  vesting  in  benefi- 
ciary,   1917D-1169. 

^increase,  decrease,  termination  or  sus- 
pension of  allowance  under  workmen's 
compensation  act,  1916E-889;  1918B- 
733. 

— ^lump  sum  award  under  workmen's  com- 
pensation act,  1918B-694. 

Defenses:  intoxication  of  employee  as  pre- 
cluding recovery  under  workmen's 
compensation  act,  1918B-686. 

—receipt  of  insurance  or  other  benefit  as 
affecting  right  to  compensation  under 
workmen's  compensation  act,  1918B- 
635. 

Dependents  within  act:  award  to  minor 
under  workmen's  compensation  act  as 
affecting  right  of  action  by  parent, 
1916D-1172. 

—-"child"  in  workmen's  compensation  act 
as  including  illegitimate  child,  1918B- 
258. 
— residence  of  beneficiary  as  affecting 
right  to  compensation  under  work- 
men's compensation  act,  1918B-634. 
—who    is    "dependent"    within   workmen's 

compensation  act,  1918B-749. 
Election   to  accept   act:  right  to  and  ef- 
fect   of   election   with   respect   to  ac- 
ceptance of  provisions   of   workmen's 
compensation  act,  1918B-715. 
(Employees  within  act:  liability  of  master 
for  injuries  to  domestic  servant  under 
workmen's   compensation   act,    1917D- 
•       504. 

*— maritime  employees  as  within  purview 
of  workmen's  compensation  act, 
1918B-661. 


WORKMEN'S  COMPENSATION  ACTS—  ^ 

Continued. 

Employees  within  act:  person  employed  in 
violation  of  law  as  entitled  to  com- 
pensation under  workmen's  compensa- 
tion  act,    1918B-679. 

— railroad  employees  as  within  purview  of 
workmen's  compensation  act,  1918B- 
664. 

— ^who  is  "workman"  within  meaning  of 
workmen's  compensation  act,  1918B- 
704. 

Employments  within  act:  occupations  or 
employments  within  purview  of  work- 
^  men's  compensation  acts,  1917D-4. 

Evidence:  admissibility  in  proceeding 
under  workmen's  compensation  act  of 
statement  by  injured  employee  re- 
specting cause  of  injury,  1916C-775. 

Medical  examination:  provisions  in  work- 
men's compensation  acts  respecting 
medical  examination  of  workmen, 
1918B-670. 

Notice  of  injury  under  workmen's  com- 
pensation act,  1917D-867. 

"Plant":  meaning  of  "plant"  as  used  in 
workmen's  compensation  act,  1917A- 
323. 

Repeal  of  statutes:  what  statutes  are  im- 
pliedly repealed  by  workmen's  com- 
pensation act,   1916E-773. 

Retroactive  operation  of  act:  workmen's 
compensation  act  as  retroactive  in 
operation,  1918B-617. 

Validity  of  act:  constitutionality  of  work- 
men's compensation  act,  1918B-611. 

— effect  of  partial  invalidity  of  work- 
men's compensation  act,  1916D-68. 

War:  workmen's  compensation  act  as  ap- 
plicable to  injury  arising  from  war, 
1917C-760. 


WORKSHOP. 

Employment  in  workshop  as  within  pur- 
view of  workmen's  compensation  act, 
1917D-18. 


WORKS  or  ART. 
See  Art. 

WRITING. 
See  Handwriting;  Notice. 

WRITINGS. 

Lien  of  attorney  on  writing  in  his  posses- 
sion connected  with  litigation,  1917b- 
149. 

Measure  of  damages  for  loss  or  destruc- 
tion of  writings  having  no  market 
value,  1917B-579. 

WRITS. 

Proof  by  parol  of  contents  of  lost  or  de- 
stroyed writ,  1916D-252. 


UCSB  IIBR-^R^ 


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